People v. Kay

Opinion

DEVINE, P. J.

Appellants Newberry, Lavenberg and Kay pleaded nolo contendere to felony assault and felony battery (attacks on police officers). Various other charges against them were dismissed. All of the charges were related to a sit-in at Stanford University Hospital on April 8 and 9, 1971. Newberry’s appeal may be disposed of readily: he was not advised of his

Boykin-Tahl

rights; the Attorney General concedes this, and the judgment of conviction must be reversed. But the charges may be reinstated.

(In re Sutherland,

6 Cal.3d 666, 671-672 [100 Cal.Rptr. 129, 493 P.2d 857].)

Lavenberg and Kay appeal on the ground that certain conditions attached to their grant of probation are invalid.

The first condition is that of warrantless search. This condition,

[762]

with one exception, stated below, is not reasonably related to the crime for which appellants were convicted. Therefore, it cannot stand in its entirety. (I

n re Bushman,

1 Cal.3d 767, 776-777 [83 Cal.Rptr. 375, 463 P.2d 727];

People

v.

Dominguez,

256 Cal.App.2d 623, 627 [64 Cal.Rptr. 290].) Appellants, either personally or by assisting others, threatened or struck police officers with sticks or broom handles or steel bars or table legs. None of these objects is a weapon readily concealable on the person. These objects were tools of the particular affray, openly displayed. Lack of search had nothing to do with the offenses—the officers saw the objects all too plainly.

The one exception to which reference is made above is the search of automobiles. If an appellant were to decide that he should engage in another demonstration, he might proceed towards the scene carrying bludgeons in his vehicle. The condition of warrantless search of appellants’ vehicles is not unrelated to the offenses committed. The remand referred to below will provide an opportunity for modification if it seem proper; but on appeal, where the trial judge’s discretion is to be honored absent abuse, the condition is sustained.