Can a prosecutor comment directly or indirectly on the Fifth Amendment?

"Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence. Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt. [Citations.] The prosecutor is permitted, however, to comment on the state of the evidence, 'including the failure of the defense to introduce material evidence or to call witnesses.' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 670.) " We apply a 'reasonable likelihood' standard for reviewing prosecutorial remarks, inquiring whether there is a reasonable likelihood that the jurors misconstrued or misapplied the words in question" to believe the prosecutor commented on the defendant's Fifth Amendment privileges. (People v. Roybal (1998) 19 Cal.4th 481, 514-515.)

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The entirety of the record demonstrates that the prosecutor's arguments in this case were not directed to defendant's decision not to testify at trial. Instead, the prosecutor sought to undermine defendant's expected reliance on a self-defense theory by pointing out that defendant never said anything about a knife or self-defense during his lengthy postarrest statement to the investigating officers. To the extent there might have been any confusion on this point, defense counsel objected and the court correctly admonished the jury that the prosecutor's argument was addressed to defendant's postarrest statement. There is no reasonable likelihood that the jury understood the prosecutor's remarks as improper comment on defendant's failure to testify at trial. (People v. Lewis, supra, 25 Cal.4th 610, 671.)

The judgment is affirmed.

Poochigian, J.