People v. King

• Citation: 267 Cal.App.2d 814,73 Cal.Rptr. 440
• Court: California Court of Appeals Court of Appeals
• Decision Date: 03 December 1968
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Janet Irene KING, Defendant and Appellant. Cr, 15092.

Page 440

73 Cal.Rptr. 440

267 Cal.App.2d 814

The PEOPLE of the State of California, Plaintiff and Respondent, v. Janet Irene KING, Defendant and Appellant.

Cr, 15092.

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

Dec. 3, 1968.

Rehearing Denied Dec. 27, 1968.

Hearing Denied Jan. 29, 1969.

Hugh R. Manes, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Ronald M. George, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

Defendant was charged with battery (§ 242, Pen.Code) on Officers Petrasich (count I) and Yturralde (count II) while engaged in the performance of their official duties. The court found her guilty, on each count, of assault (§ 240, Pen.Code) a misdemeanor and a lesser but necessarily included offense. She appeals from the judgment and order revoking probation.

Officers Petrasich and Yturralde were assigned to crowd control at Century City on June 23, 1967, on the occasion of the visit of the President of the United States; they were in uniform and Sergeant Yturralde requested Petrasich and another officer to follow him into the crowd of several thousand demonstrators on Motor Avenue to ask a man in a truck northbound in the middle of foot traffic to remove it from the line of march. Petrasich was told to clear a path for the pickup. Seated inside the cab of the truck were the driver and a girl; outside and in back, standing in the bed of the truck was defendant. Just as the officers cleared a path to the east side of Motor so the truck could exit from the line of march, a demonstrator ran up and leaned over the hood of the truck which was not then moving; Petrasich removed him and walked him toward the west out of the path of the truck; as he did so the driver started the truck in motion. Petrasich looked at him and saw him turn the wheel westbound into the crowd instead of east to the pathway they had cleared for him. The truck knocked Petrasich into the crowd which shoved him back into the path of the truck; it came to rest with one of its wheels on top of his left foot. Officer Petrasich hollered in a loud voice for the driver to move the truck off of his foot; the driver looked at him and shook his head, 'No.' Petrasich then hit the windshield with the flat part of his baton and again shouted to the driver that the wheel was on his foot asking him to move the truck; a second time the driver looked at him and shook his head 'No.' The officer struck the windshield with the butt end of his baton making a hole in the windshield and a third time told the driver to move the truck off of his foot; the driver shook his head 'No.' Officer Petrasich hit the windshield two more times making two more holes in the windshield, at which time he yelled to Officer Yturralde that the truck was on his foot; Yturralde looked down and saw the wheel on Petrasich's foot, approached the driver's side of the cab, knocked on the window which was rolled up and shouted to the driver to reverse the truck because it was on the officer's foot. Defendant, who was standing in the back of the truck, struck Yturralde on the helmet and shoulder with a broken sharp pointed stick about two feet long and one or two inches wide, told him, 'Get away,' and poked him with the stick; he raised his hand and pushed the stick aside. During the time Petrasich was pinned under the truck, others in the crowd struck him several times on the head, back, shoulders and arms and rammed him in the side with a large pole. The driver moved the truck releasing the officer's foot; the wheel had been on it 'for one or two minutes.' Petrasich then ordered the driver out of the truck and attempted to open the door but it was locked and the windows were secured from the inside. Meanwhile defendant was hitting the officers who were standing next to the truck and struck Petrasich ¹ and at least two other officers with 'a long wooden (pointed) stick' about three feet long. Petrasich then hit defendant once with a snapping wrist movement of his baton, and Officer Munoz removed her from the truck, arrested her and transported her to jail facilities set up at Century Plaza; the driver was also arrested. Photographs taken at CBS and NBC news films (Defense the scene (Peo. Exhs. 1, 2, 3, 4), as well as Exhs. A, B), were received in evidence. Neither Officer Petrasich nor Yturralde recalled seeing a dummy or effigy in the truck.

Officer Munoz, called as a defense witness at the preliminary hearing, testified that when he first saw the truck it was headed in a northwesterly direction into the line of march; he saw defendant strike four or five police officers who were stationed around the truck, one of whom was Officer Petrasich; when he reached the truck he lifted up defendant who was lying in the bed of the truck and carried, not dragged, her from the scene, handcuffed her and admonished her concerning her constitutional rights.

Jack Corey, a defense witness, testified at the trial that he is a student and was in the demonstration 'right next to the truck'; he tried to dissuade the driver from driving into the street; when Petrasich began hitting the truck another officer 'possibly' tried to restrian him; he saw defendant throw an effigy which struck an officer on the helmet; defendant was armed with a stick and trying to protect herself; he saw nothing to justify the officer striking the windshield. Corey admitted that the first blow between defendant and the officers was struck by defendant. Defendant testified she is a student at U.C.L.A. and was at Cheviot Hills Park 'to protest the war in Vietnam to President Johnson' with others; she stood in the bed of a truck, which the driver intended to drive in the parade, holding an effigy or dummy representing the President; the truck was equipped with sound equipment and used to solicit participation; the windows of the truck were rolled up and the door on the driver's side was locked; ten to fifteen police officers approached the truck; one (Petrasich) appeared to be angry and began to smash the window without saying anything, then moved to the side of the truck and started smashing the side window; she was looking at him from a distance of three feet; she saw other officers jab and poke at people and one boy was hurt; she was 'frightened and angry' and thought the officer 'would kill the people inside,' 'the glass would injure the people inside' (the side window was not broken) and tried to push the policeman back; while trying to ward off the officer with a 10 to 12 foot effigy, it broke and she was left with the stick which was a part of it; she told the officer (Petrasich) to stop and pushed him back again with the stick; her object was to prevent injury to the two people inside the cab; she did not recall poking the stick at any other officer (Yturralde); (she identified herself in Exhibit 4 (photograph) as having her arms raised above her head apparently in the process of beginning a downward thrust motion, with an officer's (Yturralde) hand raised upward toward her); she did not recall how many officers she struck at the time nor how many blows she directed to the police; she was struck on the head by Petrasich, grabbed out of the truck by an officer, thrown to the ground and handcuffed; she recognized Petrasich as an on-duty police officer but had not known that his foot was under the wheel of the truck or that he was in any pain or difficulty.

On October 20, 1967, the trial judge suspended the proceedings and placed defendant on probation for three years on certain conditions, one of which, according to order made in open court, was 'that she not take an active or official part in any other demonstrations of this kind during the period of probation'; according to the judgment she was 'Not to participate actively in demonstrations involving sit-downs, road-blocking, et cetera.' Thereafter on January 8, 1968, because of her active participation in a demonstration outside of the U.C.L.A. Placement Center following a visit from the Dow Chemical Company job interviewer, probation was revoked and defendant was sentenced to 30 days in the county jail.

Appellant's main contention is that the condition of probation proscribing participation in demonstrations is unreasonable and, therefore, unlawful as having no reasonable relationship to the offense, being vague, forbidding conduct not in itself criminal, not reasonably related to future criminality and violative of the First Amendment rights. Her argument, indeed her whole appeal, is predicated on the premise that her attack on the officers was the result of her fear that they would injure her and the occupants of the cab of the truck. This was her claim in the trial court but the judge simply was not impressed with the verity of her testimony and rejected her reasons for assaulting the officers and her defense. It is the exclusive province of the trial judge to determine the credibility of witnesses and the truth or falsity of the facts upon which a determination depends (People v. Lyons, 47 Cal.2d 311, 321, 303 P.2d 329); is is not for this court to determine conflicts in, or to choose between inferences which reasonably may be drawn from, the evidence. (People v. Hills, 30 Cal.2d 694, 701, 185 P.2d 11.) If the circumstances reasonably justify the trial court's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Robillard, 55 Cal.2d 88, 93, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086; People v. Love, 53 Cal.2d 843, 850--851, 3 Cal.Rptr. 665, 350 P.2d 705; People v. Daugherty, 40 Cal.2d 876, 884--886, 256 P.2d 911; People v. Newland, 15 Cal.2d 678, 680--683, 104 P.2d 778.) At this stage the test is not whether the evidence may be reconciled with innocence but whether there is substantial evidence in the record on appeal to warrant the...