Filed 8/25/26 P. v. Barrios CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B346747
Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 24CMCF01470)
v.
EDUARDO BARRIOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Tammy Chung Ryu, Judge. Affirmed.
Joshua Peter Visco, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Eduardo Barrios of first degree residential burglary. The trial court sentenced Barrios to the low term of two years in state prison.
On appeal from the judgment, Barrios argues the prosecutor violated his constitutional right against self- incrimination by indirectly referring to Barrios’s decision not to testify in his own defense. Barrios further contends his trial attorney’s failure to object to the prosecutor’s allusion to his decision not to testify constitutes ineffective assistance of counsel.
We conclude Barrios failed to preserve for appeal his claim that the prosecution abridged his right to remain silent. We also reject Barrios’s claim of ineffective assistance of counsel because he does not show that had his attorney objected to the prosecutor’s remark and asked the trial court to admonish the jury to disregard it, there is a reasonable probability that Barrios would not have been convicted of first degree residential burglary. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND1 We summarize only those facts pertinent to our disposition of this appeal.
1. The information and Barrios’s not guilty plea On September 10, 2024, the People filed an information charging Barrios with one count of first degree residential
1 We derive our Factual and Procedural Background in part from admissions made by the parties in their briefing. (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 772, fn. 2 [employing this approach].)
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burglary, in violation of Penal Code section 459. Barrios pleaded not guilty.
2. The trial evidence At approximately 11:13 p.m. on August 9, 2024, K.C.
received a telephone call from his aunt in which she stated the screen on one of the windows at K.C.’s residence was off, the lights were on, and he should return home.2 K.C.’s aunt lived in the front unit of the building and K.C. lived in the back unit.
K.C. returned home approximately 15 to 20 minutes after he received the telephone call from his aunt. Upon arriving at his residence, K.C. observed that the light was on and one of the screens to his window was leaning against the building. K.C. entered his home and found Barrios near K.C.’s bed. K.C. did not know Barrios and Barrios did not have K.C.’s permission to be in K.C.’s home. After Barrios moved toward K.C., K.C. punched and kicked Barrios and threw Barrios out of the residence.
Police officers arrived and found Barrios in the yard outside K.C.’s residence. One of the officers detained Barrios. Although K.C. testified nothing was missing from his home, he also testified (1) he found Barrios’s backpack at the foot of K.C.’s bed and (2) an iPad that K.C. had placed on the dresser before he left his residence had been moved to the bed. One of the officers at the scene testified he found in Barrios’s backpack a crow bar, a flashlight, gloves, and wire cutters or pliers.
Barrios did not testify at trial.
2 To protect the burglary victim’s privacy, we refer to the victim by his initials. (Cal. Rules of Court, rule 8.90(b)(4).)
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3. The jury’s verdict, the trial court’s sentence, and Barrios’s notice of appeal The jury found Barrios guilty of first degree residential burglary. On June 4, 2025, the trial court sentenced Barrios to the low term of two years in state prison. Barrios timely appealed.
DISCUSSION
“The Fifth Amendment to the United States Constitution provides that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself,’ and the high court has interpreted this provision to ‘forbid[ ] either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.’ [Citation.] The constitutional prohibition against compelled self-incrimination is a right that has been incorporated to apply against the states [citations], and we have accordingly held ‘ “a prosecutor is prohibited from commenting directly or indirectly on an accused’s invocation of the constitutional right to silence” ’ [citation].” (People v. Thompson (2016) 1 Cal.5th 1043, 1117 (Thompson), citing, inter alia, Griffin v. California (1965) 380 U.S. 609, 615 (Griffin).) This type of constitutional violation is called “Griffin error.” (See Thompson, at p. 1118 & fn. 14.)
“ ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]’ [Citation.] We review prosecutorial remarks referring to the defendant’s failure to testify de novo.” (People v. Hubbard (2020) 52 Cal.App.5th 555, 562.) We review Griffin
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error claims under the standard of prejudice in Chapman v. California (1967) 386 U.S. 18 (see Thompson, supra, 1 Cal.5th at p. 1118 & fn. 14), which “ ‘ “requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” [citation] . . . ’ [citation]” (see People v. Pearson (2013) 56 Cal.4th 393, 463).
Barrios claims the People committed Griffin error when the prosecutor made the following statement during her rebuttal argument: “And [defense counsel] came up here and stated that . . . Barrios did not have the intent to commit a theft and that he was in there for 30 minutes and unsure of what was going on. He brought up whether . . . Barrios was possibly sleeping or watching the iPad.[3] We don’t know any of that. That’s not evidence we can consider. Because nobody came in here to testify what . . . Barrios was doing within those 30 minutes. Nobody was in the room with . . . Barrios. So we have no evidence to determine what happened in those 30 minutes.”
Barrios argues, “[T]he prosecutor’s comments that no one came in to testify to what [Barrios] was doing in the house during the thirty minutes he was in there[ ] is misconduct” because his “conduct inside the home could only be testified to by [Barrios] . . . .”
We conclude that Barrios forfeited this appellate claim by failing to object to the prosecutor’s remark and ask the trial court
3 Defense counsel had argued to the jury that (1) the evidence showed that Barrios had been in K.C.’s home for approximately 30 minutes before K.C. arrived, and (2) Barrios may have been sleeping or watching the iPad during that timeframe.
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to admonish the jury to disregard it. (Discussion, part A, post.) We further conclude Barrios does not demonstrate his attorney’s failure to preserve his Griffin claim for appeal constitutes ineffective assistance of counsel. (Discussion, part B, post.) Accordingly, we affirm the judgment.
A. Barrios Forfeited His Claim of Griffin Error “ ‘ “[A] claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury.” ’ [Citation.]” (People v. Jasso (2015) 17 Cal.5th 646, 698.) Barrios acknowledges his “trial counsel failed to object during [the] prosecutor’s rebuttal argument when she commented on there being no testimony as to what [Barrios] was doing inside the residence for thirty minutes.” Further, Barrios does not dispute — and thus tacitly agrees with — the following assertions made by the Attorney General: (1) “Had defense counsel posed a timely objection, the trial court could have sustained it and admonished the jury,” and (2) “[t]hese remedies would have cured any potential prejudice.”4 Accordingly, Barrios failed to preserve his contention that the People violated his right against self- incrimination. (See Jasso, at p. 698 [concluding that a defendant forfeited a Griffin claim by failing to object to the prosecutor’s remark and request an admonition].)
4 (See Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 & fn. 4 [criminal case in which the Court of Appeal assumed that an assertion made by the respondent was correct because the “defendant did not dispute [the] respondent’s claim in his reply”].)
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Notwithstanding Barrios’s forfeiture of his Griffin claim, we may still grant relief if his trial attorney’s failure to preserve this claim of error constitutes ineffective assistance of counsel. (See People v. Espiritu (2011) 199 Cal.App.4th 718, 725–726.) We address that issue below.
B. Barrios Fails To Show That Trial Counsel’s Alleged Deficient Performance Prejudiced Him “ ‘An ineffective assistance claim has two components: A [defendant] must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense.’ [Citations.]” (In re Gay (2020) 8 Cal.5th 1059, 1073 (Gay).) “To obtain relief, [the defendant] must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (Id. at pp. 1086–1087.)
Barrios argues his trial counsel rendered deficient performance by failing to “object during [the] prosecutor’s rebuttal argument when she commented on there being no testimony as to what [Barrios] was doing inside the residence for thirty minutes.” Because Barrios does not show he suffered prejudice from his trial attorney’s failure to raise this objection and request a jury admonishment, we reject his ineffective assistance claim without determining whether counsel’s performance was deficient.
Assuming arguendo the prosecutor’s remark could reasonably be interpreted as a reference to Barrios’s exercise of his right against self-incrimination, the remark was isolated, short, and oblique. The prosecutor did not tell the jury it should infer from Barrios’s decision not to testify that he intended to
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commit a theft inside K.C.’s home.5 The attorney simply stated, “[N]obody came in here to testify what . . . Barrios was doing within those 30 minutes” in which Barrios was alone in the residence. The prosecutor highlighted the absence of testimony on this point to persuade the jury to reject as speculative defense counsel’s argument to the jury that Barrios did not intend to commit a theft because he may have been sleeping or watching the iPad before K.C. arrived. (See fn. 3 & accompanying text, ante.) “[W]hen faced with a prosecutor’s utterance of comments of this type[, that is,] short, isolated statements . . . . ‘ “ ‘without any suggestion that an inference of guilt be drawn [from the defendant’s decision not to testify],’ ” ’ ” our high court has “generally found such comments harmless.” (See Thompson, supra, 1 Cal.5th at p. 1118.)
Furthermore, in its instructions, the trial court informed the jury that Barrios had “an absolute constitutional right not to testify,” and directed the jury “not [to] consider, for any reason at all, the fact that [Barrios] did not testify.” The court further instructed the jury “to decide what happened, based only on the evidence that ha[d] been presented . . . in this trial,” and the court explained to the jury, “Nothing that the attorneys say is evidence.” These instructions mitigated the risk that counsel’s failure to object to the prosecutor’s remark and request an admonition resulted in Barrios’s conviction. (Cf. Thompson,
5 The trial court instructed the jury that an essential element of the burglary charge was that Barrios had “intended to commit theft” “[w]hen he entered a room within a building . . . .” (See also Pen. Code, § 459, subd. (a) [defining burglary as entry into certain specified “building[s]” “with intent to commit grand or petit larceny or any felony”].)
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supra, 1 Cal.5th at p. 1118 [a trial court’s instruction barring the jury from drawing any inference from the fact the defendant did not testify can mitigate prejudice caused by Griffin error].)
Barrios argues that in Chapman, the United States Supreme Court reversed for Griffin error even in the face of overwhelming evidence of guilt. A fortiori, according to Barrios, the Griffin error here requires reversal because the evidence of Barrios’s guilt was weak.
More specifically, he argues the following evidence established that the two defendants in Chapman murdered a bartender: (1) the defendants were seen with the bartender shortly before his corpse was discovered; (2) several days before the murder, one of the defendants purchased a weapon that used the same caliber bullets that killed the bartender; (3) a check signed by one of the defendants was found near the corpse; (4) the defendants’ vehicle contained blood of the bartender’s blood type, hair matching the bartender’s, and fibers from his shoes; and (5) one of the defendants falsely claimed to be in a different city at the time of the murder.
In contrast, Barrios maintains, “[T]he evidence against [him] is weak as to the element of specific intent” because, although Barrios had been in K.C.’s home for approximately 30 minutes, the residence had not been ransacked, the iPad was the only possession that had been moved, none of K.C.’s belongings was found inside Barrios’s backpack, and “the trial court opined [at sentencing] that [Barrios] may have been under the influence of drugs during the incident.”
As an initial matter, Barrios does not mention in his briefing evidence that his backpack contained a crow bar, a flashlight, gloves, and wire cutters or pliers. (See Factual &
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Procedural Background, part 2, ante [describing this evidence].) Because this evidence shows that Barrios brought burglary tools with him into K.C.’s home, we reject Barrios’s assertion the evidence of his intent to commit a theft was “weak.”
Furthermore, Chapman applied a standard of prejudice under which the prosecution must prove beyond a reasonable doubt that the Griffin error was harmless. (See Chapman, supra, 386 U.S. at pp. 24–26.) Here, Barrios must demonstrate prejudice to prevail on his ineffective assistance claim. (See Gay, supra, 8 Cal.5th at pp. 1073, 1086.) Additionally, in Chapman, the prosecutor “fill[ed] his argument to the jury from beginning to end with numerous references to [the defendants’] silence and inferences of their guilt resulting therefrom” and “[t]he trial court also charged the jury that it could draw adverse inferences from [the defendants’] failure to testify.”6 Conversely, as we noted above, the People here arguably made one indirect and brief reference to Barrios’s failure to take the stand and the trial court instructed the jury not to draw any inference from Barrios’s invocation of his constitutional right to remain silent. It follows that the Griffin errors presented in Chapman were far more egregious than the alleged error here.7 Accordingly, Chapman
6 (See Chapman, supra, 386 U.S. at pp. 18–20, fns. omitted; see also id. at p. 26 [characterizing the Griffin errors as “a machine gun repetition of a denial of constitutional rights, designed and calculated to make [the defendants’] version of the evidence worthless”].)
7 (See Thompson, supra, 1 Cal.5th at p. 1118 [indicating that a trial court’s comment regarding a defendant’s decision not to testify may be more prejudicial than a Griffin error committed by a prosecutor because “it stands to reason that jurors would
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does not establish that Barrios’s trial attorney’s failure to object to the prosecutor’s alleged indirect reference to his right to silence was prejudicial.
In sum, Barrios does not establish there is a reasonable probability that had his trial counsel objected to the prosecutor’s rebuttal argument and sought an admonition to the jury, Barrios would have obtained a more favorable outcome at trial. For that reason, we reject his claim of ineffective assistance.
DISPOSITION
We affirm the judgment. NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.
assign more weight to a judge’s remark than that of a prosecutor”].)