PEOPLE v. MEDRANO

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Francisco Franco MEDRANO and Jan Peterson, Defendants and Appellants.

Cr. 8962.

Decided: July 19, 1977

Jerome Cohen, Sanford N. Nathan, George C. Lazar, Mary H. Mocine, W. Daniel Boone, E. Michael Heumann II, and Glen E. Rothner, Salinas, for defendants and appellants. Harry J. Delizonna, Gen. Counsel, Dennis Sullivan, Chief of Litigation, Ellen Lake, Asst. Chief of Litigation, and Manuel M. Medeiros, Counsel, San Francisco, as amicus curiae on behalf of Agricultural Labor Relations Bd. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Marjory Winston Parker and Roger E. Venturi, Deputy Attys. Gen., on behalf of plaintiff and respondent.

Here we deal, first with a claim that California's Agricultural Labor Relations Act of 1975 (ALRA; Lab.Code, 1140 et seq.) divested the municipal court of jurisdiction to try two union organizers on a misdemeanor trespass charge and, second, with a claim that the criminal prosecution infringed constitutional freedoms of communication possessed by defendants and by the farm workers they sought to address.

A municipal court jury found defendants guilty of violating Penal Code section 602(n)1 by trespassing upon property leased to a farm labor contractor. Defendants appealed to the superior court and we ordered the appeal transferred here for decision. (Code Civ.Proc., § 911; Cal. Rules of Court, Rule 63.)

The events are described in a settled statement on appeal. The incident occurred at a farm labor camp operated by Alphonso De Dios, a licensed farm labor contractor, on property leased from a third person. On the property were five buildings occupied by farm workers and their families. De Dios lived in a mobile home on the same premises. The property was surrounded by a fence. A gate which was usually unlocked provided entry. Several labor camps operated by other contractors were nearby. De Dios imposed no restriction on entry or exit of workers or their guests but did require solicitors to obtain permission to enter the property.

At the time of the incident, September 13, 1975, De Dios was absent from the camp and had left his son Robert in charge. Robert De Dios worked as a labor supervisor for his father and resided at another of his father's labor camps. In the late afternoon he saw two organizers for the United Farm Workers Union on the premises and asked them to leave. The organizers complied with the request and reported back to defendant Jan Peterson, the area supervisor for the union. Peterson had sent the organizers to De Dios' labor camp after learning earlier that day that a representation election for employees of Vista Verde Farms had been scheduled by the Agricultural Labor Relations Board (ALRB) for the following day. She understood that some of the occupants of De Dios' labor camp worked for this grower.

Upon learning that the organizers had been asked to leave De Dios' camp, Jan Peterson and several other organizers went to the premises, entered without resistance and began knocking on the doors of workers' living quarters to inquire whether they were employees of Vista Verde Farms and whether they needed transportation to the polling sites for the coming election. Within a half-hour of their arrival Robert De Dios confronted them and asked them to leave. When Peterson, the spokesperson, rejected the request, De Dios telephoned the sheriff's department. Sheriff's deputies arrived within 20 minutes and conferred briefly with Peterson, who told them that the organizers were entitled to be on the premises. At about the same time defendant Francisco Medrano entered the labor camp. He too was an organizer for the United Farm Workers. The sheriff's deputies approached the group of organizers with whom Peterson was standing and asked them to leave the premises. Robert De Dios made a similar request. The other organizers complied but defendant Peterson remained behind and was cited for trespass. Standing some distance away, Medrano watched the group of organizers disperse after De Dios requested them to leave. As Medrano awaited instructions from Peterson, a deputy sheriff approached him and issued a trespass citation.

At the trial both defendants testified that they had entered this particular labor camp without incident on earlier occasions. On the first occasion Medrano had gone to De Dios' residence to seek permission to enter the camp but had found no one home. Three residents of the camp testified that they had not invited defendants to enter the premises on the day in question and did not consider them to be welcome.

Counsel for the ALRB have filed an amicus curiae brief devoted primarily to the theme that union access to the farm labor camp was arguably protected by the ALRA, hence that the municipal court had no jurisdiction to try the trespass charge. Attorneys for the two defendants emphasize the claimed interference with free speech.

I

The lack-of-jurisdiction argument advanced by amici curiae is premised upon the ‘preemption doctrine’ developed under the National Labor Relations Act (NLRA), 29 U.S.C. § 151, et seq. According to that doctrine, when labor union activity is arguably among the ‘concerted activities' extended to labor by the act, federal and state courts generally defer to the exclusive competence of the National Labor Relations Board, the agency delegated by Congress to administer the act. (See generally, Farmer v. Carpenters (1977) 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338, 347–350; San Diego Building Trades Council v. Garmon (1959) 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775; Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1976) 17 Cal.3d 893, 896–898, 132 Cal.Rptr. 443, 553 P.2d 603.) The California Agricultural Labor Relations Act was closely modeled after the federal law. Indeed, one provision of the ALRA, Labor Code section 1148, expressly directs the state Agricultural Labor Relations Board to follow the applicable precedents of the National Labor Relations Act.

Like section 7 of the NLRA, section 1152 of the Labor Code enumerates the rights of organization, collective bargaining and concerted activities possessed by employees. Combining the features of section 8 of the NLRA, Labor Code section 1153 enumerates unfair labor practices on the part of agricultural employers and section 1154 the unfair labor practices of labor organizations. Other provisions of the California Law (§§ 1156–1159) follow the federal model, directing the ALRB to supervise elections in which agricultural employees may select a union to represent them in collective bargaining. (See Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 389–400, 128 Cal.Rptr. 183, 546 P.2d 687.) Sections 1160 et seq. authorize the ALRB to prevent ‘any person’ from engaging in an ‘unfair labor practice’ as defined by the preceding provisions of the act. The ALRB procedure is the exclusive method of redressing unfair labor practices. (Lab.Code, § 1160.9.)

In designating the NLRA precedents as guideposts, the ALRA apparently incorporates into California law the general features of the preemption doctrine. An ongoing problem under the NLRA is whether the preemption doctrine ousts the courts of power to entertain civil or criminal trespass charges against union representatives who conduct activities on employers' property. Amici curiae strongly rely on Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 17 Cal.3d 893, 132 Cal.Rptr. 443, 553 P.2d 603. There the court nullified an injunction against union picketing on the employer's private property. Despite the trespassory nature of the conduct, it was arguably among the concerted activities of labor protected against employer interference; hence it fell initially within the exclusive competence of the NLRB and displaced the jurisdiction of the state courts. (17 Cal.3d at p. 899, 132 Cal.Rptr. 443, 553 P.2d 603.)

We know of three out-of-state decisions which have considered the preemption defense in criminal trespass prosecutions against union pickets. Two courts rejected the defense. (People v. Goduto (1961) 21 Ill.2d 605, 174 N.E.2d 385, cert. den., 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190; People v. Bush (1976) 39 N.Y.2d 529, 384 N.Y.S.2d 733, 349 N.E.2d 832.) A third court accepted it. (State v. Williams (Balt.Crim.Ct.Md.1959) 44 LRRM 2357, 2363.) The California Supreme Court has expressed its disapproval of the former, its approval of the latter. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 17 Cal.3d at p. 906, fn. 8, 132 Cal.Rptr. 443, 553 P.2d 603; Musicians Union, Local No. 6 v. Superior Court (1968) 69 Cal.2d 695, 712, fn. 8, 73 Cal.Rptr. 201, 447 P.2d 313.)

Utilizing Sears as an analogy, amici curiae contend that the ALRA granted defendant union organizers a right of entry onto ‘agricultural property’ and into ‘farm labor camps.’ The analogy is unacceptable. It rests upon an assumed parallelism between the federal and state labor relation laws which the state law specifically rejects. In Labor Code section 1140.4, subdivision (c), the California Law distinctly excludes farm labor contractors—such as De Dios—from the statutory category of agricultural employers.2 The federal law contains no comparable exclusion.

The settled statement on appeal declares that the events occurred at a labor camp housing agricultural workers ‘employed by [De Dios], a licensed labor contractor.’ The briefs on appeal fail to recognize De Dios' exempt status. They do not inquire whether De Dios, excluded by statute from the class of agricultural employers, could commit any of the unfair labor practices forbidden to agricultural employers by section 1153.3

The exclusion of farm labor contractors from ALRA coverage as agricultural employers reflects a deliberate legislative choice. The creation of stable collective bargaining relationships in agriculture is hindered by shifting employment and fluidity of the work force. To class farm labor contractors, along with farmers and farmer associations, as parties to collecting bargaining would augment the difficulties. In the process of creating a collective bargaining relationship—from the initial organizing efforts, into the petition and election stages and ultimately to the contractual culmination—the statute views farmers or associations of farmers as the only employers (see §§ 1156–1159). A farm labor contractor may actually hire, supervise and pay the workers, becoming their actual employer (see, § 1682, subd. (b), fn. 2, ante). The ALRA excludes him from the statutory category of agricultural employers because he is excluded from the unionization and collective bargaining processes.

Section 1153 declares that ‘[i]t shall be an unfair labor practice for an agricultural employer’ to engage in described labor practices. Interference with the organizational rights of agricultural employees and interference with the formation or administration of a labor organization are among the prohibited practices. Excluded by definition from the category of agricultural employers, De Dios—in his role as a farm labor contractor—was definitionally incapable of an unfair labor practice.

Section 1160 authorizes the ALRB to prevent any person from engaging in an unfair labor practice. Sections 1160.2 et seq. authorize the board to investigate charges that any person has engaged in an unfair labor practice, to make appropriate orders and, if necessary, to seek court injunctions. These provisions extend the board's jurisdiction to any person, yet are activated only by charges of an unfair labor practice. By force of sections 1153 and 1140.4, subdivision (c) an unfair labor practice may be committed only by an agricultural employer or one acting in his interest but not by a farm labor contractor.

In the failure of the briefs to consider Labor Code section 1140.4, subdivision (c), we have explored the federal decisions to ascertain whether a third party who is neither an employer nor a labor organization may be arguably subject to the NLRB's jurisdiction.4 Research has disclosed no direct federal authority. An analogy occurs in Hanna Min. Co. v. District 2, M.E.B.A. (1965) 382 U.S. 181, 86 S.Ct. 327, 15 L.Ed.2d 254. There the federal Supreme Court held that the preemption doctrine did not bar the state courts from controlling recognitional picketing aimed at union representation of supervisory employees; supervisory personnel had been excluded from the NLRA's definition of ‘employees;’ hence, the picketing was not a forbidden, unfair labor practice. (382 U.S. at p. 188, 86 S.Ct. 327.)

The Hanna decision is instructional here. It teaches that the identity of the parties designated in the statute's substantive descriptions of rights and duties profoundly influences the boundaries of the administrative board's jurisdiction. The phrase ‘any person’ in section 1160 cannot extend the ALRB's preemptive jurisdiction to an activity which, according to the definition in section 1153, is not an unfair labor practice.

Lack of ALRB authority to control the conduct of De Dios, the farm labor contractor, does not impair the structural integrity of the ALRA. The enumeration of employees' rights in Labor Code section 1152 carries with it a statutory assurance of free communication essential to the realization of these rights. (See Republic Aviation Corp. v. N.L.R.B. (1945) 324 U.S. 793, 801 et seq., 65 S.Ct. 982, 89 L.Ed. 1372; agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d at p. 402, 128 Cal.Rptr. 183, 546 P.2d 687. The statutory assurance extends an area of shelter to union organizers. Of major significance among the precedents developed under the National Labor Relations Act is National Labor Rel. Bd. v. Babcock & Wilcox Co. (1956) 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975. There the employer had refused to permit distribution of union literature by nonemployee union organizers on a company-owned parking lot. The court drew a distinction between the communicative rights of employees and nonemployees, holding that the employer could bar nonemployee union organizers from his property provided that other channels of communication were reasonably available to them. (351 U.S. at p. 112, 76 S.Ct. 679.) ‘The right of self-organization depends in some measure on the ability of employees to learn the advantages of self-organization from others. Consequently, if the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property.’ (351 U.S. at p. 113, 76 S.Ct. at p. 685.)

Later the federal Supreme Court reaffirmed the Babcock & Wilcox rule, declaring ‘. . . the allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees' [self-organization] rights.’ (Central Hardware Co. v. NLRB (1972) 407 U.S. 539, 545, 92 S.Ct. 2238, 2242, 33 L.Ed.2d 122.)

Defendants Medrano and Peterson were uninvited union organizers. Without deciding the matter, we may assume that they possessed rights of access similar to the organizers in Babcock & Wilcox—they could be barred if and only if other channels of communication were available. The ALRA and its supplementary regulations did in fact make other channels available. Defendants' visit to the De Dios' labor camp and their arrest for trespass occurred on September 13, 1975. Effective August 29, 1975, the ALRB had adopted a regulation granting farm labor organizers a qualified right of access to the property of agricultural employers. (Cal.Admin.Code, tit. 8, §§ 20900–20901.) In general, the regulation allows union organizers to enter the property of agricultural employers at designated times before and after working hours and during the lunch period for the purpose of meeting and speaking with employees. The California Supreme Court has sustained the constitutionality of this regulation as well as its propriety as an exercise of the board's rule-making authority. (Agricultural Labor Relations Bd. v. Superior Court, supra, 16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687.)

The ALRB regulation assures union organizers a right to address workers at specified times and places on the agricultural employer's property. It establishes a channel of communication which is reasonably effective and certainly more orderly than uninvited intrusion on the property of a farm labor contractor. Through competent intelligence arrangements, unions and their organizers have enough notice of impending representation elections to make effective use of their access to the employer's premises.5

In Sears, Roebuck, supra, the trespass occurred on the property of a statutory employer, unquestionably subject to the labor agency's jurisdiction. Here the trespass occurred on the property of a nonemployer. The law's exclusion of the farm labor contractor from the category of agricultural employers demonstrates that events on his land are not a significant concern of the ALRA. To paraphrase a leading federal decision, due regard for the presuppositions of the criminal justice system requires us not to find withdrawal of power where ‘the activity regulated was a merely peripheral concern’. (San Diego Building Trades Council v. Garmon, supra, 359 U.S. at p. 243, 79 S.Ct. at p. 779.)

Because board-regulated access on the property of agricultural employers supplied practicable channels of communication, union access to the labor contractor's camp was not necessary to the fulfillment of the inhabitants' section 1152 rights. The organizers' lack of uninvited access to the camp did not impair the effectiveness of the statutory scheme. Denial of uninvited access did not evoke the preemptive jurisdiction of the ALRB.

II

Defendants charge that the trespass prosecution infringed a constitutionally protected channel of communication between themselves and the inhabitants of the farm labor camp. They rest their claim on the First Amendment and on the free speech guaranty of the California Constitution. (Cal.Const., art. I, § 2.) They argue that the issue of ‘labor camp access' was resolved by the California Supreme Court's pronouncement in United Farm Workers of America v. Superior Court (1975) 14 Cal.3d 902, 910, 122 Cal.Rptr. 877, 882, 537 P.2d 1237, 1242: ‘Many courts have recognized a First Amendment right of access which belongs both to labor camp inhabitants and to union organizers and attorneys who seek to visit them. We are persuaded by the reasoning of those decisions, and join in their reading of the First Amendment. [Citations.] . . . A labor housing facility is not, of course, the equivalent of a prison isolation block, impervious to visitation.’

At this point, it is necessary to emphasize two circumstances as possible grounds of distinction: First, the prosecution of defendants Medrano and Peterson did not result from an attempt to exclude invitees of the labor camp tenants; defendants lay no claim to an invitation; rather, they urge a constitutional right of access as uninvited union representatives. Second, the camp was not controlled by an employer possessing ability to surround his employees with a wall of silence; rather it was controlled by a labor contractor who would on working days send his tenants out to separate places of agricultural employment.

The right-of-access decisions under the NLRA (e. g., Central Hardware, Babcock & Wilcox, Republic Aviation, supra), and under the California ALRA (Agricultural Labor Relations Bd. v. Superior Court, supra) demonstrate that the free speech assertions of labor advance or recede with the ebb and flow of the landowners' private property interests. Agricultural Labor Relations Bd. v. Superior Court involved a clash between labor's statutory assertions and the constitutional resistance of employer-landowners. Disclaiming a First Amendment rationale (16 Cal.3d at p. 402, 128 Cal.Rptr. 183, 546 P.2d 687), the court held that the policy objectives of the collective bargaining statute demanded retrenchment of the landowners' power of exclusion. Essentially, the court adopted the Babcock & Wilcox statutory test as the measure of the landowners' constitutional assertions—the landowner, as employer, must allow the union to approach his employees on his property if the circumstances of the employment place the employees beyond the reach of other communicative efforts. (16 Cal.3d at p. 409, 128 Cal.Rptr. 183, 546 P.2d 687.)

Defendants' contention implies that access rights springing from free speech guaranties may push more vigorously against the landowners' constitutional barricades than those growing from the labor law. A rule of accommodation pervades the reconciliation of competing constitutional as well as statutory forces. Thus, the federal Supreme Court has rationalized union picketing within a privately owned shopping center on the theory that the pickets had no other reasonable means to reach their audience. (Hudgens v. NLRB, supra, 424 U.S. at pp. 517–518, 96 S.Ct. 1029; Lloyd Corp. v. Tanner (1972) 407 U.S. 551, 561–567, 92 S.Ct. 2219, 33 L.Ed.2d 131; cf. National Labor Rel. Bd. v. Babcock & Wilcox Co., supra, 351 U.S. at p. 112, 76 S.Ct. 679.) The California Supreme Court too has recognized the significance of alternative channels. (Diamond v. Bland (1970) 3 Cal.3d 653, 661–663, 91 Cal.Rptr. 501, 477 P.2d 733.) In United Farm Workers, supra, the California court's broad constitutional declaration (quoted ante) arose in the course of a decision which involved union access to a labor camp on the employer's property, that is, a physical situation which permitted no alternate channel of communication.6 The California court's later adherence (in Agricultural Labor Relations Bd. v. Superior Court, supra) to the Babcock & Wilcox rationale implies its approval of the accommodation rationale.

Recent access-to-private-property decisions of the federal Supreme Court have tended to support the exclusionary powers of the landowner and to derogate the First Amendment assertions of those seeking entry. (See Hudgens v. NLRB, supra, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196.) Sensitive to this trend, defendants invoke the seemingly more powerful demands of the California constitution's free speech guaranty. They rely upon the state Supreme Court's declaration that the California provision is ‘more definite and inclusive than the First Amendment’. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 472, 532 P.2d 116, 120.)

Here too, we demur. In the flux of labor's thrust and landowner resistance, practical necessity demands complete contiguity. Any gap or overlap in the shifting lines would place conflicts beyond all possible resolution. The landowner's acknowledged constitutional barrier represents a high-water mark against the advance of labor's right of access. In Agricultural Labor Relations Bd. v. Superior Court, supra, the California Supreme Court adopted the Babcock & Wilcox statutory standard as the outpost of the constitutional exclusionary power asserted by the landowner-employer. That standard assures nonemployees communicative access only if other, reasonably effective channels of communication are not available. Thus defendants' invocation of the California free speech guaranty can give them no right of access past the barrier fixed by Babcock & Wilcox and adopted as a constitutional boundary in Agricultural Labor Relations Bd. v. Superior Court. (16 Cal.3d 392, 128 Cal.Rptr. 183, 546 P.2d 687.)

As we have observed, the ALRB regulation assured defendants and other union representatives reasonable access to the employees on the premises of the agricultural employers. Alternative channels of communication with De Dios' tenants were reasonably available to the union organizers. Neither the First Amendment nor the free speech guaranty of the California constitution supplied them a constitutional right of uninvited entry to the De Dios' farm labor camp.

III

Defendants charge several failures of proof. First, they contend, they were not requested to leave the property by ‘the owner, his agent, or the person in lawful possession . . ..’ (See Pen.Code, § 602, subd. (n), fn. 1, ante.) According to the settled statement on appeal, Alphonso De Dios, the farm labor contractor, was the lessee of the labor camp property; on the day in question he had left his son Robert in charge of the camp. Robert De Dios testified that he asked Jan Peterson to leave; when she refused, he called the sheriff's deputies; he saw Medrano arrive at about the same time as the deputies; he again requested a group of people, including Peterson and Medrano, to leave; they did not leave; he then saw Peterson and Medrano being cited by the deputies.

In the appellate review of evidentiary claims, the controlling question is whether substantial evidence supports the jury's findings; the appellate court will assume the existence of every fact the jury could reasonably deduce from the evidence. (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659.) Defendants argue that Robert De Dios was a temporary agent of the possessor but not of the owner; he was a mere custodian or caretaker; he did not himself have the status of ‘person in lawful possession.’

Defendants support this claim by alien utterances culled from civil trespass decisions. These utterances provide no guidance here. In civil actions, the question arises whether the occupant's relation to the land is sufficiently fixed to give him standing to claim damages. (See e.g., Williams v. Goodwin (1974) 41 Cal.App.3d 496, 508–509, 116 Cal.Rptr. 200; Covo v. Lobue (1963) 220 Cal.App.2d 218, 221, 33 Cal.Rptr. 828.) Thus the civil definitions of ‘possessor’ are drawn in order to deny standing to a temporary caretaker or custodian. Here, given a fair view of the statutory purpose, the concept of ‘person in lawful possession’ embraces a temporary custodian. The jury could reasonably view Robert De Dios as the person in lawful possession.

Medrano points to a lack of evidence that any of the peace officers requested him to leave. Deputy Sheriff Wells testified that he requested Jan Peterson to leave the farm labor camp and cited her after she refused; he had a conversation with Medrano, but did not testify that he requested Medrano to leave; he testified that Deputy Sheriff Evans talked with several persons on the scene and that Evans issued a citation to Medrano. Deputy Evans was not called as a witness. In his own defense, Medrano testified that after several of the organizers left the property, he remained to await instructions from Jan Peterson; that Deputy Evans came up to him, asked his name and address and issued a citation. He testified that none of the officers asked him to leave the property.

As Penal Code section 602(n) is drawn, refusal to leave private property is the gist of the offense. Indispensable preconditions of that refusal are dual requests to leave, one from a peace officer, the other from the property possessor. The demand for two separate requests is the apparent product of legislative design. ‘Refusal to leave’ is one of a variety of trespasses described by section 602. The other varieties involve some guilty foreknowledge, such as malicious mischief, disregard of posted warnings or unlawful occupancy. Subdivision (n) envisions an originally innocent entry, followed by an unlawful sojourn after refusal of requests to leave. The requirement of two requests impels the property possessor to summon the authorities; it discourages violent confrontations which might occur in the absence of a peace officer. The duality of requests is thus an essential element of the offense.

The settled statement on appeal includes no evidence from which the jury could reasonably infer that Wells, Evans or any other peace officer requested Medrano to leave. In the absence of substantial evidence of an essential element of the offense, Medrano's conviction will be reversed.

Defendants assign error in the rejection of jury instructions offered to define the terms owner, agent and lawful possessor. Alphonso De Dios was the tenant, not the owner of the farm labor camp; hence, instructions defining owner and agent were properly refused. A third instruction defined possessor as one who ‘resides on such property peaceably or quietly with the permission of his or her employer who holds a possessory interest in that property.’ We have already concluded that such a definition, drawn from civil trespass cases, is inappropriate here. It defines too narrowly the phrase ‘person in lawful possession’ for the purpose of Penal Code section 602(n). The proposed instruction was erroneous and properly rejected by the trial court.

Finally, defendants charge section 602(n) with unconstitutional overbreadth, on the theory that it requires union organizers to secure permission from a peace officer and from the person in control of the premises in order to exercise First Amendment rights. They rely on decisions holding that ‘prior consent’ requirements are void for overbreadth if they unreasonably burden the First Amendment rights of those who seek entry to private residences for communicative purposes. (E. g., Van Nuys Pub. Co. v. City of Thousand Oaks (1971) 5 Cal.3d 817, 824–826, 97 Cal.Rptr. 777, 489 P.2d 809.)

Contrary to defendants' argument, this is not a ‘prior consent’ case. Defendants were tried under a penal statute which proscribes not innocent entry onto private property but rather a refusal to leave after request. We have observed that in the application of trespass laws to uninvited free speech activities on private property, a general rule permits the restriction when alternate means of communication are available. In the present case the jury instructions adequately conveyed the notion that a trespass would not occur if defendants had no reasonable alternative means of communication. Thus, application of the trespass law to defendants was narrowed to a constitutionally permissible focus. The claim of overbreadth fails.

The judgment of conviction of Medrano is reversed; that of Peterson is affirmed.

FOOTNOTES

1.  Penal Code section 602 provides: ‘Every person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor: * * * (n) Refusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by a peace officer and the owner, his agent, or the person in lawful possession thereof.’

2.  Labor Code section 1140.4 provides: ‘As used in this part: . . . (c) The term ‘agricultural employer’ shall be liberally construed to include any person acting directly or indirectly in the interest of an employer in relation to an agricultural employee, any individual grower, corporate grower, cooperative grower, harvesting association, hiring association, land management group, any association of persons or cooperatives engaged in agriculture, and shall include any person who owns or leases or manages land used for agricultural purposes, but shall exclude any person supplying agricultural workers to an employer, any farm labor contractor as defined by Section 1682, and any person functioning in the capacity of a labor contractor. The employer engaging such labor contractor or person shall be deemed the employer for all purposes under this part.' (Italics supplied.)Labor Code section 1682, subdivision (b), part of an enactment requiring the licensing of farm labor contractors, supplies the following definition: “Farm labor contractor' designates any person who, for a fee, employs workers to render personal services in connection with the production of any farm products to, for, or under the direction of a third person, or who recruits, solicits, supplies, or hires workers on behalf of an employer engaged in the growing or producing of farm products, and who, for a fee, provides in connection therewith one or more of the following services: furnishes board, lodging, or transportation for such workers; supervises, times, checks, counts, weighs, or otherwise directs or measures their work; or disburses wage payments to such persons.'

3.  We do not conform to the custom of appellate opinion writers who ignore the shortcomings of counsel. The defense and prosecution briefs evade confrontation with Labor Code section 1140.4, subdivision (c). Attorneys for the ALRB have filed an amici curiae brief which similarly shuns section 1140.4, subdivision (c). General counsel for the ALRB occupies a statutory position. (Lab.Code, § 1149.) We cannot ascribe his disregard of Labor Code section 1140.4 to ignorance or accident. The omission is apparently tactical. The omission falls far short of the support a court expects from a ‘friend of the court.’ We would have preferred a direct and courageous discussion of section 1140.4, subdivision (c) and its role.

4.  Section 2 of the NLRA (29 U.S.C. § 152(2)) defines ‘employer’ to include ‘any person acting as an agent of an employer, directly or indirectly’.The NLRB has held thst a statutory ‘employer’ may be guilty of an unfair labor practice toward employees other than his own. (Austin Co., 101 NLRB (1952) 1257, 1258–1259; see Hudgens v. NLRB (1976) 424 U.S. 507, 510, fn. 3, 96 S.Ct. 1029, 47 L.Ed.2d 196.) No decision has been brought to our attention upholding NLRB jurisdiction over a person other than a labor union, a statutory employer or one acting under the employer's direction.

5.  According to the settled statement on appeal Medrano and Peterson went to the De Dios' labor camp because they heard an election covering Vista Verde Farms employees was to be held the following day. The ALRA directs the ALRB to set a representation election upon due notice to the interested parties and within seven days of the petition filing. (§ 1156.3, subd. (a); see Cal.Admin.Code, tit. 8, §§ 20300, 20325, 20430, 20900(e)(1)(B).) The case at bar represents a disorderly, last-minute approach which need not typify union activity in the face of an impending ALRA election.

6.  In any event, defendants read the United Farm Workers pronouncement too broadly. The court relied on a series of federal decisions which in turn rested on Marsh v. Alabama (1946) 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265, and Food Employees Union v. Logan Valley Plaza (1968) 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603. Both the latter cases advanced the ‘company town’ concept as the basis for limiting the landowners' power of exclusion. A year after the California Supreme Court's decision in United Farm Workers, supra, 14 Cal.3d 902, 122 Cal.Rptr. 877, 537 P.2d 1237 the federal Supreme Court overruled the Logan Valley Plaza decision. (Hudgens v. NLRB, supra, 424 U.S. at pp. 518–521, 96 S.Ct. 1029.) The demise of Logan Valley Plaza has been noted by the California Supreme Court. (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, supra, 17 Cal.3d at p. 907, fn. 9, 132 Cal.Rptr. 443, 553 P.2d 603.)

FRIEDMAN, Associate Justice.

PUGLIA, P. J., and PARAS, J., concur.

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