People v. Mortenson

HERNDON, J. The People appeal from the order granting defendant a new trial following the verdict of a jury that he was guilty of a felony manslaughter in the driving of a motor vehicle. (Pen. Code, §192.3, subd. (a).)

No useful purpose would be served by setting forth the evidence in detail. It is sufficient to state that, although circumstantial in character, it was abundantly sufficient to sustain the jury’s verdict.

The order granting the new trial was based upon the trial court’s determination that it had erred in giving CALJIC Instruction 51 (Revised), which advised the jury concerning the inferences it might draw from the defendant’s failure to testify as to any evidence or facts against him which he might reasonably have been expected to deny, and in permitting the prosecuting attorney to comment on respondent’s exercise of his constitutional privilege in the instant case. The order was made shortly prior to our Supreme Court’s decision in People v. Modesto, 62 Cal.2d 436 [42 Cal.Rptr. 417, 398 P.2d 753], and was based upon the trial court’s accurate interpretation of the effect of Malloy v. Hogan, 378 U.S. 1 [84 S.Ct. 1489, 12 L.Ed.2d 653], upon California’s comment rule. (Griffin v. California, 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].)

[139]We agree with appellant’s observation that the decision in Griffin is directed specifically to instances in which an accused fails to take the stand in his own behalf and therefore should not be interpreted as contradicting or overruling the uniform holdings of prior federal court decisions that comment is proper under the Fifth Amendment when a defendant does take the stand to testify as to material issues in the ease. This rule was initially expressed in Caminetti v. United States, 242 U.S. 470, 492-495 [37 S.Ct. 192, 61 L.Ed. 442]. (Cf. also, United States v. Sahadi, 292 F.2d 565, 568; Dyson v. United States, 283 F.2d 636, 637-638; United States v. Walker Co., 152 F.2d 612, 613; United States v. Van Den Berg, 139 F.2d 654, 656; Paschen v. United States, 70 F.2d 491, 501; Carter v. United States, 19 F.2d 431, 434; Krotkiewicz v. United States, 19 F.2d 421, 425; Levinson v. United States, 5 F.2d 567, 569; Bloch v. United States, 261 F. 321, 326; Le More v. United States, 253 F. 887, 897 [165 C.C.A. 367], and cases cited therein.)

We do not regard the holding in the recent decision in People v. Steele, 235 Cal.App.2d 798, 812-813 [45 Cal.Rptr. 601], as indicative that California will adopt a different rule. The possible applicability of the rule of Caminetti v. United States, supra, 242 U.S. 470, 492-495, was not in issue in Steele. It was not considered therein because, as the court noted at page 813: ‘ ‘ The Attorney General does not dispute that error occurred; he argues only that, since erroneous comment requires reversal only if it is prejudicial [citation], no such prejudice occurred here.”