Beivelman

A jury found defendant guilty of first degree robbery, first degree burglary, and first degree murder of Sylvera Marie MeGraw. It fixed the penalty for murder at death. Sentences on the robbery and burglary counts were stayed pending final determination of this automatic appeal (Pen. Code, § 1239, subd. (b)).

Facts-. The victim and her husband owned and operated a liquor store known as the Bank Bottle Shop, located in a shopping center in Sacramento. Mr. MeGraw operated the store on week days, and it was customary for Mrs. MeGraw to operate the store alone on Sundays, as she did on Sunday, March 12, 1967, the day of her death. She was alive and alone in the store a few minutes before 3 p.m. when a customer, Mr. Nyquist, made a purchase.

Shortly after 3 p.m. Mr. Wendell C. Olson passed the Bank Bottle Shop on his way to the premises next door. He saw an unoccupied, cream-colored Thunderbird automobile parked in front of the bottle shop with the engine running. Mr. Olson did not look into the bottle shop and heard no noises coming therefrom.

Francesca Lee, 11 years of age, went to a grocery store in the shopping center on March 12 on an errand for her mother. As she walked past…