People v. Superior Court (Caswell), S.F. 25040

• Court: United States State Supreme Court (California)
• Writing for the Court: ARGUELLES; LUCAS; MOSK; BROUSSARD
• Citation: 46 Cal.3d 381,250 Cal.Rptr. 515,758 P.2d 1046
• Parties: , 758 P.2d 1046, 57 USLW 2152 The PEOPLE, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent, Ralph Alexander CASWELL et al., Real Parties in Interest. Kenneth Eugene GRASSI, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent, The PEOPLE, Real Parties in Interest.
• Decision Date: 22 August 1988
• Docket Number: S.F. 25040

Page 515

250 Cal.Rptr. 515 46 Cal.3d 381, 758 P.2d 1046, 57 USLW 2152 The PEOPLE, Petitioner,
v.
The SUPERIOR COURT of Santa Clara County, Respondent,
Ralph Alexander CASWELL et al., Real Parties in Interest.
Kenneth Eugene GRASSI, Petitioner,
v.
The SUPERIOR COURT of Santa Clara County, Respondent,
The PEOPLE, Real Parties in Interest. S.F. 25040. Supreme Court of California,
In Bank. Aug. 22, 1988.
Rehearing Denied Oct. 13, 1988.

[46 Cal.3d 387]

Page 517

[758 P.2d 1048] Joseph V. Thibodeaux, Deputy Dist. Atty., San Jose, for the people.

Law Offices of Jay M. Kohorn, Redondo Beach, Law Offices of [46 Cal.3d 388] Bruce W. Nickerson, San Jose, Law Offices of Fred B. Rosenberg, San Francisco, for real parties in interest Caswell, et al. and petitioner Grassi.

ARGUELLES, Justice.

Penal Code section 647, subdivision (d) (hereafter section 647(d)) provides that any person "[w]ho loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act" is guilty of a misdemeanor. (All further statutory references are to the Penal Code unless otherwise stated.) In this proceeding, petitioners Ralph Caswell, Kenneth Grassi, and 14 other persons charged with violating this provision (hereafter defendants) seek dismissal of the charges on the ground that section 647(d) is unconstitutionally vague on its face. As we explain, after a review of the governing federal and state constitutional precedents and an analysis of numerous decisions from other states which have considered comparable vagueness challenges to similar, narrowly focused loitering provisions, we have concluded that section 647(d) is sufficiently definite to withstand defendants' facial constitutional attack.

FACTS

Defendants were charged in municipal court with violating section 647(d). In addition, several (but not all) of the defendants were also charged with the related misdemeanors of committing a lewd act in a public place ( § 647, subd. (a)) and indecent exposure. ( § 314, subd. 1.) All defendants demurred to the section 647(d) charge, claiming the statute was unconstitutionally vague. The municipal court overruled the demurrers and the superior court denied defendants' subsequent petitions for a writ of prohibition or mandamus. However, the superior court granted rehearing after being alerted to the recent filing of People v. Soto (1985) 171 Cal.App.3d 1158, 217 Cal.Rptr. 795, which declared section 647(d) unconstitutionally vague. After reconsideration, the superior court granted relief to all defendants except Grassi, whose writ petition was heard and denied by a different judge.

Both the People and Grassi sought appellate review and the Court of Appeal consolidated the cases. 226 Cal.Rptr. 68. Although cognizant of the decision in Soto, [46 Cal.3d 389] supra, 171 Cal.App.3d 1158, 217 Cal.Rptr. 795, the Court of Appeal declined to follow that decision and instead found section 647(d) constitutional. As a result, it let issue a peremptory writ of mandate in case number H000940 directing the respondent court to vacate its previous order granting a writ of prohibition or mandate and to instead enter a new order denying the writ petition; in case number H001026, Grassi's petition for a writ of mandate or prohibition was denied. We granted review to address defendants' claim that section 647(d) is unconstitutionally vague. Inasmuch as defendants attack only the facial validity of section 647(d), the underlying facts of these cases are not before us. (See People v. Glaze (1980) 27 Cal.3d 841, 844, 166 Cal.Rptr. 859, 614 P.2d 291, fn. 3.) ¹

DISCUSSION

That no person shall be deprived of life, liberty or property without due process of law is, of course, a cornerstone of our jurisprudence. (U.S. Const., Amends V, XIV; Cal. Const., art. I, § 7.) "The requirement of a reasonable degree of certainty in legislation, especially in the criminal

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law, is a well established element of the guarantee of due process of law." (In re [758 P.2d 1049] Newbern (1960) 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116.) To withstand a facial vagueness challenge under the due process clause, a statute must satisfy two basic requirements.

First, a statute must be sufficiently definite to provide adequate notice of the conduct proscribed. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. [Citations.]" (Connally v. General Const. Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; see also Colautti v. Franklin (1979) 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596; Smith v. Goguen (1974) 415 U.S. 566, 572, fn. 8, 94 S.Ct. 1242, 1247 fn. 8, 39 L.Ed.2d 605; Lanzetta v. New Jersey (1939) 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888; Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732, cert. den. & app. dism. 466 U.S. 967, 104 S.Ct. 2337, 80 L.Ed.2d 812; People v. Mirmirani (1981) 30 Cal.3d 375, 382, 178 Cal.Rptr. 792, 636 P.2d 1130; see also Cranston v. City of Richmond (1985) 40 Cal.3d 755, 221 Cal.Rptr. 779, 710 P.2d 845 [vagueness challenge to administrative regulation].) " '[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may [46 Cal.3d 390] trap the innocent by not providing fair warning.' " (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, quoting Grayned v. City of Rockford (1972) 408 U.S. 104, 108, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222.)

Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. "A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (Grayned, supra, 408 U.S. at pp. 108-109, fn. omitted, 92 S.Ct. at p. 2299.) "Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' " (Kolender v. Lawson (1983) 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, quoting Smith v. Goguen, supra, 415 U.S. at p. 575, 94 S.Ct. at p. 1248.)

We evaluate the provisions of section 647(d) against these two due process criteria.

A. Adequate notice

Section 647(d) provides: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: ... (d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act." As we shall see, particularly in light of the clarifying interpretation of the term "lewd and lascivious" in an earlier decision, it is clear that the section provides fair notice to the ordinary citizen of the act proscribed.

At the outset, we note past cases make clear that the statute is not rendered impermissibly indefinite by its use of the word "loiter." More than a quarter of a century ago, in In re Cregler (1961) 56 Cal.2d 308, 14 Cal.Rptr. 289, 363 P.2d 305, we sustained a different, much less specific, loitering statute against a vagueness challenge, explaining that "the word 'loiter' ... in our view has a sinister or wrongful ... implication," excluding "mere waiting for any lawful purpose" but connoting "lingering in the designated places for the purpose of committing a crime as opportunity may be discovered." (Id. at pp. 311-312, 14 Cal.Rptr. 289, 363 P.2d 305; see also People v. Teresinski (1982) 30 Cal.3d 822, 830, 180 Cal.Rptr. 617, 640 P.2d 753; In re Hoffman (1967) 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.) Section 647(d), of course, embraces such a "specific intent" requirement explicitly in its terms, providing that the statute is violated only when a

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person "loiters ... for the purpose of engaging in or soliciting any [46 Cal.3d 391] lewd or lascivious[758 P.2d 1050] or any unlawful act." (Emphasis added.) Persons of ordinary intelligence need not guess at the applicability of the section; so long as they do not linger for the proscribed purpose, they have not violated the statute.

On a number of occasions, the United States Supreme Court has emphasized the value that a specific intent requirement plays in overcoming the potential vagueness of a statute. As the court noted in Hoffman Estates, supra, 455 U.S. at page 499, 102 S.Ct. at p. 1193, "a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed." Because section 647(d)'s prohibition on loitering is expressly limited to those who loiter with a specifically defined illicit purpose or intent, the section is considerably narrower than other loitering statutes--like the provision at issue in Cregler--which were historically aimed at all manner of "idlers, loafers and wanderers." (See generally Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 156-157, 92 S.Ct. 839, 840-41, 31 L.Ed.2d 110; Sherry, Vagrants, Rogues and Vagabonds--Old Concepts in Need of Revision (1960) 48 Cal.L.Rev. 557, 559-601.)

Nor do the words "in or about any toilet open to the public" appear misleading or cryptic. "It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem" (Smith v. Peterson (1955) 131 Cal.App.2d 241, 246, 280 P.2d 522); "no more than a reasonable degree of certainty can be demanded." (Boyce Motor Lines v. United States (1952) 342 U.S. 337, 340, 72 S.Ct. 329...