Blair

Defendant/appellant and codefendant Sherman were charged with murder of Tasha Lucas, in violation of section 187 of the Penal Code, and with assault on Portia Howard, with a deadly weapon, in violation of subdivision (a) of section 245 of the Penal Code. It was alleged that both had used a firearm in the commission of both offenses, within the meaning of section 12022.5 of the Penal Code. After a trial by juiy, defendant was found guilty on both counts, the murder being found to have been in the second degree. The allegations of use were found to be true. Probation was denied and defendant was sentenced to state prison, subject to the provisions of section 1202b of the Penal Code. He has appealed; we reverse.

As the result of an altercation and name calling at a drive-in, the appealing defendant, with three companions, drove twice past an area where some of the participants in that event were standing or sitting. On both occasions, shots were fired from the car. One shot hit Tasha Lucas, a seven-month-old child, killing her; the other hit and injured Portia Howard. At the trial, defendant denied having fired the shots or knowing that any of his companions were armed.…