People v. Uptgraft

• Decision Date: 13 February 1970
• Docket Number: Cr. A
• Citation: 87 Cal.Rptr. 459,8 Cal.App.3d Supp. 1
• Court: California Superior Court
• Parties: 8 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Respondent, v. Galeno UPTGRAFT et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Jeri L. GANDY et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Mark Fredric LEVINE et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Eric Eugene McCARTNEY, Defendant and Appellant. The PEOPLE, Plaintiff and Respondent, v. Sharon EMORY et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Milton WRIGHT et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Ellen GABEHART et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Michael Terry GINSBURG et al., Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. Van Allen ROBINSON, Defendants and Appellants. 8603--8611. Appellate Department, Superior Court, Los Angeles County, California

Page 459

87 Cal.Rptr. 459

8 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Respondent, v. Galeno UPTGRAFT et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Jeri L. GANDY et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Mark Fredric LEVINE et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Eric Eugene McCARTNEY, Defendant and Appellant.

The PEOPLE, Plaintiff and Respondent, v. Sharon EMORY et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Milton WRIGHT et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Ellen GABEHART et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Michael Terry GINSBURG et al., Defendants and Appellants.

The PEOPLE, Plaintiff and Respondent, v. Van Allen ROBINSON, Defendants and Appellants.

Cr. A. 8603--8611.

Appellate Department, Superior Court, Los Angeles County, California.

Feb. 13, 1970.

Edwin Mosk, Leon Goldin, Slaff, Mosk & Rudman, Los Angeles, for appellants.

Roger Arnebergh, City Atty., Michael T. Sauer, Deputy City Atty., for respondents.

SMITH, ^* Judge.

Defendants were convicted of violating section 409, Penal Code. This section makes it a crime to remain present at the place of an unlawful assembly after being lawfully warned to disperse. The fact of remaining is not disputed. The fact that many warnings were given and heard is not disputed. The legality of such warnings is disputed. Defendants also deny that there was any unlawful assembly.

It is undisputed that on the morning of the arrests the assembled students were not violent and that all of them were waiting peacefully in the 'forum' area (set aside for speeches) at the time of their arrests.

There were nevertheless two bases upon which it was contended by the People that the assembly was unlawful: 1) Dr. Oviatt, acting president of San Fernando Valley State College, made a determination as a school administrator that the campus would be closed to all public gatherings. Such determination was made between 6 a.m. and 7:30 a.m., before any assembly had occurred. Such determination was based on violence of the preceding two months and particularly the preceding two days. Students were first warned that such gatherings were banned; then warned that they would be arrested if they remained; and then arrested. 2) Captain Lembke of the police department, assigned to this school, made a determination that morning at 9:30 and after the assembly was in progress, based upon what he saw that morning together with events of the prior two days and to a lesser extent the events of the prior two months, that the assembly constituted a danger to the safety of persons and property and was an unlawful assembly. Warnings were given and arrests followed.

Evidence supporting the first basis (but not the second) was presented in the trial of Lorretta Barrish and three other defendants. They were all acquitted on the same day and by the same judge who convicted the defendants now before us.

Two separate trials followed the Barrish trial. They were the Uptgraft trial and the Gandy trial. In both of the latter trials, Captain Lembke testified and the second basis was presented, in addition to the first basis. All defendants before us were tried either on the Uptgraft record or the Gandy record or, by stipulation, on the Uptgraft record plus the Barrish record or on all three records. Thus, evidence supporting both theories is present in all cases before us. However, since the four defendants in the Barrish case were acquitted at the same time that all of the present defendants were convicted, it is apparent that the convictions were not based upon the Oviatt determination and we will base our decision solely on the determination of Captain Lembke. Since other cases may come before us later where Dr. Oviatt's determination alone was presented, it should be understood that we are not deciding that question one way or the other at this time.

There was no showing that anything was said or would be said at the forum on the day of the arrests which would constitute a clear and present danger, and hence the inference that an unlawful assembly existed cannot be justified on such basis. See Terminiello v. City of Chicago (1949) 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131, and the first count in Cox v. Louisiana (1965) 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. There are very few limitations that may be placed upon what is said, i.e., limitations on pure speech. However, acts and conduct incidental to speech may be regulated. The fact that people assert First Amendment rights does not place them above the law and immunize them from obeying state laws, so long as such state laws are enforced fairly and without discrimination. Cameron v. Johnson (1968) 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (picketing may be stopped where it interferes with entrances to public buildings); Adderley v. Florida (1966) 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (demonstrators may not block vehicular traffic and the entrance to a jail); Cox v. Louisiana (1965) 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 and companion case 379 U.S. 559, 85 S.Ct. 476, at page 487 (upholding the constitutionality of two statutes prohibiting obstruction to public passageways and regulating picketing near public buildings; although the convictions were reversed because of arbitrary, selective and improper enforcement); Edwards v. South Carolina (1963) 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (although convictions were reversed because there was no breach of the peace and that is all that defendants were charged with, the court stated that it would have been different if there had been obstruction of pedestrian or vehicular traffic); Milk Wagon Drivers Union etc. v. Meadowmoor Dairies (1941) 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (past violence justifies enjoining future picketing); Evers v. Birdsong (1968), D.C., 287 F.Supp. 900 (demonstrating may be enjoined where it causes destruction of property and interference with education). Thus, in the present case we must determine whether the trial judge was justified in holding that the assembly had convened that morning, not just to talk and not just to provoke acts but to act, to act in violation of the law.

The intent of people is usually determined from the surrounding circumstances. See section 21 of the Penal Code.

For two days, a definite pattern had been developing: First, students met in the forum. Second, they were there harangued by other students, teachers, and outsiders until they were worked up to the point of action. Third, they would march to the administration building and cause violence. This two-day pattern must be viewed in the light of a two-month pattern of violence on the campus, which we shall now review.

On November 4, 1968, a group of students occupied the fifth floor of the administration building. (B p. 150, G p. 198.) ¹

They forcibly held as hostages for four hours a number of faculty members, administrative staff members and clerical staff members. (B p. 150, G p. 195.) They intimidated the president of the college and forced him to sign a paper which they dictated to him. (G pp. 195--198.)

On December 8 the president's office was set afire. (B p. 150, G p. 199.)

During December, there were several bomb threats. (B p. 150, U p. 264.) There was at least one other fire and there were fights in the college recreational halls where students were injured. (B pp. 150--151.)

On December 20 (the last day of school), there were fights in the forum (B p. 151, G p. 200, U p. 151), one student being injured enough to go to the hospital.

The Christmas holidays caused a gap between those events and the events immediately preceding the arrests.

On January 7, about 200 students met in the forum. Speakers said that if demands were not met, the school would be closed down and burned down. (B p. 92.) The 200 students marched from the forum to the administration building, where prior violence had occurred. They talked to and threatened Acting President Oviatt. (B pp. 93--94.) When a student tried to protect Dr. Oviatt, they hit the student, knocked his glasses off and knocked him to the ground. (B p. 95.) Other fights broke out between students. (B pp. 95--96.) The students left when the police arrived. The police heard students say they would be back tomorrow and if they did not get what they wanted, they would burn the place down. (B p. 96.) One officer heard 20 to 25 students make threats. (B p. 117.)

On January 8, the students again met at the forum, went to the administration building, and returned to the forum. (B pp. 163--165.) At the forum, speeches were made urging a confrontation and that if their demands were not met, there should be violence. (U p. 31.) Also, that if they did not get what they wanted, they should close the school and burn it down. (B pp. 97--98.) They again marched to the administration building. Students were overheard saying they would enter the administration building and occupy the fifth floor again. (B p. 229, U p. 32.) That is the floor where the November 4 violence occurred. Others told the girls to remove their earrings. The students were warned not to enter the building. Some did and were arrested. (U p. 32.) An urn and pieces of pottery were thrown through windows. (B p. 99.) A security guard was struck numerous times with both fists and feet. His glasses were deliberately broken. (B p. 230, U p. 33.) They attempted to take an officer's gun. (B p. 230, U p. 33.) After they were dispersed, three or four students said they were going to be 'heavy' (i.e., armed) tomorrow. (B p. 100.) Students planned to make Molotov cocktails. (B p. 101, G pp. 103--104.) One said he was going to bring his .45 tomorrow, and a group discussed bringing their friends with weapons and fighting clothes. (U p. 36.) One officer heard as many as 25 to 30...