Velasco v. Municipal Court

• Citation: 195 Cal.Rptr. 108,147 Cal.App.3d 340
• Parties: Roque I. VELASCO, Petitioner, v. MUNICIPAL COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent, PEOPLE of the State of California, Real Party in Interest. AO20777.
• Decision Date: 26 September 1983
• Court: California Court of Appeals

Page 108

195 Cal.Rptr. 108

147 Cal.App.3d 340

Roque I. VELASCO, Petitioner, v. MUNICIPAL COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent, PEOPLE of the State of California, Real Party in Interest.

AO20777.

Court of Appeal, First District, Division 3, California.

Sept. 26, 1983.

Jeff Brown, Public Defender, City and County of San Francisco, Peter G. Keane, Chief Atty., Peter Ottenweller, Grace Lidia Suarez, Deputy Public Defenders, San Francisco, for petitioner.

John K. Van De Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Ann K. Jensen, Herbert F. Wilkinson, Morris Lenk, Deputy Attys. Gen., San Francisco, for real party in interest.

FEINBERG, Associate Justice.

Under scrutiny again is Penal Code section 650 1/2 , a venerable misdemeanor statute, part of which has been "said to be purposefully vague." (In re Davis (1966) 242 Cal.App.2d 645, 664, 51 Cal.Rptr. 702.) The issue before us is whether other portions of the statute, which proscribe wrongful use of another's name for a lewd or licentious purpose or to affect another's reputation, are also unconstitutionally vague or overbroad. We conclude that they are and that the trial court erred in overruling petitioner's demurrer.

Petitioner was initially charged with two counts of criminal libel in violation of Penal Code section 248. His demurrer was sustained on the ground that section 248 had been found unconstitutional (Eberle v. Municipal Court (1976) 55 Cal.App.3d 423, 127 Cal.Rptr. 594). The complaint was then amended to charge two counts of "wilfully and wrongfully and for accomplishing a lewd and licentious purpose" using the name of another "in a manner that had a tendency to affect her [his] moral reputation in the estimation of the person or persons to whom it was used" in violation of Penal Code section 650 1/2 .

Petitioner demurred to both counts. His demurrer was overruled by the Municipal Court. He then petitioned the Superior Court for a writ of mandate. When that petition was denied, he petitioned this court. We issued an alternative writ of mandate.

Penal Code section 650 1/2 is a complex statute, covering several diverse subjects. Although only two portions of the section are involved here, we will quote it in its entirety. For ease of reference in this opinion, we have subdivided the statute, adding numbers not present in the statute. Our numbering will appear in brackets.

"Penal Code section 650 1/2 : A person who wilfully and wrongfully commits any act which seriously injures the person or property of another or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, or who wilfully and wrongfully in any manner, verbal or written, uses another's name for accomplishing lewd or licentious purposes, whether such purposes are accomplished or not, or who wilfully and wrongfully uses another's name in any manner that will affect, or have a tendency to affect the moral reputation of the person whose name is used, generally, or in the estimation of the person or persons to whom it is so used, or who with intent of accomplishing any lewd or licentious purpose, whether such purpose is accomplished or not, personifies any person other than himself, or who causes or procures any other person or persons to identify him, or to give assurance that he is any other person than himself to aid or assist him to accomplish any lewd or licentious purpose, for which no other punishment is expressly prescribed by this code, is guilty of a misdemeanor."

As can be seen, the charges against petitioner are stated in a form which amalgamates and . He is charged with using the names of others for accomplishing a lewd and licentious purpose in a manner having a tendency to affect the moral reputations of the victims.

Petitioner contends that the phrase "uses another's name" is vague because it could mean either impersonates another or mentions another's name in communication. He notes that the terms "lewd and licentious" are similar to the phrase "lewd and dissolute" which the California Supreme Court has construed in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636 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 ... by a person who knows or should know of the presence of persons who may be offended." He argues that there is no reasonable way to inject that definition into Penal Code section 650 1/2 . Petitioner further argues that the term "moral reputation" has no fixed meaning among persons of common intelligence and asserts that the statute cannot make criminality depend upon the estimation of the person receiving the communication, whose private views of morality cannot be known by the potential criminal.

The Attorney General concedes that the complaint should be amended to allege a tendency to affect the victims' moral reputations generally, instead of in the estimation of the person or persons to whom the victims' names were used. However he disputes petitioner's other claims, arguing that "uses" and "moral reputation" are easily understood terms and that "lewd and licentious" may be given the same construction as used by the Pryor court for "lewd and dissolute."

In In re Davis (1966) 242 Cal.App.2d 645, 51 Cal.Rptr. 702, the court held that the portion of Penal Code section 650 1/2 which proscribed performing any act "which openly outrages public decency" (subd. ) was void for vagueness. The Davis court applied the "classic formulation of the test for unconstitutional vagueness" stated in Connally v. General Constr. Co. (1926) 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, as follows: "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And 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."

In Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 263, 150 Cal.Rptr. 813, a case involving wearing masks in public to conceal identity (Pen.Code, § 650a), this division elaborated upon the test of Connally:

"Vague statutes offend several important values, as explained by the United States and California Supreme Courts: ' "First, because 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.... Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.... Third, ... where a vague statute 'abut[s] upon sensitive areas of basic First Amendment freedoms' ... [u]ncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone.' ... than if the boundaries of the forbidden areas were clearly marked." ' (Braxton v. Municipal Court (1973) 10 Cal.3d 138, 151 [109 Cal.Rptr. 897, 514 P.2d 697], quoting Grayned v. City of Rockford (1972) 408 U.S. 104 at pp. 108-109 [33 L.Ed.2d 222, 227-228, 92 S.Ct. 2294, 33 L.Ed.2d 222].)"

"While the basic standard against which statutes must be measured for vagueness is a constant, the vigor with which that standard is applied varies with the determination whether a constitutionally protected right is involved." (People v. Barksdale (1972) 8 Cal.3d 320, 327, 105 Cal.Rptr. 1, 503 P.2d 257.) "... [S]tandards of permissible statutory vagueness are strict in the area of free expression." (N.A.A.C.P. v. Button (1963) 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405.) "Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression." (Thornhill v. Alabama (1940) 310 U.S. 88, 98, 60 S.Ct. 736, 742, 84 L.Ed. 1093. See Bloom v. Municipal Court (1976) 16 Cal.3d 71, 90, 127 Cal.Rptr. 317, 545 P.2d 229, Tobriner, J. dissenting.)

"Uses another's name" in subdivisions and .

Petitioner suggests three possible meanings for the phrase "uses another's name" in subdivisions and : (1) impersonates another, (2) mentions a person's name in correspondence, and (3) libels a person. He does not explain the distinction between (2) and (3). The Attorney General argues that "uses another's name" does not mean "impersonates another" because it would be redundant to prohibit impersonation in two different places in the same statute.

To put it kindly, Penal Code section 650 1/2 is not a model of clarity. Close examination of the three of its seven provisions relevant here raises more questions than it answers. The three provisions provide that a person:

who wilfully and wrongfully in any manner, verbal or written, uses another's name for accomplishing lewd or licentious purposes, whether such purposes are accomplished or not

who wilfully and wrongfully uses another's name in any manner that will affect, or have a tendency to affect the moral reputation of the person whose name is used, generally, or in the estimation of the person or persons to whom it is used

who with intent of accomplishing any lewd or licentious purpose, whether such purpose is accomplished or not, personifies any person other than himself.

and both address accomplishing a lewd or licentious purpose, making it illegal both to personify any person or...