The opinion
*361 DUNN, J.
I respectfully dissent.
The majority holds that Parsley v. Superior Court (1973) 9 Cal.3d 934 [ 109 Cal.Rptr. 563 , 513 P.2d 611 ], an appeal from denial of a writ, should have been given retroactive effect. With that I disagree.
Here, the warrant was issued 6 April 1973 and was executed 12 April 1973. Parsley was not decided until 28 August 1973 and held that a magistrate may not, in advance, relieve police officers from the duty of complying with Penal Code section 1531. The majority here says that, because the warrant in the Parsley case was executed 17 March 1972, “notions of fairness” require that the Parsley decision of August 1973 be made retroactive. I do not agree that this is a valid reason. (See: Desist v. United States (1969) 394 U.S. 244 [ 22 L.Ed.2d 248 , 89 S.Ct. 1030 ]; Kaiser v. New York (1969) 394 U.S. 280 [ 22 L.Ed.2d 274 , 89 S.Ct. 1044 ].)
At the same time, Parsley recognizes exceptions “for articulated exigent circumstances” (p. 938 of Parsley). Here, Police Officer Ortiz testified at the hearing of defendant’s 1538.5 motion as follows:
“Q By Mr. Abouaf [prosecutor]: What was your state of mind when you went to that location [defendant’s house] to execute the search warrant?
“A It was the same as when I requested noncompliance with 1531 from the issuing magistrate for the two reasons I stated, the fear of destruction of evidence and the safety of the officers involved serving the warrant.”
I agree with the majority that the facts known to the police officers at the time they broke into defendant’s house were sufficient to constitute exigent circumstances. However, under such factual situation, whether the officers were actually engaged in making a valid arrest, i.e.: “performance of his duties” (Pen. Code, § 245, subd. (b)), did not pose a jury question, for the reason that such determination was made as a matter of law at the 1538.5 hearing. Thus, I find no error in the trial court’s having instructed the jury that: “A peace officer is lawfully engaged in the performance of his duties if he is attempting to effect service of a search warrant, signed by a magistrate, valid on its face, which authorizes the search of certain premises or places, or the search of certain persons.”
*362 Regarding the trial court’s admission of evidence of a derringer pistol found in the pocket of defendant’s pants (a point not raised in appellant’s brief), I would conclude the evidence was possibly admissible (see: People v. Dumas (1973) 9 Cal.3d 871, 877 [ 109 Cal.Rptr. 304 , 512 P.2d 1208 ] and the evidence was not so prejudicial as to warrant reversal.
Furthermore, defendant contends that his conditions of probation are invalid, particularly the (standard) condition requiring the probationer to submit to search or seizure. His argument is not persuasive. Defendant argues that blanket search provisions have no relationship to his conviction for assault with a deadly weapon (upon a peace officer) in view of the many articles which the law has permitted to be classified as “deadly.” However, since the majority does not discuss this point (instead, choosing to reverse the judgment on other grounds) I cannot state whether I will agree or will disagree with it. For that reason, my dissent makes no further commentary upon defendant’s contention.
Respondent’s petition for a hearing by the Supreme Court was denied July 28, 1976. Clark, J., was of the opinion that the petition should be granted.