Jones

Appellant was convicted of two counts of battery upon a police officer engaged in the performance of his duties. He has appealed from that conviction and from an order revoking his probation granted in another conviction.

Prosecution Evidence

The evidence presented by the prosecution reveals the following. On September 8, 1968, Officers Kimball and Bluth of the Los Angeles Police Department received information through official channels that a robbery and attempted homicide had been committed by two suspects. The suspects were described as two male Negroes, one about 20-22 years of age, 5' 10" or 11" in height and 170 to 180 pounds with “a high natural,” and the other 6' 3" and 150 to 160 pounds. The suspects were said to be driving a “’66 or ’67 burgundy colored Buick Riviera with damage to the left rear of the vehicle.”

About 45 minutes after receiving the information at roll call, Officers Kimball and Bluth were on patrol in a marked police car. Both were in uniform. Kimball saw a burgundy-colored 1963 Buick Riviera with a dent in the right door stopped for a traffic light. He observed the passenger leaning from the open door and apparently placing an object under…

I concur in the opinion of Mr. Justice Thompson reversing the judgment in case No. A-236450, but dissent from that portion reversing the order revoking probation and judgment imposed in case No. 305542.

On October 4, 1965, on his plea of guilty to second degree robbery in case No. 305542 defendant was granted summary probation for five years on the condition that he “Obey all laws, orders, rules and regulations of Probation Department and of the Court.” While it is true that the order revoking probation in No. 305542 was made on March 7, 1969, by the same judge who on the same day and previous thereto imposed judgment and sentence in the instant case (A-236450), in the light of the comments of the sentencing judge made prior to revocation of probation, his express consideration of the probation report, review of defendant’s conduct and opinion as to defendant’s inability to function in society, and the probation report itself I am unwilling to assume that the sole basis for revoking *721 probation was defendant’s conviction in case No. A-236450 as in People v. Ketchum, 185 Cal.App.2d 620, 621 [ 8 Cal.Rptr. 610 ], and People v. Muniz, 4 Cal.App.3d 562, 571 [ 84 Cal.Rptr. 501 ].…

Appellant was convicted of two counts of battery upon a police officer engaged in the performance of his duties. He has appealed from that conviction and from an order revoking his probation granted in another conviction.

The evidence presented by the prosecution reveals the following. On September 8, 1968, Officers Kimball and Bluth of the Los Angeles Police Department received information through official channels that a robbery and attempted homicide had been committed by two suspects. The suspects were described as two male Negroes, one about 20-22 years of age, 5' 10" or 11" in height and 170 to 180 pounds with "a high natural," and the other 6' 3" and 150 to 160 pounds. The suspects were said to be driving a "'66 or '67 burgundy colored Buick Riviera with damage to the left rear of the vehicle."

About 45 minutes after receiving the information at roll call, Officers Kimball and Bluth were on patrol in a marked police car. Both were in uniform. Kimball saw a burgundy-colored 1963 Buick Riviera with a dent in the right door stopped for a traffic light. He observed the passenger leaning from the open door and apparently placing an object under the car…

I concur in the judgment, but I disagree with the opinion insofar as it states that it was for the jury to determine whether appellant was guilty of felony battery.

If the jury had been instructed in the manner set forth in Justice Thompson’s opinion and if appellant had been convicted of felony battery, I think we would have been compelled to reverse the conviction on the ground that there was no substantial evidence from which the jury could have concluded beyond a reasonable doubt that defendant wás guilty. (People v. Hall (1964) 62 Cal.2d 104 [ 41 Cal.Rptr. 284 , 396 P.2d 700 ].)

A battery against a peace officer becomes a felony only when “the *720 person committing the offense knows or reasonably should know that such victim is a peace officer . . . engaged in the performance of his duties.” (Pen. Code, § 243. Italics added.) Appellant knew, of course, that he was dealing with police officers. The question is whether there was evidence that appellant knew or should have known that the officers were engaged in the performance of their duties in forcibly searching him for weapons.

There is no claim that appellant was involved in the robbery for which he was detained for…