Christopher S., In re
| Decision Date | 15 May 1978 |
| Citation | 80 Cal.App.3d 903,146 Cal.Rptr. 247 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re CHRISTOPHER S., a person coming under the Juvenile Court Law. PEOPLE of the State of California, Plaintiff and Respondent, v. CHRISTOPHER S., Defendant and Appellant. Civ. 41935. |
Frank W. Dice, Public Defender, Cary B. Weiss, Deputy Public Defender, Salinas, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Linda Ludlow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
Appellant, a 16-year-old juvenile at the time of the commission of the alleged offense, has appealed (Welf. & Inst.Code, § 800), from an order assuming jurisdiction and declaring him to be a person described in section 602 of the Welfare and Institutions Code. It was charged and found that he violated the provisions of section 653g of the Penal Code in that he did wilfully and unlawfully loiter about a school or place Pacific Grove High School which is a place which children attend or normally congregate. He was placed on 6 months probation and required to do 12 hours in a community work program. He contends, that there was insufficient evidence to sustain the petition under the provisions of section 653g of the Penal Code, because there was no substantial evidence that he intended to violate any law or engage in any illegal conduct, and, particularly, that there was no evidence to show that he committed any criminal trespass.
On examination of the record we conclude that the evidence was insufficient to sustain his conviction under the provisions of section 653g, that if he did commit a technical criminal trespass it was not within the scope of the provisions of section 653g as interpreted by the courts, and that in any event it is not every act of trespass or disobedience which will furnish the scienter necessary for a criminal trespass or the scienter under section 763g. The order and finding of the juvenile court must be reversed.
Appellant had been transferred from Pacific Grove High School to Community Center High School in October 1976. The former school maintained a library in a separate building which was open from about 8 a. m. to 4:30 p. m. for students who were sent there from classes, or who came with their class and teacher, or students who had unassigned periods. Persons who were not students or employees of the school district were not allowed to use the library, except as special permission might be granted. Students at Community High School were permitted to use the facility if arrangements for such use were made between the principals of the two schools. No such permission had been sought by or granted to appellant. Under regular school procedure, visitors were expected to check in at the main office of the school.
No permission had been granted appellant to come on the campus of Pacific Grove High School after his transfer. Appellant admitted, and the testimony of the principal of the high school indicated, that appellant had been informed several times orally and once by letter not to come on the campus of Pacific Grove High School unless he checked in at the office. He had been so told in January by the principal. On February 7 he was sent a letter by the dean of students, so advising him, and on February 19 the principal again spoke to him because his presence on the school ground the previous school day had been without permission.
On March 23, 1977, the teacher assigned to the library at Pacific Grove High School observed appellant, who he knew was not a student at that school at the time, talking with some of his friends at a table in the library. He went to the phone to call the office. Meanwhile, a library assistant observed appellant, whom she had known two or three years, sitting in the reading area with about three other students. At the time she did not know whether or not he was a student of that school. She testified that nothing especially attracted her attention to appellant, but she recalled going over to the table and saying hello to him. She could not remember whether she went over because some of the others were noisy, but she testified that appellant at no time caused any disturbance in the library although he was not reading or anything like that. Appellant acknowledged that the library was for studying that most people study there, and that he was talking with his friends, but he added that almost everyone there was talking. Although the assistant did not actually see him leave, she stated that he remained in the library about 15 minutes.
Appellant acknowledged that he was not attending Pacific Grove High School; that he had been told to stay off the campus unless he checked in as a visitor; and that he was not using the library in connection with his school work. He explained that he went to the school that day because he had not been there for a while, and he wanted to see his girl friend after school when she got out of class. While he was waiting he went into the library and talked to a couple of friends who were students at the school. He was at the school about an hour around 2 p. m., but on that day no one ever requested him to leave or told him he should not be on the campus. When he left the library he went to the bathroom and left the campus by the front of the school. There he was cited by a police officer for the offense which led to these proceedings. He testified he was not on the school grounds for any illegal purpose, but admitted that he really had no lawful purpose for being in the library.
Penal Code section 653g reads as follows:
The first paragraph incorporates provisions formerly found in subdivision (2) of section 647a of the Penal Code. Since In re Huddleson (1964) 229 Cal.App.2d 618, 40 Cal.Rptr. 581, the language has been interpreted in the sense that "the word 'loiter' was intended to proscribe lingering about schools and public places for the purpose or with the intent of effectuating some criminal act."
The second paragraph was added in 1970. In People v. Hirst, supra, the court stated: "We have undertaken to decide whether the 1970 amendment of the section has resulted in a definition of the word 'loiter' that eliminates from its use any sinister connotation of an intent to commit another crime, and yet permits the imposition of a penal sanction to such loitering upon school grounds." (31 Cal.App.3d at p. 78, 106 Cal.Rptr. at p. 817.) After reviewing the former construction, and the legislative purpose, 1 the court concluded that the reference to "without a lawful purpose" did not change the construction of the statute. It concluded generally, "The statute as amended is constitutional and its constitutionality is based upon the same meaning of the word 'loiter' given to its use in the preceding statute by those decisions that held such former statute to be constitutional." (Id., p. 82, 106 Cal.Rptr. at p. 819.) More specifically, it reversed the convictions, stating: "The evidence in this case shows that all defendants were upon the school ground for the purpose of distributing literature, and in the case of Hirst, also to talk to a student, neither of which is itself for an unlawful purpose; since the statute under which they were prosecuted does not penalize their presence unless it was for an unlawful purpose, the judgments are reversed." (Id., pp. 85-86, 106 Cal.Rptr. p. 822.)
In People v. Frazier, supra, the court approved an instruction that loitering " 'is defined to mean lingering, waiting and delaying . . . of such a nature that from the totality of the defendant's action and in the light of the prevailing circumstances, it may be reasonably concluded that it is being engaged in for the purpose of committing a crime as opportunity may be discovered" as correctly setting forth the principles enunciated in Huddleson (11 Cal.App.3d at pp. 182-183, 90 Cal.Rptr. at p. 64.) In examining the evidence against three defendants convicted of violation of section 653g because they were "loitering" at hot dog stands adjacent to a school, the court distinguished between two defendants, with respect to whom the circumstances supported a finding that they were engaging or about to engage in criminal conduct, and a third, with respect to whom there was no such evidence. Apparently the latter's sole offense at the time of his arrest was a failure to leave when instructed to do so. In reversing his conviction the court stated, (Id., p. 184, 90 Cal.Rptr. p. 65.)
The trial court was of the opinion that appellant's trespass on the school property, prior to his arrest outside the school,...
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