Kaiser

Erick Kaiser appeals from a judgment of conviction entered on jury verdict finding him guilty of violating Penal Code section 245, subdivision (a) (assault with a deadly weapon), and Penal Code section 243.1 (battery on a custodial officer).

On April 15, 1978, at approximately 8 p.m., victim Loving had gone to Emby’s market in search of his nephew. He found his nephew there and instructed him to ride his bicycle home. Loving went into Emby’s market to make a purchase. Upon Loving’s return, his nephew was sitting in Loving’s car. The victim again sent his nephew home, “tapping” the child on the head to emphasize his point.

At this point a man walked by the victim and mumbled something about not hitting the child. Loving responded that it was none of the man’s business. Loving then turned and started to walk away. As he did, he felt a sharp pain in his arm. He swung around and saw the man holding a knife. A fight followed, and when the victim reached out for the man, he was stabbed in the stomach. Loving fell against the car. The man walked away.

Officer Dorsey arrived at the scene of the stabbing at 8:30 p.m. The security guard at Emby’s market told him that he had seen…