PEOPLE v. Larry Tabay Atkins et al., Defendant.

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Court of Appeal, Second District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Joseph DAVIS, Defendant and Appellant, Larry Tabay Atkins et al., Defendant.

Cr. 13919.

Decided: November 09, 1967

A. L. Wirin, Fred Okrand, Lawrence R. Sperber, Mitchell S. Shapiro, Richard E. Posell, Los Angeles, and Anita Rae Shapiro for defendant and appellant. Roger Arnebergh, City Atty., and Michael T. Sauer, Deputy City Atty., for plaintiff and respondent.

On certification by the Appellate Department of the Superior Court, Los Angeles County, and pursuant to rule 62 of the California Rules of Court, in order to settle an important question of law, we transferred this case to us for hearing after a decision of that court affirming a judgment of conviction. We affirm the judgment.

Defendant was charged with, and convicted of, a violation of section 404.6 of the Penal Code, which section reads as follows:

‘Every person who with the intent to cause a riot does an act or engages in conduct which urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances which produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of a misdemeanor.

‘This section shall not apply to, nor in any way affect, restrain, or interfere with, otherwise lawful activity engaged in by or on behalf of a labor organization or organizations by its members, agents or employees.’

The case comes to us on a settled statement, which shows only that defendant was convicted in the trial court and that it is stipulated, for the purpose of this appeal, ‘that appellant was not a member, agent or employee of a labor organization engaged in activity by or on behalf of a labor organization on the date charged in the complaint.’ It follows that the only question before this court is that of the constitutionality of the section, on its face; and that, if it is a constitutional enactment under any set of facts consistent with the single stipulation of fact, the judgment must be affirmed. Defendant has suggested sundry hypothetical situations in which, he contends, application of the statute might be unconstitutional. For reasons set out below, we do not consider them.


Defendant contends that the section violates the equal protection provisions of the Fourteenth Amendment and of the state Constitution, by reason of the second paragraph, above quoted. We do not agree.

Contrary to the contention of the People, we agree that that paragraph exempts activity conducted pursuant to an objective of a labor organization from the proscription of the present section. The phrase ‘otherwise lawful’ can have no reasonable meaning other than ‘lawful except for this section.’ But it does not follow that the section is, for that reason, an unconstitutional violation of equal protection of the laws. A legislative body may discriminate in the operation or effect of a statute so long as that discrimination rests on some rational basis. And it is for the Legislature, and not for the courts, to determine, preliminarily, the policy issues involved in such a decision. So long as we can see any reasonable theory on which the discrimination could be based, it is not our province to inquire as to the wisdom of the legislative action. (Serve Yourself Gas etc. Assn. v. Brock (1952) 39 Cal.2d 813, 249 P.2d 545; County of L. A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d 378, 196 P.2d 773; People v. Mullender (1901) 132 Cal. 217; Acton v. Henderson (1957) 150 Cal.App.2d 1, 309 P.2d 481; People v. Gordon (1951) 105 Cal.App.2d 711, 234 P.2d 287.)

The problems connected with labor disputes, and with the types of violence which from time to time accompany those disputes, have received the attention of legislatures and courts for many years. A substantial body of law, both statutory and judicial, has been developed to deal with those problems in an attempt to reconcile the conflicting economic and social interests therein involved. Experience teaches us that the violence connected with labor disputes differs both in degree and in kind from the serious, area-wide rioting that has sprung up, especially in the last two years, involving problems of racial equality and civil rights and the concept of so-called ‘civil’ disobedience. We cannot say that the legislature was acting arbitrarily in concluding that the rules of civil and criminal law in force prior to the enactment of section 404.6 in the summer of 1966 were adequate to deal with violence incident to labor disputes, but that new and more specific rules were required to deal with these new outbursts of street fighting and sniping. Just as the law has distinguished between the rules for injunctive relief in labor and in nonlabor situations,1 and between combinations in possible restraint of trade involving labor unions and those between business enterprises,2 so here it offended no constitutional requirement of equal protection to leave the law on labor disputes untouched while a different problem was attacked.


Defendant contends that the section is so ambiguous and uncertain as to render the section unenforceable and to make it lacking in due process of law. Again, we disagree. Concededly, the grammatical construction leaves something to be desired. But the meaning is sufficiently clear to meet the requirements of due process. With a little rearranging of the phrases and of punctuation, and the insertion of the words enclosed in brackets which ar obviously implied from those used, the operative paragraph of the section reads as follows:

‘Every person who (at a time and place and under circumstances which produce a clear and present and immediate danger of [a] acts of force or violence or [b] the burning or destroying of property):

[(1)] with the intent to cause a riot,

[(2)] does an[y] act or engages in [any] conduct which:

[(a)] urges a riot, or

[(b)] urges others to commit acts of force or violence, or

[(c) urges others to engage in] the burning or destroying of property,

is guilty of a misdemeanor.'

So read, it is clear that the section deals only with a form of expression—‘urging’—done with the specific intent to cause a ‘riot,’ as that word has been defined in section 404 of the Penal Code since 1872. We can see nothing ambiguous in such a proscription.


Next, defendant contends that the section is unconstitutional because it could be construed to apply to situations—in particular conduct which incites bystanders to attack the actor and his followers—which may or may not be protected by the First Amendment. But, if a statute, on its face, may constitutionally apply to the party before the court, the court will not inquire, at his request, into the validity of the statute based on a hypothetical interpretation applicable to some other situation. It is the obligation of the appellant here to show that, under no reasonable interpretation of the statute, could it validly be applied to him. That he has not done. As we have pointed out above, on this record, we do not know what the defendant did. It is entirely possible, on this record, that he was convicted for exhorting his own followers, by word or deed, to engage, then and there, in rioting or other violent acts. That such conduct may constitutionally be prohibited is clear. Under these circumstances, we do not, and may not, reach the abstract and hypothetical problem that defendant poses for our advisory opinion.


In addition, defendant urges that the phrase in the stature referring to the necessity of a ‘clear and present danger’ is ambiguous and vague and that this defect pervades the entire operative paragraph. The argument is fallacious.

The term ‘clear and present danger’ is one long used by the courts to distinguish between constitutionally permissible limitations on speech and limitations constitutionally prohibited. Insofar as the section deals with ‘free speech’ within the purview of the First Amendment, the courts would have applied that concept even without statutory language. The section is not rendered vague by a legislative recognition of the inevitability of judicial interpretation.

The questioned phrase does, however, impose a limitation on the application of the section which may go beyond that which the First Amendment requires. As we have seen, the section deals with the expression of ideas. But not all forms of expression fall within the ambit of the ‘speech’ that is protected by the First Amendment.3 With what seems to us a commendable desire to avoid difficult issues of constitutional law, the Legislature has seen fit to direct that the traditional judicial concept of ‘clear and present danger’ apply to all conduct dealt with in the section, whether or not such conduct, so long as it is in the nature of ‘urging,’ falls within the technical boundaries of constitutionally protected ‘speech.’ Such a limitation, defensible on pragmatic grounds, renders the section neither ambiguous nor unconstitutionally discriminatory.


No other possible defects appearing on the face of the section have been urged on us and we see no others. The section on its face, is constitutional. On this record defendant has no valid ground to attack his conviction.

The judgment appealed from is affirmed.


1.  Cf. The Norris-LaGuardia Act. Act of March 23, 1932, c. 90, 47 Stat. 70, 29 U.S.C.A. § 101 et seq.

2.  Cf. Clayton Act. Act of Oct. 15, 1914, c. 323, § 6, 38 Stat. 731, 15 U.S.C.A.§ 17.

3.  Cf., for example, Adderley v. State of Florida (1966) 385 U.S. 39, 87 S.Ct. 698, 17 L.Ed.2d 149.

KINGSLEY, Associate Justice.

FILES, P. J., and McCOY, J. pro tem.,* concur.