Eichorn, In re

• Decision Date: 30 December 1998
• Docket Number: No. G022777,G022777
• Citation: 69 Cal.App.4th 382,81 Cal.Rptr.2d 535
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Daily Journal D.A.R. 659 In re James Warner EICHORN on Habeas Corpus.

Page 535

81 Cal.Rptr.2d 535

69 Cal.App.4th 382, 99 Daily Journal D.A.R. 659

In re James Warner EICHORN on Habeas Corpus.

No. G022777.

Court of Appeal, Fourth District, Division 3, California.

Dec. 30, 1998.

[69 Cal.App.4th 384] O'Melveny & Myers, Phillip R. Kaplan, Brett J. Williamson, Todd A. Green, Newport Beach, and Robert G. Loewy, Los Angeles, for Petitioner.

Michael R. Capizzi, District Attorney, Scott G. Scoville, Deputy District Attorney, for Respondent.

OPINION

CROSBY, J.

James Eichorn was convicted of a misdemeanor violation of a City of Santa Ana ordinance banning sleeping in designated public areas. The appellate department affirmed his conviction and denied his request to transfer the cause. Eichorn thereafter petitioned for writ of habeas corpus in this court. We conclude his conviction must be set aside.

I

James Eichorn was cited for violation of the city's anti-camping ordinance (Santa Ana Mun.Code, ch. 10, art. VIII, § 10-402) on the evening of January 25, 1993. ¹ Following a detour to the Supreme Court that established the ordinance was facially constitutional (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 40 Cal.Rptr.2d 402, 892 P.2d 1145), Eichorn's case eventually went to trial.

In a significant pretrial ruling, the court (Judge Brooks) determined Eichorn could not present a necessity defense (see CALJIC No. 4.43) to a jury. Eichorn had offered to prove that on the night of the violation every shelter bed within the city that was available to a homeless single man with no children was occupied, and that he was involuntarily homeless, i.e., he had done everything he could to alleviate his condition. Due to circumstances beyond his control, defendant, a 14-year resident of Santa Ana, had been unable to find work as a manual laborer that paid enough to allow him to find an alternative place to sleep.

The court determined defendant had not made a sufficient showing to allow a jury to consider his necessity defense: "It appears that the defense of necessity is not supported by the offer of proof. The first element wasn't satisfied, in the court's view, no significant, imminent evil for this defendant or any other person." ² Defendant objected that the court's ruling "not only goes against what we understand to have been the statements and admissions by the People and by [Judge Margines, who had previously handled the case] but undermines the whole reason why we were going forward at trial ... it's clearly eviscerated our entire defense."

In light of Judge Brooks's ruling on the necessity defense, and noting there was no dispute Eichorn was in a sleeping bag in the civic center on the night in question, Eichorn's lawyer agreed to go forward without a jury on the constitutional issue whether the ordinance was unconstitutional as applied to him based on his alleged involuntary homelessness.

Trial commenced without a jury in May 1996. Officer Carol Craig testified defendant was in a sleeping bag on the ground at about 10:30 p.m. outside a county office building in the civic center. He was using his clothes as a pillow. Craig asked (as she always did) why Eichorn wasn't at the National Guard Armory (a homeless shelter several miles away). A bus from the civic center to the armory usually picked up people between 5:00 and 6:00 p.m. According to Craig's police report, defendant replied he had tried "a while back." It was full, so he never returned. The court judicially noticed that the walk between the civic center and the armory was "through very dangerous areas of town." Police photographed and cited Eichorn, then asked him to move on. He complied.

James Meeker, a professor at the University of California, Irvine in the Department of Criminology, Law and Society, testified he had conducted a study on homelessness in January and February 1993. There were more than 3000 homeless individuals in Orange County during this period. Most homeless were longtime residents of Orange County (average 14 years) who had lost jobs and could not afford housing. The County had relatively little affordable housing, and it had been decreasing. Single men had a particularly difficult time because they were less likely to receive the support from family, friends, or governmental agencies. Most were sleeping outdoors because they had no other choice. Homeless individuals were 10 times as likely to be victimized by crime than the average population. Many homeless stayed in urban areas because of proximity to assistance providers (food, clothing and shelter), day jobs (just eight percent were unemployed and not looking for jobs), public facilities (restrooms etc.) and the lack of transportation.

Timothy Shaw was the executive director of the Orange County Homeless Issues Task Force. He pegged the number of homeless in Santa Ana at about 1500 persons in 1993. There were about 118 shelter beds available for single men like Eichorn, most available on a first-come, first-serve basis. In addition, the armory could accomodate 125 persons during the winter (although it frequently exceeded its capacity). As was routine, these shelters were full on the night Eichorn was cited.

Maria Mendoza was the county's homeless coordinator and oversaw use of the armory as a shelter. The armory was available only on cold winter nights. She explained how the bus to the armory would leave from the civic center in the late afternoon. Those on the bus had priority at the armory. Eichorn had spent some 20 nights there in December and January. On January 25, the armory was 13 persons over capacity, which was not uncommon. That the armory would accept excess capacity was not a given. Usually, only those "at risk" (e.g., women and children) would be admitted after the maximum was reached, and generally only when it was raining.

Eichorn, 49 years old, testified he had moved to Costa Mesa in 1972, a few years after his discharge from the Marine Corps. The Vietnam veteran lost his job in a machine shop in 1980, and subsequently ended up without a place to live. He moved to Santa Ana because a friend told him about a job driving an ice cream truck. He sold ice cream for about a year and was able to afford a motel room. When he lost that job, he frequented the casual labor office in Santa Ana until it closed. When he worked and could save enough, he would live in a motel. He also relied on general relief and food stamps. However, general relief was no longer enough to secure affordable housing because most of the less expensive motels had been torn down. If he could not get into a shelter, Eichorn would sleep in the civic center, where he was close to services (including restrooms) and where there was "safety in numbers" (i.e., where it was less likely someone would steal or attack him while he slept). He loved to work and did so every chance he got. He did not like living outside. He had been turned away from the armory in the past and had a "nervous walk" back to the civic center. On January 25, he did not recall whether he had tried to find a spot at a shelter or whether he heard that the shelters were full. He recalled eating around 7:00 p.m. He was in his sleeping bag listening to his radio when Craig arrived around 10:30. Eichorn's mother and stepfather lived in Long Beach, but staying with them was not an option because he was "an adult responsible for" himself. Defendant denied a problem with alcohol or drugs.

June Marcott, program manager for food stamps and general relief of the County of Orange, testified Eichorn received food stamps on a regular basis from 1989 through 1993, except when he was employed in parts of 1991 and 1992. He was eligible for $307 monthly in general relief if he participated in a work program (working nine days a month) and looked for work (four job applications per day). He last received general relief in November 1990 and was terminated because he did not submit a job search report. He applied for relief in March and June 1992, but was denied.

The court found Eichorn had violated the camping ordinance and was not involuntarily homeless on the night in question, finding he chose not to go to the armory. He also suggested defendant should have sought out familial assistance and should have applied for general relief. The court ordered him to perform 40 hours of community service. By a 2-to-1 margin, the appellate department of the superior court affirmed the conviction without opinion and declined to certify the case to this court for direct review. (Cal. Rules of Court, rule 63.) Eichorn filed this petition for habeas corpus and seeks to set aside his conviction. ³

II

Eichorn makes a multipronged attack on his conviction. One of his contentions is that he was induced to waive his right to a jury trial by the court's pretrial ruling that he could not present a necessity defense. As noted above, the court ruled the defense's offer of proof was inadequate, i.e., defendant had not presented enough evidence to get to a jury on the issue of whether he violated the law to prevent a significant evil. This ruling was error, and we vacate the judgment accordingly.

California appellate courts have recognized the necessity defense "despite the absence of any statutory articulation of this defense and rulings from the California Supreme Court that the common law is not a part of the criminal law in California." (People v. Garziano (1991) 230 Cal.App.3d 241, 242, 281 Cal.Rptr. 307.)

In Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1088, 40 Cal.Rptr.2d 402, 892 P.2d 1145, the Supreme Court, while holding the camping ordinance was facially valid, declined to decide whether and how it might be unconstitutionally applied. The court refused to assume that the ordinance would be enforced "against persons who have no alternative to 'camping' or placing camp paraphernalia' on public property." (Id. at p. 1088, fn. 8, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) Indeed, the Tobe court was given assurances by the...