Can a refusal to consent to a warrantless search be considered a reasonable doubt?

The same rationale is applicable to a refusal to consent to a warrantless search. Such refusal is also ambiguous and therefore of little probative value. It may evidence completely innocent behavior. "There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer." (Tompkins v. Superior Court, supra, 59 Cal.2d at p. 68, 27 Cal.Rptr. 889, 378 P.2d 113.)

Since the trial court committed federal constitutional error, the state must show that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.) The impact of appellant's objection to the warrantless search was emphasized when the prosecutor repeatedly argued that the objection showed appellant's consciousness of guilt. The prosecutor's comments cannot be characterized as "moderate in tone and import." (Maj. opn. at p. 783 of 176 Cal.Rptr., p. 979 of 633 P.2d.) They were inflammatory in tone and powerful in impact. ²

[29 Cal.3d 920]

Page 790

There is another serious flaw in the majority opinion. The trial court erred in excluding appellant's testimony concerning why he did not make further efforts to find the victim after the stabbing. This evidence was not merely marginally relevant. (Maj. opn. at p. 785 of 176 Cal.Rptr., p. 981 of 633 P.2d.) It was highly relevant to the central issue in the case. This denial prevented appellant from presenting evidence in his defense. (People v. Reeder (1978) 82 Cal.App.3d 543, 552, 147 Cal.Rptr. 275; People v. Mizer (1961) 195 Cal.App.2d 261, 269, 15 Cal.Rptr. 272.)