# Castro v. Superior Court > California Court of Appeal · July 17, 1970 · 9 Cal. App. 3d 675 URL: https://www.frixlaw.com/law-library/cases/9731327 ## Case - **Full name:** SALVATORE B. CASTRO Et Al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest - **Court:** California Court of Appeal - **Decided:** July 17, 1970 - **Citations:** 9 Cal. App. 3d 675; 88 Cal. Rptr. 500; 1970 Cal. App. LEXIS 1985 - **Precedential status:** Published - **Opinion:** Concurrence by Stephens - **Judges:** Kaus, Reppy, Stephens - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9731327 ## Opinion text STEPHENS, J. I fully concur in the opinion written by Presiding Justice Kaus as it relates to count VIII (disturbance of the peace, Pen. Code, § 415). I concur in the result reached in the opinion as it relates to count XVI (conspiracy to disturb the peace, Pen. Code, § § 182 and 415), but not, however, for the reasons stated in the opinion. The case of In re Bushman, 1 Cal.3d 767 [ 83 Cal.Rptr. 375 , 463 P.2d 727 ] disposes of the contention that Penal Code section 415 is vague or overbroad. A full and fair reading of the .transcript discloses that the evidence relied upon to support this count is inadequate to be of “ponderable legal significance,” “reasonable in nature, credible, and of solid value.” (Estate of Teed, 112 Cal.App.2d 638 [ 247 P.2d 54 ].) There must be a reasonable basis for the belief that the accused may be guilty of the crime. (Jackson v. Superior Court, 62 Cal.2d 521 [ 42 Cal.Rptr. 838 , 399 P.2d 374 ]; Robison v. Superior Court, 49 Cal.2d 186 [ 316 P.2d 1 ]; Lorenson v. Superior Court, 35 Cal.2d 49 [ 216 P.2d 859 ]; Witkin, Cal. Criminal Procedure (1963) § 234, p. 218. See also, fn. 4, p. 680 of the lead opinion and reference to the same fact on p. 682 thereof.) I concur in the result reached in the opinion as it relates to count XV (conspiracy to violate Ed. Code, § 16701). To my mind, however, Education Code section 16701 is neither ambiguous, vague nor overbroad. To say that to instigate a student walkout from classes in session is not subject to prohibition is unthinkable, and the opinion by Presiding Justice Kaus does not so hold. Here, the purpose of the walkout may be deter *709 mined as one to effectively close the schools involved—not to directly espouse a grievance. Even if the purpose was a lawful one, there is here a prime example of conflict between two ideologies equally important to- our national survival. The prohibition against a person’s wilful disturbance of a public school does not transgress the First Amendment rights of free speech and assembly. To so hold is to sound the death knell for a school system of education. In the first Constitution for this state, it was recognized that it was necessary to provide a system of education for resident children. That Constitution of 1849 (art. IX) obligated the Legislature to encourage the promotion of intellectual, scientific, moral, and agricultural improvement, and provided for school funding. It made mandatory a school system which would be kept open at least three months in every year. In 1851, the Legislature passed its first School Act (Stats. 1851 ch. 126, p. 491), consisting of nine pages. Today, the codification has been extended to over 31,000 sections of the Education Code. 1 It is generally recognized that children are required (with certain exceptions) to attend school until they have completed high school, or become 16 years of age, and that parents are obligated to send their children of 6 to 16 years of age to school. (Ed. Code, §§12101 and 12201.) It cannot be questioned but that education is a prime dedication of our system of government. Certainly, where one principle fostered in constitutional provisions would conflict with another fostered principle under one construction of the law, and those principles would not be in conflict under another construction of the law, the courts must adopt the construction which gives effect to both principles. Since two persons cannot be understood when both talk at the same time, free speech is not hampered merely because one of the two is then made to remain silent; free assemblage is not violated just because one group lawfully occupies a location to the exclusion of another. However, anyone who conspires with others to cause high school students to abandon their classes and achieves such purpose by causing a “walkout” during the school session certainly “disturbs”—to the point of extinction—the “school,” for a building without students is not a school, except in name only. People have a constitutional right to air their grievances, but to hold that there is no right to control the time or place is to succumb to words over meaning. Freedom of expression may not be used to deny others the right to an education. I do not wish to be misunderstood. I do not say that *710 a student may not express his grievances by walking out, for there is no prohibition in Education Code section 16701 against this—such an absence, though wilful, is not a disturbance, but a step toward truancy. I therefore do not base my concurrence upon a theory of overbroadness of section 16701. 2 It is sufficient citation of authority on the question of “overbreadth” to cite the latest analysis by the California Supreme . Court in In re Kay, 1 Cal.3d 930 [ 83 Cal.Rptr. 686 , 464 P.2d 142 ]. The court in Kay had before it a similarly worded statute (Pen. Code, § 403; “every person who . . . willfully disturbs or breaks up any assembly or meeting . . .”). The court was careful to restrict its holding to (1) the facts established in a full trial which resulted in conviction and sentence; and (2) the instruction given by the trial court. As Kay states at page 941: “. . . [T]he trial court simply read, verbatim, the language of section 403. In such a broad unrestricted rendition the court invited the jury to apply the statute unconstitutionally and to find individuals guilty of nothing more than an expression of free speech protected by the Constitution. Thus the jury, under such an instruction, might convict persons whose expressive conduct ‘disturb[ed]’ a meeting only because the content of the expression conflicted with the views espoused by the meeting’s organizers or official speakers.” After expressly recognizing a presumption that the legislative intent was to enact a valid statute (§ 403), the court in Kay stated that section 403 “authorizes the imposition of criminal sanctions only when the defendant’s activity itself— and not the content of the activity’s expression—substantially impairs the effective conduct of a meeting.” In Kay , the court clearly inferred that under appropriate facts and limiting instructions, section 403 could be constitutionally applied. Here, we are presented with the factual allegations at the indictment stage. After a full trial and under proper instructions, a jury might well find that the acts complained of were not in furtherance of a means of expressing grievances, and it is for the fact finding body, and not this court on consideration of this writ, to draw that conclusion. I concur in the result because the act of the several defendants, though committed by plan and design, is by its very nature one which constituted a low-grade misdemeanor and which is more consistent with what is now classified as an infraction in the Penal Code: i.e., the disturbance caused by the walkout. Further, there being no danger of enlarging the crime by conspiratorial planning, it remains *711 but the act prohibited. Any conspiracy which raises such a violation to a more onerous status is encompassed within the more serious charge of breach of the peace (Pen. Code, § 415), or other specifically prohibited violent and dangerous act. It is unconscionable to create a felony from the cooperative commission of this misdemeanor by two or more persons. At the time of the alleged violation, as now, the misdemeanor was of such nature that the Legislature provided that no jail term could be countenanced. As a result of the instant charge, a jail term, including a sentence to state prison, and the brand of felon, are possiblities. (Pen. Code, § 182 in pertinent part provides: “If two or more persons conspire: 1. To commit any crime .... When they conspire to do any of the other acts [including 1.] described in this section they shall be punishable by imprisonment in the county jail for not more than one year, or in the state prison for not more than three years, or by a fine not exceeding five thousand doblare ($5,000) or both.”) I recognize that the violations of the code sections applicable here have been designated as misdemeanors and have not been reclassified as infractions, as have some Vehicle Code violations. Also, it must be conceded that there are other misdemeanors for which the penalty does not include a jail term, in the alternative or otherwise. But the clear legislative intendment relative to low-grade penal violations is to protect the individual from the “criminal” stigma. 3 To my mind, it seems only reasonable to hold that where, as in the instant case, the prohibited act itself cannot become more heinous because of the planned action of two or more persons, the gravity of the violation does not increase to the extent of warranting a felony classification. Of course, where the cooperative activity is of a more grievous nature, the more serious Penal Code violation (§ 415, disturbing the peace) is applicable. For these reasons, I concur in the result reached in the opinion by Prer siding Justice Kaus as it relates to count XV. One publisher of the codes has printed the Education Code in seven volumes (Deering); and .another, in six volumes (West). Education Code, section 16701 (as of the date of the alleged offense): “Any person who wilfully disturbs any public school or any public school meeting is guilty of a misdemeanor, and punishable by a fine of not less than ten dollars ($10) nor more than one hundred dollars ($100).” Section 16701 was amended in 1969 to read as follows: “Any person who willfully disturbs any public school or .any public school meeting is guilty of a misdemeanor, and shall be punished by a fine of not more than two hundred fifty dollars ($250). The concept of infraction has been developed to achieve this desired result. (See Pen. Code, §§17 and 19c.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9731327. Public record. Not legal advice.