West

A jury convicted John West of second degree murder (Pen. Code, § 187), during which he used a revolver (Pen. Code, § 12022.5). In bifurcated proceedings, the trial court found he had suffered a previous felony conviction for which he served a prison term. (Pen. Code, § 667.5, subd. (b).) He was sentenced to prison and appeals, claiming the trial court erroneously (1) cut off cross-examination of a prosecution witness, (2) instructed the jury, and (3) made a true finding as to the prior conviction allegation. He also maintains that the prosecutor erroneously argued certain matters to the jury. We reject his contentions, except the third. We therefore reverse the true finding made on the enhancement imposed for the prior and otherwise affirm.

Facts

During the late afternoon of April 20, 1988, West and the victim were seen arguing at the apartment of an acquaintance. West said to the victim, “You dug your own grave. Now lay [sic] in it.” The two men got into the victim’s car, but before they departed, West returned to the apartment alone and retrieved a leather pouch from which a gun was protruding. A short time later, witnesses saw the victim driving south on El Cielo…