Dan Dow ELECTRONICALLY

District Attorney FILED

State Bar #237986 10/14/2020 4:36 PM
County of San Luis Obispo bum
Courthouse Annex, Room 450 :rmm _ '

San Luis Obispo, CA 93408 .

Telephone: (805) 781-5800

V
Attorney for the People of the State of California

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO

THE PEOPLE OF THE STATE OF CALIFORNIA, ) CASE NO. 20M-05512

)
Plaintiff,)

VS. ) PEOPLE’S MOTION IN OPPOSITION

I TO DEFENDANT'S DEMURRER

TIANNA ISIS ARATAWENTWORTH,

Date: October 22’ 2020
Defendant.
Time: 8:30 a.m.
Dept. 8
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TO THE JUDGE OF THE ABOVE ENTITLED COURT; THE DEFENDANT, TIANNA

lSlS ARATAWENTWORTH; AND HER ATTORNEY’S OF RECORD, PATRICK FISHER AND
CURTIS BRIGGS:
PLEASE TAKE NOTICE that, on October 22nd, 2020 The People of the State of

California, by and through Delaney Henretty, Deputy District Attorney for the County of San
Luis Obispo, will oppose Defendant's Motion to Demurrer to the Complaint in the above-

captioned case. This Opposition is based upon the attached Points and Authorities and

argument contained herein; as well as all documents, pleadings, and papers filed in this case

and such other written and oral evidence as will be presented in Court.

//

//

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PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 I.

INTRODUCTION

Although it is beyond the scope of a demurrer to laws that have already passed
constitutional muster, it is perhaps best, at the outset, during these troubled times to assert

that there is nothing more beloved and sacred than our commitment to uphold the

Constitution of the United States and the State of California and to defend the liberties

pertaining thereto. The defense has asserted that the District Attorney’s Ofce seeks to

impose criminal liability on the defendant because she is part of a movement who exercise
their First Amendment Right of Freedom of Speech and Lawful Assembly guaranteed by our

Constitution. Nothing could be further from the truth. All protests, or movements, regardless of

the content of their speech or expressive conduct must abide by the laws that govern for the

protection of the safety and liberty of all. Even our most precious liberties, like our Freedom of

Speech are subject to content neutral laws as to time, place, and manner restrictions that
protect public safety, and the liberty and freedom of others. One cannot violate another

person's safety and liberty, and then invoke free speech as a defense.
“The rights of free speech and assembly, while fundamental to our
democratic society, still do not mean that everyone with opinions and beliefs
to express may address a group at any public place and at any time. The
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constitutional guarantee of liberty implies the existence of an organized

society maintaining public order, without which liberty itself would be lost in
the excesses of anarchy. The control of travel on the streets is a clear
example of governmental responsibility to insure this necessary order. One
would not be justified in ignoring the familiar red light because this was
thought to be a means of social protest. Nor could one, contrary to traffic
regulations, insist upon a street meeting in the middle of Times Square at
the rush hour as a form of freedom of speech and assembly. Governmental
authorities have the duty and responsibility to keep their streets open and
available for movement. A group of demonstrators could not insist upon the
right to cordon off a street, or entrance to a public or private building, and
allow no one to pass who did not agree to listen to their exhortation."

(Cox v. State of Louisiana (1965) 379 U.S. 536, 554-555.)

lt is beyond the scope of this public hearing to address whether there is or is not

systemic racism, and where it resides and to what extent. But it is within our duty and

responsibility to address and determine whether the laws of this great State have been
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PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 broken, and whether the accused has unlawfully infringed on the rights and liberties of the
citizens of this community. Freedom of Speech through lawful protest is a fundamental right in

our Constitution, but that speech or protest cannot stand when it violates the laws, and liberty

of others through unlawful assembly, detention, obstruction, and harassment of others. We

remain sworn and committed to not let bias, sympathy, prejudice, or public opinion influence

our assessment of the evidence. And to not be biased in favor of or against any party,

witness, attorney, defendant, or alleged victim because of his or her disability, gender identity,
sexual orientation, age, socioeconomic status, or political opinion or party afliation.
ll.

STATEMENT OF FACTS
On July 215‘, 2020, Tianna lsis Aratawentworth helped organize and led a protest

march through the streets of the city of San Luis Obispo where she willfully and maliciously

obstructed traffic. The defendant led protestors onto the SR 101 freeway and blocked

northbound and southbound traffic for more than 30 minutes. The defendant then led

protestors from the freeway and back onto the streets of San Luis Obispo where she actively
chased down vehicles, sprinting ahead of the group of protestors where she illegally detained

the occupants of the vehicles on our public streets. She then waited for the participants to

surround the vehicles before moving back to the front of the march. The defendant’s actions

showed a deliberate disregard for the rights and liberties of others.

The defendant has been an organizer and leader of protest marches since May of
2020. On June 1, 2020, a protest began at Mitchell Park and thereafter protestors began
marching through the streets of San Luis Obispo. At the beginning, there appeared no clearly
defined leader; however, as the protest march continued, the defendant, Jalen Hamler, and
Xavier Moore emerged as leaders by directing the group’s chants and activities, such as the
direction of march, when to stop marching and occupy intersections. The protestors

eventually marched onto United States Route 101, blocking traffic on the freeway. San Luis
Obispo Police Department later learned of a protest by this group planned for June 3, 2020.
After learning of a planned protest, Chief Cantrell contacted the defendant, Hamlin and
Moore and arranged to have a meeting at the San Luis Obispo City Hall prior to the planned

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PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 protest. The purpose of the meeting was to discuss safety concerns as they related to the
protesters and the public. Chief Cantrell wanted to ensure the protesters First Amendment
rights were safeguarded and wanted to work with the event leaders to ensure they had a safe
and effective event. Thus, on June 3, 2020 San Luis Obispo Chief Deanna Cantrell and other

city ofcials met with the defendant, Hamler, and Moore in a conference room at San Luis

Obispo City Hall. The defendant, Hamler and Moore presented Chief Cantrell with a list of
demands on behalf of the Black Student Union‘. Chief Cantrell advised the defendant,
Hamler, and Moore of some guidelines for their protest, one of which being the group was not
permitted to march onto the freeway. Those terms were agreed to by the defendant, Hamlin,
and Moore. Chief Cantrell encouraged the group that as leaders they had a responsibility to
maintain a safe environment for the participants. Chief Cantrell provided her cell phone
number to the defendant, Hamlin, and Moore and told them to call her if there was anyone

creating problems for the group or creating a public safety concern. At no time during the
meeting did the defendant, Hamlin or Moore deny their leadership role in the group. During
that meeting, Cantrell also provided her email address to the defendant. Following the

meeting, the defendant and Hamler addressed a group of protestors who had gathered
outside of City Hall and told them they had just delivered a list of demands to city ofcials.
From the June 3rd meeting and subsequent communications with the defendant, Chief
Cantrell knows the defendant to be one of the organizers of protest marches occurring in San
Luis Obispo. Chief Cantrell shared several text messages with the group expressing her
appreciation for their leadership and ability to have a safe event.
In a June 3, 2020 group text message with the defendant, Moore, and Hamler, Chief
Cantrell congratulated the group for a greatjob today and told the marchers to get onto the
sidewalks because the police cannot allow 10 or 20 people to be in the roadway.
ln a group text message with the defendant, Moore and Hamler, Chief Cantrell
June 8*“

told the group, in part, “Once again as discussed last time we met, please do not get on the

freeway.”
On June 16, 2020, the defendant sent a text message to Chief Cantrell stating she no

longer had Cantrell's business card and requested her email address. Cantrell responded
to

1
At California Polytechnic State University
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PEOPLE'S MOTION lN OPPOSITION TO DEFENDANT’S DEMURRER

 the text providing her with her email address. Chief Cantrell later received an email from the
defendant from her email address.
On July 20‘“ at 11:22 a.m. SLO PD Chief Cantrell sent the defendant the following text

(SMS) message; "Hey Tianna, I saw the yer for the protest tomorrow at Mitchell Park.
Wondering what the plan is so that l can plan accordingly for the police department. How
many people are you expecting? Are you planning on leaving Mitchell Park?”
An additional text message Chief Cantrell sent advised the defendant that the gazebo
was closed for maintenance so they would not be able to go into it, and added, the city
attorney drafted language about protests and planned events needing a permit and that she
(Cantrell) would email that to the defendant as she had her email address. At 1310 hours
SLO PD Captain Brian Amoroso sent an email to the defendant’s email address with the

Municipal Code language. This email outlined the steps required to obtain a permit in the City

of San Luis Obispo.

"Hi Tianna, Chief Cantrell asked me to send you the City permitting
guidelines for any planned protest, meeting, demonstration, gathering or
rally. Here are the guidelines, and the link will take you directly to the
municipal code where you can read all the details. Thank you. Brian. Please
be advised that per San Luis Obispo Municipal Code (“SLMC”) Section
5.80.010, a permit is generally required for any meeting, demonstration,
common
rally, gathering, or group of 150 or more persons having a
purpose, design, or goal, in any public place. Failure to secure a permit prior
NNNNNNNNN—x

to your gathering of 150 or more persons is a misdemeanor. (SLMC §

5.80.120.) To avoid violating the SLMC, please apply for and secure a
permit prior to your gathering, or limit your gathering to less than
150
persons. Deadlines for permit applications are set forth in Section
5.80.040(B) of the SLMC. For more information about how to submit an
application for a permit, please contact David Setterlund, Recreational
Supervisor, at (805) 781-7067."

The defendant did not respond to the email. The defendant texted Chief Cantrell, via
text message, saying “Hey honestly there is no plan for tomorrow but its peaceful that’s all l

can real/y say I’m not sure how many people either.”

On July 21st at approximately 1600 hours, the defendant and others gathered at

Mitchell Park where from the gazebo she addressed the crowd. The defendant was wearing a

black jersey with a graphic and the word Riots on the front. On the back of the jersey was

Floyd 20. The defendant held an American flag mounted upside-down on a flagpole. The
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PEOPLE'S MOTION lN OPPOSITION TO DEFENDANT’S DEMURRER

 defendant held onto this flagpole for the following hours in which the group marched through

the streets of San Luis Obispo and onto US Route 101.

Some of what the defendant said to the group at Mitchell Park was, “Also, the Police

Chief, Deanna, has been reaching out to me trying to control these protests. Trying to tell me,

ifyou have a small crowd you need to stay on the sidewalk. You can’t use the gazebo today.
Fuck that, we’re not going for it. We are not going to be complacent and we're not going to

take orders from pigs.” The defendant also said, “I was wondering if we could have some

volunteers hold this big black lives matter sign? in the front of our protest and set the pace"

and “Oh yeah, before we go, we have hella new chants because I’m burnt out on saying the

same thing.” After the defendant addressed the crowd, the crowd then marched onto the

streets occupying the roadways from Osos St. northbound to Pismo St.

At the intersection of Osos Street and Pismo Street near Mitchell Park the defendant

ran toward a Silver Toyota 4runner, and blocked the occupants travel.3 The defendant

shouted: (to people in her group), "Don’t let him leave until he confesses his white privilege."
vehicle
They immediately surrounded the vehicle and people started slapping the hood of the
and at least one person stood on the rear bumper of that vehicle and jumped up and down.

The crowd then marched westbound on Pismo St. in the center of the roadway towards

Chorro St. and then went northbound to Monterey St. They then marched to Higuera and

Broad where the defendant and others occupied, and closed down the intersection of Higuera

St. and Broad St. for several minutes preventing any vehicles from going through that

intersection.4 The defendant is at the front of the group of protestors leading chants and
down to the
holding an upside-down American flag mounted to a pole. The flag is thrown

ground and the defendant and others stomp on the American Flag. The defendant
then holds

the flag aloft and circles the entire crowd from the front in a clockwise fashion addressing the

2 This large sign spanned the width of as many as six people standing side by side who carried it during a
march
lists occupants' names and
3
Charged in Count 1. Bates Packet 1:25—28. Discovered to defense. Discovery
contact information.
4 Count 2 of the misdemeanor
complaint. Drone video footage of the incident was provided in discovery.
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PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 crowd at different points with a megaphone. After circling back to the front of the crowd, the

defendant again resumes her position at the front and starts marching westbound on Higuera

St. The crowd of protestors follow her.

The defendant continued to lead the large group, estimated to be as many as 300

people, as they marched through the city streets, occupying the entire roadway, and

eventually toward United States Route 101, where the defendant led the group onto the

freeway. They completely blocked both northbound and southbound lanes for approximately
3O minutes.5

At one point while they were on the freeway, the defendant stood up on the center,
metal guardrail and addressed her fellow marchers via a bullhorn, saying at one point, “l don't

want to be arrested today but l will be arrested today if that’s what it comes to." The crowd on

both sides of the occupied freeway turned towards her and listened as she spoke to them for

several minutes. After the speeches, the defendant marched north in front of the crowd of

protestors occupying all four lanes of North and Southbound SR101 passing numerous

stopped vehicles on the southbound side of the Freeway. The group stopped on the freeway
in the vicinity of the Toro St. entrance ramp for northbound SR101 for several minutes where

they sat down on the freeway amongst the stopped vehicles occupying both sides of the
NNNNNNMN

freeway. The defendant again stood on the guardrail and addressed the crowd that looked on
from both sides of the freeway. The group eventually stood up and continued marching

northbound on the freeway.

While waving her flag back and forth, the defendant stood directly in front of a black

BMW at exit 2033 preventing it from exiting the freeways Marcus Lee Montgomery and Sam

Grocott stood with her in front of the vehicle. As Montgomery paced back and forth in front of

the vehicle, he shouted to the driver, “You stand with us?" to which the driver replied, “I’m right

Charged in Counts 3 and 4 of the Misdemeanor Complaint. Drone footage of the incident was provided
5 in

discovery. Bates Package 2: 211—212, 216-219.

5
Count 5 of the misdemeanor complaint. Drone video footage of the incident was provided in discovery.
Bates Packet 2: 21 1—212, 221-225.
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PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT’S DEMURRER

 here man.” Montgomery replied, “Not that you wanna be.” Moments later Hamler joined the

defendant, Montgomery and Grocott, standing in the exit lane in front of the blocked vehicle.

Hamler and Amman Asfaw walked towards the center of the southbound lanes where

Hamler conversed with the driver of a white Dodge Pick-up truck who was stopped on the

inside shoulder, due to the large group of marchers ahead who blocked the freeway. The

driver explained to Hamler that his daughter was pregnant and the stress of the situation may

induce labor. The defendant walked up and spoke with Hamler while he argued with the driver

ofthe white Dodge pick-up.7

The group crossed over to the northbound lanes of Highway 101 just south of the
California Blvd. overpass and regrouped before continuing north. The defendant was again at

the head of the procession as the group left the freeway turned south on California Blvd. The

defendant then sprinted ahead of the march to reach the intersection with Phillips Lane where

she stopped in the roadway in front of a dark—colored sedan that had completed its turn north
on Phillips lane impeding its forward movement? The vehicle had turned off California well in

advance of the protestors marching down the street and posed no threat. As other marchers

caught up and walked in front of the vehicle, the defendant continued marching on, to stay up

front.

At the next intersection with Mill Street, the defendant once again sprinted ahead and

stood in front of a white sedan that was attempting to turn from California Boulevard onto Mill

Street.9 Again, the vehicle was turning out of the protestors line of march and posed no
threat. She remained until others caught up and stood in front of the vehicle. The following

intersection with Palm Street had no moving vehicles in the area when the defendant marched

through.
After passing through the Palm Street intersection, the defendant, Asfaw, Montgomery

and another person sprinted ahead to the intersection with Monterey Street where they

7
Count 6 of the misdemeanor complaint. Drone video footage and social media footage of the incident was
provided in discovery. Bates Packet 1: 58-61, 236.
5
Count 7 ofthe misdemeanor complaint. Drone video footage of the incident was provided in discovery.
9
Count 8 of the misdemeanor complaint. Drone video footage of the incident was provided in discovery.
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PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 stopped two vehicles attempting to turn from California Boulevard onto Monterey Street.”

Again, these vehicles were turning out of the line of march of the protestors and posed no
threat to anyone.

Asfaw sat down in the street, holding his green sign, directly in front of a white sedan.

The driver of that sedan later told investigators he told the marchers he just wanted to go
home. An unknown person told him he would have to wait 20 minutes.

As shown on both the defendant's lG phone live-stream and San Luis Obispo drone

video, the marchers overtook the intersection stopping as many as eight vehicles from leaving
the area for approximately eight minutes. The defendant encouraged a dance off in the center

of the intersection that she participated in and lmed on lG live stream.

As the group continued marching, now on Monterey Street headed toward downtown,

the defendant sprinted ahead on two occasions and stopped two different vehicles that were

both attempting to turn around well in advance of the group marching in the street. The

marchers would then envelop the vehicles stopping them from leaving. As she stood in front

of one of the vehicles, the defendant asked her fellow marchers, “Do | let ‘em go ya'll?”“ The
defendant then taunted the driver of one of the vehicles by yelling, “You’re caught now!" and,
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“l don't care where you gotta be, niggas’ dying every day!” The defendant then went in front of

the group and led them down Monterey St. while lming herself on lG live stream.

The defendant then purposely diverted off the street and led a group of protestors into
the dining areas of Finney's and Giuseppe’s restaurants. The dinning area was full of people

trying to enjoy their meal and have a peaceful dinner with family or friends. The defendant

repeatedly yelled, ““Fuck your comfortlm The defendant was flipping the dinners off at
different times while she yelled, “Fuck your comfort!" The incident was captured on the

defendant’s lG live stream from her cell phone.

1° Count 9 of the misdemeanor complaint. Drone video footage of the incident was provided in discovery.
Bates Package ‘l: 111-1 13, 127-137, Bates Packet2:213-215, 226-229.
11
Counts 10 and 11 of the misdemeanor complaint. Drone video footage of the incidentwas provided in
discovery. Bates Packet 1: 78-80.
12 Count 12 of the misdemeanor
complaint. Drone video footage of the incident was provided in discovery.
Bates packet 1: 127-129, Bates Packet 2:220, Bates Packet 4: 261-265.
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PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 The group then turned south on Chorro St. and regrouped. The defendant stood in

front of the group and she and others danced on the American flag that had been thrown to

the ground in front of protestors. The defendant spits on the flag and says, “Fuck the flag and

Fuck America!" The defendant picked up the upside-down American flag and held it aloft as

she marched south on Chorro in front of the group of protestors that followed. The defendant

sprinted to the intersection of Chorro and Higuera and tried to stop two separate vehicles that
turned down Higuera to avoid the protest. The defendant and protestors ran after the vehicles

as they drove away. The group then continued marching south on Chorro St.

The defendant again sprinted ahead with others following her towards the intersection
of Pacic and Chorro where she jumped in front of a Honda Pilot that was attempting to turn

south on Chorro St. from eastbound Pacific St.” The vehicle could have driven away at that

time, and it posed no danger to the protestors. The driver of the Honda Pilot continued to
travel at very low speeds and was not driving recklessly. The defendant and protestors

continued to swarm around the vehicle. The defendant then swung and struck the vehicle with

the flagpole on the front windshield/hood, and rear windshield as it drove away. The driver of

the vehicle later told officers that he was afraid that he would have been pulled from the

vehicle.

The defendant continued marching ahead of the protestors as they turned east on
Pismo and headed back to Mitchell Park. The defendant addressed the crowd with a

megaphone from the gazebo at Mitchell Park as the crowd stood in an arc facing her. The
crowd responded by repeatedly clapping in response to her speech. The defendant is one of

the last to leave after the end of the protest. She is seen placing a megaphone, the upside-

down American flag, and other materials into the back of a vehicle parked on Osos St.

After the conclusion of the march, the defendant was arrested. As officers approached

to arrest her, Elias Bautista, Marcus Montgomery, and Joshua Powell intentionally, physically

13
Count 13 of the misdemeanor complaint. Drone footage of the incident was provided in discovery. Bates
Package 1: 48-50.
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PEOPLE'S MOTION lN OPPOSITION TO DEFENDANT'S DEMURRER

 interfered with ofcers. After her arrest, Elias Bautista”, slammed shut the door of the police

unit as officers were attempting to place her into the vehicle. The actions of Bautista,

Montgomery, and Powell show deference to the defendant as a leader and somebody for
whom they were willing to risk arrest.

On July 22, 2020 District Attorney Dan Dow, San Luis Obispo City Manager Derek

Johnson and the San Luis Obispo City Counsel received an email from Jackson Alexander.
In his email, Alexander identied himself as a participant in the prior day’s march and claimed

he and his fellow protestors were “entirely aware we were breaking the law. Assembly on a

freeway is not protected under our Freedom of Speech and Freedom of Assembly and we
knew that. ”
On September 3, 2020, a large group assembled outside of the San Luis Obispo

Courthouse to show support for the defendant and Bautista who were both being arraigned

that day. The District Attorney exercised its charging discretion and elected not to file felony

charges. The defendant was arraigned on (13) misdemeanor counts to include: (5) counts of
PC §236, (6) counts of PC § 647C, (1) count of PC §407, and (1) count of PC §415(2). The
video footage of the assembly showed a subject who identied himself as Michael Giuffre15

address the large group. He said in part, “Me and hundreds of other activists willingly helped
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and participated with the protest she15 helped organize."

Despite the defendant’s text to Chief Cantrell asserting “Honestly there is no plan for

tomorrow," clearly there was a plan and the defendant was one of the planners. She

addressed the gathering at Mitchell Park with a call for volunteers to carry the large black lives

matter sign, told the group, “Oh yeah, before we go, we have hella new chants because I’m

burnt out on saying the same thing," and “Fuck that, we are not going for it. We are not going
”
to be complacent and we are not going to take orders from pigs.

14 Bautista was subsequently arrested for assaulting a Police Ofcer

15 His lnstagram account has photos of himself as well as Aratawentworth related posts
15
Referring to Aratawentworth
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PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 The defendant’s words, her upside down, torn flag and the shirt she was wearing, with
Riots emblazoned on the front show the multiple acts of falsely imprisoning motorists on the

freeway and throughout the city were planned. Jackson Alexander and Michael Giuffre’s
statements show the collective knowledge of the group that the defendant is a leader of the

group and the group was aware their activities were unlawful. She purposely ignored the
offers of assistance and guidance on how to conduct a safe and lawful protest because of her

animosity and hatred for the police. She deliberately disregarded the safety and liberty of the

people in this county and purposefully held them hostage. In this context, “no justice, no

peace" really means ‘intimidation, power, and control.’ Join the mob, or you will have no

peace. Do what we say, or we will take your peace and liberty.

“Nonviolence is the answer to the crucial political and moral questions of our
time: the need for man to overcome oppression and violence without
resorting to oppression and violence."

The Reverend Dr. Martin Luther King.

II.

ARGUMENT
A. OFFENSES MAY BE GENERALLY PLED IN LANGUAGE OF THE STATUTE
Demurrers are used to challenge defects that appear on the face of the accusatory

pleading. (PC § 1004; People v. Chaides (2014) 229 Cal.App.4"‘ 1157, 1162.) An accusatory
and 952 is
pleading that does not substantially conform to the provisions of sections 950, 951,
the
subject to demurrer. (Pen. Code, § 1004, subd. (2).) Penal Code section 952 describes
standards to which an accusatory pleading must conform and provides:

in charging an offense, each count shall contain, and shall be sufficient if it

contains in substance, a statement that the accused has committed some
public offense therein specied. Such statement may be made in ordinary
and concise language without any technical averments or any allegations of
matter not essential to be proved. lt may be in the words of the enactment
describing the offense or declaring the matter to be a public offense, or in
any words sufcient to give the accused notice of the offense of which he is
accused.

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PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT’S DEMURRER

 The defendant is thus apprised, in ordinary and concise language, of the acts alleged

to have been committed in violation of a specied code section. Such pleading is sufcient.

(Ratner v. Municipal Coun‘ (1967) 256 Cal.App.2d 925; People v. Bishop (1963) 220

Cal.App.2d 148.) A statement in the statute’s language, or in any language giving the

accused notice of the offense charged, although not of the particular circumstances, is

generally held to be sufcient in the face of a general demurrer. (Brown v. Superior Court

(1965) 234 Cal.App.2d 628, 632.)

Thus, it has long been held that the particulars of an offense, including manner, means,

place, or circumstances in general need not be alleged. lt is sufcient if the essential

elements of the offense are pleaded. (People v. Soto (1977) 74 Cal.App.3d 267, 273.)

“A demurrer is not a proper means of testing the sufficiency of the evidence supporting

an accusatory pleading." (People v. Williams (1979) 97 Cal.App.3d 382, 391 & fn. 5; People v.

Biane (2013) 58 Cal.4"‘ 381, 388.) “Rather a demurrer lies only to challenge the sufciency of

the pleading. It is limited to those defects appearing on the face of the accusatory pleading,

and raises only issues of law. The [accusatory pleading] must be given a reasonable

interpretation and read as a whole with its parts considered in their context." (People
v. Biane,

supra, 58 Cal.4”‘ at p. 388.)

NNNNNNNNN

Here, all thirteen counts of the misdemeanor complaint comply with Penal Code §§

950, and 952. Each count is pled in the plain language of the statute stating a specic public

offense. Each count also provides notice as to the location of the offense. Each PC § 236

vehicle that was unlawfully detained by the defendant. Each count

charge lists the specic

alleged, with the exception of Count 1, has video footage of the alleged crime.” Additionally,
Bates Packet 1: 1-210, Bates Packet 2: 211—230, Bates Packet 3: 231-259, and Bates Packet

4: 260-276 were provided to defense counsel. Included therein are all law enforcement
social
reports, District Attorney Investigator reports, drone footage recordings of the protest,
media evidence, witness interviews, body camera footage, audio interview les, documentary

17
Discovery provided to the defendant on Count 1 has a full victim interview and the victims recorded
,

statement of that crime.

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PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT’S DEMURRER

 evidence, and photographs. All John or Jane Doe victims have been identified and their
contact information was provided pursuant to Penal Code § 1054.1 .18

A supplementary email was also sent to defense counsel that lists the victims

pertaining to those counts. Those victims and witnesses confidential, personal identifying
information that has been provided to defense counsel should be protected pursuant to Penal

Code § 964. Additionally, California Constitution, Article 28, provides that victims have a right
“To be treated with fairness and respect for his or her privacy and dignity, and to be free from

intimidation, harassment, and abuse, throughout the criminal justice process." (Cal. Const.,
Article 28, Subd. (b)(1).) Victims also have the right under the California Constitution “To be

reasonably protected from the defendant and persons acting on behalf of the defendant.”

(Cal. Const., Article 28, Subd. (b)(2).) There is a real risk of intimidation, and harassment in

this case. Members of this ofce while reviewing the reports, and evidence in consideration of

exercising their discretion to le charges in this case were inundated with tens of thousands of

emails from all over the world demanding that charges that had not been led, be dropped.

members of this
Many of these emails contained coarse and pejorative language accusing
ofce of racism. There were cyberattacks on the District Attorney’s Office from locations as far
of the District
away as China. A flier was released telling protestors the personal address
Attorney and his family. The ier urged protestors to go to his home, and remain there until

charges against the defendant were dropped. The flier also stated "No justice, no sleep”
and his
indicating the creator of the flier wanted to disturb the peace of the District Attorney

family until charges against the defendant were dropped.

The defendant in her moving papers herein accuses the District Attorney of seeking to

hold the defendant liable without any ‘reasonable inference which can be drawn that would
or illegal.’
remotely suggest that Ms. Arata was aware that she was doing anything wrong,
This assertion is patently false and contrary to the evidence counsel has been provided. Here,
the defendant was a leader in the June 1st, 2020 protest where demonstrators marched from

18
Any alleged uncertainty or lack of notice in the pleading may be cured by discovery. (People v. Jones
(1990) 51 Cal.3d 294, 317.)
Page 14

PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 Mitchell Park and shut down and occupied the 101 Freeway. It is obvious to everyone that it is

illegal for pedestrians to be on the freeway, and for them to seize the liberty and unlawfully
“

detain private citizens using a public highway. Additionally, the entrance ramps to the highway
I:

are clearly marked with signs that read: “Pedestrians, Bicycles, Motor Driven Cycles
K3

Prohibited." The defendant was not arrested for her unlawful actions on the June 1st protest.
E3

Instead city officials and Chief Cantrell chose to meet with the defendant at city hall to discuss
I;

safety concerns related to the protestors and the public. The defendant was specically told
5:

not to go on the freeway, and she was provided guidelines on how to conduct a safe event.
5;

The defendant was advised that under San Luis Obispo Municipal code section 5.80.010, a
:3

permit was required on any protest, demonstration, gathering or rally of 150 or more persons.
E;

She was sent an email outlining how to get a permit and provided the phone number of the
co
—A

Recreational Supervisor in charge of permits. The defendant’s response was to address the
n:
c:

protestors gathered stating: “[...] the police chief, Deanna, has been reaching out to me trying
n:
—s

to control these protests. Trying to tell me, if you have a small crowd you need to stay on the
no
n3

sidewalk. You can’t use the gazebo today. Fuck that, we’re not going for it. We are not going
no
c»

to be complacent and we’re not going to take orders from pigs.” The defendant was fully
.5
no

aware her actions were unlawful and she disregarded the law, and purposely violated the
n3
01

safety and liberty of the victims on our public streets.

no
o:

The defendant also contends that she was one among hundreds who impeded trafc
~q
no

and therefore there are insufficient facts necessary to attach any criminal liability to her
n:
a:

notice of the charges against her in order to

personally, and adds that she has insufcient
at trial. The
prepare a criminal defense and not be taken by surprise by evidence offered
defendant’s arguments are without merit. As has been discussed herein, the defendant
the
actively chased down numerous vehicles that were attempting to move away from

protestors who had unlawfully occupied the streets, and unlawfully detained the occupants by

heading them off and/orjumping in front of them. Her actions were captured on social media,
drone camera footage and detailed in the statements of her victims. The defendant was a

leader with full knowledge that her actions were unlawful, and she purposefully led others and
Page15

PEOPLE'S MOTION lN OPPOSITION TO DEFENDANT’S DEMURRER

 instigated them to occupy the public streets, detain motorists, and disturb the peace. It is her

criminal actions that have singled her out from among the mass of protestors.

The false imprisonment statute—which has been the law in this state since 1872,

codified in Penal Code section 236, is not unconstitutionally vague or overbroad. (People v.

Bamba (1997) 58 Cal.App.4th 1113, 1120-1123.) ln People v. Bamba (1997) 58 Ca|.App.4“‘

1113, 1120, the defendant challenged Penal Code § 236 as unconstitutionally vague because
it did not define the term “personal liberty." The Bamba court held that ”’The cases have

consistently dened the crime of false imprisonment as requiring restraint on a person's

freedom of movement. (Id at p. 1121.) In rejecting the defendant's challenge to the

constitutionality of the statute for vagueness the court concluded, “Indeed, the long history of
the statute - which has been the law in this state for 125 years —
‘virtually precludes us from

nding it impermissibly vague at this date.”’ (Id. at p. 1122.) The defendant’s argument that
the charges of false imprisonment contained in the misdemeanor complaint are prohibited for

vagueness for lack of specific facts supporting the charges are without merit.
The defendant similarly challenges the charges of Obstruction of a Thoroughfare under
Penal Code section 647C claiming she did not intend to do a wrongful act when she joined the

‘rally’ that obstructed the free movement of traffic claiming the pleadings are insufcient.
The

pleadings are sufcient and are pled in the language of the statute. Penal Code section 647C,

Obstruction of Street, Sidewalk, or Other Public Place Open to Public provides:

“Every person who willfully and maliciously obstructs the free movement of
any person on any street, sidewalk, or other public place or ln any place
open to the public is guilty of a misdemeanor. [1f] Nothing in this section
affects the power of a county or a city to regulate conduct upon a street,
sidewalk, or other public place or on or in a place open to the public."

As described above, there is drone and/or social media video footage of each

allegation of PC § 647C charged in the complaint for each specic location detailed for each

charge. The defendant argues that she acted without malice, but that is a factual issue
to

resolve at trial and not grounds for a demurrer. The charge of PC §647c requires that the

defendant act ‘willfully.’ (Jennings v. Superior Court (1980) 163 Cal.Rptr 391, 394.)
Page 16

PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 ““The word ‘willfully,’ when applied to the intent to which an act is done or
omitted, implies simply a purpose or willingness to commit the act, or make
the omission referred to. It does not require any intent to violate law, or to
injure another, or to acquire any advantage;...” The same section defines
“maliciously”: “The words ‘malice’ and ‘maliciously’ import a wish to vex,
annoy, or injure another person, or an intent to do a wrongful act,
established either by proof or presumption of law;...”

(Pen. Code § 7; Jennings v. Superior Court, supra, 163 Cal.Rptr at p. 394.)

As discussed herein, the defendant was told that it was unlawful for her to occupy the

streets and highway, but she purposefully led protestors onto the public streets in disregard of

the law and unlawfully obstructed the travel of numerous people on our public streets and
on the part of law
highways. The defendant rejected all offers of assistance and guidance
enforcement and city ofcials on conducting a lawful protest because of her evident hatred for

them --

despite their willingness to protect her and other protestors 18‘ Amendment Rights of

Free Speech while at the same time preserving the liberty and safety of other citizens. Each
and
allegation of PC § 647C has accompanying video evidence of the defendant actively
others
purposefully obstructing the free movement of persons on our streets and encouraging
to do the same.

In Count 4 of the misdemeanor complaint, the defendant is charged with Participating

in an Unlawful Assembly in violation of Penal Code § 407. Defense counsel in his argument
to
ignores that “an unlawful assembly occurs when two or more people assemble together
commit a crime or to do a lawful act in a violent manner.” The defendant was fully aware that

she participated in an unlawful assembly on the highway for several reasons: (1) It is a

misdemeanor violation of San Luis Obispo Municipal Code § 5.80.010 to participate in a

demonstration of 150 or more persons without a permit, (2) lt is a misdemeanor to willfully and
is unlawful and a
maliciously obstruct the free movement of people on the highway, (3) It

violation of VC § 21461.5 for pedestrians to be on the highway as the signs on the on-ramp

clearly prohibit pedestrians from being on the highway. Although this entire argument goes

beyond the grounds for a demurrer as the charge was pled in the plain language of the statue

Page 17

PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER

 and complies with PC §§ 950 and 952, the intent or mental state required is knowledge that

the assembly is unlawful. (In re Wagner (1981) 119 Cal.App.3d 90, 103-104; Coverston v.

Davies (1952) 38 Ca|.2d 315, 320.) Specific intent to commit an unlawful or violent act is not

required. (People v. Kerrick (1927) 86 Cal.App. 542, 551.) The discovery in this case shows
that the defendant participated in an unlawful assembly on the highway on June 15‘, 2020, that

she was not arrested but was instead informed that it was unlawful to assemble on the

highway and shut down trafc, that she was asked to not lead protestors onto the highway,

but that she did so anyway with full knowledge of the potential consequences. She

purposefully seized the liberty of the citizens travelling on our highway because their rights
and liberty were not important to her.

Finally, in Count 12 of the misdemeanor complaint the defendant is charged with

Disturbing the Peace with Loud and Unreasonable Noise in violation of Penal Code section

415(2). This allegation is pied in the plain language of the statute and complies with PC §§
950 and 952. The elements of that offense as it pertains here are as follows:

“The defendant maliciously and willfully disturbed another person by

causing loud and unreasonable noise. Someone acts maliciously when she
acts with the unlawful intent to annoy someone else. ln order to disturb
another person by causing loud and unreasonable noise, the noise must be
used for the purpose of disrupting lawful activities, rather than as a means
to communicate."

(CALCRIM 2689; Pen. Code § 415(2).)

The defendant willfully and maliciously led protestors into the open dinning area of

Finney’s and Giuseppe’s restaurants during the Covid 19 pandemic and repeatedly shouted,
“Fuck your comfort!” while intermittently flipping off people who were trying to enjoy their meal
and have a peaceful dinner with family and friends. The protestors were already unlawfully
street by
occupying Monterey St. next to the dinning areas that were protected from the
that was
orange barriers. The protest could be clearly seen and heard from the dinning area
within a few feet from hundreds of protestors marching by. The defendant purposefully

diverted herself and led others into the dining area in order to maliciously disturb the peace of

those trying to peaceably enjoy a meal with family and friends. The marchers following the
Page 18

PEOPLE’S MOTION lN OPPOSITION TO DEFENDANT'S DEMURRER

a)
-q
a:

defendant emulated her by yelling “fuck your comfort!" and several also followed the
co

defendant’s lead by flipping the diners off.

c:

B. THE DEFENDANT’S DEMURRER ON 1ST AMENDMENT GROUNDS IS

WITHOUT MERIT.

The cases cited by the defendant for the proposition that a demurrer is appropriate

mechanism to challenge statutes or ordinances as unconstitutional are all 'facial' challenges

to the validity of the ordinance or law in question. A ‘facial’ challenge to the constitutional

validity of a statute or ordinance considers only the text of the measure itself, not its

application to the particular circumstances of an individual. (Tobe v. City of Santa Ana (1995)
9 Cal.4"‘ 1069, 1 084.) A successful constitutional challenge to a statute or ordinance voids the
statute as a whole. (Ibid.) Here, the defendant is charged with misdemeanors that are

constitutionaly and facially valid. The defendant is claiming that the facially valid charges
herein have been applied in a constitutionally impermissible manner. “[...] An 'as applied
manner
challenge assumes that the statute or ordinance violated is valid and asserts that the
of enforcement against a particular individual or individuals or the circumstances in which the

statute or ordinance is applied is unconstitutional." (Id. at p. 1089.) Because a demurrer to a

criminal complaint lies only to challenge the sufciency of the pleading and raises only issues

of law it amounts only to a ‘facial’ challenge to the constitutionality of the statute. (Tobe v. City

of Santa Ana, supra, 9 Cal.4"‘ 1069, at pp. 1089-1092.) When a criminal defendant seeks

relief from the present application of a criminal statute the question of whether the particular
be determined
application of the statute declaring conduct is constitutionally permissible can
and only then
only after circumstances of its application have been established by conviction
is an ‘as applied’ challenge ripe. (Tobe v. City of Santa Ana, supra, 9 Cal.4”‘ 1069, at p. 1085.)

The procedural posture of a case is not just a technicality. The procedural posture of a case
determines the party’s ability to exercise their right to present relevant evidence and to create

a full record adequate to enable the reviewing court to make a reasoned decision on the case

before it. (Id. at p. 1092.)

Page 19

PEOPLE’S MOTION lN OPPOSITION TO DEFENDANT'S DEMURRER

 As stated above, all protests, or movements, regardless of the content of their speech

or expressive conduct must abide by content neutral laws that govern for the protection and

safety and liberty of all. One cannot violate another person’s safety and liberty, and then
invoke free speech as a defense. Here, every effort was made to enable the defendant and

other protestors to exercise their rights of free speech and assembly in a lawful manner. The

defendant and others purposely chose to unlawfully take away and seize the liberty of those
oowoum-hooN—xocoEQSEKCJSSA

wishing to use our public streets and highways, and those actions endangered the safety of
the protestors and the public.

The Supreme Court case of Cox v. State of Louisiana (1965) 379 U.S. 536, 554 in

overturning the defendant's convictions as those statutes were ‘applied’ in his case, held that
the rights of free speech and assembly do not entitle a group of demonstrators to insist on
allow no one to
right to cordon off streets or an entrance to a public or private building and
that
pass who does not agree to listen to their exhortations. The Cox court rejected the notion
the First and Fourteenth Amendments afforded “the same kind of freedom to those who would

communicate ideas by conduct such as patrolling, marching, and picketing on streets and

highways, as these amendments afford to those who communicate ideas by pure speech.” (Id
NNNNNNMMN—x

at p. 555.) The Cox court further held that “The Rights of free speech and assembly, while

fundamental to our democratic society, still do not mean that everyone with opinions and

beliefs to express may address a group at any public place at any time. The constitutional

guarantee of liberty implies the existence of an organized society maintaining public order,
without which liberty itself would be lost in the excesses of anarchy.” (Id. at p. 554.) As such,

the government has a responsibility to control travel on the streets to protect the guarantee of

liberty for all. (lbid.) Similarly, the California Supreme Court has upheld
this legitimate

and 647C are

government interest in rejecting the contention that Penal Code §§ 415,
overbroad and violate the 15‘ Amendment. (In re Cox (1970) 3 Cal.3d 205, 220-223; Jennings

v. Superior Coun‘ (1980) 104 Cal.App.3d 50, 55.)

//

//

Page 20

PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT’S DEMURRER

 C(DmVODU‘l-booNA

Ill.

CONCLUSION
For the reasons stated, it is respectfully submitted that the defendant’s Demurrer be
denied.

Dated: October 14th, 2020 Respectfully submitted,

ooxloumhooN—xocogiaaE-‘3K31‘A

Dan Dow
District Attorney

new
”
By: Delaney Henretty
Deputy District Attorney
NNNNNNNNN—x

Page 21

PEOPLE’S MOTION IN OPPOSITION TO DEFENDANT’S DEMURRER

 1 PROOF OF SERVICE

2 Code of Civil Procedure S1031a; CRC Rule 2006(d)

J STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO

4
I am and at all times herein mentioned as a citizen of the United States and a resident of
5 the County of San Luis Obispo over the age of 18 years and not a party to the within entitled
action. My business address is Court House Annex,4th Floor, San Luis Obispo, California 93408.
6
On October 14,2020,1 served the foregoing document(s) described as:
7
PEOPLE'S MOTION IN OPPOSITION TO DEFENDANT'S DEMURRER
8 (People v. Tianna lsis ArataWentworlh; Case No. 20M-05512)

I on the interested parties in this action by placing a true copy thereof enclosed in a sealed
envelope and addressed as follows:
10

11 PATRICK FISHER CURTIS BRIGGS

ATTORNEY AT LAW ATTORNEY AT LAW
12 1322 MORRO ST. 3330 GEARY BLVD., FL 3
sAN LUtS OB|SPO. CA 934014028 sAN FRANCTSCO. CA 94118-3391
13 EMAIL: fisherlawTS ahoo.com EMAIL: curtis@sevillebrigqs.com
80r FA.x..qt5421-1331
14

15 IXX I BY FACSIMILE TRANSMISSION: By use of

facsimile telephone number
805.781.1311, I caused such document(s) to be transmitted to the addressee(s) facsimile
16 number noted below. The facsimile machine I used complies with Rule 1003(3) and the
transmission was reported as complete without error. Pursuant to California Rules of Court,
17 rule 2005(i), I caused the machine to print a transmission record of the facsimile transmission,
a copy of which is attached to this declaration.
18

19
IXX I BY EMAIL TRANSMISSION: By use of San Luis Obispo County issued email, I
caused such document(s) to be transmitted to the addressee(s) email account noted above.
The County issued computer used complies with Rule 2.251 and the transmission was
20 reported as complete without error.

21 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on October'14, 2020, at San
22 Luis Obispo, California.

23 ( L lLe' t.t

Alyssa Muckey, Legal Clerk

24

25

26

27

28
Page 22

PROOF OF SERVICE