Lewis

Appellant Milton Lewis, Jr. was convicted by a jury of two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), and with personal use of a firearm (Pen. Code, § 12022.5, subd. (a)). He was sentenced to 22 years and 4 months in prison. In this appeal, he raises issues of prosecutorial misconduct, and Wheeler (People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]) and instructional error. In the published portion of this opinion, we hold that the prosecutor did not commit misconduct by referring in questioning and argument to appellant’s failure to request an Evans (Evans v. Superior Court (1974) 11 Cal.3d 617 [ 114 Cal.Rptr. 121 , 522 P.2d 681 ]) lineup. We conclude that the other claims of error also lack merit and affirm the judgment.

I. BACKGROUND

The assaults took place around 2:00 a.m. on December 16, 2000, in the parking lot of a Denny’s restaurant in Eureka. The assailant hit David Moore in the neck with a gun (count one), and fired two shots in the direction of Keenin Ephriam, Cameron Matthews, Delvin Hudson, and Lawrence Bady (count two). Over 15 witnesses at the scene testified to what transpired. The issue in the…