People v. Diamond

Opinion

GARGANO, J.

Defendants, all young Negroes, were arrested five days after the assassination of Dr. Martin Luther King and charged with possession of a combustible substance in violation of subdivision (a) of section 452 of the Penal Code. This section provides in pertinent part: “Every person who possesses any flammable, explosive or combustible material or substance, or any device in an arrangement or preparation with intent to wilfully and maliciously use such material, substance or device to set fire to or burn any buildings or property mentioned in this chapter, is punishable by imprisonment in the state prison, not exceeding five years, or in the county jail, not exceeding one year.” Defendants waived a jury and, after court trial, were convicted as charged. They present three contentions for reversal: that Penal Code section 452, subdivision (a), is unconstitutionally vague, that the evidence was insufficient to support the trial court’s decision, and that there was no justification for the officer’s stopping defendants’ car.

Sergeant Grove of the Fresno Police Department was in a police car facing north on Van Ness at Fresno Street about 10:30 p.m. on April 9, 1968, when he noticed two automobiles going east on Fresno Street, a 1956

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Buick, white over dark blue or black, and behind it a 1958 yellow Chevrolet. All of the people in both cars were young Negroes. The officer turned right and slowly proceeded east on Fresno Street. Then, the two automobiles entered a parking strip along the courthouse park, made a U turn and again entered Fresno Street, this time traveling west. Suspecting that the vehicles had manuvered to avoid passing his police car, Grove radioed all police officers stationed in the downtown area to stop and check the vehicles out if they again appeared in that area.Therehad been some disturbances in the city over the recent assassination of Dr. Martin Luther King, and the police had received telephone reports that Negroes had threatened to burn the mall.

Officer Robinson was in the general area of Fresno and Broadway Streets when he heard Sergeant Grove’s radio dispatch. At about 11 o’clock Robinson observed the 1956 Buick, occupied by five or six Negro young people, traveling west on Merced Street at a slow rate of speed, stop, and then turn north on Van Ness. The officer stopped the vehicle and discovered that the driver, Frank Diamond, did not have an operator’s license. Robinson then accompanied Diamond to the automobile to see the registration certificate. As he flashed his light toward the rear seat to observe the riders, he saw a bottle on the floor in the rear of the car. Removed from the car were three bottles, each containing a mixture of gas and oil, two wooden clubs, a rubber hose, a small pocket knife, a 13-inch hunting knife, two books of matches and a small rolled-up piece of paper which felt damp and appeared to have a gasoline odor. An expert testified that the bottles were fire bombs, were easy to throw and would break on impact; he said the mixture of oil and gas made a fire burn hotter.