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People v. Weber9/21/1984
California Appellate Department, Superior Court
Crim. A. Nos. 66224, 67470
208 Cal.Rptr. 719, 1984.CA.40339
September 21, 1984
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ADAM KYTHE WEBER, DEFENDANT AND APPELLANT. THE PEOPLE, PLAINTIFF AND RESPONDENT, V. WILLIAM PATRICK PHIPPS ET AL., DEFENDANTS AND APPELLANTS
Municipal Court for the San Diego Judicial District of San Diego County, Nos. M 457550, M 459586, M 459581, M 459585, Rafael A. Arreola and Richard J. Curran, Judges.
Diane C. Campbell, under appointment by the Superior Court, and Allen R. Bloom for Defendants and Appellants.
John W. Witt, City Attorney, Richard W. Potvin, Barry J. Carlton and Beverley R. Meyers, Deputy City Attorneys, for Plaintiff and Respondent.
Opinion by Milkes, J., with Woodworth, P. J., and McConnell, J., concurring.
Milkes
We have consolidated for decision convictions for trespass, obstruction of a street and/or sidewalk during demonstrations by nuclear protesters at General Dynamics and the United States Navy Submarine Base at Ballast Point. Defendant Weber's sentence was modified to 90 days custody with 78 days suspended and 10 days community service. Defendants Barbara Owen and David Owen received six months in custody, forty-five days of which were suspended. Defendant Phipps was sentenced by the court to six months in custody, with one day suspended.
I
All of the defendants raise similar contentions on appeal:
(i) The trial court's refusal to allow the defense of necessity;
(ii) The duty to instruct the jury regarding international law;
(iii) The trial court's failure to instruct the jury sua sponte regarding a good faith belief to negate malice. All of the defendants made a knowing and intelligent election of self-representation.
II
Defendants philosophically suggest in their briefs that during the last quarter century, this "country has witnessed arduous, lengthy and eventually
successful efforts of public demonstrations to alter first private views, then national policy, on racial, sexual discrimination and the Vietnam war." Appellants contend that they were thwarted in presenting evidence to the jury that their actions were motivated by a sincere belief in discussing and publicizing the dangers of nuclear weapons.
III
Peaceful demonstrations, protests and dissent need no defense; they are the cornerstone of a society based on the rule of law. As suggested by Justice William O. Douglas, the right to dissent "is the only thing that makes life tolerable for a judge on the appellate level." All thoughtful persons remember the horror and sorrow of Hiroshima and Nagasaki. But we are confronted with a more complex resolution than may be determined by raising a single moral issue. We must respect, above all, the pluralism that simply does not see nuclear disarmament and other emotional issues from the same single perspective. Our concern cannot be a single dimension. We must be equally concerned with the protection of rights, including property rights of others. We do not see all things or all issues from the same angle; nor do we all march to the same drummer.
The Defense of Necessity
I
The court in the Weber trial denied the defense of necessity. The court in the Phipps and Owen trial instruc
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