People v. Gary H. (In re Gary H.)

Decision Date23 February 2016
Docket NumberNo. B264078,B264078
Citation198 Cal.Rptr.3d 888,244 Cal.App.4th 1463
CourtCalifornia Court of Appeals Court of Appeals
Parties IN RE GARY H., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Gary H., Defendant and Appellant.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.


Police arrested 17–year–old Gary H. (Gary) after they found him loitering near a school. The District Attorney in Los Angeles filed a petition under Welfare and Institutions Code section 602 charging him with violating Penal Code section 653b,1 loitering about a school, and Health and Safety Code section 11350, possession of a controlled substance. At a contested adjudication hearing, the juvenile court dismissed the controlled substance charge but found the loitering charge true and placed Gary home on probation. We consider whether section 653b is unconstitutionally vague and whether sufficient evidence supports the juvenile court's true finding.


The facts are not complicated. Gary attended Jane Addams High School in Granada Hills until school administrators dismissed him for committing what were described at the adjudication hearing as "various infractions." On September 30, 2014, police arrested Gary near his old school. We summarize the events that led to his arrest that day, and the subsequent juvenile court proceedings.

James Kilroy was the principal at Jane Addams High, and he knew Gary as a prior student of the school. At approximately 1:00 p.m., the students at Jane Addams were leaving for the day, and Kilroy was standing near the front gate in the chain link fence around the school. He observed Gary and another student on the sidewalk outside the gate, and they were having an "animated, angry exchange" with a student inside the high school gate. Kilroy believed the exchange was heated because voices were raised and Gary and his companion were yelling "angry sort of stuff" to someone inside the gate. Kilroy told his students to get back inside the school and he told Gary and the other student outside the gate "to move on their way, basically to knock it off."

After Kilroy told Gary and his companion to leave, they quickly went around the corner to another street abutting the high school campus. On that street, there is another chain link fence gate to the school, and Kilroy hustled over to that spot; he thought a fight might break out and he was afraid that someone was going to hop the fence. At this point, Kilroy was outside the fence on the sidewalk and he saw Gary and his companion up close to the fence "saying stuff" and making "angry, animated sort of gestures to somebody inside [the] high school." Kilroy told Gary and the other student to "get out of here," or words to that effect.

When Kilroy told both minors to leave, they "basically ignored" Kilroy. Gary was dismissive and said something to the effect of, "Go back to your office. I don't have to do what you say." Kilroy warned Gary and the other minor that he would have to call the school police if they did not leave. They responded by telling Kilroy to go ahead and call the police, which he did.

Within a couple minutes, police patrol cars arrived on the scene. Fernando Ochoa, one of the responding officers, saw Gary and his companion, and the two juveniles began to walk away when they saw the police. Kilroy waived at the police and pointed at Gary and the other minor. Ochoa and his partner told Gary and his companion to stop walking away because the officers needed to talk to them. Ochoa described Gary as "verbally aggressive" because he did not want to obey Ochoa's command to stop. Gary told Ochoa that he (Gary) knew what he was doing there, that he knew his rights, and that Ochoa could not talk to him or stop him. Gary eventually stopped, however, and when he did, Kilroy identified Gary and his companion as the two minors that prompted his call to the police. Ochoa placed Gary in handcuffs for security purposes. Gary again said he knew his rights and told Ochoa he had no probable cause for the stop. After a pat-down search (during which they found him in possession of a Xanax pill), officers arrested Gary.

At the juvenile court adjudication hearing, Gary testified in his own defense. According to Gary, he was outside Jane Addams High during the afternoon in question to meet with one of his friends. While he was outside waiting, he was talking to his friends, one of whom told Gary that two of his buddies were going to "get into some type of altercation." Gary testified that he walked around the corner to the school's side gate and learned that his friend Jose was supposedly going to fight his friend Diego. Gary asked both friends why they were going to fight and what the problem was, telling both he thought they were friends. Gary further testified that when Officer Ochoa arrived on the scene and told Gary to come over, Gary "kind of like hesitated" and was about to walk away. But when Gary saw a second police car arrive, he complied with Officer Ochoa's directions.

On cross-examination, Gary admitted he was "kicked out" of Jane Addams High because he failed to do his detention hours. Gary also admitted that Kilroy told him to leave two or three times and it was only at that point that Gary started walking up the street. According to Gary, Kilroy followed and was "trying to have me obey some type of order," although Gary could not recall exactly what Kilroy was saying. Gary told Kilroy to go back to his office and leave him alone.

After the presentation of evidence, the juvenile court heard argument from counsel. Gary's attorney argued section 653b was "very vague," and "in order for [ ] section 653b to be constitutional, Gary must have been at the school with the intent to commit a crime, and we haven't heard any testimony to that effect." The deputy district attorney argued the evidence established the elements of loitering, including the element requiring proof of a suspect's intent to commit a crime if the opportunity arose.

The juvenile court sustained the section 653b charge as proven beyond a reasonable doubt, expressly finding that Gary remained at the school with intent to engage in a fight: "I'm going to find specifically that the minor was at or about the school in that he was on the sidewalk immediately adjacent to the school, that he had the specific intent to engage in a fight. That's why the principal asked him to leave. He was asked three times, and he still remained on the sidewalk adjacent to the school."


This case joins a question that is primarily factual, whether sufficient evidence supports the true finding on the section 653b charge, with a question that is primarily legal, whether section 653b is unconstitutionally vague. As we will demonstrate, the questions are interrelated. We hold that section 653b passes constitutional muster because it includes a scienter element: it requires proof that a person loitering near a school had the specific intent to commit a crime. We further hold the evidence was sufficient to establish Gary had such an intent in this case.


Section 653b, as it read at the time of Gary's offense (and as it reads today), provides in relevant part as follows: "[E]very person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or comes upon a school or place within 72 hours, after being asked to leave by the chief administrative official of that school ... is a vagrant, and is punishable by a fine of not exceeding one thousand dollars ($1,000) or by imprisonment in a county jail for a period not exceeding six months, or by both that fine and imprisonment. [¶] As used in this section, ‘loiter’ means to delay, to linger, or to idle about a school or public place without lawful business for being present." (§ 653b, subds. (a), (d).)

" ‘The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of "life, liberty, or property without due process of law," as assured by both the federal Constitution (U.S. Const., Amends. V, XIV ) and the California Constitution (Cal. Const., art. I, § 7 ).’ (Williams v. Garcetti (1993) 5 Cal.4th 561, 567, 20 Cal.Rptr.2d 341, 853 P.2d 507.) ‘All 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.)" (People v. Garcia (2014) 230 Cal.App.4th 763, 768, 178 Cal.Rptr.3d 883 ; see also People v. Morgan (2007) 42 Cal.4th 593, 605–606, 67 Cal.Rptr.3d 753, 170 P.3d 129.)

Relying on the accepted void-for-vagueness test, Gary contends section 653b does not define the proscribed offense "with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." ( Kolender v. Lawson (1983) 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (Kolender ); People v. Morgan, supra, 42 Cal.4th at p. 605, 67 Cal.Rptr.3d 753, 170 P.3d 129.) To understand why his contention fails, we must first describe the historical development of section 653b and another loitering statute, along with the judicial decisions interpreting each. (See generally McSherry v. Block (9th Cir.1989) 880 F.2d 1049, 1056–1057.)

The earliest statutory predecessor for what is now section 653b was section 647a,...

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