What is the test for instructing a jury on a charge of assault with a deadly weapon?

In People v. Hood (1969) 1 Cal.3d 444, 82 Cal.Rptr. 618, 462 P.2d 370, the defendant was charged with assault with a deadly weapon upon a police officer. In determining whether the trial court had a sua sponte duty to instruct on the lesser included offense of assault with a deadly weapon, the court had to determine "whether the evidence in this case clearly indicated [the officer] might not have been engaged in the performance of his duties or that defendant might not have known or had reason to know that he was so engaged." (Id., at p. 450, 82 Cal.Rptr. 618, 462 P.2d 370, italics added.) In other words, the duty to instruct arose not from the nature of the charge in the abstract but from the particular facts adduced at trial raising the possibility of a factual defense. In People v. Bevins (1960) 54 Cal.2d 71, 77, 4 Cal.Rptr. 504, 351 P.2d 776, "the testimony as to the circumstances surrounding the manner [926 P.2d 1037] in which defendant's confession was obtained was in direct conflict, thus [requiring the trial court] to submit to the jury for its determination under proper instructions the question whether under all the circumstances the confession was made freely and voluntarily." (Italics added; see also People v. Wilson (1967) 66 Cal.2d 749, 759, 59 Cal.Rptr. 156, 427 P.2d 820 ["Under the evidence

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