Day

Defendant Day pleaded guilty to charges of robbery (Pen. Code, § 211) while armed with a. firearm (Pen. Code, § 12022, subd. (a), count three of the indictment) and admitted suffering a prior felony conviction for forgery. The jury then found him guilty of first degree murder (Pen. Code, § 187, count one) and of robbery (Pen. Code, § 211, count two). Day was sentenced to twenty-five years to life on the murder charge and to a consecutive upper term of five years plus one-year enhancement on the robbery (count three) charges. The court imposed the middle term of three years on the count two robbery but stayed execution pursuant to Penal Code section 654.

Facts

At about 1 a.m. of September 10, 1979, Day and a companion entered the 7-Eleven store, San Diego, and robbed the clerk, Gagne. One robber had a gun and kicked Gagne when he was down. Gagne had triggered the alarm when he opened the cash register. Day was captured as he ran from the store. He was identified by Gagne as the robber who did not have a gun. Day waived his Miranda rights and told Officer Navarro the other robber was Gregg Thomas.

About 8 a.m. of that same day, the body of Donald Stepatt was found in a…