People v. Fontaine

MOLINARI, P. J.

On this appeal, by our reversal in 1965 of the order granting defendant’s motion for a new trial, we affirmed defendant’s conviction for two counts of selling and furnishing marijuana in violation of Health and Safety Code section 11531. (237 Cal.App.2d 320 [46 Cal.Rptr. 855].)

In our decision we found no error excepting that which occurred when the district attorney commented in his argument on defendant’s failure to testify and the trial court instructed the jury regarding the legal effect of such failure to testify. We held that such error violated the privilege against self-incrimination provided for in the Fifth Amendment to the United States Constitution under the holding of

Griffin

v. California, 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]

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which declared that the California comment rule provided for in article 1, section 13 of the California Constitution violated the Fifth Amendment privilege. We held, however, that upon a review of the record such error did not require a reversal because it did not result in a miscarriage of justice under the- California harmless-error rule then provided for in article VI, section 4½ (now art. VI, § 13) of the California Constitution.

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In so doing we relied on

People

v.

Bostick

(1965) 62 Cal.2d 820 [44 Cal.Rptr. 649, 402 P.2d 529] which held that the error proscribed by

Griffin,

“unless it resulted in a miscarriage of justice, does not, however, automatically require a reversal if article VI, section 4½, of our Constitution is applicable to it. ” (P. 823.)

On February 20, 1967 the United States Supreme Court in

Chapman

v.

California,

386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824] announced the rule that “before a federal constitutional error can be held harmless, the court must be able to