Erb

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…