People v. Erb

COUGHLIN, J. Defendant was charged with the offenses of forcible rape and assault with intent to commit rape; was [160]found not guilty of the former and guilty of the latter; appealed from the judgment, which was affirmed by this court on July 8, 1965 (People v. Erb, 235 Cal.App.2d 650 [45 Cal.Rptr. 503]) ; and petitioned the Supreme Court of California for a hearing, which was denied September 2, 1965. The remittitur thereupon issued has been recalled and our decision has been vacated to give further consideration to the effect of comments upon defendant’s failure to testify in light of Chapman v. California, 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824].

With the additions hereinafter noted, we adopt our former opinion filed herein on July 8, 1965. (People v. Erb, supra, 235 Cal.App.2d 650.)

There is no doubt the jury would have found defendant guilty of the assault offense even though no comment had been made about his failure to testify. We have documented this conclusion in our former opinion. In addition, the record establishes beyond a reasonable doubt the comments did not play a substantial part in the prosecution’s case; could not have had any effect upon the deliberations of the jury; and did not contribute to tiie verdict ootamea. (Gen. see Chapman v. California, supra, 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Modesto, 66 Cal.2d 695, 711-714 [59 Cal. Rptr. 124, 427 P.2d 788].)

In reality the sole issue for determination was whether or not the testimony of the victim should be accepted or rejected in whole or in part. Her testimony not only supports the conviction of the assault offense but is uncontradicted in this regard; is corroborated in part by statements of the defendant to the police and by his counsel to the jury; and also is corroborated by circumstances established by the uncontradicted testimony of other witnesses. Defendant, in a statement to the police, and his counsel in an opening statement to the jury, corroborated the fact the victim and defendant went to Long Beach and shared a dinner and dance date on the occasion in question; the route defendant selected to return home went throug'h a deserted area and was different from that taken in going to Long Beach; on the way home defendant stopped the car in a desolate place; he returned the victim to her home; and thereafter, in response to inquiries from the police, related this course of events to them. Thus, any con-cern respecting the credibility .of the victim’s testimony is limited to that relating the events which occurred when defendant stopped his automobile. In his statement to the