ELECTRONICALLY

PATRICK L. FISHER
FISHER LAW OFFICE FILED
1322 Morro Street 9/18/2020 8:51 AM
San Luis Obispo, CA 93401 W LII _

GDUH'I'
TEL: (805) 543—9156 II. . _

FAX: (805) 542-0464 -

;

CURTIS L. BRIGGS, SBN 284190

SEVILLE BRIGGS LLP
3330 GEARY BOULEVARD, 3RD FLOOR EAST
SAN FRANCISCO, CA 941 18
TEL: (415) 986—5591
FAX: (415) 723-7425
Attorneys for Defendant
TIANNA ARATA

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN LUIS OBISPO

PEOPLE OF THE STATE OF CALIFORNIA, Case No. 20M—055 12

Plainti‘, NOTICE 0F DEMURRER AND OF

DEFENDANT; SUPPORTING
vs. MEMORANDUM OF POINTS AND
AUTHORITIES
TIANNA ISIS ARATAWENTWORTH,
[California Penal Code § 1004]
Defendant.
Date: I b/zz/z°
Time: 8:30 gran
Dept: g
TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE DISTRICT ATTORNEY FOR
THE COUNTY OF SAN LUIS OBISPO:
2,6
PLEASE TAKE NOTICE that, on I Dz
iyig
4- for as soon thereafter as the matter may be
of the San Luis Obispo Superior Court, defendant Tianna Arata, pursuant to
heard in Department 3

California Penal Code §§ 1002-1005, will and hereby do demur to the criminal Complaint filed by California

District Attorney Dan Dow and all charges asserted on the following grounds:

1. The Demurrer should be sustained under Penal Code §§ 1004(4) and (5) because the Complaint and

the prosecution are legally barred under the First Amendment to the United States Constitution. The District

..
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DEMURRER TO CRIMINAL COMPLAINT

Case. No. 20M-05512
Attorney seeks to single out and hold criminally liable a single member amongst a group of hundreds of

Black Lives Matter protesters, absent any allegation or reasonable inference which can be drawn that would

remotely suggest that Ms. Arata was aware that she was doing anything wrong, or illegal. The First

Amendment bars the prosecution because imposing criminal liability would severely chill lawful assembly

and 'eedom of speech.

2. The Demurrer should be sustained under Penal Code §§ 1004(2) and (4) because the Complaint does

not state facts that constitute public offenses under the criminal statutes charged. Contrary to Penal Code §§

950 and 952, the Complaint fails to allege facts supporting each element of the charged offense, and fails to

provide sufcient notice so that Ms. Arata has a reasonable opportunity to present her defense.

a. With regard to the charges of False Imprisonment under Cal. Penal Code § 236, the

Complaint fails to allege sufciently identify how Ms. Arata can be held personally and individually liable

for the actions of hundreds of Black Lives Matter marchers, ultimately failing to advise Ms. Arata of the

charges against her so that she may have a reasonable opportunity to prepare and present her defense, and

not be taken by surprise by evidence o‘ered at his trial.

b. With regard to the charges of Obstruction of a Thoroughfare under Cal. Penal Code § 647C,

the Complaint fails to allege any facts to establish the elements of the crime charged. The Complaint does

not anywhere allege that Ms. Arata intended to do any wrongful act when she joined a Black Lives Matter

rally that ultimately obstructed the 'ee movement of trafc.

c. With regard to the charge of Unlawful Assembly, under Cal. Penal Code § 407, the

Complaint fails to allege any facts to establish that Ms. Arata willfully participated in an unlawful assembly,

and that Ms. Arata had any knowledge that the assembly was unlawil when she participated. Rather, the

District Attorney is rlly aware Ms. Arata’s efforts to promote non-violence by working with the police

ofcers who accompanied the rally, and by maintaining consistent communication with the Chief of Police,

Deanna Cantrell.

d. With regard to the charge of Disturbing the Peace under Cal. Penal Code § 415(2), the

Complaint fails to allege any facts to establish that Ms. Arata willfully caused loud or unreasonable noise
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that created any clear and present danger of immediate violence, or that was used for the purpose of

disrupting lawful activities, rather than as a means to communicate the Black Lives Matter message.

The demurrer should be sustained without leave to amend, because the charges contained in the

Complaint and the District Attomey’s prosecution are absolutely barred by the First Amendment and cannot

be cured by amendment, and the Complaint does not and cannot state facts that constitute public offenses

under the criminal statutes charged. This Demurrer is supported by the concurrently led Memorandum of

Points and Authorities an the papers and pleadings on le in this matter.

Dated: September L, 2020 r'

sp ctfully s ,

TRICK L. FISHER
CURTIS BRIGGS
Attorneys for Defendant
TIANNA ARATA

DEMURRER TO CRIMINAL COMPLAINT

Case. No. 20M-05512
 MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
In June of 2020, Americans across the country decided that it is no longer acceptable for police to

murder Black people in cold blood. They took to the streets to demonstrate against racism and police

violence. Most of these protests were non-violent and without incident. Tianna Arata was one of at least 300

of San Luis Obispo’s youth, to do the same.

Tianna was targeted by SLO Chief of Police, Deanna Cantrell because Tianna is an outspoken and

charismatic young Black woman. Chief Cantrell retaliated against Tianna to cover for Cantrell’s

incompetence and tried to turn Tianna into a felon, recommending a multitude of felony charges and

defending those recommendations in the media. The arrest and prosecution of Tianna is not even remotely

ethical. The police and prosecution narratives against Tianna are perjurious and exemplify why the San Luis

Obispo Police Chief cannot be trusted.

Tianna Arata stands charged with thirteen misdemeanor counts stemming from a Black Lives Matter

protest on July 21, 2020 wherein she and hundreds of college kids marched through the city of San Luis
Obispo to honor George Floyd’s memory and to protest recent comments made by San Luis Obispo County

Sheriff, Ian Parkinson, who stated among other things that he has never seen any indication that systemic

racism exists in San Luis Obispo County.

The Complaint alleges Ms. Arata is guilty of ve counts of False Imprisonment (Penal Code § 237);
six counts of Obstruction of a Thoroughfare (Penal Code § 647C); one count of unlawful assembly (Penal

Code § 408); and one count of Disturbing the Peace (Penal Code § 415(2)), based on a theory that the protest

impeded the ow of traic and created loud and unreasonable noise.

The District Attomey’s complaint is egregious and his theory of liability dees reason. The District

Attorney seeks to impose criminal liability on a single protestor simply because she is part of a movement
who exercises their First Amendment right to eedom of speech and lawful assembly.
II. BACKGROUND
a. Tianna Arata

20-year-old college student, Tianna Arata, is one of hundreds of community members living in San
Luis Obispo who have been protesting in solidarity of the Black Lives Matter movement over the last six

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months. Since the age of l4, Ms. Arata has been actively involved in social justice movements. Ms. Arata

is originally 'om Portland Oregon and rst found in her voice through local activism in Portland, before

moving to San Luis Obispo with her mother in 2016 to be closer to family. Ms. Arata nished high school at

Grizzly Youth Academy in San Luis Obispo and then enrolled at Cuesta Junior College in 2017 where she
ran track.

When Ms. Arata and her mother moved to San Luis Obispo, she experienced racism rst hand and

this fueled her passion to use her voice to stand up against systemic racism. In 2020, Ms. Arata, along with

hundreds of Black Lives Matter supporters, began participating in peaceful protests and rallies. The rallies

always emphasized non-violent and joyful protests. The organizers showed a level of care that is thoughtful

and impressive, including using medics and designating “peace keepers” who wear vests to provide a sense

of safety; make sure the group is safe in relationship to trafc, and who use de-escalation tactics with any

aggressive counter—protestors.

Notably, Ms. Arata developed a relationship with former Chief of Police, Deanna Cantrell, and she
would oen maintain contact with Chief Cantrell regarding planned rallies and protests. Ultimately, Ms.

Arata is one of numerous people who helped organize the protests; however, there is no formal leadership.

There is no preplanned route or any person giving directions about where the marchers will go. The primary

function of the organizers is to promote non-violent peaceful and joyful protests.

b. The July 21, 2020 Protest

On July 21, 2020, Ms. Arata was one of eight to ten people who helped organize a protest that began

in Mitchell Park to honor George Floyd’s memory and to protest recent comments made by San Luis Obispo

County Sheriff, Ian Parkinson. Notably, Ms. Arata established communication with San Luis Obispo Police

(SLOPD) Chief Deanna Cantrell prior to the event to ensure the protest was peaceful. As usual, promotional
materials for the march stressed non-violence, and posters distributed through social media described the

demonstration as joyful and non-violent.

Around 200 protesters left Mitchell Park in the evening before the march grew to as large as 300.

The march had no pre-determined route. Similar to the previous and successful Black Lives Matter protests,

peace keepers wearing pink vests were dispersed ahead of the crowd to help ensure the safety of the
marchers when it came to vehicle trafc. Naturally, as to be expected with any peaceil protest, the

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Case. No. 20M-055l2
hundreds of marchers impeded the ow of trafc, causing vehicles to yield to the marching pedestrians. 'Ihe

San Luis Obispo Police Department (SLOPD) had been notied regarding the protest and assigned units to

ensure the safety of the protesters and the public.

Around 7 p.m., many of the protesters moved 'om the downtown area onto the freeway, causing a

tra'lc blockade on Highway 101. Neither Ms. Arata, nor anyone led the protestors on to the freeway; rather,

it was a spontaneous and impulsive decision of the group. SLOPD was present as protestors walked onto the

highway, yet they made no attempt. (verbal or otherwise) to dissuade the protestors from entering the

highway. In fact, protestors walked right by law enforcement as they sat near the Olive Street on and off

ramps. SLOPD even went as far as preventing vehicles from leaving the highway during the protest.
At one point, an extremely agitated motorist attempted to maneuver around the blockade before his
forward motion was stopped by protestors who were standing on the shoulder of the highway. It is not clear

why the driver of this vehicle aggressively entered the highway by driving down the onramp on the shoulder
of the roadway, despite seeing that the onramp to the highway was blocked by vehicles.
The man claimed that his mother was in the hospital, but, traveling southbound on the 101 at Olive

Street, he did not seem to be traveling in the direction of one of San Luis Obispo hospital. Nonetheless, one
of the protest’s “Peacekeepers” approached this man and was met with great hostility. The Peacekeeper told
the man she would ask the protestors to move out of his way. She turned to walk toward the protestors, but,

before she could make contact with them, the man accelerated and struck a protestor with his vehicle. The

protester was struck with such force that he was launched up onto the hood of the vehicle and later received

medical care for tissue injuries. The vehicle continued to drive with the protestor on the hood until
so

another protester hit the rear window of the vehicle with his skateboard in an attempt to get the driver to

stop, something that very well may have saved the protestor’s life as it caused the vehicle to stop and allow

the protestor to safely disembark 'om the vehicle’s hood. Once the protestor was off of the vehicle, the man
drove way. Notably, not one person has been arrested that was actually involved with this vehicle striking a

protestor. Further, Ms. Arata had absolutely nothing to do with this incident involving the vehicle that hit

the protestor. She was around sixty feet 'om this particular incident.

Another incident took place with a man named Kevin Seigel, who over a period of 50 minutes drove

his vehicle to protestors three dierent times. Protestors saw Mr. Seigel driving his vehicle around at

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DEMURRER TO CRIMINAL COMPLAINT
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different locations downtown while the protest was going on. It was almost as though he was looking for a

conict. Dun'ng the nal interaction, protestors stood in ont of Mr. Seigel’s vehicle to prevent it from

traveling through the intersection where protesters were walking when Mr. Seigel drove his vehicle into a

protestor, pushing the protester back. As Mr. Seigel did this, Ms. Arata was standing off to the ont right

side of the vehicle. As Mr. Seigel pushed the protester backward with his.vehicle, he also turned his vehicle
toward Ms. Arata. Ms. Arata then attempted to back away from the vehicle, but the vehicle continued to turn

more and more toward her while pushing the other protestor. Whether Ms. Arata actually made contact with

the vehicle with a ag pole she was holding is unclear. However, it is clear Mr. Seigel was posing a serious

threat to the safety of Tianna and the other protester and she would have certainly been justied had she

struck his vehicle under those circumstances.

Eventually, protesters returned to Mitchell Park where they continued their march until dispersing at
8 p.m. Around that time, SLOPD identied and arrested Arata on four felony counts of false imprisonment,
one felony count of conspiracy as well as three misdemeanor counts of resisting arrest, unlawful assembly
and participating in a riot. She was booked into the San Luis Obispo County Jail that night, but and was

released hours later around 1:00 a.m. on her own recognizance without bail due to COVID—19 precautions at

the jail.

c. The Complaint
The SLOPD recommended charges consistent with their arrest, and soon thereafter began reviewing

videos of the march and contacting any drivers whose egress was blocked temporarily, asking them if they
“felt 'ee to leave” so as to put together some basis for charges against Ms. Arata. The District Attorney’s

Ofce then waited till September 2, 2020, to le the charges herein. The Complaint (Exhibit A), alleges ve

cOunts ofFalse Imprisonment pursuant to Penal Code § 236 (Counts l, 5, 6, ll, l3); six counts of
Obstruction of a Thoroughfare pursuant to Penal Code § 647C (Counts 2, 4, 7, 8, 9, 10); one count of

Unlawil Assembly pursuant to Penal Code § 407 (Count 3); and one count of Disturbing the Peace pursuant
to Penal Code § 415(2) (Count 12). The complaint incorporates by reference the investigation and police

reports that were turned over on September 8, 2020, which counsel is informed and believes are consistent

with the background facts underlying this motion.

Ms. Arata is the only person facing charges based on the selective enforcement of these broad

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DEMURRER TO CRIMINAL COMPLAINT
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statutes that can perceivably be charged against any person who exercises their First Amendment
right to
freedom of speech and freedom of assembly by joining a peaceful protest march that impedes the ow of
traffic and generates loud noise.

Ultimately, the District Attorney’s Complaint should be dismissed immediately. The charges
asserted amount to a brazen effort to intimidate or shut down the Black Lives Matter movement in San Luis

Obispo by using all the criminal sanctions at the District Attomey’s disposal, despite that he has no

constitutional authority whatsoever to do So.

III. ARGUMENT

A. Standards for a Demurrer Under Penal Code § 1004.

Penal Code § 1004 authorizes a defendant to demur to an accusatory pleading that (1) fails to

“substantially conform” to the provisions of Sections 950 and 952, which govern the form and content of

accusatory pleadings, (2) alleges facts that “do not constitute a public offense,” or (3) “contains matter

which, if true, would constitute a legal justication or excuse of the offense charged, or other legal bar to the

prosecution.” (Id. §§ 1004(2), (4), (5).) A demurrer “tests only those defects appearing on the face of [the

accusatory] pleading,” and is appropriate when it “raises an issue of law as to the sufficiency of the ...

pleading.” (People v. Osorio (2015) 235 Cal. App. 4th 1408, 1412, quoting People v. Manedi (2008) 169

Cal. App. 4th 622, 626.) “[F]or purposes of demurrer .. . matters which may be judicially noticed may be

said to appear constructively on the face of the pleading.” (People v. Talbert (1986) 176 Cal. App. 3d 685,

689.)

A demurrer is appropriate to dismiss charges that are unconstitutional or preempted. (See Williams v.

Superior Court (2003) 111 Cal. App. 4th Supp. 1, 6 [“A demurrer’s purpose under section 1004 is dismissal

of a pleading which lacks adequate notice of the public offense charged or charges one that is

unconstitutional so as to generate a legally sufcient accusation.” ], disagreed with on other grounds, Osman

v. Appellate Div. ofSuperiorCourt (2005) 134 Cal. App. 4th 32.) Indeed, the California Supreme Court has

oen sustained demurrers dismissing criminal charges that violate the First Amendment. (See, e.g., People v.

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Case. No. 20M-05512
Superior Court (1989) 49 Cal. 3d l4, 27 [sustaining superior court demurrer to charges against theatre for

unlawfully displaying adult lms based on standard that violated the First Amendment]; Dulaney v.

Municipal Court(1974) ll Cal. 3d 77, 89 [sustaining demurrer and entering writ of prohibition prohibiting

prosecution under municipal ordinance precluding posting of signs on utility poles as violating the First

Amendment]; Witney v. Municipal Court (1962) 58 Cal. 2d 907, 910-11 [sustaining demurrer to

prosecution under municipal obscenity ordinance preempted by state law]; see also Mandel v. Municipal

Court (1969) 276 Cal. App. 2d 649, 673-74 [reversing trial court decision refusing to grant demurrer and

holding that prosecution of defendant under vagrancy ordinance for distributing anti-dra leaets on high

school campuses violated First Amendment]. As the case law demonstrates, when the State seeks to

prosecute criminal charges that violate the Constitution or as to which the State has no authority, a Section

1004 demurrer is the proper remedy to dismiss the charges and stop the prosecution at the outset.

B. The Complaint and Prosecution Are Legally Barred By the First Amendment.

“. ..
[A] mction of ee speech under our system of government is to invite dispute. It may indeed

best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as

they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at

prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

(Terminiello v. Chicago, 337 U.S. 1, 4 (1949).)

“The government has no valid interest in restricting or prohibiting speech or speech-related activity

simply in order to avert the sort of disturbance, argument or unrest which is inevitably generated by the

expression of ideas which are controversial and invite dispute. The danger justifying restriction or

prohibition must be one which 'rises far above public inconvenience, annoyance, or unrest.” (Los Angeles

Teachers Union, etc. v. Los Angeles City Board ofEducation, 71 Cal. 2d 55 1, 558 (1969), quoting

Terminiello, 337 U.S. 1, 4 (1949).) It should be noted that the First Amendment concerns in this case are

particularly acute, where the state has commenced a criminal prosecution. (Aschroft v. ACLU, 542 U.S. 656,

660 (2004) [speech restrictions “enforced by severe criminal penalties, have the constant potential to be a

repressive force in the lives and thoughts of a 'ee people].)

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 The District Attomey’s theory of prosecution violates basic principles of First Amendment the

United States Constitution. The District Attorney’s theory, which can reasonably inferred om the

Complaint and police reports incorporated by reference, is that the State may prosecute an individual who is

involved in a Black Lives Matter march, simply because that march attracts a large number of supporter who

naturally impede the ow of trafc and create loud noise, if it turns out that that an aggressive driver reises
to yield to the marchers and recklessly drives through the crowd.

Supreme Court precedent expressly rejects such a theory of unknowing criminal liability, given the

chilling effect it would have on ‘ee speech. Although the government may utilize criminal statutes to limit

the time, place, duration or manner of the streets for public assemblies, such as a Black Lives Matter march,

their enforcement must be "exercised with 'uniformity of method of treatment upon the facts of each

application, ‘ee from improper or inappropriate considerations and from unfair discrimination' . . . [and

with] a 'systematic, consistent and just order of treatment, with reference to the convenience of public use of

the highways . . . ."' (Cox v. La., 379 U.S, 536, 558 (1965).) It is clearly unconstitutional to enable a public

ofcial to determine which expressions of view will be permitted and which will not or to engage in

invidious discrimination among persons or groups by selective enforcement of an extremely broad

prohibitory statute. (Cox v. La., supra, at 558-559.)

Here, the District Attorney is engaging in invidious discrimination by singling out one 20-year-old

black woman, who marched amongst sea of protesters, and selectively enforcing four broad misdemeanor

statutes that could have been charged against any protester engaged in any peaceful march in San Luis

Obispo over the last century. The defense does not challenge the constitutionality of the statutes; rather, the

defense challenges their unconstitutional selective enforcement in this case.

As to the charges of False Imprisonment under Penal Code § 236, which herein lists as victims Jon

Doe drivers of vehicles in certain locations, this can hypothetically be charged against any person who was

ever involved in a rally or protest that temporarily impeded the ow of trafc. To utilize a statute designed

to prevent people om holding a person hostage and apply it to a Black Lives Matter protestor who

participates in a rally is an egregious abuse of prosecutorial discretion aimed at chilling free speech.
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Case. No. 20M-05512
Similarly, the charge of Obstruction of a Thoroughfare under Penal Code § 647C, serves a role to prevent the

malicious obstruction of free movement under certain circumstances. However, here it is being used

selectively to silence a movement simply because the marchers temporarily prevented vehicles from driving

into the marchers and injuring them as they exercised their First Amendment Rights.

For example, in Brown v. Cal. DOT (ND. Cal. 2003) 260 F. Supp. 2d 959, 962 the Court held that

Sigis, banners, and United States ags each constitute an encroachment when placed on a highway overpass.

Here, SLOPD and CALTRANS have a history of allowing pro-law enforcement and pro-District Attorney

demonstrators to display signs on the highway overpasses in San Luis Obispo, yet Ms. Arata is now being

prosecuted because she encroached on the highway when she engaged in a march to demonstrate against

racism and police violence. This is a glaring example of viewpoint discrimination in violation of Ms.

Arata’s First Amendment right.

Finally, as to the charges of Unlawful Assembly and disturbing the peace, the United States Supreme

Court in Cox v. La., 379 U.S. 536, 558 (1965) addressed a strikingly similar situation wherein 2,000 black

college students marched through the predominantly white business district to the state capitol building in

the City of Baton Rouge. (Cox at 549-550.) The protestors congregated across the street om the

courthouse, singing songs with lines such as “black and white together” and were urged to descend upon

lunch counters and sit there until they were served. (Id.) The state charged and convicted Cox, a leader of a

civil rights demonstration, with three counts including breaching the peace and obstructing a public passage,

essentially the same charges Ms. Arata faces here. (See Cox, at 544—5 54.)

In reversing the breach of the peace convictions, the Supreme Court held: "a function of 'ee speech

under our system of government is to invite dispute. It may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to

anger. Speech is oen provocative and challenging. It may strike at prejudices and preconceptions and have

profound unsettling effects as it presses for acceptance of an idea. That is why eedom of speech . . . is . . .

protected against censorship or punishment . . . . There is no room under our Constitution for a more

restrictive View.” (Cox, at 551-552.)

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 Moreover, in reversing the conviction for obstructing a public passage, the Court held that although

the statute was constitutional on its face, the way it was applied by the authorities to Cox and the protestors

was unconstitutional because it allowed “unfettered discretion in local ofcials in the regulation of the use of

the streets for peaceful parades and meetings.” (Cox, at 553-557, quoting pg. 558.)

Here, the prosecution has engaged in this unconstitutional unfettered discretion by singling out and

charging Ms. Arata under broad criminal statutes. The severity of the charges and the aggressiveness with

which the District Attorney has sought to demonize and punish Ms. Arata on baseless charges illustrates why

this Court should promptly dismiss this prosecution.

C. The Complaint Fails To Sufciently Allege a Public Offense.

Even setting aside that the District Attorney’s prosecution is legally barred under the First

Amendment, the Court should grant the demurrer because the Complaint fails to conform with Penal Code

§§ 950 and 952, by failing to allege any public offense. Indeed, the District Attorney has failed to allege

essential elements of these particular charges in light of the fact that they are singling out and attempting to

attach criminal liability to one protestor amongst hundreds, thus they have failed to provide proper notice to

Ms. Arata so that she can reasonably prepare and defend against the charges.

As noted, the District Attorney’s theory is that the state can prosecute one participant of a Black

Lives Matter march, based on allegations that the hundreds of people who marched in support of the

movement impeded the ow of traic and cause loud noise, regardless of whether the defendant knew of or

participated in any unlawil activity.

1. The False Imprisonment Allegations Are Decient.

With regard to the charges of False Imprisonment under Cal. Penal Code § 236, the

Complaint fails to allege sufcient facts necessary to attach any criminal liability to Ms. Arata in light of the

fact that she was one amongst hundreds of protestors whose marching impeded traffic, thus the complaint

fails to advise Ms. Arata of the charges against her in order that she may have a reasonable opportunity to

prepare and present her defense and not be taken by surprise by evidence offered at his trial. (See Penal

Code § 952.) Due process of law requires that an accused be advised of the charges against him in order that
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Case. No. 20M-05512
he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by

evidence offered at his trial. (Mandel v. Municipal Courtfor Oakland-Piedmont Judicial Dist. (1969) 276

Cal. App. 2d 649, 672.)

Here, as to the charges of False Imprisonment under Penal Code § 236 (Counts 1, 5, 6, 11, 13), the

Complaint states that Ms. Arata “did unlawfully violate the personal liberty of” and then for each count the

Complaint lists a John Doe driver, describes the vehicle, and describes the intersection of the alleged

incident. However, the Complaint fails to allege in any way how Ms. Arata controlled the actions of the

marchers in the protest. The Complaint does not provide any explanation of how the prosecution intends to

prove, which they cannot, that Ms. Arata is responsible for the actions of the hundreds of marchers in the

protest. This is not the typical case in which a bare bones complaint provides sufcient notice. Without

nther clarication, Ms. Arata precluded om understanding the charges so that she may have a reasonable

opportunity to defend against the charges.

2. The Obstruction of a Thoroughfare Charges Are Not Sufciently Pled.

With regard to the charges of Obstruction of a Thoroughfare under Cal. Penal Code § 647e, the

Complaint fails to allege any facts to establish the necessary elements of the crime charged. An accusatory

pleading is sufcient if it charges defendant with commission of public offense in words sufcient to give

him notice of offense of which he is accused, and only essential elements of offense need be charged.

(People v. Randazzo (Cal. Apr. 30, 1957) 48 Cal. 2d 484.)

A charge of Penal Code § 647c requires malice. "The words 'malice' and 'maliciously' mean a wish

to vex, annoy or injure another person, or an intent to do a wrongful act. (People v. Man (1974) 39 Cal. App.

3d Supp. 1, 4 [concurring opinion of Justice Marshall].)

Although the Complaint uses the word malice, it fails to allege anywhere how Ms. Arata intended to

do any wrongful act when she joined a Black Lives Matter rally that ultimately obstructed the free movement

of trafc. Given this charge is in regard to a protest involving hundreds of marchers and the District Attorney

seeks to attach criminal liability to Ms. Arata alone, the Complaint is insufcient in that it fails to plead any

facts or information supporting a theory that Ms. Arata acted maliciously at any time, and how her specic
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Case. No. 20M-05512
actions could have somehow obstructed a thoroughfare. A theory that Ms. Arata, as one woman, could
obstruct a thoroughfare dees reason. Is Ms. Arata expected to defend against the actions of the entire group

of marchers? Ultimately, this novel case requires more than a bare minimum complaint om the District

Attorney, and merely incorporating police reports by reference, does not cure this decient complaint.

3. The Unlawful Assembly Charge is Likewise Insufcient.

With regard to the charge of Unlawrl Assembly, under Cal. Penal Code § 407, the Complaint fails

to allege any facts to establish that Ms. Arata willfully participated in and an unlawful assembly, and that

Ms. Arata had any knowledge that the assembly was unlawful when she participated. Under CALCRIM

2586 (Unlawful Assembly), “When two or more people assemble to do a lawil act in a violent manner, the

assembly is not unlawful unless violence actually occurs or there is a clear and present danger that violence

will occur immediately.”

This language sounds broad and would appear to give the authorities wide discretion to arrest

protesters and peaceful but loud gatherers by deeming it an “unlawful assembly.” To curb this authority and

comply with the First Amendment freedom of assembly protections, the California Supreme Court narrowly

construes the law to prohibit only “assemblies which are violent or which pose a clear and present danger of

imminent violence.” (In re Brown (1973) 9 Cal.3d 612, 623.) Specically, the court has said: “Although the

public may fear a large, noisy assembly, particularly an assembly that espouses an unpopular idea, such an

apprehension does not warrant restraints on the right to assemble unless the apprehension is justiable and

reasonable and the assembly poses a threat of violence.” (Id.)

First, Ms. Arata was not the sole leader of hundreds of marchers here, nor was she in control of the

group. Second, even assuming arguendo that she was, the District Attorney is fully aware of Ms. Arata’s

efforts to work with the police oicers who were assigned to accompany the rally, and to maintain

communication with the Chief of Police, Deanna Cantrell. What more can a college student do other than

ask permission om the Chief of Police to engage in a protest, promote peaceil non-violent protests, and

help organize a rally where peacekeepers are assigned to ensure that the marchers are safe in regard to

vehicle trafc?
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DEMURRER TO CRIMINAL COMPLAINT
Case. No. 20M-05512
 The District Attorney must plead facts sufcient to show Ms. Arata committed a public offense.

Given the nature of this case, the prosecution failed to sufciently allege how Ms. Arata engaged in any act

that posed a threat of violence, especially considering she is not charged for any specic incident that

involved any violence.

4. The Disturbing the Peace Charge Fails to Plead Essential Elements.

With regard to the charge of Disturbing the Peace under Cal. Penal Code § 415(2), the Complaint

fails to allege any facts to establish that Ms. Arata willfully caused loud or unreasonable noise that created

any clear and present danger of immediate violence, or that was used for the purpose of disrupting lawful

activities, rather than as a means to communicate the Black Lives Matter message.

Information is sufcient if it charges defendant with commission of public offense in words

suicient to give him notice of offense of which he is accused and where only the essential elements of

offense need be charged. (See People v. Randazzo (1957), 48 Cal. 2d 484, 489.) In other words, the essential

elements of offense must be charged. (People v. Atwood (1963) 223 Cal. App. 2d 3 16, 322.) Here, the

Complaint alleges Ms. Arata “did willfully, unlawfully, and maliciously disturb the peace of another person

by loud and unreasonable noise in violation of subsection (2).”

California law under CALCRIM 2689 (Disturbing the Peace), requires, “In order to disturb another

person by causing loud and unreasonable noise, there must be either: 1. A clear and present danger of
immediate violence; OR 2. The noise must be used for the purpose of disrupting lawful activities, rather than

as a means to communicate.”

The Complaint fails to allege the essential elements of the o'ense of disturbing the peace in that it

fails to allege that Ms. Arata caused any loud or unreasonable noise that created a clear and present danger of

immediate violence, or that was used for the purposes of disrupting lawful activities, RATHER than as a
means to communicate the Black Lives Matter message. Simply referencing the statute, does not provide

sufcient notice here. Ultimately, the disturbing the peace charge fails to state the essential element of the

offense which stemmed om a Black Lives Matter protest wherein Ms. Arata was part of hundreds of

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DEMURRER TO CRIMINAL COMPLAINT
Case. No. 20M-055 12
protestors who exercised their First Amendment rights to freedom of speech to rally against the systemic

racism in our county.

IV. CONCLUSION

The District Attorney’s prosecution tramples First Amendment rights and is atly barred by the

United State Constitution. Moreover, the Complaint fails to allege any public offense in light of the fact that

Ms. Arata is being singled out and held criminally liable for the corollary effects of a Black Lives Matter

protest on the ow of vehicle traic. Defendants' demurrer should be granted without leave to amend, and

this proceeding should be swily terminated.

Dated: September L, 2020

PATRICK L. FISHER
CURTIS BRIGGS
Attorneys for Defendant
TIANNA ARATA

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DEMURRER TO CRIMINAL COMPLAINT
Case. N0. 20M-05512
 Case Name: People of the State of California vs. Tiannas Isis Aratawentworth
Case Number: 20M-055 12

PROOF OF SERVICE
[CCP 10011]
I declare that:

I am employed in the County of San Luis Obispo, California. I am over the age of 18
years and not a party to the within cause; my business address is 1322 Morro Street, San Luis
Obispo, California 93401.

On 9/ 1 7/20 , I served the Notice of Demurrer and of defendant:

supporting memorandum of points and authorities on the interested parties in said cause,
addressed as follows:

County of San Luis Obispo District

Attorney
10 1035 Palm Street
San Luis Obispo, CA. 93408
11

12 The following is the procedure in which service of this document was effected:

13
[X] By Mail [CCP §1013a], as follows:
I am readily familiar with the rm’s practice of collection and processing correspondence
14 for mailing. Under practice, it would be sealed and deposited with the U.S. Postal
Service for mailing on that same day with postage thereon fully prepaid at San Luis
15
Obispo, California, in the ordinary course of business. I am aware that on motion of the
party served, service shall be presumed invalid if the postage cancellation date or postage
16 meter date on the envelope is more than one day after the date of deposit for mailing
contained in the aidavit.
17

[ ] By Electronic Service - Email, as follows:

l8 I caused a true copy of the foregoing document(s) to be transmitted by email to each of
the parties designated herein and as last given by that person on any document which he
19
or she has led in this action and served upon this ofce.

20
I declare, under penalty of perjury, that the foregoing is true and correct, and that this
declaration was executed on 9/1 7/20 , at San Luis Obispo, California.
21

22

23 '
VCarol Odee
24
PROOF OF SERVICE