Williаm R Hagan, the appellant herein, and Carl E. Figuieredo were charged in Count I of an information with robbery, committed on March 27, 1953; and it was alleged also that they were armed with a revolver at said time. In Count II Hagan was charged with robbery, committed on April 3, 1953; and it was alleged that he was armed with two revolvers at said time. (Other charges of robbery in the information were against Figuieredo.) It was also alleged that Hagan had been convicted previously of four felonies and that he had served terms of imprisonment therefor in the state prison. Hagan admitted the allegations as to his prior convictions. Upon motion by defendants, there was a separate trial for each defendant. In a jury trial, Hagan was convicted of robbery of the first degree as charged in both counts, and it was found that he was armed at the times the robberies were committed. Hagan appeals from the judgment and the order denying his motion for a new trial.
In filing his opening brief, appellant appeared in propria persona. Thereafter, pursuant to request of appellant that counsel be appointed to represent him, this court appointed Mr. David E. Agnew (member of the Los Angeles Bar Association Committee on Criminal Appeals) to represent appellant. Mr. Agnew accepted the appointment and has filed a reply brief on behalf of appellant.
Appellant contends that the deputy district attorney was guilty of prejudicial misconduct in having Figuieredo brought into the courtrоom, in custody of a deputy sheriff, and then asking a witness, who was a victim of the robbery referred to in Count II (where only Hagan was charged), if Figuieredo was formerly employed by him. Appellant also contends that it was prejudicial misconduct of the deputy district attorney to offer, and it was prejudicial error of the court to receive, in evidence a statement by a witness (police officer) that Hagan said that he did time in San Quentin with Figuieredo.
With reference to Count I, Mr. Gettman, who was a clerk in a grocery store, testified that on March 27, 1953, about 7 p. m. while he and another employee Mr. Lynch were in the stockroom of the store, defendant Hagan entered the room with a revolver in his hand, “put the gun on” them, and told them to go into the restroom; they went into that room; Hagan asked which one knew the combination to the safe; Mr. Lynch replied that he knew it; Hagan gave Mr.
Mr. Lynch testified that on said March 27, while he and Mr. Gettman were in the back room of the store, two men came in and onе of them had a gun in his hand, said it was a holdup, and do as they said or they would shoot to kill; the man with the gun ordered them (two employees) into the washroom and asked who knew the safe combination; then Mr. Lynch replied that he had the combination; the man with the gun gave him a paper sack and told him to go with his partner (the other man) to the front of the store and put the money in the bag; thеy went to the safe and the man told him to open it; when the safe was open, the man told him to put the money in the bag; he put about $800 in the bag; then the man took the bag and went out the front door; Mr. Lynch went to the back of the store to see Mr. Gettman; since that time he (Lynch) learned that the man who went to the safe was Figuieredo. He also testified that he could not identify Hagan аs the man who had the gun.
With reference to Count II, Mr. Joseph Bonelli, an employee of a tire store, testified that on April 3, 1953, about 8:40 p. m., while he was in the store, the defendant Hagan who was wearing khaki pants, brown leather jacket, brown hat, and glasses, came in and “pulled a gun” and told him to step back into the office (where Mr. Norwood was); when Mr. Bonelli went into the office, Hаgan said, “I want the little green box you keep the money in.” Then the deputy district attorney asked Mr. Bonelli if he knew Figuieredo. He replied that Figuieredo was a former employee of the store. Then he was asked (by the deputy) if he remembered when Figuieredo left that employment. He replied that it was a few years back. Then the deputy said, “May we ask the bailiff to bring Mr. Figuieredо to where Mr. Bonelli is so he could see him. I want to be sure of the identification. ’ ’ Counsel for Hagan asked what was “the materiality of identifying him, the man who is not charged?” The deputy
Mr. Norwood, the credit manager of the tire store, testified in substance the same as Mr. Bonelli testified. He also testified that hе was certain that Hagan was the man who robbed him.
Mrs. Truehill, called as a witness by defendant, testified that on April 3, 1953, about 7 p. m., she went to Hagan’s home to pay Mrs. Hagan for taking care of her children; she stayed there an hour or more, and during that time Hagan was there; she returned to her home about 8:30 p. m.
Mr. Henkel, called as a witness by defendant, testified that on April 3, 1953, at 7:30 p. m., he called the telephone number at defendant’s apartment and talked to him; that about an hour later he called defendant again by telephone at that number and talked to him.
Mrs. Henkel testified that on March 27 defendant (her brother) came to her home about 3 p. m. and stayed there until about 9:30 p. m.
It was stipulated that if defendant’s wife were called as a witness she would testifiy that on March 27 she and defendant had dinner with the Henkels and thе Henkels took them home later that evening; and that on April 3 her husband was home with her in the apartment all evening.
Defendant did not testify.
It was prejudicial error to permit the deputy sheriff to bring Figuieredo into the courtroom. When Mr. Bonelli, as a witness regarding Count II (tire store), said that Hagan asked for the little green box, the deputy district attorney
On behalf of plaintiff, there was testimony by Gettman, Bonelli and Norwood that Hagan was the robber. On behalf of defendant there was testimony that at the time one robbery was committed Hagan was at the home of the Henkels, and at the time of the other robbery he was at his home. In view of such conflict in the evidence as to the identity of the robber, the errors in creating the derogatory inferences against defendant were significant. In
People
v.
Robarge,
Appellant also contends, as above stated, that it was prejudicial misconduct of the deputy district attorney to offer, and it was prejudicial error of the court to receive, in evidence testimony of Officer Simon that Hagan had said that he did time in San Quentin with Figuieredo. Prior to impaneling the jury, a conference was held in chambers regarding the allegations of prior convictions. At the conference the judge, the deputy district attorney, defendant and his counsel, and the reporter were present. The judge asked defendant what his desire was with reference to the allegation of prior convictions. Defendant asked the judge to clarify that for him, and asked “Will that not be brought out in court?” The judge said, “No. That is the purpose of coming in here, so it will not get to the ears of the jury.” The deputy district attorney said that the judge should explain the possibilities if defendant takes the stand. The judge told him that if he took the stand the district attorney could ask him whether he had been convicted of a felony; and if he did not admit the priors then the allegations of priors would be read to the jury. The judge also said that if defendant admitted the priors and did not take the stand the district attorney had no way of showing that he had been convicted of a felony. Defendant said, “I see, with the understanding that the priors could not be read in front of the jury?” The judge said, “They could not, if you admit them here now.” The deputy district attorney said, “If you don’t take the stand, and admit them now, the jury will never know anything about your priors. Is that clear?” Defendant said, “Yes, sir. I wanted it clarified.” The deputy said, “I want to be sure you do understand it. What is your desire?” Defendant said, “Well, I am admitting the priors.”
When Officer Simon was testifying on direct examination the deputy district attorney asked him if he had any conversation with Hagan as to whether he knew Figuieredo. The officer replied in the affirmative, and the deputy asked him to relate the conversation. The officer said he asked Hagan if he knew anyone by the name of Gene; that Hagan replied
The bringing of Figuieredo into the courtroom and the disclosure that Hagan had been convicted of a felony were unnecessary from any legal viewpoint. The trial judge should have granted a new trial.
The judgment and the order denying a new trial are reversed, and the cause is remanded for a new trial.
Shinn, P. J., and Vallée, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied February 24, 1955. Edmonds, J., and Spence, J., were of the opinion that the petition should be granted.