Valenzuela

In a trial without jury Jess Joe Valenzuela was convicted of a felony, was denied probation and was sentenced to state prison. An allegation of a prior conviction of felony was found to be true. The defendant appealed in propria persona and counsel was appointed.

The information charged that the defendant violated section 243 of the Penal Code in that "... he did, by means of force likely to produce great bodily injury, assault Gordon K. Hubbard, a peace officer engaged in the performance of his duties, when he knew or reasonably should have known that the said Gordon K. Hubbard was a peace officer engaged in the performance of his duties."

A second count which accused defendant of violation of section 4550 of the Penal Code (rescuing a person in legal custody) was dismissed.

The language of the information was taken from section 243 of the code which does not define the offense but denounces as a felony a battery committed against the person of a peace officer under the conditions which were described in the information.

"A battery is any willful and unlawful use of force or violence upon the person of another." (Pen. Code, 242.)

Section 245 of the Penal…

In a trial without jury Jess Joe Valenzuela was convicted of a felony, was denied probation and was sentenced to state prison. An allegation of a prior conviction of felony was found to be true. The defendant appealed in propria'persona and counsel was appointed.

The information charged that the defendant violated section 243 of the Penal Code in that “. . . he did, by means of force likely to produce great bodily injury, assault Gordon K. Hubbard, a peace officer engaged in the performance of his duties, when he knew or reasonably should have known that the said Gordon K. Hubbard was a peace officer engaged in the performance of his duties. ’ ’

A second count which accused defendant of violation of section 4550 of the Penal Code (rescuing a person in legal custody) was dismissed.

The-language of the information was taken from section 243 of the code which does not define the offense but denounces as a felony a battery committed against the person of a peace officer under the conditions which were described in the information.

“A battery is any willful and unlawful use of force or violence upon the person of another.” (Pen. Code, §242.)

Section 245 of the Penal Code makes a…

Appellant seeks a rehearing and the taking of further evidence to establish, as his attached declarations purportedly show, that when the jury waiver was taken in this case the door between the chambers and the courtroom was actually closed and neither the public nor the press was invited into the chambers.

While it is questionable whether additional evidence may be taken on a criminal appeal (see People v. Benford, 53 Cal.2d 1, 7 [ 345 P.2d 928 ] ; People v. Merriam, 66 Cal.2d 390, 397 [ 58 Cal.Rptr. 1 , 426 P.2d 161 ]) we need not decide the point at this time. We may assume, arguendo, that it may be done. (See Cal. Rules of Court, rule 23(b).) But to do so here would be futile because if state constitutional error were thereby proven, such error under the circumstances of this ease would be nonprejudicial. (See Cal. Const., art. VI, §13; People v. Watson, 46 Cal.2d 818, 834-837 [ 299 P.2d 243 ]; People v. Bostick, 62 Cal.2d 820, 824-826 [ 44 Cal.Rptr. 649 , 402 P.2d 529 ].)

The petition for rehearing and leave to take additional evidence is denied.

Shinn, J., concurred in the order denying rehearing.

Appellant’s petition for a hearing by the Supreme Court was denied May…