Martin

The defendant Robert Martin, convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and found to have used a firearm in the commission of the assault (Pen. Code, § 12022.5), appeals from the judgment of conviction on grounds of prosecutorial misconduct and instructional errors. Understanding and evaluation of his contentions on appeal require an overview of the evidence adduced at trial.

Martin shared an apartment on Chestnut Street in San Francisco with Ms. Stephanie Hill. On the evening of September 14, 1978, Martin was standing on a balcony outside their apartment, which was on the third floor of the apartment building, when he saw Hill get out of a station wagon and enter the building. Inside the wagon were three men, waiting for Hill to return with her laundry. When Hill entered the apartment, Martin expressed anger that she was with the three men, hit her several times with his fists, and threatened to blow her brains out with a gun he pulled from his pocket. Meanwhile James Mark, one of the three men in the wagon, went up to see what was taking Ms. Hill so long. Ignoring a warning from someone on the second floor that he “shouldn’t be going up…