McElheny

Mark Albert McElheny appeals his jury-tried conviction and sentence to prison for robbery and burglary, both with personal use of a firearm (Pen. Code, §§211, 459 and 12022.5), and for assault on a peace officer and assault with a deadly weapon, both while armed with a firearm (§§ 245, subd. (b), 245, subd. (a), and 12022, subd. (a)).

On July 17, 1980, McElheny and his accomplice, John Gafney, carried out their plan to rob Marie Callendar’s restaurant in Fullerton. Wearing ski masks and using a pistol and shotgun, the gunmen obtained $4,000 from the safe, forced the employees into a walk-in refrigerator, then fled. Fullerton Officer Cecil Reece arrived and saw the two running from the restaurant’s back door. Reece ordered them to halt, saying “police, freeze,” and “drop the rifle.” Gafney responded by firing a shotgun blast at the officer, hitting him in the face, arm and chest. As he collapsed, Officer Reece emptied his revolver at Gafney, killing him.

McElheny’s response to the officer’s order was to run and hide behind a bush. About one hour after the shooting, officers found him and his loaded .22 caliber revolver which he had tried to hide in a nearby planter…