880 F.2d 1049 (9th Cir. 1989), 88-5822, McSherry v. Block

Docket Nº:88-5822.
Citation:880 F.2d 1049
Party Name:Leonard James McSHERRY, Petitioner-Appellant, v. Sherman BLOCK, Sheriff, et al., Respondents-Appellees.
Case Date:July 21, 1989
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1049

880 F.2d 1049 (9th Cir. 1989)

Leonard James McSHERRY, Petitioner-Appellant,


Sherman BLOCK, Sheriff, et al., Respondents-Appellees.

No. 88-5822.

United States Court of Appeals, Ninth Circuit

July 21, 1989

Argued and Submitted Jan. 10, 1989.

Page 1050

John H. Scott, Los Angeles, Cal., for petitioner-appellant.

John A. Vander Lans, Long Beach City Prosecutor, Robert R. Recknagel, Asst. City Prosecutor, Gerry L. Ensley, Long Beach, Cal., for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before WALLACE, CANBY and TROTT, Circuit Judges.

TROTT, Circuit Judge:

In a habeas corpus petition, Leonard James McSherry challenges his conviction in state court for violations of California's loitering statute. He argues that because the statute is ambiguous and had not been clarified at the time of the conduct for which he was convicted, his conviction under that statute violated due process and must be set aside. McSherry also contends

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that the jury was improperly instructed on the standard of proof required to show an intent to loiter. We disagree with both contentions and affirm the dismissal of his petition.



On August 4, 1986, appellant was convicted of five counts of loitering about schools in violation of California Penal Code Sec. 653g. That statute provides in pertinent part:

Every person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or comes upon such school or place within 72 hours, after being asked to leave ... is a vagrant.

The evidence at trial consisted of highly incriminatory observations of the appellant at five different schools, other relevant observations of his behavior, and his prior convictions for kidnapping a minor and lewd conduct with a girl under the age of eighteen. However, it was undisputed that appellant was never asked to leave any of the premises in connection with which his conviction was based.

On August 20, 1986, McSherry filed a petition for habeas corpus in the Superior Court of Los Angeles County attacking the judgment of conviction on the ground that section 653g requires as an element of its corpus delicti that even a loiterer with criminal intent must have been asked to leave the school premises. That petition was denied. Petitions for writs of habeas corpus were subsequently denied by the California Court of Appeal and the California Supreme Court on September 16, 1986, and October 16, 1986, respectively.

Appellant's conviction was affirmed on direct appeal by the Appellate Department of the Los Angeles County Superior Court in an opinion filed June 10, 1987. The Appellate Department held, inter alia, that although the penal statute under which appellant was convicted was ambiguous, it could be interpreted to prohibit appellant's conduct. In rejecting appellant's proposed interpretation of the statute as the sole basis upon which a conviction could be based, the Appellate Department determined that section 653g, as amended in 1979, separately covered both those who lingered with intent to commit crimes and vagrants who remain or re-enter school grounds after being asked to leave. This was the first occasion at the appellate level on which the statute which we consider was so construed.

Appellant thereafter and on the same ground sought relief in mandate or habeas corpus from the California Court of Appeal. That petition was summarily denied on August 4, 1987. A petition for review to the California Supreme Court was granted on October 22, 1987, and the matter was returned to the Court of Appeal without opinion or directions. However, the Court of Appeal again summarily denied the petition on November 4, 1987. Appellant's second petition for review in the California Supreme Court was summarily denied on November 12, 1987.

On November 13, 1987, appellant filed a petition for federal habeas corpus in the United States District Court for the Central District of California. On February 4, 1988, the magistrate filed his findings and recommendations. He concluded that the jury instruction on the standard of proof required to show an intent to loiter did not deny appellant a fair trial, and that although California Penal Code Sec. 653g was ambiguous, since the Appellate Department of the Superior Court had interpreted that statute to apply to appellant's conduct, the federal courts must defer to that interpretation. On February 18, 1988, the magistrate's findings, recommendations, and conclusions were adopted in full by the district court, and appellant's petition was denied. He timely appeals.



We review the district court's denial of a petition for habeas corpus de novo.

Page 1052

Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985).



A. Due Process Vagueness

Up until the time appellant's conviction was affirmed on direct appeal, the California courts never had occasion to construe section 653g, as amended in 1979. In affirming appellant's conviction, however, the Appellate Department of the Los Angeles County Superior Court held that section 653g had a dual purpose: (1) to protect school children from the loiterer; and (2) to add to those punishable as vagrants, those who remain or reenter school grounds after being asked to leave. Appellant argues that the statute is ambiguous and that the state court's clarifying interpretation, rendered subsequent to his conduct, amounted to the imposition of punishment without prior fair notice. We find, however, that the very ambiguity that exists in this statute is, in part, what saves appellant's conviction.

It is, of course, a basic tenet of our jurisprudence that "criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law." Jordan v. DeGeorge, 341 U.S. 223, 230, 71 S.Ct. 703, 707, 95 L.Ed. 886 (1951) (citations omitted). This principle is usually applied to situations in which the language in a statute is so vague that it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. See Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983); Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. 1242, 1246-47, 39 L.Ed.2d 605 (1974); Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162-63, 92 S.Ct. 839, 843-44, 31 L.Ed.2d 110 (1972); United States v. Harriss, 347 U.S. 612, 617-18, 74 S.Ct. 808, 811-12, 98 L.Ed. 989 (1954); Connally v. General Construction Co., 269 U.S. 385, 392-93, 46 S.Ct. 126, 128, 70 L.Ed. 322 (1926). 1

We agree with appellant that, prior to the affirmance of his conviction by the Appellate Department, the statute on its face was vague and ambiguous with respect to whether loitering about school grounds, in the absence of a request to leave, was criminal. That facial ambiguity, however, was expressly and unequivocally removed when the Appellate Department held, relying in part on common sense, as well as the legislative and judicial history of the school loitering statute, that the request to leave language applies only to the vagrancy and not to the loitering provision of the statute. We are bound by that state court's construction of its own penal statute. 2 See Missouri v. Hunter, 459 U.S.

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359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983); Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975); O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 744, 38 L.Ed.2d 702 (1974); Wainwright v. Stone, 414 U.S. 21, 22-23, 94 S.Ct. 190, 192-93, 38 L.Ed.2d 179 (1973); Garner v. Louisiana, 368 U.S. 157, 166, 82 S.Ct. 248, 253, 7 L.Ed.2d 207 (1961). See also Gentry v. MacDougall, 685 F.2d 322, 323 (9th Cir.1982); Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982); Tyree v. White, 796 F.2d 390, 392 (11th Cir.1986); Lovely v. Cunningham, 796 F.2d 1, 5 n. 4 (1st Cir.1986); Welton v. Nix, 719 F.2d 969, 970 (8th Cir.1983); Knutson v. Brewer, 619 F.2d 747, 751 (8th Cir.1980); Royal v. Superior Court, 531 F.2d 1084, 1088 n. 14 (1st Cir.), cert. denied, 429 U.S. 867, 97 S.Ct. 178, 50 L.Ed.2d 147 (1976); United States ex rel. Horelick v. Criminal Court of the City of N.Y., 507 F.2d 37, 42 (2d Cir.1974); Schaefer v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 277, 30 L.Ed.2d 251 (1971). 3

While the interpretive gloss on the statute may bind this court as a matter of statutory construction, we are not, however, similarly bound as to the constitutional effect of that construction. See Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. The principle issue in this case is "whether the [state] court's construction can be applied retroactively to [appellant] consistent with due process." Lovely v. Cunningham, 796 F.2d at 5 n. 4; see also Welton v. Nix, 719 F.2d at 970 ("Our task is only to decide whether the [state court's] interpretation of [its] own law is so unexpected, so outlandish, that no reasonable person could have expected it") (citing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)). Knutson v. Brewer, 619 F.2d at 751, articulates the crucial test: "We must decide only whether the construction actually given the statute was foreseeable". 4

That the statute at issue was imperfectly drafted and in need of syntactical surgery cannot be...

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