People v. Bruno

• Decision Date: 24 December 1962
• Docket Number: No. 25698,25698
• Citation: 27 Cal.Rptr. 458,211 Cal.App.2d Supp. 855
• Parties: 211 Cal.App.2d Supp. 855 The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Mickel BRUNO, Defendant and Appellant. Appellate Department, Superior Court, Sacramento County, California
• Court: California Superior Court

Page 458

27 Cal.Rptr. 458

211 Cal.App.2d Supp. 855

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph Mickel BRUNO, Defendant and Appellant.

No. 25698.

Appellate Department, Superior Court, Sacramento County, California.

Dec. 24, 1962.

Walter C. Frame, Sacramento, for appellant.

John M. Price, Dist. Atty., and John J. Boskovich, Deputy Dist. Atty., for respondent.

FRIEDMAN, Judge.

Penal Code, section 647 is the new disorderly conduct law, enacted in 1961, to replace the obsolete and partially unconstitutional vagrancy law (see In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116). It provides in part: 'Every person who commits any of the following acts shall be guilty is disorderly conduct, a misdemeanor: * * *. (e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.'

Defendant was convicted of violating the quoted provision and appeals. Primarily he contends that the evidence is insufficient to support his conviction. He also argues inadequacy of the complaint. The latter contention, made for the first time on appeal, comes too late. Penal Code, section 1003; People v. Barry, 153 Cal.App.2d 193, 314 P.2d 531. While asserting statutory vagueness, he expressly foregoes any constitutional attack on the statute.

A settled statement has been filed, outlining the following facts: Defendant was arrested in an unincorporated residential area at approximately 8:50 p. m. on February 10, 1962. Earlier in the evening a Mr. Bill Little had pursued a man down one of the neighborhood streets. The man wore a dark jacket. Another resident of the neighborhood, Mrs. Fanger, saw a stranger in her garage. He wore a dark jacket and dark trousers with tapered legs. Mrs. Fanger telephoned the sheriff's office, reporting a prowler. Deputy Sheriff Kohlmeyer responded to the call and checked the neighborhood. Five blocks distant from the Fanger residence he saw defendant walking. Defendant told the officer that he had been visiting a friend named Mike; that he did not know where Mike lived and could give no address; that he was going to work at a cafe in North Sacramento where he was employed as a dish washer. Defendant produced a social security card. He admitted that he was a parolee. Mrs. Fanger could not identify him as the man she had seen in her garage. Two aspects of the facts seem particularly noteworthy to us. First, at the time of stopping defendant the officer had no information as to the appearance of the person seen in Mrs. Fanger's garage. Secondly, the officer had no awareness of the incident described by Mr. Little.

Defendant's brother-in-law, W. M. Thomason, lives in the same general area. Mr. Thomason testified that the defendant had been his dinner guest and had started to walk to work at the Emerald Cafe; that Middlebury Road, where defendant was apprehended, was on the best route to the cafe; that he Thomason, had offered to drive defendant to the cafe, but the latter had decided to walk; that defendant cannot read. Defendant's sister, Mrs. Thomason, gave somewhat similar testimony. She stated that defendant was wearing a dark gray tweed sport coat and dark blue 'levi's with tapered legs. Defendant testified that he had had dinner with his sister and her family; that he decided to walk to his employment from his sister's home as he had on previous occasions; that he had not 'prowled.' He described his proposed route from the Thomason home to the Emerald Cafe, which route included the street on which Officer Kohlmeyer had stopped him. He also testified that he had a friend named Mike in North Sacramento; that he did not know Mike's address or last name.

The night manager of the Emerald Cafe testified that defendant had been employed there for six months; that he was steady and faithful; that defendant's shift started at 10:00 p. m., but he usually appeared before 9:00 o'clock. Defendant was due at work on the night of this arrest.

To produce a conviction under Penal Code, section 647(e) the prosecution must prove: (a) that the accused was loitering or wandering without apparent reason or business; (b) that, although requested by an officer, he refused to identify himself and account for his presence, and (c) that public safety considerations reasonably indicated a necessity for the defendant's identification.

Anti-loitering statutes have been the source of much legislative and judicial difficulty (see In re Cregler, 56 Cal.2d 308, 14 Cal.Rptr. 289, 363 P.2d 305; Phillips v. Municipal Court, 24 Cal.App.2d 453, 75 P.2d 548; cf. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654). They represent an arena for conflict between healthy antipathy to the 'route' or arrest on suspicion, on the one hand, and legitimate interests in crime prevention, on the other. Security against arbitrary police intrusion is basic to a free society (Wolf v. Colorado, 338 U.S. 25, 26, 27, 69 S.Ct. 1359, 93 L.Ed. 1782). Thus, arrests on mere suspicion offend our constitutional notions. Frequently they amount to arrest for status or condition instead of unlawful conduct. Most of the provisions of the now-repealed vagancy statute (former Penal Code, section 647) were concerned with status rather than conduct.

At the opposite side of the scale is the view that law enforcement officers need not wring their hands in constitutional frustration while nighttime prowlers and potential thieves and rapists skulk through our neighborhoods. The usual accommodation between these warring notions is the concept of 'reasonable cause,' that is, an officer may properly inquire, search and sometimes arrest if he has reasonable cause to believe that a crime has been committed (People v. Simon, 45 Cal.2d 645, 290 P.2d 531; People v. West, 144 Cal.App.2d 214, 300 P.2d 729).

Section 647(e) is itself the product of such a reconciliation. In its original form it was drafted by Professor Arthur Sherry of the University of California School of Law. (See, Sherry, Vagrants, Rogues and Vagabonds--Old Concepts in Need of Revision, 48 Cal.L.R. 557 (Oct., 1960)). As published by Professor Sherry, the draft read as follows: 'Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do.' The 'reasonable man' clause which appears in the present statute was added to the Sherry draft by the Assembly Interim Committee on Criminal Procedure. (Assembly Interim Committee Reports, 1959-61, Vol. 22, No. 1, pages 14-18.) It was literally extracted from a dictum in Gisske v. Sanders, 9 Cal.App. 13, 16, 98 P. 43, 45, which had been confirmed by the State Supreme Court in People v. Simon, 45 Cal.2d 645, 290 P.2d 531; 'A police officer has a right to make inquiry in a proper manner of anyone upon the public streets at a late hour as to his identify and the occasion of his presence, if the surroundings are such as to indicate to a reasonable man that the public safety demands such identification.'

The Assembly Committee's draft was embodied in a bill which was subsequently enacted as Penal Code, section 647. In effect, the statute as now drawn attempts to extend the power of inquiry and arrest to peace officers when demanded by reasonable considerations of public safety, while preventing the abuses inherent in arbitrary or dictatorial police interference. A statute which embodies these complex notions is difficult to draft and difficult to apply.

We consider whether the conduct of the defendant Bruno falls within the loitering or wandering clause of the statute. When accosted by the officer, Bruno was walking along a residential street in the early night hours. His counsel contends that Bruno was neither loitering nor wandering, but was walking to work, or, in statutory terms, that he had apparent reason for being on the street. The contention assumes acceptance of the defense testimony. Bruno's conviction by the trial court necessarily implies rejection of that testimony. We must assume in favor of the conviction the existence of every fact which the trial court could have reasonably deduced from the evidence. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.) The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. (People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911.)

In daily parlance 'wandering' has a fairly innocent connotation. Here it appears in a criminal statute and is endowed with a somewhat more unpleasant color, indicative of one whose movements are coupled with criminal aims. It has been held that 'loitering' as used in a criminal statute has a sinister connotation, which includes waiting, but excludes that notion of waiting for a lawful purpose. (In re Cregler, supra, 56 Cal.2d 308, 312, 14 Cal.Rptr. 289, 363 P.id 305.) Similarly here, if prohibited loitering consists of waiting for evil purposes, so prohibited wandering consists of movement for evil purposes. Three aspects of the testimony seem noteworthy at this point: First, defendant does not deny having told the officer he had been visiting 'Mike,' although he now testifies, consistently with his sister and brother-in-law, that he had been at the latters' home for dinner. Second, defendant has never identified Mike or supplied Mike's address, other than by designating the general area of North Sacramento. Third, the location at which Deputy Kohlmeyer stopped defendant is on a possible, fairly direct route to defendant's place of employment. His proposed route, as actually described by him, is quite circuitous.

In view of the inconsistencies and...