People v. Poe

• Decision Date: 23 April 1965
• Docket Number: Cr. 7617
• Court: California Superior Court
• Parties: 236 Cal.App.2d Supp. 928, 1 Empl. Prac. Dec. P 9714 PEOPLE of the State of California, Plaintiff and Respondent, v. Marjorie Ruth POE, Harold Kenneth Brown, George Luther Stevens, Lee Carroll Anthony, William Robert Beard, Ambrose Brodus, Defendants and Appellants. Appellate Department, Superior Court, San Diego County, California

Page 670

47 Cal.Rptr. 670

236 Cal.App.2d Supp. 928, 1 Empl. Prac. Dec. P 9714

PEOPLE of the State of California, Plaintiff and Respondent, v. Marjorie Ruth POE, Harold Kenneth Brown, George Luther Stevens, Lee Carroll Anthony, William Robert Beard, Ambrose Brodus, Defendants and Appellants.

Cr. 7617.

Appellate Department, Superior Court, San Diego County, California.

April 23, 1965.

[236 Cal.App.2d Supp. 930] Mary Harvey, San Diego, for defendants and appellants.

Edward T. Butler, City Atty., by Curtis M. Fitzpatrick, Deputy City Atty., for plaintiff and respondent.

PER CURIAM.

Defendants were convicted of trespass on property of the Bank of America. Six cases were consolidated for the trial and, with others, for this appeal.

The trespass was charged in two counts: entering land with intention to interfere with or obstruct a business [P.C. § 602(j)]; and, entering and occupying property without the owner's consent [P.C. § 602(l)]. A third count in each case charged willful disobedience of a superior court order [P.C. § 166, subd. 4] which restrained the defendants and others from--among other things--trespassing or mass picketing on or about the property of the Bank of America. Defendants were found guilty by a jury, and given consecutive sentences, on each count of the complaints.

Appellants contend, in brief, that the evidence does not support convictions under these trespass statutes; that any application here of these statutes deprives appellants of certain constitutional rights; that the convictions should be abated under the Federal The case is here on a settled statement of the facts, and with certain photographs and moving pictures which were exhibits at the trial. We have been asked to consider, and have considered, all of the record including these exhibits.

Civil Rights Act of 1964; that appellants had no timely knowledge of the contents of any court order; and, finally, that the sentences are contrary to the command of P.C. § 654, and constitute multiple punishment.

For at least a week prior to their arrest defendants were known to officers of the Bank of America as persons involved with a larger group of people demonstrating in and about different business premises of the bank. The demonstrations were in various forms. Picket lines of eight to ten people--sometimes including defendants--walked around on public sidewalks fronting bank premises with signs protesting the bank's employment policies regarding racial minorities, and exhorting the public not to do business with the bank. Some persons--including some defendants--entered bank premises, exchanged bills for coins of small denomination, and remained in front of tellers' windows for as long as thirty minutes counting coins on the customer side of the counters. In some instances other customers were able to conduct their business with the tellers by reaching around the demonstrators.

The 'demonstrations' for which defendants were convicted occurred during business hours on June 26, 1964, at the bank's main office in San Diego (defendant Beard will be treated separately). A picket line was moving in front of the bank. Defendants and others grouped themselves in three of the six doorways into the bank. For about fifteen or twenty minutes, except for some singing, they just stood there, until their arrest. There is no evaluation in the record of either the volume or quality of the singing. The settled statement is clear that 'most of the time, the defendants and/or others standing in or near the doorways with them turned aside to permit ingress and egress for bank customers * * *.' (Emphasis added.) Films show that, at best, the customers bold enough to come on to face with the defendants, did squeeze through, with the defendants' group re-forming behind them. Both testimony and film placed all defendants on the bank's property during this time. Defendants were served with the court's restraining order on June 26--the same day--and this subject will be discussed separately.

Minutes before their arrest each defendant was advised by a bank official that--among other things--they were acting in violation of a temporary (restraining) order, and of the trespass law; defendants were requested to leave. Defendants did not change their positions and the arrests followed.

Defendant Beard was arrested earlier on the same afternoon at the bank's 42nd and El Cajon Blvd. branch after counting pennies at a teller's window for about thirty minutes, and after being served with the court order.

We have fully examined the language of P.C. §§ 602(j) and 602(l) in a substantially similar factual situation in People v. Brown et al. (Case 'A', CR-7474), Cal.Super., 47 Cal.Rptr. 662, a companion to the instant case on appeal--opinion filed this day. We concluded there that P.C. § 602 (l) could not be applied to make mere occupancy without consent a criminal act, where the preceding entry was not also 'without consent'. Whatever notice the defendants may have received through earlier service on them of a temporary restraining order (in a then pending civil suit by the bank), they were not then advised that as to a simple, uncomplicated entry, the bank's consent was by the order being withdrawn. The statute calls for more crime than is shown here.

Our reasoning in the companion case ('A') as to P.C. § 602(j) leads to the conclusion that the trial judge here was correct in instructing the jury that the word 'lands' includes buildings and fixtures (Instruction No. 36). There was ample evidence of defendants' actions before, during and We come now to the contentions of appellants that racial discrimination was or should have been an issue in the trial, and that their fundamental right of protest was abridged by their conviction. No support can be found for either argument.

after their entry to justify the verdict of guilty on a charge that they entered on June 26th with the intention of interfering with or obstructing[236 Cal.App.2d Supp. 933] the lawful business of the bank. The trial judge was quite correct in his rulings on the admission of all this evidence.

EQUAL PROTECTION

Appellants complain that the trial court excluded evidence offered to prove that the bank had in fact discriminated in its hiring practices. An affirmative finding on this issue, it is urged, would place these defendants within the 14th Amendment's protection against the enforcement of laws which discriminate against citizens on the basis of their color or race. For this application of constitutional intent appellants cite Lombard v. State of Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338.

Initially we are faced with the problem that nothing in the record of this case reveals any rulings on evidence or offered evidence of discrimination or, indeed, even the race or color of the defendants. The temptation, if not the precedent is to deny appellants' plea for any review of the constitutional argument. Since this case is in hand with others, however, and appellants in other related cases present slightly sturdier records on the question it seems expedient here, if not necessary, to dispose of all their fears on their merit.

It has become clear that state enforcement of a nondiscriminating trespass statute can be unconstitutional if that enforcement is coupled with the existence of a statute or ordinance which requires the separation of the races. (Peterson v. City of Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323; Lombard v. State of Louisiana 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963).) In 1964, however, the U. S. Supreme Court avoided the 14th Amendment's Equal Protection Clause in reversing state convictions for criminal trespass where state impressed discrimination had disappeared from the statutes pending the appeal. (Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822.) A respectable minority of the court had there argued that under the circumstances the state had frustrated the petitioners' constitutional right to public accommodations in legitimating, by judicial action, a proprietor's attempt at self-help. No U. S. Supreme Court decision has been discovered which places freedom from private discrimination in places of public accommodation, without state action, among the guarantees of the 14th Amendment. In December of 1964 that court again acknowledged its failure to settle the question. (Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 at p. 304; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258, at p. 264.) In the latter decision the court rested its approval of the Civil Rights Act of 1964 solely on the sufficiency of the commerce power. It specifically did not pass upon § 201(d) or § 202 of that act, having to do with state action.

In the case at bench, appellants point to no more 'state action' then was found in Bell v. State of Maryland (supra). This court cannot do what the United States Supreme Court has not done. The Equal Protection Clause of the 14th Amendment is not available to the defendants even if the only crime in their conduct was generated by the bank's private discrimination against their race, which is not the fact.

It must be noted that in all of the so-called 'sit-in' cases involving the 14th Amendment and criminal trespass before the U. S. Supreme Court, the crime was asserted only in the owners' lack of consent to the simple presence of the defendants, or 'because they were negroes'. The only acts charged, i. e. sitting in, were innocent except for the (invalid) statute demanding The record before us is quite different. None of these defendants were themselves refused any service by the bank. On the contrary, it is plain that the bank did serve them. None were shown to have applied for employment, or suffered the rejection of any application because of race, color, religion, or national origin. Except for some fleeting impressions...