9 Cal.3d at p. 624, 108 Cal.Rptr. 465, 510 P.2d 1017
Petitioners Robert F. Brown and his six codefendants in one criminal prosecution, and Abbass Bozorg and his four codefendants in a second prosecution, were convicted after jury trials of violating Penal Code sections 408 and 415.1 They were acquitted of charges of violating section 409.2
The appellate department of the superior court affirmed the judgments in the two cases and denied certifications to the Court of Appeal.3 Upon petitions for writs of habeas corpus, the Supreme Court of California issued orders to show cause.4
On January 23, 1969, petitioners and approximately 1,000 other people attended a noon rally in the central area of the then-named San Francisco State College campus.5 They came to hear addresses by the chairman of the San Francisco Civil Service Commission and by several leaders of the student strike then in progress on campus.6 Because of the student strike, an administrative ban on all rallies in the central area of the campus had been instituted on January 6.7 This ban was still in effect on January 23.8
During the morning of January 23 there had been picketing on campus.9 Towards noon the number of pickets increased as students gathered for the rally.10 Before the rally commenced two complaints of noise and of threats in the education building had been received.11 One class was dismissed early because of the din.12 Several professors and students testified that classes and study were disturbed while the participants gathered.13
During the rally itself there was chanting and shouting of slogans which one witness described as thunderous.14 Picket signs and banners were waved and clenched fists were raised to punctuate the speeches and chants.15 However, despite these activities and the large number of people in attendance, the mass meeting was generally orderly.16 All petitioners were present at the rally for the purpose of hearing the speakers and demonstrating their support for the strike.17
In anticipation of the disruptions, many police officers had been posted on campus.18 At 12:10, 194 police officers were brought to the central area, flanking the crowd at the speaker's platform.19 Approximately five minutes after the arrival of the police, Mr. Scoble, a representative of the college administration, was called to the speaker's platform by police officials.20 He announced that the assembly was unlawful.21 He ordered that the participants vacate the central campus area.22 He further suggested that those gathered move on to the athletic field.23
Five minutes after Mr. Scoble's announcement, Lieutenant Emil of the San Francisco Police Department also declared from the speaker's platform that the assembly was unlawful and ordered the crowd to disperse.24 There was evidence presented that a large number of people did not hear either this or Mr. Scoble's announcement.25 Some of those who heard the announcements responded by shouting obscenities and by shaking clenched fists while others left the rally immediately after Lieutenant Emil's announcement.26 Approximately three minutes after Lieutenant Emil's announcement, the police who had been flanking the speaker's platform encircled the crowd that remained.27 An arrest order was given within five minutes of the officer's announcement.28 Everyone within the police circle, including petitioners and 425 others, were placed under arrest.29 The police confiscated assorted objects from the individuals who were arrested, including one large picket standard supported on a 2- by 4-inch stick, four smaller picket standards, and knitting needles with knitting attached.30
In the Bozorg case, the jury was read the pertinent parts of Penal Code section 415.31 They were told that tumultuous means boisterous conduct, disorderly, noisy, that willfully means simply a purpose or willingness to commit the act or to make the omission in question, and that maliciously means with an intent to vex or annoy or injure another person or with an intent to do a wrongful act.32 In the Brown case, the jury was similarly read the provisions of Penal Code section 415 with substantially equivalent definitions of wilfully and maliciously.33 Tumultuous was defined as meaning boisterous, conducted with disorder, disorderly, noisy, confused.34 In the Brown case the judge also instructed the jurors on freedom of speech, telling them that the right to peaceably assemble includes the right to communicate ideas by singing, chanting and shouting, as well as by signs, symbols and slogans, but that pickets shouting in unison in a loud and boisterous manner disturbing the peace and quiet of the neighborhood and thereby interfering with a complainant's peaceful enjoyment of property is unlawful conduct.35 In both cases the juries were instructed in the language of Penal Code section 407 defining unlawful assembly, except that in the Bozorg case the word violent was omitted.36 Both courts instructed that the administrative ban on rallies was purely a statement of administrative policy and not a statement of the law.37
Whether the jury instructions on Penal Code section 415 in the Brown and Bozorg cases properly defined the elements of the offense?38
The literal language of section 415 embraces a wide variety of prohibited conduct.39 Much of such conduct was never intended to be proscribed, and some of the other prohibitions are limited by First Amendment considerations.40 The portion of section 415 prohibiting disturbing the peace by tumultuous and offensive conduct is limited to disruption of public order by acts that are themselves violent or that tend to incite others to violence.41 The proscription on offensive conduct is valid only where there is a clear and present danger that violence will imminently erupt.42 The loud or unusual noise portion encompasses communications made in a loud manner only when there is a clear and present danger of violence.43 Such communications may also be prohibited when the communication is not intended as such but is merely a guise to disturb persons.44
No. The instructions in both cases failed to comply with the requirements of Bushman and Cohen.45 The jury was not told in either case that tumultuous means acts violent in themselves or that offensive applies only where there is a clear and present danger that others will be provoked to immediate violence.46 Although the judge in Brown did instruct on the right to peaceably assemble and made reference to violence, these instructions did not limit the proscription of section 415 to violent conduct or the provocation of violent conduct.47 The instruction on the right to assemble was qualified by language which indicated that shouting which disturbed others in their enjoyment of their property was unlawful.48
The reference to violence in the instructions was not by way of limitation but merely by way of illustration.49
The jury instructions on Penal Code section 415 in the Brown and Bozorg cases did not properly define the elements of the offense consistent with First Amendment requirements.50
Whether the evidence presented at trial supported the petitioners' convictions under the loud or unusual noise portion of Penal Code section 415?51
The statute cannot be interpreted consistent with the First Amendment and traditional views as making criminal all loud shouting or cheering which disturbs and is intended to disturb persons. When the word noise in the statute is properly construed consistent with the First Amendment and traditional views, it encompasses communications made in a loud manner only when there is a clear and present danger of violence.52 Such communications may also be prohibited when the communication is not intended as such but is merely a guise to disturb persons. Loud shouting and cheering designed to disrupt rather than communicate may be prohibited generally.53
No. The evidence relating to the loud noise portion of section 415 strongly indicates that although the demonstrators' purpose was to interrupt academic functions on the campus, they sought to do so by persuasive communications rather than by disruption in the guise of communication.54 There is no evidence that petitioners themselves engaged in violence or that their conduct presented a clear and present danger of violence.55 The instructions in the instant cases left the juries free to convict even though they believed that the cheering and shouting were for the purpose of communicating views and of enlisting support for those views.56 Under these circumstances petitioners have met their burden of establishing that their convictions of violation of section 415 were based on constitutionally protected conduct.57
The evidence presented at trial did not support the petitioners' convictions under the loud or unusual noise portion of Penal Code section 415 when the statute is properly construed.58
Whether the jury instructions on Penal Code sections 407 and 408 in the Brown and Bozorg cases properly defined the elements of unlawful assembly?59
The First Amendment guarantee of the right to assemble peaceably requires similar limitations on the provision in section 407 prohibiting assembly to do a lawful act in a violent, boisterous or tumultuous manner.60 The proscriptions of sections 407 and 408 on assemblies to do a lawful act must be limited to assemblies which are violent or which pose a clear and present danger of imminent violence.61 The alternative proscription of sections 407 and 408, assembly to do an unlawful act, was at the time relevant here qualified by the requirement that the persons separate without doing or advancing toward it.62
No. In both the Brown and Bozorg cases the juries were instructed in the language of the statute except that in the Bozorg case, the word violent was omitted from the instruction.63 In neither case were any of the words of the statute defined.64 Tumultuous had been defined by both courts previously as meaning boisterous, disorderly, noisy or confused.65 Both courts instructed that the administrative ban on rallies was purely a statement of administrative policy and not a statement of the law of the State of California.66
The instructions on the lawful act portion of section 407 were erroneous in that they did not limit the offense to assemblies which are violent or which pose a clear and present danger of imminent violence.67 In Bozorg there was only one instruction given on freedom of speech.68 The jury was told that a rally or a demonstration is not necessarily in and of itself against the law.69 In Brown there were extensive instructions given on freedom of speech.70
The jury was told that an assembly of persons attended by circumstances reasonably calculated to excite alarm may be an unlawful assembly but the fact that a policeman declared the assembly unlawful did not make it so.71 The jury was further told that a peaceful assembly is an exercise of freedom of speech guaranteed to all by the First Amendment to the United States Constitution.72 It is not a violation of the law to attend and remain at a peaceful assembly.73
The jury instructions on Penal Code sections 407 and 408 in the Brown and Bozorg cases did not properly define the elements of unlawful assembly consistent with First Amendment requirements.74
Whether the evidence presented at trial supported the petitioners' convictions under Penal Code section 408 for participating in an unlawful assembly?75
There is no substantial evidence sufficient to justify a finding by the jury that the petitioners or any of them assembled with the purpose of doing an unlawful act and separated without doing it or advancing toward it.76 An unlawful act within the meaning of section 407, as the Attorney General concedes, means criminal conduct prohibited by state law.77 The evidence is such that a jury would be required to find either that the petitioners did not assemble to do an unlawful act or that they did so assemble and that they accomplished the unlawful act or advanced toward it.78
No. There is no substantial evidence sufficient to justify a finding by the jury that the petitioners or any of them assembled with the purpose of doing an unlawful act and separated without doing it or advancing toward it.79 The evidence is such that a jury would be required to find either that the petitioners did not assemble to do an unlawful act or that they did so assemble and that they accomplished the unlawful act or advanced toward it. This is because the only evidence that they assembled to do an unlawful act is their presence at and conduct during the demonstration.80 Such presence or conduct cannot logically furnish an inference that they assembled to do an unlawful act and at the same time an inference that they did not advance toward it or accomplish it.81
Not only were the instructions on the lawful act portion of section 407 erroneous in that they did not limit the offense to assemblies which are violent or which pose a clear and present danger of imminent violence, but the evidence was insufficient for conviction under this portion of the statute.82 As pointed out earlier there is no evidence that petitioners engaged in acts which were by themselves violent or which posed clear and present danger of violence.83
The evidence presented at trial did not support the petitioners' convictions under Penal Code section 408 for participating in an unlawful assembly.84
Whether habeas corpus is available to challenge the petitioners' convictions for violations of Penal Code sections 408 and 415?85
Habeas corpus is available in cases where the court has acted in excess of its jurisdiction.86 For purposes of this writ as well as prohibition or certiorari, the term jurisdiction is not limited to its fundamental meaning.87 A defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct.88 Habeas corpus thus is an appropriate remedy to challenge the convictions for unlawful assembly in violation of Penal Code sections 407 and 408 because there is no substantial evidence to support the convictions.89
Yes. Habeas corpus is available in cases where the court has acted in excess of its jurisdiction. For purposes of this writ the term jurisdiction is not limited to its fundamental meaning.90 A defendant is entitled to habeas corpus if there is no material dispute as to the facts relating to his conviction and if it appears that the statute under which he was convicted did not prohibit his conduct.
Habeas corpus is an appropriate remedy to challenge the convictions for unlawful assembly because there is no substantial evidence to support the convictions. With respect to the convictions of violation of section 415 of the Penal Code, there is no substantial evidence to sustain the convictions on the basis of the portion of the section prohibiting tumultuous or offensive conduct.91 No instructions should have been given on this portion of the section.92 Nevertheless the courts gave such instructions which erroneously defined the crime.93
Under the erroneous instructions the evidence strongly pointed to guilt, and there is no way to ascertain whether petitioners' convictions were in fact based on such instructions.94 The evidence relating to the loud noise portion of section 415 strongly indicates that although the demonstrators' purpose was to interrupt academic functions on the campus, they sought to do so by persuasive communications rather than by disruption in the guise of communication.
Habeas corpus is available to challenge the petitioners' convictions for violations of Penal Code sections 408 and 415.95