Bushman, In re

• Decision Date: 27 January 1970
• Docket Number: Cr. 13712
• Citation: 1 Cal.3d 767,463 P.2d 727,83 Cal.Rptr. 375
• Court: California Supreme Court
• Parties: , 463 P.2d 727 In re Ted BUSHMAN on Habeas Corpus.

Page 375

83 Cal.Rptr. 375

1 Cal.3d 767, 463 P.2d 727

In re Ted BUSHMAN on Habeas Corpus.

Cr. 13712.

Supreme Court of California,

In Bank.

Jan. 27, 1970.

John M. Sink, Santa Barbara, for petitioner.

A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, as amici curiae on behalf of petitioner.

David D. Minier, Dist. Atty., and A. Barry Cappello, Chief Deputy Dist. Atty., for respondent.

TRAYNOR, Chief Justice.

A jury found petitioner guilty of disturbing the peace in violation of Penal Code section 415. ¹ The trial court imposed the maximum sentence (90 days in jail and a $200 fine), but suspended execution of the sentence and granted probation. The conviction was affirmed by the appellate department of the superior court, which denied certification to the Court of Appeal. The United States Supreme Court denied certiorari. (395 U.S. 944, 89 S.Ct. 2018, 23 L.Ed.2d 463 (1969).) Petitioner now seeks habeas corpus in this court.

Petitioner is a practicing attorney and a licensed private pilot. On numerous occasions before the incident leading to his conviction, petitioner appeared before the Santa Maria Public Airport District Board of Directors in his capacity as an attorney and as a private pilot. During the year preceding the incident, petitioner complained to the board about the condition of the runways at the airport. He alleged that the runways were cracked, pitted, weedgrown, and littered with glass and metal debris. He was particularly concerned with significant amounts of loose gravel on the runways that were causing damage to his and others' aircraft. Petitioner's frequent complaints to the board apparently went unanswered. He testified that his relations with the members of the board had become so volatile that his mere presence at board meetings provoked anger and resentment.

The day before a regular board meeting, petitioner went to the airport's main runway with a broom, bucket, and dustpan. He made five parallel sweeps across the width of the runway, collecting approximately 10 pounds of gravel and metal debris. On the morning of the following day, July 6, 1967, Donald M. Prentice, president of the airport board, convened a meeting of the full five-member board. The roll call was taken and the first three items on the agenda were considered. As the board reached the fourth item, petitioner entered the room, carrying a bucket of gravel in both hands at chest level. Without speaking he walked to the desk where Prentice was presiding. According to the People's evidence petitioner deliberately dumped the contents of the bucket over Prentice's desk and papers. Prentice called petitioner a 'dirty low-down son of a bitch' and hit him. Members of the board's staff restrained Prentice, and petitioner walked from the room. According to petitioner's testimony he intended to set the bucket of debris upright on Prentice's desk to demonstrate the condition of the runways to the board, the public, and the press, but accidentally spilled the contents of the bucket when Prentice hit him.

Petitioner was charged by complaint with violating Penal Code section 415, in that he 'did willfully, unlawfully and maliciously disturb the peace and quiet of Donald M. Prentice and the Board of Directors of the Santa Maria Public Airport District by tumultuous and offensive conduct.' ²

In this proceeding petitioner attacks his conviction on the grounds that Penal Code section 415 is unconstitutional and that errors at the trial require reversal. We have concluded that the writ should be granted.

Petitioner contends that section 415 is so vague, it provides no ascertainable standard of guilt and thus denies due process of law. He also contends that the section is overbroad and makes punishable conduct protected by the First Amendment.

Section 415 is not unconstitutionally vague and overbroad. It has a commonly understood meaning that not only affords adequate notice of the type of conduct that is proscribed, but also precludes its application to conduct protected by the First Amendment. The part of the section under which petitioner was convicted provides: 'Every person who maliciously and willfully disturbs the peace or quiet of any * * * person * * * by tumultuous or offensive conduct * * * is guilty of a misdemeanor.' The terms 'disturb the peace' and 'breach of the peace,' which are substantially synonymous, have long been understood to mean disruption of public order by acts that are themselves violent or that tend to incite others to violence. Thus, one may be guilty of disturbing the peace within that part of section 415 if he engages in 'tumultuous' conduct, i.e., violent conduct that wilfully and maliciously endangers public safety or order. He may also be guilty of disturbing the peace through 'offensive' conduct if by his actions he wilfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. (People v. Cohen (1969) 1 Cal.App.3d 94, 101, 81 Cal.Rptr. 503.)

The foregoing construction of section 415 assures that conduct protected by the First Amendment's guarantee of freedom of speech is not made criminal. Unlike the city ordinance considered by the United States Supreme Court in Terminiello v. City of Chicago (1948) 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, that permitted conviction if one's speech 'stirred people to anger, invited public dispute, or brought about a condition of unrest' (337 U.S. 1, 5, 69 S.Ct. 894, 896), or the statute considered by that court in Cantwell v. Connecticut (1939) 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, that permitted conviction although there was no clear and present danger to public peace and order, that part of Penal Code section 415 in question here makes punishable only wilful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature.

Petitioner contends that his conduct was a legitimate means of conveying his grievances to the airport directors. He urges that his actions were a form of 'symbolic speech' protected by the First Amendment. Not all acts intended to express ideas or convey information are protected forms of free speech. (United States v. O'Brien (1968) 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672; see also Adderley v. Florida (1966) 385 U.S. 39, 47--48, 87 S.Ct. 242, 17 L.Ed.2d 149.) When public order and safety are threatened by violence, states may restrict or punish the conduct that creates such threat. (Cantwell v. Connecticut, supra, 310 U.S. 296, 307--311, 60 S.Ct. 900.) Inasmuch as that part of section 415 considered here does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence, it is unnecessary to decide whether petitioner's act was 'communication,' for the test is the same whether acts are intended to communicate ideas or not.

The trial court, however, failed to instruct the jury in accordance with the foregoing construction of section 415, which preserves its constitutionality. The court advised the jury that "offensive' means giving offense; causing displeasure or resentment; insulting.' The instruction makes criminal, conduct that is protected by the First Amendment. Moreover, the jury might have convicted petitioner on the basis of such protected conduct without reaching the question whether the spilling of the gravel was intentional or accidental. Thus, petitioner testified that his mere presence before the airport board of directors caused anger and resentment. Accordingly, the jury might have found petitioner guilty of 'offensive conduct' if he made any appearance calculated to vex or annoy the board of directors, regardless of whether petitioner's conduct was violent or incited others to violence. Moreover, the appellate department of the superior court, in affirming petitioner's conviction, held that his appearance with the intent to annoy the board 'in and of itself constituted a disturbance of the peace.' Under these circumstances, petitioner has discharged his burden on habeas corpus of proving that his conviction was based on constitutionally protected conduct. (In re Klor (1966) 64 Cal.2d 816, 821--822, 51 Cal.Rptr. 903, 415 P.2d 791.)

In view of our conclusion that the conviction must be set aside because the jury was improperly instructed, it is not necessary to consider all of petitioner's additional assignments of error. We consider some of these alleged errors, however, which may occur again on retrial, for the guidance of the trial court. (Code Civ.Proc. § 53.)

Petitioner contends that the trial court erred in not instructing the jury that to find him guilty, they must find that his conduct was both tumultuous and offensive.

The complaint charged petitioner with 'tumultuous and offensive conduct.' In instructing the jury, the court said: 'The defendant is charged in the Complaint to have maliciously disturbed the peace by tumultuous and offensive conduct. He may be found guilty of maliciously disturbing the peace if you find that he did in fact maliciously disturb that peace by tumultuous conduct or by offensive conduct alone. It is not necessary that you agree to the charge of both tumultuous and offensive conduct.' That instruction was proper.

When a statute such as Penal Code section 415 lists several acts in the disjunctive, any one of which constitutes an offense, the complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty. (People v. Ah Woo (1865) 28 Cal. 205, 212; People v. O'Brien (1900) 130 Cal. 1, 3--4, 62 P. 297.) Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts. (People v. McClennegen (1925) 195 Cal. 445, 452, 234 P. 91.) The jury could have found petitioner guilty of 'tumultuous conduct' if the...