Perry

*447 Appellant Tyson Perry is a former police officer who used force against a private citizen during an arrest. He challenges his conviction for unnecessarily assaulting or beating another person while acting under color of authority. ( Pen. Code, § 149. 1 ) He contends the jury instructions and prosecutor's argument encouraged conviction under a legally erroneous and factually unsupported theory. As we explain, we agree reversal is required. We reverse the judgment and remand for further proceedings.

*525 PROCEDURAL HISTORY

Perry was charged with assault by a public officer ( § 149 ; count 1), battery with serious bodily injury (§ 243, subd. (d); count 2), and misdemeanor battery (§ 242; count 3). Count 3 was dismissed prior to trial on the ground the statute of limitations had run.

A jury found Perry guilty on count 1. On count two, the jury acquitted Perry of battery with serious bodily injury but found him guilty of simple misdemeanor battery as a lesser included offense. On the People's motion, the court dismissed the misdemeanor count for violation of the statute of limitations.

Perry was given a suspended sentence and placed on probation for three years with various…