Carter

Following the guilt phase of the trial, a San Diego County jury found defendant Dean Phillip Carter guilty of the murder of Janette Cullins. (Pen. Code, § 187, subd. (a).) 1 The jury also found defendant guilty of the burglary of Cullins’s inhabited residence (§§ 459, 460) and the robbery of Cullins (§§ 211, 213.5), finding that during the course of the burglary and the robbery, defendant personally inflicted great bodily injury (§ 12022.7). The jury found true the special circumstances that the murder was committed while lying in wait, in the course of a robbery, and in the course of a burglary, and that defendant previously had been convicted of the murders of Susan Knoll, Jillette Mills, and Bonnie Guthrie. (§ 190.2, former subd. (a)(2), (15), (17)(i), (vii), as amended by Prop. 115, § 10, as approved by voters, Primary Elec. (June 5, 1990).)

*1221 The jury further found defendant guilty of forcible rape (§ 261) and forcible oral copulation (§ 288, subd. (c)) arising out of his attack on Barbara S. on March 25, 1984 (approximately 18 days prior to the murder of Janette Cullins). The jury found defendant guilty of burglary of an inhabited residence (§§ 459, 460) and…

I concur in the majority opinion, which I have signed. I write separately to address the merits of defendant’s claim that the prosecutor improperly commented on defendant’s invocation of his right not to testify at trial.

Defendant was charged with the murder of Janette Cullins. In its case-in-chief, the prosecution presented evidence that defendant had also murdered four other women: Tok Kim, Susan Knoll, Jillette Mills, and Bonnie Guthrie. When defendant was arrested for the murders, he was driving a car belonging to murder victim Mills. In the car, the police found a key ring that belonged to victim Cullins; a kitchen knife, rubber gloves, and a gold chain, belonging to victim Kim; a supermarket CASHEX card that belonged to victim Knoll; towels, athletic wear, and photographic equipment that belonged to victim Mills; and three handwoven sweaters that belonged to victim Guthrie.

In his rebuttal argument to the jury, the prosecutor said: “No one prevents [the defense] from telling you what happened. No one prevents them from bringing forth witnesses to explain why the defendant was in the car with all that property. They could do that if they wanted to.” Defense counsel…