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

The PEOPLE of the State of California, Plaintiff and Respondent, v. John Everett DAUGHERTY, Defendant and Appellant.

Cr. 2082.

Decided: November 16, 1967

Bradley, Behrens & Behrens, Russell G. Behrens, Santa Ana, for appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., by Walter R. Jones, Deputy Atty. Gen., Los Angeles, for respondent.


A judgment convicting defendant of grand theft was affirmed by this court July 2, 1965 (People v. Daugherty, 235 Cal.App.2d 564, 45 Cal.Rptr. 528); the California Supreme Court denied a hearing August 25, 1965; the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

We adopt by reference the statement of the case and facts recited in 235 Cal.App.2d 564, 565, 45 Cal.Rptr. 528, 529.

The defendant contends the court committed prejudicial error in permitting the prosecutor to comment on his failure to take the stand and in instructing the jury on this point. Though error (Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106) we declare a belief it was harmless beyond a reasonable doubt. (People v. Ross, 67 A.C. 58, 67, 60 Cal.Rptr. 254;, 429 P.2d 606; Chapman v. State of California, supra, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

Judgment affirmed.

GERALD BROWN, Presiding Justice.

COUGHLIN and WHELAN, JJ., concur.