Barajas

Defendant Rafael Barajas (Barajas) was convicted of murder (Pen. Code, § 187) and robbery (§ 211). The jury found he personally used a knife in the commission of both offenses (§ 12022, subd. (b)). The sole issue raised on appeal is whether it is error to have permitted the prosecution to place before the jury information which the defense repeatedly warned could not, and which in fact was not, produced. We conclude the prosecution committed prejudicial misconduct which the court should have prevented, and reverse.

I

A brief summary of the facts will suffice. Two males entered a gas station for the purposes of robbery. While one male approached a cashier and demanded money, a second confronted another employee with a knife. A scuffle ensued resulting in the employee’s death. At trial, the cashier identified Barajas as the killer and testified to selecting his photograph from a lineup prior to trial. Although she was “sure” of her in-court identification, she admitted to having been both unable to identify the assailant immediately following the robbery and to being equivocal in her identification at the preliminary hearing. No other witnesses identified Barajas, nor was…