Richard

Introduction

After a court trial, defendant and appellant Lewis Clayton Richard (appellant) was convicted of murder in the first degree (Pen. Code, § 187). It was found that appellant had personally used a firearm in the commission of the murder (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1)). He admitted that he had sustained three prior convictions within the meaning of Penal Code section 667, subdivision (a). On May 2, 1985, this court affirmed the judgment of conviction. On August 1, 1985, the California Supreme Court granted appellant’s petition for review. The Supreme Court transferred the case to this court on September 25, 1986, for reconsideration in light of People v. Thomas (1986) 41 Cal.3d 837, 842-844 [ 226 Cal.Rptr. 107 , 718 P.2d 94 ].) We again affirm the judgment of the trial court.

Contention

“Penal Code section 667(a) cannot lawfully be applied to appellant’s case.”

*1161 Statement of Facts

The evidence introduced at trial shows that after quarreling with the victim, Sam Henry, over repairs made to appellant’s automobile, appellant left and returned 15 to 30 minutes later with a shotgun. In response to Henry’s statement, “ ‘Oh, you’re going to shoot…