Walker

This is an appeal from a judgment of conviction of battery upon a peace officer (§ 242, Pen. Code) and a judgment of conviction of a simple assault (§ 240, Pen. Code).

In an information filed in Los Angeles on January 29, 1968, defendant was charged in count 1 with kidnaping Chaffon Cockrell on November 4, 1967, in count 2 with kidnaping Velma Harvey on November 4, 1967, in count 3 with assaulting Velma Harvey with a deadly weapon on November 4, 1967, and in count 4 with using force and violence upon Officer Antkiewicz who at the time in question was engaged in the performance of his duties. It was further charged that previously, in September 1965, defendant was convicted of the crime of violating section 11530, Health and Safety Code. In a jury trial defendant was found not guilty of the charges set forth in counts 1 and 2. He was found guilty of simple assault, a lesser and included offense, as charged in count 3 and guilty as charged in count 4. Defendant admitted the charged prior conviction and was sentenced to the county jail for the term of 30 days as to count 3 and to the state prison as to count 4, the terms to run concurrently. Defendant filed a timely notice of appeal…