Hoze

After a trial by jury, defendant was convicted of battery upon a police officer. (Pen. Code, §§ 242, 243.) He appeals from the judgment, contending:

The court sua sponte should have instructed the jury that the defendant should be found guilty only of simple battery if the police were not engaged in the performance of their duties at the time of the assault.

Facts

At approximately 3:15 a.m. on April 17, 1970, Officers Jorgensen and Winters of the Sacramento Police Department were in uñiform and on patrol in Sacramento driving a black and white marked police car. As the officers approached a known narcotics outlet in the vicinity of Winters and Piercy Streets, they observed two parked vehicles, one heading north and the other south. Standing between the two vehicles was a known narcotics user and pusher.

As the patrol car approached the stopped vehicles, both took off at a high rate of speed going in opposite directions. The officers pursued the vehicle going in the same direction as their police unit was headed. They followed the vehicle, which had Nevada license plates, for several blocks, but were unable to stop it. As the car made its last turn onto Harris Avenue,…