Kitt

By information defendant was charged with murder in violation of Penal Code section 187. It was alleged in the information that defendant used a firearm—a shotgun—during the commission of the offense, within the meaning of Penal Code section 12022.5 and Penal Code section 1203.06, subdivision (a)(1).

Defendant was tried by a juiy after he entered a plea of not guilty. The jury found defendant guilty of first degree murder and found the allegation of a firearm use to be true. Defendant’s motion for a new trial was denied. Defendant was sentenced to state prison for the term prescribed by law, the use allegation being stricken on defendant’s motion. Defendant appeals from the judgment of conviction.

I

The Factual Background

On Thanksgiving 1976, and for a short period prior thereto, Christine Oliphant and Gary Thompson were living with defendant and his wife, Marilyn, in an apartment at 5738 Priory Street in Bell Gardens.

On Thanksgiving Day defendant and Gary Thompson had an argument about a jacket. The argument was a verbal one and no blows were struck.

On the day after Thanksgiving Christine and Gary left the Kitt residence and stayed with a friend. The next…