In Re Bushman

BURKE, J.

I dissent, for in my view petitioner clearly failed to prove that his conviction was based solely upon conduct which the majority hold to be constitutionally protected.

The majority rely exclusively upon In re Klor, 64 Cal.2d 816, 822 [ 51 Cal.Rptr. 903 , 415 P.2d 791 ], wherein this court stated: “We have held that a petitioner who collaterally attacks a conviction based upon a statute containing both valid and invalid portions bears the ‘burden of proving that he was not tried and convicted for violating the valid part of the statute.’ (In re Bell (1942) 19 Cal.2d 488, 504 [ 122 P.2d 22 ].)”

In Klor , we granted habeas corpus after concluding that “So strong was the evidence tending to establish petitioner’s guilt under the erroneous portion of the charge and so weak the evidence which would ground a conviction under the valid portion that we determine that petitioner can discharge his ‘burden of proving that he was not . . . convicted for violating the valid part. . . .’”

On the other hand, in In re Bell, 19 Cal.2d 488 [ 122 P.2d 22 ], cited as controlling in Klor we discharged the writ on the ground that “Petitioners in the present case have failed to sustain the burden of proving that they were not tried and convicted for acts of violence since the transcripts of testimony at their trials reveal evidence of such acts. . . . Because petitioners have failed to sustain the burden of proving that they were not convicted of the one valid provision of the ordinance prohibiting acts of violence, the writ heretofore issued is discharged and the petitioners are *778 remanded to the custody of the sheriff of Yuba County.” (Italics added; 19 Cal.2d at pp. 504-505. ) 1

The instant case is governed by Bell , not by Klor . Unlike Klor , the evidence supporting petitioner’s conviction under the valid portion of Penal Code section 415 was, in a word, overwhelming. The record discloses that petitioner entered the board meeting and thereupon deliberately dumped 10 pounds of gravel and debris on President Prentice’s desk, thereby provoking Prentice to lose his temper and to strike petitioner. 2 The majority correctly assert that section 415 may validly be applied to “violent conduct that wilfully and maliciously endangers public safety or order” (italics added), as well as to “ ‘offensive’ conduct if by his actions he wilfully and maliciously incites others to violence. . . .” (Ante, p. 773.) Petitioner’s conduct in disrupting a public meeting and in inciting Prentice to violence, clearly satisfied either standard.

The majority hypothesize that the jury “might” have convicted petitioner on the basis of his mere presence at the meeting. But Bell and Klor foreclose all such speculation by placing the burden upon petitioner to prove the jury’s nonreliance upon valid grounds for conviction by establishing the insubstantiality of the evidence supporting those grounds. In Klor , that evidence was characterized as “weak.” In Bell , as in the instant case, the contrary was true. Therefore, in effect, the majority opinion overrules Bell and Klor and improperly discards their requirement that petitioner bear the burden of proving the invalidity of his conviction.

McComb, J., concurred.

Accord, In re Carlson, 64 Cal.2d 70, 73-75 [ 48 Cal.Rptr. 875 , 410 P.2d 379 ]. It should be noted that both the Bell case and the instant case involved convictions affirmed by the appellate department of the superior court, without further appeal. Thus, the Bell test regarding the burden of proof in habeas corpus proceedings is controlling here.

The only evidence to the contrary was petitioner’s own testimony that he accidentally spilled the gravel after Prentice swore at him and grabbed his arm. This testimony was repudiated by the other witnesses and by a tape recording establishing that petitioner dumped the gravel before Prentice swore at him. The trial court bluntly characterized petitioner’s testimony as “perjury,” stating that “The jury did not believe the testimony of Mr. Bushman that the dumping of the gravel was an accident.”