*1 Disk, 17, 1970.] July No. 34178. Second Div. Five. [Civ. al., Petitioners, B. et
SALVATORE CASTRO COUNTY, THE SUPERIOR COURT OF LOS ANGELES Respondent; PEOPLE, in Interest. THE Real Party
Counsel Jr., Posner, Sillas, Herbert Acosta, M. Herman Neil M. Paul
Oscar Herring, for Petitioners. Fred Okrand M. A. L. Wirin and E. Ralph Selwyn, Segura, for No Respondent. appearance Wood, Maurice H. Oppen- J. District Attorney, Harry
Evelle Younger, Real Guminski, Attorneys, Party Arnold I. District heim and Deputy Interest.
Opinion KAUS, a result of our decision in this writ P. J.As proceeding time, who, the evidence according to several of the petitioners passage aided and abetted in the committed or grand jury, clearly presented misdemeanors, be tried for those crimes. several never commission of thinks that this is a most undesirable share the view of who We anyone stress, outset, minor however, at that with one We exception result. herein,
noted did not choose to the misdemeanors. the authorities charge deal This therefore cannot a fortiori does not with crimes opinion which, commission, at the time their considerable public generated notoriety.
Petitioners, Gomez, Castro, Salvatore B. Moctezuma Henry Esparza, Munoz, Montez, Frederic Bernard Carlos Michael Carlos Gilberto Lopez, Risco, Olmeda, Ramirez, Razo, Cruz Luna Joe Eliezer Lozado Ralph Angel Sanchez, Sanchez, David John J. seek a writ of Patricio Richard Vigil, to restrain the Court for the Los prohibition County Angeles Superior from them on an indictment which contained proceeding try originally are: counts. In various these were reduced to three. These ways count which VIII Frederic Bernard Gilberto charged petitioners, Lopez, Olmeda, *4 Sanchez, Cruz Luna Ramirez and John with a mis- David Ralph demeanor violation of section 415 of the Penal Code (disturbing peace), 5, 1968; on March count XV all with which a con- charges petitioners Code, to violate section 16701 of the Education which at spiracy read as time follows: disturbs school “Any who person wilfully any public or misdemeanor, any school of a and public meeting guilty punishable a fine of not by ($10) less than ten dollars nor more than one hundred ($100)”; dollars and count XVI which all with con- charged petitioners to “disturb the and of the spiracy peace quiet neighborhood encompassing thereof, and in the designated high [four persons proximity by schools] conduct, loud unusual noise and tumultuous and offensive and in by a loud and boisterous manner. ...”
The evidence before the showed that between March 5 and ground jury March there occurred certain disturbances at four schools high in Los Angeles. these took the form of a number of Mexi- Essentially large can-American students to leave the school attempting actually leaving The grounds attending reason for these so- protest meetings. alleged called “walkouts” was a conditions in the schools which protest against were claimed to the students with inferior education.1 provide grievances by 1The nature of the is illustrated published the demands on March 7 at one of the schools: “1. Class size will be reduced so that teachers can be more effective in the classroom and devote more time to teaching each student. Team approach high will be used. 2. New immediately. schools in the area be built present local schools be help community identity. should re-named to establish 3. ratios should be Counselor/student reduced. All counselors should able speak be to Spanish. Library 4. expanded high facilities should be at all East L.A. schools to meet requirements. minimum program 5. The Industrial Arts must be re-vitalized and Open-air eating modernized. 6. student areas should made into roofed malls. buildings already “7. All condemned sould be razed and new structures erected [sic] immediately. high 8. All campuses school will open. Fences should be removed. buildings 9. Entrances to all and restrooms during should be accessible to all students school janitorial hours. 10. School services be restricted employees should hired school leave during students to Several actively encouraged petitioners fewa students hours.* several quite school petitioners Unquestionably to those crimes peti limited number of misdemeanors—not committed these Many to commit.3 having appear charged tioners conspired however, Several, inferentially were planned have been spontaneous. least, or, all advance, at necessarily by peti though petitioners covered the walkouts the scene Illegal tioners. acts committed technical violations of relatively from morally reprehensible spectrum constituted to be that the matters about mentioned law. Without deciding Code which those section 415 Penal violations of peti portions violate, brieflly we mention are accused of having tioners conspired without duplicating to us to be most serious transgressions, what appear footnote: in the next conduct described preceding were 1. On March threats and “obscenities” at Garfield School High officials; hurled at officers and school police
2. At caused a Roosevelt School on March several High petitioners which chain to the was closed school gate snap open, permitting about two hundred students to leave the school premises; tossed At cans were down
3. Belmont School March 7 High garbage set in and fire were broken. Fires were trash students alarms steps *5 None of and out. Rocks and bottles were thrown. fights cans broke peti- involved; directly tioners were shown to be realistic, program be newer and better purpose. guidance that should for 11. The testing developed. I.Q. student present tests will be abolished and valid
methods techniques developed place. more aware in their Teachers should become 12. Proper given should be community. emphasis 13. problems social and economic of the being given is for? what the stand- violations—just punishment to student what is rules disputes a who settles over and the penalty ard for standard infraction of rules? assigned?”—Some signs by in participants carried the demonstra- punishment tions Teach,” Contempt,” read: “We “Education Not Demand Schools That Beautiful”; and “Good Schools Education,” for “Brown Is Good “We Want All.” against urging no law a student to leave specific 2It should be noted that there is time a at the defined period. school brief Section 12401 of the Education Code truant, meaning “Any reported shall as a within the a truant as follows: child 12401), (commencing at Section who has absent from school with this article been days tardy excess on out valid excuse four than three of 30 minutes each of more days year.” or more one school example: out were at petitioner 3For at one handed bottles which thrown least (Pen. §§240, 241); petitioners students police cars directed to block Code four 370, 372); sitting (Pen. flagrantly by petitioners Code § § traffic violated section 13558.5 of the Education the street several Code, prohibiting nonstudents to enter grounds wilfully operation and a school with the intent school to interfere with the of section disrupt appear it. Some violations also to have been violations of these Code, 626.8 of that code. repealed replaced of the Penal since section 602.9 and (Stats. 1424.) ch. Belmont, 4. at The next few rocks were thrown day, again students and bombs were no involvement cherry ignited. Again by any petitioner was shown. from contained in count VIII these violations are not
Apart charge us, before to the extent that their and and except commission the aiding of their commission some circumstantial evidence4 abetting petitioners of the felonies in counts XV and thrust of charged XVI. The those counts that whom at none of was a student of the schools simply any petitioners, affected,5 walkouts took certain acts”— planned steps—“overt toward the of their accomplishment objective. attack
Petitioners on that indictment several fronts. claim: 1. They constituted;6 grand 2. that the evidence be- jury unconstitutionally indictment, fore the does not jury one even if support disregards alleged frailties; that, constitutional 3. if are mistaken that failed to on they point, show connection between and five conspiracy particular petitioners; evidence, 4. that the have People single whereas alleged conspiracy, most, several shows that 5. the evidence separate conspiracies; conclusively shows were First Amendment petitioners merely exercising rights that, free whatever the definition of the crimes speech assembly charged under law and California however may adequate proof definition, be that came within such cannot constitutionally state they them; 6. that section 16701 of the Education Code is punish unconstitu- 7. section 415 the Penal Code is tionally vague; unconstitutionally overbroad; 8. that section vague; 16701 of Education Code 9. overbroad; section 415 of Penal Code is 10. that for con- prosecution constitutes, to violate misdemeanors involved because its spiracy effect free a denial of due and 11. that a chilling speech, process; prose- cution for to violate the misdemeanors involved cruel constitutes conspiracy *6 \ and unusual punishment. of has reached conclusion the
A this court that for shifting majority set forth in this and two of reasons writ concurring prohibi- opinions very 4There weak witness bare is some direct evidence from reluctant that a petitioners may planned handful of no have what turned into the “walkouts.” There violations, petitioners planned direct evidence that of to commit of section or the Penal Code section 16701 Education Code. 5Petitioner Castro was a teacher one schools. 6In addition to a motion to set aside the indictment section 995 under of the Penal
Code, petitioners quash made a transcript motion to The indictment. of these 1,000 pages. proceedings more that a covers than Petitioners claim class to which they belonged, “Spanish chronically underrepresented surnamed has persons,” been Angeles Jury on the Los Grand underrepresentation and such resulted from against presumed actual and discrimination the class. XVI on counts XV and tion further against prosecution petitioners should issue.
We count VIII return- the misdemeanor contained dispose charge in this court for outlined opinion. certain ing superior proceedings Conspiracy XVI. to Disturb the Peace—Count set forth those of
The views in this only represent part opinion reached with writer. Justice concurs in the result respect Stephens XVI. to count Justice dissents. Reppy the direct of a with evidence People’s summary respect conspiracy October, (United
to the walkouts is as “In at a UMAS follows: joint Students) (Mexican Mexican American and As- MASA American Students sociation) Castro [meeting] said only way impress petitioner and the Board kids was to the kids to walk out. get Education
“In had the UCLA January Castro informed February Chap- petitioner ter of UMAS that school students about out. walking were high talking UMAS motion passed assuming protect monitors responsibility school students. Then were high there several meetings petitioner Castro about to be submitted to the Board of Education and proposals Risco, walkouts. Petitioners Razo and and Munoz attended Esparza possibly some these were made sometime in for use meetings. Signs February . the walkouts. . .” during offered,
In addition there was Petitioner Castro a radio against only, broadcast he made on of the broad- 1968. The May summary People’s cast is as . follows: “. . outlined the of the walkouts and Castro history indicated that he had asked students signs to assist college by making the walkouts. Petitioner received from California monitoring Castro help State, U.C.L.A. and State. L.A. would not endorse East Valley College An walkout at Wilson one program. triggered unexpected prematurely at Garfield. Petitioner Castro then advised that the other two schools would have have a walkout in order to show to the Board of Education. unity He the Lincoln walkout was called for 10:00 12:00 explained set for Roosevelt. He how well the walkout which led to Hazard explained Park was school monitors. College high supervised
“Petitioner Castro indicated that the kids were because the first angry *7 wave of walkouts had some further walkouts defects. So for planning walkouts, about of began. Intelligence Thursday’s availability signs reports and the weather were It was that all would considered. four schools planned walk out about a.m. and the in Hazard Park. 9:00 students would meet
682 Garfield, described Lincoln He for Roosevelt and Schools High plans what at Belmont.” analyzed hapened It is that direct thus that the do not even claim apparent proof People walkouts, of the criminal disturbances were to involve planned, Further, it is evident that direct that peti- there is no peace. proof tioners, Razo, Munoz, Castro, Risco, were except Esparza possibly to to the of the walkouts. What directly have been proved parties planning claim, essence, do is: People 1. That other to have been were circumstantially proved petitioners in the and actions the walkouts their participants planning presence sites, at the walkout whether or behaved not illegally; they 2. That the nature of the be inferred from the readiness illegal plan may with which those some of who were or to circumstantially directly proved been have violated the law. planners
I do not with the quarrel of conventional proposition application methods cases evaluating proof People’s posi conspiracy supports 7 believe, I however, tion.* where the en conspirators admittedly in the exercise of gaged fundamental First Amendment stricter rights, standards of are called for and that proof illegal nature proof rest not on the conspiracy may circumstantial evidence entirely type relied here. demonstrations,
There can be no question fundamentally were, that is what the walkouts were real designed publicize grievances, or fancied. some hell was raised some Although undoubtedly as such hell-raising was not the participants, objective. entitled Though to all the a demonstration protections “pure speech,” legitimate exercise of First (Gregory Chicago, Amendment rights. U.S. 946]; L.Ed.2d S.Ct. Shuttlesworth v. Birmingham, 935]; Carolina, U.S. L.Ed.2d Edwards v. S.Ct. South 680].)8 not,
683 of laws for violations from clothe with petitioners immunity prosecution who are exer enforce, those the state even against which may legitimately 471, Louisiana, 536, L.Ed.2d 558 v. U.S. (Cox such cising rights. [13 379 Further,'the right to assem 486, 453].) 85 S.Ct Constitution speaks Florida, 39, v. 385 U.S. (Adderly ble There is no riot. peacefully. right Louisiana, 536, 149, 155, v. 379 U.S. 242]; Cox 47 L.Ed.2d 87 S.Ct. [17 Louisiana, 471, 483-484, 453]; Cox v. 379 L.Ed.2d 554-555 85 S.Ct. [13 559, 491-492, 476]; Cantwell v. 487, U.S. 563-564 85 S.Ct. L.Ed.2d [13 Connecticut, 1219-1220, 296, 1213, 60 S.Ct. 310 L.Ed. U.S. 307-308 [84 Davis, 900, 481, 486 Cal. 1352]; People 128 A.L.R. v. 68 Cal.2d [67 547, 651]; 845, Hoffman, 849 Cal. P.2d In 67 Cal.2d [64 439 re Rptr. Bushman, 97, 767, 434 P.2d cf. In re 1 Cal.3d 773-774
Rptr.
[83
375,
However,
727].)
463 P.2d
since we
with First
dealing
are
Cal.Rptr.
„
Amendment
rules .
rights,
.
prophylactic
suspect”
“[b]road
must be the touchstone in an area so
touch
closely
“[precision
regulation
Button,
415,
our most
(N.A.A.C.P.
freedoms.”
v.
371 U.S.
ing
precious
405, 421,
328];
438
L.Ed.2d
Circuit
83 S.Ct.
see also Interstate
v.
[9
Dallas,
676,
225, 230,
1298];
390 U.S.
682
L.Ed.2d
88
Ashton
S.Ct
[20
469,
Kentucky,
1407];
v.
486 L.Ed.2d 1116]; Shelton v. [14 364 U.S. L.Ed.2d 247].) [5 S.Ct. own As our Court said Kay, re Supreme recently Cal.3d quite course, 464 P.2d “We Cal.Rptr. recognize, 142]: ‘the because “threat of sanctions deter almost as as the potently ap ’ plication (Burton Municipal (1968) sanctions” Court 68 Cal.2d Florida, (Adderly 149, 157-158, ----” 385 U.S. 50-51 S.Ct 242] [dissenting opinion]. Kay, 930, 939-940, See In re also Cal.3d fn. 686,464 *9 684 721, 281]), restric [68 ‘constitutionally permissible be drawn
tions exercise . . . must rights of First Amendment upon awith ac narrow calculated to specificity expressive repression prevent (In Berry tivities as to re which restriction forbidden.’ is constitutionally (1968) 137, 273]; see, 273, 68 Cal.2d 436 P.2d e.g., [65 Cal.Rptr. (1965) Dombrowski L.Ed.2d U.S. 486-487 Pfister 28-29, 1116]; (1963) 85 S.Ct. Button 432-433 NAACP v. 405, 417-418, 328].)” L.Ed.2d 83 S.Ct. before on the exercise Finally, the effect of this discussing prosecution Amendment, it it is rights the First must be noted that guaranteed by which, view, immaterial the rule of circumstantial evidence in my vitiates this First prosecution, cases no quite universally having applied Amendment overtones. Given the can First no rule proper setting, escape Amendment an York scrutiny innocuous label. In New Times by bearing Co., Sullivan, 686, 700, 376 U.S. L.Ed.2d 84 S.Ct. 269 [11 said; “. Court . . Supreme neither compelled by precedent [W]e nor to more policy give any ‘libel’ than we have to weight epithet Button, other ‘mere labels’ state law. NAACP v. 371 U.S. insurrection, Like 328]. [footnote omitted] acts, unlawful
contempt,
advocacy
[footnote omitted]
[footnote omitted]
breach of the peace,
solici-
[footnote
obscenity,
omitted]
[footnote omitted]
business,
tation of
legal
and
various other formulae
[footnote omitted]
Court,
that have been
in this
repression
expression
challenged
libel can claim no talismanic
from constitutional
It
immunity
limitations.
must measured
standards
First
Amendment.”
satisfy
A remarkable
of how the First Amendment can reach
example
minutiae'
of rules
relating
criminal conduct where such
clash
proof
rules.
constitutional
protected
is afforded
recent
rights,
relatively
decision in
Spock,
United States v.
had
‘counsel,
aid and
conspired
abet diverse Selective
regis-
Service
fail,
trants to . . .
and
neglect,
refuse
evade service in the
forces of
armed
the United
and
States
all other duties
under the
required
registrants
Universal
rules,
Military
Service Act . . .
Training
regula-
tions and directions
made
to said Act . . .
. .
fail
duly
pursuant
.
and refuse to have in their
at all
personal
times their
possession
registration
certificates
. . . valid notices of classification
[and]
[footnote omitted]
. . .
conspired
[and
unlawfully, willfully,
to]
hinder and
knowingly
interfere,
means, with
administration of the Universal Military
”
F.2d
Training
(416
168.)
and Service Act.’
On
from the de-
p.
appeal
of the con-
ultimate objective
fendants’ conviction the court held
the draft—
and to
the war in Vietnam
opposition
spiracy—expression
both
objectives encompassed
but that the means of intermediate
*10
legal,
States,
v. United
on Scales
and illegal activity. Relying principally
legal
States,
v. United
782,
and Noto
203
L.Ed.2d
81 S.Ct.
U.S.
367
[6
836,
1517], the court held that
S.Ct.
L.Ed.2d
81
At the Government had introduced numerous statements by the trial is, course, standard claimed to be Such parties, coconspirators. practice States, 232, 236- (Paoli v. United 352 U.S. trials. procedure conspiracy States, 278, 282-283, 294]; 314 Carbo v. United 237 L.Ed.2d 77 S.Ct. [1 718, 737; 277, People Brawley, F.2d v. 1 Cal.3d 290-291 Cal.Rptr. [82 161, 361]; Code, 1223.) 461 P.2d Evid. was held to be This improper. § is not “The intent of one defendant in case such as this ascertained specific he has reference to the conduct or statements of another even though Cir., Silverman, 1957, 2 thereof. Cf. United v. 248 F.2d States knowledge 671; States, Cir., 1919, 141, meta- Enfield v. United 143-144. The 8 261 F. principle
static rules at direct with the ordinary conspiracy are variance (416 added.) strictissimi F.2d 173. Italics juris.” p. Spock The significance of to this case is evident. There it was the rule the First Amendment forbids mem who are knowing punishment persons bers of a which organization seeks to achieve its political objectives legal means, well as illegal as as do not share its unlawful long they purpose activities, and do not its unlawful which forbade participate applica (United tion a well v. established to the rule. States exception hearsay Robel, 258, 508, 513, 419]; Keyishian U.S. 389 262 L.Ed.2d 88 S.Ct. [19 York, 629, 589, v. Board Regents New 606-608 L.Ed.2d 385 U.S. [17 Russell, 642-644, 675]; 11, 87 S.Ct. v. 384 L.Ed.2d U.S. 17 [16 Elfbrandt 321, 325, State, 1238]; 500,511 Aptheker v. 86 Secretary S.Ct. 378 U.S. 992, 1659]; 1000, Board Public Instruc Cramp L.Ed.2d 84 S.Ct. v. [12 tion, 278, 275]; v. 368 U.S. 286 L.Ed.2d 82 Scales S.Ct. [7 States, 203, 782, 801-802, United 81 367 U.S. 229-230 L.Ed.2d S.Ct. [6 States, 836, 1469]; 290, Noto v. United L.Ed.2d 841- 367 U.S. 297-300 [6 Elkins, 228, 843, 1517]; 81 v. 389 54 L.Ed.2d S.Ct. cf. Whitehill [19 Bullitt, 184]; Baggett 360 L.Ed.2d 84 S.Ct. 88 S.Ct. v. 377 U.S. [12 Tucker, 247].) 1316]; v. 364 U.S. Shelton 479 [5 evidence, to a of circumstantial Here it is slavish adherence rule developed criminal which would violate the in an different altogether precept setting, 686 law which the exercise of free must unnecessarily speech, “chills”
fall. cases,
The rule is well known. It was ordinary applicable conspiracy summarized recently (1) as follows: “The elements of an conspiracy intent; (2) (3) agreement; (4) unlawful overt act. specific objective; (People Aday, 199]; Witkin, v. 226 Cal.App.2d Cal.Rptr. [38 Cal. (1963) 99.) Crimes of an be shown p. agreement existence Court, (Bompensiero circumstantial evidence. Superior Cal.2d 250]; Olf, P.2d People v. Cal.App.2d 390]; People Massey, 623,651 It is not Cal.App.2d necessary to show that the met to undertake the parties agreed actually *11 an of unlawful act or that had a performance they arranged previously detailed for its Massey, supra, 651.) execution. v. The plan (People p. done, assents parties bemay the act rela nature inferred from parties, tionship alleged conspirators, interests and other circumstances. (Bomp Court, 184; v. supra, Superior People v. p. ensiero Aday, 534; supra, People Massey, 652.)” v. p. supra, (People v. p. 490, Lynam, 261 202], added.) 502 Italics The Cal.App.2d Cal.Rptr. [68 for the justification rule is said to derive from the which attends secrecy Court, (Lorenson formation most Superior v. 35 conspiracies. 49, Cal.2d 859]; Hobson, 57-58 People P.2d v. 255 [216 Cal.App.2d States, 557, 320]; 561-562 Grunewald v. United [63 cf. 353 U.S. 931, 942, 402 963].) L.Ed.2d [1 Needless to say such circumstantial evidence is often consistent open interpretation quite with innocence.9 In the case that is no for not ordinary criminal reason giv such ing circumstantial evidence its value. A result of logical just probative a criminal often between con prosecution jury’s correct choice depends inferences. “. . flicting . law full is of instances where man’s fate [T]he is, on his as the estimates depends estimating rightly, jury subsequently it, some matter If his is he incur a degree. may judgment wrong, here; fine or a short he as incur the of death. imprisonment, penalty States, .” (Nash . . v. United 229 U.S. 377 L.Ed. 33 [57 780].) S.Ct.
Yet, involved, what is when criminal conduct is fre- permissible ordinary comes tested grief when the First Amendment. The entire quently against is, burden of a series of recent cases that amendment long very interpreting rule of law which the exercise simply, any unnecessarily discourages Osslo, People example 9For v. Cal.2d P.2d the circumstantial majority ample prove conspiracy, evidence was to be found more than dissenting justices suggestion while the three felt was even a that there “not there agreement an between the defendants that of them would commit a crime. (50 107.) p. . .” at . Cal.2d certain constitutionally pro- it dangerous engage free by making speech activities, must fall.10 tected California, Smith v. this clearest case
The approach exemplifying under a convicted had been Smith S.Ct. 215]. 147 [4 for a bookseller made a crime possess ordinance which it Los Angeles de- The appellate offense. Scienter was no element obscene books. Smith, 161 (People Cal.App.2d court affirmed.
partment superior courts de- 636].) “Until one of our P.2d It said: supreme Supp. otherwise, be constitution- that a bookseller may we are of the
clares opinion book in his store an obscene from ally keeping prohibited possessing obscene knows its not shown he convicted of so even though doing not, character, He adopt nor that he intends its sale. may impunity, ” bliss, (161 to wise.’ ‘Tis folly his rule of conduct: ‘Where ignorance statutes constitutionality 866.) court relied on Cal.App.2d p. food. deal, in adulterated however innocently,
which make it criminal to Schwartz, 1017]; People cf. P.2d People v. (See 775 [70 Cal.App.2d Vogel, 46 Cal.2d fn. 1 *12 Like court’s unimpeachable. the California
Logically position Amendment. the First food, is not adulterated obscenity protected States, 1498, 476, L.Ed.2d 1507- (Roth v. United 354 U.S. 485-486 [1 are, therefore, in 1508, 1304].) S.Ct. books and food 77 Filthy filthy same constitutional cold. convic- Court’s reversal of Smith’s
It was not that The Supreme simple. ordinance, as that the effect of ground interpreted, tion rested on unavailable to material would become was that constitutionally protected books not dare to sell any except because booksellers would public be obscene. Because impossibility those knew they personally of all of with more than small becoming percentage published acquainted be from material, thus withdrawn would writings constitutionally protected State, “The market. bookseller’s self-censorship, compelled virulent for less hardly would be a the whole affecting public, censorship books, it, of all the distribution Through administered. being privately California, (Smith obscene, v. both obscene and not would impeded.” 147, 205, 211, S.Ct. 361 U.S. 154 L.Ed.2d 80 develop has been major Warren Court conceptual 10“Another contribution of the regulation may run afoul communication self-censorship. ment of the idea A speech, but because directly at of the Constitution not because it is aimed operation may free trigger amount in effect consequences set which it of behavioral (Kalven, censoring . .” avoid trouble with the law. .
people themselves in order to “Uninhibited, Speech Wide-Open"—a and the Warren on Free Robust and Note Court, 289, 297.) 67 Mich.L.Rev.
688 Sullivan,
Smith was York Times Co. v. 376 much relied on in New 686, 705-706, 710, A.L.R.2d L.Ed.2d 95 278-279 [11 above, After court showed from the quoting 686]. passage excerpted untrue, relevance to its before it—the amount of freedom problem which the First Amendment about officials defamatory statements public “A the states to absorb into their libel laws. rule compels compelling of all his factual assertions— critic official conduct to truth guarantee and to do unlimited amount—leads so on libel judgments virtually pain truth, to a Allowance of the defense of comparable ‘self-censorship.’ defendant, the burden it does not false only on the mean proving will be this as an deterred. Even courts defense adequate speech accepting safeguard have recognized adducing legal the difficulties of proofs See, alleged Publishing libel Post was true in all its factual particulars. e.g., Hallam, Noel, v. Co. (CA6th 1893); F. see also Defama Cir. Candidates, (1949). tion of Public L Rev Officers Col deterred, rule, may be Under such a would-be conduct critics of official criticism, true voicing though believed and even their even it is to be from true, though proved is in it can because doubt whether fact expense They court or to make having to do so. tend fear of Randall, statements Speiser which ‘steer wider zone.’ far unlawful supra, 357 dampens U.S. at 526 The rule thus L.Ed.2d at 1473]. vigor and variety public limits the debate. It is inconsistent with Sullivan,
First and (New Fourteenth Amendments.” York Times Co. A.L.R.2d 376 U.S. S.Ct. added.) Italics 1412]. a limitation The court malice” as held short of “actual nothing n
on the right to criticize a official give would the exercise public of First *13 Amendment rights “breathing it needed space” to survive.
The same fear of where “discussion of self-censorship affairs is public concerned” led ato constitutionally mandated redefinition of the concept of malice in Louisiana, criminal (Garrison defamation statutes v. 379 U.S. 125, 64 L.Ed.2d 209]) Hill, [13 85 S.Ct. and to the rule of Time v. 385 456, U.S. 374 L.Ed.2d 534], S.Ct. [17 87 that a state could base not in a liability so-called “false light” privacy case11 mere “Fear negligence. large damage verdicts in merely suits innocent negligent or misstate ment, even the expense defense, involved in inevitably their must fear of publishers cause zone,’ to ‘steer . wider . . New York unlawful Sullivan, Times Co. v. U.S., 376 at 706, 279 L.Ed.2d at [11 95 A.L.R.2d 1412]; Randall, see Speiser also v. 513, 1460, 357 U.S. 526 L.Ed.2d [2 1472, 1332]; California, 78 147, S.Ct. Smith v. 361 U.S. 153-154 [4 Prosser, Privacy, 383,
11See 48 Cal.L.Rev. 398-401.
689 danger legiti- 205, 211, 215]; thus ‘create the L.Ed.2d 80 S.Ct. Randall, supra, penalized.’ Speiser
mate utterance will be v. 357 U.S. Hill, 374, at (Time v. 385 U.S. 389 [17 L.Ed.2d at p. [2 1473].” added.)
L.Ed.2d Italics 87 S.Ct. the state that the conduct which not matter theme does plain: what the First itself civilly, or not criminally purports penalize, on the Con effect of such sanctions Amendment is the protects—it in the Constitution Nothing scrutinized.12 stitution’s which will be promises sale, with obscene books for such—the freedom to protects—as possess Georgia, U.S. Stanley (Cf. v. without of their contents. knowledge Klor, 816, 542, 1243]; 820-821 L.Ed.2d In re Cal.2d 89 S.Ct. [22 903, innocent 791].) Yet we cannot penalize for sale does because a value which the Constitution possession protect enthusiasm for Nor, become was it the loser. one may suppose, enemies which to utter one’s right falsehoods about negligent political such of the First Amendment. Yet we immunize prompted adoption “uninhibited, robust, debate on right in order to and wide-open” preserve Sullivan, 270, (New issues. York public Times Co. supra, 376 at pp.
279, 700, rights fn. 706].) L.Ed.2d those “Without peripheral Connecticut, would 381 U.S. specific rights (Griswold be less secure.” 479, 510, 514, 1678].)13 12Threats to the free exercise rights of First Amendment many work miracles in areas of the law. Thus in v. Selective Service Local Board No. 372 F.2d Wolff general rule that federal courts would not review Selective Service classifica tion to be except orders prosecutions in criminal or in corpus proceedings habeas was held inapplicable because plaintiffs the reclassification of had resulted from their participation protest demonstration to American involvement in Viet Nam. “. . . . The effect of the immediately reclassification itself to curtail the exercise rights. of First (372 823.) Amendment . . .” p. Similarly F.2d at in National Student Hershey,
Association v. “chilling 412 F.2d effect” aof directive from Hershey General to all System members of the Selective Service created a “case or controversy” meaning Constitution, within the of article III of the where otherwise directive, there would have been fication of broadly speaking, none. The authorized the reclassi registrants who were participated illegal found to have demonstrations. substantively, More keeper “naked title” a shop privately over a owned side walk, does deprive public rights “members of the of their to exercise First Amend privileges” Lane, ment privately (In on such owned re property. 71 Cal.2d Cal.Rptr; 878 [79 457 P.2d *14 “specific guarantees 13The Rights penumbras, Bill of have formed emana guarantees tions give from those help (Griswold that them life and Con substance.” v. necticut, supra, p. 514].) 381 U.S. at p. 484 at Supreme L.Ed.2d The Court has [14 a variety metaphors used thought of express speech that free must be “over protected Kalven, order to .assure it underprotected.” is not The New York Amendment,” Meaning Times Case: A Note on “The Central The First 1964 Of 191, Sup.Ct. 213.) Sullivan, 58, Rev. Thus in Bantam Books v. 372 U.S. 66 [9 584, 591, 631], L.Ed.2d speaks larger 83 S.Ct. it principle of “the that the freedoms expression ringed added.) of (Italics must be adequate about with bulwarks.”
690
rights recognized by the
Court are
peripheral
not merely
Supreme
substantive. Thus where the
of a search warrant
is the
object
seizure of
materials,
obscene
allegedly
which would
the seizure
procedure
satisfy
of gambling
or contraband
defec
paraphernalia
constitutionally
liquor
Warrant,
(Marcus
v. Search
717,
tive
1127,
367 U.S.
731
L.Ed.2d
[6
Kansas,
1135-1136,
A Quantity
1308];
81 S.Ct.
see
Books v.
also
378
of
205,
U.S.
809, 813-814,
211-212
L.Ed.2d
1723]);
84
[12
S.Ct.
ex parte
orders, for which
is a
restraining
in our
have
place
“[t]here
jurisprudence,”
“no
within the area of basic freedoms
place
First Amend
guaranteed by
(Carroll
Anne,
. .
.”
v. Commissioners
Princess
ment
burden on a proof particular party—generally a matter of consti- tutional concern--~vitiated a scheme for withholding tax from exemptions who advocated the persons overthrow the government by force. “The vice that, where present procedure speech falls close particular to the line the possibility unlawful, the lawful and the mis- separating factfinding—inherent taken in all litigation—will create the danger the legitimate utterance ... It can result in a will penalized speech deterrence which the Constitution makes ‘It is apparent free.
a constitutional cannot be prohibition transgressed the crea- indirectly by tion of more statutory than it can be violated direct presumption enactment. The to create is not a means of power presumptions escape Alabama, Bailey from constitutional restrictions.’ U.S. 239 [55 Randall, (Speiser L.Ed. supra, 145].” at added.) p. Italics p. *15 of area decisions
It that in the First Amendment is thus apparent bound, are such as ours compel which courts both tribunals high by than exacting criteria far more of substantive procedural application the Bill of Rights. of on us by enjoined pertinent provisions specifically does not show law, state If a state as enforced by procedures, applicable Maryland, (Freedman v. “the to freedom necessary sensitivity expression” 51, 649, 653]), (See fall. supra, Monaghan, L.Ed.2d must 380 U.S. Process,” 518.)14 Amendment “Due Harv.L.Rev.
First when, a rule application we that necessary sensitivity Do show a vzay evidence, statute in use the general we conspiracy circumstantial demonstration constitutionally of a protected which makes organizers derived solely on evidence based liable to be convicted as felons on charges inclined draw demonstrators, feel should jury from the conduct of innocence? than those rather guilt support inferences pointing demonstrations, as bar, sure, To be in the case at inference their conduct, to several involved rests as illegal petitioners planned, however, remains, fact The illegal acts at the sites walkouts. own agreement at the is directed that—in at least—this theory prosecution demonstrate, risk erroneous themselves. The the demonstrations occurring long to conduct evidence relating circumstantial interpretation to any as as is just great, been completed after the crime has charged his accused, subject the conduct misinterpretation whether particular of mistaken fact- The “possibility own or of another demonstrator. A Speiser. fortiori in the context far here than
finding” greater seems should fail. prosecution
It is not to dwell at necessary length on for unfairness in potential in every herent trial. That has been treated conspiracy thoroughly subject States, (Krulewitch 790, elsewhere. v. United 336 U.S. L.Ed. Jackson, J.); S.Ct. Grunewald (concurring opinion 716] States, 931, 943-944,
United 353 U.S. 404-405 Falcone, 963]; 581; O’Brian, Loyalty United States v. F.2d Association, 600; Tests and Guilt King, 61 Harv.L. Rev. America, Organized 52, 60;
Control People Crime cf. Stan.L.Rev. area, Monaghan’s that, 14It is Professor thesis the First Amendment “[Supreme] placed upon requirements Court due process has little reliance amendments, directly to the first
the fifth and fourteenth but instead has turned has, example, sharply It circum amendment the source of the rules. ... demonstrations, enjoin arguably mass power protected scribed of state courts to availability increasing to restrict has shown an reluctance [footnote omitted] cases, prospective even held that in first amendment has omitted] relief [footnote magnitude first proof litigation the burden of rules tax of constitutional when 518-519.) (83 at stake. . amendment interests are . .” Harv.L.Rev.
692 Bartlett, 995].) It is sufficient to Cal.App.2d [314 of summarize fonts possible injustice:
(1) trial in in which a jurisdiction a a particular possibility foot, as a act was defendant never have set overt may long coconspirator’s in that done jurisdiction;15
(2) rule The automatic16 to the hearsay exception application admits, a furtherance of which him declarations of “in against coconspirator of the made before or while the accused was object” partici- conspiracy after not to be admitted until in it. Such declarations are pating supposed Justice Jackson out: but as points independent proof conspiracy, for a judge order of a is difficult charge so sprawling proof “[T]he matter, is confronted with control. As a the accused often practical never have which he may of acts and statements others hodgepodge by about, authorized or intended or but which persuade even known help words, of existence of the itself. In other jury conspiracy conspiracy assumption often is only evidence is admissible proved upon be effects can existed. The naive conspiracy assumption prejudicial States, 332 United overcome Blumenthal v. by instructions to the cf. jury, fiction. all to be lawyers unmitigated know practicing . . .” 336 U.S. at L.Ed. p. p. 799].17
(3) The that in a psychological trial reality against a number of con- a weak case spirators, against one defendant will be strengthened a mass of evidence relevant to his “. . . co-defendants. There will generally be evidence It wrongdoing by is difficult somebody. individual to make his own case stand its on own merits in minds of who are jurors ready believe that birds of silent, are flocked If together. feather he is paragraph 15The last of section 182 Penal Code reads as follows: “All cases conspiracy prosecuted be superior any and tried county court of which tending overt act to effect conspiracy such shall be done.” 16Although Code, section 1223 of the Evidence which exception, embodies this is applicable charged Morales, even (People if the crime conspiracy not Cal.App.2d ing 402]), Cal.Rptr. may may or play, depend not come into conspiracy incidentally Where, however, whether not a proved. very charge is conspiracy, part of the application foundation for the of section 1223 must necessarily proved, if the defendant tois suffer a conviction. recognition 17In of the fact many conspiracy that in trials impossible, it is as a matter, practical prima proof received, demand conspiracy facie of the before evidence of coconspirators’ extrajudicial statements is section 1223 Evidence Code expressly permits court, discretion, trial its to allow such declarations to independent received proof before conspiracy has been introduced. The Cali practice, fornia Code, enshrined in sections 403 and 1223 of the Evidence does require even the trial court to finding make its own fact of the existence of a con spiracy, jury permitted before the “hodgepodge to hear the acts statements People Brawley, others.” See Cal.3d 290-291 461 P.2d 361]; States, cf. Carbo v. United 314 F.2d 737. *17 can be if, co-defendants as often happens, it and is to admit he taken other, each other. convict they each contradicting accusing into prodded charge a against in defending difficulties are many There practical L.Ed. at (336 U.S. [93 I not enumerate.” p. which will conspiracy 800].) at p. the con- of occasional protests fact that in
(4) undeniable The spite 363]), the P.2d (People Rodriguez, v. trary Cal.App.2d the evi- sufficiency of the assessing in extremely been liberal courts have agree- the dence, underlying conspiratorial with respect particularly Harv.L.Rev. Conspiracy, 72 the Law—Criminal (Developments ment.
920, 984.)
(5) The stark fact of vicarious for criminal acts liability coconspir- ators “within the reasonable and the common probable consequences Kauffman, 861]; (People unlawful design.” Cal. P. Smith, People
see also 63 Cal.2d 793-794 acts, which, such, These as never have been con- may may a member of
templated particular conspiracy.18 Just how insensitive a the conventional can tool conspiracy approach be in a case as the is People’s such one at bar illustrated one distur- own in this case. that arguments Answering petitioners’ point which, bances during walkouts were peti- spontaneous unanticipated, fact monitors from various urge, they tioners is that recruited proved “12,300 students at local colleges, argue: sympathetic People groups students discounting were enrolled at four schools. Even who high students would be absent normally given day, monitoring on any a would be tremendous Inherent in such a scale was large job. operation of school since total success would leave certainty disruption schools without a result in agitating students and walkout would partial in order to achieve total unity. non-participants solemnly silently anticipate
“To students walk out would they like were procession rather than behave football if funeral stu- anticipated quite likely It was game would have been unrealistic. (Italics monitors.” suggestion
dent behavior one reason added.) true, the con- but it lead? may Only
This where does perfectly students school high a demonstration organizes clusion who anyone felony trial on a he to stand takes a chance that have inevitably means, if, coconspirator justifies 18Thus an idealistic belief that the end signs, all upon burglarize yard picket takes it himself a lumber to steal lumber for burglary. the conspiracy guilty members of student charge moment misbehavior reaches misdemeanor proportions, regardless fact that direct no that such misbehavior testimony proves was planned.19
The is not of this argument illogical. vice People’s very prosecution, Amendment, when measured the dictates of First that it against Therefore, not. one organizes unless say anyone who prepared *18 a high demonstration the risk their school students assumes of mis- behavior, it must be that the First Amendment prohibits conspiracy prose- demonstrations, cutions this area where the case that the as People’s means, involved on evidence. illegal rests circumstantial planned, entirely mean, course, This not if inevitable that high does of that even it is demonstrate, school students must be will violate section 415 if they they of state can do so without fear permitted punish punishment. them that and those who aid and abet as under misdemeanants them section, and, if is the Legislature the evil to be can thought sufficiently grave, Under the law declare the acts 415 to be felonies.20 by section prohibited before of the be need not wait for crimes to attempts police completed in; the “con the the evil they can but to reach step People’s attempt instrument,” (In re route is “too blunt an spiracy-circumstantial evidence” narrow, Berry, supra, the kind of 154) specific Cal.2d which the First Amendment demands. weapon not,
One however, need think situations to illustrate hypothetical effect inhibiting in this conspiracy concept area. Con- particular sider the evidence adduced against J. Patricio Sanchez: petitioner
There no direct evidence this in the petitioner participated planning demonstrations. Soon after the first one had started at Garfield School on March he High arrived by automobile. He opened trunk and which, Luce, distributed he signs told an picket Father had Episcopal been left over priest, from another demonstration which had taken “Gee, Father, October He place 1967. said is great.” this The next he was seen day driving Roosevelt where past High School no 19Logically argument this also leads persons result that soon as two have agreed organize high demonstration school students one them has placed a telephone monitors, call the purpose engaging have a People prima facie case conspiracy. approach 20Such an comply would with the requirement that in Amend the First area ment laws must be “couched accomplish narrowest terms that will objective pin-pointed permitted by constitutional mandate and the essential needs of public (Carroll Anne, order.” v. Commissioners Princess 325, had Vigil time, although petitioner at the took place demonstration the school. to leave 15 students 10 to encouraged previously this little evidence which force
Although ridiculously seems any- I under say answer cannot felony charges, one to applicable conspiracy arrival signs is not Sanchez’ with enough. picket may prompt principles his in the be as some evidence of participation planning interpreted demonstrations. The fact other whose at the petitioners, presence did violate similarly again demonstration section may interpreted, of that some evidence that the did commission encompass planning course, Although, crime. none these inferences compelled trial, net could rebutted at a effect that a who easily merely person others, joins foreknowledge demonstration started by apparent charges that it was take be held to answer be- felony place, simply mis- encourage cause others with similar commit foreknowledge apparent demeanors demonstration. during *19 sure, Ameri-
To be as we witnessed the few during years, many have past One cans are not the a intimidated of conspiracy prosecution. possibility demonstrations, cannot about of reading many without open paper the It legitimate nothing. which exceed bounds of dissent. This proves California, supra, that even Smith v. 361 U.S. safely before supposed 147, decided, willing who were to there were booksellers in California take the a court find to be might risk of unread books which later selling however, Amendment, are obscene. The First those who protects law, or of too care. Our foolhardy or those ignorant contemptuous desire to within the sincerely concern rather be those who stay should law, while their rights. constitutional fully exercising with the of even familiar Anyone vaguely
This is the nub the problem. law must soon substantive and characteristics of conspiracy procedural all of our of which—in system spite realize there is no crime in our guilty; can so found easily innocent procedural safeguards—an person so where his freedom legal depends that there is no situation comparable he has no con- of others over whom on the deeds and words precariously gymnastics mental trol, ability on of juries perform impossible based on am- fact-finding of of on the fortuitous outcome memory,21 feats unrelated short, factors on quite circumstantial evidence—in biguous offers crime of no other actual, existence guilt. the issue personal which is “that unquestionably one’s behavior to such rewards for limiting court, prob Bufalino, speaking 21In United States F.2d indulged case, long says: have typical conspiracy in a “Courts lems encountered evidence and assess such jurors properly can supposition the somewhat naive .” many . . guilt defendants it the individual of each determine from York, (Keyishian Regents supra, v. Board safe.” New 385 U.S. 629, 644].) Yet are grievances when laid before the being exercised, when the basic of a free
government, being most rights people when, Cardozo, surely is not time Justice timorous paraphrase Co., Steeplechase Amusement stay (Murphy must home 250 N.Y. 173]), stomach for they N.E. because have no entrusting simply
their and the of their families to well-being freedom personal support the uncontrollable acts of and the chanciness of others prosecu- conspiracy tions based on circumstantial evidence. the effective exercise of First rights relating
“When Amendment court must regulation, weigh speech impaired governmental extent of against both the of the governmental impairment importance interest and the substantiality the threat which forbidden speech Angeles related Teachers Union v. Los (Los to that interest.” activity poses Education, Angeles City Board Cal.2d
455 P.2d vital of the People No one can interest deny pre- Bushman, In re venting offensive tumultuous conduct as defined in supra, 1 I that if committed Cal.3d 773. reiterate petitioners been tried and acts disclosed to should have grand jury, punished they However, of a for them. effect of balancing chilling possibility evidence con- against based circumstantial conspiracy prosecution stitutional rights, unfettered Amendment an exercise First imperative *20 additional the of that compels availability conclusion that value of the extent of in the is weapon outweighed by arsenal of government of freedoms. impairment protected 16, In v. Selective Service Local Board 817, No. 822, 372 F.2d Wolff the court was of freedom of speaking which it speech assembly, rights called “the most the most yet perishable, vital preservation American democracy,” when said: “. . . Historically, these preferred rights have paramount come continually under attack from the best intentioned sources. And once the erosion of rights these is permitted it is begin, difficult to halt exceedingly and the intervening damage bemay Who, . .”. irreparable. with the above in argument People’s quoted mind, would dare to forward and or organize demonstration step parade who, by high so, school students? Or if he to do courageous enough will increase his or visibility by recruiting monitors22 order by keep for The Damoclean sword of a applying any necessary conspiracy permits? interesting 22It is People note use very petitioners that fact that had employed monitors evidence of criminal intent.
697 designed very measures taking thus discourages charge actually directed. the evils which this prosecution prevent this count It on XVI suggested prohibition prosecution cir shown for the reason that illegality conspiracy rests an direct and cumstantial evidence artificial distinction between to the law. The would be suggestion evidence unknown circumstantial where the law makes a vital distinction incorrect. There are other instances One is the United direct and circumstantial evidence. in States between III, 3 Constitution itself which that no one bemay demands article section two to the convicted treason “unless on the of Witnesses same Testimony Code, Const, I, 20; 1103.) (See . . overt Act .” also Cal. art. Pen. § § States, 1459, 1441, 65 1, v. L.Ed. Cramer United 325 U.S. 31 S.Ct. [89 effect is one the court that the “constitutional requirement explains also, (See v. of direct rather than circumstantial evidence.” Kawakita United States, 717, 1267, 950]; 1249, Haupt v. 343 U.S. 742 L.Ed. 72 S.Ct. [96 States, 1145, 874].) 631, 1153, United 640 L.Ed. 330 [91 there is either Then general proved requirement perjury witnesses, corroboration. direct of two one witness testimony plus 2040, 273.)23 (7 (3d 1940) It is some Wigmore, Evidence ed. p. § this given that one of the for significance generally require explanations ordinary ment in cases is that an perjury quantum application witnesses— would the witness stand too honest dangerous make proof make their- words, “chill” forward and in other their to come willingness States, 606, (Weiler United 323 U.S. contribution to the search for truth. v. 496]; People also 65 A.L.R. see L.Ed. S.Ct. 156
O’Donnell, .714]; People v. cf. P.2d Cal.App.2d Roubus, 865]; Cal.2d Giacomo, 221-222 [53 Cal.Rptr. Di
People Cal.App.2d dimen- a distinction of constitutional Lastly, other contexts although rather based case circumstantial sions on whether the state its proves this validity in direct would it has than evidence seem specious, peculiar *21 aof organizer It is the area. one for the law to thing say prospective if a or found a felon demonstration he is liable to be that peaceful false a criminal agree- with direct evidence of mistaken witness comes forward be content and must danger is to that Every constantly subject ment. person Code, 1103a, (Pen. § as requirement 1969. 23This effect in California until rule, 533.) Taking the it by prevalent added Stats. ch. heed of criticism 1.) 1103a, (Pen. Code, by Legislature. § ch. § was modified the 1969 Stats. Legislature blurring between that distinctions appears fact our to "favor a the The point, does affect our that perjury direct and the area not circumstantial evidence in point present that validity. areas it in other it has continued Nor is material (People except at trial level. application 1103a held to no section has been have Poe, Cal.App.2d 391-392 [71 with the of constitutional hope array safeguards available to one accused of crime will an conviction. Even is unjust who prevent person in an engaged the First Amendment activity may legitimately protected to act in the that confrontation cross-exami- required expectation least, will, nation false accuser create a reasonable doubt—a extent, which should to some offset probability practice pressure hand, cannot On other one confront cross-examine self-censorship.24 an inference drawn can offer evidence from circumstantial evidence. One which, believed, it, inference, if one one can against can destroys argue that court’s instructions will cause not cautionary jury hope so, draw it—but that is it chooses courts all. If nevertheless to do appellate to do about it. where anything People’s powerless Unquestionably evidence, case rests on circumstantial the risk an con- entirely unjust greater. is It the risk which has a sufficient viction is increase in to induce a which tendency undesirable constitutionally self-censorship, causes the It “insensitive” a tool. must present be too prosecution the First rights remembered that in areas which do touch not protected Amendment, do not restrict the state no to it that has to see duty persons if their the contrary, conduct to that is safe.” On which “unquestionably fear of will cause convictions based circumstantial evidence unjust people of hav- to conduct even themselves so do not they give appearance behind the First crimes, committed ing so much better. theory Amendment, earlier however, If cases cited not is merely permissive. not mean is speech just for the free anything, they stand proposition actively to be is a national goal tolerated—on grudgingly contrary, nurtured and encouraged.
It reasons indicated that I believe this to be con- prosecution invalid stitutionally to count XVI.25 respect outset, 24As noted at the petitioners claim that the concept conspiracy entire prosecution in this area “chills” the rights. exercise of First Amendment As the text preceding indicates, this footnote disagree. I take example: To an extreme what con ceivable right constitutional violated People if the prove can their case a properly authenticated sound picture meeting motion film persons plan of a where a demon which, planned,
stration tois include the peace? commission of disturbances of the 25I do intend lengthy not to take issue Reppy’s persuasive with Justice It is dissent. appropriate, however, agree am, to indicate we where we and where differ. I course, in entire sympathy concerning with his sanctity views of the educational process and I think that sufficiently I have my personal dislike for a method indicated publicizing grievances which inevitably involves serious interference with the rights of students grievances who do harbor these or who do not wish to air them right then, to be pursue differ, left alone to their Where Reppy studies. Justice and I believe, granting I in this: the impropriety of the by petitioners, method chosen *22 still the purpose legitimate ultimate the of walkouts was a of exercise First Amend rights. further, ment Granting argument, least sake of that for the there is direct evidence the that inevitably disrupt walkouts the process would pos- educational
Conspiracy XV to Disturb a Public School—Count the of the writer is Justice Justice joined by part opinion this Reppy. concurs in the result. Stephens of the Code is overbroad.26
We hold that section 16701 Education . . . rests substan “The of overbreadth on of principles concept individual freedoms. due which forbid the certain prohibition tive process statute, the given . . is the its normal language . issue whether [rfhe is to conduct so broad that its sanctions meaning, may apply protected 938, 951.) (Landry Daley, the v. Constitution.” F.Supp. United Court
There is no need to cite a
States
phalanx
Supreme
because
free
is no less
for the
that
protected
authorities
speech
proposition
to
that
If
were limited
pleases
it “disturbs.”
First Amendment rights
speech
be un-
listener,
the
would
immunity
constitutional
tranquilizes
sibly
by section
prohibited
involve the commission
other
those
of crimes
than
rale, believe,
constitu-
petitioners may attempt
it still is
I
that
to demonstrate the
rights
infirmity
by relying
of others
prosecution
tional
of this
on the First Amendment
exception
might
brought
who
to
into court
cleaner than theirs. This
with hands
“standing”
area that
the usual need for
is so well established in the First Amendment
Court,
string
(See
no
61 Cal.2d
ent
of citations
to in Canon
Justice
is needed.
authorities referred
428].)
entirely
an
differ-
would be
It
charged
to violate the various laws
conspiring
if
petitioners
matter
had been
Therefore,
right my
they
if I
funda-
referred to in the
mental thesis—that the
were not.
am
dissent—but
organizers
of a
cannot be convicted
con-
demonstration
particular
solely
spiracy to violate
based
inferences drawn from
conduct
laws
on
organiz-
seems to me make
that these same
of the demonstrators—it
no difference
out,
example,
violating
point
also
laws. I would
for
that
ers were
appellants
bent on
other
Randall, supra,
Speiser
necessary. objects Supreme . . inevitably encourage^ Court which has said: “. Free conflict speech is often rocks boat. indeed the individual who at some Phlegmatic .time not of free Annoyance has recoiled at exercise others. speech inconvenience, however, our a small price pay preservation Dist., (Wirta . .” Costa most cherished . v. Alameda-Contra Transit right. 51, 430, 982].) 68 Cal.2d 62 434 P.2d Cal.Rptr. [64 walkouts involved disturbances schools in Unquestionably has every right narrowly which question Legislature prohibit by drawn area of statute aimed at the evil “within the allowable specifically Alabama, 1093, 88, (Thornhill state control.” v. 310 L.Ed. U.S. [84 97 1099, 736].) however, 60 S.Ct. First Amend Again, “[b]ecause survive, ment freedoms breathing government may regulate need space Button, 415, area only (N.A.A.C.P 371 with narrow v. U.S. specificity.” 405, 418, 328].) 433 L.Ed.2d 83 S.Ct. [9 least,
It is immaterial that some to have created petitioners, appear disturbances which the the schools. against right state has every protect
..
Where
statute is attacked on
Amendment grounds
First
court is
not limited in its examination to the
statute
application
.the
case,
involved in the
but
other
applications
consider
particular
possible
Com., ante,
625,
(Fort
of the statute.
v. Civil Service
331
p.
Cal.Rptr.
[38
Alabama,
385];
1093,
392 P.2d
Thornhill v.
L.Ed.
60
701 it affirmatively, be answered this must demonstrating that Before question a which have to be decisions put well note that there not to do appear Further, to at it would be futile the section. gloss narrowing judicial U.S. 451 Jersey, 306 v. New this In Lanzetta do so in to opinion. tempt under an convicted defendants were 888, S.Ct. L.Ed. 59 [83 state Supreme After their conviction state statute. vague impermissibly case entitled in a to statute definitiveness tried to more give Court had said, Court The Supreme A. Gaynor, N.J.L. 582 360]. v. 119 [197 State utterance that, judicial in advance “It would be hard hold however: challenged to understand were bound subject, [appellants] upon (306 U.S. p the court.” by later used to the according language provision . is vague a statute 892].) challenged Whether the vice of 456 L.Ed. at p. [83 a mirroring vice of The overbreadth, no difference. should make or ness handed yet not definition narrowing conduct a against judicial defendant’s post ex the law is to him same: as at the time of crime alleged down 894, Columbia, 347, L.Ed.2d 353-354 U.S. (Bouie City v. 378 [12 facto may what he warning fair 899-900, and he has not had 1697]) 84 S.Ct. in the rule has quite Court do. United States Supreme applied The (Shuttles both. or overbreadth involving vagueness, cases
discriminately in 162, 147, L.Ed.2d supra, U.S. 153-155 Birmingham, [22 394 worth v. 111, L.Ed.2d 121-122
168-170]; Gregory
Chicago, supra, 394 U.S.
[22
v.
U.S.
Kentucky, supra, 384
v.
134,
Ashton
(concurring opinion);
141-142]
U.S.
Birmingham, 382
469, 471];
195,
Shuttlesworth v.
198
L.Ed.2d
[16
211];
City
179-180,
Bouie
87,
176,
L.Ed.2d
91-92 [15
Columbia,
894, 899-900].)
If
supra,
378 U.S.
352-353 [12
decision, a
fortiori
judicial
the statute cannot be saved
an
intervening
cannot
case under consideration
construction
the very
narrowing
told at
been
he
have
defendant that
should
to the
which
convey
adequate
time of his
act.27
criminal
alleged
We
now turn
the statute. Unless we were to
that it is
say
vague—
which would
dispose
is indeed broad. The defined
problem—it’s sweep
victim is a
school.” That
“public
presumably
buildings
encompasses
such,
as
which can
grounds
“disturbed”
surely
certain
activities
well as the
are in
who
occupants
and on the
buildings
grounds
pur
to which these are devoted. The word
“disturb” itself
refer
poses
conduct
victim,
as well
objectively
as conduct
disturbing
to the
disturbing
addition,
statute,
though
“wil
objectively placid.
word
fully”
merely
commit the
and al
“implies
act
purpose
willingness
intent,
does not
though it
an
it
evil
knows
require
implies
person
what he is
intends to do what he is
doing,
(People
free
doing
agent.”
Justice Reppy’s concurring
respect
significance,
27See also
connection,
opinion with
to the
in this
Kay,
142].)
of In re
is thus
have “wilfully
United States
Court must
apparent
Supreme
disturbed” the
Brown v. Board
schools affected
its
public
holding
Education,
L.Ed.
S.Ct.
tutionality Chicago persons reading part in make, noise, aid, who shall or countenance assist in making any improper riot, disturbance, of breach of the to a breach the or diversion tending peace limits within the of . . . of disorderly the shall deemed peace, guilty city ordinance, conduct . . .” of the the the of portion “disturbance” Speaking court said: “Also or countenancing assisting making, aiding, proscribed of the a ‘disturbance’ which Webster defines in as ‘an inter- making part a state with a of of or or ‘an interference ruption peace planned, quiet,’ Again vague ordered this is both too or state or habit.’ regular procedure, and as as The exercise legitimate well overbroad. of of freedom indefinite speech, interrupts peace quiet or a or or press expression frequently state of or planned, regular procedure, with a ordered state or habit. New interferes ideas disturbances, very yet purpose than not the more create often of con- First Amendment stimulate the creation dissemination new is to of cepts. The or a disturbance would against making countenancing prohibition make it a to deliver an which results in a crime literally speech unpopular a ‘disturbance’ or to someone else makes such This is stand while speech. (280 at an invalid restriction of clearly rights.” F.Supp. pp. protected 970-971.) (Italics added.)28
It takes little to show that imagination exercise of purest of right free come within may speech meaning section 16701. To use the same Landry court in Daley, example supra, 971: what F.Supp. about a lecturer who a guest paints gloomy picture prospects peace Vietnam tells the students that all will have to boys there eventu- go or that it is ally inevitable that the conflict will and that we shall all spread in an atomic perish what or about a explosion; student who in a politician advocates the campus abandonment speech of American form of govern- 28The say: court went is, on to “The distinction between ‘disturbance’ and ‘riot’ course, very relevant. assemblage Webster defines latter as ‘an or three more persons public place in a for the purpose accomplishment by concerted action disorderly turbulent and purpose irrespective manner common the law purpose.’ Nothing fulness of the or here said or imply making intended hold aiding assisting or though to cause riot not be proscribed even the actions taken merely consist in the exercise First Amendment freedoms if the words spoken or written or actions taken under the circumstances constitute a ‘clear and present danger’ will requisite that a riot result and the intent to cause a riot present. (280 F.Supp. 971.) . . .” p. to say, nothing opinion Needless in this takes issue with these views. Huss, (People Cal.App.2d of Nazism? glories
ment and extols
court
no
surely
It will
do to say
366-370
are,
that,
they
or
if
covered
the statute
would
that such matters
hold
answer, that were an
If
that extent unconstitutional.
is to
statute
need to legis-
and there would
no
of overbreadth is illusory
entire concept
invalidat-
Court’s cases
most of the
late with “narrow specificity”;
Supreme
have to
would not
federal
of overbreadth
state or
statutes on
ing
ground
Tucker, 364
Shelton v.
have been written.
will suffice: In
Two examples
a state
statute requiring
488 [5
down
struck
affiliations was
teachers to file affidavits
associational
disclosing
some
had “no
because it
associations
possible
disclosures
required
court
fitness.”
teacher’s
bearing upon
occupational competence
*26
teachers,
their
at
It did not
the statute as a whole.
require
struck down
to
be
to
what associations
could
they
constitutionally
required
guess
peril,
State,
992,
L.Ed.2d
Aptheker
Secretary
disclose. In
v.
tinguish organiza- members was tion of the fact that it and those who did not. It was struck down in spite of the Com- conceded that the involved were leaders appellants top-ranking munist Party.29 Pfister, v.
The entire
in Dombrowski
summed
neatly
problem
up
479,
“A crim-
supra,
22,
380 U.S.
as follows:
486-487
28-29]
im-
inal
under
involves
usually
a statute
prosecution
regulating expression
full exercise
that themselves
inhibit the
ponderables
contingencies
may
California,
See, e.g.,
of
restrictions on free is such cannot and its construction, provi operation by undertake to eliminate its severance invalid before entirety regardless particular sion is void its of whether the conduct clause regulated severability court could be and whether there constitutionally 88, Alabama, supra, (See, 96- applicable provision. e.g., 310 U.S. to the Thornhill v. 643, supra, 1093, 736]; Blaney, 1098-1100, re 30 Cal.2d [84 L.Ed. In Commission, 331, 892].)” 339- (Fort 61 Cal.2d v. Civil Service 655-656 [184 137, 385]; supra, 156- Berry, Cal.2d also re 392 P.2d see 157.) . . . of sanction's. deter almost as actual application potently Button, (N.A.A.C.P. 433.) . . .” of the sensitive Because U.S. v. that all we have not nature of constitutionally required protected expression, of those to risk to test their subject rights. overbroad regulations prosecution For free value all and not merely transcendent expression—of society, Louisiana, those v. their Cf. Garrison exercising rights—might loser. For allowed attacks on 379 U.S. 74-75. we have example, consistently statutes attack broad with no overly requirement person making drawn demonstrate that his own conduct could not be statute regulated by Alabama, with the v. narrow Thornhill 310 U.S. requisite specificity. Button, 97-98; 432-433; Secretary v. supra, Aptheker N.A.A.C.P. cf. v. at
State,
21-22,
500, 515-517;
Raines,
United States 362 U.S.
We have fashioned this
to the usual rules
see
governing standing,
exception
Raines, supra,
United States v.
because of the ‘. . .
danger
tolerating,
freedoms,
area
First
Amendment
existence
statute sus
penal
Button,
supra,
N.A.A.C.P.
ceptible
sweeping
improper application.’
otherwise,
at 433. If the rule were
the contours of
would have to
regulation
be hammered out case
case—and tested
those
only by
hardy enough
risk criminal
Cf.
determine
prosecution
regulation.
proper scope
parte Young,
Ex
supra,
147-148.
determination of the in
By permitting
these statutes
without
validity
of some
regard
regula
permissibility
*27
cases,
have,
tion on the
effect,
facts of
we
avoided
particular
making
vindication of freedom of
await the
outcome
protracted litiga
expression
Moreover,
tion.
we have not
of successful
thought
improbability
makes the case different. The
effect
the exercise
prosecution
chilling
upon
of First
rights
Amendment
derive from fact of
un
the prosecution,
Button,
affected
by
its success or failure. See N.A.A.C.P. v.
prospects
supra,
432-433;
Bullitt,
378-379;
at
cf.
v.
Baggett
supra,
Bush
at
v. Orleans
Board,
182, 185,
Bush,
School
194
nom. Tugwell
affirmed sub
F.Supp.
.
907;
States,
367 U.S.
Gremillion v. United
The Misdemeanor Count—Count Olmeda, Count VIII of indictment charges Lopez, petitioners John Ramirez and David Sanchez did “. . . disturb the maliciously peace noise, and and loud and unusual and quiet neighborhood by person, by conduct, and tumultuous offensive and the use of and by vulgar, profane children, indecent within the language hearing women presence 705 before this initial briefs and boisterous manner.” The parties in a loud did not deal with the disposition and the oral proper court arguments further it necessary the court thought prohibit count VIII the event to the an therefore addressed inquiry counts. We the felony prosecution on views. which, Relying resulted in divergent parties surprisingly, Hardin, the People Cal.Rptr. Peoples v. Supp. 256 Cal.App.2d court be transferred to municipal that count VIII should simply contend Court, P.2d Cal.2d (Gomez Superior for trial.30 different are quite in the footnote. They facts of Hardin are excerpted there, here, the bar, the case at similarity being from those in because of with a a misdemeanor felony felt to join prosecutor compelled Court, Superior Kellett v. the Penal Code as section interpreted Cal.2d 206]. cer- our attention have to our brought response inquiry petitioners Code, (Evid. notice
tain matters of which take judicial we may properly 459), the correctness of which is not People. § disputed grand
It that several weeks before were indicted petitioners appears had, on 28, 1968, VIII four named in count on May jury petitioners in the 6, 1968, complaint Municipal March been named in misdemeanor One count of that Court the East Los Judicial District. Angeles complaint have been committed on March violation of section 415 to charged Street, School.31 5101 East Sixth the address of Garfield High On June counsel and a district attorney ap- petitioners’ deputy misde- in the moved to dismiss the court. The peared municipal People to the meanor the ground complaint complaint “[subsequent *28 complaint charging felony Hardin a with a and a misdemeanor 30In the defendants magistrate the hearing the found municipal preliminary was filed in the court. After a did, however, He order felony evidence insufficient count dismissed it. on the and count. As soon as court the misdemeanor appear superior defendants to in the on jurisdiction try had no to the misde they appeared that court it realized that it day. municipal court the appear count and ordered to in the meanor defendants next court, charging only objection, complaint them an amended that over their In bring to trial to defendants to dismiss for failure filed. A motion misdemeanor was within the Code, 1382) (Pen. granted because more than the § was statutory time arraignment felony-misdemeanor their initial on statutory elapsed since time had reversed, holding that the court order was charge. People’s appeal that On superior hearing appearance in the and preliminary by the abortive consumed time because play, 1382 to come into of section the time limitations not cause court did hearing in an appearance not an preliminary appearance for the defendants’ magistrate. a before court,” distinguished appearance an from “inferior in count contained specifications addition to the complaint, misdemeanor 31The by “threaten- peace disturbed the charged defendants that the indictment also VIII fight fighting.” challenging and traducing, to ing, quarrelling, before had been entered any of the to a plea by any parties complaint, Sanchez, Grand Indictment was obtained Jury Ram- against subjects Lopez, irez, Olmeda, a violation of PC charging to Riot (Conspiracy Peace). Disturb the .. count in the jury
The was not that a misdemeanor grand court informed be dis- to sought indictment a count in complaint duplicated apparently made fact. who missed. We attach sinister to that The significance no deputy in the jury the motion does not to have been involved grand pro- appear event, felony it seems certain that the overshadowed ceedings. charges any the fol- court session else. Before conclusion everything municipal Herring “. . Your took . Mr. lowing colloquy [defense place: counsel]: Honor, I one of the order dismissing minor clarification request Herring: Yes, Mr. the de- case? The Court: sir. it be understood May fendants that this is case dismissed with being prejudice refiling Well, similar Counts these what is your defendants? The Court: against Well, Mr. district Devich? under Mr. Devich position, attorney]: [deputy Code, dismissed, the Penal once misdemeanor misdemeanor another However, filed, cannot be filed. does not even felony being upon preclude Herring: circumstances, the same set I same facts. understand Mr.
that, clear, but I want it if should the that perfectly possible, prosecu- felony tion for will be faced by reason not these defendants prevail, new misdemeanor I Complaint same Counts. The reciting pre- Court: sume that Mr. Devich I assurance to do not know. Mr. giving you. Well, the code I can’t. can I What Your Honor?
Devich: The says say, more Herring: answer, Is Court: Mr. your Thank The Herring? you. Mr. I have dismissed the Section
Court: under for the reasons Complaint that are set forth in that very Devich memorandum that Mr. thoroughly aluded to the entire contents of which now going be incorporated Herring: into the record. Mr. I The reason raised the Your question, Honor, reasons, them, is—the are conditioned many upon pending status of Well, I felony will tell This litigation. one you thing. Court: Court would be disinclined very, very to want a new this permit filing case in unsuccessful, the event downtown was felony prosecution because our case load too heavy continued harassment ourselves. permit But that is not because it can’t done in the first going happen, place.
Petitioners now claim that the is a count dismissal bar to complete *29 VIH. Section the 1387 of Penal Code reads as “An the follows: order for dismissal of action, the made as in this is a bar provided any chapter, other for the prosecution misdemeanor, same offense if it ais but not if it is a The felony.” court seems to have been under municipal the misappre action, hension that the dismissal of an not a felony, a bar to another the new if is filed after the is dismissed. first action complaint prosecution, Aiken, People That not correct. Cal.App.2d the was events as follows: sequence 1951: May complaint Code, (Veh. violation of the former section 502 of Vehicle Code
charging drunk B 23102—misdemeanor filed in class court. justice May § driving) 15, 1951: second the same violations and a con- charging prior complaint for a viction violation of the same section filed in the same court. justice 16,1951: first “on account the May dismissed another complaint filing . . .” action. the justice was held in the second on complaint
A hearing preliminary under the a to dismiss bound over. Later motion and defendant was court the the Penal Code was granted by superior of section 1387 provisions the Court of District Appeal. Its order was affirmed by court. dismissed, the second
It is that at the time the first action was apparent is, however, more significant The Aiken case even already pending. case was filed in that our awhy reason second purposes. complaint a a mis- was that class B had to try highgrade court no justice jurisdiction A with prior demeanor. violation of section charge coupled bar, violation, in case the was such Similarly, People misdemeanor. because under caused count to be included in the indictment
obviously VII! the muni- Kellett all had to in one action and rule charges presented it one court had no felonies. Were not for pos- jurisdiction try cipal would be difference, and we Aiken would be controlling sible point was an forced to court dismissal say municipal complaint is the difference: absolute bar to count in court. This any VIII tried being on Aiken based that both were parties stipulated complaints bar the such concession. They same offense. In case at make no People misde- the dismissed do concede of transactions” between “identity a factual VIII of This meanor count count the indictment. represents must We therefore deny issue which this court is in no to resolve. position to initiate writ count court appro- as to VIII and direct superior the offense which whether resolve any question proceedings priate for which from that claim to underlie count VIII the People separate court. In the four were charged concerned petitioners municipal is, court attention of the connection such any hearing superior however, have resolve before directed to another which will problem facts which further action: taking regardless precise appropriate the misdemeanor claim People support complaint court, whether, section from apart remains municipal quite problem count VIII. Even if Kellett further prevents prosecution *30 708 acts, court and count VIII different municipal complaint charged was, been,
if the should reveal that the or have should proof prosecution “of aware than more one offense in which the same act or course of conduct [played] its failure to “unite all such offenses significant part,” will result in a bar v. (Kellett to of count VIII. subsequent prosecution” Court, Superior 206].) 63 Cal.2d 827 409 P.2d We at p. Cal.Rptr. [48 assume, aware that Kellett certain from its rule provides escapes without instances mentioned in that case are not exclu deciding, sive. are free to to show Kellett is Naturally why People attempt to VIII. count inapplicable
Let a writ issue peremptory prohibition restraining respondent court from further XV counts and XVI of the indictment. prosecution With to count VIII the respect for writ of denied petition prohibition t|ie court is to superior in a directed manner consistent with proceed this opinion.
STEPHENS, J.I concur fully written Justice opinion by Presiding Kaus it (disturbance Code, as relates to count VIII Pen. peace, 415). §
I concur in the result reached in the to XVI as it count relates opinion Code, to disturb the (conspiracy 415), not, Pen. 182 and but peace, § § however, Bushman, for the reasons stated in The case of re opinion.
I concur the result reached in the XV relates count opinion Code, 16701). violate Ed. (conspiracy mind, however, Edu- § To my cation Code section 16701 is neither nor overbroad. ambiguous, vague To that to say a student instigate walkout classes session is not from unthinkable, subject prohibition and the Justice Presiding opinion Here, Kaus does not so hold. of the walkout be deter- purpose *31 to directly as one the schools involved—not to close effectively mined one, a a there is here if the lawful a Even grievance. espouse purpose our two to- conflict between ideologies equally important example prime national survival. a wilful disturbance of school against public person’s prohibition and assembly. of free
does not the First Amendment transgress rights speech of education. for a school the death knell system so hold is to sound To it was state, that neces- it was recognized the first Constitution for this In resident children. That Con- to of education for system sary provide IX) Legislature to (art. encourage stitution obligated intellectual, moral, scientific, and improvement, agricultural promotion which system and for school It made a school funding. mandatory provided least would three months every Legis- kept year. open 491), (Stats. Act 1851 ch. consisting lature its first School passed p. 31,000
of nine has been to over codification extended pages. Today, sections of the Education Code.1 (with
It is are certain children generally recognized required excep- school, tions) to attend until or become 16 school have they completed high send of 6 to 16 to their children years age, obligated parents (Ed. Code, 12201.) to It cannot be school. years age ques- §§12101 but that is a dedication of our of government. tioned education prime system one fostered in constitutional Certainly, where would principle provisions law, fostered conflict another under one construction with principle and those would not be in conflict under another construction of principles law, the courts must effect both the construction which gives adopt principles. time, two
Since cannot be understood when both talk at the same persons then because one of the two is made to free not merely hampered speech silent; assemblage remain free not violated because one law- just group However, a location to exclusion of another. who anyone fully occupies their others to cause school students abandon classes high conspires and achieves such a “walkout” the school session by causing during purpose “school,” for build- of extinction—the “disturbs”—to certainly point school, without students is not a in name only. ing except to hold have a constitutional air their but right grievances,
People that there is control the time or succumb to no is to words right place not be meaning. over Freedom used others expression may deny to an I do not to be misunderstood. I do not education. wish right say publisher printed 1One of the codes has Code in seven volumes Education .another, (Deering); (West). in six volumes out,
a student his for there is no grievances express walking absence, an in Education Code section 16701 this—such prohibition against *32 wilful, disturbance, I though is not a but a toward therefore step truancy. do base concurrence a my of overbroadness section theory upon 16701.2 It is sufficient citation of the “overbreadth” authority question cite the Kay, latest In re the California Court in analysis by Supreme . Cal.3d 930 had Kay The court in before 142]. 403; Code, it a (Pen. worded . similarly statute who . . “every § person disturbs or breaks willfully .”). or . . any court up assembly meeting was careful to (1) restrict its a the facts full trial established holding which resulted in sentence; conviction (2) and and the instruction given the trial Kay court. by As states at “. . 941: . trial court page simply [T]he read, verbatim, the a language of section 403. such broad unrestricted rendition the court invited the the jury statute unconstitutionally apply and to find individuals more an guilty than free nothing expression speech by Constitution. an protected Thus under such instruc- jury, tion, might convict whose conduct a persons meet- expressive ‘disturb[ed]’ because the ing only content of the conflicted with the views expression by espoused meeting’s or official After organizers speakers.” expressly a recognizing intent was enact a valid presumption legislative 403), (§ statute the court in Kay stated that section “authorizes the of criminal sanctions when the imposition defendant’s itself— activity and not the content activity’s expression—substantially impairs effective conduct of a In Kay, the court inferred that meeting.” clearly instructions, under appropriate and limiting section could con- facts stitutionally applied.
Here, we are with the factual presented allegations indictment full instructions, After a trial and under a stage. well find jury might proper that the acts of were not in furtherance of a means complained of expressing and is for fact and grievances, not this court on finding body, it con- writ, sideration draw I of this that conclusion. in the concur result because act defendants, of the several though committed and is by plan design, its nature one which by very constituted a misdemeanor and low-grade which is more consistent with what is now classified as an infraction i.e., Further, the Penal Code: the disturbance caused walkout. there no being of enlarging the crime danger remains conspiratorial planning, Code, (as offense): “Any alleged 2Education person section 16701 the date of wilfully any any public meeting guilty who misdemeanor, public disturbs school or school ($10) punishable by a fine of not than ten dollars nor more less ($100).” than one hundred dollars “Any person willfully Section 16701 amended in 1969 to read as follows: who misdemeanor, meeting any .any guilty disturbs public public school school of a ($250). fifty shall punished a fine of not more than two hundred dollars to a a violation raises such which act Any conspiracy but the prohibited. serious charge more within the status onerous encompassed
more Code, 415), prohibited or other (Pen. specifically § breach of peace from to create felony act. It is unconscionable dangerous violent and At two or more persons. of this misdemeanor by commission cooperative such now, was of violation, misdemeanor the alleged the time of be countenanced. term could that no jail Legislature nature that provided to state term, a sentence including a result of the instant charge, jail As Code, (Pen. felon, § the brand of possiblities. prison, To com- 1. “If two or more conspire: persons pertinent part provides: acts of the other to do any When they mit crime .... conspire *33 by described in this section shall imprison- [including they punishable 1.] the state than one or in year, prison in the for not more ment county jail dob- five thousand not more than three a fine not by exceeding or years, the code sections both.”) the violations of ($5,000) lare or I recognize and have been here have been as misdemeanors designated applicable Also, infractions, violations. reclassified as as have some Vehicle Code be conceded that there are other misdemeanors for which must penalty term, But the clear does not include a in the alternative or otherwise. jail relative to violations is intendment legislative low-grade protect penal mind, the individual it seems only from the “criminal” To stigma.3 my where, case, act reasonable hold that as in the instant prohibited itself cannot action of two become more heinous because of planned more does not increase to the extent or of the violation persons, gravity course, where the classification. Of warranting felony cooperative nature, is of a Code more the more serious Penal violation activity grievous (§ disturbing peace) applicable. reasons,
For these I concur in result reached in by Prer opinion Justice Kaus as it relates to siding count XV.
REPPY, J. I concur in and to the dissent in with schol part part respect lead arly Kaus, Justice and I with opinion Presiding disagree part the views Justice I do not reach his expressed by my colleague, Stephens. and treatment
subject in another part. I concur with the lead of count VIII handling opinion’s disposition (the misdemeanor as does charge), Justice Stephens.
I concur with the lead (made determination opinion’s dealing XV) count that section 16701 of the Education Code is overbroad.1 The (See 3The concept of infraction has desired developed been to achieve this result. Code, 19c.) §§17 Pen. 1Because holding, of this necessary question it is not pass on the whether vague.
section is
action words in that section “willfully narrow- disturb” unaccompanied by modifiers ing such as or “maliciously” tumultuous or offensive conduct” “by time, unlimited as to precise means and nature application purpose, disturbed, scholastic allow it activity conduct of a too encompass Button, innocuous nature. (See N.A.A.C.P. v. 371 U.S. 432 cases cited other Justice 328] by Presiding Kaus in the lead Section 16701 to be opinion.) unconstrued appears decisions, and appellate so it lacks the well-established that affords meaning the requisite advance definiteness which has clothed Penal Code section Bushman, as indicated in In re Cal.3d 767 [83 Cal.Rptr. 727],
A series of decisions indicate should section 16701 higher, guiding construction, circumstance be used limited cannot given now. Columbia, 347, 351-353 (See Bouie City 378 U.S. against petitioners. 894, 898-900, Pre 1697], and other cases cited S.Ct. [12 L.Ed.2d Kay, In Kaus.) Justice the case 1 Cal.3d siding re 930 [83 464 P.2d Court carved out narrow construction Supreme *34 However, for Penal Code 403 in it from section order to save overbreadth. did because it reversed the conviction on grounds,2 two particular have to could be face the of whether the of a defendant conduct question which, the for such jqdged by refined a statute but initially of meaning refinement, overbroad, then declared of the would in contravention mentioned, effect, line of cases that a entitled above in defendant is holding, to advance notice of a of a facie overbroad construction “saving” prima statute.
I with (made dissent as to lead dealing the determination opinion’s counts XV XVI) and that use rule of of the conventional circumstantial wit, evidence the (to at time cases that conduct of conspiracy persons of a event can be the of an inference to allow planned drawing proved that certain of the done and that certain of were of things part plan cases were should participants conspirators) judicially proscribed involved, where First Amendment because it “chills” the rights allegedly or exercise of actual legitimate right grievances expression that amendment. symbolic speech protected grounds (1) 2The That of decision were these: defendants’ conduct
political meeting be violative under its was not section narrow construction cause it did intentionally implicit not consist in violation of customs committed acts usages men, substantially they, of which as reasonable have known which should (2) overbroadly impaired meeting; jury the conduct of the and was instructed given only unglossed wording because code section. XV, count I feel that moot because of With the issue is respect Justice Kaus and mine that section 16701 concurrent holding Presiding viable, however, of the Code is overbroad. is Education The issue XVI, to count which to violate Penal Code charges respect conspiracy and section 415 of the schools (maliciously wilfully disturbing peace conduct), and tumultuous offensive because it has been held that section Bushman, (In 767.)3 is neither re supra, overbroad nor 1 Cal.3d vague. What “chilled” and for what must be considered in the con- purpose case, text of the of this matter which is the facilities and subject processes education of school students. The school and high high boys girls who are involved are in their form- varying ages degrees maturity ative under the stage and social of their training discipline parents.
school, in to endorse and part, this role. expected supplement parental
The effective and education and of the orderly training young people ais matter of major social value to the importance high citizenry It community. (See citations in constitutionally recognized. of Justice accompanying opinion also of social analysis Stephens; impor tance of an appropriately efficient educational disciplined continuously Court, Municipal in Mandel rendered process Cal.App.2d 173].) The herein out that there petitioners desire point on the of a number of students, part surnamed which Spanish they, felt should be petitioners, to assert the championed,4 grievance they, students, were not receiving education and good which training was their due.5 These were the aims under consideration. respective
Also, there must be examined what it is that against there is concern *35 that the rule of circumstantial conspiracy evidence will cause a “chill” I see it as operate. any given of and group’s planning for a. pressuring student demonstration of grievances claimed against of the inadequacies school system which will involve the exhortation aggressive of students to walk out on their scheduled educational without program, determining 3Bushman defines conduct, what is tumultuous and what is offensive and what is a disturbance by caused such disruption conduct. Disturbance public means: order by acts that are themselves violent or that tend to incite others to violence. Tumultuous conduct is violent wilfully maliciously endangers conduct offensive that and public safety or if, order. Conduct by actions, person’s wilfully maliciously he and incites others violence. 4The adults chose a method which involved student participation presumably
because of its dramatic effect. petitioners 5But evidently felt students had to be petition convinced that the grievance for should take regular of a during form walkout school hours. There testimony
was way urged in October 1967 Mr. Castro that walkout was the impress “the kids” as well as the school board. sets of would want their children
whether various participating parents the cause. in that of demonstration even if were in they type sympathy would No one would that the of such a walkout bring dispute taking place Code, (Ed. 10609); about of school routine school § disruption it clear to the witnesses made limited period disruption time of the walk- intrusion of the exhorting ensuing petitioners outs, but that it weeks thereafter. many parents persisted Certainly children this have a in whether other adults should embroil age say their children in a demonstration so of the educational regime.6 disruptive
It is not reasonable to believe that of the possibility contemplation involvement in because of the use felony conspiracy proceedings accepted of the circumstantial evidence rule under consideration would frighten from a demonstration which did the student people not involve planning feature, walkout such as to a school at the time adjacent gathering facility of class dismissal. The is that future would-be adult concept apparently of grievances (whose First proclaimers educational concerning system Amendment rights be relied would hypothetically upon petitioners) loathe to a demonstration not plan student walkouts involving regu- during lar school hours for fear that students become aware of the activity might and, initiative, on their own in a walkout of the school engage disruptive and for fear that operation rule circumstantial evidence proposed used in this adults, case would they, to answer likely required felony charges to cause the student walkout. The conspiracy engender- fear, ment of such a my too remote for opinion, cognizance. judicial Further, I feel student walkout school hours could during regular not be to be expected without violation of a valid law accomplished such as section of the 13558.5 Education Code7 or section 609.2 Penal (then effect)8 Code (§ be a valid what could law 16701 of the 6Nothing in points the record to a consultation with parents approval to secure their of the involvement of their children. 7Section 13558.5 part “Every reads in as follows: . . . adult who is pupil not a the school . . any ground . who comes upon anj? school or into schcolhouse order, there willfully good conduct, discipline, interferes with the lawful or adminis school, activity obstruct, tration of disrupt, school class or with the intent to *36 damage to inflict property injury any or demeanor bodily upon person guilty or of a mis . . . .” (See reference in footnote No. of the opinion.) lead (Stats. 1967, 1161, 2845) 8Section 609.2 p. part per ch. “Any read in as follows: any street, son walk, comes building any ground, who into school upon or school side or thereto, adjacent thereon, way or public pres without lawful business and whose ence or acts the peaceful interfere with conduct activities, activities of such school or dis rupt there, its pupils being school or or school and who remains after designated agent asked chief to leave official administrative of that school or or, . . . who carries out the same functions ... in the absence of the chief admin- trans students causing or without more Code made precise), Ed. attendance, to be in violation for and class thereby decorum rules
gress Court, supra, Code,9 Municipal Mandel (see v. Education of section Counsel, (1967) 10; Assem. J. and fn. Leg. Op. Cal.App.2d and ideal of an ordered the social 5028), or without contravening p. no standing have educational I do not
efficient say petitioners process. deter I foreseeable
to claim unconstitutional say procedure. of conse because of fear to the exercise of Amendment rights rence First based an intended exercise involvement is one. felony quences of those carried of the and with nature rights repercussions probable and that a deterrence is defensible. The government out such by petitioners, a trial for allowing has done no if of a logical wrong knowledge process mass future would-be fact-finder to sift for the truth makes organizers violate, cause the violation of such school reticent to grievance protests laws, standards, times, rules or when other means places particularly are available to them for their known in an grievances adequate, making less of the less dramatic manner. The although logic perhaps effective times, drastic alternative should work both At laws which too ways. place severe individual in the name of valid against repressant rights public are thrown out because a less drastic objective measure can be used to State, (Aptheker reach the desired end. v. Secretary adequately 992, 1001-1002, 1659];10 513-514 see also S.Ct. Mandel, Spock, United 170.11) supra, States 416 F.2d stresses the reverse that there must be the “alternatives saying application, appraised available to the ... to exercise his to effective communi speaker right cation in a manner less hostile interest . . . .” governmental there should be no rule use of evidence of
Certainly conduct against at the event aas basis for what inferences as to was and who was planned (1) available, where some foundational direct evidence is planning as there here, to show that were there for a student walkout12 and that plans official, official, acting istrative person guilty as the chief administrative of a misdemeanor.” (See Woods, People 7 Cal.App.3d point of sub- acting official.) ordinate for chief administrative regulations, pupils pur 9Section reads as follows: “All shall with the comply required study, sue the authority course of of the and submit to the teachers schools.” Congress . . achieving congres 10“. power has within its ‘less drastic’ means of objective safeguarding security.” sional our national 11“. . . rights prevail First Amendment . . . . must if . . there is a ‘less restric ive alternative’ prevented.” which the . . evil . very concept 12The physical student walkout means a withdrawal at a time Castro, place when there is not freedom to do so under school rules. As to Mr. *37 (2) in the ultimate event were
many planners,13 participants is conduct where there circumstantial not related to at-the-scene evidence which bears on the and the plans planners.
There was- other circumstantial indicative of a full evidence pre-event walkout of a scale the lead such condemned type apparently by opinion as the and the for monitors making picket signs plan- arranging of their distribution walkouts down excitement and ning to during keep the students from action. keep angered getting by police The lead stresses that tumultuous and action for its opinion offensive However, own sake was not I the ultimate think objective petitioners. it must be that it was the means chosen for known accepted making grievances, which was the ultimate objective. that our concern should be with those who sin- principle opinion says
cerely desire to within stay the law while their constitutional fully exercising It rights. my feeling student walkouts teenage during regu- planners lar school hours without not such parental approval persons.
The lead states that unless we are opinion say anyone prepared who organizes demonstration the risk of school students assumes by high misbehavior, their we must hold that First con- Amendment prohibits spiracy circumstantial evidence. prosecution through This observation once both not sufficiently and not We precise adequately comprehensive. need to be more to the walkout student precise referring organization “demonstration”; school during regular hours as and we need to be more the risks comprehensive by including assumed among allegedly walkout involve will conduct chosen exhorters which adult-on-the-spot will be violative of school rules or valid laws what could valid laws. I submit that we should be that one who such a organizes prepared say risks, demonstration does assume such we should have no cause use Amendment aas bar to First prosecuting through suspected conspirators circumstantial evidence.
Three decisions call for some remarks. The stressed particular point in Spock movement, majority those with the aligned which had the legal objective draft, Viet Nam war and the could opposition is, addition, (receivable there radio-speech-admission his upon in evidence estab- offense) lishment corpus delicti of the specifying the time for the call of the (.a specie second walkouts catalogued proof type not akin to the of circumstantial evidence “chilling” opinion). lead Gomez, monitors, 13A Mr. one of the concerning meetings testified at which walk were planned outs and the distribution of monitors at walkouts was worked out. He named some of the participants and indicated that there were others whose iden tity he could not then furnish. *38 means, or illegal, what legal held as not upon be depending conspirators a Even though given foster the was be used to objective. each intended movement, not be saddled with the he was allied himself person of this factor It was as to cohorts. intent intent of his more extreme (con- use the device of that would allow Spock held it majority declaration of one cases) of used in presenting ventionally conspiracy to have the be means he had should agreed pursued to the conspirator to establish known in order views and draft made common about war to. the in- consideration had under agreed the means defendant its offensive (with walkout than a class-time student stant case less nothing no all. We have discussed) was the problem above plan implications on of intent. and based grades noninculpation inculpation even at the saw to the Spock
The no majority presentation, impediment trial, evidence) to allow iden- (circumstantial conduct jury post-planning and what actions had tification of who were determination of conspirators been was not Evidently, majority by “chilling” planned. impressed was In the instant insofar as trial feature concerned. concept grand situation, in the each of involvement jury strong conspiracy suspicion at various and activity is shown his individual petitioners presence walkouts. stages development accomplishment Spock dissent in was with whdt it “the fuse” delayed concerned terms a document determining signing approach conspiratorial culpability “Call,” like the felt a and it that such would have approach pronounced “on all effect kinds of efforts “chilling” Although sway opinion.” public evidence, this seems to the stand be on the rule of circumstantial focusing taken this dissent that because is a conventional rule conspir- cases, there is no conspiracy there is reason to hold that acy good actually a (and thus none of which defendant can found such “amor- guilty) in a coalitions” in the The dissent outlines area discussion. phous public short of the loose and shifting situations progression conspiracy made to the coalescence devoted openly opinion public expression issues, orthodox directed at the execution of starting with knit closely groups criminal to those which enterprises, disciplined, proceeding conspiracies cohesive, covert devotes itself with of mind to one organization singleness and then similar combination to ac- striving illegal mentioning purpose, I feel that the legal number of some some illegal. purposes, complish would have ranked the as akin to either one of the latter dissent Castro group and that it would not have considered circumstantial evi- two examples, rule an effect which would dence even though inappropriate produced “chill” the inclinations of future would-be grievance proclaimers the members of and out the aims of such an organization. among carry *39 this would be so if the walkout
Obviously during sought objective—student district school hours—was a in itself or even a violation of offense statutory in- administrative conduct. There is regulations nothing student governing vidious about on an inclinaton to violate the law in “chill” putting pursuit of and corrective for an securing acknowledgement alleged griev- action Spock Floyd, ance. It noted that the Bond v. from majority quotes U.S. 116 L.Ed.2d to unlawful 87 S.Ct. the “a call phrase, refusal” in in- to to refuse to be letter-call men characterizing young ducted. adult action in the can as a call to instant case be categorized the students to an in behavior act or at least to perform illegal engage of an lastingly disruptive educational congenial process. atmosphere Mandel, It is that in significant supra, where the contents of the complaint were under there was no that the of the defend- scrutiny, allegation activity ant, leaflets, students, out passing anti-war draft and racism drew the who about, Also, gathered from their scheduled scholastic although activity. there were allegations defendant mentioned a future which meeting discussed, student walkout would be there was no charge conspiracy cause a walkout from classes.14There was no allegation meeting was to be held school during hours or even on a school The inference day. clear if the court Mandel had been a trial writing examining transcript which disclosed of students the defendant encouragement to leave school by session, while it was in its would have At been different. approach pages 673 and 674 the court “The facts do says: alleged not show advocacy which is directed to . . . inciting imminent lawless action—absentation school”; from Community from Tinker v. Des quotes Independent Moines “ Dist., School U.S. 503 ‘But conduct 733]: . time, student . . which for reason—whether it stems from place, type or involves sub- behavior—materially classwork disrupts is, course, stantial disorder ... immunized constitutional ”; however, freedom of guarantee and speech.’ states: “Pamphleteers, cannot be violent and others, heedless of the and must bow to rights of the In school.” Mandel we note that it appropriate discipline leaving the weighing process15 stresses connection as to whether inquiry law there vagrancy involved was being unconstitutionally applied. if, the instant case we are to determine in- weighing employing process deed, isit a “chill” on wrong the inclination put organize persons demonstration to We of an express grievances. grant legitimacy organ- alleged.
14The Mandel dissent felt this could have been 15Weighed rights impairment extent of of the exercise of First Amendment against importance governmental substantiality and of the threat interest speech activity poses which the to that interest. institution in an educational of dissatisfaction with conditions ized showing we examine But alleviation. toward consideration inducing as a means means, chosen as sup- a drastic the interest being value of disrupted effective; con- we to be enough one being impressive posedly effective, whether less would sufficiently whether extreme measures sider necessary impress, harsh maneuver is really it is shown and been ignored. less drastic had been made whether the move *40 made of
Thus, regulations walkout a violation law or if student was that, and law, discouraging “chill” toward and if the ran only pursuant dem- adult that it would group small likelihood very discourage there walkouts, sufficient inter- no about student bring onstrations not intended to evi- about the circumstantial of free is rights brought ference speech available dence rule conspiracy prosecution. California, feel
I do not
that the instant case is
to Smith
comparable
cessive burden cast which ones were. bookseller out finding they upon Here, the a grievances demonstration thing discouraged planning which involves the students walk school hours. out getting during regular Sullivan, The instant case is akin to New York Times Co. not A.L.R.2d wherein the con officials, a cern was that a would concerning speech public speaker, censor his own and comments leave some ones out in order to be legitimate sure that he would libel. not actionable speak
Reference now made to the of Justice Stephens. separate opinion concerned, that, As far as count XVI is I feel the rule of circum- given evidence stantial of admeasurement given recognized standard level, evidence of action at was of evidence supportive jury grand sufficient substance for the to have entertained grand strong jury suspicion that at least some the actions at the scene observed carried out by peti- tioners and others were those alleged planned conspirators, who were seen active on the school were in on some- grounds organizing where the line. along XV,
With to count I do there should respect agree judicial pro- against the to violate mis- scription charging low-grade conspiracy as to demeanor which a limited fine is the only penalty. Perhaps concept (1) can be said to stem from two of the contentions stated by petitioners: The state cannot at the level where exercise constitutionally felony punish involved; (2) First Amendment rights the use conspiracy
vehicle about cruel and However, unusual brings I do not punishment. feel that these factors should lead to the taken. position
The checkered holdings our triumvirate make it judicial inappropriate to discuss the challenging question of constitution grand jury which rendered the indictments other contentions not covered in the above discussion.