Lopez

Jose Angel Martinez Lopez was convicted by a jury of both assault (Pen. Code, §§ 240-241) and battery (Pen. Code, §§ 242-243) on one police officer (Harvey) and acquitted of similar charges as to another police officer (Browne). The offenses were declared to be a misdemean- or, and he was granted probation for a term of 2 years on condition he serve 90 days in the custody of the sheriff. By order of the trial court he was admitted to $500 bail on appeal. Lopez appeals from the judgment (order granting probation), contending:

Facts

About midnight on August 4, 1973, City of Orange Police Officers George Harvey, Tim Browne and Craig Johnson were dispatched by radio to 100 South Lemon Street, where a major disturbance with fighting was reported in progress. Arriving at the scene, the officers observed a large number of persons gathering about the American Legion Hall where a wedding had taken place. They observed pushing, shoving and fighting, with glass beer bottles being used as weapons.

Officer Johnson went to an alley north of the hall where he observed two persons entering an automobile and attempting to leave. As Johnson began questioning them about the disturbance,…