Mathews

Klee Green Mathews was convicted in a jury trial of exhibiting a firearm in the presence of a peace officer (Pen. Code, § 417 subd. (c), formerly subd. (b)), a lesser and necessarily included offense of assault upon a peace officer with a firearm. (Pen. Code, § 245 subd. (d)(1)). Probation was granted upon certain terms and conditions. Prior thereto, he unsuccessfully brought a motion to suppress evidence pursuant to Penal Code section 1538.5.

He appeals contending: “I. Appellant’s Penal Code section 1538.5 motion was erroneously denied in that the officers failed to comply with the knock-notice requirements of Penal Code section 1531 and therefore were not engaged in the performance of their duties, ffl II. The evidence was insufficient as a matter of law to establish the police were engaged in the performance of their duties: Appellant’s motion pursuant to section 1118.1 should have been granted. [1] III. Section 417, subdivision (b) is improperly applied to the instant case in that it creates criminal liability for what appellant ‘reasonably should know’ without the requisite underlying criminal conduct, [f] IV. The jury was inadequately instructed on ‘reasonably…