Wheeler

—Defendant appeals from a judgment of conviction for assault with a deadly weapon. (Pen. Code, § 245, subd. (a).)

Two prior felony convictions were charged in the information, one a 1960 Texas felony, the other a 1963 Mississippi conviction. The Texas felony was found to be true. There was no finding with respect to the Mississippi conviction.

The matter was submitted to the trial court on the transcript of the preliminary hearing at which hearing defendant had been represented by the public defender. The facts disclosed at that hearing, briefly summarized, are as follows:

On February 27, 1966, defendant and Mrs. Oppegard, with whom he shared an upstairs apartment at the Brookmore Hotel in Pasadena, had some kind of argument. She called the police and met several officers downstairs. It is not very clear whether she wanted defendant arrested or merely desired the officers to help her get her clothing out of the apartment.

One officer called defendant on the telephone and asked him whether he had a shotgun. Defendant dared him to “come up and find out,” threatening to kill anyone that came near the room.

The officers went upstairs. Defendant was asked to open the door to the…