People v. Propp

ELKINGTON, J. On this appeal in 1965 we affirmed (235 Cal.App.2d 619 [45 Cal.Rptr. 690]) judgments convicting appellants Fred Propp, Jr., and Roland Wayne Wright of first degree robbery (Pen. Code, § 211), conspiracy to commit robbery (Pen. Code, § 182), possession of a concealable firearm by an ex-eonviet (Pen. Code, § 12021) and additionally convicting appellant Propp of possession of a sawed-off shotgun (Pen. Code, § 12020).

Appellant Propp did not testify at the trial. Under the apparent authority of California’s Constitution, article I, section 13, the prosecutor commented upon the failure of Propp to testify, and the court instructed the jury “as to any evidence or facts against him which [Propp] can reasonably be expected to deny or explain because of facts within his knowl[612]edge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that might reasonably be drawn therefrom those unfavorable to the defendant are the more probable. ’ ’

Following the trial but before our decision on appeal, the United States Supreme Court in Griffin v. California, 380 U.S. 609, 615 [14 L.Ed.2d 106, 110, 85 S.Ct. 1229] announced the rule “that the Fifth Amendment, in its direct application to the Federal Government, and its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. ’ ’

In our decision we applied the rule of People v. Bostick, 62 Cal.2d 820, 823 [44 Cal.Rptr. 649, 402 P.2d 529], to the effect that “Such error [as was the subject of Griffin v. California, supra], unless it resulted in a miscarriage of justice, does not, however, automatically require a reversal if article VI, section 4%, of our Constitution1 is applicable to it.” We concluded from our review of the entire record that had the Griffin error not been committed there was no reasonable probability that the jury would have reached a result more favorable to the defendant.

Thereafter in Chapman v. California, 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 828], the United States Supreme Court announced “that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. ’ ’