Pryor v. Municipal Court

• Court: United States State Supreme Court (California)
• Writing for the Court: TOBRINER; BIRD; CLARK
• Citation: 158 Cal.Rptr. 330,25 Cal.3d 238,599 P.2d 636
• Parties: , 599 P.2d 636 Don Barry PRYOR, Petitioner, v. The MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30901.
• Decision Date: 07 September 1979

Page 330

158 Cal.Rptr. 330 25 Cal.3d 238, 599 P.2d 636 Don Barry PRYOR, Petitioner,
v.
The MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Respondent;
The PEOPLE, Real Party in Interest. L.A. 30901. Supreme Court of California. Sept. 7, 1979.

[25 Cal.3d 243]

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[599 P.2d 638] Thomas F. Coleman and Coleman & Kelber, Los Angeles, for petitioner.

Donald C. Knutson, Los Angeles, Jerel McCrary, Paul Edward Geller, San Franciso, Jill Jakes, Fred Okrand, Terry Smerling, Mark D. Rosenbaum, Steven T. Kelber, Los Angeles, Arthur C. Warner and Martha Goldin, Hollywood, as amici curiae for petitioner.

Burt Pines, City Atty., Laurie Harris and Mark L. Brown, Deputy City Attys., for real party in interest.

John W. Witt, City Atty., Jack Katz, John M. Kaheny and James J. Thomson, Jr., Deputy City Attys., San Diego, as amici curiae for real party in interest.

TOBRINER, Justice.

Defendant Don Pryor seeks prohibition to bar his trial on a charge of violating Penal Code section 647, subdivision (a). This section declares that a person is guilty of disorderly conduct, a misdemeanor, "Who solicits anyone to engage in or who engages in Lewd or [25 Cal.3d 244] dissolute conduct in any public place or in any place open to the public or exposed to public view." (Emphasis added.) [599 P.2d 639] We agree with defendant that the phrase "lewd or dissolute conduct" as construed by past decisions is unconstitutionally vague. If, however, we can reasonably construe the statute to conform with the mandate of specificity, we should not, and will not declare the enactment unconstitutional. Consequently, rejecting prior interpretations of this statute, we adopt a limited and specific construction consistent with the present function of section 647, subdivision (a), in the California penal statutes; we construe that section to prohibit only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves the touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct. As so construed, section 647, subdivision (a), complies with constitutional standards; we therefore deny defendant's petition for writ of prohibition.

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On May 1, 1976, defendant solicited an undercover police officer to perform an act of oral copulation. He was arrested; a search incident to that arrest revealed defendant's possession of less than one ounce of marijuana. Defendant was charged with violating Penal Code section 647, subdivision (a), by soliciting a lewd or dissolute act, and with violating Health and Safety Code section 11357, subdivision (b), by possession of less than one ounce of marijuana.

Defendant moved to suppress the introduction of the marijuana, contending that section 647, subdivision (a) was unconstitutional on the ground of vagueness, and hence that the search was not incident to a lawful arrest. When that motion was denied, defendant pled guilty to the marijuana charge. He subsequently appealed that conviction under Penal Code section 1538.5, but the appellate department affirmed the convictions.

Defendant proceeded to trial on the charge of soliciting a lewd or dissolute act in violation of section 647, subdivision (a). At trial, the officer testified that he parked his car a few feet from where defendant was standing. Defendant came over, and after a brief conversation, suggested oral sex acts. Looking at a nearby parking lot, defendant said "We could probably sit and park in the parking lot." The officer suggested instead that they go to his home. Defendant agreed, entered the car, and was arrested.

[25 Cal.3d 245] Defendant's version of the incident differs only in that he denies making any statement about the parking lot, but maintains instead that the only situs discussed was the officer's home. Thus both defendant and the officer agree that defendant, while in a public place, solicited an act of oral sex; they disagree only whether defendant suggested the act itself occur in a public place.

Over defendant's objection, the trial court instructed the jury that oral copulation between males is "lewd or dissolute" as a matter of law. The court further instructed over objection that "If the solicitation occurred in a public place, it is immaterial that the lewd act was intended to occur in a private place." (CALJIC No. 16.401.) Despite these instructions, which virtually compelled the jury to find defendant guilty, the jury deadlocked and the court declared a mistrial.

Defendant then filed the instant petition for writs of prohibition and mandate with this court, raising various points in connection with the marijuana conviction and the pending retrial for solicitation of lewd or dissolute conduct. We issued an alternative writ of prohibition "limited to the proceedings in the municipal court related to retrial of the charge of violating section 647, subdivision (a) of the Penal Code. . . ." Thus no issue respecting the marijuana conviction is presently before this court.

With respect to the approaching retrial, defendant first seeks to prohibit the court from instructing the jury that public solicitation of an act to be performed in private is criminal and that oral copulation between males is lewd and dissolute as a matter of law. Because the writ of prohibition does not lie to prevent merely anticipated error [599 P.2d 640] (see 5 Witkin, Cal.Procedure (2d ed. 1971) p. 3810 and cases there cited), defendant's objection to anticipated jury instructions states no basis for present relief. Defendant's further contention that section 647, subdivision (a) is unconstitutionally vague, however, states a basis for issuance of prohibition since a court lacks jurisdiction to proceed to trial under a facially unconstitutional statute. (Dillon v. Municipal Court (1971) 4 Cal.3d 860, 866, fn. 6, 94 Cal.Rptr. 777, 484 P.2d 945; see In re Berry (1968) 68 Cal.2d 137, 145, 65 Cal.Rptr. 273, 436 P.2d 273; In re Cregler (1961) 56 Cal.2d 308, 309, 14 Cal.Rptr. 289, 363 P.2d 305.)

Past decisions of the Court of Appeal and the appellate department of the superior court have held that section 647, subdivision (a), is not [25 Cal.3d 246] unconstitutionally vague. ¹ That

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issue, however, reached this court on only one prior occasion. In In re Giannini (1968) 69 Cal.2d 563, 72 Cal.Rptr. 655, 446 P.2d 535, a topless dancer was charged with violating section 647, subdivision (a). Reasoning that her dance was presumptively a communication protected by the First Amendment and that such communications lose protection only if they are "obscene," we equated the statutory term "lewd or dissolute" with obscenity. So interpreted, we stated that the vagueness objection to the statute was not tenable. (69 Cal.2d at p. 571, fn. 4, 72 Cal.Rptr. 655, 446 P.2d 535.)

We do not regard Giannini as controlling in the present case. In the first place, we expressly limited our interpretation of "lewd or dissolute" as "obscene" only to the "present purpose of determining the alleged obscenity of a dance performed before an audience for entertainment," (p. 571, fn. 4, 72 Cal.Rptr. p. 661, fn. 4, 446 P.2d p. 541, fn. 4) an activity which, we reasoned, involved "communication of ideas, impressions and feelings" (p. 570, 72 Cal.Rptr. p. 660, 446 P.2d p. 540) and could not be banned unless it were obscene. Defendant Pryor, by way of contrast, is not charged with a lewd, dissolute or obscene Communication, but with soliciting a lewd or dissolute act; the Giannini definition of the statutory terms thus does not apply to the present case. Moreover, the reasoning which led this court to apply an obscenity test to reverse the conviction in In re Giannini was itself repudiated by a majority of this court in Crownover v. Musick (1973) 9 Cal.3d 405, 107 Cal.Rptr. 681, 509 P.2d 497.

We therefore turn afresh to the issue whether the language of section 647, subdivision (a), is sufficiently specific to meet constitutional standards. In analyzing this issue, we look first to the language of the statute, then to its legislative history, and finally to California decisions construing the statutory language. (See In re Davis (1966) 242 Cal.App.2d 645, 51 Cal.Rptr. 702.)

The statutory terms "lewd" and "dissolute" are not technical legal terms, but words of common speech. (Cf. In re Newbern (1960) 53 Cal.2d 786, 795, 3 Cal.Rptr. 364, 350 P.2d 116.) In ordinary usage, they do not imply a definite and specific referent, but apply broadly to conduct which [25 Cal.3d 247] the speaker considers beyond the bounds of propriety. Thus, speaking of the term "lewd," the court in Morgan v. City of Detroit (E.D.Mich.1975) 389 F.Supp. 922, 930, observed that all definitions of that term in ordinary usage are "subjective," dependent upon the speaker's "social, moral, and cultural bias." The term "dissolute" is, if anything, even less specific; while "lewd" implies a sexual act, "dissolute" can refer to nonsexual acts which exceed subjective limits of propriety. (Edelman v. California (1953)344 U.S. 357, 365, 73 S.Ct. 293, 97 L.Ed. 387 (Black, J. dis.); see People v. Jaurequi (1956) 142 Cal.App.2d 555, 560-561, 298 P.2d 896 (narcotics addict a "dissolute person").)

[599 P.2d 641] Finding, therefore, that the facial language of section 647, subdivision (a) is not sufficiently certain to bring the statute into compliance with due process standards, we turn to examine legislative history as a guide to its construction. The Legislature enacted present section 647, subdivision (a) in 1961 to replace former section 647, subdivision 5, which provided that "Every lewd or dissolute person . . . is a vagrant, and is punishable (as a misdemeanant)." That earlier enactment formed part of California's vagrancy law, a venerable but archaic...