Provencher

The appeal is from a judgment entered following trial by jury finding the appellant Raymond Joseph Provencher guilty of assault with intent to commit murder and the use of a firearm under Penal Code section 12022.5.

In July 1971, Adolfo Paredes and his wife Rosaura lived in an upstairs apartment in a four-unit building. At approximately 11 p.m. Paredes left in his automobile for the purpose of going to the store for cigarettes. As he started to drive out the driveway another vehicle drove in and Paredes stopped his car alongside. Appellant Raymond Provencher was a passenger in the automobile and his wife- Joyce was driving. On previous occasions Paredes had had trouble with appellant and other people who parked their cars near the building and obstructed the driveway.

An argument ensued. Appellant asked Paredes, “Who do you think you are?” Paredes replied that he lived there and tended the place. Provencher went to the trunk of his car, and although Paredes thought Provencher was bluffing, he instructed his wife in Spanish to get his gun. At that time Paredes had nothing in his hands. As he turned back to talk to appellant he bear'd a shot and his right side went…