In the past, I have made quite clear my view on the standard of prejudice to be applied for Beagle1 error where the defendant does not testify. (See People v. Pickett (1985) 163 Cal.App.3d 1042, 1049-1050 [210 Cal.Rptr. 85].) Nothing in the majority opinion convinces me that I was wrong then or wrong now for holding the view that the California Supreme Court has removed the power of the appellate courts to speculate as to the effect the defendant’s testimony would have had on the jury where his refusal to testify is premised on an erroneous Beagle ruling.2 Therefore, I would reverse the judgment of conviction.
A petition for a rehearing was denied July 16, 1985, and appellant’s petition for review by the Supreme Court was denied October 3, 1985. Bird, C. J., Broussard, J., and Reynoso, J., were of the opinion that the petition should be granted.
People v. Beagle (1972) 6 Cal.3d 441 [99 Cal.Rptr. 313, 492 P.2d 1].
People v. Fisher (1984) 153 Cal.App.3d 826 [200 Cal.Rptr. 683], on which the majority relies, is wrong, plain and simple, for the reasons I set forth in People v. Pickett, supra, 163 Cal.App.3d at page 1050.