People v. Superior Court (Hartway)

• Decision Date: 27 April 1977
• Docket Number: S.F. 23477
• Citation: 562 P.2d 1315,138 Cal.Rptr. 66,19 Cal.3d 338
• Court: California Supreme Court
• Parties: , 562 P.2d 1315 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; Cynthia HARTWAY et al., Real Parties in Interest.

Page 66

138 Cal.Rptr. 66

19 Cal.3d 338, 562 P.2d 1315

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF ALAMEDA COUNTY, Respondent;

Cynthia HARTWAY et al., Real Parties in Interest.

S.F. 23477.

Supreme Court of California, In Bank.

April 27, 1977.

Rehearing Denied May 26, 1977.

[562 P.2d 1316] Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., and Martin S. Kaye, Deputy Attys. Gen., for petitioner

[562 P.2d 1317] No appearance for respondent.

James C. Hooley, Public Defender, and Michael G. Millman, Asst. Public Defender, for real parties in interest.

Ephraim Margolin, Nicholas Arguimbau, San Francisco, Margaret C. Crosby, Berkeley, Charles C. Marson, Alan L. Schlosser, Ellen Chaitin, San Francisco, Mark I. Soler and Treuhaft, Walker, Brown & Cooper, Oakland, as amici curiae on behalf of real parties in interest.

CLARK, Justice.

The People petition for a writ of prohibition to prevent respondent superior court from enforcing its order directing that a peremptory writ of prohibition issue restraining the Municipal Court for the Oakland-Piedmont Judicial District from proceeding with prosecution of defendants, real parties in interest herein.

Defendants are women charged with soliciting or engaging in prostitution. ¹ (Pen. Code, § 647, subd. (b).) ² They moved in municipal court for dismissal of the charges on the grounds that section 647, subdivision (b), is unconstitutional on its face and as applied by the Oakland Police Department. The principal questions presented by the motion were: (1) whether the term 'solicit' as used in the statute is unconstitutionally vague; and (2) whether the Oakland Police Department deliberately discriminates against women in enforcing the statute. After a thorough evidentiary hearing into the latter question, the municipal court filed comprehensive findings of fact and conclusions of law, resolving both questions against defendants, and denied the motion.

Upon application by defendants, respondent superior court then issued its writ restraining trial proceedings. Disagreeing with the trial court on both questions, respondent held: (1) Section 647, subdivision (b), is unconstitutional on its face insofar as it prohibits soliciting an act of prostitution. The term 'solicit' is too vague to provide fair notice of offending conduct, a requisite of due process under the federal and California Constitutions. However, the invalid solicitation provision is severable from the remainder of the statute, leaving intact the prohibition against engaging in an act of prostitution. (2) Section 647, subdivision (b), is also unconstitutional as applied by the Oakland Police Department. That department systematically discriminates against women in enforcing the statute, denying them equal protection of the law. The municipal court's contrary conclusion is not supported by the record.

Like the municipal court, and unlike respondent superior court, we find the challenged statute to be constitutional both on its face and as applied. Accordingly, we grant the People's petition for a peremptory writ of prohibition. ³

VAGUENESS

The solicitation provision of section 647, subdivision (b), is not so vague as to deny an accused due process of law under the federal or California Constitutions.

The federal due process standard was recently restated in Rose v. Locke (1975) 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185. Rejecting the contention that a statute prohibiting a 'crime against nature' was unconstitutionally vague, the high court observed: 'It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an Similarly, under California law, "Reasonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.' It will be upheld if its terms may be made reasonably certain by reference to other definable sources.' (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218, 28 Cal.Rptr. 700, 709, 379 P.2d 4, 13; citations omitted; see County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673, 114 Cal.Rptr. 345, 522 P.2d 1345; People v. Victor (1965) 62 Cal.2d 280, 300, 42 Cal.Rptr. 199, 398 P.2d 391.)

[562 P.2d 1318] individual 'criminally responsible for conduct which he could not reasonably understand to be proscribed.' But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for '(i)n most English words and phrases there lurk uncertainties.' Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty that some statutes may compel or forbid. All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.' (Id. at pp. 49--50, 96 S.Ct. at 244, citations omitted.)

'Solicit' was defined in a related context--soliciting for a prostitute, i.e., pimping (Pen.Code, § 266h)--in People v. Phillips (1945) 70 Cal.App.2d 449, 160 P.2d 872. "To tempt (a person); to lure on, esp. into evil, . . . to bring about, forth, on, etc., by gentle or natural operations; to seek to induce or elicit; . . .(') (Webster's New International Dictionary (2d ed.) (.)) 'To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain. . . . While it does imply a serious request, it requires no particular degree of importunity, entreaty, imploration or supplication. . . .' (58 C.J. 804--805.)' (70 Cal.App.2d at p. 453, 160 P.2d at p. 874.)

Phillips was among the sources this court relied upon in defining 'solicit' in the contest of an action to enjoin a former employee from soliciting customers of his former employer. "Solicit' is defined as: 'To ask for with earnestness, to make petition to, to endeavor to obtain, to awake or excite to action, to appeal to, or to invite.' (Black's Law Dictionary, 3d ed., p. 1639.) 'It implies Personal petition and importunity addressed to a particular individual to do some particular thing, . . .' (Golden & Co. v. Justice's Court, 23 Cal.App. 778, 798, 140 P. 49, 58.) It means: "To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain. ". (People v. Phillips, 70 Cal.App.2d 449, 453, 160 P.2d 872, 874.)' (Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198, 203--204, 246 P.2d 11, 15.)

Amici are critical of a portion of the Phillips definition which this court deleted in quoting from that case in Aetna. The passage in question defines 'solicit' as: "To tempt (a person); to lure on, esp. into evil, . . . to bring about, forth, on, etc., by gentle or natural operations; to seek to induce or elicit; . . . (')' (People v. Phillips, supra, 70 Cal.App.2d at p. 453, 160 P.2d at p. 874.) If merely 'tempting' a person to engage in an act of prostitution constitutes solicitation within the meaning of section 647, subdivision (b), then, amici contend, one could be convicted for 'waving to a passing vehicle, nodding to a passing stranger, or standing on a street corner in a miniskirt.'

We agree that such conduct, per se, should not be deemed a violation of the statute. However, there is no evidence in this record that anyone has been arrested for, much less convicted of, soliciting an act of prostitution on the basis of such ambiguous Although most solicitations are verbal, we are not prepared to accept amici's suggestion that the concept be limited, for the purposes of this statute, to 'verbal offers.' If we so held, well-advised prostitutes would immediately enroll in sign language courses. Nor are we willing to accept another of amici's suggestions--that solicitations be limited to offers specifying both price and services. There is a significant difference between avoiding the prohibited and evading the prohibition. The statute now satisfies due process by giving the innocent sufficient warning of that which is prohibited that they may avoid it. The 'clarifications' sought by amici would simply give the guilty means of evading the prohibition.

[562 P.2d 1319] conduct. To the contrary, the evidence indicates that persons arrested for this crime not only make their entreaties verbally, but, assuming one is familiar with their jargon, express themselves in language of brutal clarity.

'The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.' (Colten v. Kentucky (1972) 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584.) The challenged statute, insofar as it prohibits soliciting an act prostitution, satisfies this standard.

DISCRIMINATORY ENFORCEMENT

The Oakland Police Department, in enforcing section 647, subdivision (b), does not deliberately discriminate against women and thereby deny them equal protection of the law.

The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a), of the California Constitution prohibit all state action denying any person 'equal protection of the laws.'

In Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, this court pointed out that...