Mandel v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County

• Decision Date: 08 October 1969
• Docket Number: OAKLAND-PIEDMONT
• Court: California Court of Appeals Court of Appeals
• Parties: Robert MANDEL, Plaintiff, and Appellant, v. The MUNICIPAL COURT FOR theJUDICIAL DISTRICT, COUNTY OF ALAMEDA, State of California, Defendant and Respondent; PEOPLE of the State of California, Real Party in Interest and Respondent. Civ. 26042.

Page 173

81 Cal.Rptr. 173

276 Cal.App.2d 649

Robert MANDEL, Plaintiff, and Appellant, v. The MUNICIPAL COURT FOR the OAKLAND-PIEDMONT JUDICIAL DISTRICT, COUNTY OF ALAMEDA, State of California, Defendant and Respondent PEOPLE of the State of California, Real Party in Interest and Respondent.

Civ. 26042.

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

Oct. 8, 1969.

Hearing Denied Dec. 3, 1969.

Garry, Dreyfus, McTernan & Brotsky, Donald L. A. Kerson, San Francisco, for appellant.

Charles C. Marson, Paul N. Halvonik, San Francisco, for American Civil Liberties Union.

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Associate Justice.

Petitioner has appealed from a judgment of the superior court which denied his petition for a writ of prohibition to restrain respondent municipal court and the People, as real party in interest, from proceeding in a pending criminal action in which he is charged with five counts of vagrancy in violation of section 653g of the Penal Code. ¹ He contends that section 653g is unconstitutional because of overbreadth and vagueness, and that respondent court erred in overruling his demurrer because the facts stated in the complaint 'do not constitute a public offense' (Pen.Code, § 1004, subd. 4) and reveal 'matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution' (Id. subd. 5). Amicus curiae urges the unconstitutionality of the statute and joins in the contention that the facts stated show that petitioner was engaged in conduct which is protected by the First and Fourteenth Amendments of the United States Constitution.

The People throughout have insisted on the constitutionality of the statute. They acknowledge that as heretofore sustained the statute requires that the violator act with a purpose or intent of effectuating some criminal act, and, on appeal for the first time, they suggest that such criminality may be found because the petitioner was contributing to the delinquency of minors (Pen.Code, § 272) by encouraging truancy. (See Ed.Code, §§ 12401--12410, and § 10609.)

It is concluded that the facts stated in the complaint fail to show a violation of section 653g as the provisions of that section have been construed in upholding them against attacks on constitutional grounds, and that they do show that petitioner was engaged in an activity which was protected by the provisions of the First and Fourteenth Amendment without giving any cause for exercise of the state interest in the protection of the public health and safety from the particular evil which is contemplated by the provisions of section 653g. The judgment must be reversed.

The Record

The petition sets forth a copy of the complaint filed on April 16, 1968 in the Municipal Court for the Oakland-Piedmont Judicial District. Each count recites, 'The undersigned, being sworn, says on information and belief, that said defendant(s) did, in the (judicial district) on or about (various dates from March 1, 1968 to April 3, 1968) commit a misdemeanor to wit: A violation of Section 653g of the Penal Code of California in that said defendant did then and there become a vagrant within the meaning of said section in that said defendant did loiter about a school and public place at and near which school children attend, to wit: (the counts embrace two incidents at one high school and three at another).' The complaint concludes with the following quotation: "A statement of the facts, which constitute probable cause for the issuance of a warrant based on this complaint, is attached hereto and incorporated by reference." (See Pen.Code, § 1427; People v. Sesslin (1968) 68 Cal.2d 418, 422--426, 67 Cal.Rptr. 409, 439 P.2d 321, cert. den. (1968) 393 U.S. 1080, 89 S.Ct. 850, 21 L.Ed.2d 772; and People v. Chimel (1968) 68 Cal.2d 436, 440, 67 Cal.Rptr. 421, 439 P.2d 333, revd. on other grounds (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.) The parties have assumed that the sufficiency of the complaint is to be determined from all of the facts set forth, including those in the 'Crime Report' which is attached to the complaint and incorporated by reference. This court adopts the same assumption without determining whether the prosecution, if so minded, could renege and attempt to rely on the provisions of section 952 of the Penal Code ² in testing the sufficiency of the complaint, when it has gone farther than required by that section in order to obtain a warrant. (Cf. Ratner v. Municipal Court (1967) 256 Cal.App.2d 925, 928--929, 64 Cal.Rptr. 500.)

The report states that on twelve occasions between February 28, 1968 and April 3, 1968, petitioner has been on the campuses of two high schools in Oakland. It lists the vice-principal of one high school as the reporting party, and indicates that he has warned the petitioner to stay off the campus, ³ has read the provisions of section 653g to the petitioner, and has observed the petitioner handing out anti-draft leaflets. According to the report the vice-principal states that the petitioner has caused a disturbance in handing out the leaflets by having large groups of students gather around him on the campus (see fn. 3, above). Five other witnesses, including three police officers, of whom one made the report and signed the complaint, are listed as having observed the petitioner carrying and passing out anti-draft leaflets. One, the vice-principal of the second high school, is noted as having told the petitioner a number of times to stay off the campus of that school. It is reported that petitioner did not comply with this request (see fn. 3, above) and that petitioner has read and signed a card stating that he has been informed of the loitering law. A leaflet of the type allegedly distributed, which is attached as a further exhibit, ⁴ expresses opposition to the war in Vietnam, the selective service system and racism in America. It also states that anti-draft groups 'are arranging a student strike and other activities against the war, the draft and racism for April 26 (the last Friday in April 1968).'

The petitioner's demurrer ⁵ to the complaint was overruled. He entered a plea of not guilty and commenced the instant action to restrain further proceedings because the municipal court was acting in excess of its jurisdiction. ⁶ (Whitney v. Municipal Court (1962) 58 Cal.2d 907, 911, 27 Cal.Rptr. 16, 377 P.2d 80; Lambert v. Municipal Court (1960) 53 Cal.2d 690, 691, 3 Cal.Rptr. 168, 349 P.2d 984; Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 462--467, 171 P.2d 8; Moore v. Municipal Court (1959) 170 Cal.App.2d 548, 551--554, 339 P.2d 196; Kelly v. Municipal Court (1958) 160 Cal.App.2d 38, 46, 324 P.2d 990 (hearing by the Supreme Court denied); and see Burton v. Municipal Court (1968) 68 Cal.2d 684, 684, 68 Cal.Rptr. 721, 441 P.2d 281; Pain v. Municipal Court (1968) 268 A.C.A. 156, 157, 73 Cal.Rptr. 862; and Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 586, 38 Cal.Rptr. 226.) He alleged, 'On the dates specified in said complaint petitioner was on the public sidewalk near the schools mentioned distributing leaflets and handbills criticizing the Selective Service System, racism in America, and the Vietnam war. Petitioner's sole purpose and intention in being around said public schools was to deliver said handbills and leaflets to hish school students.' No answer to the petition was filed by respondent court or real party in interest. In response to the order to show cause issued on the filing of the petition, the district attorney filed a memorandum of law in which he requested that the writ be denied. After oral argument, the judgment ensued when the court found that the petition failed to state facts sufficient to constitute grounds for relief.

Petitioner properly asserts that under these circumstances the allegations of the petition must be taken as true. (Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 865, fn. 5, 34 Cal.Rptr. 251.) Nevertheless, since petitioner's right to relief must depend on showing that further proceedings would be in excess of the jurisdiction of respondent court, for purposes of this review any factual issue must be resolved in accordance with the allegations of the complaint and the attached exhibit. It must be assumed that petitioner was on the campus of each school, and that he did not remain 'on the public sidewalk near the schools' at all times. It is nowhere suggested, however, that this fact crucially affects criminal liability under section 653g. The second allegation concerning petitioner's purpose and intent is not contradicted by but is consistent with, the fair import of the facts in the report.

Constitutionality and Construction of Section 653g

In re Huddleson (1964) 229 Cal.App.2d 618, 40 Cal.Rptr. 581 (hearing by the Supreme Court denied) sets forth this court's ruling upholding the constitutionality of the provisions now found in section 653g, ⁷ which were then found in subdivision (2) of section 647a (Stats.1957, ch. 1735, § 1, p. 3120). The problem with respect to the use of the word 'loiter' was phrased as follows: '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 an 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...