        IN THE SUPREME COURT OF
               CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
               DAVID PHILLIP RODRIGUEZ,
                 Defendant and Appellant.

                          S251706

                   Fifth Appellate District
                          F073594

                Kings County Superior Court
                        12CM7070



                        May 21, 2020

Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Kruger concurred.
                   PEOPLE v. RODRIGUEZ
                            S251706


              Opinion of the Court by Groban, J.


      This case presents the question of whether a prosecutor
impermissibly vouched for witness credibility by asserting in
closing argument that two testifying officers would not lie
because each would not put his “entire career on the line” or “at
risk” and would not subject himself to “possible prosecution for
perjury.” The Court of Appeal answered this question in the
affirmative. The court further held that the error was
prejudicial and therefore reversed the judgment of conviction.
We affirm.
                       I. BACKGROUND
      On October 27, 2011, correctional officers Brian Stephens
and Roger Lowder worked at the Substance Abuse Treatment
Facility at Corcoran State Prison, where defendant David
Rodriguez was an inmate.
      Stephens testified to the following: At around 11:40 a.m.
that day, he was in the prison patio area when he saw Rodriguez
approximately 12 to 15 feet away inside a connecting hallway.
Stephens had never seen Rodriguez before. Stephens observed
Rodriguez with an untucked shirt covering his waist and
handcuffs on his wrists. At a doorway to the hallway, Stephens
met Rodriguez and told him to hold on. Stephens looked over
his shoulder to see if another officer could assist him. He then
saw a shiny object from his peripheral vision and felt a “[v]ery
heavy and hard” blow on the back of his head. As far as he knew,


                               1
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


he was only struck once. A photograph of Stephens’s head was
taken on the day of the incident and was introduced at trial as
a defense exhibit. Stephens testified that he sustained neck,
shoulder, and head injuries, but that the head injury was under
his hair and he could not see any injuries in the photograph.
Stephens stated that at the time of trial he had been working
for the Department of Corrections and Rehabilitation for
approximately 17 and a half years.
       Lowder testified to the following: On the day of the
incident, at around 11:40 a.m., he heard someone yell “get
down.” From about 20 yards away, he then saw Rodriguez
striking Stephens from behind. Rodriguez had handcuffs on his
wrists, but the chain from a waist restraint system was wrapped
around his hands and another four to six inches of chain was
hanging from his left fist. Lowder said he saw Rodriguez twice
raise his hands with chains in them and strike downward onto
the back of Stephens’s head, neck, and shoulders. Lowder
testified that several correctional officers ran toward the
altercation.     One sprayed Rodriguez with pepper spray.
Rodriguez swung the chain within about two feet of another
officer’s face, but did not hit him. The officers subdued him.
Lowder stated that at the time of trial he had been working for
the Department of Corrections and Rehabilitation for
approximately 22 years nine months.
      The jury saw a very low-quality video of the incident.
Lowder testified that the resolution of the video was too low to
see Rodriguez striking Stephens. Lowder and Stephens were
the only witnesses to the incident who testified for the
prosecution. A third officer testified that he arrived on the scene
after Rodriguez was down. He said the chains from the restraint



                                  2
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


system that normally go around an inmate’s waist were instead
under Rodriguez’s body and were only attached at the wrist.
      Rodriguez testified on his own behalf. He testified that on
the day of the incident, correctional officers told him he had to
go to class after he had been in his cell continuously for three or
four weeks. Once in class, he got the teacher’s permission to use
the restroom. After using the restroom, he walked out to the
prison patio area. Rodriguez said that he encountered Stephens
and “got into a light argument” with him. Rodriguez walked
past him. Stephens “tried to get out of my way, stumbled back
and I just kept going forward.” Rodriguez heard an alarm go off,
then someone said “get down,” and “some shots” were fired.
Rodriguez “got pepper sprayed and went to the ground.” He
stated that he never struck Stephens with anything. According
to Rodriguez, the waist restraints were around his waist at that
time and therefore it was physically impossible to strike anyone
with them. The parties stipulated that about two weeks before
the incident, Rodriguez was notified that his father,
grandmother, and uncle had all passed away within a short
period of time.
      During closing arguments, defense counsel argued that
“the officers who testified aren’t credible.” Defense counsel went
on to question the officers’ version of events based upon the
video. After defense counsel’s arguments, the prosecutor then
argued in closing:

      “The jury instructions provided by the Judge list a
      number of factors for you to consider when you are
      evaluating the credibility of witnesses. I want to
      highlight one of those factors for you and that is
      motive to lie. Who in this trial, when they testified


                                  3
                    PEOPLE v. RODRIGUEZ
                Opinion of the Court by Groban, J.


before you, had a motive to lie, the officers or the
defendant?

[¶] . . . [¶]

“What did Officer Stephens tell you? He told you
that he was attacked. He was hit from behind. Now,
I ask you what motive would he have to lie? Sort of
anticipating a defense like this, when Officer
Stephens was on the stand, I asked him, before that
day, to your knowledge, had you ever seen the
defendant before? No. Did you know the defendant?
No. So, you are being asked to believe by the defense
that Officer Stephens, an officer, I think, with 17
years of experience with the Department of
Corrections, for some reason, would put his entire
career on the line. He would take the stand, subject
himself to possible prosecution for perjury and lie
and make up some story and tell you that this guy,
who he didn’t know, attacked him and hit him on the
back of the head. For what reason? What possible
motive would he have to do that?

“But you add to that the testimony of Officer Lowder.
Officer Lowder testified this guy, the defendant, hit
Officer Stephens. So, now, we have two officers
involved in this lie, apparently, according to the
defendant. Another officer with a long career. His
was over 20 years. So, we’re supposed to believe
that, for some reason, Officer Lowder would put his
entire career with the Department of Corrections at




                                4
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


     risk, subject himself to possible prosecution for
     perjury— ”

At this point, defense counsel objected: “Assumes facts not in
evidence.” The trial court impliedly overruled the objection:
“Excuse me. Go ahead. You may continue.” The prosecutor
finished the argument: “To perjure himself before you and, for
some reason, lie and tell you that this defendant hit Officer
Stephens on the back of the head. I submit to you what reason
would he have to do that? There’s no motive to lie that we know
of.”
      The jury convicted Rodriguez as charged with two counts
of assault by an inmate with a deadly weapon (Pen. Code, §
4501),1 and one count each of battery by an inmate on a non-
inmate (§ 4501.5), attempted battery by an inmate on a non-
inmate (§§ 664/4501.5), and attempting to deter or prevent an
executive officer from performing a duty (§ 69). Pursuant to an
agreed disposition, Rodriguez admitted a prior strike (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)) and the prosecution
moved to dismiss prior prison term allegations (§ 667.5, subd.
(b)).
     The trial court sentenced Rodriguez to 14 years eight
months in prison, consisting of six years for assault by an inmate
with a deadly weapon, doubled for the prior strike, plus a
consecutive two years eight months for the other assault by an
inmate with a deadly weapon conviction. The sentences on the
remaining counts were stayed pursuant to section 654.



1
     All further unspecified statutory references are to the
Penal Code.


                                  5
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


     The Court of Appeal reversed. It found that the prosecutor
committed reversible error with respect to all counts by
improperly vouching for Lowder’s and Stephens’s credibility
during closing. The court also concluded that the trial court
committed reversible error with respect to the convictions for
assault by an inmate with a deadly weapon by failing to instruct
sua sponte on simple assault as a lesser included offense. The
Attorney General petitioned for review solely on the question of
whether the prosecutor’s argument constituted impermissible
vouching. We granted the petition.
                         II. DISCUSSION
     A. Vouching for the Witnesses’ Credibility
       The Attorney General contends that the prosecutor’s
closing argument did not constitute improper vouching because
it did not rely on facts outside the record or invoke the prestige
of the prosecutor or his office.
      “ ‘[A] prosecutor is given wide latitude to vigorously argue
his or her case’ ” (People v. Dykes (2009) 46 Cal.4th 731, 768
(Dykes)) and “ ‘may make “assurances regarding the apparent
honesty or reliability of” a witness “based on the ‘facts of [the]
record and the inferences reasonably drawn therefrom.’ ” ’ ”
(People v. Redd (2010) 48 Cal.4th 691, 740 (Redd).) “Improper
vouching occurs when the prosecutor either (1) suggests that
evidence not available to the jury supports the argument, or (2)
invokes his or her personal prestige or depth of experience, or
the prestige or reputation of the office, in support of the
argument.” (People v. Anderson (2018) 5 Cal.5th 372, 415
(Anderson).) Referring to facts not in evidence is “clearly”
misconduct “because such statements ‘tend[] to make the
prosecutor his own witness—offering unsworn testimony not


                                  6
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


subject to cross-examination. It has been recognized that such
testimony, “although worthless as a matter of law, can be
‘dynamite’ to the jury because of the special regard the jury has
for the prosecutor, thereby effectively circumventing the rules of
evidence.” [Citations.]’ [Citations.] ‘Statements of supposed
facts not in evidence . . . are a highly prejudicial form of
misconduct, and a frequent basis for reversal.’ ” (People v. Hill
(1998) 17 Cal.4th 800, 828 (Hill), overruled on another ground
in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
We “view the statements in the context of the argument as a
whole.” (People v. Cole (2004) 33 Cal.4th 1158, 1203.)
      Here, the prosecutor’s argument generally asking, “what
motive would [Stephens] have to lie?” (see ante, at p. 4), was
proper because it did not “suggest the prosecutor had personal
knowledge of facts outside the record showing [Stephens] was
telling the truth” or “invite[] the jury to abdicate its
responsibility to independently evaluate for itself whether
[Stephens] should be believed.” (People v. Bonilla (2007) 41
Cal.4th 313, 337–338.) The prosecutor’s argument immediately
after that concerning Stephens’s testimony that he had not seen
Rodriguez before the day of the incident was based upon the
record and was proper. The prosecutor had asked Stephens on
direct examination if he had ever seen Rodriguez before the day
in question. Stephens responded, “Not prior to that day, no.”
The prosecutor was permitted to point this out.
      Furthermore, the prosecutor’s argument concerning the
length of Stephens’s and Lowder’s careers was based upon the
record and was proper as well. Lowder testified he had been
working for the Department of Corrections and Rehabilitation
for approximately 22 years nine months. Stephens testified that
he had been working for the Department of Corrections for

                                  7
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


approximately 17 and a half years. The prosecutor was fully
permitted to argue that Stephens had “17 years of experience
with the Department of Corrections” and that Lowder was
“[a]nother officer with a long career. His was over 20 years.”
       However, the prosecutor’s arguments that the officers
would not lie because each would not put his “entire career on
the line” or “at risk” constitute impermissible vouching. The
prosecutor’s career-related arguments “convey the impression
that evidence not presented to the jury, but known to the
prosecutor, supports the charges against the defendant and can
thus jeopardize the defendant’s right to be tried solely on the
basis of the evidence presented to the jury.” (United States v.
Young (1985) 470 U.S. 1, 18.) The record here does not contain
any direct or circumstantial evidence about whether the officers
“would put” their “entire career on the line” or “at risk” by giving
false testimony. The officers did testify that they had served for
17 and 20 years, but the length of an officer’s career does not
supply evidence that the officer would risk the most severe
career penalty (being fired) for testifying falsely.            The
prosecutor’s arguments on these topics are thus based upon
matters outside the record that were not subject to
cross-examination.
     The Attorney General responds that the comments are
proper as matters of common knowledge and inferences
reasonably drawn therefrom. We disagree. Counsel may “draw
from matters that are ‘ “ ‘ “not in evidence, but which are
common knowledge or are illustrations drawn from common
experience, history or literature.” ’ ” ’ ” (People v. Ghobrial
(2018) 5 Cal.5th 250, 289.) “[F]acts are deemed within the
common knowledge of the jury only if they are matters of
common human experience or well known laws of natural

                                  8
                       PEOPLE v. RODRIGUEZ
                   Opinion of the Court by Groban, J.


science.” (People v. Love (1961) 56 Cal.2d 720, 732, disapproved
on another ground in People v. Morse (1964) 60 Cal.2d 631, 637,
fn. 2; accord, People v. Davis (2013) 57 Cal.4th 353, 360; see, e.g.,
People v. Perez (1962) 58 Cal.2d 229, 242, disapproved on
another ground in People v. Poggi (1988) 45 Cal.3d 306, 335.)
Even if true, the fact that a law enforcement officer would risk
termination for providing false testimony is not a matter of
common knowledge. Instead, the validity of this assertion
hinges on the inner workings of the relevant disciplinary
procedures, including the disciplinary rules of the relevant law
enforcement agency and the applicability of any collective
bargaining agreement. This kind of determination lies beyond
the ken of the average juror.
      The Attorney General emphasizes that the prosecutor only
stated that the officers put their careers “at risk” or “on the line,”
but did not “firmly” state the officers would lose their jobs, as
the Court of Appeal indicated. (See People v. Rodriguez (2018)
26 Cal.App.5th 890, 907 (Rodriguez).) We agree with the
Attorney General that the prosecutor did not “firmly” state that
the officers would lose their jobs, as the Court of Appeal
suggests. Nonetheless, the prosecutor did convey to the jury
that the officers would risk losing their jobs by lying on the
stand. There was no evidence in the record to support this
contention. Furthermore, the prosecutor’s statements conveyed
that he knew information about the discipline of law
enforcement officers that was not known to the lay juror. This
was improper. (See United States v. Weatherspoon (9th Cir.
2005) 410 F.3d 1142, 1146 [“while no such firm assurance was
provided . . . [,] no such modest shade of difference in the level
of impropriety calls for a different result”].)



                                   9
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


       To be clear, our cases have traditionally looked to
statements of personal beliefs in assessing whether a prosecutor
has improperly invoked personal prestige or the reputation of
the office. (See, e.g., People v. Fuiava (2012) 53 Cal.4th 662,
693–694 [“the prosecutor placed his own prestige and the
prestige of his office behind the Vikings, and in so doing,
improperly interjected into the trial his personal view of the
credibility of the heart of the defense case”]; People v. Loker
(2008) 44 Cal.4th 691, 739–740 [prosecutor improperly “injected
his own experiences and beliefs into the argument”].) This is
not a case where the statements at issue involved reliance on
the personal beliefs or honor or integrity of the attorney making
the statement. The main problem with the statements here is
that they suggest “that evidence not available to the jury
supports the argument.” (Anderson, supra, 5 Cal.5th at p. 415.)
But the statements pose similar concerns to vouching in its more
traditional forms. When a prosecutor argues beyond the record
about the career risks of untruthful testimony, the prosecutor
invites the jury to fill in gaps in the evidentiary record by
reference to the jury’s own surmise based on the special
reputation of law enforcement agencies and officers for veracity,
as well as suppositions about the special insight prosecutors
may have into law enforcement disciplinary procedures. The
prosecutor thus “invite[s] the jury to rely on the prestige of the
government and its agents rather than the jury’s own evaluation
of the evidence.” (U.S. v. Torres-Galindo (1st Cir. 2000) 206 F.3d
136, 142.)
      The    prosecutor’s comments      regarding    “possible
prosecution for perjury” do not implicate quite the same
concerns regarding improper vouching. With at least one
version of the oath administered to witnesses stating that the


                                 10
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


testimony is “under penalty of perjury” (Code Civ. Proc., § 2094,
subd. (a)(2)), that someone may be subject to “possible
prosecution for perjury” for knowingly providing false testimony
at a trial may well be a more widely appreciated proposition
than is the likelihood of termination from employment for such
conduct.
      In light of our conclusion that it was misconduct to
speculate about the potential employment consequences of lying
on the stand, we need not determine if the prosecutor’s specific
assertions regarding “possible” perjury prosecutions were
acceptable. That a perjury prosecution for false testimony was
“possible” may have been a fact within the common knowledge
of jurors; however, as the Attorney General conceded at oral
argument, a lay juror would naturally think that a prosecutor
would know more about when someone can be prosecuted for
perjury than a juror. For this reason, prosecutors are well
advised to generally avoid raising the subject of future perjury
prosecutions in their closing arguments.
      Finally, though the argument in this case crossed the line
into impermissible vouching, we do not mean to suggest that
appropriate and zealous advocacy is somehow prohibited. When
defense counsel argues that a witness has lied, the prosecutor is
permitted to respond. The prosecutor “ ‘may make “assurances
regarding the apparent honesty or reliability of” a witness
“based on the ‘facts of [the] record and the inferences reasonably
drawn therefrom.’ ” ’ ” (Redd, supra, 48 Cal.4th at p. 740.) The
error here is that the prosecutor’s arguments were based on
matters outside the record and that is not permitted.




                                 11
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


     B. Cases Relied Upon by the Parties
       We have briefly addressed vouching claims based upon
similar career-risk arguments before, with some divergence in
our precedent. In Dykes, supra, 46 Cal.4th at page 774, the
prosecutor argued: “ ‘If you believe [defendant], [an officer] is
lying, risking his career and everything it stands for, to
somehow frame this man.’ ” We concluded the claim was
forfeited and, in any event, “the remark constituted fair
comment on the evidence” that had been presented in that trial.
(Ibid.) In another instance, we doubted “that the argument was
proper” when a prosecutor argued that if a testifying officer had
lied he would have “ ‘risked his whole career of 17 years.’ ”
(People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on
another ground in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
      The Attorney General argues that we approved a
prosecutor’s closing argument in “[p]erhaps the case most
similar to the present one.” In People v. Anderson (1990) 52
Cal.3d 453, in “briefly review[ing] the merits,” we found that
“remarks [were limited] to facts of record, namely, the years of
experience of officers involved,” and “inferences reasonably
drawn therefrom,” when the prosecutor doubted the officers
would “jeopardize” their reputation by lying on the witness
stand “just to convict one defendant.” (Id. at pp. 478–479.) The
Attorney General, however, attaches too much import to this
discussion.    Because the claim there was forfeited, our
observations were not necessary to the claim’s resolution. (See
People v. Mendoza (2000) 23 Cal.4th 896, 915 [“ ‘[W]e must view
with caution seemingly categorical directives not essential to
earlier decisions and be guided by this dictum only to the extent
it remains analytically persuasive’ ”].) Moreover, the prosecutor
in Anderson doubted the officers would “ ‘jeopardize’ ” their

                                 12
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


reputation, but did not, as here, argue that officers would not
put their “entire career on the line.” The prosecutor’s arguments
in Anderson were therefore more directly tied to evidence in the
record, namely the officer’s years of experience, than the
arguments here. Whether an officer would be fired for testifying
falsely would not depend on the number of years the officer had
been working, but, conversely, an officer’s reputation could
reasonably grow over time.
       The Attorney General argues that we should follow People
v. Caldwell (2013) 212 Cal.App.4th 1262. In Caldwell, in
response to a defense argument that testifying officers had lied,
the prosecutor argued that the officers would not commit
perjury and “ ‘put their career on the line.’ ” (Id. at p. 1270.)
Caldwell found that the prosecutor “was not vouching for [the
officers’] credibility; he was rebutting the defense attorney’s
charge that the officers had lied about the photo lineup.” (Id. at
p. 1271.) The Court of Appeal in this case disagreed: “Defense
counsel does not open the door for prosecutorial vouching every
time he or she argues that a prosecution witness’s testimony is
untrue.”     (Rodriguez, supra, 26 Cal.App.5th at p. 910.)
Impermissible vouching — where counsel relies on evidence not
available to the juror or invokes his or her personal prestige or
depth of experience — does not become permissible simply
because the speaker claims to be responding to something
opposing counsel said. (See People v. Bain (1971) 5 Cal.3d 839,
849 [“A prosecutor’s misconduct cannot be justified on the
ground that defense counsel ‘started it’ with similar
improprieties”]; People v. Taylor (1961) 197 Cal.App.2d 372, 383
[“It is no answer to state that defense counsel also used
questionable tactics during the trial and therefore the district
attorney was entitled to retaliate”].) We accordingly agree with


                                 13
                     PEOPLE v. RODRIGUEZ
                 Opinion of the Court by Groban, J.


the Court of Appeal and disapprove People v. Caldwell, supra,
212 Cal.App.4th 1262.
      The argument here suffers from the same deficiencies,
albeit to a lesser degree, as those addressed in People v. Woods
(2006) 146 Cal.App.4th 106 (Woods). In Woods, the prosecutor
argued that:

     “ ‘In a day of videotapes and people standing out
     with video cameras, do you honestly believe that out
     of 12 officers that went to that location that day they
     all sat down and got together and cooked up what
     they are going to say, that they all agreed as to what
     was going to go into the report, and they allowed
     that report to be filed with their names in it and
     their serial numbers in it? They are going to risk
     their careers and their livelihood for kilos of cocaine?
     For some heroin? Maybe for some stolen Maserati
     car parts? No. For five rocks of cocaine? That’s
     what this comes down to, ladies and gentlemen. Mr.
     Woods and his cocaine that he tossed that day. 12
     officers, 12 individual careers, pensions, house
     notes, car notes.’ Defense counsel objected that
     there was no evidence to support the argument. The
     court overruled the objection.

     “[The prosecutor] continued her argument, stating,
     ‘Bank accounts, children’s tuition.’ Defense counsel
     asserted a ‘running objection,’ which the court
     overruled.

     “After the ruling on the objection, [the prosecutor]
     resumed the argument, saying, ‘Are these 12 officers


                                14
                       PEOPLE v. RODRIGUEZ
                   Opinion of the Court by Groban, J.


      willing to risk those things for Mr. Woods and his
      five rocks of cocaine?’ ”      (Woods, supra, 146
      Cal.App.4th at p. 114.)

       The Court of Appeal in Woods held that the argument
strayed “into impermissible territory when [the prosecutor]
implicitly suggested that all 12 unidentified, mostly
nontestifying officers . . . had been involved in a case or cases
involving higher stakes such as kilos of cocaine, heroin, and
stolen Maserati parts, but had not risked their careers for the
higher stakes case or cases; and the same 12 officers had
mortgages, car loans, and children in private schools. Although
the officers’ financial obligations and experience were irrelevant
to appellant’s guilt, [the prosecutor] argued these factual
matters outside of the record to attempt to establish the veracity
of the few members of the group of 12 officers who testified.”
(Woods, supra, 146 Cal.App.4th at p. 115.)                While the
prosecutor’s extrarecord arguments in Woods are more
extensive than here, the overarching concern is the same in both
cases. In Woods, the prosecutor argued beyond the record to
bolster the credibility of the testifying officers by suggesting that
they would not risk their careers and jeopardize their financial
obligations. Here, the prosecutor also argued beyond the record
to support the veracity of the testifying officers — specifically,
that the officers would be putting their “entire career on the
line.”
      The Attorney General also points to less analogous cases
where we rejected claims of prosecutorial vouching. However,
in each case, the prosecutor’s statements were either more
directly tied to the record than the arguments at issue here or
were sufficiently general such that they would not convey to the


                                  15
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


jury that the prosecutor had any special knowledge about the
subject. (See People v. Peoples (2016) 62 Cal.4th 718, 796
[prosecutor argued that an expert was “ ‘so much more capable,
with no agenda, and serving the bottom line to you’ ”; the
comment was “reasonable commentary on the credibility of the
witnesses”]; Redd, supra, 48 Cal.4th at p. 741 [prosecutor
argued that a testifying officer “went the extra distance” and
took his “job seriously”; the comments “were based upon facts
established by the testimony”]; People v. Boyette (2002) 29
Cal.4th 381, 433 [prosecutor argued witnesses had no motive to
lie; the comments were “simply argument based on inferences
from the evidence presented”]; People v. Medina (1995) 11
Cal.4th 694, 757 [prosecutor argued that ballistics experts had
no reason to lie, were not being paid for testifying, and told the
truth to the jury; “the prosecutor properly relied on facts of
record and the inferences reasonably drawn therefrom”]; People
v. Davenport (1995) 11 Cal.4th 1171, 1217–1218 [prosecutor
argued, “ ‘[i]s that [expert], for 75 bucks going to come in here
and, you know, make all of his findings up or try and sway
them?’ ”; “the prosecutor reasonably inferred that [the expert]
had received $75 for the . . . autopsy based on [testimony about
payments]. Reference to this modest payment suggested that
[the expert] had no motive to fabricate in making his report”].)
The claims in Redd, Medina, and Davenport were forfeited on
appeal as well. (See Redd, at p. 741; Medina, at p. 757;
Davenport, at p. 1095.) These cases are therefore not dispositive
of the issue before us now.
     C. Conclusion
       Based upon the foregoing and the record in this case, we
find that the prosecutor impermissibly vouched for the testifying
officers’ credibility. The Court of Appeal found that the

                                 16
                      PEOPLE v. RODRIGUEZ
                  Opinion of the Court by Groban, J.


prosecutor’s vouching was prejudicial. That court appears to
have overstated the import and effect of the prosecutor’s
remarks when it explained, “The impact of the prosecutor’s
remarks depended on the truth of a number of propositions,
none of which come close to being self-evident: that law
enforcement officers of long tenure are more likely to be honest
than other people; that they can firmly expect to lose their jobs
if they lie or exaggerate when testifying against those accused
of crime; that they face a grave risk of prosecution for perjury by
the very prosecutors who have presented their testimony if they
do this; or that these factors are so powerful in the minds of
officers that they would feel no motivation to lie in order to
maximize the punishment of those who attack them.”
(Rodriguez, supra, 26 Cal.App.5th at p. 907, italics added.) We
doubt that a reasonable juror would have drawn these precise
conclusions from the prosecutor’s remarks and therefore
disapprove People v. Rodriguez, supra, 26 Cal.App.5th 890.
Nevertheless, the Attorney General has not argued
harmlessness here, and we express no view on the Court of
Appeal’s conclusions that the statements were prejudicial. We
do observe, however, that courts have often found that brief
statements such as those before us have limited prejudicial
effect. (See, e.g., State v. Whitfield (R.I. 2014) 93 A.3d 1011,
1020, fn. 6.) We therefore affirm the Court of Appeal’s reversal
of the judgment.2




2
     The Attorney General also does not contest the Court of
Appeal’s reversal of Rodriguez’s convictions for assault with a
deadly weapon on instructional error grounds.


                                 17
                   PEOPLE v. RODRIGUEZ
               Opinion of the Court by Groban, J.


                     III. DISPOSITION
    We affirm the Court of Appeal’s judgment.


                                                    GROBAN, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                              18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Rodriguez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 26 Cal.App.5th 890
Rehearing Granted

__________________________________________________________________________________

Opinion No. S251706
Date Filed: May 21, 2020
__________________________________________________________________________________

Court: Superior
County: Kings
Judge: James LaPorte

__________________________________________________________________________________

Counsel:

Lauren E. Dodge, under appointment by the Supreme Court, for Defendant and Appellant.

Ricardo D. Garcia, Public Defender, and Albert J. Menaster, Deputy Public Defender, for the Los Angeles
County Public Defender’s Office as Amicus Curiae on behalf of Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Lewis A. Martinez, Nora S. Weyl, Louis M. Vasquez, Rachelle A. Newcomb,
Janet E. Neeley and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Lauren Dodge
1250 Newell Avenue, #220
Walnut Creek, CA 94596
(925) 948-1090

Lewis A. Martinez
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 705-2308
