People v. Gray

• Decision Date: 11 September 1967
• Docket Number: Cr. 13513
• Citation: 254 Cal.App.2d 256,63 Cal.Rptr. 211
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fleming Daniel GRAY, Jr., Woodrow Coleman, Defendants and Appellants.

Page 211

63 Cal.Rptr. 211

254 Cal.App.2d 256

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fleming Daniel GRAY, Jr., Woodrow Coleman, Defendants and Appellants.

Cr. 13513.

Court of Appeal, Second District, Division 5, California.

Sept. 11, 1967.

Hearing Denied Nov. 8, 1967.

David A. Binder and Meyer S. Levitt, Los Angeles, for appellants.

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

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Richard G. Kolostian, Irwin S. Evans, Deputy City Attys., for respondent.

KAUS, Presiding Justice.

This appeal involves certain problems that arise when a defendant to a criminal charge claims that the prosecution against him is the result of discriminatory enforcement of the law and therefore a denial of equal protection. (Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220.)

Both defendants were convicted of violating section 28.03 of the Los Angeles Municipal Code which reads as follows: 'No person shall paint, mark or write on or post or otherwise affix or attach any handbill or sign to or upon any building, wall or part thereof, or upon any private property without the consent of the owner, agent or occupant thereof.' Proceedings were suspended and each defendant was placed on summary probation for one year on certain conditions. The appeal is from the orders granting probation.

There is no question that defendants committed the acts proscribed by the ordinance. In fact each defendant took the stand and so testified. ¹ The only reason given below and asserted here why defendants should not be convicted is that in prosecuting them under the ordinance the People enforced it 'with an evil eye and an unequal hand * * * .' (Yick Wo v. Hopkins, 118 U.S. 356, 373--374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220.)

In support of this contention defendants introduced substantial evidence. The issue was tried to the jury concurrently with the basic issue of guilt and the court instructed the jury on the nature of the defense. It also allocated and defined the burden of proof. By finding defendants guilty the jury impliedly found that the defense had not been established by the quantum of evidence required by the court's instructions.

THE FACTS--PEOPLE'S CASE

On the night of June 26, 1966 at about 2:00 a.m. Officer Reynolds observed defendants Gray and Coleman in the process of posting a sign on a board fence.

The sign consisted of three capital B's arranged vertically one above the other. The first two were followed by three hyphens and a comma, the last by three hyphens and an exclamation point. The entire message was in quotes. One of the defendants said that they were working on a political campaign and that the sign stood for 'Bring, Back, Brown!' ² The defendants also said that they had no permission from anyone to put up the sign.

Reynolds placed defendants in his black and white police car and proceeded to a call box about two blocks away. After he had run a record check on defendants, which was negative, he got in touch with the supervisor at his station and reported. He was told to release defendants. He took them back to the scene--11th and Sentous, a little way southwest of central Later Officer Reynolds reported the incident to his supervisor in writing.

Los Angeles--deposited them and left. No superior had ever instructed him to single out violators of section 28.03 who put up signs bearing the 'B-, B-, B-!' legend. In fact he had never been given any specific instructions about how to enforce that particular section of the Municipal Code.

Mr. Northrop, the owner of the property in question, testified that he never gave defendants permission to post that particular sign. He did not complain to the police about the 'B-, B-, B-!' sign, but a Sergeant Holtz got in touch with him and asked him whether he had given permission to defendants. There was a good deal of fairly inconclusive testimony from Northrop concerning his conversation with the police which either may or may not suggest to a trier of facts that the police would not have prosecuted if Northrop had not objected to the signs, once they were up, in spite of the lack of a prior permission. In connection with this testimony Northrop made the following statement to which defendants attach some importance: 'He didn't tell me definitely 'We are going to prosecute' but that I was--Something was up and I would hear about it or I wouldn't hear about it.' (Emphasis added.)

FACTS--DEFENDANTS' CASE

Preliminarily we should say defendants' case was a marvel of meticulous and sensitive preparation, geared precisely to the constitutional issues involved. We mention this fact not to pat anyone on the back, but as proof which supports our ultimate conclusion that to put as heavy a burden of proof on defendants as the trial court did in this case, nullifies the availability of the doctrine of Yick Wo v. Hopkins, supra, as a defense.

First defendants showed many photographs of signs of every nature posted in random locations throughout the City of Los Angeles in connection with the 1966 primary elections. Then they produced testimony from the owners of the properties involved to the effect that they had never given permission for the signs in question to be posted and that the police had never been in touch with them concerning these signs. Typically the cross-examination of these owners showed that they did not know who put up the signs.

Ellsworth R. Dressman, a professional bill-poster since 1932, was called by defendants, but just exactly whom his testimony favored is anybody's guess. Construing his many equivocations most strongly in favor of the People it amounts to this: In 1966 he had been 'stopped' five or six times by the police while posting signs. On each occasion he gave the police his card. Nothing further happened. On each of those occasions he had had permission from the owners in question to put up the signs. ³ He also testified that many times when officers observed him in the act of posting signs on private property, nothing happened. ⁴

Benjamin Hite, our registrar of voters, testified to the fact of the 1966 election, the number of candidates and so forth.

Judicial notice was taken that between January 1 and July 31, 1966 the dockets of the Municipal Court of the Los Angeles Judicial District showed only two prosecutions for violations of section 28.03 out of about twenty-five thousand nontraffic misdemeanor complaints. One was the subject litigation, the other charge was against one Carolyn Perkins Sweezy and one Clayborne Carson. Miss Sweezy, who later testified, was also caught in the act of putting up 'B-, B-, B-!' signs.

Various representatives of printing companies testified to the number of political posters which they printed in connection with the 1966 election campaign. Naturally the figure, though never precisely established, was extremely high.

Roger Murdock, Deputy Chief of Police in charge of the Patrol Bureau, was called by defendants. He testified as follows: Of a total of slightly over fifteen thousand officers employed by the Los Angeles Police Department, fifty-six percent were assigned to patrol duty. The greatest concentration of officers on duty is during the hours of darkness. Section 28.03 'is a very irritating section. It is very hard to find perpetrators and we get many complaints about it, usually during election time.' He was not familiar with a single case where the complaining owner was unable to identify the violator. There was no departmental policy with regard to persons who put up 'B-, B-, B-!' signs, nor has he ever given any of his officers instructions in this particular area (sic) as to whom to arrest or whom not to arrest.

In response to a question by the court ⁵, the witness replied: 'THE WITNESS: We try to engage in selective enforcement, and it's probably best illustrated by traffic. In other words, by an analysis of traffic accidents we determine the cause of accidents and the location and the time of day when they occur and deploy more heavily in those districts at those times and places for that particular situation. And it would apply generally to all types of offenses. In relation to the particular offense involved, we normally do not deploy for it because it's all over town and it happens so rarely that we hope that if there are any arrests and prosecutions that they would be done on the basis of observations on routine patrol.' The witness further explained that in some cases 'selective enforcement' depends on a judgment concerning the seriousness of the offense. ⁶ Other factors which are taken into consideration are the number of complaints, the frequency of the crime and, of course, available personnel. In many areas 'selective enforcement' means giving the officer or patrol some latitude. ⁷ Generally, however, the term 'selective enforcement' means 'the amount of enforcement effort which is applied in that particular direction.'

Defendant Gray testified that he was a member of a political organization which called itself the Non-violent Action Committee, 'NVAC' for short. In January, 1966 NVAC conceived a political program 'to try to get the citizens of the State of California interested in what we considered here the important social reform issues Gray was notified about two or three weeks after June 26 that he would be prosecuted.

* * * and to get them to be aware of these issues so that we would only vote for the politicians that took a strong stand * * *' On June 28, 1966--two days after the incident in question--NVAC held a press conference at which it was explained that the 'B-, B-, B-!' posters were part of a campaign in connection with which NVAC was also putting up posters reading 'Boycott, Baby, Boycott.' ⁸

Defendant Coleman took the stand just to tell the jury that he did not claim that he had not participated in the activities of ...