IN RE: Joye LUNDGREN (1987)

Convicted of misdemeanor trespass (Pen.Code, § 602, subd. (n)) ¹ in a court trial, petitioner Joye Lundgren appealed her conviction to the superior court, appellate department, which affirmed without opinion.   Lundgren received three years probation.   The California Supreme Court granted her petition for habeas corpus and ordered it returnable before this court, by order to show cause why Penal Code section 602, subdivision (n) prohibited petitioner's conduct, “in light of undisputed fact that the public is allowed access to the portion of the private property giving rise to her conviction.”

FACTUAL AND PROCEDURAL BACKGROUND

The record shows Lundgren participated in a demonstration against nuclear arms manufacture conducted at the Kearny Mesa plant of Convair, a division of General Dynamics.   The Kearny Mesa plant makes Cruise missiles.   A group of Roman Catholics including Lundgren decided to demonstrate against the nuclear arms race on December 28, 1983, because that day is the Feast of the Holy Innocents, a holy day in the Catholic liturgy commemorating the slaughter of infant children by King Herod, which event the protestors wished to analogize to the human suffering occasioned by the expenditures on the arms race as well as the slaughter of innocents risked by the cold war.   Accordingly, a group of about 17 persons, including a Roman Catholic priest, gathered on the sidewalk adjacent to the unsecured parking lot of the Convair plant and prayed;  the priest blessed some small Christmas tree ornaments that said “Peace,” and Lundgren was standing on a ladder hanging these ornaments on a nearby pine tree when private security guard Clarence Miller ordered her to leave.   She remained where she was, either because she did not hear him or did not wish to leave (the testimony conflicts) and he made a citizen's arrest of her resulting in her being handcuffed by the city police, transported, and booked for trespass.   Two other demonstrators in the vicinity of the tree were arrested, charged and pleaded no contest.   They do not appeal.

The arrest occurred near the intersection of Kearny Villa Road, a public street, and Convair Drive, a private road through the plant, at the outer periphery of the plant site.   Kearny Villa Road runs north and south, bordering Convair's property on the west, while Convair Drive runs east and west parallel to the northern boundary of the plant.   The pine tree where Lundgren was arrested is on Convair's property, a narrow strip of land approximately 12 to 14 feet wide lying between Convair Drive and the northern property line;  a few feet to the west of the tree lies the public sidewalk on Kearny Villa Road, where most of the demonstrators had been standing.   Several feet further east on that same strip of land is a San Diego Transit bus stop.   The bus stop was placed at that location primarily for the convenience of Convair employees and is located on Convair property pursuant to a lease arrangement between Convair and the transit company.   Convair can cancel the lease at any time.   There is no indication on the bench at the bus stop or the bus stop itself that it is located on private property.   Although Convair Road is also located on Convair's private property, there is nothing to distinguish that street from other public streets such as Kearny Villa Road.

Convair's main plant is a controlled access security facility.   The vicinity of the arrest, however, is unsecured, consisting of the described strip of land and a large parking lot on Convair property, unfenced, and the bus stop.   Public transit buses run along Convair Drive.   The only sign in the vicinity marking the area as private is located on the south side of Convair Drive about 100 feet from the point of arrest, reciting the statutory language of Civil Code section 1008 designed not to prevent entry but to avoid maturation of any prescriptive easements in favor of users.²

Lundgren argues (1) there is insufficient evidence to sustain the trespass conviction, given the permitted public access to the area, and (2) Convair is so intimately involved with the Federal government that its denial of free speech rights constitutes state action in violation of the First and Fourteenth Amendments.   Because we conclude her first argument has merit, we do not address her broader second contention.

DISCUSSION

I.

Preliminarily, we comment on the procedural posture of this case.   Following Lundgren's misdemeanor conviction, she sought review in the appellate department of the superior court which affirmed without opinion and denied her request for certification to this court.   Lundgren then sought habeas corpus review in this court which was denied with the accompanying statement:  “There is no showing the appellate department abused its discretion in denying certification․”  Lundgren received somewhat better news from the Supreme Court, which granted her new petition for writ of habeas corpus, issuing an order to show cause returnable before this court.   The language of the order (ante, p. 111) suggests the Supreme Court was concerned that there was insufficient evidence to support Lundgren's conviction.

The role of the court of appeal in matters arising in the municipal court is quite different from its more usual function of reviewing cases which arise in the superior court.   Appeal to the court of appeal in superior court matters is a litigant's right.  (Code Civ.Proc., § 904.1.)   Court of appeal review following decisions of the appellate department, however, is narrowly circumscribed.   In theory, such review should be available wherever it is “necessary to secure uniformity of decision or to settle important questions of law.”  (Code Civ.Proc., § 911, Cal. Rules of Ct., rule 62(a).) ³  In practice, however, one of two distinct procedures must be followed.   The appellate department may agree to certify the case to the court of appeal because it believes a conflict among superior courts exists or that an important legal question is presented.  (See rule 63(a) and (e).)   If the appellate department refuses to certify the case, the court of appeal may nonetheless order transfer of the case for purposes of a hearing if, after reviewing the appellate department opinion, it concludes that one of the two predicate criteria are met.  (Rule 62(a).)   The only problem with this latter avenue is that the rules do not require a written opinion by the appellate department.  (Rule 106.) ⁴  Thus, if as occurred in this case, the appellate department declines to certify a decision and also declines to write an opinion, the rules appear to provide no means by which the losing party can seek to have the court of appeal exercise its discretion to hear the case.

Faced with this situation, Lundgren sought to circumvent the procedural roadblock by filing a petition for writ of habeas corpus, as is suggested by the Supreme Court's decision in In re Wallace (1970) 3 Cal.3d 289, 90 Cal.Rptr. 176, 475 P.2d 208.  Wallace, like the present case, involved a challenge to the sufficiency of the evidence to support a defendant's conviction for misdemeanor trespass.   The court held that “a petition for writ of habeas corpus will be entertained if certification is denied [citation] or if certification is granted but the Court of Appeal refuses to transfer the case [citation].”  (Id. at p. 292, 90 Cal.Rptr. 176, 475 P.2d 208.)

We find application of the Wallace holding problematic.   In our view it cannot mean that a defendant convicted in the municipal court is always entitled to court of appeal habeas corpus review of a challenge to the sufficiency of the evidence in support of the conviction.   If court of appeal review of municipal court judgments is not a matter of right—in the same way as Supreme Court grants of review are discretionary as to superior court judgments—the focus in this type of proceeding must be on whether the case presents adequate grounds for transfer to this court.   Our original order denying Lundgren's petition expressed our conclusion that transfer was inappropriate in this case.   That conclusion was necessarily based on our determination that the result reached by the appellate department—while perhaps erroneous—neither created a conflict in the decisional precedent nor raised an important question of law.⁵  In fact, we think it would be highly unusual for a sufficiency-of-the-evidence argument to raise an important question of law.

 Apparently, the Supreme Court disagreed.   We say “apparently” because we wonder about the extent to which the procedural issues we have discussed here figured into the Supreme Court's decision to grant Lundgren's petition.   Nonetheless, it is not our function to dispute an implicit judgment call made by the Supreme Court.   Despite some contentious language to the contrary in Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939, 152 Cal.Rptr. 870, the well-established rule consistently applied is that the Supreme Court's issuance of an order to show cause or direction to issue an alternative writ conclusively determines the procedural appropriateness of extraordinary writ relief.  (E.g., City of Oakland v. Superior Court (1983) 150 Cal.App.3d 267, 272, 197 Cal.Rptr. 529;  Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049, 189 Cal.Rptr. 138;  O'Connor v. Superior Court (1979) 90 Cal.App.3d 107, 110, 153 Cal.Rptr. 306;  Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 279, 147 Cal.Rptr. 422;  see also Randone v. Appellate Department (1971) 5 Cal.3d 536, 543, 96 Cal.Rptr. 709, 488 P.2d 13.)   Our procedural concerns thus expressed, we proceed to examine the merits of Lundgren's petition.

II.

 Section 602(n), the statute under which Lundgren was convicted, defines one type of misdemeanor trespass as “[r]efusing 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․”  Lundgren does not dispute that she was on property belonging to another nor does she deny there was substantial evidence to support a conclusion that she was asked to leave by security guard Miller.   Her sole factual contention is that the statute cannot apply to her because the undisputed facts demonstrate she was on property “open to the general public.” ⁶

Subdivision (n) was added to section 602 in 1970 (S.B. 551, Stats. 1970, ch. 1607) to eliminate the effect of People v. Brown (1965) 236 Cal.App.2d Supp. 915, 47 Cal.Rptr. 662, which precluded a criminal conviction where the alleged trespasser had lawfully entered on private property.  (See Review of Selected 1970 California Legislation, (1971) 2 Pacific L.J., 275, 371–372.)   Under the amended provision, even where the entry was lawful, a trespass was committed when the individual failed or refused to leave the property after being requested to do so by a peace officer or the owner's agent.   Even under the amendment, however, a person could not be guilty of committing a trespass unless it occurred on land which was “not open to the general public.”

The Legislature's determination to exclude some private land from the scope of the statute is understandable.   To include land generally open to the public within the purview of the statute would have permitted property owners to arbitrarily choose which persons could be excluded from land otherwise open to the public.   To impose criminal liability solely on an owner's subjective likes or dislikes not only presents a serious question of due process but difficult, if not impossible, problems of law enforcement.   Faced with a statute which would be of questionable constitutional validity based on nothing more than the visceral responses of a property owner, the Legislature decided to exclude property open to the general public from section 602(n).

The property at issue in this case consists of a 12– to 14–foot narrow strip of land sandwiched between two parking lots adjacent to what appear to be two public streets.   Nothing differentiates Convair Road from any other public street.   There is nothing on the strip of land itself stating a person is a trespasser when he or she stands under the tree waiting for the bus.   One does not have to be a Convair employee or obtain Convair's consent to wait at the bus stop.   There is nothing to suggest that this strip of land is part of a secured facility.   Although there are signs to that effect at other locations, there was nothing here which would hint the land was not open to the general public.

The People argue that the concept of property “open to the general public” is circumscribed by a reasonableness limitation such that a property owner who opens his property to the general public for use as a pedestrian walkway does not necessarily waive any objection to its use as a motorcycle race course.   In the context of this case, they suggest that opening property for use by pedestrians and transit patrons does not include the right to stage a protest on the property or the right to hang ornaments on the nearby pine tree.

 It would, of course, be possible to adopt a very literal interpretation of the statute to the effect that where property is open to the public for any purpose, the statute by its terms is simply inapplicable.   We have considered and rejected this absolutist approach, preferring instead the People's suggested reasonableness limitation.⁷  In our view, persons using property to which the public is allowed access may nonetheless be guilty of trespassing if they use the property in a manner not reasonably related to the purpose for which the owner holds it open to the public.   In this sense, property may be “open to the public” for certain purposes but not for others.   The operative concept here, however, is the purpose for which the property has been opened to the public.   Property owners are not free to define their purposes in such a way as to arbitrarily discriminate against members of the public because those persons happen to be manifesting some disagreement with the property owner.

Convair's pine tree and the property in the immediate vicinity was concededly open to the general public for some purposes.   Had persons waiting for the bus wished to shade themselves from the sun by standing or sitting under the subject pine tree, they could have done so without fear of committing a criminal trespass.   Persons carrying on a conversation in the shade of the same tree would not be trespassing, and this is true irrespective of whether the subject of their conversation was the weather or Convair employment practices or the risk of nuclear war.

 We recognize that the issue is a close one, and a slight change in the surrounding circumstances might well dictate a different result.   But mindful of our obligation to afford a defendant the benefit of every reasonable doubt, whether it arises out of a question of fact or the construction of language used in a statute (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617), we believe Lundgren's use of the portion of Convair's property to which the public was allowed access was reasonable.   The record is devoid of any suggestion that Lundgren's presence constituted a more intrusive use of the property than that of the numerous other persons who regularly stood at or walked across that same location while conversing or awaiting a bus.   Admittedly, the fact that Lundgren was standing on a ladder hanging Christmas tree ornaments complicates our discussion because it conveniently distinguishes the nature of her conduct from that of the persons whose use of the property Convair officially sanctioned.   Nonetheless, its effect is de minimus.   Lundgren's ladder was not destructive of the property;  her hanging of ornaments in no sense interfered with any other legitimate use of the property.   If a person stood on his head while waiting for a bus, his use of the property would certainly differ from the norm, but it would hardly be a significant difference such that he would then be liable for trespassing.   Similarly here, we conclude that Lundgren's use of the property was not significantly different from the purposes for which the property was normally used (i.e., standing, walking, congregating, talking, etc.) such as to subject her to liability for trespassing.

One cannot view the trivial nature of the incident in this case and conclude other than that Lundgren's “crime” was the content of her message, not her interference with the property owner's legitimate interests.   Accordingly, the record provides insufficient evidence to support the conclusion that the property on which Lundgren was arrested was property “not open to the general public” within the meaning of section 602(n).

DISPOSITION

Let the writ of habeas corpus issue directing the municipal court to dismiss charges against Joye Lundgren.

I respectfully dissent.¹

The camel with nose in the tent may now cavort in the caravansary;  if you're given an inch, you may take a mile.²

The majority enshrine homely proverbs into a rule of law—an entry upon real property for a limited purpose is deemed to be authorized for any purpose.   The gated fence invites a gambol on the green.

I

It is settled law the Supreme Court's direction to issue the alternative writ, or analogous order to hear a cause, does not control our discretion in ultimately deciding to grant or deny relief.  (8 Witkin Cal. Procedure (3d ed. 1985) Extraordinary Writs, § 107, p. 744;  Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939, 152 Cal.Rptr. 870;  Charlton v. Superior Court (1979) 93 Cal.App.3d 858, 861, 156 Cal.Rptr. 107;  Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 500, 165 Cal.Rptr. 748.)   The grant of hearing followed by retransfer “does not ipso jure establish that a petitioner is entitled to the relief sought.”   (Popelka, supra, at p. 500, 165 Cal.Rptr. 748.)   The Supreme Court's action means only “this court must decide the issues presented.”  (Ibid. citing Charlton, supra, 93 Cal.App.3d at p. 861, 156 Cal.Rptr. 107.)   The transfer order “does not preclude us from exercising our judgment based upon the record and the law as we construe it to be” (Krueger, supra, 89 Cal.App.3d at p. 939, 152 Cal.Rptr. 870), limited only by the high court's specific directions, if any.

Here, the Supreme Court ordered Lundgren's petition returnable before us to show cause why Penal Code section 602, subdivision (n) (§ 602(n)), prohibited her conduct “in light of undisputed fact that the public is allowed access to the portion of the private property giving rise to her conviction.”

I do not read that line as a finding of fact made by the Supreme Court.   The court below as the trier of fact came to the opposite conclusion, i.e., the public was not allowed access to the tree.   I do not impute to the Supreme Court a fact-finding jurisdiction, a role it and the courts of appeal properly relegate to juries and courts in trials by the court as finders of fact.   Semantically, the phrase in the remand order is not synonymous with the language “open to the public,” as used in the statute.   Thus unfettered by the phrase, I turn to the record.

II

The undisputed evidence shows the public was allowed access to the bus stop area for purposes of alighting from or waiting for a bus.   There is no evidence access was afforded to Lundgren or others to decorate or to climb the tree or to engage in demonstrative activity.   It is one thing to wait for a bus and another to festoon ornamentation on trees, spraypaint a wall or otherwise go beyond the permissive use of the property for bus-waiting purposes.   As Tennessee Williams might say, a tree is a peculiar place to wait for A Streetcar Named Desire.

Persons who climb trees fall out of them.   To agree to property use for a bus stop does not contemplate exposure to lawsuits for falls from trees and resultant liability insurance costs.   While broken tree branches and defaced building walls may be relatively trivial risks, the point is a landowner has a real and practical interest in limiting the uses of property which the statute is intended to protect.

III

We must assume the trial court found every fact deducible from the record which supports its judgment.   The majority say the trial court did not consider the specific language of section 602(n).   It is true the judge did not make specific findings in support of his decision.   There is no requirement he do so.   He, as the finder of fact, decided Lundgren was violating the statute because her use of the property was not a permitted use, and the property was not “open to the public” for the purposes for which she used it.   Unless there is no evidence in the record to support that finding, it is not our function to reverse it.   And there is, of course, evidence, in the form of the testimony of the Convair security guard, that Lundgren was doing these things, that he gave her notice to stop, and she did not.   Again, a tree branch is not a bench to await a bus.

The language of section 602(n) says a misdemeanor conviction may be had when the defendant refuses or fails to leave land not open to the general public, upon being requested to leave.   The majority interpret this statute to mean that once the landowner opens the property to the public for some purposes, it is open for all purposes, i.e., the phrase “not open to the general public” means the land must be available for no public use.   Such an interpretation means a landowner cannot limit uses of his property and must, having allowed some use, allow every conceivable use.   Thus, to permit persons to cross my property to get to the seashore gives them the right to pick my peonies, tiptoe through my tulips or sup on my squash.

The principle espoused here has foreseeable effects.   Landowners will not open their property to anyone.   Ungated fences will bar any use of property.   To predict the result calls out the need sensibly to construct the statute in common sense terms.   Forbid those uses not permitted and allow those uses granted by the owner.   Obviously, a defendant charged with trespass must have notice of the forbidden uses to be criminally culpable;  notice is a question of fact, and was here resolved adversely to Lundgren.

IV

Finally, troubling in the majority opinion is the phrase:  “․ we believe Lundgren's use of the portion of Convair's property to which the public was allowed access was reasonable.”   I find nothing in the statute which allows us to evaluate reasonableness of nonpermissive uses of property.   That blunt statement says conduct made criminal by statute is sanctified by our subjective analysis.   Our gloss on the evidence becomes a finding of fact.   Thus, our perceptions of the motive for the use and the use itself dictate the result.   Here, a protest against nuclear armaments evidenced by climbing a tree and hanging baubled messages on the branches is held to be reasonable conduct and thus not a trespass.   It follows that any conduct on property used for bus stops or other limited purposes is now sanctioned if we find that conduct reasonable.   That proposition terrifies me.   It is one thing to determine negligent acts against the standard of the reasonable man.   It is quite another to employ the reasonableness standard of appellate justices in the characterization of conduct found criminal by a trier of fact.   We will find ourselves in the quagmire of our perceptions of the reasonableness of an entry upon property for purposes not allowed by the owner.   A fetus festooned on the Convair tree to protest abortion may be reasonable to some, offensive to others.   An encampment of the Ku Klux Klan under the tree exalting white power might be thought to be reasonable by bigots.   While we like to think the baggage of pride, prejudice, passion and bias accumulated over the course of eventful lives is deposited outside our chamber doors, nevertheless, reasonableness is measured in the context of our perceptions which are nurtured in the environment of the lives we have lived.   I prefer to consider appeals from conviction of a crime on the substantial evidence standard.   I reject the proposition conduct found criminal by a trier of fact is legal when we conclude the activity is reasonable.

I would deny the writ.

FOOTNOTES

1.   All statutory references are to the Penal Code.   We shall refer to section 602, subdivision (n) as 602(n).

2.   The statutory language is “Right to pass by permission, and subject to control, of owner:  Section 1008, Civil Code.”

3.   All rule references are to the California Rules of Court.

4.   Rule 106 provides in relevant part, “The judges of the appellate department shall not be required to write opinions in any cases decided by them, but may do so whenever they deem it advisable or in the public interest.”

5.   Lundgren's habeas corpus petition also argued that the appellate department abused its discretion in failing to write an opinion stating reasons for the affirmance of the judgment.   We have no occasion to consider that contention because the circumstances of this case create no confusion as to the basis for the appellate department's conclusion;  it necessarily determined there was substantial evidence to support the conviction.   Thus, the fact that the court wrote no opinion did not inhibit our consideration of whether the case presented an important legal question.We are particularly sensitive to the significant workload of superior court judges, especially those who serve on the appellate department in addition to their regular assignments.   Nonetheless, we would hope in the spirit of collegial accommodation that the appellate department consider filing a brief statement of reasons in those limited number of cases in which the basis for its legal conclusion is not otherwise clear and counsel has indicated an intent to seek review in this court.

6.   We suspect the statutory element on which we focus here was somewhat obscured by Lundgren's theory at trial.   She argued that her conduct was protected by the First Amendment directing the trial court to such cases as Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341.   In Pruneyard, the property, although privately owned, consisted of about 21 acres, 5 of which were devoted to parking with the balance occupied by walkways, plazas and buildings containing 65 shops, 10 restaurants, and a movie theater.   Lundgren tried to convince the trial court Convair property was open to the general public in the same manner as the Pruneyard Shopping Center.   To say the properties are physically different is to understate the obvious.   Deflected in this manner, it is understandable why the conscientious trial judge failed to consider the specific language of section 602(n).   But even though the issue was not expressly addressed, the court impliedly found the land was not open to the general public in its determination of Lundgren's guilt.   As we explain, there is insufficient evidence to support this finding.

7.   It bears emphasizing that the issue in this case is one of statutory interpretation, not fact finding.   We interpret section 602(n) as embodying an implied reasonableness limitation.   The question then becomes whether the factual record, viewed in the light most favorable to the judgment, supports the conclusion that the defendant's use of property open to the public exceeded the bounds of reasonableness.

1.   I agree with the majority's procedural concerns and read the suggestion for a written statement of reasons as a paraphrase of California Rules of Court, rule 106, providing for an opinion by the appellate department when deemed advisable or in the public interest.   As a presiding judge of the appellate department of the superior court in my earlier, more active judicial career, I would reject any suggestion collegiality requires a written opinion triggered by a threat of appellate intervention.

2.   “For when I gave you an inch, you took an ell.”   John Heywood's Proverbs, first printed in 1546, is the earliest collection of English colloquial sayings.  (Bartlett's Familiar Quotations (15th ed. 1980) p. 161.)

WIENER, Acting Presiding Justice.

WORK, J., concurs.