When a prosecutor makes a brief and mild reference to a defendant's failure to testify without any suggestion that an inference of guilt be drawn there from that reference, is it harmless error?

And " '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. Turner (2004) 34 Cal.4th 406, 419-420.)

Here, the challenged statement did not constitute Griffin error and therefore no claim of ineffective assistance could arise from it. Placed in context, we read the statement, "who sat in this chair and told us what happened[?]," not as a comment on defendant's failure to testify, but rather an explanation or instruction on how the jury should perform its duty and interpret the evidence. Unlike a case involving forensic or documentary evidence of abuse, the prosecutor explained that this case turned primarily on witness credibility and that attorneys' statementsincluding questions on crosswere not evidence, and thus the jury should focus on what the witnesses had said.⁴ Nowhere did the prosecutor referencedirectly or indirectlythe defendant's decision not to testify. (See People v. Medina (1995) 11 Cal.4th 694, 756 ["prosecutor's remarks, viewed in context, can only be seen as a fair comment on the state of the evidence . . . outside the purview of Griffin"].)

Because defense counsel had no cause to object to the prosecutor's statement, no claim of ineffective assistance arises. (See People v. Medina, supra, 11 Cal.4th at p. 756 [because the statement fell outside Griffin's purview, the failure to object was justifiable and not incompetent representation].)

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