Petition for Writ of Certiorari — Dapper v. Municipal Court, San Diego Judicial District

‘ OP OUD mA Marr {

FILED

FILE Copy MAY 11 1970

_ JOHN F. DAVIS, CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1969

WWA EER 1 55 4

JOHNNY B. DAPPER

vs.

CALIFORNIA

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CALIFORNIA

Johnny B. Dapper

In propria persona

335 N 34 Street

San Diego, California

Zip Code 92102

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1969

JOHNNY B. DAPPER

vs.

CALIFORNIA

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COA OF THE STATE OF CALIFORNIA

20: THE HONORABIZ CHIEF JUSTICE AND ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED STATES

Johnny B. Dapper, in propria persona, the pet-

itioner herein, prays that a Writ of Certiorari is-

sue to review the judgment of the Supreme Court of

California. Which Court on December 10, 1969 denied

a Hearing on his petition to review the Opinion of

a California Appellate Court. (Dapper vs. Municipal

Court 276 A. C. A. 982 81 Cal Rptr 340

GROUNDS FOR JURISDICTION

The California Supreme Court by denying a Hear

ing, has upheld Opinion of a California Appellate

Court that sanctions double jeopardy. Which is for-

bidden by the V and XIV Amendments to the United

States Constitution. And also this opinion is false

in stating; petitioner was convicted of maintaining

a criminal nuisance. The truth is; petitioner was

never convicted of maintaining a criminal auisance.

HEARING DENIED - EXTENTION GRANTED

A petition for a Hearing was denied on Deo-

ember 10, 1969. An Order granting extention of tise

to petition for a Writ of Certiorari,to and inclué-

ing April 30, 1970 was made by Mr. Just 10 Willies

0. Douglas on March 23, 1970.

STATUTORY PROVISION

Petitioner deems his rights to protection from

being twice placed in jeopardy for the same crime,

ani to the due process of law, guaranteed by the V

and XIV Amendments to the United States Constitut-

ion. To have been violated by the California Courts

Thereby confering jurisdiction on this Court.

QUESTIONS PRESENTED FOR REVIEW

1. Does the Constitution exclude any type of coring

from the protection against a second prosecution fop

the same crime, under the twice in Jeopardy clause

of the J Amendment.

2. Can the State subject one to repeated prosecut-

ions for the same continuing crime,not a repetition,

but the same, original crime. Without violating the

and XIV Amendments to United States Constitution,

3. Are California Penal Code Section 373a and Sec-

tion 11.12 San Diego Municipal Code in accord with

the twice in Jeopardy clause of the v Amend ment.

LAW THE CASE INVOLVES

United States Constitution amendment v. „nor

shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; . . nor be

deprived of life, liberty, or property, without due

process of las?

United States Constitution Amendment AIV. « No

State shall make or enforce any law “hich shall abr-

4a ge the privileges or immnities of citizens of the

United States; nor shall any State deprive any per-

son of life, liberty,or property, without due pro-

cess of law; nor deny to any person within its jur-

{fediction the equal protection of the laws.

California Penal Code Section 373a, and Section

11.12 San Diego Municipal code. Please see page 7

STATEMENT OF THE CASE

This cause concerns a Superior Court order, No.

507754 denying a Writ of Prohibition to restrain the

Municipal Court of San Diego Judicial District, from

proceeding with a second trial,M 63320, based on the

same facts, that were before this Court in the cause

No. 875 October Term 1969, (Certiorari denied on Feb-

ruary 24,1970, Petition for Rehearing mailed April

24,1970.) The V Amendment forbids Ins to be twice pat

in jeopardy. Also California Penal Code section 687

contrary, to section 373a, (above pa ragha ph)“ No per-

son can be subjected to a second prosecution for a

public offense for which he has been prosecuted ani

convicted or acquitted? The Code does not exdude any

kind or kinds of or ine, nor does the v Amend ment, to

be covered by the twice in jeopardy clause.

The California Appellate has held; Ine foregoing

2

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_ geen

has no application to petitioner's"crime" a contin-

uing crime, although he has cited cases ani law app

licable to contiming crimes. And the Constitutions

ao not exclude continuing crimes from being covered

by the twice in Jeopardy clause.

In his brief filed in Appellate Court petition

er quoted; Mr. Justice Blatchford,in delivering the

opinion of the Court; In Re Snow 120 U.S.274 (1886)

at page 285; "There can be but one offence between

such earliest day and the end of the continuous time

embraced by all of the infictments." At page 282,

"There was but a single offence committed prior to

the time the indictments were found. This appears on

the face of the judgment. It refers to the inmiict-

ments as found "for the crime of unlawful cohabita-

tion committed, during the time stated, "divided in-

to three periods, according to each infiictment. For

so mach of the offence as covered each of these

periods the defendant is, according to the judgment,

to de imprisoned for six months and to pay a fine

of $300. The division of the two years and eleven

months is wholly arbitrary. On the same principle

there might have been an indictment covering each of

the thirty-five months, with imprisonment for seven

teen years and @ half and fixes amounting to $10,000

or even an indictment covering every week, with in-

prisonment for seventy-four years and fines amount-

ing to $44,400; and so on, ad infinitum, for small-

er periods of tiae. It is to prevent such an appli-

cation of penal laws, that the rule has obtained tiat

a continuing offence of thé character of the one in

this case can de committed but once, for the pur-

poses of indictment or prosecution . . ."”

State v. Toombs 326 Missouri 982, The Court:

"The same offence® means the same criminal act. IF

there was but one act, one intent and one violation

and the detendant has been tried and convicted on a

charge based on such act, intent ani violation, no

subsequent charge can be based thereon or any part

of it.

- Commonwealth v. Robinson 126 Mass 261 The

Court; "The offence charged in thie complaint is that

of keeping a tenement for the illegal sale cf Lato-

ricating liquors between the first day of January

and the twentieth day of August. If the defendant

thus kept the tenement during every hour ofthe time

between those dates, he has committed but one off-

ence. It is true that such offence is continuous in

its character, It is not an offence committed by a

single sale of liquors, but is that of maintaining a

resort for the purchase of intoxicating liquors .".

3

QUESTION OF SECOND COMPLAINT- DUE PROCESS RAISED

Attempt was made in Municipal Court, On July 1

1968 and on July 25, 1968, and again August 9, 1968

Question raised in Petitien to Superior Cour

August 14, 1968 ani at Hearing on August 27, 1968

Question raised in Briefs te California Appel)

ate Court, Jamary 13, 1969 and April 22, 1969 an

at Hearing October 14, 1969.

Question raised in Petition to California Sup-

reme Court November 26, 1969.

REASONS FOR GRANTING THE WRIT

Petitioner believes he has shown that; The

Opinion of the California Appellate Court is in or-

ror by affirming order denying a Writ of Prohibition

ani in holding that multiple proseeutione for the

same original crime does not violate the V ani riy

Amendments to the United States Constitution

Petitioner believes this Court will agree that

the State Court has departed from the accepted ani

usual course of judicial proceedings. And in effect

has sanctioned such a departure by a lower Court,as

to call tor an exercise of this Court's power of

supervision.

CONCIUSION

Petitioner wishes to direct attention of this

Court to the constant effort in the Appellate Court

Opinion to degrade and vilify petitioner by repeat-

edly refering to property on his land as trash rud-

bish and debris, "that he argues the same trash was

on his property when the first complaint was filed

as was there when second complaint was filed? Pet-

itioner here states that all material on his len

consists of usable repairable items.

Respectfully Submitted

I Johnny B.Dapper the petitioner have made ani

read this petition. The foregoing is true of my own

knowledge except as to those matters stated herein

on my information and bel lief, and as to those matters

I believe it to be true. I declare under penalty of

perjury that the foregoing is and correct.

April 29, 1970 B.

San Diego, California J B.

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982 Darrer v. MunicivaL Court 276 A. C. A.

APPENDIX

(Civ. No. 9547. Fourth Dist., Div. One. Oct. 17, 1969.)

JOHNNY B. DAPPER, Plaintiff and Appellant, v. THE

MUNICIPAL COURT OF THE SAN DIEGO JUDI-

CIAL DISTRICT OF SAN DIEGO COTNTY, Defend-

ant and Respondent; THE PEOPLE, Real Party in

Interest and Respondent.

[1] Nuisances —- Remedies — Criminal Prosecution. — Main-

taining a criminal nuisance of a continuing nature ou one’s

property may subject the offender to multiple prosecution and

convietion under the criminal statutes when he refuses to

abate the nuisance.

[2a, 2b] Id.—Remedies—Criminal Prosecution.— A conviction for

maintaining a nuisance does not license the offender to con-

tinue that nuisance free from further criminal sanctions; and

thus a city did not exhaust its criminal remedy once it obtained

a conviction for maintaining a particular nuisance.

- [8] Id—Remedies—Criminal Prosecution —A stutute (or ordin-

ance) regarding multipie offenses for maintaining a continuing

nuisance, which makes it the duty of the local district attorney

or city attorney to prosecute persons who maintain nuisances

after reasonable notice to abate, by continuous prosecutions,

until the nuisance is abated and removed, are valid exercises

of the police power, ‘the aim of which is to compel nuisance

abatement by criminal sanctions; it reasonable for the Leg-

islature to designate a refusal to act when one should act as

an offense and a continued refusal to act as successive of-

fenses.

[3] See Cal.Jur.2d, Nuisances, & 80 et seq; Am. Jur., Nuisances

(Ist ed § 178 et seq).

: McK. Dig. References: [1-3] Nuisances, § 65; [4] Criminal Law,

142(4).

_

Oct. 1969] Daprer v. Municipa, Court 983

(4] Criminal Law—Former Jeopardy—Identity of Offenses—Con-

tinuous Course of Conduct.—The rule that there may be but

one prosecution for a continuing crime has application where :

a continuous crime is charged as separate offenses, all com-

mitted during the period embraced by the indictment, whereby |

but one offense occurs down to the date the indictment is

found; the rule has no application where a second charge is

made after conviction for a first offense.

APPEAL from an order of the Superior Court of San

Diego County denying a writ of prohibition to restrain 4

municipal court from further proceedings in a criminal action,

Richard B. Ault, Judge. Affirmed.

Johnny B. Dapper, in pro. per., for Plaintiff and Appellant.

John W. Witt, City Attorney, and J. David

Deputy City Attorney, for Defendant and ‘Respondent and

for Real Party in Interest and Respondent. ;

BROWN (Gerald), P. J—Johnny B. Dapper appeals an

urder of the San Diego Superior Court denying his applica-

tion for a writ of prohibition to restrain the Municipal Court,

San Diego Judicial District, from further proceedings in a

criminal action brought against him by the San Diego City

Attorney on behalf of the People. -

In October 1967, Dapper was convicted on five counts of

violating provisions of the San Diego Municipal Code. All five

violations involved maintaining his real property in an un-

kempt manner by allowing debris, rubbish and weeds to ac-

cumulate. After the date of the charged violations but before

trial, four of the municipal code sections involved were re-

pealed. Dapper petitioned the California Supreme Court for a

writ of habeas corpus. On May 28, 1969, the Supreme Court

ordered his convictions on three of the count. vacated because

the ordinances were repealed and allowed a fourth eonviction

to stand because the ordinance had been reen-

acted. The fifth conviction based on the unrepealed ce

was also allowed to stand (In re Dapper, 71 Cal.24 —— [77

Cal.Rptr. 897, 454 P.2d 905] ).

On July 1, 1968, the city attorney filed a second criminal

4] See Cal. Jur. 2d, Criminal Law, $172 et sey; Am.Jur.2d, Crim-

inal Law, § 182 et seq.

*Advauce Report Citation: 71 A.C. 197.

6

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984 Dapper v. Municipal. Court [276 A.C.A.

—

complaint charging Dapper with one violation of the muniei-

pal code, two violations of the Uniform Fire Code and one

violation of section 17906, title 8 of the California Adminis-

trative Code. The violations charged again were based upon

Dapper allowing debris, trash, -veeds and rubbish to accum-

ulate and remain on his property.

Dapper vontends the second complaint puts him again in

jeopardy for the crimes of which he was convicted in 1967. He

argues the same trash was on his property when the first

complaint was filed as was there when the second complaint

was filed. In short, Dapper has yet to clean up his yard.

The real party in interest, represented by the San Diego

City Attorney, argues Dapper has waived his double jeopardy

objection because he did not raise that plea in the municipal

court until after his prohibition petiton had been denied in

the superior court by the order appealed here. We prefer,

however, to deal with the constitutional objection on its

merits.

We will assume the crimes charged in 1968 are the same as

those for which Dapper was convicted in 1967 (neither side

argues otherwise although the ordinance sections do not cor-

respond and the administrative regulation charged in 1968 was

not charged in 1967).

{1] The question is whether maintaining a criminal nui-

sance of a continuing nature on one’s property may subject

the offender to multiple prosecution and conviction under the

criminal statutes when he refuses to abate the nuisance?

(2a] Has the city exhausted its criminal remedy once it

obtains conviction for maintaining a particular nuisance?

San Diego Municipal Code section 11.12 provides in part:

„Each such person shall be guilty of a separate offense for

each and every day during any portion of which any violation

of any provision of this Code is committed, continued, or

permitted by such person and shall be punishable accordingly.

In addition to the penalties hereinabove provided, any condi-

tion caused or permitted to exist in violation of any of the

provisions of this Code shall be deemed a public nuisance and

may be, by this City, summarily abated as such, and each day

that such condition continues shall be regarded as a new and

separate offense.

[3] Substantially the same provisions regarding multiple

offenses for maintaining a continuing nuisance are contained

in Penal Code section 373a which makes it the duty of the

local district attorney or city attorney to prosecute persons

7

Oct. 1969] Dapper v. Mumu. Court 98⁵

*

——

who maintain nuisances after reasonable notice in abate by

continuous prosccutions until the nuisance is abated and

removed.

Dapper's offense here is one founded upon his inaetion

rather than upon separate and distinct acts. It is reasonable

for the Legislature to designate a refusal to act when one

should act as an offense and u continued refusal to act as

sucecssive offenses. The legislative aim is to compel nuisance

abatement by enforcing criminal sanctions, an exercise of the

police power we find valid. (See State v. Murray, 237 Mo. 158

[140 S. W. 899.)

La] Dapper 's contention there may be but one prosecution

for a continuing erime (21 Am. Jur. 2d, Criminal Law, § 183,

p. 240) has application where a continuous crime, such as

polygamy, is charged as separate offenses, all committed dur.

ing the period embraced by the indictment. It is there held

but one offense occurs down to the date the indictment is

found. (Ez parte Nielsen, 131 U.S. 176 [33 L.Ed 118, 9 8. Ct.

672, 675].) The rule has no application where the second

charge is made after conviction for the first offense. [2b] A

conviction for maintaining a nuisance does not license the

Offender to continue that nuisance free from further criminal

sanctions.

Order affirmed.

Coughlin, J., and Whelan, J., concurred.