Petition for Writ of Certiorari — Wright v. California

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No.

MARGARET WRIGHT,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

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PETITION FOR A WRIT OF

CERTIORARI TO THE APPEL-

LATE DEPARTMENT OF THE

SUPERIOR COURT OF THE

STATE OF CALIFORNIA FOR

THE COUNTY OF LOS ANGELES

See oe

Watts oo

Ree lug pase:

BRS e

WILLIAM B. MURRISH and

MARSHALL L. BARTH

625 Gateway West

1801 Avenue of the Stars

Los Angeles, Calif. 90067

CR7-1555 TR 9-1555

Raa, vee Sap ee eee eC ees

SER REAR EA SOBRE ee Pn baud WEIR

ae

Attorneys for Petitioner

—

TOPICAL INDEX

Page

Table of Authorities iv

OPINIONS BELOW 2

JURISDICTION 2

QUESTIONS PRESENTED 4

STATUTORY PROVISIONS INVOLVED 5

STATEMENT OF THE CASE 6

REASONS FOR GRANTING

THE WRIT 16

1 THE COURT BELOW IN HOLDING

PETITIONER CRIMINALLY PUN-

ISHABLE BY FORCE ONLY OF A

RETROACTIVE JUDICIAL EXPAN-

SION OF A STATUTE INAPPLIC-

ABLE BY ITS TERMS TO PETI-

TIONER'S CONDUCT, HAS

DISREGARDED THIS COURT'S

PLAIN MANDATE IN BOUIE v.

COLUMBIA, 378 U.S. 347, AND

HAS DENIED PETITIONER BOTH

PROCEDURAL AND SUBSTANTIVE

DUE PROCESS OF LAW, AND

FREEDOM OF PETITION, SPEECH

AND ASSEMBLY, ALL CONTRARY

TO THE FIRST AND FOURTEENTH

AMENDMENTS OF THE CONSTITU-

TION. 16

Page

(1) Procedural Due Process 19

(2) Substantive Due Process and

the Doctrine of "Void For

Vagueness'', and the Fundamen-

tal Requirement That Criminal

Laws Must Give "Fair Warning"

of What is Made Punishable. 20

(3) Absence of Legislative Standards

Under Vague (Or Judicially

Expandable) Statutes, and the

Substitution Thereby Aliowed of

Arbitrary Discretion and the Rule

of Men For the Constitutionally-

Required Rule of Law. 22

(4) The Above Principles Have

Particular Force in Areas

Touching Or Involving Free-

dom of Speech, Press, Petition,

Assembly Or Association. 24

(5) The Grievances and Subject

Matter of the Exercises of

Liberty Involved at Bar Parti-

cularly Require Vindication. 26

Il THE CLAIMED ADMONITION TO

THE ASSEMBLAGE NOT TO ENTER

THE ADMINISTRATION BUILDING

WAS FATALLY AMBIGUOUS, AND

NO CONVICTION CAN BE GROUNDED

THEREON EVEN AS TO PETITIONER'S

ii

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Ill

ACT OF ENTRY, CONSISTENT

WITH THE REQUIREMENTS OF

DUE PROCESS AND OF LIBERTY

OF SPEECH, PETITION, ASSEM-

BLY AND ASSOCIATION UNDER

THE FIRST AND FOURTEENTH

AMENDMENTS. 29

DUE PROCESS AND THE FIRST

AMENDMENT SECURITIES WILL

NOT PERMIT THE CONVICTION

BELOW TO. STAND BECAUSE IT

RESTS, IN ONE COEQUAL ALTER-

NATIVE, UPON A FINDING ONLY

THAT PETITIONER "AT LEAST

. . . SHOULD HAVE HEARD" DR.

WALLACE'S COMMAND. 32

CONCLUSION 34

APPENDIX "A"

Memorandum Opinion and

Judgment

APPENDIX "B-1"

Text of California Penal Code

§602(j)

APPENDIX "B-2"

Text of California Penal Code

§602.7

iii

—

TABLE OF AUTHORITIES

Cases Page

Aptheker v. Secretary of State,

378 U.S. 500 (1964) 33

Ashton v. Kentucky,

384 U.S. 195 (1966) 30

Baggett v. Bullitt,

377 U.S. 360 (1964) 24

Barbier v. Connolly,

113 U.S. 27 (1885) 23

Barr v. Columbia,

378 U.S. 146 (1964) 18

Bouie v. Columbia,

378 U.S. 347 (1964) 4, 12

16-19, 21

Boyce Motor Lines v. United States,

342 U.S. 337 (1952) 23

Brinkerhoff-Faris Trust Co. v. Hill,

281 U.S. 673 (1930) 19

Brown v. Board of Education,

347 U.S. 483 (1954) 27

Citizens' Loan Association v. Topeka,

87 U.S. (20 Wall.) 655 (1875) 28

Cole v. Arkansas,

333 U.S. 196 (1941) 19, 20

iv

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Cases

Connally v. General Construction Co.,

269 U.S. 385 (1926) 21,

Cox v. Louisiana,

379 U.S. 536 (1965)

Cramp v. Board of Public Instruction,

368 U.S. 278 (1961)

De Jonge v. Oregon,

299 U.S. 353 (1937) 20,

Edwards v. South Carolina,

372 U.S. 229 (1963)

Elfbrandt v. Russell,

384 U.S. 11 (1966)

Garner v. Louisiana,

368 U.S. 157 (1961) 20,

Giaccio v. Pennsylvania,

382 U.S. 399 (1966)

Gregory v. Chicago,

394 U.S. 111 (1969) 20,

Henry v. City Rock Hill,

376 U.S. 776 (1964) 30,

Johnson v. United States,

318 U.S. 189 (1943)

Page

23

31

24

25

30

33

30

23

31

31

21

Cases Page

Lambert v. California,

355 U.S. 225 (1957) 33

Lanzetta v. New Jersey,

306 U.S. 451 (1939) 20-21

Mitchell v. Charleston,

378 U.S. 551 (1964) 18

Morrisette v. United States,

342 U.S. 246 (1952) 33

Musser v. Utah,

333 U.S. 95 (1948) 22, 23

NAACP v. Button,

371 U.S. 415 (1963) 24

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) 25

Noto v. United States,

367 U.S. 290 (1961) 33

In Re Oliver,

333 U.S. 257 (1947) 19

Pierce v. United States,

314 U.S. 306 (1941) 18

Powell v. Alabama,

287 U.S. 45 (1932) 19

vi

_ -

Cases Page

Raley v. Ohio,

360 U.S. 423 (1959) 21, 30, 31

Robinson v. California,

370 U.S. 660 (1962) 33

In Re Ruffalo,

398 U.S. 544 (1968) 18, 20

Scull v. Virginia,

359 U.S. 344 (1959) 21, 24, 31

Shuttlesworth v. City of Birmingham,

382 U.S. 87 (1965) 23, 24

Small Co. v. American Sugar Re fining

Co., 267 U.S. 233 (1924) 23

Smith v. California,

361 U.S. 147 (1959) 24, 33 -

Staub v. Baxley,

355 U.S. 313 (1958) 24

Stevens v. Marks,

383 U.S. 234 (1966) 31

Street v. New York,

394 U.S. 576 (1969) 31

Stromberg v. California,

283 U.S. 359 (1931) 25, 30

vii

Cases

Terminiello v. Chicago,

337 U.S. 1 (1949)

Thornhill v. Alabama,

310 U.S. 88 (1940)

Truax v. Corrigan,

257 U.S. 312 (1921)

United States v. Cardiff,

344 U.S. 174 (1952)

United States v. Cohen Grocery Co.,

255 U.S. 81 (1921) 23

United States v. Laub,

385 U.S. 475 (1967) 31

Watkins v. United States,

354 U.S. 178 (1957) 33

West Virginia v. Barnette,

319 U.S. 624 (1943) 27

Whitney v. California,

274 U.S. 357 (1927) 25

Wieman v. Updegraff,

344 U.S. 183 (1952) 33

Winters v. New York,

333 U.S. 507 (1948) 24

viii

a

Cases Page

Yick Wo v. Hopkins,

118 U.S. 356 (1886) 23, 25

Constitution

United States Constitution:

First Amendment 4, 12, 14, 16, 19,

24, 25, 29, 30, 32

Fourteenth Amendment 4, 14, 16, 29

Statutes

California Penal Code:

$602.7 2, 5, 6, 11-14, 16

$602(j) 5, 6, 11

28 U.S.C. $1257(3) 3

28 U.S.C. $2101(d) 3

Rules

Rules of the United States

Supreme Court:

Rule 22(1) 3

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—,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1969

No.

MARGARET WRIGHT,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE APPEL-

LATE DEPARTMENT OF THE

SUPERIOR COURT OF THE

STATE OF CALIFORNIA FOR

THE COUNTY OF LOS ANGELES

Petitioner Margaret Wright prays that A

Writ of Certiorari issue to review the decision

and judgment of the Appellate Department of the

Superior Court of the State of California for the

County of Los Angeles, entered on January 9,

1970, affirming the judgment of the Municipal

1.

Court of the Los Angeles Judicial District,

entered May 12, 1969, which found petitioner

guilty under a trial without jury of violating

§602.7 of the California Penal Code. [C.T.

9] 1/ The Appellate Department of the Super-

ior Court of the State of California for the

County of Los Angeles denied petitioner's peti-

tion for a rehearing by it or for certification to

the California Court of Appeal, by an order

entered January 28, 1970. [C.T. 10]

OPINIONS BELOW

The opinion of the Municipal Court is not

reported; the Engrossed Statement on Appeal,

settled by said Municipal Court, appears in

full in the certified Record. [C.T. 12-18] The

opinion of the Appellate Department of the

Superior Court of the State of California for the

County of Los Angeles is not reported; a copy

thereof is attached hereto as Appendix "A".

JURISDICTION

The judgment of the Appellate Department

of the Superior Court was entered January 9,

1970. [C.T. 54] The order of the Appellate

1/ | Meaning: Clerk's Transcript, page 9.

2.

oe. Kem TV LIBAIICh OUDAMAD CODY

—

Department of the Superior Court denying

titioner's petition for a rehearing or for

certification of the cause to the California

Court of Appeal, was entered January 28, 1970.

[C.T. 10]

By its refusal to certify, the judgment of

the Appellate Department became the judgment

of the highest California court entitled to hear

the case.

The constitutional issues here presented

were urged in the trial court [E.S. 5/27-7/ 3], 2!

were considered by it and were overruled [id.

5/16-7/3]; they were urged before the Appel-

late Department of the Superior Court by

petitioner in her brief filed therein [C.T. 19-

40, 41-49], and were considered by it and were

again overruled. [C.T. 54-59]

The jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3) and §2101(d), and

Rule 22(1) of the Rules of this Court.

2/ Meaning: Engrossed Statement on Appeal,

page 5, line 27 to page 7, line 3.

QUESTIONS PRESENTED

I. DID THE COURT BELOW, IN HOLp-

ING PETITIONER CRIMINALLY PUNISHABLE

BY FORCE ONLY OF A RETROACTIVE

JUDICIAL EXPANSION OF A STATUTE In-

APPLICABLE BY ITS TERMS TO PETI-

TIONER'S CONDUCT, DiSREGARD THE

UNITED STATES SUPREME COURT'S PLAIN

MANDATE IN BOUIE v. COLUMBIA, 378 U.5,

347, AND THEREBY DENY PETITIONER

BOTH PROCEDURAL AND SUBSTANTIVE

DUE PROCESS OF LAW, AND FREEDOM OF

PETITION, SPEECH AND ASSEMBLY, ALL

CONTRARY TO THE FIRST AND FOUR-

TEENTH AMENDMENTS OF THE CONSTITU-

TION?

Il. WAS THE CLAIMED ADMONITION

TO THE ASSEMBLAGE NOT TO ENTER THE

ADMINISTRATION BUILDING SO FATALLY

AMBIGUOUS THAT NO CONVICTION CAN

BE GROUNDED THEREON CONSISTENT

WITH THE REQUIREMENTS OF DUE PRO-

CESS AND OF LIBERTY OF SPEECH, PETI-

TION, ASSEMBLY AND ASSOCIATION UNDER

THE FIRST AND FOURTEENTH AMEND-

MENTS?

lll. WILL DUE PROCESS AND THE

FIRST AMENDMENT SECURITIES PERMIT

THE CONVICTION BELOW TO STAND INAS-

MUCH AS IT RESTS, IN ONE COEQUAL

ALTERNATIVE, UPON A FINDING ONLY

THAT PETITIONER "AT LEAST ... SHOULD

HAVE HEARD" DR. WALLACE'S COMMAND?

4.

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STATUTORY PROVISIONS INVOLVED

California Penal Code §602(j), provides in

material part that:

"Every person who wilfully commits

any trespass by either: * * * (j) Enter-

ing any lands . . . with the intention

of interfering with, obstructing, or

injuring any lawful business or occu-

pation carried on [thereon] [shall be

guilty of a misdemeanor]. :

The full text of said statute is attached hereto

as Appendix '"B-1".

California Penal Code $602.7, in material

part and as the same appeared at all times

herein material, provided: "In any case in

which a person who is not a student or officer

or employee of a state college or state univer-

sity, and who. . . enters [any] campus or

facility [of any such college or university]'' and

who "fails" "to leave such campus or facility"

upon being "direct[ed] . . . to leave such

campus or facility’ by a proper administrative

official reasonably believing that such person

is interfering with the peaceful conduct of the

activities of such campus or facility, or has

entered thereon for the purpose of committing

such an act [he shall be guilty of a misdemean-

or]. The full text of said statute is appended

hereto as Appendix "B-2".

——

STATEMENT OF THE CASE

On January 13, 1969, petitioner Margaret

Wright, because of conduct occurring on the

campus of the San Fernando Valley State Co]-

lege on January 8, 1969, was charged with

violating the two California misdemeanor "tres.

pass" statutes identified above, Penal Code

§§ 602(j) and 602.7.

In essence §602(j), as excerpted above,

punishes "entering" any lands " with the inten-

tion of interfering with [or] obstructing" any

lawful business carried on there. Separately

and distinguishably, $602.7 punishes any

"failfure]'' by any nonemployee, nonstudent

"to leave" "any campus or other facility" of

any California state college or university upon

being reasonably ''direct[ed] . . . to leave" the

same by an authorized administrative official

reasonably believing the person's conduct to be

interfering with the peaceful activities thereof,

or reasonably believing the person has entered

such campus or facility for the purpose of so

interfering [Emphasis added].

Petitioner was tried without a jury. She

was acquitted under Count One of the "entering'

charge under §602(j), and was convicted under

Count Two of the "fail[ure] * * * to leave"

charge under §602. 7.

The facts, as found in detail and set forth

by the trial court in the ''Engrossed Statement

on Appeal, '' appearing in the certified Record

6.

re

Beocen THODHIICH POOR COPY

_

[c.T. 12-19] are briefly these:

On January 8, 1969, petitioner Margaret

Wright came to the campus of the San Fernando

Valley State College, a California State college

located within the Los Angeles Judicial District

of the State of California, at or about 1:00 P.M.

The college was open and, except for the events

described below, a normal school day was in

progress. Mrs. Wright was neither a student,

officer, nor employee of the college. She is

a black woman and a mother of school-age

children and she had come to the campus at the

invitation of the Valley State College chapter

of the Black Student Union (hereinafter referred

to as the ''BSU") to speak at a rally in an area

on the campus grounds that had been set aside

by the college as a ‘free speech" area.

Prior to her arrival (at 1:00 P.M.), the

rally had been in progress for some time and

various speakers had spoken regarding the

problems, grievances, and demands of black

students at the college.

Upon her arrival at the free speech area,

Mrs. Wright addressed the crowd, speaking on

the necessity and desirability of what she

referred to as ''black education". At this time

there were approximately 300 to 400 persons

attending the rally. On the podium with her

when she was speaking were various members

of the BSU and the Reverend James Hargett, an

individual active in black community affairs

generally and in black student affairs at the

college specifically.

After she completed her talk to the group,

Mrs. Wright and Reverend Hargett were

invited by various members of the BSU to

accompany them to the school's Administration

Building to discuss their grievances with Dr.

Delmar Oviatt, the then acting Dean of the

college. Mrs. Wright testified that when she

was so invited she did not know whether thoge

who had asked her to accompany them to the

Administration Building had an appointment to

see Dr. Oviatt. She personally had no appoint-

ment to see Dr. Oviatt.

Thereafter, and at approximately 1:30

P.M., Mrs. Wright and Reverend Hargett,

and various members of the BSU, proceeded

four or so abreast to the front of the Adminis-

tration Building and were followed by the

crowd of approximately 300 to 400 individuals,

Mrs. Wright was one of the persons in the

front row of this procession to the Administra-

tion Building.

The march from the ''free speech" area to

the Administration Building was peaceful; no

attempts were made to stop or deter the crowd

or petitioner from proceeding to the Adminis-

tration Building. No one requested that peti-

tioner or anyone else leave the campus. .

The crowd, including petitioner, arrived

at the West entrance of the Administration

Building at approximately 1:45 P.M. Upon its

arrival at the building, the crowd, which by

then had grown in size to over 500 persons,

formed a semi-circle around the West entrance

8.

_

area of the Administration Building, and for

approximately 15 minutes thereafter, various

individuals, including petitioner, spoke to the

assembled crowd by means of an amplification

system, more commonly known as a "bullhorn".

During this period, the crowd would intermit-

tently chant ''We want Oviatt. We want am-

nesty.'' In addition, there was a great deal of

general crowd noise in the area. There was

evidence that at the time the crowd gathered in

front of the Administration Building the building

was still in operation and except for the Cash-

ier's area, business was being conducted there-

in as usual.

Dr. Earl Wallace, the then acting Dean of

Students, and the officer of the college who had

been designated to maintain order on the cam-

pus, feared that the crowd would attempt to

enter the Administration Building and carry on

in such a manner therein as to disrupt the

business being carried on therein.

At approximately 2:00 P.M., after having

individually warned Reverend Hargett ''that

demonstrations would not be tolerated within

the Administration Building'', Dr. Wallace took

a position in front of the West entrance of the

Administration Building and, with the aid of

the bullhorn, advised the entire crowd that

"demonstrations would not be permitted inside :

the building, that those entering the building 3

would be subject to arrest and campus discip- e

line."' Dr. Wallace testified that over the

space of a few minutes he made the announce-

ment to the crowd several times in a loud voice.

9.

af

Several witnesses for the prosecution testi-

fied that they were in the crowd, one witness

claiming to be as near as five feet from petj-

tioner, and that they were able to hear and

understand Dr. Wallace's announcement.

Petitioner testified that she did not hear Dr.

Wallace's announcement, and several defenge

witnesses who had been in the crowd in front

of the building testified that they did not hear

any such announcement.

At about 2:20 P.M., Reverend Hargett

addressed the crowd, including petitioner, by

means of the aforesaid bullhorn, and advised

them that they were going to peacefully enter

the Administration Building.

Thereupon various members of the crowd

began to form in a line to enter the building.

A prosecution witness stated he saw Reverend

Hargett, first in line, come through the door,

followed almost immediately by petitioner, that

they entered "like marbles tumbling out of a

bag". Petitioner testified that she walked

peaceably into the building. No one advised

her not to enter as she was in the process of

walking into the building. No one advised her

to leave the Administration Building once she

had made entry. Once inside the building,

neither petitioner nor any of the other persons

who had entered with her engaged in any type

of demonstration. Rather, shortly after she

had entered the building and was merely stand-

ing in the corridor, she was placed under

arrest by members of the Los Angeles Police

Department who had been stationed within the

10.

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_ —

building. Based upon her entry into the build-

ing she was subsequently charged with violating

Penal Code §§ 602(j) and 602.7.

The trial court acquitted petitioner under

Count One of the charge under $602(j) of "enter-

ing" property "with the intention of interfering

with [or] obstructing" lawful activity thereon,

but convicted her in anomalous manner under

Count Two of the charge under $602.7 of "fail-

[ing]" "to leave" a "campus or... . facility"

of a State College upon being reasonably

"direct{ ed] to leave."

Opposing conviction under Count Two for

failure to leave as charged and prosecuted

under $602.7, petitioner urged to the trial

court the following three fundamental conten-

tions:

(1) That there was “absolutely

no evidence" [E. S. 6/1] that petitioner

was ever requested or directed to

leave the Administration Building

premises, as distinguished from being

admonished not to enter thereupon; and

that since petitioner was acquitted of the

direct charge under §602(j) of engaging

in a prohibited entry, and since $602.7

punishes only a failure to leave, there

was no fair evidence of any violation of

§602.7. To construe such statute

retroactively to encompass a claimedly

improper entry, despite the statute's

lack of reference thereto, would violate

petitioner's trial and due process rights

11.

for failure to give fair warning of what

conduct was made punishable and would

violate Bouie and would offend freedom

of speech, assembly and petition for

failure to limit §602.7 to "the strict ang

narrow construction and application"

required under the First Amendment.

[E. S. 5/29-7/3, passim. }

(2) That in any event the evidence

as to even a request or direction not to

enter the premises of the Administration

Building, as embodied in the warning of

Dr. Wallace as described heretofore,

was fatally ambiguous "in that it was not

clear whether mere entry into the building

or entry and demonstration would subject

an individual to arrest."' [E. S. 6/5-7.]

(3) That there was insufficient

evidence, finally, that petitioner heard

the admonition of Dr. Wallace in the

noise and confusion of the events.

[E. S. 4/11-14.]

The trial court overrode all of these points

as urged by petitioner. The court found "that

Mrs. Wright heard, or at least was in a posi-

tion to hear and should have heard Dr. Wallace's

admonition to the crowd regarding demonstra-

tions and entry into the Administration Build-

ing.'' [E. S. 5/18-21.] [Emphasis added] The

trial court ignored point (3). As to point (1),

after "[hJaving determined [the] factual issue"

"that Mrs. Wright heard, or at least was ina

12.

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—"

position to hear and should have heard Dr.

Wallace's admonition", the trial court held

"ag a matter of law, that Mrs. Wright's entry

into the building after Dr. Wallace's admoni-

tion to the crowd was equivalent to her having

failed to leave a campus facility after having

been directed to leave, i.e. the conduct speci-

fically prohibited by Section 602.7 of the

Penal Code." [E. S. 5/21-26, emphasis added]

The trial court conceded that "there was

no evidence that defendant, once having entered

the Administration Building, was directed to

leave and thereupon failed and refused to do

so", but the court rejected petitioner's plea

that §602. 7 be narrowly construed and ruled

that §602.7 applied to petitioner's conduct

because "it was within the spirit of the statute”

"to prevent" an "entry" as well as a failure to

leave, where "disruption could be prevented by

barring [such] entry." [ E. S. 6/27-28, em-

phasis added. ]

The trial court thereupon adjudged peti-

tioner guilty under Count Two for violation of

§602. 7.

On appeal to the Appellate Department of

the Superior Court, petitioner as to point (1)

above urged that upon the Record there was no

evidence consistent with due process of law to

support conviction under §602.7 because there

was no evidence of a direction to leave, or of

a failure to leave, as distinguished from a

claimed prohibited entry. Petitioner urged

that to construe the Section retroactively to

13.

make punishable an entry as alternative to g

failure to leave would violate her rights to

both procedural and substantive due process

and to freedom of speech, assembly and peti-

tion, contrary to the First and Fourteenth

Amendments of the Federal Constitution,

because, inter alia, denying her "fair warning"

in advance “that her conduct would constitute

a violation” of criminal law, and because such

"unforeseeable and retroactive judicial expan-

sion" of the "narrow and precise statutory

language" of §602.7 would "directly" violate

this Court's decision "of Bouie v. City of

Columbia, 378 U.S. 347 (1964)". [A. B. 10-

12 1/ , PointI B; 12/14-15; 13/10-11; 14/1-

5. }

Petitioner also urged to the Appellate

Department points (2) and (3) above which she

had urged before the trial court. [See A. B,

18/6-19/1, as concerns point (2); and 12/26-

29, as concerns point (3). ]

Respecting petitioner's key objection here-

tofore described that §602.7 could not reach

petitioner's conduct because limited in terms

to penalizing a failure to leave premises, after

a direction to leave, whereas the evidence at

best for the State dealt only with a claimedly

improper act of entry, after a request or direc-

tion not to enter, the Appellate Department

1/ Signifying Appellant's Brief ("Brief on

Appeal for Appellant'') to the Appellate Depart-

ment of the Superior Court, pages 10-12.

14,

—y a sO Ue ———- - —.- .— ~

_——

divided two to one in sustaining petitioner's

conviction under the Section. For the majority,

Presiding Judge James G. Whyte observed:

The offense here is failure to leave

after direction to do so. It may be

conceded that a prior instruction not to

enter is, in itself, not a direction to

leave. ... [However, ] [hJere Dr.

Wallace's statement that the persons

were not to enter was. . . accompan~

ied by a warning of arrest upon entry.

Surely there could be no more forceful

way of telling one to leave than to

advise him that his departure will be

accomplished by his arrest and the

consequent forcible removal of his

person."

In contrast, dissenting Judge A. Curtis

Smith, voted to reverse, observing, "The

statute clearly requires as one element of the

offense an authorized direction to leave and a

failure to comply. I cannot equate a warning

not to enter before entry with the statutory

requirement of a direction to leave, presum-

ably after entry."

In light of the Record and the Appellate

Department's words quoted above, it is plain

that such Court made the statute fit the conduct

at bar only by force of a retroactive judicial

"expansion" of the statutory terms. That a

reasonable person, situated as was petitioner

in advance of the events of January 8, 1969,

15.

could reasonably read the statute, $602.7, to

not cover any act merely of entry, whether

warned against or not, is demonstrated not

only by language and logic but by the avoweg

reading of the statute in such manner even

after the fact by dissenting Judge A. Curtis

Smith.

REASONS FOR GRANTING

THE WRIT

I

THE COURT BELOW IN HOLDING

PETITIONER CRIMINALLY PUN-

ISHABLE BY FORCE ONLY OF A

RETROACTIVE JUDICIAL EXPAN-

SION OF A STATUTE INAPPLIC-

ABLE BY ITS TERMS TO PETI-

TIONER'S CONDUCT, HAS

DISREGARDED THIS COURT'S

PLAIN MANDATE IN BOUIE v.

COLUMBIA, 378 U.S. 347, AND

HAS DENIED PETITIONER BOTH

PROCEDURAL AND SUBSTANTIVE

DUE PROCESS OF LAW, AND

FREESOM OF PETITION, SPEECH

AND ASSEMBLY, ALL CONTRARY

TO THE FIRST AND FOURTEENTH

AMENDMENTS OF THE CONSTITU-

TION.

As set forth in the Statement of the Case,

16.

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_—

the statute below by its terms makes punishable

only a failure to leave a state college campus

or facility after request to leave. It does not

in terms apply to a claimedly prohibited entry

following a request not to enter. Nonetheless

petitioner was convicted below for conduct

amounting at most to a claimedly prohibited

entry. The California courts below have sanc~-

tioned such conviction, and have justified it,

solely by force of an unforeseeable, retroactive

judicial "construction" or "expansion" of the

statute to reach petitioner's conduct despite

the absence of coverage by the statute's terms.

This exact action by a state court (in fac-

tual premises so closely parallel to those at

bar as to beggar any attempts at distinction)

was held unconstitutional and void by this

Court's decision in Bouie v. Columbia, 378 U.S.

347 (1964), because such action ‘violates the

first essential[s] of due process" and "operates

precisely like an ex post facto law". (Id., 351,

353. ) Bi

Bouie, in this Court's forceful and meas-

ured statement, involved a South Carolina

statute by terms "app!(ying] only to ‘entry upon

the lands of another. . . after notice [not to

enter]' " (id., 351-352, emphasis added),

which "narrow and precise" statutory terms

were 'unforeseeably and retroactively expanded

by judicial construction" (id., 352) to "also

prohibi[t] the different act of remaining on the

premises after being asked to leave. " Gd.,

356, emphasis added. ) Consequently, said this

Court the petitioners-defendants there were given

17.

"[no] fair warning at the time of their conduct

. . that the act for which they [were] con-

victed was rendered criminal by the statute.

* * * [P]Jetitioners were given not only no

‘fair warning', but no warning whatever that

their conduct [in refusing to leave] would

violate the statute [which prohibited only im-

proper entry]."" (Id., 355, emphasis added.)

The Bouie judgment applies in its very

terms to the case at bar. There is no basis

for distinction. Nonetheless the California

trial and appellate courts below disregarded

and failed to observe the controlling, plain

mandate of Bouie, and this without even explan-

ation or discussion. The intervention of this

Court, either by summary reversal, or by

hearing and order upon certiorari, is required

to vindicate the Federal supremacy of the Bouie

decision, and to insure uniformity of law and

rights within the premises of Bouie throughout

the country.

Bouie has never been qualified or questioned,

nor does it stand alone. It was followed in two

concurrent cases at the time of its rendition

{Barr v. Columbia, 378 U.S. 146, 151 (1964);

Mitchell v. Charleston, 378 U.S. 551 (1964)]

and it has been cited and approved in this

Court's subsequent ruling in In Re Ruffalo,

398 U.S. 544, 551, f.n. 4 (1968). And the

decision in Bouie was itself grounded upon the

precedent of Pierce v. United States, 314 U.S.

306 (1941).

18.

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—_

Moreover, the Constitutional doctrine of

Bouie condemning unforeseeable, retroactive

judicial expansion of criminal statutes, is

constructed from, and supported by, a whole

host of due process and First Amendment

Constitutional principles reaching back a half

century andmore. All of these Constitutional

fundamentals serve separately and in combina-

tion to require the holding in Bouie, and all

apply equally and identically as well to require

invalidation of the conviction at bar.

(1) Procedural Due Process

"t™nforeseeabl[e] and retroactiv[e] expan-

[sion] by judicial construction" (Bouie, supra,

at 352) of a criminal statute to reach conduct

not reasonably embraced within its terms,

deprives an accused of due process "in its prim-

ary sense’, being "procedural due process of

law" [Brinkerhoff-Faris Trust Co. v. Hill, 281

U.S. 673, 678 (1930) (emphasis added); Bouie,

supra, at 354)] which requires indispensibly

notice’ and "hearing" and a right to immunity

from condemnation save by ''a law which hears

before it condemns." [Powell v. Alabama, 287

U.S. 45, 68 (1932)]. This requires, of necessity

reasonable and meaningful advance notice of the

charges laid, before hearing, and certainly

before condemnation. [In Re Oliver, 333 U.S.

257, 273 (1947); Cole v. Arkansas, 333 U.S.

196, 201 (1947)}. Conviction without such notice

is "[c]onviction upon a charge not made", and

19.

—

such amounts in very statement to "sheer [ang

total] denial of due process." [De Jonge y.

Oregon, 299 U.S. 353, 362 (1937); Grego v.

Chicago, 394 U.S. 111, 112 (1969); Garner y.

Louisiana, 368 U.S. 157, 164 (1961)}. "The

charge must be known before the proceedings

commence [else] [t]hey become a trap" (In Re

Ruffalo, supra, at 551, emphasis added) and no

more fair as a means of punishment than for

the State to prosecute a man under statute A

and to punish him under statute B without ever

previously suggesting the latter as the basis

of an accusation. (Cole v. Arkansas, supra,

at 201-202.)

The conviction below, being founded on

after-the-fact judicial expansion of a criminal

statute to reach conduct not foreseeably includ-

able within its plain terms, offends thus the

"first premises" of procedural due process,

the rights to notice and to a hearing predicated

thereon.

(2) Substantive Due Process And

The Doctrine of 'Void For

Vagueness", And The Fundamen-

tal Requirement That Criminal

Laws Must Give "Fair Warning"

Of What Is Made Punishable.

For half a century this Court has resolutely

enforced as a "first essential" of substantive

due process [Lanzetta v. New Jersey, 306 U.S.

20.

BLEED THROUGH POOR COPY

451, 453 (1939)], mandated by "fundamental

fairness’ [Scull v. Virginia, 359 U.S. 344,

353 (1959); Johnson v. United States, 318 U.S.

189, 197 (1943)], the Constitutional doctrine of

"void for vagueness’, whereunder a state

criminal statute may not be enforced unless

upon its face it gives citizens "fair warning"

of the conduct to be punished. [United States

v. Cardiff, 344 U.S. 174, 176 (1952); Raley v.

Ohio, 360 U.S. 423, 438-439 (1959)]. A crim-

jnal law which is so ambiguous, vague or un-

clear as to fail to reasonably apprise ''those

. . subject to [its terms] what conduct on

their part will render them liable to its penal-

ties" is by that failure "void for vagueness".

[Connally v. General Construction Co., 269

U.S. 385, 391 (1926); Lanzetta v. New Jersey,

supra, at 453; Bouie v. Columbia, supra, at

351. ]

The vice of vague criminal statutes is, in

this Court's words, ''the treachery they con-

ceal'' in misleading citizens as to what is truly

intended to be punishable; if suffered to stand

such laws can become "as much of a trap for

the innocent as the ancient laws of Caligula."

(United States v. Cardiff, supra, at 176.) But

convictions had under criminal statutes retro-

actively "expanded" by judicial "construction"

to reach conduct not reasonably within their

terms, not merely parallel this ''treachery",

they compound it. In consequence such "judi-

cial expansion" convictions must fail under the

requirements of the void for vagueness" doc-

trine, unless that ancient doctrine itself is to

be set at naught. As this Court observed in

Bouie, supra, at 352:

21.

"When a statute on its face is

vague or overbroad, it at least gives

a potential defendant some notice, by

virtue of this very characteristic, that

a question may arise as to its coverage,

and that it may be held to cover his

contemplated conduct. When a statute

on its face is narrow and precise, how-

ever, it lulls the potential defendant

into a false sense of security, giving

him no reason even to suspect that

conduct clearly outside the scope of

the statute as written will be retro-

actively brought within it by an act of

judicial construction."

(3) Absence of Legislative Standards

Under Vague (Or Judicially

Expandable) Statutes, and the.

Substitution Thereby Allowed Of

Arbitrary Discretion and the Rule

Of Men For the Constitutionally-

Required Rule of Law.

The unconstitutionality of vague (or judi-

cially expanded) criminal statutes derives not

only from their "fail{ure] to give adequate

guidance to those who would be law-abiding"

[Musser v. Utah, 333 U.S. 95, 97 (1948)], but,

equally important, from their failure to provide

adequate, objective, controlling legislative

standards to govern prosecutors, police, courts,

and juries in administering and enforcing their

22.

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—

terms, a failure which leaves such persons

"free to decide, without any legally fixed

standards, what is prohibited and what is not

in each particular case.'' [Giaccio v. Pennsyl-

yania, 382 U.S. 399, 402-403 (1966); United

States v. Cohen Grocery Co., 255 U. S. 81, 88-

92 (1921); Small Co. v. American Sugar Refin-

ing Co., 267 U.S. 233, 240 (1924); Connally v.

General Construction Co., supra, at 395;

Musser v. Utah, supra, at 97; Boyce Motor

Lines v. United States, 342 U.S. 337, 340

(1952)].

This not only violates the basic Constitu-

tional principle prohibiting improper and

arbitrary delegation of legislative powers, but

it substitutes for even-handed, ascertainable

law the ad hoc "law" of the administering and

enforcing representatives of the government,

which, in crucial terms, can often mean

"government by the moment-to-moment opin-

ions of a policeman on his beat."' [Shuttles-

worth v. City of Birmingham, 382 U.S. 87, 90

(1965)]. Such is the antithesis of substantive

due process, which takes it as a beginning

premise that government in entirety under the

American Constitution is, and can only be, ''a

government of laws and not of men." [Yick Wo

v. Hopkins, 118 U.S. 356, 370 (1886); Truax

v. Corrigan, 257 U.S. 312, 332 (1921); Barbier

v. Connolly, 113 U.S. 27, 31 (1885)].

(4) The Above Principles Have

Particular Force in Areas

Touching Or Involving Free-

dom of Speech, Press, Petition,

Assembly Or Association.

Where exercises of First Amendment

liberties are involved or affected, the Constity-

tional principles prohibiting vague criminal

Jaws or accusations operate with special force.

[Scull v. Virginia, supra, at 353; Smith vy.

California, 361 U.S. 147 (1959); Cram v.

Board of Public Instruction, 368 U.S. 278, 297

(1961); Baggett v. Bullitt, 377 U.S. 360, 385

(1964); NAACP vy. Button, 371 U.S. 415 (1963);

Winters v. New York, 333 U.S. 507, 517 (1948)],

Within such areas such laws, which by

definition and the inevitable consequence of

their vagueness admit of arbitrary, discretion-

ary and abusive enforcement, are condemned

upon their face, and in category, by "decisions

of this Court over the last 30 years"; this

because to tolerate within the area of "First

Amendment freedoms" criminal laws or regula-

tory procedures unconfined by "narrow, objec-

tive and definite standards" to scrupulously

govern their enforcement is to suffer the crea-

tion of a wholly improper, intolerable and

intimidating structure of governmental "censor-

ship [and] prior restraint [over] the exercise

. of free expression." [Shuttlesworth v.

City of Birmingham, 394 U.S. 147, 151 (1969);

Staub v. Baxley, 355 U.S. 313, 322 (1958)).

24.

Because of the "transcendent" interests of

society attending free operation of the liberties

of the people secured by the First Amendment---

liberties upon which the democratic life of the

nation depend [New York Times Co. v. ‘v. Sullivan

376 U.S. 254, 269-271 (1964); Stromberg v.

California, 283 U.S. 359, 369 (i63i); Deo De Jonge

v. Oregon, supra, at 365; Whitney v. Cali-

fornia, 274 U.S. 357, 375-378 (1927) (concur-

ring opinion of Brandeis, J.); Yick Wo v.

Hopkins, supra, at 369- 370)}--vague or ambig-

uous criminal or regulatory laws affecting such

liberties are intolerable per se. The "mere

existence of such [laws]" which "readily len{d]

[themselves] to harsh and discriminatory

enforcement by [petty] officials, against parti-

cular groups deemed to merit their displeasure”

erects a "continuous and pervasive restraint

on all freedom of discussion" and replaces

freedom of speech with "the pernicious [evil]

of censorship."' [Thornhill v. Alabama, 310

U.S. 88, 97-98 (1940) (emphasis added. )]

If vague penal or regulatory statutes with-

in the areas of the First Amendment are thus

categorically invalidated for failure to secure

citizens against arbitrary censorship and

abusive, discretionary and discriminatory

enforcement, all the more plainly must con-

victions in such areas be condemned where

supported only by after-the-fact judicial expan-

sions of criminal statutes not applicable at all

to a defendant's conduct in advance of such

retroactive construction”. If arbitrary,

discretionary punitive powers in the area of

free speech are intolerable when exercised

25.

and justified under vague laws, which at least

afford some modicum of contention that the

government's claim of authority has a valid

base, then comparable arbitrary, discret

punitive powers must be twice condemned where

asserted under statutes which upon their face

have no applicability in the circumstances con-

cerned and which give the enforcing authorities

no color of right. To sustain criminal punish-

ment in such stated premises, supported only

by after-the-fact judicial expansion of the

statute to reach conduct not reasonably within

its terms, extends the evils of censorship,

prior restraint and intimidatory suppression of

ideas to the ultimate.

(5) The Grievances and Subject

Matter Of the Exercises Of

Liberty Involved At Bar Parti-

cularly Require Vindication.

The purpose of the assembly by petitioner

and others at the time and place of the charge

laid against her below was to petition the govern-

ing administrative authorities of Valley State

College on behalf of black students and the Los

Angeles black community for a redress of

grievances arising from invidious, unconstitu-

tional discrimination based upon race with

respect to rights, status, facilities, opportuni-

ties and educational experiences available to

black people. That such grievances constitute

a lawful occasion for assertion of the liberties

26.

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V————

of petition, assembly, association and speech,

ig not, and could not be, disputed by the State.

That much at least is settled by Brown v.

Board of Education, 347 U.S. 483 (1954).

But the Constitution makes much more

self-evident as well. The State denials of

rights forming the subject matter of petitioner's

protest, and petition for redress, were them-

selves supremely illegal, and as unconstitu-

tional in truth and in law as they were and are

intolerable to passively endure. The right to

immunity from discrimination grounded on

race lies at the root of those personal dignities,

securities and liberties which this Court has

affirmed "depend on the outcome of no elec-

tions", and which by their "fundamental" nature

lie beyond the lawful reach of others, no matter

how assembled nor with what purpose or

majority. In this Court's words:

"The very purpose of a Bill of

Rights was to withdraw certain sub-

jects from the vicissitudes of political

controversy, to place them beyond the

reach of majorities and officials and

to establish them as legal principles

[entitled to summary vindication] by

the courts. One's right to life, liberty

and property. . . and other funda-

mental rights may not be submitted

to vote; they depend on the outcome

of no elections."

West Virginia v. Barnette, 319 U.S.

624, 638 (1943);

27.

Citizens' Loan Association y. Topeka,

87 U.S. (20 Wall.) 655, 662-663

(1875).

A citizen subjected involuntarily to the

' denials of liberty affected at bar may not

rightly be twice abused by the State by intimi-

datory criminal punishment, invoked and justi-

fied under a law not even applicable to her

conduct until "expanded" after-the-fact by judi-

cial "construction", simply for protesting

against, and petitioning for redress of, the

denials and mistreatments which she believed

had been accorded black persons generally ang

Valley State College students specifically, If

this Court cannot hear her voice, and vindicate

her right to cry out, then, indeed, is the loss

the nation's.

Ri cen THROUGH POOR COPY

—

II

THE CLAIMED ADMONITION TO

THE ASSEMBLAGE NOT TO ENTER

THE ADMINISTRATION BUILDING

WAS FATALLY AMBIGUOUS, AND

NO CONVICTION CAN BE GROUNDED

THEREON EVEN AS TO PETITION-

ER'S ACT OF ENTRY, CONSISTENT

WITH THE REQUIREMENTS OF DUE

PROCESS AND OF LIBERTY OF

SPEECH, PETITION, ASSEMBLY

AND ASSOCIATION UNDER THE FIRST

AND FOURTEENTH AMENDMENTS.

The testimony of Dr. Earl Wallace, acting

Dean of Students, as found and quoted by the

trial court, was that with the aid of a bullhorn

he advised "the entire crowd" "several times

in a loud voice" "that 'demonstrations would

not be permitted inside the building, [and] that

those entering the building would be subject to

arrest and campus discipline.'" [E. S. 4/1-6.]

In both the trial court and Appellate Depart-

ment, petitioner objected that even as to the

subject of claimedly prohibited entry, such

ammouncement by Dr. Wallace was fatally

"ambiguous in that it was not clear whether

mere entry into the building or entry and

demonstration would subject an individual to

arrest."" [E. S. 6/5-7; A. B. 18/6-19/1.]

Petitioner urged "that a reasonable

29.

interpretation of this ambiguous warning is

that entry coupled with demonstration was the

conduct which Dr. Wallace sought to prevent"

and if "entry and subsequent demonstration"

was the conduct Dr. Wallace intended to pro-

hibit and prevent, then "appellant should not

have been arrested or convicted for there was

no demonstration." [A. B. 18/20-28.] I,

however, Dr. Wallace "intended that either

entry or demonstration would provide a [suffi-

cient] basis for arrest and conviction", "as the

trial court held [that he did]", then, urged

petitioner, ''the manner in which he indicated

this to the assembled crowd was so ambiguous

as to fail to give fair warning as required by

the Due Process clause of the Fourteenth

Amendment." [Id., 18/28-19/1.] Such

ambiguity in a criminal command is violative

per se both of substantive and procedural due

process of law. [Raley v. Ohio, 360 U.S. 423,

438-439 (1959); United States v. Cardiff, 344

U.S. 174, 176 (1952); Garner v. Louisiana,

368 U.S. 157, 164 (1961); see also the cases

cited under Point I (1) and (2), supra. )]

Particularly is this the case where freedom

of speech, petition, assemblage or association

are involved and where one alternative under

the ambiguous State command would punish

innocent and protected First Amendment speech

or assemblage. [Stromberg v. California, 283

U.S. 359, 367-368 (1931); Terminiello v.

Chicago, 337 U.S. 1, 4-5 (1949); Ashton v.

Kentucky, 384 U.S. 195, 199-200 (1966);

Edwards v. South Carolina, 372 U.S. 229, 237-

238 (1963); Henry v. City Rock Hill, 376 U.S.

30.

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—

7176, 778 (1964); Cox v. Louisiana, 379 U.S.

536, 551-552 (1965); Street v. New York, 394

U.S. 576 (1969); Gregory v. Chicago, 394 U.S.

111, 113 (1969)].

An ambiguous State command is even more

offensive to liberty of speech and to criminal

due process---both substantive and procedural

---than is a merely vague statute or command,

because ambiguity has the special jeopardy of

being latently entrapping, and of punishing

after the fact what a citizen may have reason-

ably understood had been expressly declared to

be permissible. [Cox v. Louisiana, 379 U.S.

536, 568-575 (1965); Raley v. Ohio, supra, at

438; Stevens v. Marks, 383 U.S. 234, 245

(1966); Scull v. Virginia, supra, at 353;

Street v. New York, supra; Gregory v. Chicago,

supra; United States v. Laub, 385 U.S. 475,

487 (1967)).

Ill

DUE PROCESS AND THE FIRST

AMENDMENT SECURITIES WILL

NOT PERMIT THE CONVICTION

BELOW TO STAND BECAUSE IT

RESTS, IN ONE COEQUAL ALTER-

NATIVE, UPON A FINDING ONLY

THAT PETITIONER "AT LEAST

. . . SHOULD HAVE HEARD" DR.

WALLACE'S COMMAND.

The trial court did not find that petitioner

heard" the admonition above described by

Dr. Wallace to the assembled crowd regarding

demonstrations and entry into the Administra-

tion Building. Upon this crucial element of

notice to petitioner of such prohibition or direc-

tion, the trial court found only "that Mrs.

Wright heard, or at least was in a position to

hear and should have heard Dr. Wallace's

[said] admonition." [E. S. 5/18-21.] (emphasis

added. )

This is a fatally defective finding. Under

it petitioner's conviction may rest merely

upon the non-penalizable circumstance that in

all of the premises attending the assemblage

of persons before the Administration Building

on January 8, 1969, she "should have heard"

Dr. Wallace's admonition. "Should have heard’

does not mean heard. And without hearing,

there could be on petitioner's part no knowledge

or scienter, and without this petitioner's

32.

BLEED THROUGH POOR COPY

conduct could not be deemed punishable under

the statute. Section 602.7 requires a "direct-

[ion]. . . to leave" and a "fail{ure] [then] to

do so", and a direction must be heard to make

a failure to respond thereto a penalizable cir-

cumstance.

A defendant may be presumed "to know the

law'', but he may not be presumed to know the

contents of a spoken admonition, direction or

request, as involved at bar. If hearing were

not required, there would be no rational object

under the statute for requiring a "direction".

In the premises here, an absence of a require-

ment and finding of scienter as a condition for

conviction amounts to punishment without

punishable quality in word or act, and offends

due process [Robinson v. California, 370 U. Ss.

660, 666-667 (1962); Lambert v. California,

355 U.S. 225, 228-230 (1957); Aptheker v.

Secretary of State, 378 U.S. 500, 509-514

(1964); Morrisette v. United States, 342 U.S.

246 (1952)], and violates specially and particu-

larly the protections and securities of the

First Amendment. [Smith v. California, 361

U.S. 147, 150-155 (1959); Elfbrandt v. Russell,

384 U.S. 11, 15-19 (1966); Noto v. United

States, 367 U.S. 290, 299-300 (1961); Wieman

v. Updegraff, 344 U.S. 183, 190-192 (1952);

Watkins v. United States, 354 U.S. 178, 208-

216 (1957)].

33.

CONCLUSION

WHEREFORE, the Petition for a Writ of

Certiorari to the Appellate Department of the

Superior Court of the State of California for the

County of Los Angeles should be granted.

Respectfully submitted,

WILLIAM B. MURRISH and

MARSHALL L. BARTH

Attorneys for Petitioner

34.

APPENDIX "A"

Filed Jan 9 1970

William G. Sharp,

County Clerk

By R. Von Gogh, Deputy

APPELLATE DEPARTMENT OF THE

SUPERIOR COURT OF THE STATE

OF CALIFORNIA FOR THE COUNTY

OF LOS ANGELES

PEOPLE OF THE STATE OF ) Superior

CALIFORNIA, ) Court No.

) CR. A. 8618

Plaintiff and Respondent, )

) Trial Court

vs. )No. 641107

)

MARGARET WRIGHT, ) MEMORAN-

| )DUM OPINION

Defendant and Appellant. )AND JUDG-

) MENT

Appeal by defendant from judgment of the

Municipal Court of the Los Angeles Judicial

District, Wilbur G. Dettmar, Judge.

Judgment affirmed.

For Appellant - Selvin and Cohen

by Marshall L. Barth

A-1.

For Respondent - Roger Arnebergh, City

Attorney

Madeleine Flier, Deputy

City Attorney

-o0Oo-

Defendant was convicted of violating Pena)

Code $602.7 which makes it a misdemeanor

for "a person who is not a student or officer

or employee of a state college" who "is com-

mitting any act likely to interfere with the

peaceful conduct of the activities" of a facility

of such state college to fail to leave such

facility after being properly directed to do 80.

The constitutionality of Penal Code $602.7

has been established by People vs. Agnello

[1968] 259 Cal. App. 2d 785 [66 Cal. Rptr.

571]. The question here involved is, was

there sufficient evidence to support the trial

court's finding that defendant violated it. In

determining this question, we review the

evidence as a whole and are not limited by the

trial judge's declaration of his reasons for

believing it sufficient. (People vs. Selz [1955]

138 Cal. App. 2d 205, 210 [291 P. 2d 186);

People vs. Evans [1967] 249 Cal. App. 2d

254, 257 (57 Cal. Rptr. 276].

The facility here involved was not the

entire campus of San Fernando Valley State

College. No one ever requested defendant to

leave the campus or in any way sought to cur-

tail her activities so long as she remained in

the free speech" area. Rather, the facility

A-2.

—

involved in this case was the administration

building and the question is, was defendant

directed to leave that facility.

Preliminarily, three items should be

quickly noted. The defendant is not one of the

exempted persons and so falls within the pro-

hibitions of the statute. Both Dr. Wallace, as

the officer of the college who had been desig-

nated to maintain order on the campus, and

security officer Norris as an employee desig-

nated to maintain order by Dr. Oviatt, the

chief administrative officer of the college,

were proper persons to direct the defendant to

leave. Not only did it reasonably appear that

the acts of the crowd, of which plaintiff was

not only a part but an active leader, were

reasonably likely to interfere with the peace-

ful conduct of the activities of the facility but

they had already done so by causing the closing

of the cashier's office immediately adjacent to

the west entrance of the building (Settled State-

ment, p. 3, lines 7-8).

The offense here is failure to leave after

direction to do so. It may be conceded that a

prior instruction not to enter is, in itself, not

a direction to leave. The question here is,

was there evidence in this case to support the

trial court's finding of a substantial compliance

with the requirement of a direction to leave.

The section specifies no special ritual

which must be performed by the warning auth-

orities. All that is required is that the mes-

sage is clearly conveyed so that a reasonable

A-3.

person would definitely understand he was

being told to leave the facility. Here Dr.

Wallace's statement that the persons were not

to enter was repeated practically contempor-

aneously with the actual entrance and was

accompanied by a warning of arrest upon entry.

Surely there could be no more forceful Way of

telling one to leave than to advise him that his

department will be accomplished by his arrest

and the consequent forceable removal of his

person. But the evidence does not stop here.

The doors and vestibule are part of the build-

ing (the facility which defendant was to leave),

Dr. Hargett came through the door "followed

almost immediately by the defendant." It was

then that officer Norris, who was within arm's

length of defendant, held out his arms to block

those who were tumbling in "like marbles out

of a bag" and warned against the already accom-

plished entry. Although Norris did not see the

defendant as an individual and no one advised

her as an individual not to enter, the trial

court could, and apparently did, infer that she

both saw and heard Norris attempt to restrain

the crowd in general as they accomplished

their entry. The law does not require the

people to meet the burden of showing any direct

evidence an actual instruction to leave given

each individual arrested. Circumstantial

evidence of the individual's receipt of such

instruction is all that is necessary.

The judgment is affirmed.

a

Dated January 9, 1970

/s/ Whyte

Presiding Judge

/s/ Smith

Judge

In all deference to the views of my col-

leagues, I am forced to disagree with their

conclusion. With most of their opinion I am in

complete agreement. I agree that Section

602. 7 Penal Code is constitutional; that the

facility with which we are concerned is not the

entire campus but rather the administration

building; that the defendant is not of the class

exempted from the statute; that there is

evidence of a warning not to enter the building

and that defendant heard it; that there is

evidence that defendant was an active leader

of some five hundred persons in activities

which were designed to and had actually inter-

fered with the peaceful conduct of the legitimate

purposes of the school facility; and, finally, I

agree that no special ritual is imposed on the

school authority warning the accused to leave.

But I do believe that an essertial element

of the crime is a direction "to leave such cam-

pus or facility."

The defendant was charged in two counts.

In Count I, the charge was a violation of Penal

Code 602 sub(j) prohibiting entry on land for

the purpose of interfering with any lawful

A-5.

occupation thereon. The defendant was

acquitted of this charge. Thus, the tria) court

found that defendant did not enter on any land

for the purpose of interfering with any lawfy]

occupation thereon.

She was convicted of a violation of Penal

Code 602.7. There is ample evidence to sugs-

tain a finding of violating each element except

failing to leave the facility after being directed

to leave.

From the Settled Statement, I abstract the

following recital bearing on this question:

". . . Dr. Wallace took a position

in front of the West entrance of the

Administration Building and, with the

aid of the bullhorn, advised the entire

crowd that 'demonstrations would not

be permitted inside the building, that

those entering the building would be

subject to arrest and campus discip-

ES

"Various members of the crowd

began to form in a line to enter the

building. . . . He stated he saw Rev.

Hargett, first in line, come through

the door, followed almost immediately

by the defendant, that they entered

‘like marbles tumbling out of a bag'

(defendant testified to the contrary;

namely she walked peaceably into the

building) and that defendant was no

more than an arm's length from

A-6.

Norris when he saw Norris stretch

out his arms and heard him warn the

persons before him against coming

into the building; . . . saw the defend-

ant enter immediately thereafter, and

following her entry placed her under

arrest. ... Noone advised her not

to enter as she was in the process of

walking into the building. No one

advised her to leave the Administration

Building once she had made entry. 2

(Settled Statement, pp. 3-5.)

The statute clearly requires as one element

of the offense an authorized direction to leave

and a failure to comply. I cannot equate a

warning not to enter before entry with the

statutory requirement of a direction to leave,

presumably after entry. If this interpretation

results in increased difficulty in maintaining

order on school property, the remedy is with

the Legislature, not the courts.

I would reverse the judgment.

Dated January 9, 1970

/s/ Vasey

Judge

ee Sse, A as iak at 16

APPENDIX "B-1"

§602. Trespasses constituting misdemeanors;

enumeration

Every person who willfully commits any

trespass by either:

(j) Purpose to Injure.

(j) Entering any lands, whether unen-

closed or enclosed by fence, for the purpose

of injuring any property or property rights or

with the intention of interfering with, obstruct-

ing, or injuring any lawful business or occupa-

tion carried on by the owner of such land, his

agent or by the person in lawful possession; or

APPENDIX "B-2"

§602.7 Refusal to leave state college or uni-

versity property; misdemeanor

(a) In any case in which a person who is

not a student or officer or employee of a state

college or state university, and who is not

required by his employment to be on the cam-

pus or any other facility owned, operated or

controlled by the governing board of any such

state college or state university, enters such

campus or facility, and it reasonably appears

to the chief administrative officer of such

campus or facility or to an officer or employee

designated by him to maintain order on such

campus or facility that such person is commit-

ting any act likely to interfere with the peace-

ful conduct of the activities of such campus or

facility or has entered such campus or facility

for the purpose of committing any such act,

the chief administrative officer or officer or

employee designated by him to maintain order

on such campus or facility may direct such

person to leave such campus or facility, and

if such person fails to do so, he is guilty of a

misdemeanor.

(b) As used in this section:

(1) "State university'' means the Univer-

sity of California, and includes any affiliated

institution thereof and any campus or facility

owned, operated or controlled by the Regents

of the University of California.

B-2-1.

(2) "State college" means any California”

state college administered by the Trusteeg of

the California State Colleges.

(3) "Chief administrative officer" mear

the president of a state college or the officer

designated by the Regents of the University of

California or pursuant to authority granted by i

the Regents of the University of Californiato —

administer and be the officer in charge ofa

campus or other facility owned, operatedor

controlled by the Regents of the University of |

California. (Added Stats. 1965, c.475, p.1778,

§1, urgency, effective June 1, 1965.) 7

B-2-2.