I dissent from that portion of the majority opinion concluding defendant is not guilty of violating Penal Code section 243.
Section 243 prohibits battery “against the person of a peace officer” when “engaged in the performance of his duties.” We must therefore determine what duty rested with Officer Anderson upon observing defendant’s conduct. The majority recognize an off-duty municipal police officer possesses a continuing status as a peace officer. (Pen. Code, § 830.1.) However, they argue he is not “engaged in the performance of his duties” when, in full uniform, he is privately employed to perform essentially the same services he would have performed had he been assigned by the municipality to keep peace at the public dance in question. Is a wrongdoer to escape criminal responsibility for attacking a municipal police officer merely because—unknown to her—the officer is paid for his peace-keeping duties by a source other than the municipality? The majority answer with a strained construction of Penal Code section 243.
The majority construction is made to depend on legislative intent borrowed from another code—the Private Investigator and Adjuster Act. (Bus. & Prof. Code, § 7500 et seq.) Security personnel subject to the act cannot represent themselves as peace officers and, the majority argue, if an off-duty peace officer engaged to perform private security services is subject to the act, he too cannot represent himself as a peace officer— even though he be one in fact. The majority conclude that such an officer is subject to the act and “it would be absurd to say that he was engaged in the performance of his duties [as a peace officer] for the purposes of Penal Code section 243.” (Ante, p. 744.)
Even if the Business and Professions Code is arguably applicable to Officer Anderson’s securing the passageway, the majority’s rationale fails to consider the true capacity in which the officer was acting when he attempted to arrest, and was attacked by, defendant. A peace officer has a continuing responsibility to keep the peace at all hours, whether or not officially on duty. “[B]ecause of the nature of their employment public officers are under a special duty at all times to use their best efforts to apprehend criminals.” (People v. Hooker (1967) 254 Cal.App.2d 878, 883 [62 Cal.Rptr. 675], disapproved on other grounds in People v. Curtis (1969) 70 Cal.2d 347 [74 Cal.Rptr. 713, 450 P.2d 33], 356; see also People v. Townsend (1971) 20 Cal.App.3d 688, 694-695 [98 Cal.Rptr. 25].) It does not follow that because an off-duty peace officer is performing duties as a private security guard he cannot use all reasonable means to effect an *748arrest when he observes the commission of a criminal act. In fact, he is charged with effecting an arrest and his failure to do so would expose him to a charge of dereliction of his duties as a peace officer. Thus when making such arrest he is clearly “engaged in the performance of his duties” within the meaning of Penal Code section 243. (See People v. Townsend, supra, 20 Cal.App.3d 688, 694-695; People v. Hooker, supra, 254 Cal.App.2d 878, 883.) To hold otherwise, as do the majority, effectively eliminates a substantial and valuable source of police protection. In its absence, it would appear that either the municipality itself must provide police protection by on-duty officers or allow criminal conduct to prevail at public dances sponsored by private associations.
In the instant case Officer Anderson observed the commission of criminal conduct by defendant—she committed a criminal trespass (Pen. Code, § 602) and disturbed the peace (Pen. Code, § 415) when she forced her way through the passageway guarded by Anderson. Moreover, even the majority concede that when Officer Anderson sought to remove defendant from the premises she committed at least a simple battery. (Pen. Code, § 242.) It is thus clear that at this point Anderson possessed both power and duty to arrest defendant for one or more of the violations committed in his presence. He summoned help, abandoned the security duties assigned by the private association, and left to apprehend defendant outside the building. While acting only in his capacity as a peace officer attempting to effect a valid arrest, Anderson was again attacked by defendant. By no reasonable rationale can it be concluded this attack did not constitute a violation of Penal Code section 243. The battery was “committed against the person of a peace officer,” defendant knew “or reasonably should [have known] that such victim [was] a peace officer . . . engaged in the performance of his duties,” and as demonstrated, Anderson was then “engaged in the performance of his duties . . . .” (Pen. Code, § 243.)
The judgment should be affirmed in its entirety.
Respondent’s petition for a rehearing was denied August 30, 1978.