Nancy C., In re

• Decision Date: 15 November 1972
• Citation: 28 Cal.App.3d 747,105 Cal.Rptr. 113
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of Nancy C., a minor. Nan Hendrickson, Deputy Probation Officer, Plaintiff and Respondent, v. Nancy C., Defendant and Appellant. Civ. 30485.

Page 113

105 Cal.Rptr. 113

28 Cal.App.3d 747

In the Matter of Nancy C., a minor.

Nan Hendrickson, Deputy Probation Officer, Plaintiff and Respondent, v. Nancy C., Defendant and Appellant.

Civ. 30485.

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

Nov. 15, 1972.

Paul Ligda, Public Defender, County of Solano, Philip C. Bourdette, Deputy Public Defender, Fairfield, for defendant and appellant.

Evelle J. Younger, Atty. Gen., State of California, Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Eric Collins, Nancy S. Relier, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KONGSGAARD ^*, Associate Justice.

This is an appeal from an order of the juvenile court continuing the minor as a ward of the juvenile court.

On June 22, 1971, a supplemental petition was filed in the Superior Court of Solano County, sitting as a juvenile court, alleging two violations of Welfare and Institutions Code section 602, by Nancy C., age 15. She was charged in count one with the failure to obey on order of the juvenile court by leaving her foster parents' home without their consent, and in count two with a violation of Health and Safety Code section 11530, possession of marijuana.

At the jurisdictional hearing the referee sustained the petition on both counts, ordered the minor continued as a ward of the juvenile court and committed the minor to the California Youth Authority.

Nancy C. first appeared before the Solano County Juvenile Court in 1969, when she was adjudged a ward of the court and placed in the home of an aunt. Subsequently, she was before the court several other times and continued as a ward of the court with placement in various foster homes. In April 1971, Nancy was placed in a foster home in Sacramento, California where she remained until June 14 of that year.

On the evening of June 14 Nancy left the foster home and failed to return as directed. The foster parents did not see her again until after she was apprehended by Sacramento police officers five days later.

On June 19, 1971, at 10 p.m., two Sacramento police officers observed a female who appeared to be a minor walking east on S Street between 3rd and 4th Streets. The area bounded by 3rd and 5th, and S and T Streets was a high prostitution area. One of the officers suspected this person of being a prostitute and described her walk as 'a prostitution stroll.' The officers drove around the block, and stopped in the vicinity of 5th and R Streets as approximately 10:10 p.m. and questioned the minor. They ascertained that her name was Nancy C. and she was in fact under age. She indicated to the officers that she was coming from the River Club (which does not admit persons under 21), and that she had been staying with one Kathy Pittman, who was known to one officer as a prostitute. Finally, she said that she was on her way to the Greyhound Bus Depot to meet a friend.

The minor was arrested for violation of a Sacramento curfew ordinance, the terms of which are set forth below, and was booked at city jail. During the booking her purse was searched and a bag appearing to contain marijuana was discovered. It was stipulated that the bag did contain marijuana.

Question Presented

1. Was there probable cause to arrest for violation of the curfew ordinance?

2. Is the curfew ordinance unconstitutionally broad?

I

Since the arrest was made without a warrant, the burden rests upon the prosecution to show proper justification for the arrest. (Tompkins v. Superior Court (1963) 59 Cal.2d 65, 67, 27 Cal.Rptr. 889, 378 P.2d 113; Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23; People v. Waller (1968) 260 Cal.App.2d 131, 137, 67 Cal.Rptr. 8; People v. Rodriguez (1966) 242 Cal.App.2d 744, 747, 51 Cal.Rptr. 873.) That justification can be found in the existence of probable cause to make an arrest. The applicable principles governing the existence of probable cause were stated in People v. Ingle (1960) 53 Cal.2d 407, 412--413, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580, as follows: 'Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967; People v. Kilvington, 104 Cal. 86, 92, 37 P. 799, (43 Am.St.Rep. 73); People v. Silvestri, 150 Cal.App.2d 114, 117, 309 P.2d 871; People v. Soto, 144 Cal.App.2d 294, 298, 301 P.2d 45; People v. Smith, 141 Cal.App.2d 399, 402, 296 P.2d 913; People v. Rodriguez, 140 Cal.App.2d 865, 869, 296 P.2d 38. Probable cause has also been defined as having more evidence for than against, supported by evidence which inclines the mind to believe, but leaves some room for doubt. People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344; People v. Novell, 54 Cal.App.2d 621, 623--624, 129 P.2d 453; Ex parte Heacock, 8 Cal.App. 420, 421, 97 P. 77. It is not limited to evidence that would be admissible at the trial on the issue of guilt. People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535. The test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict but only whether the person should stand trial. People v. Fischer, supra, 49 Cal.2d 442, 446, 317 P.2d 967.'

Even if probable cause for an arrest does not originally exist, it has long been recognized that circumstances short of probable cause to make an arrest may still justify an officer stopping pedestrians on the streets for questioning (Cunha v. Superior Court (1970) 2 Cal.3d 352, 355, 85 Cal.Rptr. 160, 466 P.2d 704; People v. Mickelson (1963) 59 Cal.2d 448, 450, 30 Cal.Rptr. 18, 380 P.2d 658). In People v. One 1960 Cadillac Coupe (1964) 62 Cal.2d 92, 95--96, 41 Cal.Rptr. 290, 292, 396 P.2d 706, 708, it was stated: '(A) police officer . . . may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of (his) duties, . . .' If the investigation reveals probable cause, then the officer may arrest the suspect and conduct a reasonable search. (Mickelson, supra, 59 Cal.2d at pp. 450--451, 30 Cal.Rptr. 18, 380 P.2d 658; Irwin v. Superior Court, 1 Cal.3d 423, at pp. 426--427, 82 Cal.Rptr. 484, 462 P.2d 12. See also Pendergraft v. Superior Court (1971) 15 Cal.App.3d 237, 242, 93 Cal.Rptr. 155.)

Clearly the officers upon seeing a young female engaged in a 'prostitution stroll' after 10 p.m. on a public street in an area where prostitution abounds, had the right, indeed the duty, to detain and question her regarding her activities. The officers did not observe any acts of solicitation by the minor nor any act of prostitution and questioning her elicited no information concerning prostitution. There was, thus, no basis for further detention of the minor for any prostitution related crime. However, following the initial questioning of the minor, the officers ascertained she was in fact under eighteen years of age and was in ostensible violation of the curfew ordinance since it was after 10 p.m. The ordinance read as follows: 'It is unlawful for any Minor under the age of eighteen years to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places and public buildings, places of amusement and eating places, vacant lots or any unsupervised place between the hours of ten p.m. and daylight immediately following; provided, however, that the provisions of this section do not apply when the minor is accompanied by his or her parents, guardian or other adult person having the care and custody of the minor, or when the minor is upon an emergency errand directed by his or her parent or guardian or other adult person having the care and custody of the minor or when the minor is returning directly home from a meeting, entertainment, recreational activity or dance. Each violation of the provisions of this section shall constitute a separate offense. (Ord. 355, § 1, 1949).' After further questioning revealed she was going to the Greyhound Bus Depot to meet a friend the officers placed her under arrest for violation of the Sacramento Curfew Ordinance.

The minor was unquestionably in violation of the ordinance unless she came within one of the three exceptions spelled out in the ordinance. The first exception does not assist the minor since it was obvious she was not accompanied by her parents or other person having her custody. The second and third exceptions relate to (a) the minor being on an emergency errand for a parent or one in custody or (b) the minor returning directly home from a meeting or recreational activity. From the answers given by the minor to the questions asked by the police it can be readily and reasonably inferred that she was not on an errand nor was she returning directly home from a recreational activity.

Under the totality of circumstances we hold that the officers could conscientiously entertain an honest and strong suspicion that the minor was in violation of the curfew ordinance. Accordingly the officers had probable cause to arrest the minor for a violation of the curfew ordinance and conduct the search incident to the arrest.

II

We turn to a consideration of the constitutionality of the ordinance. Appellant contends that the ordinance violates article 1, section I, of the California Constitution and the Fourteenth Amendment of the United States Constitution in that it unreasonably interferes with the exercise of personal rights guaranteed by these provisions by being too broad and discriminatory. Respondent argues that the statute is not overly broad or discriminatory in that it proscribes 'loitering' and not 'presence'; it applies to juveniles and not adults; and contains reasonable exceptions.

Appellant agrees that the City of Sacramento had a right to...