PEOPLE v. RODRIGUEZ (1981)

Defendant Mark Anthony Rodriguez was charged with assault by means of force likely to produce great bodily injury upon a police officer (Pen.Code, § 245, subd. (b);¹ count one), obstructing a police officer in the performance of his duties (§ 148; count two), remaining present at the place of an unlawful assembly after having been warned to disperse (§ 409; count three), carrying a switchblade knife having a blade over two inches in length (§ 653k; count four), and battery upon a police officer (§§ 242, 243; count five). After a jury convicted him on all counts, Rodriguez was placed on probation for three years on the condition, among others, that he serve eight days in jail with credit for eight days previously served. On appeal Rodriguez contends, inter alia, (1) several of the jury instructions were misleading or incorrect; and (2) the court erred in denying his motion to suppress evidence of the switchblade knife under section 1538.5.

FACTS

On September 9, 1978, defendant was a guest at a party given by Mary Martinez at her residence in Spring Valley. The party, which had been planned months in advance, was in honor of the baptism of the two-year-old son of Laura Silva who resided with Martinez' family. In preparation for the party, Martinez and one of her daughters made arrangements for a live band. Steve Szewczak, who also resided with the Martinez family, arranged to have four kegs of beer at the party. Approximately one week before the party, Martinez went to the sheriff's station in Lemon Grove and inquired about the necessity of a permit for a band at the party. She was referred to the people at noise abatement who informed her no permit was required but the band had to stop playing at 10 p. m.

On the night of the party, the band set up on a stage in the backyard of the house and began playing sometime after 8 p. m. Thirty to forty people were present at the party at this time. At approximately 8:30 p. m., Deputy Sheriffs Beall and Dunham were dispatched to the residence in response to a neighbor's complaint concerning the loud music. They talked with Martinez and Szewczak out on the front lawn. The deputies explained a complaint had been received about the noise and left after being assured the band would be quieted down. Defense witnesses testified the volume of the music was lowered in response to the request. During this first visit to the residence, Beall observed individuals at the party milling about the street, yard, and inside the residence. A majority of the individuals appeared to be minors and many of them were observed to be drinking from plastic cups.

When Beall returned approximately an hour later to check on the progress of the party, the band music was loud enough that he could hear it two blocks from the residence. After radioing Dunham to meet him, Beall asked two individuals he saw leaving the residence for their identification as they were entering a car because he observed one of them, who appeared to be a minor, carrying a white plastic cup. Since the driver's license of the individual carrying the cup indicated he was 18 years old, Beall examined the empty cup and found it smelled like beer. Beall asked whether alcoholic beverages were being served at the residence and was informed they were.

Beall and Dunham then approached the open door of the residence. Alfredo Guerra, a guest at the party, told the officers they could not be on the property without a search warrant. He then informed them the music would continue and slammed and locked the door; Beall contacted his supervising officer, Sergeant Anderson, and requested other patrol units. During this period of time Beall and Dunham received a complaint about the loud music from Charles Housmans, who lived nearby. Housmans told the officers his request to have the music turned down had been refused and if they didn't shut down the noise, he would.

Another noise complaint was relayed to the officers after Sergeant Anderson arrived at approximately 9:50 p. m.; Anderson requested the sheriff's helicopter hover nearby in case it was needed. Then, together with Beall and Dunham, Anderson approached the residence and advised Martinez complaints had been received about the noise. He also informed her it was illegal for her to serve alcoholic beverages to minors. Martinez was told to close the party down within a few minutes or the officers would do it for her.

The officers waited in their patrol cars for approximately 10 to 15 minutes. When they observed more people entering the party than leaving, Anderson instructed the officers in the helicopter to announce an unlawful assembly and order the people at the party to disperse. There was conflicting testimony as to whether the band had stopped playing before the first unlawful assembly announcement was made. Rebecca Dominguez, manager of the band, testified the helicopter appeared just after the music stopped and the band began packing up.

Three unlawful assembly announcements were made from the helicopter. After the band members packed up their instruments and were escorted from the area, Anderson, five deputies and two highway patrolmen entered the backyard because the guests at the party were not leaving as ordered. Anderson and the deputies made a line-type formation, holding their batons in front of them diagonal to their bodies, and instructed people in the backyard the party was being closed down and that they should leave by going through the residence and out the front door. As the officers moved people towards the patio area, they observed the four kegs of beer and numerous people who had not been spotted by the helicopter because they were under the patio roof. The crowd, which was very hostile, was advised no arrests would be made if they left peaceably.

Although many people left, others questioned the right of the officers to be on the premises without a search warrant and yelled profanity at the officers. As people moved inside the house, they began throwing beer and paper cups at the officers from the kitchen window and the patio door. Anderson testified he was hit on the head by a bottle and Deputy Metzger testified he saw defendant throw a bottle which hit Deputy Kilpatrick on the leg. Defendant denied throwing anything at the deputies.

Kilpatrick testified that, as he stepped into the kitchen through the patio door, defendant picked up an electric knife, without the power cord, from the kitchen counter and came at him with the electric knife in a threatening manner, coming within a foot of him. Kilpatrick immediately backed out the door which was then locked from inside by Alfredo Guerra. Kilpatrick then broke the patio door with his baton and unlocked it, but Sergeant Anderson directed the officers to enter the front of the house instead. Defendant denied picking up the knife.

Approximately eight to ten deputies, with their batons out, entered the front of the house and ordered people to leave. Although people were told they would not be arrested if they left the premises, only a few people originally left. Since the crowd that remained was hostile, the deputies began physically removing people from the premises. Scuffles occurred as the deputies tried to grab people to take them outside and members of the crowd grabbed the same people in an attempt to pull them back. Kilpatrick kicked down one of the bedroom doors after several people locked themselves inside the room. Metzger entered another bedroom, which had been converted from a garage, and requested everyone in the room to leave. Defendant was arrested by Metzger as he was exiting this room after Metzger identified defendant as the individual he earlier had seen throw the bottle from the kitchen window. A switchblade knife was found on defendant when he was patted down.

DISCUSSION

I

Rodriguez contends the trial court misinstructed, failed to instruct the jury fully on the unlawful act requirement of section 407.

Section 407 provides:

“Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.”

The First Amendment guarantee of the right to assemble peaceably led the California Supreme Court, in In re Brown, 9 Cal.3d 612, 108 Cal.Rptr. 465, 510 P.2d 1017, to narrowly construe the portion of section 407 which prohibits assemblies to do a “lawful act” in a violent, boisterous, or tumultuous manner. In Brown, the Supreme Court, citing with approval the early case of People v. Kerrick, 86 Cal.App. 542, 551-552, 261 P. 756, held section 407's proscription on assemblies to do a “lawful act” is “limited to assemblies which are violent or which pose a clear and present danger of imminent violence.” (In re Brown, supra, 9 Cal.3d 612, 623, 108 Cal.Rptr. 465, 510 P.2d 1017.) Where, as here, the constitutional rights of assembly are involved, and by reason of the requisite element of a section 409 crime, the “unlawful act” provision of section 407 must also be given a similarly restrictive interpretation.

At common law an unlawful assembly was defined as “a meeting of three or more persons with a common plan in mind which, if carried out, [would] result in a riot. In other words, it [was] such a meeting with intent to (a) commit a crime by open force, or (b) execute a common design, lawful or unlawful, in an unauthorized manner likely to cause courageous persons to apprehend a breach of the peace.” (Perkins on Criminal Law (2d ed. 1969) pp. 403-404; fns. omitted; italics added.)

“The legal principle … to be extracted from the cases, at common law, seems to be that, in order to constitute the offense of unlawful assembly, it must appear that there was a common intent of the persons assembled to attain a purpose, whether lawful or unlawful, by the commission of such acts of intimidation and disorder which are likely to produce danger to the tranquility and peace of the neighborhood, and have a natural tendency to inspire rational, firm, and courageous persons in the neighborhood with well-grounded fear of serious breaches of the public peace.” (State v. Butter-worth, 104 N.J.Law 579, 142 A. 57, 60; see State v. Simpson, Fla., 347 So.2d 414, 415; Ex parte Jacobson, 55 Tex.Cr.R. 237, 115 S.W. 1193, 1195; 54 Am.Jur.2d, Mobs and Riots, §§ 7-9, pp. 509-511.)

One commentator examining the California statutes noted:

“The common law misdemeanors of riot, rout, and unlawful assembly as defined by Blackstone represent three distinct phases of a series of acts which, if carried out in its entirety, renders the participants guilty of all three crimes. Unlawful assembly is the gathering together of three or more persons with the mutual intention of committing an unlawful act. Rout is made out as soon as a definite step if taken toward the commission of the act. When the unlawful act is consummated in a terroristic manner the crime of riot is added to the foregoing couple. Since Blackstone's day, while riot and rout have retained their original significance, unlawful assembly has been widened in one respect to include gatherings lawful in purpose but violent and tumultuous in behavior. In another aspect, however, it has been restricted in that any gathering, even though unlawful in purpose, must tend in terrorem populi in order to constitute the misdemeanor ․ With the requisite participants reduced in number from three to two, the classic definitions of riot and rout and the modern definition of unlawful assembly have been incorporated into the penal statutes of California.” (Comment, Limitations on the Right of Assembly (1934-1935) 23 Cal.L.Rev. 180, 183; italics added; fns. omitted.)

These common law origins of California's statutory offense of unlawful assembly compel the conclusion that not every assembly where two or more persons assemble with the specific intent of committing a public offense constitutes an unlawful assembly—the unlawful act must tend in terrorem populi. Further support for this conclusion is found in the decisions of the courts of other states where similar provisions have been interpreted. (See, e. g., State v. Simpson, supra, 347 So.2d 414, 415; Ex parte Jacobson, supra, 115 S.W. 1193, 1195.) In State v. Simpson, supra, the Florida Supreme Court narrowly construed the unlawful act provision of the Florida unlawful assembly statute to avoid the challenge that the statute unconstitutionally abridged the defendant's First Amendment right of freedom of assembly. The Simpson court concluded the term unlawful assembly as used in the statute should be defined in accordance with the common law definition of unlawful assembly and held:

“The statutory provision for unlawful assembly is obviously designed to make unlawful an assembly in which those assembled have the intent to do an unlawful act which threatens a breach of the peace. The basic common law elements apply. Accordingly, we construe Section 870.02 to prohibit (1) an assembly of three or more persons who, (2) having a common unlawful purpose, (3) assemble in such a manner as to give rational, firm, and courageous persons in the neighborhood of the assembly a well-grounded fear of a breach of the peace.” (347 So.2d, supra, at p. 415; fn. omitted; italics added.)

II

California has no “common law” crimes, yet the foregoing g common law definitions, limitations and interpretation of the scope and nature of the crime of unlawful assembly are applicable and aid in interpretation of section 407 for that section is but a “reaffirmation of the common law” crime of unlawful assembly. (People v. Kerrick, supra, 86 Cal.App. 542, 551, 261 P. 756.) Such statute carries with it the common law meaning “and must be interpreted in the light thereof ․” (People v. Smith, 117 Cal.App.2d 698, 700, 256 P.2d 586; Lorenson v. Superior Court, 35 Cal.2d 49, 59-60, 216 P.2d 869; see People v. Sklar, 111 Cal.App. (Supp.) 776, 778-779, 292 P. 1068.)

There is general language in In re Brown, 9 Cal.3d 612, 624, 108 Cal.Rptr. 465, 510 P.2d 1017, to the effect “[a]n unlawful act within the meaning of section 407, as the Attorney General concedes, means criminal conduct prohibited by state law.” Yet the Supreme Court in addressing the specific criminal charge of section 415 held that instructions were given erroneously which did not define the term of this section and did not limit the proscription of this section to violent conduct or provocation of violent conduct. (Id., at p. 621, 108 Cal.Rptr. 465, 510 P.2d 1017.) Said the Supreme Court: “There is no evidence that petitioners themselves engaged in violence or that their conduct presented a clear and present danger of violence.” (Id., at p. 625, 108 Cal.Rptr. 465, 510 P.2d 1017.) If such restriction and limitations are not placed on such “unlawful act” element of the crime, then the First Amendment guarantee of the right of peaceful assembly is jeopardized. Said the Supreme Court in In re Brown, supra, 9 Cal.3d at p. 623, 108 Cal.Rptr. 465, 510 P.2d 1017:

“[I]n light of the First Amendment guarantee of freedom of speech, the provision in section 415 prohibiting disturbing the peace by tumultuous and offensive conduct must be limited to disruption of public order by acts that are themselves violent or that tend to incite others to violence. 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.’ (See Brandenburg v. Ohio (1969) 395 U.S. 444, 449, fn. 4, 89 S.Ct. 1827, 1830, 23 L.Ed.2d 430; Cox v. Louisiana, supra, 379 U.S. 536, 544-552, 95 S.Ct. 453, 458, …].)”

The foregoing authorities are both binding and persuasive and compel this conclusion. The unlawful act requirement of section 407 is restricted by its common law meaning, binding judicial interpretation and constitutional barriers to the end that not every gathering, even though met for an unlawful purpose, may be declared an unlawful assembly. The sine qua non, the unlawful act required “must be limited to disruption of public order by acts that are themselves violent or tend to incite others to violence.” (In re Brown, supra, p. 623, 108 Cal.Rptr. 465, 510 P.2d 1017.)

The jury was instructed that before they could find Rodriguez guilty of a violation of section 409, they had to find there was probable cause to believe two or more persons assembled with the specific intent of either furnishing alcoholic beverages to a person under the age of 21 (Bus. & Prof. Code, § 25658, subd. (a)) or maliciously and willfully disturbing another person by loud or unreasonable noise (Pen.Code, § 415, subd. (2)).

In view of the foregoing legal principles applicable to the unlawful act element of section 409, the trial court erred in instructing as to Business and Professions Code section 25658, subdivision (a). Such unlawful act is not of such nature or specie as would lead those in the neighborhood of the assembly to justifiably and reasonably fear a breach of the peace or that would disrupt the public order by acts that are themselves violent or tend to incite others to violence. No instruction should have been given as to this unlawful act.²

III

Next, the instructions given as to a section 415, subdivision (2), as a second, alternative “unlawful act” element of section 409 were inaccurate and incomplete in light of the requirements of In re Brown, supra, and People v. Kerrick, supra. In defining section 415, the court charged:

“The term loud and unreasonable noise does not mean all the loud shouting or cheering such as that in athletic events or political rallies nor does it include all shouting especially if it disturbs others and is intended to do so. But the term does—what the term loud shouting or cheering a present danger given rise to immediate violence or such loud shouting as cheering as not intended to mean of communication to inform or persuade but is used as a guise to disrupt lawful endeavors.” (Sic.)

This instruction, as given is so lacking in clarity as to preclude a reasonable juror's comprehension of the charge attempted to be made. But this instruction—or the void left by it—does not pass constitutional muster for this further reason. The offense here was unlawful assembly and loud and unreasonable noise (§ 415, subd. (2)) charged as an “unlawful act” element. The unlawful act essential to the unlawful assembly charge—as documented at length above—must be “limited to disruption of public order by acts that are themselves violent or that tend to incite others to violence.” (In re Brown, supra, p. 623, 108 Cal.Rptr. 465, 510 P.2d 1017.) One intuits that the trial court sought to define section 415, subdivision (2), as a separate distinct offense—not as an essential element of the section 409 crime. (See In re Brown, supra, p. 621, 108 Cal.Rptr. 465, 510 P.2d 1017. If this is its purpose then the instruction is totally deficient in its failure to define the nature and extent of “loud and unreasonable noise” as an essential component of an unlawful assembly charge. The instruction—if we overlook its uncertainty—would authorize a finding of guilt of the crime of unlawful assembly upon proof of loud and unreasonable noise per se. Such is not the law. (In re Brown, supra, p. 621, 108 Cal.Rptr. 465, 510 P.2d 1017.) Such instruction was not adequate to define a simple section 415, subdivision (2), crime in light of constitutional restraints. And of greater significance here, the instruction failed to define and limit section 415, subdivision (2), as the “unlawful act” element of a section 409 crime. The provision of section 415, in such context, must be limited to disruptions of the public order by acts that are themselves violent or that tend to incite others to violence. (Cf. In re Brown, supra, p. 623, 108 Cal.Rptr. 465, 510 P.2d 1017.)

IV

The trial court erroneously instructed the jury as to the prosecution's burden of proof on the section 409 count. In relation to the section 409 offense, the trial court instructed the jury, in part, as follows:

“Before finding the defendant guilty of failure to disperse and [a] violation of Penal Code 409, you must find there was probable cause to believe that two or more persons assembled with a specific intent to doing [sic] unlawful acts of furnishing alcoholic minors [sic] or in the alternative a maliciously or [sic] willfully disturbing another person by loud or unreasonable noise.” (Italics added.)

An accused is protected, by the due process clause of the Fourteenth Amendment, against conviction except upon proof beyond a reasonable doubt. (In re Winship, 397 U.S. 358, 361-364, 90 S.Ct. 1068, 1070, 25 L.Ed.2d 368; People v. Vann, 12 Cal.3d 220, 227-228.) Accordingly, any jury instruction which has the effect of reversing or lightening the prosecution's burden of proof clearly infringes a defendant's due process rights. (People v. Serrato, 9 Cal.3d 753, 767, 109 Cal.Rptr. 65, 512 P.2d 289.) An error of this nature compels reversal, even though the trial court has given other instructions on the burden of proof which may be correct (Ibid.; see People v. Hardy, 33 Cal.2d 52, 66, 198 P.2d 865), unless the reviewing court finds the error “harmless beyond a reasonable doubt.” (Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)

Although the trial court later generally and correctly instructed the jury on the presumption of innocence and the burden of proof according to CALJIC 2.90 (1979 rev.), the clearly erroneous instruction could have been interpreted by the jury as lightening the prosecution's burden of proof by allowing them to convict Rodriguez solely on a finding of probable cause. It is fundamental that before convicting Rodriguez of a violation of section 409, the jury must be satisfied beyond a reasonable doubt as to each element of the offense—including that element of the officers' then probable cause to believe an unlawful assembly was in fact taking place as defined in section 407. Since it is impossible for us to determine whether the erroneous instruction on section 409 may have led the jury to convict defendant on proof less than beyond a reasonable doubt, we cannot find the effect of the instruction “harmless beyond a reasonable doubt.”

V

One further instructional error must be examined. The trial court's instructions on intent, as they related to the section 409 offense, were ambiguous, therefore may have misled the jury. In the first place, the trial court instructed the jury that “all” the offenses Rodriguez was charged with were general intent offenses and did give correct instructions on general criminal intent. Then the jury was told that they must find there was probable cause to believe two or more persons had assembled with the “specific intent ” of doing certain specified acts before they could find Rodriguez guilty of violating section 409. No further instructions on specific intent were given.

Remaining present at the place of an unlawful assembly after a lawful warning to disperse, in violation of section 409, is a general intent crime. However, before an officer empowered by section 726³ to give a command to disperse can “lawfully” demand dispersal, based on the unlawful act provision of section 407, the officer must have probable cause to believe two or more persons assembled with the specific intent of committing an unlawful act as that phrase is defined in this opinion. (Cf., Chambers v. Municipal Court, 65 Cal.App.3d 904, 911, 135 Cal.Rptr. 695.) Since “‘[t]he intent with which [[[the] persons assemble’ … is ‘the very essence of the offense’ of unlawful assembly” (Lair v. State, Okl. App., 316 P.2d 225, 235; see 91 C.J.S., Unlawful Assembly, § 2b, p. 496; 54 Am.Jur.2d, Mobs and Riots, § 8, pp. 509-510), the failure to fully and completely instruct the jury on specific intent as it related to the lawful warning to disperse element of section 409 was error.

VI

If we turn from the instructional errors requiring reversal, we find evidentiary deficiencies such as to compel the conclusion that the trial court was not authorized to give any section 415 instruction. If we accept the facts, as we must, in the light most favorable to the verdict, what emerges is a loud band—no more, no less—as the basis of a section 415 instruction. There is no evidence whatsoever of a justifiable and reasonable apprehension that the assembly or the bank “posed a threat of violence.” As stated in People v. Kerrick, supra, at page 552, 261 P. 756;

“The statute was intended to prevent ‘any tumultuous disturbance of the public peace by’ two or more persons ‘having no avowed, ostensible, legal or constitutional object, assembled under such circumstances, and deporting themselves as to produce danger to the public peace and tranquillity, and which excites terror, alarm and consternation in the neighborhood.”’

Here there is no substantial evidence that defendant or any other parties present at the baptismal party themselves engaged in violence or their conduct presented a clear and present danger of violence before the police entry upon the property.⁴ Therefore it was error to give any instruction on section 415. (See In re Brown, supra, p. 625, 108 Cal.Rptr. 465, 510 P.2d 1054.)

VII

The instructional errors detailed above affect not only the conviction on the section 409 count, but the convictions on all other counts, with the exception of the charge of possession of a switchblade knife (count four). The charges against Rodriguez of obstructing a police officer in the performance of his duties (§ 148), battery upon a police officer (§§ 242, 243), and assault by means of force likely to produce great bodily injury upon a police officer (§ 245, subd. (b)) all stemmed from actions taken in response to the deputies' attempts to disperse the people at the party. An essential element of each of these offenses is that the officer must be engaged in the performance of his duties. (See People v. White, 101 Cal.App.3d 161, 166, 167, 161 Cal.Rptr. 541.) If the command to disperse was not lawfully given, then the officers were not engaged in the performance of their duties at the time they entered Martinez' backyard. The erroneous, misleading instruction given as to this jurisdictional requirement of an illegal assembly require the convictions on each of these counts also be reversed.

VIII

Defendant was convicted on count four of possession of a switchblade knife. He contends the conviction on this count must be reversed because his motion to suppress evidence of the switchblade knife, under section 1538.5, should have been granted.

The evidence as to the lawfulness of the officers' entry into the backyard presented at the hearing on the section 1538.5 motion was similar to that presented at trial.

In view of our determination that the conduct proscribed by Business and Professions Code section 25658, subdivision (a), does not fall within the unlawful act provision of section 407 and the lack of substantial evidence to support a finding that the officers could have had probable cause to believe two or more persons at the party had assembled together with the specific intent of committing acts that could give rise to an unlawful assembly that would fall within the prohibitions of section 415, as restrictively interpreted in In re Brown, supra, 9 Cal.3d 612, 621, 108 Cal.Rptr. 465, 510 P.2d 1054, it is apparent Rodriguez' 1538.5 motion should have been granted. The warrantless seizure of the switchblade was a direct result—the poisonous fruit—of the officers' unlawful entry into the yard and house. Accordingly, the conviction on this count must also fall.

The judgment is reversed as to all counts and the proceedings ordered dismissed.

FOOTNOTES

1.  All references are to the Penal Code unless otherwise specified.

2.  To illustrate the incongruous results which would occur if the unlawful act provision were interpreted to prohibit any criminal conduct prohibited by state law, one need only look to any of the numerous statutory provisions making criminal certain conduct which would not lead to a well-founded fear of a breach of the peace. For example, it is a misdemeanor for any person “to engage in the practice of, or attempt to practice, barbering without a certificate of registration as a registered barber ․” (Bus. & Prof.Code, §§ 6523, 6600.) It requires an irrational stretch of the imagination to envision how it could be considered a “crime against the public peace” for two or more persons to assemble together with the specific intent of practicing barbering without the required certificate.

3.  Section 726 provides: “Where any number of persons, whether armed or not, are unlawfully or riotously assembled, the sheriff of the county and his deputies, the officials governing the town or city, or the judges of the justice courts and constables thereof, or any of them, must go among the persons assembled, or as near to them as possible, and command them, in the name of the people of the State, immediately to disperse.

4.  The violence and threat of public disorder appear in this record only after and in direct response to the mass entry by the deputy sheriffs upon the premise with helicopter hovering above, bull horns blaring, batons at the ready. The source of the original complaint of noise—the band—was gone. The band had stopped playing, had departed or was in the process of departing before the police action.

STANIFORTH, Acting Presiding Justice.

BUTLER (Assigned by the Chairperson of the Judicial Council), J., concurs. WIENER, J., concurs in the result. Hearing denied; RICHARDSON, J., dissenting.