Propp

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…