Mortenson

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.…