Plesniarski

*110 Opinion

The People appeal from a judgment of the Sacramento County Superior Court granting defendants’ motion to dismiss the indictment.

Question Presented

The court erred in granting the motion as defendants acted “under color of authority.”

Record

The Sacramento County Grand Jury indicted defendants in count one of the indictment with violation of section 149 of the Penal Code (assault by an officer under color of authority) and in count two with violation of section 245 of the Penal Code (assault with a deadly weapon). Defendants moved under section 995 for dismissal of the indictment. The district attorney stipulated that count two be stricken since it was mistakenly included in the indictment. The court, after a hearing, dismissed the indictment. The People appeal from the dismissal of count one.

Facts

Defendant Plesniarski had been an officer of the Sacramento Police Department since 1966, defendant Williamson since 1968. On December 3, 1970, Plesniarski was on duty from 7 p.m. to 3 a.m. the following day, that particular time being Williamson’s day off. About midnight of December 4, four persons, including Monon Cherry, were arrested for “strong-arm” robbery by…