Wilkins

In this prosecution for obstructing and resisting a peace officer in the performance of his duty, we shall hold that the existence or not of exigent circumstances, upon which the People relied to justify the entry of peace officers into defendant’s home to arrest him without a warrant, is an issue for the jury invoking the trial court’s duty sua sponte to instruct thereon.

Defendant was convicted of willful infliction of corporal injury on a spouse (Pen. Code, § 273.5), taking a peace officer’s weapon (baton) while obstructing him in the performance of his duties (Pen. Code, § 148, subd. (b)), and forcibly resisting a peace officer in the performance of his duties (Pen. Code, § 69). (Further statutory references to sections of an undesignated code are to the Penal Code.) On appeal defendant contends the court erred in (1) denying his motion to suppress evidence (§ 1538.5) and (2) failing to instruct sua sponte on the issue of exigent circumstances as it relates to the lawfulness of defendant’s arrest and ultimately, to the lawful performance of the officers’ duty. We shall deal with these issues in the published part of this opinion. Although we shall conclude the trial…