People v. Gardner

A jury found defendant guilty of first degree murder and fixed the penalty at death. Motions for a new trial and reduction of penalty were denied, and defendant’s automatic appeal is now before us. (Pen. Code, § 1239, subd. (b).)

We have now concluded that the judgment as to guilt should be affirmed but that under the compulsion of Witherspoon v. Illinois, 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the death penalty must be set aside and defendant remanded to the trial court for a new trial limited to the issue of penalty.

Gerald Bispo left his home in Oakland about 7:45 a.m., July 31, 1967,…