Huddleson, In re

• Citation: 229 Cal.App.2d 618,40 Cal.Rptr. 581
• Decision Date: 14 September 1964
• Docket Number: Cr. 4488,4602
• Court: California Court of Appeals
• Parties: In re Albert Roy HUDDLESON on Habeas Corpus. PEOPLE of the State of California, Plaintiff and Appellant, v. Everett HILL and William Sandness, Defendants and Respondents.

Page 581

40 Cal.Rptr. 581

229 Cal.App.2d 618

In re Albert Roy HUDDLESON on Habeas Corpus.

PEOPLE of the State of California, Plaintiff and Appellant, v. Everett HILL and William Sandness, Defendants and Respondents.

Cr. 4488, 4602.

District Court of Appeal, First District, Division 1, California.

Sept. 14, 1964.

Hearing Denied Nov. 10, 1964.

Cr. 4488:

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Derald E. Granberg, Deputy Attys. Gen., San Francisco, for the State.

Edward T. Mancuso, Public Defender, City and County of San Francisco, Claude D. Perasso, Deputy Public Defender, San Francisco, for defendant.

Cr. 4602:

Stanley Mosk, Atty. Gen,. Albert W. Harris, Jr., Derald E. Granberg, Deputy Attys. Gen., Thomas C. Lynch, Dist. Atty., Janet Aitken, Asst. Dist. Atty., San Francisco, for the State.

Marshall W. Krause, Hartly Fleischmann, San Francisco, for defendants.

SULLIVAN, Justice.

These separate cases present a single common issue: the constitutionality of subdivision (2) of section 647a of the Penal Code. This subdivision provides: 'Every person who loiters about and school or public place at or near which children attend or normally congregate is a vagrant, and is punishable by a fine of not exceeding five hundred dollars ($500) or by imprisonment in the county jail for not exceeding six months, or by both such find and imprisonment.' ¹

In No. 4488 defendant Huddleson entered a plea of guilty to a complaint filed in the Municipal Court of the City and County of San Francisco charging him with a violation of the foregoing subdivision. The court granted six months' probation apparently imposing as a condition of probation ten days' imprisonment in the county jail. (Pen.Code, §§ 1203; 1203.1.) Subsequently probation was revoked and defendant was sentenced to imprisonment in the county jail for six months. ² Thereafter, on September 20, 1963, defendant filed in the court below a petition for writ of habeas corpus. He alleged that his imprisonment under section 647a subdivision (2) was unlawful because said subdivision was unconstitutional by reason of being vague and indefinite, of violating the requirement that all laws of a general nature shall have a uniform operation (see Cal.Const., art. 1, § 11) and of being unreasonable and arbitrary and in violation of personal rights and liberties. The court ordered issuance of the writ forthwith and after a hearing on the return made its order discharging defendant. This appeal by the People followed. (Pen.Code § 1506.)

In No. 4602 defendants Hill and Sandness were each charged in separate complaints filed in the Municipal Court of the City and County of San Francisco with a violation of Penal Code section 647a subdivision (2) committed on June 3, 1963 'in that said defendant did then and there loiter about a public place at and near which children attend and normally congregate.' Defendants demurred to the respective complaints specifying as grounds of demurrer the same three objections to the statute urged by Huddleson in No. 4488. ³ The municipal court filed a memorandum opinion declaring section 647a subdivision (2) unconstitutional, sustaining the demurrer to the complaints, and granting the People leave to amend the existing complaints or file amended complaints. Upon the failure of the People to do so, the court ordered the complaints dismissed. The People appealed to the superior court which upheld the statute, reversed the judgment of dismissal and directed the municipal court to overrule the demurrer, one judge of the appellate department of the superior court dissenting. We thereafter ordered the case transferred to this court for hearing and decision upon the certification of the appellate department that such transfer appeared necessary to secure uniformity of decision and to settle an important question of law. (Cal. Rules of Court, rule 62 (a).)

In determining whether the attacks on the statute have merit, we are mindful of the settled rule that '[a]ll presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.' (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484, 171 P.2d 21, 23, 166 A.L.R. 701; State of California, etc. v. Industrial Acc. Com (1957) 48 Cal.2d 365, 371, 310 P.2d 7; Allied Properties v. Dept. of Alcoholic Beverage Control (1959) 53 Cal.2d 141, 146, 346 P.2d 737; In re Cregler (1961) 56 Cal.2d 308, 311, 14 Cal.Rptr. 289, 363 P.2d 305 and cases there cited.)

In the instant case, the challenges made to the constitutionality of the subdivision under attack center about the use of the word 'loiter' in the statute. In essence they assert that the word is of such a broad and all-embracing character as to encompass innocent as well as objectionable actions and thus impose and unreasonable proscription upon the conduct of the public at large. The word 'loiter' has been defined to mean 'To be slow in moving; delay; linger; saunter; lag behind' (Webster's New International Dictionary, Second Edition; see State v. Starr (1941) 57 Ariz. 270, 113 P.2d 356, 357) or 'to linger idly by the way, to idle' (Phillips v. Municipal Court (1938) 24 Cal.App.2d 453, 455, 75 P.2d 548, 549). While taken by itself and in its broad meaning the term may carry no criminal implications, nevertheless as employed in a penal statute and considered in such statutory context, it may have a sinister, wrongful or criminal import. (In re Cregler, supra, 56 Cal.2d 308, 311-312, 14 Cal.Rptr. 289, 363 P.2d 305; People v. Merolla (1961) 9 N.Y.2d 62, 211 N.Y.S.2d 155, 172 N.E.2d 541, 544-545; People v. Bell (1953) 306 N.Y. 110, 115 N.E.2d 821, 822; State v. Starr, supra; see Gleason v. Municipal Court (1964) 226 A.C.A. 701, 704, 38 Cal.Rptr. 226. Cf. People v. Bruno (1962) 211 Cal.App.2d Supp. 855, 860-861, 27 Cal.Rptr. 458 in respect to the criminal implications of the term 'wandering.')

Thus in Cregler, supra, the Supreme Court upheld the constitutionality of former.

Penal Code section 647 subdivision 4 ⁴ which made it a misdemeanor for any person known to be a pickpocket, thief, burglar or confidence operator and having no visible or lawful means of support, to loiter around certain specified public places or assemblies. ⁵ The court held that the word 'loiter' as used in the statute there under consideration 'has a sinister or wrongful as well as a reasonable definite implication. As proscribed by the statute the word 'loiter' obviously connotes lingering in the designated places for the purpose of committing a crime as opportunity may be discovered.' (56 Cal.2d at p. 312, 14 Cal.Rptr. at p. 291, 363 P.2d at p. 307.)

In Merolla, supra, the Court of Appeals of New York in an unanimous decision upheld the validity of a statute providing that no person should without a satisfactory explanation, loiter upon or within 500 feet of certain specified waterfront facilities. The court, noting the 'loiter' was a term of common or accepted meaning stated 'that notwithstanding the well-understood meaning--acquired through extended usage--of the term loiter or loitering, when taken 'by itself, and without more', it is not 'enough to inform a citizen of its criminal implications and, by the same token, leave it open to arbitrary enforcement' [citation]. The clarity and certainty necessary to satisfy constitutional requirements may be acquired, however, by reference to the context in which the term is used.' (211 N.Y.S.2d at p. 158, 172 N.E.2d at p. 544; emphasis added.) Referring to its previous opinion in People v. Bell, supra, 115 N.E.2d 821, upholding the constitutionality of a statute prohibiting loitering around railway or subway facilities, the court further stated: 'In view of these factors, namely, the specification of facilities, their known utility and purpose, and the notoriety of the evils which have pervaded the area, the particular misconduct at which the statute is directed becomes apparent. Loitering in the context here presented is lingering about waterfront facilities for a purpose unconnected with lawful waterfront business or related activity. Constitutional guarantees, therefore, are not offended by the statute. The term loitering, as has been demonstrated, is possessed of sufficient clarity and definition in context.' (211 N.Y.S.2d p. 159, 172 N.E.2d p. 545.)

We are persuaded that as used in the statute now before us the term 'loiter' was intended to have a restricted rather than a general meaning and that as so employed it has here, as in the statute under consideration in Cregler, 'a sinister or wrongful as well as a reasonable definite implication.' (In re Cregler, supra, 56 Cal.2d 308, 312, 14 Cal.Rptr. 289, 291, 363 P.2d 305, 307.) We are of the opinion 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. As the court pointed out in Cregler, provisions of the Penal Code 'are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.' (Pen.Code, § 4; People v. Carskaddon (1957) 49 Cal.2d 423, 425, 318 P.2d 4 and cases there cited; In re Cregler, supra, 56 Cal.2d 308, 312, 14 Cal.Rptr. 289, 363 P.2d 305.) It is clear that the purpose of section 647a, considered in its entirety, is the 'protection of children from interference by sexual offenders and the apprehension, segregation and punishment of the latter.' (People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 900, 246 P.2d 173, 176 ⁶; People v. Carskaddon, supra; People v. Moore (1955) 137 Cal.App.2d 197, 199, 290 P.2d 40; People v. Thompson (1959) 167 Cal.App.2d 727, 733, 335 P.2d 249.)

We must so construe the statute before us, if its language permits, as to render it valid and constitutional rather than...