Does a prosecutor's comment that a defendant has an absolute constitutional right not to testify affect the outcome of his trial?

Although we find Griffin error, we find no due process violation and no prejudice under state law. Regarding due process, the comments did not render the trial fundamentally unfair. The jury was instructed, under CALCRIM No. 355, that a criminal defendant has "an absolute constitutional right not to testify." "Do not consider, for any reason at all, the fact the defendant did not testify. Do not discuss that fact during your deliberation or let it influence your decision in any way." And, of course, the jury was instructed, under CALCRIM No. 220, that defendant was presumed to be innocent and that the prosecution had to prove his guilt beyond a reasonable doubt. The instructions are presumed to have carried much more weight than the prosecutor's argument. " 'We presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade.' " (People v. Thornton (2007) 41 Cal.4th 391, 441.) Regarding prejudice under state law, the prosecutor's remark is noteworthy for its very needlessness, because the prosecution's case was ironclad, given the physical evidence and the victims' testimony. There is no reasonable probability that, had the prosecutor not committed Griffin error, the outcome would have been more favorable to defendant. He is not entitled to relief.

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