Gates v. Municipal Court

Decision Date25 August 1982
Citation185 Cal.Rptr. 330,135 Cal.App.3d 309
CourtCalifornia Court of Appeals Court of Appeals
PartiesLinda GATES, Plaintiff and Appellant, v. MUNICIPAL COURT OF SANTA CLARA COUNTY, SAN JOSE FACILITY, Defendant, PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 54155.

Sheldon Portman, Public Defender, Stuart C. Rich, Deputy Public Defender, County of Santa Clara, San Jose, for plaintiff and appellant.

Robert J. Logan, City Atty., George Rios, Deputy City Atty., San Jose, for real party in interest.

NEWSOM, Associate Justice.

Appellant, Linda Gates, was arrested for violation of San Jose Municipal Code 10.40.010 (hereafter the ordinance)--loitering for the purpose of soliciting an act of prostitution. She challenges the ordinance on the grounds it is: (1) preempted by state law which fully occupies the field of criminal sexual conduct; (2) unconstitutionally vague for failure to give fair notice of the conduct it proscribes, and defective in its failure to provide uniform enforcement standards; (3) overbroad in making unlawful conduct protected by the First Amendment; and (4) violates federal and state equal protection guarantees by subjecting "known prostitutes and panderers" to discriminatory treatment.

Respondent People dispute appellant's standing to challenge the vagueness and overbreadth of the ordinance on the ground that her conduct clearly falls within that proscribed by it. Respondent also claims that the ordinance is simply a loitering law--which does not attempt to define criminal sexual conduct, and is thus not preempted by state law. According to respondent, the ordinance is clearly worded, and law enforcement officials are guided in enforcing it by probable cause standards which apply to all arrests. The People further argue that the ordinance does not threaten First Amendment rights and is therefore not overbroad. Finally, the People maintain that the classification of "known prostitutes and panderers" is rationally related to a legitimate government interest and so does not violate equal protection.

A misdemeanor complaint against appellant was filed on October 29, 1980, in respondent Santa Clara County Municipal Court, and assigned case No. C8029340.

Appellant demurred to the complaint, challenging the legality of section 10.40.010. The demurrer was overruled, and appellant filed a petition for writ of prohibition and/or mandamus in the Santa Clara County Superior Court, also denied.

Initially, the People raise the issue of appellant's standing to challenge the constitutionality of section 10.40.010. 1 In support of this argument, respondent refers to the settled principle of constitutional law that "one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations." (In re Cregler (1961) 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 363 P.2d 305; and cf. United States v. Raines (1960) 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524; Rubio v. Superior Court (1979) 24 Cal.3d 93, 103, 154 Cal.Rptr. 734, 593 P.2d 595; Sussli v. City of San Mateo (1981) 120 Cal.App.3d 1, 10, 173 Cal.Rptr. 781.)

In In re Cregler, supra, 56 Cal.2d at page 313, 14 Cal.Rptr. 289, 363 P.2d 305, the rule was applied to preclude a challenge for vagueness--facial and as applied. The court there stated: "Petitioner has not shown that the statute is being invoked against him in the aspects or under the circumstances which he suggests, and hence may not be heard to complain." Thus, the rule applies to challenges both to the face of the statute--vague words affecting fair notice--and "as applied"--vague wording affecting uniform enforcement (In re Cregler, supra, at p. 313, 14 Cal.Rptr. 289, 363 P.2d 305; People v. Bratis (1977) 73 Cal.App.3d 751, 758, 141 Cal.Rptr. 45)--and may apply to overbreadth challenges as well (see Sussli v. City of San Mateo, supra, 120 Cal.App.3d 1, 10, 173 Cal.Rptr. 781.). 2

We express no opinion as to whether the standing issue would bar appellant if her case were before us on appeal: here she has challenged the ordinance by way of demurrer to the complaint 3--and we have no factual record before us.

Absent such a record we cannot--as the People urge--deny appellant standing on the grounds that her conduct falls precisely within the proscriptions of the statute (Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 263, 150 Cal.Rptr. 813; In re Davis (1966) 242 Cal.App.2d 645, 667, 51 Cal.Rptr. 702), without assuming fact finding powers which we think are beyond our jurisdiction. 4

In like circumstances, in Aaron v. Municipal Court (1977) 73 Cal.App.3d 596, 140 Cal.Rptr. 849, the court declared: "Since the attack on the ordinance followed the overruling of the petitioner's demurrers to complaints filed against them, there is no factual setting concerning the application of the ordinance. Review is necessarily limited solely to the constitutionality of the provisions of the ordinance as they were adopted and in effect, not as they might actually be applied." (Id., at p. 599, 140 Cal.Rptr. 849 emphasis added.) Unfortunately, the last-cited phrase is ambiguous. If it be taken to mean "not as the provisions of the ordinance were actually applied to petitioner in that case," then it supports a "demurrer exception" to the standing rule, and stands as authority for our power to review and resolve the vagueness and overbreadth arguments presented here.

An alternative reading of the pertinent clause in Aaron is that our authority is limited to a review of the constitutionality of the ordinance on its face; i.e., does it meet the fair notice requirement by being sufficiently definite in its language? Appellant would thus be barred from challenging the constitutionality of the ordinance as it is applied; i.e., the manner in which it is enforced. Such an interpretation necessarily restricts our review to the definiteness and clarity of the subject language, and would not permit inquiry into its application, and its vagueness as enforced. 5

In its holding that a municipal ordinance which outlawed solicitation without a license was "vague on its face" (73 Cal.App.3d at p. 599, 140 Cal.Rptr. 849), the Aaron court relied upon cases which found vagueness in the application or enforcement--Perrine v. Municipal Court (1971) 5 Cal.3d 656, 661-662, 97 Cal.Rptr. 320, 488 P.2d 648; In re Porterfield (1946) 28 Cal.2d 91, 112, 168 P.2d 706. (Aaron v. Municipal Court, supra, 73 Cal.App.3d 596, 607-610, 140 Cal.Rptr. 849) rather than merely facial or abstract vagueness. The offending language was found to present the problem of arbitrary and discriminatory enforcement as well. (Id., at p. 609, 140 Cal.Rptr. 849.) The court did not limit its analysis to "vagueness on its face." (Id., at pp. 607-608, 140 Cal.Rptr. 849.)

We thus read Aaron as standing for the rule that, reviewing and overruling a demurrer, we may consider vagueness problems arising from application generally and logically following from the terms of the ordinance, but not those which apply precisely and factually to the defendant. Plainly, a constitutional infirmity relating to arbitrary and discriminatory enforcement can often be ascertained merely from reading an ordinance.

Language in Thornhill v. Alabama (1939) 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, supports such an interpretation of Aaron. In Thornhill, the court stated: "The finding against petitioner was a general one. It did not specify the testimony upon which it rested. The charges were framed in the words of the statute and so must be given a like construction.... In these circumstances, there is no occasion to go behind the face of the statute or of the complaint for the purpose of determining whether the evidence, together with the permissible inferences to be drawn from it, could ever support a conviction founded upon different and more precise charges.... The State urges that petitioner may not complain of the deprivation of any rights but his own. It would not follow that on this record petitioner could not complain of the sweeping regulations here challenged." (Id., at p. 96, 60 S.Ct. at p. 741.) The court proceeded to analyze the vagueness argument by examining the statute as enforced.

Our own high court has reached a similar conclusion. In Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636, the constitutionality of Penal Code section 647, subdivision (a), was challenged after declaration of a mistrial. The defendant objected to a retrial on the section 647, subdivision (a) charge on the grounds that the statute was facially unconstitutional. The court's review for "facial " vagueness included a consideration of both notice and enforcement infirmities which could be ascertained from a reading of the statute (thus supporting the idea that the "vagueness on its face" concept discussed in Aaron encompasses such a review.)

We think it proper that a review of facial vagueness or overbreadth should include consideration of both notice and enforcement infirmities to the extent that they can be ascertained from reading the statute. Any other rule would preclude a defendant from claiming constitutional defects whenever it is claimed that his conduct falls precisely within the statutory proscriptions, in circumstances where the court would be powerless--for lack of an evidentiary record--to assess the true nature of such conduct.

Accordingly, we conclude that appellant has standing to challenge the ordinance on grounds of vagueness and overbreadth to the extent that such infirmities can be detected from a general reading of the statute and its probable, logical application. 6

Appellant next argues that San Jose Municipal Ordinance 10.40.010 is preempted...

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