Stewart

Defendant Richard Bert Stewart appeals from a judgment of the Contra Costa County Superior Court imposing a sentence of death following his conviction of three counts of first degree murder (Pen. Code, § 187), possession of a concealable firearm by a felon (§ 12021), and attempted arson (§ 455). The jury found true a multiple-murder special-circumstance allegation. (§ 190.2, subd. (a)(3).) The jury also found true the allegations that defendant personally used a firearm in the commission of the offenses. (§ 12022.5, subd. (a).) Defendant thereafter admitted two separate prior prison term allegations. (§ 667.5, subd. (b).)

In addition to imposing a judgment of death on each murder conviction, the trial court declared that if for any reason the death sentence should not be carried out, defendant would serve a sentence of fife imprisonment without possibility of parole. The court then imposed and stayed a consecutive sentence of seven years eight months on the various remaining counts and enhancements. Defendant’s appeal is automatic. (§ 1239, subd. (b).)

We shall affirm the judgment as to guilt and the special circumstance finding, but because of errors in the jury…