Filed 8/25/26 P. v. Barrios CA2/1
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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.
____________________________
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].)
2
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”].)
8
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”].)
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