When faced with a prosecutor's comment that a defendant's refusal to testify may constitute a harmless error, is this harmless error?

In previous cases, when faced with a prosecutor's utterance of comments of this type (i.e., short, isolated statements not clearly calling for improper consideration of a defendant's silence), we have generally found such comments harmless. " "[I]ndirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error." " (People v. Boyette , supra , 29 Cal.4th at pp. 455456, 127 Cal.Rptr.2d 544, 58 P.3d 391 ; see People v. Turner (2004) 34 Cal.4th 406, 419420, 20 Cal.Rptr.3d 182, 99 P.3d 505.) In this case, however, the comment

[384 P.3d 749]

came from the trial judge, and it stands to reason that jurors would assign more weight to a judge's remark than that of a prosecutor. But even appreciating that difference, we find, for several reasons, the court's comment was harmless in these circumstances. First, the trial court's comment consisted of just a single short query. Second, the court's comment did not directly suggest the jury should draw an inference of guilt from defendant's decision not to testify. Third, the jury was instructed that "[a] defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact a defendant does not testify." We assume the jury followed this instruction. (People v. Seumanu , supra , 61 Cal.4th at p. 1336, 192 Cal.Rptr.3d 195, 355 P.3d 384.)

Considering these circumstances, we conclude that any Griffin error flowing from the trial court's comment was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)¹⁴

[1 Cal.5th 1119]

10. Alleged Violation of Evidence Code section 351.1 (Concerning Polygraph Evidence)