Under Doyle v. Ohio (1976) 426 U.S. 610, "the prosecution may not penalize a defendant for invoking Miranda rights during interrogation by using the invocation against the defendant at trial." (People v. Lucero (2000) 23 Cal.4th 692, 713.) A Doyle violation has two elements, both of which must exist: "The first element is that the prosecution makes use of a defendant's postarrest silence for impeachment purposes. Use of a defendant's postarrest silence can occur either by questioning or by reference in closing argument. the second essential element is that the trial court permits that use. the type of permission . . . will usually take the form of overruling a defense objection, thus conveying to the jury the unmistakable impression that what the prosecution is doing is legitimate." (People v. Evans (1994) 25 Cal.App.4th 358, 368.) In Anderson v. Charles (1980) 447 U.S. 404 65 L.Ed.2d 222, 100 S.Ct. 2180 (per curiam), the Supreme Court declined to extend Doyle v. Ohio (1976) to a situation in which the defendant did not invoke his Miranda rights, but waived them and gave a postarrest statement inconsistent with his trial testimony. The United States v. Caruto (9th Cir. 2008) court determined that it must decide whether, when a prosecutor impermissibly highlights omissions from a defendant's postarrest statement resulting from the decision to invoke his or her Miranda rights violates Doyle v. Ohio (1976). The Caruto court concluded: "Where, as here, it is a defendant's invocation of her Miranda rights that results in the omitted facts that create the difference between the two descriptions, cross-examination based on those omissions draws meaning from the defendant's protected silence in a manner not permitted by Doyle." (Id. at p. 831.)