People v. Superior Court (Caswell)

• Decision Date: 16 May 1986
• Docket Number: Nos. H000940,H001026,s. H000940
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 201 Cal.App.3d 1111 201 Cal.App.3d 1111 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 Party in Interest.

Page 68

226 Cal.Rptr. 68

Previously published at 201 Cal.App.3d 1111

201 Cal.App.3d 1111

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 Party in Interest.

Nos. H000940, H001026.

Court of Appeal, Sixth District, California.

May 16, 1986.

Review Granted July 31, 1986.

Leo Himmelscbach, Dist. Atty., Joseph V. Thibodeaux, Deputy Dist. Atty., San Jose, for the People.

Bruce W. Nickerson, Geoffrey A. Braun, Linda Campbell, San Jose, for real parties in interest.

Fred B. Rosenberg, Law Offices of Fred B. Rosenberg, San Francisco, for petitioner in No. H001026.

AGLIANO, Presiding Justice.

In these matters we conclude that on its face subdivision (d) of Penal Code section 647 is constitutionally valid and enforceable. We acknowledge, but respectfully disagree with, another Court of Appeal's conclusion to the contrary in People v. Soto (1985) 171 Cal.App.3d 1158, 1168, 217 Cal.Rptr. 795.

Penal Code section 647, subdivision (d), provides that "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [p].... [p] (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." Violation of the subdivision is a registrable sex offense. (Pen.Code, § 290, subd. (a).)

Ralph Alexander Caswell, Kenneth Eugene Grassi, and several other individuals were accused, in municipal court, of violations of subdivision (d). Each of them demurred to the charge on various constitutional grounds; The municipal court overruled each demurrer. The defendants then sought review in the superior court by petitions for extraordinary writs. In Grassi's case the petition was denied; a petition filed by Caswell and the remaining defendants was ultimately granted. In this court the People seek further pretrial writ review in all cases except Grassi's; Grassi has filed his own petition in a separate proceeding. We issued alternative writs and requested and received additional briefing in both matters; we ordered the matters on calendar to be argued and decided together.

The defendants attack the validity of subdivision (d) on its face; none of the facts of any of the cases is before us. In this court the defendants contend primarily that subdivision (d) is not definite enough to meet federal or state constitutional standards, in that it provides neither "a standard of conduct for those whose activities are proscribed" nor "a standard for police enforcement and for ascertainment of guilt." (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.) They also advance several contentions which they apparently intend to be distinct from their theory that the subdivision is not sufficiently definite, suggesting that the subdivision does not identify a cognizable criminal act, does not sufficiently establish an element of criminal intent, defines nothing more than a "status crime," and represents an impermissible attempt to regulate what the defendants characterize as mere "suspicious activity."

Because to do so will furnish a useful perspective for our consideration of the definiteness issues, we turn first to the group of contentions last described.

It is well established that, subject only to constitutional limitations, the Legislature may define crimes and set punishments as it sees fit, and that its power to do so is not restricted by definitions contained in the statutes of other states or in the common law. (People v. Knowles (1950) 35 Cal.2d 175, 181, 217 P.2d 1; Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765, 150 Cal.Rptr. 785, 587 P.2d 227; People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001; People v. Guthrie (1983) 144 Cal.App.3d 832, 844, 193 Cal.Rptr. 54; cf. also Rochin v. California (1952) 342 U.S. 165, 168, 72 S.Ct. 205, 207, 96 L.Ed. 183 ("Broadly speaking, crimes in the United States are what the laws of the individual States make them, subject to [constitutional] limitations ...").)

Most of the acknowledged constitutional limitations on this legislative power address not so much the power itself as the manner in which the Legislature may exercise it, stating, in essence, constitutional standards for legislative draftsmanship. One example is the requirement, which we shall discuss in detail, that a criminal statute be reasonably definite. Another is the so-called "overbreadth" doctrine: "[N]o statute may be drawn in such a way as to inhibit the exercise of individual freedoms affirmatively protected by the Constitution." (Findley v. Justice Court (1976) 62 Cal.App.3d 566, 571, 133 Cal.Rptr. 241.)

Constitutional limitation upon the legislative power itself is perhaps most commonly articulated in terms of the proscription upon cruel or unusual punishment. (U.S. Const., 8th and 14th Amends. ("cruel and unusual"); Cal. Const., art. I, § 17 ("cruel or unusual"); In re Lynch (1972) 8 Cal.3d 410, 414 et seq., 105 Cal.Rptr. 217, 503 P.2d 921.) "Implicit in the characterization of the constitutional prohibition as flexible and progressive is the notion that punishment may not be grossly disproportionate to the offense." (In re Reed (1983) 33 Cal.3d 914, 923, 191 Cal.Rptr. 658, 663 P.2d 216.) Courts from time to time conclude, logically, that it would in any event be cruel or unusual to punish conduct which, measured by some external standard of morality, should not be deemed an offense at all. A well-known example is Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, in which the U.S. Supreme Court invalidated a California statute that, in part, declared it to be a crime to "be addicted to the use of narcotics." The court acknowledged "[t]he broad power of a State to regulate the narcotic drug traffic within its borders" (Id. at pp. 664-665, 82 S.Ct. at p. 1419) and enumerated various legislative measures a state might properly take to exercise that power, but concluded that "narcotic addiction is an illness.... We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment." (Robinson v. California, supra, at p. 667, 82 S.Ct. at 1420; cf. People v. Olsen (1984) 36 Cal.3d 638, 650, 205 Cal.Rptr. 492, 685 P.2d 52 (dis. opn. of Grodin, J.).) More rarely one can find broader statements to the effect, without reference to cruel or unusual punishment, that the Legislature's power to define crimes does not in any event extend to conduct which embodies no element of abstractly-defined wrong or fault. (E.g., Findley v. Justice Court, supra, 62 Cal.App.3d 566, 571-572, 133 Cal.Rptr. 241 ("the state cannot proscribe entirely innocent activity, except insofar as may be incidentally necessary for the accomplishment of some paramount object concerning the public welfare").)

The defendants' general contentions may be summarized as an argument that to impose any criminal sanction upon the conduct described in subdivision (d) of Penal Code section 647 is impermissible. The argument is unpersuasive. In no sense can the conduct which subdivision (d) proscribes--loitering in or about a public toilet for the purpose of engaging in or soliciting any lewd, lascivious, or other unlawful act--be fairly characterized as "entirely innocent activity." Nor may it rationally be analogized to the illness which Robinson held not subject to criminal sanction. We find in subdivision (d) requirements that the defendant have knowingly placed himself in the situation and that he or she possess a specified animus, elements which clearly distinguish such a defendant from the passive occupier of a "status" to which the statute invalidated in Robinson was addressed. That the defined activity has not yet ripened into overt conduct against specific victims does not distinguish it from (for example) conspiracy (Pen.Code, § 182) or solicitation (Pen Code, § 653f). The defendants do not argue that there is no valid social purpose to be served by regulating ill-motivated conduct near public toilets: The need is apparent to anyone who, in our increasingly permissive times, has made legitimate use of such a facility. We conclude that the conduct described in subdivision (d) may validly be defined as a crime.

The defendants' stronger argument is that, as written, the definition is not sufficiently definite: That by constitutional standards it is fatally vague. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal 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. [Citations.] Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.' [Citation.] 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.' [Citation.]" (Kolender v. Lawson (1983) 461 U.S. 352, 257-358, 103 S.Ct. 1855, 1858-1859, 75 L.Ed.2d 903.)

"It goes without saying that '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...