Marchialette

Warren Marchialette (Marchialette) was charged with the murder, of Leon Simmons (Simmons) with malice aforethought on March 4, 1973. An amended information charged that in the commission of the offense, he used a firearm and an amendment to the information charged two prior convictions—a violation of Penal Code section 192, subdivision 1 (voluntary manslaughter) on June 25,1971, and a violation of Penal Code section 242 (battery) on November 18, 1971. Ele entered a plea of not guilty. He eventually admitted the two priors. A jury found defendant guilty of murder in the second degree and found that at the time he used a .45 caliber semi-automatic pistol. His motion for new trial and application for probation were denied and he was sentenced to state-prison for the term prescribed by law, the sentence to run consecutively to any other sentence imposed. He appeals from the judgment.

Contentions

Appellant contends that the conviction should be reversed because the court erroneously:

Facts

Simmons died on March 4, 1973, as the result of four gunshot wounds. The shots were fired from a .45 caliber weapon subsequently found (pursuant to a search warrant) in Marchialette’s…