Mercer

In a trial by court, Lawrence Joseph Mercer was convicted of drawing or exhibiting a firearm in a rude, angry, or threatening manner in the immediate presence of a peace officer who was then engaged in the performance of his duties (Pen. Code, § 417, subd. (b)). He was granted probation and appeals, contending the evidence is insufficient to support the conviction.

The facts disclose that at approximately 8 p.m., on August 9, 1979, California Highway Patrol Officer Walter Alexander observed defen dant speeding on State Route 20. Officer Alexander followed defendant to the Tarke Brother’s warehouse where defendant was employed as a night watchman. As defendant was exiting his vehicle, the officer approached him and saw he was wearing a small caliber automatic weapon in a holster on his left hip in a “cross-draw” fashion. The butt of the gun was facing the officer and he could see that it did not contain a clip.

Defendant repeatedly walked away from Officer Alexander. At one point, when defendant walked some 50-60 feet distant, the officer radioed for a backup unit. When defendant was returning, Officer Alexander noticed there was now a clip in the gun. He told defendant…