McNeill

A jury found defendant guilty of murder in the second degree (Pen. Code, §§ 187, 189) and “Assault With a Deadly Weapon and by Means of Force Likely to Produce Great Bódily Injury . ... ” (Pen. Code, § 245, subd. (a).) Firearm use was found as to each count. (Pen. Code, § 12022.5.) For reasons which follow, we shall affirm the conviction for murder and reverse the conviction for assault.

In their first encounter on the evening of December 21, 1978, defendant and Charles Muller, the murder victim, engaged in arm wrestling contests and exchanged argumentative words. Defendant offered and Muller agreed to rendezvous later that night to fight.

Defendant procured a .357 magnum revolver from his home. From there he drove to the home of a friend. The friend was not at home but defendant displayed the gun to his friend’s roommate and told him that he had fought with some high school boys and was going back to “get ’em.” Defendant telephoned another friend and told him that he had an argument with three high school boys and that he wanted the friend to watch two of them while he fought the third. The friend declined the invitation.

In the meantime, the victim Muller had driven…