*1 16, 1970.] 14529. In Bank. Oct. No. [Crim. al., et on Habeas RODERICK WALLACE Corpus.
In re *3 Counsel
Paul Halvonik and Marcus N. Vanderlaan for Petitioners. General, C. Thomas Lynch, Attorney Deraid E. A. James Granberg Aiello, General, for Deputy Attorneys Respondent.
Opinion MOSK, J. Wallace, Petitioners and Mintzer were arrested Pamperin, for allegedly an obstruction a fair out leaflets causing county handing by effects farm protesting workers of the automation of agriculture and the involvement of the of California in that University They process. are in currently constructive after misdemeanor convic custody suffering tions of in of trespass violation Penal Code section subdivision (j). That statute makes lands, the act of punishable whether any “Entering unenclosed or fence, enclosed for the of by injuring any purpose property or rights or with the property with, intention of or interfering obstructing, injuring lawful business or carried on the owner of occupation land, his or agent in lawful Petitioners were person possession.” each sentenced to a $100 of pay $25, fine a assessment of or to plus penalty serve one day for jail each $5 thereof. unpaid
Petitioners court and that superior appealed appellate department, court affirmed the convictions.1 Petitioners then filed this trespass applica- tion for habeas in the Court of An order to show cause Appeal. 1Assertedly accomplish disobedience,” petitioners order to an act “civil of fairgrounds paying Pamperin entered the price without of When testi admission. trial, fied to this judge fact at invitation of the trial were addition ally charged with and convicted of the crime Code of theft violation of Penal however, judgment count, section 484. appellate on that reversed was department, holding question. section 484 not the conduct court and the matter argued, by unpublished
issued opinion a after and conclude denied the writ. We a granted hearing, thereafter are entitled to the relief sought. review of the record that the fact that General Attorney Preliminarily, emphasizes of to the the cause court certification superior apply Court; 63(b) Rules of to rule of California Court pursuant omission, reme it is constitutes “failure to exhaust urged, appellate (1953) (See, bar habeas In re Dixon dies” such as to relief by corpus. e.g., “ 513].) But the ‘requirement 759 [264 ... merely discretionary exhaustion of the or other is remedy to issue the exercise court’s reviewing jurisdiction policy governing (1967) (In the writ.’” Black Witkin, 293], Procedure from Cal. Criminal quoting *4 shown, 769.) When are with circumstances
p. compliance special this be be excused and the considered “requirement” may petition may (Ibid.) on its merits.
Inasmuch in case bar was as the the appellate department opinion the Court of unpublished, could not transfer the case its Appeal (Rule 62(a).) own motion. But the court could have certified the superior so, case (rule 63(a)); sua it and as failed to do could sponte petitioners have made an (rule 63(b)). to that effect under application Certainly, circumstances, normal the a defendant desiring for proper procedure further review of a criminal affirmed the judgment appellate department is to (b); for such certification to rule 63 thereafter apply pursuant peti tion for writ of habeas will be entertained if certification is denied (In 105, 689, re Panchot 448 107 Cal.Rptr. [73 385]) or if certification is the to granted but Court of refuses trans fer (In 666, 286, the case re Zerbe (1964) 667 182, 840]). A.L.R.3d in connection is act must which the defendant within Yet the period indeed; “before the and filed be served must an such application brief (rule final” as to department appellate becomes on appeal judgment for that judgment rehearing of a absence petition and in the 63(b)), have same shall after the of 7 days final “Upon expiration becomes Moreover, in case peti- 107(b)(1)). (rule present been pronounced” act. Throughout which to this seven-day period have even tioners Frank B. by Attorney were below represented petitioners proceedings Mr. Baldwin moved of the III, appeal during Baldwin pendency filed on July department The decision appellate Philadelphia. mailed a notice 1, 1969, court the clerk August and on California address. Mr. Baldwin at latter’s care of thereof petitioners, until August Baldwin did not receive the notice Philadelphia Mr. Baldwin, with did not receive notice from Mr. counsel, following letter them to obtain local until several days urging 18, 1969—i.e., for some two weeks after the rule time August petition or to certification had Petitioners assert rehearing for apply expired. rules unaware until then of their and duties under the rights foregoing of court.
There is no in the rules for late of an provision filing application certification; 31(a), rule to late of the notice of relating filing appeal cases, criminal does not apply present proceedings. Accordingly, no simply further with opportunity their proceed remedy In appeal. of the extreme view of the brevity filing period allowed the rules innocence of fault in petitioners’ failing receive the time, clerk’s notice due we conclude that circum special stances are which present relieve from the necessity fully their exhausting before remedy habeas seeking corpus. merits, we that the
Turning observe issue is far limited more than first discussed larger appeared. pleadings constitutional questions as the right to distribute leaflets on which fairgrounds are only open *5 fee, of a and the payment of local power authorities to or regulate restrict activities. such But at oral argument 602, conceded that section subdivision (j), is not unconstitutional on and face that a its reasonable of the statute to application businesses or protect would not occupations offend Amendment; the First and the General in turn Attorney conceded that petitioners had. the constitutional right to engage argumentative activity, word, written or on the spoken of these premises fairgrounds. case, rather, General rested Attorney his a claim that petitioners’ conduct actually “interfere with” and “obstruct” the lawful business of the fair.
In
whether,
the narrow
to be
issue
decided is
posture
as petitioners
contend, the record is wholly devoid of evidence to
their conviction
support
602,
of
section
violating
subdivision (j). The
General’s
Attorney
objec-
tion that the issue has
been
already
litigated on
“is
to a
appeal
inapposite
case such as the one before us in which there is no material
as to
dispute
the facts
relating
conviction and in which
petitioner’s
‘it
appears
”
the statute under which he was convicted did not
his conduct.’
(In re Panchot (1968) supra,
107,
As the trial in place on a settled statement department predicated was appeal 184.) settle judge mandates the (Rule Rule 187 trial the evidence. evidence truly set and make the same forth fairly statement as “to a so as Exhibit A is . . .” Here statement appended and proceedings. declaration signed concludes with the following and it the petition, that the at the trial: “I Statement who judge certify presided is contained in this Settled Statement correct the Evidence In and so a conducted chambers.” was found me after hearing circumstances, we as likewise take settled statement may presenting facts of the within the of the case materially undisputed meaning Zerbe rule. for the Sheriff Deputy sole witness
Essentially prosecution at Black, According guards fairgrounds. supervisor security out leaflets “handing he observed Officer Black’s testimony, members of the crowd which discussions with and engaging stopping of mechanical tomato harvester.” in the area of gathered display literature the fair He informed that distribution of their at leave; was not and asked them were invited grounds they permitted, return, however, and leaflets were left behind.” “provided signs or Petitioners left the but reentered one two hours fairgrounds, promptly later and resumed their same location. This time leafleting activity leave, refused to they Officer asserting they doing nothing wrong. Black warned them would be arrested “if they cease their obstruction of the or them.” The pathway patrons soliciting stopping arrests followed. *6 cross-examination, “saw Officer Black testified he no con- physical
On stated and defendants. He also that members of the tact between patrons freely, could do so the tomato harvester who wished to inspect public (Italics added.) were the area where defendants avoiding standing.” testified the defense that “no was made Finally, Pamperin attempt obstruct wished members of the who the tomato any public inspect harvester, that took in the two of they walkway, hold- positions group [the] and that their intent information” contained in ing signs, convey leaflet were they distributing. he informed face, testimony they Officer Black’s
On its
not cease their obstruction of
“if
would be arrested
they
pathway”
his
admonition
not
fact
establishes
content
petitioners,
only
moreover, is negated
contrary,
obstruction. Any
of actual
implication
who
that members
public
testimony
the same witness’ further
“could do so freely.”
harvester
question
wished
the tomato
inspect
defendants were stand-
where
could do so
area
“by
That they
avoiding
exhibi-
adds
to a fair or other
to the case:
visitor
ing”
nothing
public
tion
or floor
wherever
a certain area
necessarily
ground
space
occupies
stands,
he
and
him are
wishing
manifestly required
persons
proceed past
to “avoid” that area under
of tort
The record is thus
pain
liability.
devoid
of evidence that
“obstructed” the business of the
(cf.
fair
Shuttlesworth
Birmingham (1965)
v.
were left behind.” 60.2, Penal Code section subdivision does not (j), conduct in which these petitioners engaged.
Let a writ of habeas issue as prayed. J.,C.
Wright, Peters, J., Tobriner, Burke, J., J., Sullivan, J., concurred.
McCOMB, J.I dissent. I would the writ deny for the reasons expressed by Mr. Presiding Justice in the '.Devine opinion by him for the prepared Court of District, First Appeal, Wallace, Appellate Division Four {In 1 Crim. filed February certified for nonpublication).