People v. Cohen

• Citation: 81 Cal.Rptr. 503,1 Cal.App.3d 94
• Decision Date: 22 October 1969
• Docket Number: Cr. 16702
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Robert COHEN, Defendant and Appellant.

Page 503

81 Cal.Rptr. 503

1 Cal.App.3d 94

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Robert COHEN, Defendant and Appellant.

Cr. 16702.

Court of Appeal, Second District, Division 2, California.

Oct. 22, 1969.

Hearing Denied Dec. 17, 1969.

[1 Cal.App.3d 97] Melville B. Nimmer, Los Angeles, for defendant and appellant.

Roger Arnebergh, City Atty., Michael T. Sauer, Deputy City Atty., for plaintiff and respondent.

ALARCON, ^* Associate Justice Pro Tem.

Paul Robert Cohen was charged in a complaint filed in the Municipal Court with a violation of section 415 of the Penal Code. The complaint alleges that the defendant 'did wilfully and unlawfully and maliciously disturb the peace and quiet of the neighborhood of 110 North Grand and the peace and quiet of this complainant and other persons then and there being present, by then and there engaging in tumultuous and offensive conduct.' Trial by jury was waived. The defendant was found guilty, probation was denied and he was sentenced to 30 days in the county jail.

FACTS

On April 26, 1968 the defendant was observed in the Los Angeles County Courthouse in the corridor outside of Division 20 of the Municipal Court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.

The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest.

QUESTION PRESENTED

Is offensive conduct which is not also tumultuous punishable under Penal Code section 415? ¹

Penal Code section 415 makes punishable a disturbance of the peace or quiet of a neighborhood by tumultuous Or offensive conduct. If this statute is interpreted literally, any conduct which is tumultuous but not 'offensive' is a crime and any conduct which is offensive but not 'tumultuous' is a crime.

The appellant argues that he cannot be guilty of the crime of breach of the peace since his conduct consisted of the use of words unaccompanied by violence or the threat of violence.

It is the appellant's contention that the offense of disturbance of the peace does not exist without actual or threatened violence or behavior which is Likely to create a disturbance. We agree with this statement of the law. However, we reach a different conclusion in applying the law to the facts.

Breach of the peace and disturbing the peace are synonymous terms. Section 415 when enacted in 1872 was a codification of the existing common law crime of breach of the peace. Therefore, in resolving the novel question presented us we can look to the common law to assist us in assaying the legislative intent behind the use of the words 'offensive conduct'.

In Cantwell v. Connecticut, 310 U.S. 296 at page 308, 60 S.Ct. 900 at page 905, 84 L.Ed. 1213, 128 A.L.R. 1352 the United States Supreme Court stated the common law succinctly 'The offense known as breach of the peace embraces a great variety of conduct destroying or Menacing public order and tranquility. It includes not only violent acts but acts and words Likely to produce violence in others.' (Emphasis added.)

The Restatement, Second, Torts, section 116 contains this definition of the crime of breach of the peace: 'A breach of the peace is a public offense done by violence, or likely to cause an immediate disturbance of public order.'

In California our appellate courts have evolved the same definition for the crime of disturbing the peace.

Any act or conduct which disturbs the peace and quiet by inciting violence or which tends to provoke others to break the peace constitutes disturbance of the peace (People v. Anderson, 117 Cal.App.Supp. 763, 767, 1 P.2d 64; 9 Cal.Jur.2d §§ 17--18). 'It is not necessary that any act have in itself any element of violence in order to constitute a breach of the peace.' (People v. Green, 234 Cal.App.2d Supp. 871, 873, 44 Cal.Rptr. 438, 439.)

We conclude from the foregoing authorities that if it can be reasonably anticipated that certain conduct will cause others to disturb the peace, wilfully and maliciously engaging in such behavior constitutes a disturbance of the peace.

Thus, under section 415 a person who engages in offensive behavior which has a tendency to provoke Others to acts of violence or to in turn disturb the peace and quiet is guilty of disturbing the peace although his own conduct, while offensive, was not in itself violent.

In the matter before us the defendant deliberately wore a jacket emblazoned with language which is clearly offensive and below the 'minimum standard of propriety and the accepted norm of public behavior' (Goldberg v. Regents of University of California, 248 Cal.App.2d 867, 880, 57 Cal.Rptr. 463) at least when paraded through a courthouse corridor containing women and children. The defendant's conduct consisted of more than a quiet and peaceful assertion of his convictions about the draft. He carefully chose the forum for his views where his conduct would have an effective shock impact. The defendant's stated purpose was to force a confrontation with others as to his opinion of the draft. The expression he chose to display on his jacket is one which is not used publicly to espouse a philosophy or a personal conviction. He was intent upon attracting the attention of others to his views by the sheer vulgarity of his expression. He must have been aware that his behavior would vex and annoy a substantial portion of his unwilling 'audience'. His conduct was, therefore, malicious under Penal Code section 7. ²

It was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket. The fact that the police intervened and that the defendant was arrested before violence occurred does not make his conduct any the less provocative. We think it also a reasonable inference from the time and place of defendant's act that he intended to provoke disorder.

It is our conclusion that the defendant's acts constituted the type of offensive conduct prohibited by section 415 in that it had a tendency to incite others to violent behavior or to disturb the peace.

It is also our view that it is not a valid defense to a charge of disturbing the peace that the defendant's conduct was not violent or tumultuous if it was foreseeable that his acts would tend to cause others to commit violent acts or disturb the peace.

The court's minutes reflect that the defendant was found guilty as charged. The complaint charged him with engaging in tumultuous And offensive conduct. There was no evidence that the defendant engaged in 'tumultuous' conduct. Penal Code section 415 sets forth a series of acts in the disjunctive. When an accusatory pleading sets forth more than one act prohibited by section 415 in the conjunctive, evidence which is sufficient to support a finding of guilt of any one of the acts denounced by the statute is sufficient for a conviction although the evidence does not support a conviction for each of the acts set out in the complaint (People v. McClennegen, 195 Cal. 445, 452, 234 P. 91).

The appellant also contends that the term 'offensive' is unconstitutionally vague and overbroad.' We disagree. In People v. Green, 234 Cal.App.2d Supp. 871, 875, 44 Cal.Rptr. 438 cert. denied, 382 U.S. 993, 86 S.Ct. 576, 15 L.Ed.2d 480. Penal Code section 415 was held to be 'not unconstitutionally vague or indefinite.' We feel the language relied upon by the California Supreme Court in ^a People v. Daniels, et al., (October 2, 1969) 71 Cal.2d ---, 80 Cal.Rptr. 897, 459 P.2d 225, is particularly applicable as a standard in construing the constitutional scope of the term 'offensive' as used in section 415. 'In reaching this conclusion we invoked the settled rule of statutory interpretation that 'All laws should receive a sensible construction. General terms should be so limited in their application as to not lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the Legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over the letter. '' (United States v. Kirby (1868) 74 U.S. (7 Wall) 482, 486--487, 19 L.Ed. 278 accord; People v. Oliver (1961) 55 Cal.2d 761, 767, 12 Cal.Rptr. 865, 361 P.2d 593, and cases cited.) (Emphasis added.)

The words 'offensive conduct' have stood the test of time and have a commonly accepted meaning. The term 'offensive' has a well established meaning when used in connection with words which can cause a breach of the peace. In Chaplinsky v. New Hampshire, 315 U.S. 568, 571--572, 62 S.Ct. 766, 770, 86 L.Ed. 1031, the United States Supreme Court quoted with approval the following language from the opinion of the Supreme Court of New Hampshire in State v. Chaplinsky, 91 N.H. 310, 18 A.2d 754: 'The word 'offensive' is not to be defined in terms of what a particular addressee thinks. * * * The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. * * * The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile. * * * Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revealings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending...