O'BRIEN

Defendant was charged by information with the murder of Los Angeles Police Officer David Seibert and with six prior felony convictions. Motions for change of venue an,d for suppression of evidence were' denied. A jury found defendant guilty of first degree murder and fixed the penalty at death. Motions for new trial and reduction of sentence were denied. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment as to guilt but, under compulsion of Witherspoon v. Illinois (1968) 391 U.S. 510 [ 20 L.Ed.2d 776 , 88 S.Ct. 1770 ], we reverse as to penalty.

On the morning of August 8, 1967, defendant appeared at a Foods Company market in Los Angeles, before the store had opened for business. He told the manager, Bruce Jessel, that he wanted to pick up a returned check which he had allegedly cashed there. Jessel replied he would have to wait until he received a notice from the bank that the check had been dishonored.

Defendant returned about the same time on August 10. He told Jessel he had the necessary notice, but did not produce it. Jessel allowed him to enter, and took him to the cashier. As the two men stood outside the cashier’s window, adjacent to the…