People v. Kay, Cr. 10475

• Decision Date: 26 December 1973
• Docket Number: Cr. 10475
• Court: California Court of Appeals Court of Appeals
• Parties: , 73 A.L.R.3d 1235 PEOPLE of the State of California, Plaintiff and Respondent, v. John Alan KAY et al., Defendants and Appellants.

Page 894

111 Cal.Rptr. 894

36 Cal.App.3d 759, 73 A.L.R.3d 1235

PEOPLE of the State of California, Plaintiff and Respondent, v. John Alan KAY et al., Defendants and Appellants.

Cr. 10475.

Court of Appeal, First District, Division 4, California.

Dec. 26, 1973.

Dawley, George & Holt by Len W. Holt, Berkeley (Under Appointment by order of the Court) for appellant Newberry.

Romines, Wolpman, Tooby, Eichner, Sorensen, Constantinides & Cohen by E. Norton Tooby, Menlo Park (Under Appointment by order of the Court) for appellants Kay and Lavenberg.

Evelle J. Younger, Atty. Gen. of Cal., Edward A. Hinz, Jr., Chief Asst. Atty. Gen. Crim. Div., William E. James, Asst. Atty. Gen. Appeals Section, Jerome C. Utz, Herbert F. Wilkinson, Deputy Atty. Gen., San Francisco, for respondent.

DEVINE, Presiding Justice.

Appellants Newberry, Lavenberg and Kay pleaded Nolo contendere to felony assault and felony battery (attacks on police officers). Various other charges against them were dismissed. All of the charges were related to a sit-in at Stanford University Hospital on April 8 and 9, 1971. Newberry's appeal may be disposed of readily: he was not advised of his Boykin-Tahl rights; the Attorney General concedes this, and the judgment of conviction must be reversed. But the charges may be reinstated. (In re Sutherland, 6 Cal.3d 666, 671--672, 100 Cal.Rptr. 129, 493 P.2d 857.)

Lavenberg and Kay appeal on the ground that certain conditions attached to their grant of probation are invalid.

The first condition is that of warrantless search. This condition, with one exception, stated below, is not reasonably related to the crime for which appellants were convicted. Therefore, it cannot stand in its entirety. (In re Bushman, 1 Cal.3d 767, 776--777, 83 Cal.Rptr. 375, 463 P.2d 727; People v. Dominguez, 256 Cal.App.2d 623, 627, 64 Cal.Rptr. 290.) Appellants, either personally or by assisting others, threatened or struck police officers with sticks or broom handles or steel bars or table legs. None of these objects is a weapon readily concealable on the person. These objects were tools of the particular affray, openly displayed. Lack of search had nothing to do with the offenses--the officers saw the objects all too plainly.

The one exception to which reference is made above is the search of automobiles. If an appellant were to decide that he should engage in another demonstration, he might proceed towards the scene carrying bludgeons in his vehicle. The condition of warrantless search of appellants' vehicles is not unrelated to the offenses committed. The remand referred to below will provide an opportunity for modification if it seem proper; but on appeal, where the trial judge's discretion is to be honored absent abuse, the condition is sustained.

The second condition is a prohibition against defendants' demonstrating or participating in any demonstration. The Attorney General concedes that this is too broad, and appellants on their part concede that the oral pronouncement of the condition (as distinguished from the written order) is valid. This pronouncement is that defendants shall not engage 'in any kind of demonstration activities that are designed to or likely to produce disruption of the public streets or private or public premises.' Although this court could modify the order to agree with the valid oral direction, we prefer, because of the remand which follows, to direct the superior court to make the correction.

The third condition is more difficult of decision. It is, as to each of the three appellants (but presently removed as to Newberry, because his conviction must be set aside) that '8. He shall, as a condition of Probation, make Restitution for all losses incurred to the victim as a result of this violation, said Restitution to be payable through the Adult Probation Department, and further, the defendant is to execute a Confession...