Filed 5/28/14
                      CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


THE PEOPLE,
        Plaintiff and Respondent,
                                                    A131141
v.
STEVEN PETRILLI,                                    (San Francisco City & County
                                                    Super. Ct. No. 204890-01/02362614)
        Defendant and Appellant.


        Late one night, defendant Steven Petrilli drove a stolen minivan around San
Francisco with his wife and two acquaintances. The acquaintances periodically left the
van, committed a robbery, and returned to the van. Once they were back inside,
defendant drove away. After the fourth such robbery, police spotted the van, and
defendant drove off at a high speed. The subsequent pursuit ended when defendant
rammed the van into a police car, killing a police officer in the car. Defendant was
convicted of felony murder with special circumstances, as well as four counts of robbery
and other crimes.
        Defendant contends, and the Attorney General concedes, that the felony murder
conviction must be reversed because of instructional error. We agree.
        Defendant also contends the trial court erred in admitting the testimony of his
wife. She had earlier testified under subpoena before a grand jury investigating the
incident, and when she sought to invoke the spousal testimonial privilege to avoid
testifying at trial, the trial court ruled she had waived the privilege by appearing before


        *
         Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.A. and II.C.
the grand jury. Applying the plain language of Evidence Code1 section 973, which
governs waiver of the spousal testimonial privilege, we conclude a spouse’s testimony
before a grand jury does not waive his or her subsequent assertion of the spousal
testimonial privilege at a criminal trial. We further conclude the admission of
defendant’s wife’s testimony was prejudicial in connection with three of defendant’s four
robbery convictions. We accordingly reverse defendant’s convictions for special
circumstances murder, conspiracy to commit robbery, and three counts of robbery, but
we affirm the remainder of defendant’s convictions.
                                     I. BACKGROUND
       Defendant and two others were charged in an indictment, filed April 4, 2008, with
special circumstances murder, committed in the course of a robbery. (Pen. Code, §§ 187,
190.2, subd. (a)(17)(A); count I.) The three were also charged with implied malice
second degree murder alleged to be a serious felony (Pen. Code, §§ 187, 1192.7,
subd. (c)(1); count II); conspiracy to commit robbery (Pen. Code, § 182, subd. (a)(1);
count III); four counts of robbery, all alleged to be serious and violent felonies (Pen.
Code, §§ 211, 667.5, subd. (c); 1192.7, subd. (c); counts IV, V, VI, VII); evading a police
officer and causing serious bodily injury (Veh. Code, § 2800.3, subd. (a); count VIII);
and vehicular manslaughter (Pen. Code, § 192, subd. (c)(1); count IX). Defendant alone
was charged with driving a stolen vehicle. (Veh. Code, § 10851, subd. (a); count X.)
       Defendant was tried separately from his two codefendants. Witnesses testified to
four separate robberies in San Francisco on the night of July 26, and the early morning of
July 27, 2006. Although the details varied, each robbery was committed by two African-
American men. Following each robbery, the men entered a minivan, and the van drove
away. The victim of the first robbery said a third person was driving the van, but he was
unable to provide any identifying information about the driver. The two victims of the
second robbery were unable to see the driver of the van at all. A witness to the third
robbery saw a man driving the van, but she, too, was unable to provide any further

       1
           All statutory references are to the Evidence Code unless otherwise indicated.


                                               2
information about him. Two of these witnesses saw a woman in the passenger seat of the
van.
       The victim of the fourth robbery was able to confront the driver of the van, whom
the victim identified as defendant. When defendant threatened him, the victim attempted
to kick defendant’s face through the open window, but defendant drove the van away.
This victim called 911, and two officers arrived in a patrol car within five minutes. After
some questions, the police asked the victim to ride with them in an attempt to locate the
van, and the three drove off. The victim eventually spotted a van similar to the one
involved in his robbery in the drive-through lane of a McDonald’s restaurant. When the
officers checked the license plate of the van, they learned it had been reported as stolen.
After the patrol car made a U-turn and activated its lights, the van left the drive-through
lane, drove over a curb, and took off at high speed. The patrol car followed. The victim
saw defendant in the driver’s seat.
       A reckless, high-speed chase ensued, on and off the highway, involving several
police cars. Eventually, the van left the highway and, at high speed, ran into a patrol car
stopped in an intersection, flipping the patrol car. The van then weaved into parked cars
and came to a stop. Defendant, the two codefendants, and defendant’s wife, Jessica
Chamberlain, emerged from the wrecked van. A police officer who was in the driver’s
seat of the rammed patrol car eventually died as the result of injuries suffered in the
collision.
       Chamberlain testified at trial under a grant of immunity. She explained she and
defendant took the van to a Burger King restaurant that night to pick up one of the
codefendants, who was a mutual friend.2 With him was the second codefendant, whom
she had not met before. The four rode around for awhile, defendant driving. They ended
up in the parking lot of a Safeway grocery store, where the two codefendants got out of
the van and committed a robbery. When the two returned to the van, defendant drove off.


       2
         The owner of the van testified it had been stolen a few weeks earlier. There was
no testimony explaining how defendant came to be in possession of the van.


                                              3
Chamberlain then recounted three other robberies and the chase, generally confirming the
testimony of the other witnesses. Chamberlain said defendant was the driver of the van
throughout.
       Following the last robbery, Chamberlain testified, they drove the van to a
McDonald’s restaurant on Third Street, but the restaurant was closed. Defendant then
drove to a McDonald’s restaurant on Bayshore, where they entered the drive-through lane
and ordered food. While they were waiting to pick up their food, Chamberlain saw the
police car and alerted defendant. The four at first decided to remain calm and ignore the
police vehicle, but just before they were to pay, the occupants of the van panicked.
Defendant drove over the curb and took off.
       A videotape of the four talking together in a room at the jail following the crash
was played for the jury. The codefendants made vague references to at least three of the
robberies. One of the codefendants told defendant, “[Y]ou don’t have no robbery on you.
All you, all you have is evading the police.” Defendant told them he tried to get the van
to go faster, but he could not get it past 85 miles per hour. All regretted stopping at
McDonald’s, a decision they blamed on Chamberlain.
       Defendant was found guilty of all charges, and the enhancement allegations were
found true. He was sentenced to a term of life without the possibility of parole on the
special circumstances murder charge, as well as a combined consecutive determinate
term of 7 years 8 months on the charges of evading a police officer and driving a stolen
vehicle. Sentences on the remaining counts were imposed and stayed.
                                    II. DISCUSSION
       Defendant raises three claims of error, one of which the Attorney General
concedes to be meritorious.
A. Error in Instructing on the “Escape Rule”
       The “escape rule” provides that certain crimes terminate when the defendant “ ‘has
actually reached a temporary place of safety.’ ” (People v. Wilkins (2013) 56 Cal.4th
333, 341 (Wilkins).) The trial court instructed on the escape rule, but it expressly limited
application of the rule to the robbery charges, implicitly excluding the felony murder


                                              4
charge. This was consistent with a use instruction in the CALCRIM standard jury
instructions, which cited as authority People v. Cavitt (2004) 33 Cal.4th 187, 208.
(2 Judicial Council of Cal., Jury Instns. (2012) Bench Notes to CALCRIM No. 3261,
p. 990.) In closing, the prosecutor relied on this limitation, arguing to the jury, “If you
decide there is a place of temporary safety, it does not absolve [defendant] of liability for
one continuous transaction of felony murder,” and contended the felony murder doctrine
reached any death that occurred “because of [the underlying] crime.”
       In Wilkins, decided several years after trial, the Supreme Court disapproved the
CALCRIM use instruction and held the escape rule applicable to a defendant’s liability
under the felony murder rule. In so doing, the court affirmed that “ ‘[f]elony-murder
liability continues throughout the flight of a perpetrator from the scene of a robbery until
the perpetrator reaches a place of temporary safety.’ ” (Wilkins, supra, 56 Cal.App.4th at
pp. 342–343, 345.) The court accordingly reversed the felony murder conviction of a
defendant who had caused a fatal traffic accident while transporting appliances
burglarized from a home several hours earlier, in which no escape rule instruction had
been given. (Id. at pp. 338–339, 352.)
       Defendant argues, and the Attorney General concedes, his conviction for first
degree murder must be reversed because the jury reasonably could have concluded that
he and his codefendants had reached a place of temporary safety when they drove into the
McDonald’s drive-through lane. We agree the error was prejudicial on these facts and
reverse the conviction. (Chapman v. California (1967) 386 U.S. 18, 24; see Wilkins,
supra, 56 Cal.4th at p. 350.)
B. Waiver of the Spousal Testimonial Privilege
       Defendant contends the trial court erred in holding Chamberlain waived her right
to invoke the spousal testimonial privilege by providing testimony to the grand jury.
       1. Procedural Background
       Chamberlain’s testimony was admitted over a defense objection under the spousal
testimonial privilege, asserted on Chamberlain’s behalf. Chamberlain had testified before
the grand jury under subpoena, giving testimony materially the same as her eventual


                                              5
testimony at trial. During a hearing on defendant’s objection held prior to trial,
Chamberlain explained she appeared before the grand jury “So I could stay out of jail”
and believed she would go to jail if she did not testify. At the time, she claimed, she did
not know that the proceeding “had something to do with [defendant].” Had she known
she was testifying against her husband, she said, she would not have appeared.
       Chamberlain was represented by appointed counsel in connection with her grand
jury testimony. In declarations submitted to the court, the attorney said he did not recall
discussing the issue of spousal privilege with Chamberlain, since “the focus of my
representation of Ms. Chamberlain quickly became her potential exposure to prosecution
and ensuring that I protected her Fifth Amendment rights.” The attorney discussed an
immunity agreement for Chamberlain with the deputy district attorney, but the deputy
“said that he was not going to give [Chamberlain] immunity for her testimony because he
did not think she had exposure. However, he promised me that she would not be
prosecuted in connection with these events unless she perjured herself before the Grand
Jury.” On that assurance, the attorney permitted Chamberlain to testify.
       The trial court entered a written decision allowing the testimony, basing its
decision on People v. Resendez (1993) 12 Cal.App.4th 98 (Resendez), which held that a
spouse’s testimony at a preliminary hearing waived the assertion of the spousal
testimonial privilege at trial. With respect to Chamberlain’s testimony regarding the
circumstances of her appearance in front of the grand jury, the court held her grand jury
testimony was not “erroneously compelled” for purposes of section 973 because
Chamberlain believed providing testimony would preclude criminal charges against her.
       2. Legal Background
       Resolution of defendant’s claim of error requires a review both of the spousal
testimonial privilege and the nature of grand jury proceedings.
              a. The Spousal Testimonial Privilege
       Evidentiary privileges in California are a creature of statute. (People v. Sinohui
(2002) 28 Cal.4th 205, 211 (Sinohui).) It is generally held that “evidentiary privileges
should be narrowly construed because they prevent otherwise admissible and relevant


                                             6
evidence from coming to light.” (Union Bank of California v. Superior Court (2005)
130 Cal.App.4th 378, 392.) “[T]he courts of this state have no power to expand [the
statutory privileges] to recognize implied exceptions.” (Wells Fargo Bank v. Superior
Court (2000) 22 Cal.4th 201, 206.)
       As relevant here, the spousal testimonial privilege is governed by three statutes.
Section 970 states that a married person has a privilege “not to testify against” his or her
spouse “in any proceeding.”3 Similarly, section 971 provides a privilege against being
called as a witness in any proceeding to which one’s spouse is a party. Waiver of the
spousal testimonial privilege is governed by its own statute, section 973, rather than the
more general statute governing waiver of privileges, section 912. Under subdivision (a)
of section 973, “[u]nless erroneously compelled to do so, a married person who testifies
in a proceeding to which his spouse is a party, or who testifies against his spouse in any
proceeding, does not have a privilege under this article in the proceeding in which such
testimony is given.”4 Unlike the confidential marital communication privilege of
section 980, the testimonial privilege is personal to the testifying spouse (People v.
McWhorter (2009) 47 Cal.4th 318, 374 (McWhorter)), but the other spouse has standing
to raise as error a trial court’s refusal to recognize an assertion of the privilege (§ 918).
The medieval origin of the spousal testimonial privilege was premised on the “ ‘long-
abandoned doctrine[]’ ” that a wife had no separate legal existence from her husband, but
the privilege persists on the belief it “ ‘ “preserve[s] marital harmony,” ’ ‘ “protect[s]
marital privacy,” ’ and ‘ “promote[s] the socially beneficial institution of marriage.” ’ ”
(Sinohui, supra, 28 Cal.4th at pp. 210–211.)




       3
        “Proceeding” is defined broadly to mean virtually any type of hearing at which
“testimony can be compelled by law [to be] given,” including grand jury proceedings.
(§ 901 & Cal. Law Revision Com. com., 29B pt. 3A West’s Ann. Evid. Code (2014
Supp.) foll. § 901, p. 24.)
       4
           The remainder of section 973 is not relevant here.


                                               7
               b. The Grand Jury
        The grand jury is a statutory body empowered to investigate “public offenses
committed or triable” within the county in which it sits. (Pen. Code, § 917.) Because the
grand jury is an investigative body, “the identity of the offender, and the precise nature of
the offense, if there be one, normally are developed at the conclusion of the grand jury’s
labors, not at the beginning,” at least in theory. (Blair v. United States (1919) 250 U.S.
273, 282; but see Hawkins v. Superior Court (1978) 22 Cal.3d 584, 591 [noting the
“distinct and largely inconsistent functions” of the grand jury as accuser and impartial
fact finder].)5 Should the grand jury find probable cause to believe a crime has been
committed, it prepares a charging document, known as an indictment, which is presented
to an appropriate court. (Pen. Code, §§ 889, 917.) With limited exceptions, the filing of
an indictment is one of two ways to commence a felony prosecution. The second is the
filing of an information, the name given to a charging document prepared by the district
attorney. (Pen. Code, §§ 682, 737, 739, 804; People v. Tideman (1962) 57 Cal.2d 574,
579.)
        Given the limitation of its role to investigation and accusation, the proceedings of
the grand jury are distinguished from any subsequent criminal prosecution. “It is
axiomatic that the grand jury sits not to determine guilt or innocence, but to assess
whether there is adequate basis for bringing a criminal charge.” (United States v.
Williams (1992) 504 U.S. 36, 51.) “[T]he grand jury serves as part of the charging
process of criminal procedure, not the adjudicative process that is the province of the
courts or trial jury.” (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.)
“[W]hen engaged in its indicting for crime function, [the grand jury] is in no proper sense
a criminal proceeding.” (M.C.A. v. State of California (1982) 128 Cal.App.3d 225, 237.)

        5
         Because of doubts about the fairness of the grand jury proceeding, which is
typically dominated by the district attorney’s office, Hawkins held that a defendant
accused by the grand jury had a right to the equivalent of a preliminary hearing.
(Hawkins v. Superior Court, supra, 22 Cal.3d at pp. 589, 594.) This result was later
overturned by the electorate in Proposition 115, now article I, section 14.1 of the
California Constitution. (Bowen v. Superior Court (1991) 1 Cal.4th 36, 39.)


                                              8
Accordingly, the procedural rights afforded a defendant in a criminal prosecution are not
recognized in connection with grand jury proceedings. A person who is the target of a
grand jury inquiry, even if identifiable, has no right to be present or to be represented by
counsel at grand jury proceedings, to refuse to appear as a witness before the grand jury,
or to produce witnesses on his or her own behalf. (People v. Brown (1999)
75 Cal.App.4th 916, 932 (Brown); People v. Dupree (1957) 156 Cal.App.2d 60, 65; In re
Lemon (1936) 15 Cal.App.2d 82, 91–92 (Lemon).)
        3. Discussion
        With that background, we address defendant’s claim of error in the admission of
Chamberlain’s testimony.
        Given the statutory nature of evidentiary privileges, our task is necessarily one of
statutory interpretation. In interpreting a statute, “ ‘it is well settled that we must look
first to the words of the statute, “because they generally provide the most reliable
indicator of legislative intent.” [Citation.] If the statutory language is clear and
unambiguous our inquiry ends. “If there is no ambiguity in the language, we presume the
Legislature meant what it said and the plain meaning of the statute governs.” [Citations.]
In reading statutes, we are mindful that words are to be given their plain and
commonsense meaning. [Citation.]’ [Citation.] Thus, we ‘avoid a construction that
would produce absurd consequences, which we presume the Legislature did not intend.
[Citations.]’ ” (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1394.) We
interpret a statute de novo. (In re Marriage of Cantarella (2011) 191 Cal.App.4th 916,
921.)
        Section 973, subdivision (a) provides two ways in which the spousal testimonial
privilege may be waived. The nonparty spouse may “testif[y] in a proceeding to which
his spouse is a party” or may “testif[y] against his spouse in any proceeding.”
Importantly, however, the waiver applies only “in the proceeding in which such
testimony is given.” (Ibid.) As a result, under the unambiguous language of the statute,
Chamberlain waived her right to assert the privilege at trial only if (1) defendant was a
party to the grand jury proceeding and/or (2) the grand jury proceeding was the same


                                               9
“proceeding” as his criminal prosecution. The latter requirement necessarily follows
from the restriction of the waiver to the proceeding “in which such testimony is given”; if
the grand jury proceeding was a different proceeding from the criminal prosecution, any
waiver from testimony at the grand jury proceeding would not carry over to the criminal
trial. We conclude neither of these requirements was met here.
       As discussed above, a grand jury proceeding is investigatory, not adversarial. As a
result, an indicted person is not deemed to have been a party to the grand jury proceeding
that indicted him or her. (People v. Johnson (1968) 68 Cal.2d 646, 654 [“defendant was
simply not a ‘party’ to the earlier (grand jury) proceeding”], overruled on other grounds
as stated in People v. Chavez (1980) 26 Cal.3d 334, 353–356.) “[N]o person has the
status of a party defendant in [a grand jury] investigation which is held merely for the
purpose of determining whether any criminal proceeding shall be commenced.” (Lemon,
supra, 15 Cal.App.2d at p. 85; see also In re McDonough (1937) 21 Cal.App.2d 287, 288
(McDonough) [at a grand jury investigation, a putative defendant “has but the status of a
witness”].) Because defendant was not a party to the grand jury proceeding at which
Chamberlain testified, her testimony there did not constitute a waiver of the spousal
testimonial privilege under the first part of section 973, subdivision (a).
       Further, while there is no question a grand jury proceeding is a “proceeding” for
purposes of the Evidence Code, it is not the same proceeding as a subsequent criminal
prosecution. The grand jury proceeding is not part of “ ‘the adjudicative process that is
the province of the courts or trial jury.’ ” (Brown, supra, 75 Cal.App.4th at p. 932.) “[A]
grand jury investigation is in no proper sense a criminal proceeding,” and “ ‘the
examination of witnesses before [the grand jury] . . . [is] “no part of criminal proceedings
against the accused, but are merely to assist the grand jury in determining whether such
proceedings shall be commenced.” ’ ” (Lemon, supra, 15 Cal.App.2d at pp. 85, 87; see
similarly McDonough, supra, 21 Cal.App.2d at p. 288.) As noted above, a criminal
prosecution is not even deemed to exist prior to the filing of an indictment or information.
Such commencement of a prosecution “is far from a mere formalism. It is the starting
point of our whole system of adversary criminal justice. For it is only then that the


                                             10
government has committed itself to prosecute, and only then that the adverse positions of
government and defendant have solidified.” (Kirby v. Illinois (1972) 406 U.S. 682, 689.)
Accordingly, there was no waiver under the second part of section 973, subdivision (a),
because any waiver resulting from Chamberlain’s grand jury testimony did not carry over
to the criminal prosecution, which was a different “proceeding” from the grand jury
proceedings.6
       While the Attorney General concedes defendant was not a party to the grand jury
proceedings, she argues, in a conclusory manner and without citation to authority, that the
trial court should be affirmed because “the proceedings from investigation to charging
document to jury trial are part of a continuous proceeding.” For the reasons stated, the
argument is inconsistent with virtually all judicial authority governing the respective
nature of grand jury and criminal proceedings.
       Resendez, on which the trial court relied, is entirely consistent with our decision.
Resendez’s holding that a spouse’s testimony at a preliminary hearing waives assertion of
the spousal testimonial privilege at trial is undoubtedly correct, since a defendant’s
preliminary hearing occurs in the context of the same criminal proceeding as his or her
trial, to which the defendant is unquestionably a party, thereby satisfying both prongs of
section 973, subdivision (a). (Resendez, supra, 12 Cal.App.4th at p. 107; see similarly
People v. Lankford (1976) 55 Cal.App.3d 203, 210, disapproved on other grounds in

       6
         We have neither found nor been pointed to any pertinent authority from
California or other jurisdictions on this issue. The nature of the spousal testimonial
privilege varies from jurisdiction to jurisdiction, making rulings from other courts of
limited value. (See In re A Grand Jury Subpoena (2006) 447 Mass. 88, 98, fn. 8
[849 N.E.2d 797, 805, fn. 8] [discussing differences among jurisdictions].) As a
particular example, while the court in Croom v. United States (D.C.Ct.App. 1988)
546 A.2d 1006, ruled that an appearance before the grand jury does result in waiver of the
spousal testimonial privilege at trial, the decision has no direct application here because
the court applied common law waiver principles, rather than the waiver statute with
which we are here concerned. (Id. at pp. 1008–1009.) Given the statutory nature of
California privileges (Wells Fargo Bank v. Superior Court, supra, 22 Cal.4th 201, 206),
we are bound by the specific language of section 973, subdivision (a), which leads to a
result opposite to that in Croom.


                                             11
People v. Collins (1976) 17 Cal.3d 687, 694, fn. 4.) Given the differences between a
preliminary hearing and a grand jury proceeding, however, a different conclusion is
mandated regarding grand jury testimony, for the reasons discussed above.7
       Although our inquiry ends with the unambiguous language of section 973, we note
there are sound reasons in policy not to deem a waiver of the spousal testimonial
privilege on the basis of grand jury testimony. As discussed above, the proceedings of
the grand jury are investigative, not adversarial, and “[i]t need not identify the offender it
suspects, or even ‘the precise nature of the offense’ it is investigating.” (United States v.
Williams, supra, 504 U.S. at p. 48.) While there could have been little mystery about the
purpose of the grand jury in seeking Chamberlain’s testimony, that is not necessarily the
case in every instance. A witness before the grand jury might not recognize the impact of
his or her testimony on the penal interests of a spouse. In addition, the deputy district
attorney conducting a grand jury investigation is under no duty to inform witnesses of the
existence and potential availability of the spousal testimonial privilege. (See, e.g.,
McWhorter, supra, 47 Cal.4th at p. 374 [court has no duty to inform witness of
testimonial privilege].) At an adversarial hearing, it may be expected counsel for the
party spouse will ensure the witness spouse is aware of his or her privilege against giving
adverse testimony, either directly or by a request for instructions to the court. (See
McWhorter, at p. 375; Resendez, supra, 12 Cal.App.4th at p. 109, fn. 6.) There are no
similar institutional circumstances to give assurance a witness before the grand jury will
become aware of the privilege. Because the soul of waiver is the knowing relinquishment
of a right (People v. McKinnon (2011) 52 Cal.4th 610, 636, fn. 16), the grand jury


       7
        The primary focus of the Resendez decision was whether the spouse’s testimony
had been “ ‘erroneously compelled’ ” under section 973, subdivision (a) because she
believed she was required to testify at the preliminary hearing and was not informed of
the spousal testimonial privilege. (Resendez, supra, 12 Cal.App.4th at pp. 108–109.)
This discussion is irrelevant here, since our reading of the statutory language compels the
conclusion testimony before a grand jury does not give rise to a waiver of the privilege at
the time of trial, regardless of whether the grand jury testimony was erroneously
compelled.


                                              12
structure provides no basis for presuming testimony by a spouse constituted a genuine
waiver of the spousal testimonial privilege.
       4. Prejudice
       Given the trial court’s error in refusing to recognize Chamberlain’s assertion of the
spousal testimonial privilege, defendant is entitled to the reversal of any conviction as to
which her testimony was prejudicial. We evaluate harmless error in the admission of
evidence under the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). (See
People v. Fuaiva (2012) 53 Cal.4th 622, 671.) Reversal is required if “the court, ‘after an
examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (Watson, at p. 836.)
       We conclude the admission of Chamberlain’s testimony was prejudicial in
connection with defendant’s convictions on the counts associated with the first three
robberies, counts V, VI, and VII. The witnesses to these robberies were not able to
identify, or even to describe, the driver of the van. The various conversations recorded
by the prosecution from jail and played for the jury, while suggestive, did not definitively
credit defendant with driving the van at the time of any particular robbery. Only
Chamberlain’s testimony unambiguously placed defendant in the van at the time of these
robberies and explained his presence. While we recognize the jury could have inferred
from defendant’s presence in the van later in the evening that he was also driving earlier,
it is reasonably probable the jury would have acquitted defendant of these charges had
Chamberlain not testified, given the reasonable doubt standard. The same is true of
defendant’s conviction for conspiracy to commit robbery; without Chamberlain’s
testimony, there is no compelling basis for finding an agreement with the codefendants
beyond a reasonable doubt. These convictions must be reversed.
       With respect to the crimes beginning with the last robbery, however,
Chamberlain’s testimony was less critical. The victim of the final robbery got a good
look at defendant during the robbery, even attempting to kick him through the open
vehicle window, and identified defendant at trial. The victim again saw defendant in the


                                               13
driver’s seat while the van was in line at McDonald’s, and he and two of the testifying
police officers watched the van from the time it left that line until it struck the police
vehicle, at which time defendant emerged with the others from the wrecked van.
Throughout that period, there was no time at which it was reasonably possible that a
different person took the wheel. The conclusion defendant was driving during this time
was further supported by the comments of the codefendants in the jail and defendant’s
own references to his inability to push the van to go faster during the chase. The
evidence was therefore very strong that defendant participated in the last robbery and
drove the van during the police chase. For the final robbery (charged in count IV) and
the counts associated with the police chase, evading a police officer and causing serious
bodily injury, vehicular manslaughter, and driving a stolen vehicle (counts VIII, IX, and
X), we find no probability of a more favorable result in the absence of Chamberlain’s
testimony. The same is true of defendant’s conviction for second degree murder (count
II), which was based entirely on the reckless manner in which he drove in causing the
collision. The trial court’s error in admitting Chamberlain’s testimony provides no basis
for reversing these convictions.
C. Prosecutorial Misconduct
       Defendant contends the prosecutor committed misconduct by (1) misstating the
law of felony murder, (2) appealing to passion and prejudice in arguing for conviction on
the felony murder charge, and (3) making various other improper arguments, as detailed
below. Because they relate only to the reversed felony murder conviction, the first two
arguments are mooted by our reversal of that conviction.
       The other improper arguments were harmless. Defendant contends (1) the
prosecutor committed Griffin8 error by arguing that if defendant were innocent he would
have told his mother during a conversation between the two played for the jury during
rebuttal; (2) the prosecutor misled the jury in arguing defendant would have told his
mother during the same conversation if he had been coerced by his codefendants; (3) the

       8
           Griffin v. California (1965) 380 U.S. 609 (Griffin).


                                               14
misled the jury by characterizing defendant as the “lead witness” for the prosecution,
based on his recorded statements in jail; and (4) the prosecutor referred to evidence
outside the record in telling the jury the deceased police officer had been “paralleling the
pursuit.” Griffin error occurs when a prosecutor comments “ ‘upon a defendant’s failure
to testify in his or her own behalf’ ” (People v. Thomas (2012) 54 Cal.4th 908, 945), and
it is a serious matter. Because the prosecutor’s comment related entirely to defendant’s
conduct during an out-of-court conversation, with no allusion to his failure to testify at
trial, it did not constitute Griffin error. (See People v. Tully (2012) 54 Cal.4th 952, 1021.)
We decline to decide whether any of the remaining arguments constituted misconduct
because they were peripheral to the primary evidence against defendant on the affirmed
convictions. On those counts, the evidence was strong, and the prosecutor’s purported
misconduct was harmless under the standards either of Watson, supra, 46 Cal.2d 818 or
Chapman v. California, supra, 386 U.S. 18.
                                   III. DISPOSITION

       Defendant’s convictions on counts I (first degree murder), III (conspiracy to
commit robbery), V, VI, and VII (all robbery) are reversed, as are the findings on the
enhancement allegations associated with these counts. Defendant’s convictions on the
remaining counts are affirmed. The matter is remanded to the trial court for further
proceedings consistent with this decision.

                                                  _________________________
                                                  Margulies, Acting P.J.

We concur:
_________________________
Banke, J.

_________________________
Becton, J.*
*
 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                             15
Trial Court: San Francisco City and County Superior Court

Trial Judge: Hon. Newton J. Lam

Counsel:

Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant
Attorneys General, Catherine A. Rivlin and Allen R. Crown, Deputy Attorneys General
for Plaintiff and Respondent.
