Milner

Defendant Lynn Bernard Milner was convicted of first degree murder (Pen. Code, § 187) and robbery (§ 211), both with use of a deadly weapon (§ 12022, subd. (b)). A special circumstance allegation that the murder was committed in the course of a robbery was found true (§ 190.2, subd. (a)(17)(i)). The jury sentenced defendant to death; this appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We affirm the judgment as to guilt and the special circumstance finding. We reverse the judgment as to penalty under compulsion of Caldwell v. Mississippi (1985) 472 U.S. 320 [ 86 L.Ed.2d 231 , 105 S.Ct. 2633 ], because after a review of the record we determine that the jury was misled as to its sentencing discretion. (See also, People v. Brown (1985) 40 Cal.3d 512 [ 220 Cal.Rptr. 637 , 709 P.2d 440 ].)

I. Facts

On February 1, 1980, defendant, then 19 years old, entered Gamble’s clothing store (Gamble’s) after the last customer had left, between 8:30 and 9 in the evening. He had been employed at Gamble’s for two weeks in the fall of 1979.

About 9 p.m., maintenance man Richard Rivas noticed two men struggling at the back of the store. The iron grating that closed…