People v. Fontaine, Cr. 4651

• Decision Date: 28 June 1967
• Docket Number: Cr. 4651
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Norman FONTAINE, Defendant and Respondent.

Page 325

60 Cal.Rptr. 325

252 Cal.App.2d 73

PEOPLE of the State of California, Plaintiff and Appellant, v. Norman FONTAINE, Defendant and Respondent.

Cr. 4651.

Court of Appeal, First District, Division 1, California.

June 28, 1967.

Hearing Denied Sept. 21, 1967.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., John F. Kraetzer, Deputy Attys. Gen., San Francisco, for appellant.

Robertson & Hand, San Jose, for respondent.

MOLINARI, Presiding Justice.

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. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, ¹ 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 4 1/2 (now art. VI, § 13) of the California Constitution. ² 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 4 1/2, of our Constitution is applicable to it.' (P. 823, 44 Cal.Rptr. 651, 402 P.2d 531.)

On February 20, 1967 the United States Supreme Court in Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, p. 828, 17 L.Ed.2d 705, announced the rule 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.' Thereafter, on March 13, 1967, the United States Supreme Court granted defendant's petition for a writ of certiorari, vacated the judgment herein, and remanded the case to this court 'for further consideration in light of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, (17 L.Ed.2d 705).' Upon the remand we recalled the remittitur.

We have given further consideration to this case in the light of Chapman v. State of California, supra. We approve and adopt as part of this opinion and incorporate herein by reference all of the opinion prepared and written in 1965 for this court on the appeal before us by Mr. Justice Molinari (People v. Fontaine, 237 Cal.App.2d 320, 46 Cal.Rptr. 855) save and except that portion appearing under the heading 'Griffin v. State of California' on page 333, 46 Cal.Rptr. 865, thereof, which portion we now modify to read as follows:

Griffin v. State of California

Defendant did not take the stand. 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 that failure to testify pursuant to the comment rule of this state prior to the decision of the United States Supreme Court in Griffin v. State of California, supra. Since Griffin holds that our comment rule violates the Fifth Amendment privilege against self-incrimination, the comment of the prosecutor and the trial court's instruction herein each constituted error. (People v. Bostick, 62 Cal.2d 820, 823, 44 Cal.Rptr. 649.) Such error does not, however, require a reversal if we are able to declare that it was harmless beyond a reasonable doubt. (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; People v. Talley, 66 A.C....