People v. Mitchell

A jury found defendant guilty of first degree murder and fixed the penalty at death. On appeal, we affirmed the judgment as to guilt and reversed insofar as it related to the penalty ( 61 Cal.2d 353 [ 38 Cal.Rptr. 726 , 392 P.2d 526 ]). Upon retrial, the jury again fixed the penalty at death. This automatic appeal followed, pursuant to section 1239, subdivison (b), of the Penal Code.

Facts: 1 At approximately 10 :30 p.m. on February 15, 1963, *808 defendant, armed with a shotgun and wearing a hood, entered the Stadium Club, a bar and restaurant in Sacramento, for the purpose of committing a robbery. After directing the customers and the personnel to the middle section of the club, he fired his shotgun into the ceiling, stating, “That’s just to let you know it’s loaded. Get moving.” On defendant’s demand, one of the owners opened the cash register, and defendant took the contents.

In the meantime, one of the owners had, unknown to defendant, been able to contact the police by telephone and report that a robbery was in progress at the club.

The front door had been locked at defendant’s direction, and as defendant approached it to leave the club, he saw the face of Officer Bibica…