Cline

Defendant was charged in count 1 with assault with a deadly weapon, a sawed-off shotgun, on a police officer (Pen. Code, §§ 245, subd. (b), and 12022); in count 2 with possession of a sawed-off shotgun eoncealable on the person having a barrel less than 12 inches long (Pen. Code, § 12021) ; and in count 3 with possession of a sawed-off shotgun with barrel less than 18 inches long (Pen. Code, § 12020). Prior felony convictions for robbery and burglary were alleged and subsequently a prior conviction for grand larceny was added to the charges.

Appellant was acquitted by a jury of count 2 and convicted of the first and third counts. A motion for new trial was denied and probation was denied. No sentence was imposed as to count 3, as only one act was involved. Appellant was sentenced to state prison for the term prescribed by law as to count 1 and was adjudged a habitual criminal under section 644, subdivision (a), of the Penal Code, the court reserving the right to alter provisions as to the habitual status within 60 days. Defendant appeals.

On March 1, 1962, a passing motorist saw defendant, with a rifle in his hand, near a gas station and telephone booth in Glendora. The motorist…