Ashford

Defendant has appealed from a judgment sentencing him to state prison, with an admitted prior conviction for burglary, after a jury found him guilty of robbery in the second degree. He contends that he was denied his rights under the Sixth Amendment of the United States Constitution because the court, over his objection, admitted in evidence the testimony of the victim as it was reported in a prior trial which had resulted in a jury disagreement. He also asserts that prejudicial error resulted when the court permitted a bailiff to testify to a damaging admission made by the defendant during a recess at the prior trial, over the defendant’s objections that there was no foundation laid to show that he had been apprised of his legal rights, that there was *675 no foundation laid to use his declaration for impeachment, and that the testimony was improper rebuttal evidence.

The evidence

The testimony of the victim, Clarence Gordon, given at the first trial, was that at about 2 a.m. on April 22, 1966, he had driven his car into a filling station, located in the area of Goss and Wood Streets in Oakland, planning to park his car there while he went to a restaurant located off Wood, on…