Kane

A jury found defendant guilty of assault with a deadly weapon (Pen. Code, § 245, subd. (a)), with attendant use of a firearm (§ 12022.5), discharging a firearm at an occupied motor vehicle (§ 246), and possession of a firearm as a convicted felon (§ 12021). Defendant admitted a prior serious felony conviction. (§ 667.) He appeals, contending (1) the failure to suppress certain evidence violated the rule of People v. Hitch (1974) 12 Cal.3d 641 [ 117 Cal.Rptr. 9 , 527 P.2d 361 ], and (2) he was improperly sentenced.

Factual and Procedural Background

On October 17, 1982, at approximately 7 p.m., the victim, Charles Grigsby, drove to the Journey’s End bar, of which he was part owner, to participate in a “jam session” scheduled for that evening. As he was about to enter the bar, defendant, a previous customer of the bar, approached him and began arguing with him. The argument led to fisticuffs. After the altercation, Grigsby decided to go home. In the parking lot, he entered his car. A brief confrontation with defendant occurred and Grigsby accelerated. As he drove out of the parking lot he heard something hit his car and thought that defendant had thrown a rock at him. He…