What is the effect of improper comments or instruction by a prosecutor in a criminal case regarding appellant's refusal to testify at the extradition hearing?

In order for Griffin error to be prejudicial, the improper comment or instruction must either fill an evidentiary gap in the prosecution's case or "touch a live nerve" in the defense. (People v. Vargas, supra, 9 Cal.3d 470, 481, 108 Cal.Rptr. 15, 509 P.2d 959.)

Here, the improper comments of the prosecutor filled not only an evidentiary gap in the prosecution's case but also "touched a live nerve" in the defense. The "gap" which the comment helped fill was the bolstering of the basically weak credibility of prosecution witnesses. (See People v. Glass (1975) 44 Cal.App.3d 772, 780, 118 Cal.Rptr. 797.) Alternatively, the evidence of appellant's silence at the extradition hearing was brought out to impeach his credibility. In other words, if appellant allowed five witnesses in [234 Cal.App.3d 1461] England to falsely claim that he had not been in the United States at the time of the murder, and failed to rectify those false assertions, this served as evidence that the appellant was a liar. And the prosecutor repeatedly claimed the appellant lied. If the appellant was lying, then the inference is clear that the other witnesses' version of events was more trustworthy than appellant's and the prosecution witnesses should be believed. The argument of the prosecutor clearly touched on a "live nerve" of the defense because the thrust of the prosecution's argument was that appellant presented a defense in England that was inconsistent with his defense presented at trial. The prosecutor further argued that those witnesses giving false evidence on behalf of the appellant and appellant's failure to speak up constituted a consciousness of guilt.

Therefore, and as previously stated, we reject the argument that appellant's failure to object on Fifth Amendment grounds was fatal or that a claim of violation of appellant's constitutional privilege might have triggered a recognition on the part of the trial court that this comment was improper and, thus, a timely objection and admonition would have cured the harm. (See People v. Green, supra, 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.) There was no waiver by appellant of his constitutional right against self-incrimination. The defense made several objections to the admission of this evidence on at least two separate occasions but the trial judge made clear his belief that this evidence was admissible. Furthermore, any objection during closing argument when the prosecutor made a specific reference to the fact that appellant "didn't say anything" would have been too late and futile. Because of the amount of time and energy the prosecutor spent on this subject, the number of times this matter was raised and the further fact it filled an evidentiary gap and "touched a live nerve" in the defense, we cannot say that the trial court's error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.) Therefore, we conclude the comments of the prosecutor constituted reversible error.