# Petition for Writ of Certiorari — Wright v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1504%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1970 - **Citation:** 398 U.S. 939 ## Text IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1969 No. MARGARET WRIGHT, Petitioner, vs. STATE OF CALIFORNIA, Respondent. ¢ 2 oe’ & i S — & 4 fs Pn, pa 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 BLEED THROUGH POOR COPY 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 BLEED THROUGH POOR COPY 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 BLEEO THROUGH POOR COPY —, 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. BLEED THROUGH POOR COPY — 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. BLEED THROUGH POOR COPY _ — 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. BLEED THROUGH POOR COPY —" 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. BLEED THROUGH POOR COPY _— 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. BLEED THROUGH POOR COPY —_ 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. BLEED THROUGH POOR COPY — 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. eicen THROUGH POOR COPY 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. BLEED THROUGH POOR COPY — 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1504%3A1. Public record. Not legal advice.