People v. Bohmer

• Decision Date: 20 February 1975
• Docket Number: Cr. 5418
• Citation: 46 Cal.App.3d 185,120 Cal.Rptr. 136
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter BOHMER and Peter Mahone et al., Defendants and Appellants.

Page 136

120 Cal.Rptr. 136

46 Cal.App.3d 185

The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter BOHMER and Peter Mahone et al., Defendants and Appellants.

Cr. 5418.

Court of Appeal, Fourth District, Division 1, California.

Feb. 20, 1975.

As Modified on Denial of Rehearing March 18, 1975.

Hearing Denied June 19, 1975.

[46 Cal.App.3d 188] Appellate Defenders, Inc., by Edward La Plount and Harold F. Tyvoll, San Diego, under appointment by the Court of Appeal, for defendant and appellant, Peter Mahone; H. Peter Young, Venice, for defendant and appellant Peter Bohmer.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen and Jay M. Bloom, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

WHELAN, ^* Justice.

Peter Bohmer and Peter Mahone have appealed separately from orders granting each of them probation after they were convicted by verdict in a joint trial of a violation of Penal Code section 587(2). The appeals are separate because of the differing grounds advanced for reversal, and because of the difference in the relationship of the facts to each of them. We deal first with Mahone's appeal.

Penal Code section 587 declares in part:

'Every person who maliciously . . .

'1. . . .

'2. Places any obstruction upon the rails or track of any railroad, or of any switch, branch, branchway, or turnout connected with any railroad;

'Is punishable by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding one year.'

The evidence shows Mahone was one of several persons who, on May 12, 1972, placed railroad ties across the tracks of the Santa Fe Railroad near Del Mar in San Diego County. The ties were then set on fire for the purpose of halting a train at the place of the obstruction.

Mahone's first appellate contention is based on his request that the following instruction be given to the jury:

'In the crime charged in count one of the indictment, there must exist a union or joint operation of act or conduct and a certain specific intent.

'In the crime of maliciously obstructing a railroad track, there must exist in the mind of the perpetrator the specific intent to obstruct the railroad tracks, and unless such intent so exists that crime is not committed.'

The trial judge's refusal to give that instruction, and his giving of an instruction as to the general intent required to make the doing of a forbidden act criminal, are assigned as error.

Mahone's brief states:

'This frustrated any opportunity of the defense to present to the jury the crucial question whether the actions of Mahone and others were intended only as symbolic protest, without any actual intent of obstructing the railroad tracks.'

Here Mahone has confused the motive behind the doing of the act with the intent with which it was done. The reasonableness of protest against war in general, or the war in Vietnam in particular, is irrelevant. The price to be paid by those whose protest for the sake of a cause professed by them to be noble involves the criminal destruction of or interference with the property of others, is to accept the penalties fixed by the law.

The court also instructed as to the meaning of 'malice' in the language of Penal Code section 7, subdivision (4).

An obstruction is a thing that obstructs or impedes; an obstacle. (Webster's New International Dictionary, second edition.)

The intent required for a violation of Penal Code section 587 is the intent to place an obstruction upon the rails or track of the railroad.

An intent to cause derailment of a train or to cause injury to any passenger or member of a train crew is not implied in the word 'maliciously' as used in section 587.

In that respect there is some ground for comparison with the non-specific intent required for a violation of Penal Code section 245(a) (assault with a deadly weapon), where the intent required is:

'. . . the general intent to wilfully commit an act the direct, natural and probable consequences of which if successfully completed would be the injury to another.' (People v. Rocha, 3 Cal.3d 893, 899, 92 Cal.Rptr.172, 176, 479 P.2d 372, 376.)

The intent required for a violation of Penal Code section 587 is the intent to place upon the railroad tracks an obstacle when the direct, natural and probable consequence of such placing is the obstructing or impeding the progress of a train or other equipment for which the tracks were intended.

The use of the word 'maliciously' in certain penal statutes does not make the crimes defined therein specific intent crimes. The definition of malice in section 188, found in that part of the Penal Code dealing with homicide, must be distinguished. (See People v. Conley,64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Gorshen, 51 Cal.2d 716, 336 P.2d 492.) Such other sections include section 203 (mayhem: People v. Garcia, 5 Cal.App.3d 15, 18, 85 Cal.Rptr. 36); section 447a (arson: People v. Nance, 25 Cal.App.3d 925, 930, 102 Cal.Rptr. 266); section 246 (discharging a weapon at an inhabited dwelling: People v. Hoover,12 Cal.3d 875, 882 fn. 5, 117 Cal.Rptr. 672, 528 P.2d 760).

People v. McCree, 128 Cal.App.2d 196, 202, 275 P.2d 95, in which a conviction was sustained, cannot be followed in its statement that 'maliciously' does not mean 'intentionally' as applied to the arson statute, or the doing of any act made punishable when done maliciously. (Pen.Code § 7, subd. 4; People v. Andrews, 234 Cal.App.2d 69, 44 Cal.Rptr. 94.)

The malice required is that which would negate an accidental and unintended obstruction, such as might result if a vehicle being driven across the tracks should stall or overturn, and, before it could be moved off, should cause a train to slow down or stop.

There was no misdirection of the jury in that respect.

Mahone's final two appellate contentions relate to the testimony of certain prosecution witnesses. The trial court submitted to the jury the question whether those prosecution witnesses were accomplices, and instructed that if they were found to be such their testimony would require corroboration. The correctness of the instructions as general principles of law is not questioned. Mahone contends, however, the trial court should have instructed that two witnesses, James Marmack and Charles Kett, were, as a matter of law, accomplices, and should not have instructed that the jury should determine whether the witnesses were feigned accomplices or accomplices in fact.

Mahone also argues that there cannot be a feigned accomplice to the commission of a crime that does not require a specific intent, and cites People v. Brocklehurst, 14 Cal.App.3d 473, 92 Cal.Rptr. 340, as authority for that untenable proposition. Brocklehurst held that when the sole witness to the commission of a violation of Penal Code section 288a was one of the participants in the act, he violated the statute which declares that any person who participates in the act is punishable. The opinion emphasized that the violation did not depend upon motive or intent if it were voluntary, and that since the crime required two persons for its commission, anyone whose participation in the act was indispensable must be an accomplice. Mahone's discussion of the Brocklehurst case omitted mention of its strict definition of a crime requiring the participation of two persons and the indispensability of each of them to the commission of the crime. (See People v. Hoover, Supra, 12 Cal.3d 875, 882 fn. 5, 117 Cal.Rptr. 672, 528 P.2d 760.)

But Brocklehurst nowhere states or implies that there can be a feigned accomplice only in a crime calling for a specific intent, although it distinguished many feigned accomplice cases dealing with such crimes. People v. Spaulding, 81 Cal.App. 615, 254 P. 614, discussed in Brocklehurst, involved the question whether a peace officer was an accomplice in a violation of Penal Code section 288a, not as an active participant but as an aider and abettor.

We believe that the reckless or malicious possession of explosives, forbidden by the present Health and Safety Code section 12352, is a general intent crime, and that cases holding that a witness was a feigned accomplice in a violation of a like and antecedent statute are contrary to Mahone's contention. (See People v. Fitzgerald, 14 Cal.App.2d 180, 58 P.2d 718 (overruled on other grounds in People v. Weiss, 50 Cal.2d 535, 566, 327 P.2d 527); People v. Buyle, 20 Cal.App.2d 650, 68 P.2d 268.)

The definition of accomplice includes, without being limited to, anyone who aids or abets the commission of a crime. One may aid or abet the commission of a crime whether it calls for a general or a specific intent. In any crime in which there may be an accomplice because of aiding or abetting, there may also be a feigned accomplice.

People v. Hoover, Supra, 12 Cal.3d 875, 117 Cal.Rptr. 672, 528 P.2d 760 involving a general intent crime, held as a matter of law that the witness was not an accomplice. Here the trial court submitted the question to the jury. Clearly there was no error.

Each of the two witnesses was a deputy sheriff working undercover. They were among a large group of people who attempted to form a screen with their bodies and uplifted arms while Mahone and some others placed ties across the railroad tracks, their intention being to prevent peace officers from successfully photographing the people placing the ties. Each of the two deputies testified he saw Mahone placing a timber on the tracks. They participated in the action of partially screening the persons placing ties on the tracks from the eye of the camera by placing themselves where they could, and did, observe, so as to be able to testify that Mahone and other persons engaged in the obstruction. The conduct of the witnesses was not inconsistent with their having been feigned accomplices. Neither was an accomplice as a matter of law.

Since the testimony...