People v. Serna

Decision Date28 June 1977
Docket Number29906,Cr. 29904
Citation71 Cal.App.3d 229,139 Cal.Rptr. 426
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Ruben SERNA et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Raul WILSON et al., Defendants and Appellants.

Burt Pines, City Atty., Ward G. McConnell, Chief-Appellate Div., Los Angeles, and James M. Hodges, Deputy City Atty., for plaintiff and respondent.

John H. Larson, County Counsel, Allan B. McKittrick, Div. Chief, Steven J. Carnevale and Alfred Charles De Flon, Deputy County Counsel, Los Angeles, as amicus curiae on behalf of plaintiff and respondent.

Los Angeles Center for Law and Justice, John R. Ramos and Thomas A. Stanley, Los Angeles, for defendants and appellants.

Fred Okrand, Jill Jakes and Mark D. Rosenbaum, Los Angeles and Vilma S. Martinez, Virginia Martinez and Peter D. Roos, San Francisco, as amici curiae on behalf of defendants and appellants.

KINGSLEY, Associate Justice.

In two cases (consolidated below and here) defendants were charged in Municipal Court with violating section 12101 of the Education Code, 1 in that they had wilfully and unlawfully refused to send their children to public schools. They were found guilty; on appeal, the superior court reversed the convictions. On certification by that court (Rule 63(a), California Rules of Court), we ordered the cases transferred to us for hearing and decision. We reverse the convictions.

In the Municipal Court, defendants sought to raise two defenses: 2 (1) that they were the subject of invidious prosecution within the meaning of Murguia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44; and (2) that, the elementary school involved being 'segregated' within the meaning of Crawford v. Board of Education (1976) 17 Cal.3d 280, 130 Cal.Rptr. 724, 551 P.2d 28, they had a constitutional right to keep their children out of that public school.

I

We reject the second of those defenses. Similar contentions have been made, and rejected, in another jurisdiction, State v. Vaughn (1965) 44 N.J. 140, 207 A.2d 537. 3 We are not cited to, nor have we discovered any California cases dealing with that contention. In argument before us, defendants laid stress on the decision of the United States Supreme Court in Wisconsin v. Yoder (1972) 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15. That case is not here in point for two reasons: (1) in Yoder, enforcement of the state's compulsory education law ran counter to admittedly valid religious beliefs of the parents, members of the Amish religion; (2) the record showed that the education given to the Amish children in the Amish community was of substantial educational value, even though not the exact equivalent of the secondary education therein involved. In the case before us, no issue as to religious freedom is involved, nor is there any showing or contention that these defendants provided their children with any alternative educational program.

Even though Crawford, and other desegregation cases, have characterized segregated education as bad and harmful, in no case have those courts attempted to order all segregated schools closed immediately. In the pioneer case of Brown v. Board of Education (1954) 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, the direction was that desegregation be accomplished 'with all deliberate speed,' not 'right now.' In Crawford, our Supreme Court merely directed the school board to prepare and present a plan, that would accomplish desegregation, to take effect only after further judicial proceedings. In light of that resolution of the segregation issue, we cannot agree that parental belief in the evils of segregated education justifies the denial to their children of All educational experience.

II

However, we conclude that procedural errors occurred in connection with defendants' attempt to support their defense of invidious law enforcement. In support of that defense, defendants' offer of proof, reasonably construed, was to the effect that, because they had been active in protesting the segregation policies of the school district and, in particular of the elementary school herein involved, they had been subjected to personal harassment by the police, acting at the instigation of the school authorities; 4 and that, because of, and solely because of, their vigorous use of their First Amendment rights to protest the policies of the school and the school system, they, and they alone, had been singled out for prosecution under the Education Code.

We conclude that those allegations, if proved, would constitute a defense under Murguia. In an attempt to secure the evidence necessary to support the contention that they had been singled out for prosecution, defendants sought discovery to elicit information as to the number of students absent from schools in the district for a period of time comparable to that herein involved whose parents had been subjected to prosecution and whose absences were not exempt. The trial court refused district-wide discovery but did grant limited discovery concerning the elementary school involved. That order read as follows:

'Discovery as allowed in the records of the Los Angeles Unified School District, the Magnolia Elementary School and the city attorney of the City of Los Angeles insofar as the Magnolia Elementary School is concerned as follows: Number 1, the number of students as being absent from Magnolia Elementary School for a period of 19 or more school days within a 37 school day period during the school year 1974--'75, as of the period September 11, 1974 (the first day of school in the aforesaid school year) through and including October 31st, 1974, the date of the charge set forth in the Complaint, which absences were not exempted nor excused.'

To that discovery order, the People replied as follows:

'As per Item 1, the total number of such students not exempted is 25, including the two students filed against. The meaning of the word 'excused' is unclear at this time as used in that court order.'

At the next court hearing, counsel for the People stated, for the record, that:

'MR. HADLEN: 28 total children involved in a similar situation as the...

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4 cases
  • People v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • May 17, 1984
    ...that has been achieved by raising this defense, other than by obtaining discovery, post-Murgia, has occurred in People v. Serna (1977) 71 Cal.App.3d 229, 139 Cal.Rptr. 426, and People v. Hertz (1980) 103 Cal.App.3d 770, 163 Cal.Rptr. 233. In Serna, the convictions of defendants for a crimin......
  • People v. Moya
    • United States
    • California Court of Appeals Court of Appeals
    • August 27, 1986
    ... ... Serna (1977) 71 Cal.App.3d 229, 235, 139 ... Cal.Rptr. 426.) The term judicial discretion implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. (People v. Giminez (1975) 14 Cal.3d 68, 72, 120 Cal.Rptr. 577, 534 P.2d 65.) Judicial discretion requires the ... ...
  • Cassady v. Signorelli
    • United States
    • California Court of Appeals Court of Appeals
    • August 29, 1996
    ...the trial court's ruling on this particular record was certainly not an abuse of discretion. (See, e.g., People v. Serna (1977) 71 Cal.App.3d 229, 232-233, 139 Cal.Rptr. 426 [Parents could not refuse to send their child to public school even though they believed the school might be harmful ......
  • Perakis v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • December 13, 1979
    ...with discrimination if "there were rational reasons for selective use of the prosecutor's time . . . ." (People v. Serna (1977) 71 Cal.App.3d 229, 234, 139 Cal.Rptr. 426, 429; People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 138 Cal.Rptr. 66, 562 P.2d 1315.) The selectivity must be ......

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