THE PEOPLE, Plaintiff and Respondent, v. WALTER EMMETT McFARLAND, Defendant and Appellant, 58 Cal. 2d 748

GIBSON, C. J. A jury found defendant guilty on two counts of unlawfully taking an automobile (Veh. Code, § 10851), five counts of burglary of the second degree (Pen. Code, §§ 459, 460), and one count of grand theft (Pen. Code, §487, subd. 1). The sentences imposed by the court for the taking of automobiles were made concurrent with each other but consecutive With respect to concurrent sentences imposed on the burglary counts. The sentence for grand theft was made consecutive with respect to the other sentences.

Defendant has appealed, contending, among other things, that the evidence is insufficient to support Ms convictions and that the court erred in instructing the jury. In regard to one of the counts of unlawfully taking an automobile, it was shown that on September 11, 1960, an automobile owned by Frank Nunley was stolen and was later found by the police, abandoned and in a “stripped” condition, with its convertible top and other accessories missing, as well as personal belongings that had been inside.

On September 30, Nunley saw a Nash automobile equipped with a top which he recognized as being the one missing from his car, and he gave the license number to the police, who determined that the Nash was registered in the name of defendant’s wife. When defendant and his wife were questioned on October 5, defendant at first denied having ever owned the Nash but later stated that he had owned it and had sold it, describing the place where the purchaser lived.

The police and Nunley went to that location and found the Nash, which was equipped with a convertible top and various other accessories identified by Nunley as the ones taken from his ear. The owner of the Nash told the police that it was equipped in this way when he purchased it from defendant on September 19. The officers went with Nunley to defendant’s residence, placed him under arrest, and, with his consent, searched the garage, which had been locked. They found an automobile seat cover with Nunley’s name on it, as well as eyeglasses and tools which Nunley identified as being his.

The search of defendant’s garage disclosed a considerable quantity of equipment and personal property, and some of the items, which the police had reason to believe were recently stolen, were seized by them. After going to headquarters they ascertained that other items seen in the garage answered the description of stolen property, and they returned with a search warrant and took them as well. Among the things found were the engine and the rear axle assembly of a Jaguar automobile (involved in the second count of unlawfully taking an automobile).

The engine was the one from a 1950 Jaguar automobile which had been stolen on September 17, 1960, and the axle assembly was of a type used in Jaguar models from 1950 through 1952. The seized property included the following items involved in three of the burglary counts:

(1) An adding machine and a Smith-Corona portable typewriter stolen in a burglary on August 9, 1960; (2) a toolbox and tools stolen in a burglary on August 23, I960; (3) a tape recorder and tapes stolen in a burglary on September 29, 1960. Another item found in defendant’s garage was an air compressor stolen late in August 1960 from inside a hospital under construction. The taking of the compressor, which was worth six or seven hundred dollars, formed the basis of the grand theft count as well as one of the burglary counts.

There was also evidence (forming the basis of another of the burglary counts) that on the night of September 29, 1960, a putty knife and about five dollars were stolen from a commercial garage, that the office in the garage had been entered through a hole cut in the wall, and that, although the stolen property was not found in defendant’s possession, the inside surface of a piece of the plasterboard cut out of the wall had a fingerprint on it which an expert identified as defendant’s. The police questioned defendant about the property involved in the various counts, telling him it was stolen.

He said that he did not want to discuss the situation, that he was in “enough trouble already,” and that the police could not help him. When the police suggested that a woman may have been with defendant when Nunley’s car was stolen and that someone must have helped him in that theft, he replied, “You know my wife wasn’t with me .... I can show you how one man could do it.” In response to a question about the Jaguar engine, defendant said he had gotten it in a junkyard, but he could not or would not name the yard.

With respect to the adding machine, typewriter and tape recorder, defendant said he bought them but could not remember where, when, or from whom, or how much he paid. Defendant's wife told the officers he had brought the adding machine home in the middle of the night. The police suggested to defendant that someone must have helped him take the air compressor because it was so heavy, and he replied, “Well, I took it out in three pieces. ’ ’ As far as appears, he offered no explanation to the police regarding his possession of the stolen toolbox and tools.

Defendant did not take the stand at the trial, and he did not introduce any evidence as to how the stolen property was acquired or why his fingerprint was found at the scene of one of the burglaries. Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. (E.g., People v. Citrino, 46 Cal.2d 284, 288-289 [294 P.2d 32]; People v. Thompson, 120 Cal.App.2d 359 [260 P.2d 1019] ; People v.

Morris, 124 Cal.App. 402, 404 [12 P.2d 679].) This court stated in People v. Lyons, 50 Cal.2d 245, 258 [324 P.2d 556], “ [Possession of stolen property, accompanied by no explanation, or an unsatisfactory explanation of the possession, or by suspicious circumstances, will justify an inference that the goods were received with knowledge that they had been stolen. The rule is generally applied where the accused is found in possession of the articles soon after they were stolen. ’ ’ (See also People v. Reynolds, 149 Cal.App.2d 290, 294 [308 P.2d 48]; People v.

Lopez, 126 Cal.App.2d 274, 278 [271 P.2d 874].) In People v. Citrino, supra, 46 Cal.2d 284, 288-289, after pointing out that corroboration need only be slight and may be furnished by conduct of the defendant tending to show his guilt, we said, ”... and the failure to show that possession was honestly obtained is itself a strong circumstance tending to show the possessor’s guilt of the burglary.” Substantially the same statement is made in a number of other cases, including People v. Russell, 34 Cal.App.2d 665, 669 [94 P.2d 400] [burglary], People v.

Golembiewski, 25 Cal.App.2d 115, 117 [76 P.2d 717] [burglary], People v. Taylor, 4 Cal.App.2d 214, 217 [40 P.2d 870] [burglary], and People v. Morris, 124 Cal.App.2d 402, 404 [12 P.2d 679] [burglary], It has frequently been held that possession of recently stolen property together with a false explanation will support a conviction. (E.g., People v. Ransome, 180 Cal.App.2d 140, 146-148 [4 Cal.Rptr. 347] [theft]; People v. Russell, 120 Cal.App. 622, 625-626 [8 P .2d 209] [burglary] ; Peoples.

Scott, 66 Cal.App. 200, 203 [225 P. 767] [theft].) A defendant’s silence upon arrest was relied on as corroborative evidence in People v. Wells, 187 Cal.App.2d 324, 331-332 [9 Cal.Rptr. 384] [burglary], where it was said: “The jurors would naturally and reasonably conclude that if he [the defendant] had purchased the property or acquired possession of it honestly he would be swift to declare and explain the circumstances that vindicated his conduct. . . . His silence, when it would have been so easy for him to speak if innocent, is quite persuasive and convincing.” (See also People v.

Miller, 45 Cal.App. 494, 496 [188 P.52] [theft].) The great weight of authority in other jurisdictions recognizes that an inference of guilt is permissible where recently stolen property is found in the conscious possession of a defendant and the possession is not explained. (See 101 Am.St.Rep. 481-524; Wigmore on Evidence (3d ed. 1940) vol. 1, §§ 152, 153, pp. 598-600; id., vol. 6, § 1781, pp. 226, 228; id., vol. 9, § 2513, pp. 417-423; 3 Underhill’s Criminal Evidence (5th ed. 1957) §§ 600, 601, 602, pp. 1460-1471; id., § 723, pp. 1683-1687; 56 A.L.R.2d 1360-1365; 12 C.J.S. 717, 736-737; 52 C.J.S. 924 et seq.) The rule may be stated as follows: Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession or remains silent under circumstances indicating a consciousness of guilt, an inference of guilt is permissible and it is for the jury to determine whether or not the inference should be drawn in the light of all the evidence.

As shown by the California cases cited above, this rule is applicable whether the crime charged is theft, burglary, or knowingly receiving stolen property. (See also 9 Wigmore on Evidence (3d ed. 1940) § 2513, pp. 422-423.) The many decisions which set forth the rule permitting an inference of guilt, including United States Supreme Court eases (Wilson v. United States, 162 U.S. 613, 619-620 [16 S.Ct. 895, 40 L.Ed. 1090]; see McNamara v. Henkel, 226 U.S. 520, 524-525 [33 S.Ct. 146, 57 L.Ed. 330]; Dunlop v.

United States, 165 U.S. 486, 502 [17 S.Ct. 375, 41 L.Ed. 799]), are implied authority for its constitutionality. (For an express holding of constitutionality see People v. Kulig, 373 Ill. 102 [25 N.E.2d 73, 74]; cf. State v. Todaro, 131 N.J.L. 430 [37 A.2d 73, 74], upholding a statute providing for a similar rule [app. dism. 323 U.S. 667 [65 S.Ct. 73, 89 L.Ed. 542], citing the Wilson case, supra, and Tot v.

United States, 319 U.S. 463 [63 S.Ct. 1241, 87 L.Ed. 1519]].) To say that an inference is permissible under certain circumstances is, of course, to say that those circumstances afford a rational basis for the inference, and inferring one fact from another is consistent with due process if there is a rational connection between the two, (Cf. Tot v.

United States, 319 U.S. 463, 467 [63 S.Ct. 1241, 87 L.Ed. 1519].) The view that a person's silence when questioned by the police concerning his possession of recently stolen property may be used against him as indicating a consciousness of guilt or as an admission is in accord with analogous cases involving silence in the face of accusatory statements made by the police. (See People v. Abbott, 47 Cal.2d 362, 373 [303 P.2d 730]; People v.

Simmons, 28 Cal.2d 699, 711 et seq. [172 P.2d 18].) Of course, as is true with respect to accusatory statements, admissibility of evidence regarding such silence requires a showing that the circumstances under which the defendant is confronted by the police with the fact of possession were such as to reasonably call for a denial or an explanation. The accused must understand that he is being charged with the commission of a crime as the result of his possession of the stolen property, and he must have a reasonable opportunity to give an explanation.

His silence cannot be used against him if it is based on a claim of right to which he is legally entitled. Obviously, application of the rule permitting an inference of guilt in the situation involving pretrial silence upon questioning by the police does not mean that a defendant may be convicted on evidence of possession alone.

In such a situation there is not only the incriminating fact of possession of recently stolen property but, in addition, an affirmative showing of consciousness of guilt arising from a different fact, the silence of the accused under circumstances in which an innocent man would ordinarily have spoken out. It should also be emphasized that the rule in no way shifts the burden of proof or destroys the presumption of innocence; the prosecution must still satisfy the jury of a defendant’s guilt beyond a reasonable doubt.

The rule does not require conviction but merely permits an inference of guilt if the jury determines one is warranted in the light of all the circumstances, and even though a defendant remains silent throughout and introduces no evidence whatever, he may nevertheless be acquitted.

His silence when questioned by the police should not be used against him if it appears that he is acting on the basis of his right not to incriminate himself, and, even where his failure to explain is not based on a matter of right, he will be free later to introduce evidence of reasons for his silence other than conscious- ness of guilt, such as the desire to protect someone else.

If he chooses not to be silent and makes a statement by way of explanation which on its face raises a reasonable doubt as to guilt (for example, that he was not aware that the property was on his premises), the burden with respect to the truth or falsity of his statement is not on him but on the prosecution, so that it cannot be treated as untrue unless the prosecution establishes falsity, as by showing that it is not believable in the light of the circumstances surrounding his possession. .Application of the rule in the situation involving silence upon questioning by the police is entirely consistent with decisions which, in construing

section 13 of

article I of the Constitution, have recognized that a defendant’s failure to testify in explanation of evidence introduced against him may be considered by the jury as tending to indicate the truth of such evidence and the inference to be drawn from it but cannot be used to fill a gap in the prosecution’s case. (See People v. Ashley, 42 Cal.2d 246, 268-269 [267 P.2d 271]; People v. Adamson, 27 Cal.2d 478, 489-490, 492 [165 P.2d 3]; People v. Albertson, 23 Cal.2d 550, 584 et seq. [145 P.2d 7] [concurring opinion]; People v. Talle, 111 Cal.App.2d 650, 663-664 [245 P.2d 633] ; People v.

Cox, 102 Cal.App.2d 285, 287 [227 P.2d 290]; People v. Garrison, 80 Cal.App.2d 458, 462 [181 P.2d 738]; People v. Sawaya, 46 Cal.App.2d 466, 469-471 [115 P.2d 1001].) Some of these cases have held that a failure to testify cannot be used to supply the required corroboration of an accomplice’s testimony. However, pretrial silence upon questioning by the police does not stand on the same footing as the failure to testify.

As we have seen, where such silence was not based on a claim of right and the other requisites were present, evidence of the silence may be introduced against a defendant to show consciousness of guilt or an admission. Accordingly, it has been held that such silence can serve as corroboration of an accomplice’s testimony. (People v. Watkins, 126 Cal.App.2d 199, 207 [271 P.2d 641] ; People v. Hambright, 113 Cal.App.2d 40, 42 [247 P.2d 607] ; People v. Willmurth, 77 Cal.App.2d 605, 611-616 [176 P.2d 102]; People v. King, 40 Cal.App.2d 137, 140-141 [104 P.2d 521]; People v.

Collins, 4 Cal.App.2d 86, 87-88 [40 P.2d 542] ; see People v. Coakley, 108 Cal.App.2d 223, 228 [238 P.2d 633].) The following cases are disapproved insofar as they may be inconsistent with the views expressed above : People v. Luchetti, 119 Cal. 501, 506-507 [51 P. 707]; People v. Abbolt, 101 Cal. 645, 647 [36 P. 129]; People v. Etting, 99 Cal. 577, 578 [34 P. 237]; People v. Velarde, 59 Cal. 457, 463-464; People v. Ah Ki, 20 Cal. 177, 179-180; People v. Chambers, 18 Cal. 382, 383-384; People v. Johnson, 85 Cal.App.2d 240, 244-245 [192 P.2d 483] ; and People v.

Haack, 86 Cal.App. 390, 395-400 [260 P. 913], The evidence in the present case is sufficient to support defendant’s convictions. The only count as to which his possession of stolen property was not shown is the one based on the burglary of the garage, and the incriminating evidence on that count consisted of the discovery of his fingerprint on the inside surface of plasterboard cut out of the wall by the burglar.

His possession (which could obviously have been found to be conscious possession) of the stolen property involved in the other counts was shown to have taken place within a few days of one of the crimes and within less than two months of all of them, and the character of most, if not all, of the items was such that he could reasonably be expected to remember how he had acquired them so recently.

Yet, when questioned by the police, he either attempted explanations which the jury was entitled to reject as false in view of their vagueness and lack of important details, made statements which could be found to constitute admissions, or remained silent under circumstances of the type which could be found to permit use of his silence as reflecting consciousness of guilt. Moreover, his initial denial of ownership of the Nash equipped with parts from Nunley’s car was incriminating, as was the evidence that he carried the stolen adding machine home in the middle of the night.

The jury was instructed: “The mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient to justify conviction. It is, however, a circumstance to be considered in connection with other evidence in determining the question of innocence or guilt.

If you should find from the evidence that a burglary was committed on the premises involved in this case or that a theft occurred and that thereafter the defendant was found in possession, or claimed to be the owner, of property stolen from the burglarized premises, or in the theft, such a fact would be a circumstance tending in some degree to show guilt, although not sufficient, standing alone and unsupported by-other evidence, to warrant your finding him guilty. In addition to proof of possession of such property there must be proof of corroborating circumstances tending of themselves to establish guilt.

Such corroborating circumstances may consist of the acts, conduct, falsehoods, if any, or other declarations, if any, of the defendant, and any other proved circumstance tending to show the guilt of the accused. The corroboration of the possession of stolen property need only be slight in order to sustain a conviction.

One who is found in the possession of property that was stolen from burglarized premises is bound to explain such possession in order to remove the effect of that fact as a circumstance, to be considered with all other evidence, pointing to his guilt; and if he gives a false account of how he acquired that possession or, having reasonable opportunity to show that his possession was honestly acquired, he refuses or fails to do so, such conduct is a circumstance that tends to show his guilt.” Insofar as the instruction was to the effect that unexplained possession of recently stolen property cannot, without more, warrant conviction, defendant, of course, is not in a position to complain since such an understanding of the law would have been favorable to him.

If it be assumed that any part of the instruction might have been construed to mean that such possession could permit an inference of guilt, this, as we have seen, was a correct statement of the law applicable where, as here, in addition to a showing of possession of recently stolen property, it appears that the accused, upon questioning by the police, remained silent under circumstances justifying the conclusion that his silence indicated consciousness of guilt.

There can be no question that the instruction complained of was correct to the extent that it dealt with the incriminating effect of false explanations and statements constituting admissions, and such conduct on the part of defendant was shown to be present as to every count relating to possession except the one concerning the recently stolen toolbox, which defendant had in his possession at the same time and place as the recently stolen property involved in the other counts.

In the light of the entire record, the instruction, although not worded as clearly as would have been desirable with respect to consideration of defendant’s silence upon questioning by the police, cannot be said to have resulted in a miscarriage of justice. (Cal. Const., art. VI, § 4%.) It was error to impose sentences for both burglary and grand theft upon defendant with respect to the taking of the air compressor from inside a hospital.

Section 654 of the Penal Code provides in part, “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. ’ ’ The principles governing the application of

section 654 were clarified by this court in Neal v. State of California, 55 Cal.2d 11, 18 et seq. [9 Cal.Rptr. 607, 357 P.2d 839]. It was there pointed out, upon an analysis of several earlier decisions, that the prohibition of the statute against double punishment applies not only where “one ‘act’ in the ordinary sense” is involved but also where there is a “course of conduct” which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of

section 654; that the divisibility of a course of conduct depends upon the intent and objective of the defendant; and that if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one. (See also Seiterle v. Superior Court, 57 Cal.2d 397, 400 [20 Cal.Rptr. 1, 369 P.2d 697].) It was held in Neal that, where arson is the means of attempting murder and is merely incidental to the primary objective of committing murder, the defendant cannot be punished for both arson and attempted murder. Even in the absence of a statute such as

section 654 recent decisions of the United States Supreme Court,-upon reasoning which, as in Neal, emphasized the intent of the defendant, have held that the Federal Bank Robbery Act should be construed as not permitting sentences for both entering with intent to steal and robbery or for both robbery and receiving stolen money. (Prince v. United States, 352 U.S. 322, 324 et seq. [77 S.Ct. 403, 1 L.Ed.2d 370, 59 A.L.R.2d 940] ; Heflin v. United States, 358 U.S. 415, 419-420 [79 S.Ct. 451, 3 L.Ed.2d 407]; cf. Milanovich v.

United States, 365 U.S. 551, 553 et seq. [81 S.Ct. 728, 5 L.Ed.2d 773] [stealing from Naval commissary store and subsequently receiving stolen currency]; United States v. Universal C.I.T.

Credit Corp., 344 U.S. 218, 220 et seq. [73 S.Ct. 227, 97 L.Ed. 260] [successive violations of Fair Labor Standards Act treated as “a single course of conduct” subject to only one criminal penalty].) These cases are in accord with other recent United States Supreme Court decisions pointing out that, where statutes create more than one crime but are'unclear on the question of multiple punishment, “the Court applies a policy of lenity and adopts the less harsh meaning.” (Ladner v. United States, 358 U.S. 169, 177 et seq. [79 S.Ct. 209, 3 L.Ed.2d 199] ; Bell v.

United States, 349 U.S. 81, 83-84 [75 S.Ct. 620, 99 L.Ed. 905].) It is true that the older case of Morgan v. Devine (1915) 237 U.S. 632 [35 S.Ct. 712, 59 L.Ed. 1153], in the absence of a statute like

section 654, rejected the concept of a continuing single intent with respect to federal statutes relating to theft of postal funds, but in view of the decisions of the United States Supreme Court discussed above, we should not treat either the Morgan case or the lower federal decisions which follow it as furnishing an indication of what result would be reached by that court under a statute like

section 654. On the basis of other out-of-state decisions which have been called to our attention it cannot properly be said that there is a majority rule or a trend of decision with respect to how a statute such as

section 654 should be applied. Except for decisions from New York, Arizona, and Utah, none has involved such a statute. The lower court cases in New York seem to be in conflict (compare People v. Savarese (1952) 1 Misc. 2d 305 [114 N.Y.S.2d 816, 835-836], with People v. Zipkin (1952) 202 Misc. 552 [118 N.Y.S.2d 697, 698-699]), and what appears to be the leading case in that state, People ex rel. Maurer v. Jackson, 2 N.Y.2d 259 [159 N.Y.S.2d 203, 140 N.E.2d 282], is consistent with the California rule.

The New York court was careful to stress that the “single issue” before it was whether the statute against double punishment was violated by the imposition of “concurrent sentences” (italics in the original), and the decision rests largely on the ground that concurrent sentences can never constitute double punishment. (140 N.E.2d at pp. 284, 286 et seq.) Moreover, there is considerable language in the opinion indicating that whether two crimes are committed with the same or different intent is of great importance. (140 N.E.2d at pp. 285-286.) The Arizona court, in State v.

Hutton, 87 Ariz. 176 [349 P.2d 187, 188-189], although reasoning that consecutive sentences for burglary and theft could be imposed under the statute, held that only concurrent sentences should be imposed in the interests of justice. The Utah case of State v. Jones, 13 Utah 2d 35 [368 P.2d 262], which considered a statute like

section 654, based its conclusion in part on the authority of a prior Utah decision, Rogerson v. Harris, 111 Utah 330 [178 P.2d 397, 399], without recognizing that the earlier decision had involved a statute which was quite different from the one before us. The evidence, as we have seen, is sufficient to support convictions both of burglary and of grand theft with respect to the taking of the air compressor from the hospital.

The inference which the jury was permitted to draw in that regard was that defendant entered the hospital with intent to steal and that the taking of the air compressor was the culmination of that intent. The record contains nothing indicating that he entered the hospital with intent to commit some crime other than theft.

In these circumstances the only reasonable conclusion is that the entry of the hospital and the taking of the air compressor were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft. Thus defendant can be punished for either offense but not for both, and decisions of the District Courts of Appeal subsequent to Neal have held that double punishment is improper in a situation such as the one before us. (People v.

Brown, 200 Cal.App.2d 111, 118 [19 Cal.Rptr. 36] ; People v. Dykes, 198 Cal.App.2d 75, 81 [17 Cal.Rptr. 564]; In re Dowding, 188 Cal.App.2d 418, 421-424 [10 Cal.Rptr. 392].) The following cases, which are to the contrary, antedate and are inconsistent with our decision in Neal and are disapproved: People v. Macias, 161 Cal.App.2d 594 [326 P.2d 936], People v. Guarino, 132 Cal.App.2d 554 [282 P.2d 538], People v. White, 115 Cal.App.2d 828 [253 P.2d 108], People v. Finkel, 94 Cal.App.2d 813 [211 P.2d 888], People v. Brain, 75 Cal.App. 109 [241 P. 913], People v. Snyder, 74 Cal.App. 138 [239 P. 705], and People v.

Sharp, 58 Cal.App. 637 [209 P. 266]. With respect to the procedure to be followed on appeal where double punishment has been erroneously imposed, it should be stressed that

section 654 proscribes double punishment, not double conviction; conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished. (People v. Chessman, 52 Cal.2d 467, 497 [341 P.2d 679].) The appropriate procedure, therefore, is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned. (See People v.

Brown, 200 Cal.App.2d 111, 118 [19 Cal.Rptr. 36].) It is true that there are cases which have, without qualification, reversed the “judgment of conviction” as to the lesser count, thus apparently eliminating the effect of the judgment with respect to conviction as well as punishment. (See e.g., People v. Brown, 49 Cal.2d 577, 593-594 [320 P.2d 5] ; People v. Logan, 41 Cal.2d 279, 291 [260 P.2d 20].) These cases, however, did not discuss whether the terms of

section 654 are to be construed as requiring the setting aside of both conviction and punishment. The court in some of them, for example, People v. Brown, supra, 49 Cal.2d 577, 593, was concerned with the danger that the Adult Authority would consider the conviction of the lesser offense in fixing the punishment on the more serious crime. Such action by the Adult Authority would, of course, be improper, and nothing we have said as to the procedure to be followed should be interpreted as permitting it. Of the two offenses involved here, second degree burglary is the one subject to the greater punishment. (Pen.

Code, §§ 461, 489.) Accordingly, it is necessary to reverse the judgment insofar as it relates to punishment for grand theft. Defendant’s assertion that several matters other than those discussed above require a reversal of the judgment as a whole is devoid of merit and need not be discussed. The judgment is reversed insofar as it imposes a sentence for grand theft, and in all other respects it is affirmed. Traynor, J., Tobriner, J., and White, J., concurred.

Section 13 of

Article I of the Constitution provides that in a criminal ease no person shall be compelled to be a witness against himself and that in such a case the defendant's failure to explain or to deny “by his testimony” any evidence or facts in the ease against himself may be commented upon by the court and by counsel and may be considered by the court or the jury. The instruction given to the jury used, with some modifications, the language of former instructions on the same subject in California Jury Instructions, Criminal (rev. ed. 1958), numbers 203 and 235.

These instructions were revised in 1962 to omit the thought that unexplained possession however soon after the crime is not sufficient to warrant conviction. Assigned by Chairman oí Judicial Council.