Leffel v. Municipal Court

• Citation: 126 Cal.Rptr. 773,54 Cal.App.3d 569
• Court: California Court of Appeals
• Decision Date: 20 January 1976
• Parties: Forrest LEFFEL, Plaintiff and Appellant, v. The MUNICIPAL COURT OF FRESNO COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent. Civ. 2635.

Page 773

126 Cal.Rptr. 773

54 Cal.App.3d 569

Forrest LEFFEL, Plaintiff and Appellant, v. The MUNICIPAL COURT OF FRESNO COUNTY, Defendant and Respondent;

The PEOPLE, Real Party in Interest and Respondent.

Civ. 2635.

Court of Appeal, Fifth District, California.

Jan. 20, 1976.

Donald H. Hazel, Sanger, for plaintiff and appellant

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just, and Nancy Sweet, Deputy Attys. Gen., Sacramento, for defendant and respondent.

OPINION

FRANSON, Associate Justice.

This case presents a question of first impression: Does Penal Code section 647, subdivision (b); which defines 'disorderly conduct' as including '(e)very person . . . (w)ho solicits . . . any act of prostitution', apply to a 'customer' of a prostitute, or is the statute limited in its application to solicitation by the prostitute?

STATEMENT OF THE CASE

Appellant was arrested and charged with disorderly conduct in violation of Penal Code section 647, subdivision (b). At the arraignment he demurred to the complaint on the grounds, among others, that the facts alleged failed to state a public offense and that the court had no jurisdiction because the complaint violated his right to due process. Appellant also moved to dismiss the charge.

At the hearing on the demurrer, it was agreed between appellant and the district attorney that appellant was not a prostitute and had not engaged in an act of prostitution.

The municipal court overruled the demurrer and denied the motion to dismiss.

Appellant then filed a petition for writ of prohibition in the Fresno County Superior Court asking that court to restrain the municipal court from taking any further action in the case other than to order a dismissal of the action. The superior court issued an alternative writ and ordered the municipal court to show cause why it should not be restrained from taking further action in the case. After a hearing on the petition the superior court denied a peremptory writ because 'it takes two to tango'. Appellant timely filed a notice of appeal.

INTERPRETATION OF STATUTE

Penal Code section 647 provides in part:

'Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor:

'. . .per

'(b) Who solicits or who engages in any act of prostitution. As used in this subdivision, 'prostitution' includes any lewd act between persons for money or other consideration.' (Emphasis added.)

While quantitatively the words, 'every person', would include the customer as well as the prostitute, male or female, appellant nonetheless contends that by reason of the legislative history of section 647 and prior judicial interpretation of the meaning of the words, 'soliciting for prostitution', the statute applies only to solicitation by a prostitute and not by a customer.

As a general rule courts are precluded from interpreting a statute unless the statutory language is uncertain or there is doubt regarding the legislative intent. (County of Sacramento v. Superior Court (1974) 42 Cal.App.3d 135, 139, 116 Cal.Rptr. 602; Caminetti v. Pac. Mutual L. Ins Appellant relies on Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483 to support his contention that the words, 'every person', in the disorderly conduct statute may be restricted qualitatively by judicial interpretation. Barrows involved in part the applicability of section 647, subdivision (a) (lewd or dissolute conduct in a public place), to the live performance of a play in a theater before an audience. The Supreme Court concluded that regardless of the words, 'every person', the Legislature did not intend the statute to apply to First Amendment activities such as theatrical performances. (1 Cal.3d at pp. 826, 828, 83 Cal.Rptr. 819, 464 P.2d 483.) While, understandably, appellant does not contend that soliciting a prostitute is a constitutionally protected activity, he argues from Barrows that this court must examine the legislative history of section 647 to ascertain whether the customer was intended to be included therein.

Co. (1943) 22 Cal.2d 344, 353--354, 139 P.2d 908; 45 Cal.Jur.2d, Statutes, § 108, p. 621.) However, ambiguity is not always a necessary condition precedent to judicial interpretation in that '(t)he literal meaning of the words of a statute may be disregarded to avoid absurd results or to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole.' (County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 849, fn. 6, 59 Cal.Rptr. 609, 614, 428 P.2d 593, 598; Silver v. Brown (1966) 63 Cal.2d 841, 845, 48 Cal.Rptr. 609, 409 P.2d 689.)

Assuming a degree of uncertainty in the language, 'every person', we are not helped by the legislative history of the statute. Section 647, subdivision (b), was revised in 1961 primarily because then section 647, subdivision (10), which declared every 'common prostitute' to be a vagrant, punished status rather than acts and because of its probable unconstitutional vagueness. (See Sherry, 'Vagrants, Rogues and Vagabonds--Old Concepts in Need of Revision' (1960) 48 Cal.L.Rev. 557, 563--564, 566--567, 570; see also In re Newbern (1960) 53 Cal.2d 786, 797, 3 Cal.Rptr. 364, 350 P.2d 116.) The revision proposed by Professor Sherry and ultimately adopted by the Legislature was based on A.B. 2712 (1959). This proposed bill provided that it was a misdemeanor if any person '. . . for pecuniary profit, solicits or engages in any act for prostitution.' Professor Sherry's suggested revision deleted the phrase, 'for pecuniary profit', as redundant. (Sherry, 48 Cal.L.Rev. at p. 570.) The legislative committee that approved his revision quoted his comments and expressed its full concurrence. (Rept. of Assem. Int.Comm. on Crim.Proc., vol. 2, App. to Journal of Assem. Reg. Sess. 1961, pp. 12--13.) Appellant argues that because customers do not realize the pecuniary profit from an act of prostitution the Legislature did not intend to include them within the scope of section 647, subdivision (b). Although the term 'prostitution' connotes commercial sexual conduct, the deletion of, 'for pecuniary profit', does not Ipso facto exclude customers from the scope of the statute. It reasonably can be argued that by use of the term, 'prostitution', the Legislature intended only to prohibit commercial sexual acts rather than 'free love.' This being so, it follows that the words, 'for pecuniary profit', were deleted simply because they were unnecessary to the legislative purpose. Thus, the legislative history to section 647, subdivision (b), contains no clear expression of its intended scope insofar as the customer is concerned.

Appellant cites the 1971 draft of the Criminal Code prepared by the staff of the Penal Code Revision Project for the Joint Legislative Committee which suggests that section 647, subdivision (b), does not include the customer within its ambit. Respondent rebuts by citing the 1968 committee draft which suggests that the customer Appellant cites In re Carey (1922) 57 Cal.App. 297, 207 P. 271 for the proposition that as a matter of law only a prostitute can solicit an act of prostitution. In Carey, a woman convicted of violating a city ordinance making it unlawful for any person to solicit for the purpose of prostitution challenged her sentence on the ground that the state statute under which she was sentenced was discriminatory in that it applied only to women. In language which in part would be considered anachronistic by today's standards, the court said:

is included within the statute. While committee reports proposing subsequently-adopted statutes are entitled to substantial weight in construing a statute (Keeler v. Superior Court (1970) 2 Cal.3d 619, 630, 87 Cal.Rptr. 481, 470 P.2d 617; Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 246--250, 66 Cal.Rptr. 20, 437 P.2d 508), reports made after a statute is enacted are entitled to little weight. The conflicting 'ex post facto' [54 Cal.App.3d 574] expressions of opinion evidenced by the 1968 and 1971 reports merely reflect committee confusion as to the meaning of the statute.

'It is true that the statute provides that every woman carrying on the business of prostitution may be committed to the farm; but the statute would have meant exactly the same had it in terms applied to every person. The fact that the fallen woman carries on the business of commercialized vice justifies whatever discriminations may be found in the statute. The act of her partner in vice, while equally as nefarious, is neither commercialized nor continuous. It is proper enough to send him to jail for his offense, but it is doubtful if the scheme of impounding him for purposes of reformation would commend itself to the lawgiver. The conditions surrounding the two classes of offenders are so unlike that different methods of treatment are fully justified.

'. . .e f

'The specific charge against the petitioner is . . . that of . . . soliciting for prostitution . . .. The ordinance, it is true, applies to 'every person.' . . . But a man can no more commit the offense of soliciting for prostitution than that of carrying on the business of prostitution. . . . The words 'soliciting for prostitution' have a well understood and distinct meaning. They are held to mean the act of a fallen women in hailing passers-by and soliciting them to patronize her business.' (57 Cal.App. at pp. 306--307, 207 P. at p. 274.)

Carey is not persuasive authority in the present case for several reasons. First, the issue in Carey was not whether the customer was punishable under the ordinance, but whether the state act prescribing the punishment was discriminatory since it applied only to women. (57 Cal.App. at p. 304, 207 P. 271.) The court merely decided that different methods of treatment were fully justified depending on whether it was the...