Harvey

James Earl Harvey appeals from a judgment of conviction entered after a jury found him guilty of first degree murder (Pen. Code, §§ 187, 189) and attempted murder (§§ 187, 664), with accompanying firearm use allegations (§ 12022.5) on both counts and a great bodily injury allegation (§ 12022.7) on count two.

Factual and Procedural Background

Gerald Pierro and Robert Brady were in the United States Navy. Just after midnight on the morning of April 26, 1982, they left the main gate at the 32d Street naval station to go to a friend’s house. As they walked northward on the east side of 32d Street, Pierro noticed two black males walking northward on the west side of the street. Between G and F Streets, one of the black males, later identified by Pierro as the defendant James Harvey, began crossing the street toward Pierro and Brady. Pierro noticed that Harvey was carrying a rifle and quickened his pace. He then heard Harvey say, “Freeze.” Brady stopped but Pierro continued walking. Harvey repeated the command to “freeze.” Pierro then stopped, turned and stepped toward Harvey. As he did so, he heard a shot strike the ground behind him. He glanced over his shoulder to see…