IN RE: Colin Scott BERRY (1967)

For Opinion on Hearing, see 65 Cal.Rptr. 273, 436 P.2d 273.

OPINION ON DENIAL OF REHEARING

A petition for rehearing has been filed by real party in interest, People of the State of California, suggesting that our opinion runs counter to Adderley v. State of Florida (1966) 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149, and In re Bacon (1966) 240 Cal.App.2d 34, 49 Cal.Rptr. 322. The petition for rehearing cites both these decisions as controlling precedents for the application of criminal penalties to the conduct involved here. To the contrary, these decisions dealt with conduct of a fundamentally different sort.

Our opinion in this case carefully pointed out that the applicants for habeas corpus were engaged in peaceful picketing on a public sidewalk; that there were no claims of mass or forcible picketing or of invasions or obstructions of property. In contrast, Adderley v. State of Florida upheld nondiscriminatory application of the state's criminal trespass law to demonstrators who refused to leave the grounds of a county jail. Similarly, In re Bacon sustained a criminal trespass statute in its application to a mass ‘sit-in’ inside a building at the University of California. The distinction between the criminal trespass cases and this is obtrusive and fundamental. (See especially Cox v. State of Louisiana (1965) 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Cox v. State of Louisiana (1965) 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 935—937, 47 Cal.Rptr. 670.)

The petition for rehearing is denied.