People v. Hairgrove

Opinion

FLEMING, J.

Hairgrove appeals his conviction for burglary (Pen. Code, § 459).

Facts.

Frederick Brown identified Hairgrove as the man he saw getting into Comilla Leighton’s automobile at 1 a.m. on 25 August 1969 in front of Brown’s house in Glendale. Comilla Leighton had earlier locked her car, she did not know Hairgrove, and she had not given him permission to enter it. The rubber between the windows of the automobile had been cut and the stereo tape machine inside tampered with.

Hairgrove’s defense was alibi: he was at a drive-in movie in Orange County at the time of the burglary.

Issues.

Hairgrove contends the trial court erred, (1) in instructing the jury on aiding and abetting and on conspiracy; (2) in admitting evidence he had been released on his own recognizance; (3) in refusing to grant a new trial on the ground of newly discovered evidence.

Instructions.

Hairgrove contends it was error for the trial court to instruct the jury on aiding and abetting and on conspiracy because there was no evidence in the record to support a conviction on those grounds.

We agree these instructions had no application to the facts presented at the trial.

(People

v.

Nunez,

7 Cal.App.3d 655, 662 [86 Cal.Rptr. 707].) Clearly, the only issue for the jury to decide was whether Hairgrove was the principal in the crime, the man who broke into the automobile. But Hairgrove must show a reasonable probability that, absent the error, a

[609]

verdict more favorable to him would have been reached.

(People

v.

Watson,