Garcia

By jury trial appellant Masimo Matienso Garcia was convicted of first degree murder with use of a firearm. (Pen. Code, §§ 187, 12022.5.) He admitted a prior conviction of a serious felony (Pen. Code, § 667, subd. (a)) and was sentenced to a total prison term of 32 years to life.

On December 25, 1984, appellant shot and killed the victim at a park at 6th and Gladys. An eyewitness, Osvaldo Machado, observed the killing from a few feet away. Mr. Machado saw appellant arrive in a car. Appellant got out of the car with his hand in a knapsack, while another person remained in the car. Appellant came up to a park bench where the victim was sitting and said, “Pay me the $200.” The victim responded, “that he didn’t have any money now, that he would pay him when he could.” Appellant grabbed the victim by the shirt, but the victim responded, “You’re not going to scare me.” Appellant pulled a gun out of his knapsack and shot the victim in the thigh and chest, the latter wound being fatal. Appellant retreated to the car and left.

Mr. Machado had seen appellant in the park several times before; he assisted a police artist to make a sketch of the suspect, a copy of which was…