Vaiza

The defendant, Gilbert Vaiza, was charged with a felony, to-wit: assault with a deadly weapon upon a peace officer (Pen. Code, § 245, subd. (b)) ; he entered a plea of not guilty and was tried and convicted by a jury. After the denial of his application for probation, he was sentenced to state’s prison.

With certain important differences, hereinafter discussed, the facts are recited with substantial similarity by both sides. It is agreed by all parties that about 2 o’clock in the morning of September 28,1964, the defendant, a young man 21 years of age, was walking along 27th Street in Sacramento. He later claimed that he was taking a stroll in that part of town to secure relief from the turmoil caused by the visit of relatives with children at his home, and that he felt the need of a walk to offset the consequent congestion. At this time, two plainclothes men of the Sacramento Police Department, Officers Shierts and Wallace, were patrolling the area of 27th and “P” Streets in an unmarked car. They observed the defendant moving along the sidewalk, and it seemed to them that he was “out of character for the neighborhood”; so, they circled the block, came back to where they had seen…