*1 Dist., No. 26042. First Div. One. Oct. 8,1969.] [Civ.
ROBERT MANDEL, Appellant, Plaintiff THE THE COURT FOR OAKLAND-PIED
MUNICIPAL MONT JUDICIAL DISTRICT OF ALAMEDA COUNTY, Respondent; Defendant and THE PEOPLE, Party Respondent. Real Interest *3 "L, Brotsky, Garry, Dreyfus, McTernan & Donald A. Ker- son, E. Pesonen and Charles C. Marson for Plaintiff David Appellant. and Amici on of Plaintiff
Paul N. Curiae behalf Halvonik Appellant. and appearance Respondent.
No for Defendant and Harris, Lynch, Attorney General, W. Thomas C. Albert Jr., Attorney Granncci and Clif- General, Assistant Robert R. Respondent Thompson, Jr., ford K. for rand and Defendant Party Respondent. in for Real Interest and appealed judgment SIMS, has from a of the J.—Petitioner superior petition prohibi- court which denied his a writ of respondent municipal People, as tion to restrain court and the party pending in proceeding real from a criminal interest, in in charged vagrancy action counts of which he with five in 653g that violation of section of the Penal Code.1 He contends 653g because of overbreadth and unconstitutional respondent overruling and in his vagueness, that court erred complaint “du not demurrer the facts stated because public (Pen. Code, 1004, 4) constitute a offense” subd. § legal justifi- reveal if which, true, “matter would constitute charged, legal cation the offense or other bar to or excuse of prosecution” (id. 5). urges curiae the un- subd. Amicus joins in constitutionality the contention of the statute and petitioner engaged in that the facts stated show that was protected by the First and Fourteenth conduct Amendments of the United States Constitution. People throughout have insisted on the constitution-
ality acknowledge that as heretofore sus- of the statute. They pur- requires tained the statute that the violator act with pose act, and, ap- effectuating or intent of some criminal on peal they time, suggest for the first that such criminality may petitioner contributing the de- found because the was (Pen. linquency encouraging Code, 272) of minors tru- § (See 10609.) Code, 12401-12410, Ed. ancy. §§ § complaint It is that the stated fail concluded facts 653g provisions a violation of section as the show that upholding against section have been construed them at- they grounds, tacks do show that on constitutional petitioner protected by engaged activity in an which was was of the First and Amendment with- Fourteenth giving any of the state interest out cause for exercise protection safety particular health from the *4 any “Every 653g provides: person who loiters about school 1Seetion normally public place congregate or or at or near which children attend by exceeding vagrant, punishable a a in of not five hundred is and is fine jail ($500) by county exceeding imprisonment for not dollars or ’ ’ months, imprisonment. six both and or such fine contemplated by provisions 653g. of section evil which the. judgment The must"be reversed. The Record petition complaint filed on copy
The sets forth a of the April Municipal 16, 1968dn the for the Oakland-Pied Court ‘‘ réeites, undersigned, mont The Judicial District. Bach count being says said defend- sworn, belief, on information and that [judicial antis) did, in the on or about district] [various a, April dates from commit misde March Penal 653g meanor of the Code to wit: A violation of Section did of California in that said then there be defendant in vagrant meaning come that said within the of said public place at and did loiter school and about a defendant attend, near wit: counts em which school children [the high and three at an brace two incidents at one school following quota complaint The concludes with the other].” “ probable facts, ‘A which constitute tion: statement of the complaint, this cause for the issuance of a warrant based on ” (See incorporated Pen. attached hereto and reference.’ Code, People ; (1968) v. Sesslin 68 Cal.2d § Cal.Rptr. (1969) 393 321], 439 P.2d cert. den. U.S. 850]; L.Ed.2d v. Chimel Cal.Rptr. 421, 439 P.2d grounds on other 333] [revd. the suffi parties have assumed that ].) S.Ct. 2034]
ciency complaint of the determined from all to be Report” forth, including set facts those in the “Crime complaint incorporated reference. is attached to the determining adopts assumption This court the same without renege at prosecution, minded, if could whether the so tempt rely 952 of the Penal on the of section when it testing sufficiency complaint, in has Code2 to obtain á gone required by farther order than that section (Cf. Municipal Cal. Rainer v. Court warrant. Cal.Rptr. 500].) App.2d 925, 928-929 [64 offense, charging provides: “In an each Code section 2Penal substance, contain, if contains shall and shall be sufficient count public therein committed some offense statement specified. the accused has language ordinary may and concise be made Such statement any allegations any of matter not essen without technical averments describing of the enactment proved. It be in the words tial to be offense, declaring words matter to be a offense give which he is of the offense of accused notice sufficient ...” accused. *5 654 report
The
states that on 12 occasions between Febru-
ary 28,
April 3,
1968 and
1968, petitioner has been on the
campuses
high
of two
schools in Oakland. It
lists the vice-
principal
high
of one
reporting
school as the
and indi-
party,
cates
petitioner
stay
that he has warned the
off the
campus,3
provisions
653g
peti-
has read the
of section
to the
anti-draft,
tioner,
petitioner
and has
handing
observed the
out
According
report
vice-principal
leaflets.
to the
the
states that
petitioner
handing
has caused a disturbance in
out the
by having large groups
gather
leaflets
of students
around him
campus (see
above).
on
3,
fn.
Five other witnesses, includ-
police
ing
officers,
report
three
of whom one made the
and
signed
complaint,
having
peti-
axe listed as
observed the
carrying
passing
tioner
and
One,
out anti-draft
leaflets.
vice-principal
high school,
of the second
is noted as having
petitioner
told
stay
campus
number of times to
off the
charged
against
public peace.
3Petitioner has not been
with a crime
(See
Code,
11,
403-420, particularly §
Pen.
§§
tit.
404.6
[incitement
riot],
assembly],
[remaining present
§ 408
§
and
[rout
unlawful
409
after
warning
disperse
place
any riot, etc.],
[disturbing
§
from the
415
peace],
disperse
assembly].
§
and
416
after
[refusal
See
unlawful
People
(1968)
481,
Cal.Rptr. 547,
v. Davis
68 Cal.2d
484-486
439
[67
651];
(1966)
34,
Cal.App.2d
Cal.Rptr.
In
P.2d
re Bacon
240
48-51 [49
[hearing
Supreme
denied];
(1965)
People
Court
322]
and
v. Green
Cal.App.2d Supp. 871,
439],
Cal.Rptr.
(1965)
234
873-875
cert
[44
den.
480;
576];
382
993
86 S.Ct.
and
re
[15
cf. in
Hoffman
(1967)
845,
Cal.Rptr. 97,
67 Cal.2d
851-852
6
and fns.
and 7
434
353].)
charged
property
P.2d
Nor is he
with unlawful
interference with
(see
Code,
13,
12,
552-558.1),
(See
§§
Pen.
tit.
eh.
or malicious mischief.
Code,
14,
594625b, particularly
[trespasses constituting
§§
§
Pen.
tit.
602
misdemeanors],
(j)
interfering with,
subdivision
intention of
[with
obstructing
injuring any
occupation, etc.],
602,
§
lawful business or
(n)
[refusing
failing
public building],
subdivision
to leave a
peaceful
§ 602.9
with
[interference
conduct of school
activities].
Municipal
(1968)
Cal.App.2d 497,
Parrish v.
Rptr.
Court
258
502-505
Cal.
[hearing
Supreme
denied];
Bacon, supra,
862]
Court
re
240
Cal.App.2d
46-48;
People
(1965)
Cal.App.2d Supp.
v. Brown
236
Cal.Rptr. 662];
People
(1965)
Cal.App.2d
v. Poe
Supp.
Cal.Rptr.
issue,
935-937 [47
on another
[criticized
Traynor,
dissenting].
Hayes (1969)
p. 614,
J.
In re
C.
He entered a of not and commenced the instant guilty action to restrain proceedings further municipal because the *6 augmented by leaflet, appears picture 4The text of the what to be a Johnson, President is as follows: “Get the Man Off Your Back [picture] get together High Let’s our stuff and end the draft. School people getting up all young over the U.S. are fed with the war. We’re too it, enough get to vote on but old killed in it. Organizing. Fremont, High, “So We’re Tech., At Oakland Berkeley High how groups and going people Piedmont there are anti-draft to teach groups organizing to beat the draft. These are strike student against war, other April activities the draft and racism for 26. against fighting “We’re the war because we think the Vietnamese are just independence. a- for war against “We’re power because we have no it. draft over We have fight agree policy whether we with the or not. against “And guy we’re it because discriminates a Black or a likely guy Mexican-American is much more to be drafted than a white though even oppressed Blacks and Miexiean-Americansare minorities in country. this War, Draft, “End the and Racism “Ip Ip Help Help, You Want Draft, You Need With the or if you just questions Meeting” war, have about the there’ll bé a interposed following grounds: 5The demurrer was on the “1. The jurisdiction charged court no complaint has of the in that offenses charge against to, does not state the defendant in a manner sufficient give accused, him notice of the offense of which in he is violation of his rights guaranteed by the Fourteenth Amendment to the United States Constitution. Complaint “2. The public facts stated in said do not constitute a they allege any specific offense because fail to intent defendant to engage any prohibited in conduct. Complaint public “3. The stated in facts said not do constitute a they offense protected because demonstrate that defendant’s conduct was by the First Amendment to the United States Constitution. Complaint “4. public facts stated said not do constitute a offense, jurisdiction offense, and the court no has over said in that section 653(g) of Penal Code is violation of the Fourteenth Amendment to the United States Constitution. ‘ ‘ Complaint constituting legal justification 5. The contains matters for alleged offenses, legal prosecution. and a bar to the Complaint substantially “6. The does not conform to the of sections 950 and 952 Penal Code.” jurisdiction.6 v. (Whitney in excess of its acting court was Cal.Rptr. 16, Municipal (1962) 58 Cal.2d Court [27 Court Municipal (1960) 53 Cal.2d Lambert v. 80]; P.2d Army v. 984]; Rescue Cal.Rptr. 349 P.2d 691 [3 8]; P.2d Municipal (1946) 28 462-467 Court Cal.App.2d 548, Municipal (1959) Court v. Moore Municipal Court Kelly (1958) Cal. 196]; P.2d Supreme hy Court [hearing P.2d App.2d 38, 46 990] v. (1968 68 Cal.2d Municipal ) Court Burton denied]; and see Municipal 281]; Pain v. Cal.Rptr. 721, 684, 687 [68 Cal.Rptr. ; 151, 152 Cal.App.2d Court Cal.App.2d. 584, Municipal Court Gleason specified the dates alleged, “On Cal.Rptr. 226].) He 586 [38 near public sidewalk on complaint petitioner was in said criti and handbills distributing leaflets the schools mentioned America, and racism in cizing the Service Selective System, the Vietnam war. Petitioner’s sole intention in being around said schools was deliver said handbills ’’ high school peti leaflets to students. No answer to the respondent was filed court or real tion interest. In party response to the order to issued filing show cause on the of the petition, the district attorney filed memorandum of law requested which he argu that the writ be denied. After oral ment, the judgment peti ensued court when the found that tion facts grounds failed to state sufficient to constitute relief. properly
Petitioner asserts that under these circumstances allegations petition (Dunn.v. must taken as true. Municipal Court 858, 865, fn. *7 Cal.Rptr. petitioner’s 251].) Nevertheless, right since to relief depend showing must on further in proceedings that would jurisdiction respondent purposes excess of court, the this any review factual must be in accordance issue resolved the allegations with of the and the complaint attached exhibit. n petitioner must campus It be assumed that was on the of each petition: (a) following grounds 6The are set forth in the Petitioner’s “ purpose being public sole in intention in near and around schools the others, question high distribute to students and the afore was to school leaflets, protected political mentioned handbills and which conduct [is] by to the the First and Fourteenth United’ States Constitu Amendments tion; herein, (b) (g) Code, applied 653 of the Penal Section as ‘ ‘ California vague rights guaranteed by infringes petitioner is the First and Fourteenth Amendments. and indefinite on “(c). complaint public it Said does not state a offense in that fails by petitioner engage any allege specific intent in unlawful or prohibited conduct.”
657 public did school, that he not remain “on the sidewalk suggested, near schools” at all times. It is nowhere how- liability ever, crucially that this fact affects criminal under petitioner’s 653g. allegation concerning The section second by and intent is not contradicted but is consistent import report. fair in with, the of the facts Constitutionality and Construction 653g Section
In re
(1964)
Cal.App.2d
Cal.Rptr.
Huddleson
618
229
[hearing by
Supreme
Court
sets forth this
581]
court’s
denied]
ruling upholding
constitutionality
provi
of the
653g,7
sions now
in section
which were then found
found
in
(Stats.
2
1957,
1735, §1, p.
subdivision
of section 647a
ch.
3120).
problem
respect
with
the use of the word
phrased
“loiter” was
as
“In
case,
follows:
the instant
challenges made to the
of the subdivision
constitutionality
under attack center
the use
in
about
‘loiter’
word
they
In
statute.
essence
word
such a
assert
is of
broad
and all-embracing
encompass
character as to
innocent as well
objectionable
as
pro
actions and thus
an unreasonable
impose
scription upon
large.
the conduct of the
The word
‘loiter’ has been defined mean
‘To be slow moving;
linger;
lag
(Webster’s
behind’
saunter;
New Inter
delay;
(2d
national
see
v.
ed.);
(1941)
State
Starr
57
Dictionary
linger
Ariz. 270 . .)
idly
(Phil
.
or ‘to
to idle’
by
way,
lips Municipal
Cal.App.2d
v.
(1938)
453,
Court
.),
. .
While taken
itself and in
meaning
its broad
the term
carry
implications,
employed
no criminal
nevertheless as
in a
penal
statutory
statute and considered in
context, may
such
wrongful
(In
sinister,
import.
have a
re Cregler,
criminal
supra
P.2d 305];
[1961]
People
term reviewing After various canons of construction court loiter ruled, “. . .we have concluded that term therefore proscribes in the context the statute under consideration ‘idling’ or species ‘lingering’ and about schools that only public places pur engaged in for an evil or sinister pose. pointed pro above, As section 647a was enacted out guilty of a mis tect children. makes Subdivision thereof every person felony may demeanor or who an as the case be noys any age under molests child [reference provides additional text of statute Subdivision omitted]. for the protection removing children for opportunity any carry purpose. child molester to out his evil Both subdivisions it is obvious that ‘vagrant.’ label the offender a Nevertheless purpose largely punitive while of the first subdivision largely preventive. (See Per that of the second subdivision Concept, Hastings 237, 250-261; Vagrancy L.J. kins, Bogues Vagabonds, Sherry, Vagrants, Cal.L.Rev. 566-567.) But, said, loitering as we have condemned general sense but loitering the second is not its subdivision lingering, It wait its restricted and sinister sense. includes ing wrongful purpose delaying only for a sinister or but purpose-. a lawful and therefore excludes such activities for waitihg waiting, but mere ‘Loitering as forbidden includes ’ loitering. purpose not constitute such lawful does (In supra, 312.) Cregler, re persons us, the statute
“Therefore as we construe before park public beaches, pause benches, who sit on loll on merely vicinity linger many in the areas of schools reasonably frequented children cannot be considered compass loitering within the of the statute. It is when only of the loitering is of such a nature that from the totality light prevailing person’s actions and in the of the circum reasonably being it is en stances, it concluded that oppor committing a crime as gaged in ‘for the (In Cregler, re that such tunity may supra) be discovered’ therefore hold conduct falls within the statute. We that reasonably significance term loiter has a clear and definite vague indefi statute, that it is not so the context guaranties and that the statute nite as to offend constitutional deny personal rights invade, abridge so contrued does not statute as so construed It also follows liberties. uniformity operation satisfy possesses required (Id., I, of the Constitution.” mandate article upon pp. 625-626.) Authorities which amicus curiae now distinguished. (Id., p. 627.) relies8 were considered and *9 given has “loaf A similar construction been the words or ’’ portion upholding constitutionality in that of a loiter of municipal making it unlawful “to loaf or loiter ordinance any railway waiting room, lobby, portion other of or any (In (1967) 845, station” re 67 853 etc. Cal.2d [64 Hoffman People Weger (1967) 251 Cal.Rptr. 353], 434 P.2d v. 97, See Cal.App.2d Cal.Rptr. [hearing 584, 591-593 661] [59 cert, Supreme denied, Court and denied 389 1047 (1968) U.S. 840, [upholding 88 over the dissent [19 774] ] Herndon, constitutionality (e) of of J. subdivision adopted (Stats. 1961, 560, 2, p. in 1961 of section 647 as ch. § Cal.App.2d Municipal v. Court 226 1672)]; (1964) Gleason Cal.Rptr. municipal [upholding 587 ordinance 226] [38 places prohibiting loitering tunnel and other described any nature, against grounds legis of similar attack on that state n Municipal preempted Phillips had lation v. Court field] Cal.App.2d (1938) 24 456 fn. P.2d and [see 7] [75 548] (1962) Cal.App.2d Supp. v. Bruno Cal.Rptr. [upholding (e) and of subdivision applying 458] adopted section 647 as and Anderson v. Shaver ; 1961] (U.N.M. F.Supp. ) [upholding 1968 290 constitution prohibiting “loitering of an Arizona statute about or on ality any. there”].) . . school. . .without lawful business provision
It
653g
is asserted that the use of the
of section
political
provisions,
curb
dissent
as con
demonstrates
its
Huddleson,
overly vague
strued in In re
are
and that Huddle-
son should be reviewed and overruled.
The constitu
certainty
County
tional criteria for
are set forth Katzev v.
Angeles (1959)
Los
as
Cal.2d
of
Constitution,
I,
“Both the
article
follows:
California
States,
13, and the Constitution of the United
Fourteenth
person
deprived
Amendment, provide
life,
shall
that no
be
liberty,
property
process
process
Due
due
of law.
without
required
peril
life, liberty
means that ‘No one
be
at
speculate
meaning
penal
property to
as to the
statutes. All
as
are entitled to be informed
to what the State commands
’ (Lanzetta 453 .
In
Jersey,
.;
forbids.
New
306 U.S.
.
.)
Porterfield,
re
28 Cal.2d
120. . .
666];
Carpenter
(1950)
8Commonwealth v.
Ex Mittelstaedt S.W.2d Territory (9th. 1931) Hawaii v. Anduha 171. Cir. E.2d ‘‘ Connally applied is forth in set The standard be ‘That terms 391 . . .: Co., Const. General penal creating a new offénse must of a statute sufficiently subject to it what conduct on explicit inform who are those penalties is a part to its well- their will render them liable notions recognized alike with requirement, consonant ordinary And a rules law. statute of fair the settled play act in terms so requires doing of an either forbids or intelligence guess' men must vague that of common necessarily application, violates the meaning at differ as to its its ” process p. of law.’ 370. first essential due 786, 792 also, re Newbern Cal. In In re Davis Rptr. 364, 350 P.2d Cal. 116]; Cal.Rptr. 702].) App.2d 645, 650 [51 If Huddleson is deemed to construe the now proscribing 653g loitering found in section “sini- Hoffman, supra, purpose (see ster or In re wrongful” Huddleson, supra, p. 853, Cal.2d at re *10 pp. may 622, 625), at 623 and there be some merit to the objection by petitioner raised and amicus curiae. No criteria suggested are for a determination of what is sinister or what is wrongful. these the enforcement of the Under circumstances may proclivities turn on the effect authority evaluating suspect, the conduct of and the former’s con- ception of is sinister wrongful. what or Birmingham (1969)
In Suttlesworth V. 394 147 U.S. [22 a 162, L.Ed.2d 89 the court down conviction S.Ct. struck 935] participate under made an a ordinance which it offense to city parade procession public in a or other demonstration with or permit, ordinance, out a because as written and as the surrounding it had been actu relevant circumstances showed upon City applied, virtually “conferred Commission ally power prohibit any ‘parade,’ ‘pro unbridléd and to absolute city’s public cession’ streets or or ‘demonstration’ on p. 167], (394 p. 150 L.Ed.2d at See also ways.” at U.S. [22 676, 682-688 (1968) v. Dallas 390 U.S. Interstate Circuit [20 225, 230-234, 1298]; (1965) 88 Cox v. Louisiana L.Ed.2d S.Ct. 471, 484-486, 85 S.Ct. 536, 453]; 379 555-558 L.Ed.2d U.S. [13 558, 1574, York 560 L.Ed. (1948) Saia v. New 334 U.S. [92 Hague Industrial Or v. Committee 1577, 1147]; 68 S.Ct. 1437, 1423, ganization 496, 516 L.Ed. (1939) 307 U.S. [83 Municipal Court Cal.2d Burton v. 954]; 59 S.Ct. American Cal.Rptr. ; 441 P.2d 684, 721, 691-692 Board Education Civil Liberties Union 167, Cal.Rptr. 178-180 A.L.R.2d 1259].) concluded, court “Even use of its when streets and involved, therefore, municipality sidewalks is a empower not its licensing may officials roam at essentially will, dispensing withholding permission assemble, to speak, picket, opinions regarding own parade, according to their potential question effect of on the ‘wel- activity fare,’ ‘decency,’ community.” and ‘morals’ U.S. p. p. 168], at also Schneider v. State L.Ed.2d 165-166, U.S. L.Ed. S.Ct. 146].) petitioner
So urges here that a construction of the ordi nance which vests the law arbi enforcement officer with the power wrongful determine “a trary what sinister or purpose” anyone arrest lingering, who be wait ing suspect or delaying if the officer concluded has such purpose, vague and over broad be unconstitutionally places cause censorship it prior an unconstitutional re upon enjoyment straint of the exercise of First Amend ment Black, freedoms. In the words of Justice in by concurred Douglas, opinion Gregory Justice in the concurring Chi cago (1969 ) 946], disorderly “The conduct under which these ordinance petitioners charged however, not, were and convicted is law, particularly designed drawn regulate certain narrowly kinds contrary, ... might conduct. To the be better compre described ordinance, gathering ax a meat one hensive of an definition offense a number of words which have meanings, of which cover some would ac multiplicity tivity protected the First Amendment. The specifically average person charged with its violation left necessarily uncertain as to what and attitudes of mind would conduct enough (See also, Douglas to convict under it.” J. with *11 Warren, Fortas, C.J., Brennan, dissenting J. in Ad J. derley (1966) 39, 149, 161, v. Florida 385 56 L.Ed.2d U.S. [17 Black, concurring Louisiana, 87 v. ; S.Ct. J. Cox 242] supra, 536, 487, 501, 476]; 379 579 85 S.Ct. U.S. L.Ed.2d [13 (1940) 88, Thornhill v. Alabama 310 97-98 L.Ed. U.S-. [84 736].) 60 1093,1099-1100, S.Ct. 653g,
It is also contended construed, overly so aim are broad in that the of the statute— provide protection removing “additional children by his opportunity carry for the evil child molester out
662 p. purpose” (In Huddleson, supra, Cal.App.2d 229 at re 625) loitering accomplished prohibiting all without be —could might determined to be a sinister or for what be arbitrarily (Cf. Huddleson, supra, Cal.App. 229 wrongful purpose. re Phillips Municipal Court, pp. v. 626, 2d at 625 and with supra, p. suggesting may innocent acts 24 456 prohibited.) ‘‘ ordinance, regulation
When statute, completely although prohibits protected a narrower measure activities would intended ends and at the same time fully achieve the preserve ideas” its place an effective for the dissemination of (In man, re overbreadth render it unconstitutional. Hof Angeles Teachers Los supra, 845, also, 853. 67 Cal.2d (1969) Education 71 Angeles City v. Los Board Union Cal.Rptr. 827]; 455 In re 551, 723, 564 Cal.2d [78 Cal.Rptr. 21, 613, 636, 1 (1968) Anderson 69 fn. [73 Berry (1968) 137, 156, 447 In re fn. 15 ; P.2d 117] County Los Cal.Rptr. 273, 273]; Catzev v. 436 P.2d [65 360, 367-368; Carroll v. President & Angeles, supra, 52 Cal.2d 175, 183 L.Ed. (1968) Princess Anne 393 Comrs. U.S. [21 v. Robel 347, 2d 89 States 325, 333, United 353]; S.Ct. 514-516, (1969) 258, 508, 389 265-268 L.Ed.2d 88 U.S. [19 249-250, (1967) 241, S.Ct. Zwickler Koota 389 U.S. 419]; v. Keyishnan ; v. Board 444, 450-451, L.Ed.2d 391] [19 88.S.Ct. Regents 629, (1967) 589, 602-604 L.Ed.2d 640- 385 U.S. [17 (1966) 11, v. Russell 641, 675]; 87 S.Ct. U.S. Elfbrandt 325-326, 1238]; Cox v. Louisi 321, 18-19 L.Ed.2d S.Ct. [16 ana, supra, 471, 482-483, 85 536, 551-552 L.Ed.2d 379 U.S. [13 (1963) 229, ; Edwards South Carolina U.S. v. 453] ; 702-703, 236-238 83 Ct. N.A.A.CP. v. 697, L.Ed.2d S. 680] [9 417-421, 405, 415, Button 431-438 L.Ed.2d U.S. [9 Tucker 83 S.Ct. Shelton v. 364 U.S. 328]; Talley 231, 238, ; L.Ed.2d v. S.Ct. 247] California 559, 562-563, 536]; 80 S.Ct. U.S. L.Ed.2d York, supra, Saia L.Ed. v. New 334 U.S. Alabama, supra, 88, 105-106 Thornhill 310 U.S. ; and 1578] State, supra, 1093,1104] Schneider v. U.S. ; L.Ed. 155, 165].) L.Ed. 162-[84 a ‘‘statute on its is a
On the other hand when face subject dealing regulation valid with as to law conduct so important society interests . . . the fact that free vindicate bring intermingled not with it speech with such conduct does (Cox Louisiana, supra, protection.” constitutional [upholding constitu- *12 prohibiting picketing pa of a state statute and tionality rading in or near a interfering courthouse with the intent of with, obstructing, impeding jus the administration of tice, also, Cameron v. Johnson etc.]. 390 U.S. 182, 188, L.Ed.2d [upholding 88 S.Ct. 1335] constitutionality of a state prohibiting picketing statute a such unreasonably manner as to obstruct or interfere with egress ingress free county to and from ; courthouse] Florida, Adderley supra, U.S. L.Ed.2d [upholding the of a state malicious 154] constitutionality trespass law, application and its to demonstrators who refuse part jail grounds jail leave that ; reserved for uses] v. Louisiana, Cox supra, U.S. Cooper Kovacsv. [dicta]; (1949) 336 77, 85-89 484] L.Ed. 513, 521-523, 69 [upholding A.L.R2d 608] the constitutionality of an barring ordinance sound trucks from broadcasting a loud and raucous manner on the streets]; v. Davis 481, 486 Cal.2d Cal. Rptr. 547, 439 P.2d [upholding the constitutionality of Penal Code, ; and Municipal Pain v. Court, supra, § 404.6] Cal.App.2d 151,153 public obstruction of [unreasonable a street, Pen. Code, 372].) §§370 In re Huddleson suggests, and the principles set forth require adoption above of, a narrower construction of the ordinance. said, The court opinion “We are that the word ‘loiter’ was intended proscribe lingering about public schools places purpose for the or with the intent of effectuating some (229 criminal act” Cal.App.2d p. at italics added), adopted and it from In re Cregler, supra, the “ phrase ‘for purpose committing crime as opportunity ’ ” (Id., be discovered. p. at 625, italics added.) The approval of In Cregler, re supra, in In re Hoffman p. at permits 853) preclude does not the narrower con- struction. The statute as so construed falls within legitimate governmental interest in protecting children controlling public ways around places schools and where chil dren normally congregate. There remains for con question
sideration the of whether the alleged facts suggest permit finding petitioner that loitering, was and that his loitering was “of such a nature that from the totality [his] actions light and in prevailing circumstances, it may be concluded that being reasonably engaged [was] ‘for the committing crime as be opportunity may ” (See Huddleson, supra,
discovered.’ In re p. 625.) prevailing circumstances, alleged, give Since the protected Amendment, a claim of First rise to activity right extent of that must be examined to determine the petitioner’s legality action, and to determine alleged whether the ordinance, otherwise constitutional can consti- tutionally applied to the circumstances revealed complaint.
“When the effective exercise of First Amendment relating rights speech impaired by governmental regula is tion, weigh impairment against a court must the extent of the importance governmental both the of the interest and the sub stantiality speech of the threat which the forbidden related poses-to activity that interest. Both alternatives available to objective government its in a man achieve regulatory —to ner rights less restrictive alternatives of those available —and speaker right to the his effective communi exercise —to governmental cation in a manner to the less hostile interest— appraised.” Angeles (Los must be Teachers Union v. Los City Angeles Education, supra, 551, Cal.2d 556. Board 71 of Alabama, supra, 88, Thornhill v. 310 U.S. 95-96 also, See [84 1093,1098-1099].) L.Ed.
First Amendment Protection speech
“Freedom of assured the First Amendment by aptly society. one of the basic tenets free As stated of 1919, Holmes in ‘when men realized Justice have that time upset faiths, has to believe even come many fighting they more than of their believe the foundations own they very good conduct that the ultimate desired is better reached by free trade ideas—that the best test truth p<jwer competition accepted of the thought get itself in the upon market, which their only ground and that truth is the safely wishes can be carried out. That at rate is the ’ theory (Abrams of our Constitution. States, v. United 250 616, U.S. 630-631 .) . . speech
“Freedom of encomp'asses more than simply right protected to be from censorship of content. It ex tends to communication in its most fundamental sense. The First Amendment right embraces both to disseminate in . formation . . and necessarily right to receive it . . .” v. (Huntley Public Com. (1968) Utilities 67, 69 Cal.2d 71-72 Cal.Rptr. 605, 442 P.2d [69 See 685] [citations also omitted]. Los Angeles City Teachers v. Angeles Union Los Board
665 v. Alameda Education, supra, 551, 565; 71 Wirta Cal.2d 51, Contra Transit Dist. Costa Cal.2d [64 Cal. , v. Rptr. American Civil Liberties Union 982]; 430 Education, supra, 167, 178-180; Board Katzev v. Angeles, supra, 365-367.) County 360, Los 52 Cal.2d Amend protection First and Fourteenth opinion ments distribution of information extends to the political matters, and concerning religious, and economic subjects handbills, public concern, through other leaflets pamphlets. Texas In Jamison v. U.S. [87 669], ruled, "... one who L.Ed. the court S.Ct. open to the state has left on a street rightfully the constitutional with him there as elsewhere carries right orderly fashion. This right express his in an views litera extends of ideas handbills to the communication (318 U.S. spoken word. ture as well as [Citations.]” Talley v. p. p. also, L.Ed. at 872]. California 561-562, 80 S.Ct. 60, 62-63 (1960) 362 U.S. supra, 147, 161-162 536]; State, 308 U.S. Schneider v. Industrial Or Hague Committee 155, 164-165]; L.Ed. supra, 1438]; L.Ed. ganization, 307 U.S. L.Ed. Lovell Griffin supra, 872, 874; 952-954, Lane, 666]; re 71 Cal.2d and Val Hoffman, supra, 849; 847 and cf. In re *14 1262, 62 (1942) 316 52 L.Ed. entine v. Chrestensen U.S. [86 advertising].) S.Ct. 920] [commercial rights, applied light
"First of the Amendment environment, special are available characteristics of the school hardly argued that either to teachers and students. It can rights free shed their constitutional to students or teachers gate.” speech expression at of or schoolhouse dom Independent Community Dist. (Tinker School v. Des Moines 733], 737, 89 L.Ed.2d S.Ct. 393 506 U.S. [21 City Angeles Angeles v. Los also, Teachers Union See Los and Com Education, supra, 551, 558; 71 Cal.2d Board of Secondary Judicial Protection Education: ment, Public of 126, 140-141.) 42 Individuality (1969) Student So.Cal.L.Rev. and the selective Discussion the Vietnam conflict of [H] voicing opposition to are rec- system, both service and the Des Moines (See ognized subjects speech. Tinker of free Independent Community Dist., supra, 393 School U.S. supra, Hoffman, In 67 and re 731, 742]; L.Ed.2d 845, 847.)
Any vagueness in the statute or overbreadth its interpretation justified application ground on the cannot be designed protect that it is to “Nor is it an answer children. argument particular regulation expression to an is that a vague say adopted salutary purpose of that it was for the vagueness protecting permissible children. The extent of is directly proportional to, of, not or a function extent power regulate expression, respect or control with (Interstate Dallas, supra, children.” Circuit v. 390 U.S. York, 225, 234], Baheck v. New Accord; L.Ed.2d 741, 88 also (1968) 391 1716]. Angeles, supra, 367.) County Katzev v. Los petitioner The activities must be charged to examined light foregoing principles.
Loitering Purpose and Lawful presence merely
The distinction between the of one iswho loitering, presence and is in attendance for one who business, unlawful, some current be it lawful or exemplified by comparison opinions of two of this court auth- Supreme ored Presiding Justice, former Associ- now Court Justice, ate Peters. Wright Cal.App,2d
In v. Munro P.2d Supreme upheld [hearing by the court Court denied] Busi (b) subdivision of section 25657 of the noted, ness and Professions Code.9The court “The term ‘loiter’ linger recognized meaning, idly has a well ‘to idle,’ loaf’ v. Munic way, (Phillips ‘to or to ‘idle.’ ipal Court, Cal.App.2d Cal.App.2d 453, 455 ...” p. also, People Weger, supra, Cal.App.2d 847. See Huddleson, supra, Cal.App.2d 618, In re 591; 622; Roget’s (3d 1962) pp. International Thesaurus ed. classifying “in “loitering,” “loiterer” and “loiter” under activity.”) “The ‘loiter,’ It concluded: word ... clear ’’ (Id., p. 848.) and certain. Garcia v. Munro 894], the same court a revocation of a license reversed predicated application had been on the of the same section. . the fact that court ruled concluded as follows: “. . patron, a bartender waitress a drink from a solicits *15 any (b), provides it unlawful “In 9Section that subdivision upon beverages place be consumed sold to of business where alcoholic are anyone premises, employ knowingly permit to loiter or about the to or any premises purpose soliciting patron begging or cus .said for the or of, in, beverages premises purchase any tomer or visitor such to alcoholic ’ ’ begging soliciting. for or the one support talks with does him, not an inference that such bar- tender employed or waitress was ‘to loiter’ to solicit drinks. There is no evidence at all Jennie sat that down with the patrons neglected or her duties as a bartender while drinking patrons. with lingered idly by There is no that evidence she job. was loafing Wright Munro, In supra, on the the verb ‘loiter’ linger was defined to mean ‘to the to idly by way, idle'; ‘to or ‘to term loaf’; idle.' The has been defined in (see eases. In many many definition we have found every cases in 25 p. collected Words and Phrases (perm.ed.) et seq.; pocket part, p. concepts 193) there included the of to idly by, spend idly, stand to to loaf, time to or walk about purpose. without There is no evidence that aimlessly Jennie things. did these For that reason there is no any support evidence that she finding employed to was to premises (161 loiter on patrons.” to drinks from solicit pp. 429-430.) at In Similarly supra, re Cregler, observed, court goes depot one who station to a bus or railroad “Manifestly and purpose ticket, boarding waits for the a buying conveyance, meeting actually expected a relative or friend arrive, any legitimate objective, loitering with other is not Loitering within the sense of the in- statute. forbidden waiting, waiting cludes but mere lawful does 312.) not' loitering.” (56 p. constitute In such Bruno, recognized supra, the court a distinction along between residen- loitering wandering, walking apparent reason, tial walking work, street with such as an but was found on the in that case the issue that evidence (211 question trier of Cal. of fact be resolved fact. App.2d p. 860.) Supp. at upheld case of that the court the validity Hoffman
portion prohibited municipal loitering ordinance p. 853). Nevertheless, stations Cal.2d at railway discharged following, petitioners been convicted who had they their were on failure to the station where arrest leave in Viet- distributing protesting leaflets States action United who impending nam and of three soldiers court martial ‘‘The trial observed, had court refused to Vietnam. go Creglar and found that applied court of ‘loiter’ definition petitioners record the ordinance. The part violated first - this that court reached conclusion indicates clearly finding part the ordi- petitioners second that violated the present reasoning they were therefore nance and then *16 part of purpose.’ Since the second any without ‘lawful constitutionally permissible, peti- ordinance is broader than any theory, for there stand under tioners’ convictions cannot present in they that were Union Station is other evidence no p. 854, italics purpose.” an at for ‘unlawful’ added.) F.Supp. Shaver, supra, the court Anderson v. to review of doctrine” by application of the “abstentation a trial and which after which resulted state conviction Johnson, supra, 390 U.S. appeal (see Cameron was on Portas, 188-189]; and cf. 611, 617-618 L.Ed.2d [20 p. and Zwick ; dissenting p. at L.Ed.2d at J. L.Ed.2d Koota, supra, 241, 252 ler v. 389 U.S. anti- the distribution of 452]) to consider whether refused encompassed a statute draft literature within could be legally (290 F.Supp. p. 922.) similar in this case. that involved court, holding The the terms of the ordinance constitu after respect manner in which it was tional, observe with to the did bad faith enforce enforced, “The evidence does not establish protected freedoms. The evi designed to interfere with ment officials that that the school believe no dence uncontradicted permis grounds without right to be on the school one had anyone police Albuquerque believe that who sion and that the permission goes without violates the grounds on school uniformly applied police have so Indeed, ordinance. ordinance. grounds being that
“The ordinance not state on does permission vagrancy. say This not to without constitutes unconstitutional, for it has been that does would be one which Sprowal is true. See held that the contrary People v. 878]; N.E.2d N.Y.2d 273 N.Y.S.2d N.Y.S,2d 649 N.E.2d 549, 190 Johnson N.Y.2d here under attack interpret the ordinance However, to 9]. believe it would raise serious what the officials says saying it, Sprowal questions, constitutional unlike the statute in permission Johnson, not state that to be on school does ” required. (Id.) grounds is alleged facts in this case Since the uncontradicted petitioner engaged activity that in the lawful show was passing handbills, out contradict and control leaflets they allegations general that he “did loiter.” The facts stated complaint, whole, taken as do not constitute a when (Cf. Thomp- 653g offense under seeion of Penal Code. son v. Louisville (1960) 362 U.S. 658-659, 80 1355].) A.L.R.2d Purpose Criminal Truancy petitioner
If lawfully was on the school the fact grounds large groups him of interested gathered students around would not of itself illegal constitute an disturbance. ‘‘ government The has restricting no valid interest
or prohibiting speech speech-related activity simply order avert disturbance, the sort of argument or unrest inevitably generated expression of ideas which are controversial and dispute. invite danger justifying restriction or *17 public inconvenience, Chicago Union v. Los Cal.2d 551, [1948] 558. prohibition Angeles City 337 U.S. also, annoyance, or unrest.’ 1, must Cox v. 4 . Board . .) Louisiana, supra, one ” of (Los Angeles which ‘rises far above Education, (Termimello supra, Teachers 379 U.S. 71 v. 536, 471, 550-551 L.Ed.2d and Edwards v. 481-482]; South Carolina (1963) 372 229, U.S. 697, 704].) L.Ed.2d “ Tolerance of the unrest intrinsic expression to the of controversial ideas required in even the constitutionally schools. ‘In order for . . . justify prohibition school officials to premises] particular school expression of a [on opinion, of [they] must be able to show that action was caused [their] something more than a mere desire to avoid the discomfort unpleasantness always that unpopular an accompany viewpoint.’ (Tinker Independent Community v. Des Moines Dist., supra, School ‘Any .) U.S. 509 . . word spoken, in class, in campus, the lunchroom or on that deviates from the views person, may of another an argument start or cause a disturbance. But our Constitution we must take says ” (Id., p. .) this risk. . . .’ at p. 559.) . . Cal.2d disperse
Nor does an order itself, legal without some justification, or obey by render the refusal authority one legally present, a (See Gregory Chicago, criminal v. act. supra, Black, U.S. L.Ed.2d J. and Douglas, Louisiana, J. concurring; supra, Cox v. man, supra, and In re 496-497]; Hof 845; pp. 854.) Cal.2d cf. 848 and -People assert encouraged the leaflet stu
dents to strike on day a school in statutory duty violation of a They rely upon provisions attend school. of section Code,10
10609 of the Education and those sections of that (Ed. Code, defining code truant and an 12401-12408) §§ pro- habitual truant, prescribing truants, the arrest of juvenile viding proceedings for in the institution of court People on behalf to' of habitual truants. The also refer section provides of the Welfare and Institutions which Code pertinent part, “Any person age 21 years under the who persistently obey refuses to the reasonable and habitually proper authorities, orders or directions of his . . . school beyond any person who is control of who is person, such meaning habitual truant from school within the law juvenile jurisdiction of the this State ... is within the court....” complaint People
From that the foregoing, contend petitioner loitering reflects that the was about the school purpose contributing of a minor to the delinquency provisions violation This of Penal Code section 272.11 proposed analysis fails on several scores. (see suggested,
It
because of
history
statutory
In re
said in
above),
fn.
and because of what has been
Hudclleson,
purpose for, or intent with
supra, that the
a child as
lingers
annoy
the offender
is the intent to
or molest
proscribed
which the
provisions
647a with
of section
long
originally and
653g
were
now found
section
coupled.
observed, “It
is clear that
In Huddleson the court
entirety, is
the
‘
considered
its
647a,
offenders,
protection
from interference
sexual
of children
punishment of
apprehension, segregation
’
Supp.
(People
latter.
Palares
Carskaddon, supra,
900 . . .;
*18
appears encourage to be to those students interested in ac- complishing the meeting. allega- stated aims attend a complaint tions of the meeting fail to show that the was to during be held already school hours. The recital that those organizing involved were a strike and other activities on a only school encourage indicates an intention to day indirectly those addressed to absent themselves from in the school significant It appears future. all that from that the re- cord, including prosecution’s opposition memorandum to the question issuance if writ, truancy, it arose at all below, argument. must have arisen at oral The crime report obey warnings stay mentions failure off campus and the gathering disturbances occasioned interested students in no way occurrence of the suggests appeal. charged criminal act now advanced on It is not petitioner present Piper luring was aas Pied presently the students from their books and Prom all teachers. away *19 appears school the actual confrontations were before
(8:25 a.m.), may expected at to times when students be or periods (11:25-a.m. (Cf. v. p.m.). have lunch 1:25 Katzev to County 367.) Angeles, supra, 52 360, Los place, questionable In the second it is whether offense Penal habi under Code section 272 can demonstrated. An be has tual truant the law state as one “who is defined of this by reported Code, (Ed. three more times.” been as a truant or truant, as a 12403.) reported to first a student order § more than must be' “absent from without valid excuse school days minutes each of four or tardy three or excess of 30 on days 12401.) year.” (Id., more school Second one § days reported bé further offenses on or shall one more day’s absence (id., §12402). It obvious that one truancy does not an habitual truant. Whether it tends make a student on depend persuader, to but not does not on acts absenting himself on other oc the acts of the student term Legislature, casions. The use “habitual in sec the Education Code truant” section 12408 of and. pre Code, and Institutions has 601 of Welfare tion will attendance which scribed the interference with school juvenile subject jurisdiction court. to the of the the student cognizable not Any lesser interference with attendance associated there under section and therefore activities crimi subject petitioner direct or indirect with should not Nor can en Code section 272. nal under Penal liability on such, himself if it be student to absent couragement, persistent contributing his day one be considered as of his proper orders or direction obey habitual refusal a summer. school swallow does not authorities. One make event, to see athletic or invitations circus, Hand-bills for a an from parade may encourage absence patriotic all cause or a criminal who contribu designate To the invitor as school. minor transcends ting to the of a delinquency upon law rely. ac requires that an Thirdly: process law “Due he charges in order that against him cused be advised his prepare present have a reasonable opportunity surprise evidence offered defense and taken not be (1955) (In re Hess trial. his [Citations.]” Cal.App. ) 254 People Norris 5], also, v. P.2d People Clenney Cal.Rptr. ; 296, 300-302 2d People v. Lam 696]; .241, 557]; Gregory Cal.App. P. anuzzi Chicago 394 U.S. Alabama, supra, and Thornhill v. 946]; *20 L.Ed, People 1093, bnt cf. v. Godina ; 881].) If 356, 358-359 peti
Cal.2d the required against charge loitering tioner to to defend a of with intent to delinquency contribute to the of the students by encouraging truancy, charge their a such should have been framed more than developed the innuendo a from directly phrase in the leaflet.
Finally, the construction runs advocated by protections afoul of offered the First and Fourteenth yield. Amendments and alleged must The facts do not show advocacy which is inciting directed to imminent producing lawless action—absentation from At school. the most the leaflet suggests join that the students to a and a meeting come group is organizing which a student on date more strike than three weeks we are here confronted away. “Accordingly, with a applied, purports punish statute which ... as to mere advocacy forbid, pain and punishment, to on criminal as- of others, with sembly type to advocate the described of merely (See Brandenburg action.” Ohio (1969) v. 395 U.S. 1827].) attempted L.Ed.2d The application of loitering statute to the facts foregoing “falls within the condemnation the First and of Fourteenth (Id. also, Amendments.” Civil American Liberties Union v. Education, supra, Board Katzev 179; 55 Cal.2d of v. County Angeles, supra, Los 52 366. Cf. of People Davis, supra, 484-486.) concluding
In general concepts several which underlie and qualify this decision should be noted. principal
“The use to which the schools are dedicated tois during prescribed accommodate students hours for the types Among of certain of those activities is per- activities. among sonal This is not intercommunication students. only an part process attending inevitable school. It important part process. an also of the educational A student’s rights merely therefore, do not embrace the classroom hours. playing field, When cafeteria, he is or on the on the campus hours, express during opin- the authorized he his subjects ions, even like the conflict in Viet- on controversial nam, materially substantially if he does so ‘without inter- operation fering appropriate discipline with colliding rights with the Burn- school’ without others. 744], Byars, supra, p. F.2d But side conduct it, student, class or out of- reason— time, place, type from of behavior—ma whether it stems disorder or disrupts or involves substantial elasswork terially course, rights is, not immunized invasion of others speech.” of freedom of the constitutional guaranty hy Dist., Independent Community (Tinker v. Moines Des School 731, 741].) supra, ‘1 express rights their views of students and teachers to relating policies governmental actions on school regulate politi power authorities schools, and the of school peculiar faculty, students and are concern activities of cal is in state of to- our state and nation Education today. arising from or if When ferment, not turmoil. controversies brought courts, contributing this are before turbulence imperative carefully differentiate treat that the courts rights of ment others those are violent and heedless of who are no less assert and those whose concerns they their cause through peaceful, express themselves burning but seek to who discourage persons engaging from orderly means. order *21 pains take to type activity, former of the courts must the peaceful of remain assure that the channels communication protected.” (Los activity fully open peaceful and that Angeles City Edu Teachers Union v. Los Board Angeles of 551, 565.) cation, supra, 71 Cal.2d right includes the to hear and right The communicate to supra, Com., (Huntley v. Public Utilities receive be of 72). Pamphleteers, however, cannot violent and heedless appropriate discipline of others, and must to rights the of bow 653g provisions Nevertheless, school. the of section the constitutionally to block the construed Penal Code cannot peaceful activity. peaceful of communication stifle channels right personal and cor- recognizes A which society experts to avoid contribu- porate hire and wealth to lobbyists than toward a controversial ting through more taxes necessary widening gap, generation cannot, war without undeclared legal means, organ- seek to- who, through stifle ostensibly those existing opposition govern- an to ize and advise students expected are defend the sacri- policy to mental which they and limb. fice life court is directed to judgment reversed, and the trial
The that the facts prohibition grounds on issue writ of complaint not constitute a offense in the do stated 653g Code, Penal under the matter, if true, contain legal justi- would constitute a charged. fication for the conduct
Molinari, P.J., concurred.
ELKING-TON, dissent; J. —I I cannot believe that the First protection Amendment extends who, to an adult in defiance of California, goes upon law of grounds school and there endeavors to foment a student strike. On several grounds Mandel, occasions on school years passed
age, out high handbills to stating, school students among things, other that at County each several Alameda “groups high organizing schools are a student strike against other war, activities the draft and racism for April 26.” continued, you It want help, if help need you “If draft, just with the if questions have about the you war, there’ll meeting.” (Italics he a added.) only reasonable in- terpretation of Mandel’s conduct handbill is that he was soliciting help the students organize, join in, a school for, commencing strike on, April 26, 1968. Such conduct is unlawful. Education Code section provides: pupils “All shall comply with pursue the regulations, required course of
study, and submit to the authority of the teachers of the schools.” Penal Code section “Any person 602.9 states: who comes upon
. . . ground school . . . without lawful business thereon, presence and whose or acts peace interfere with the ful conduct of the activities of disrupt such school or pupils school or its activities, or school and who remains there, being after asked to leave the case before . . . [as us] ’1 of a misdemeanor. guilty presented view the municipal evidence my court probable indicated Mandel’s intent violate Penal Code sec- tion 602.9. Since handbill established Mandel was *22 acting in concert with in attempting organize others to magistrate strike, school could conclude that reasonably loitering his an object, act, was or overt of a to conspiracy (Pen. Code, 602.9) commit a crime 182.1, and to commit an §§ obstructing (Pen. act “the due of the laws” administration Code, 182.5; Code, 10609). Ed. § § subject proceedings 1In effective after Penal Code section Mandel, against
were taken Penal 602.9 Code section was amended to 1 ‘ ’’ define the term lawful business. Furthermore, reasonably that Man- it be concluded may 272, in del’s acts were of Penal section violative Code they to delinquency tended to contribute of minors. Sec-' provides: “Every person tion as who com- here, relevant any . ., mits . act . . . or to cause or act which causes tends person encourage any age years of 21 to come under provisions within the . . ... of the Welfare Sections . thereto, and Institutions Code or act. . . contributes or person any . . . ., persuasion, who act . or . in- any person age or any duces endeavors induce under of 21 to years perform any . . or any . to do to act to follow course conduct ... would cause or to tend cause manifestly any person such person to become or to remain a within the . Section . . ... of the Welfare and Insti- Code, guilty tutions aof misdemeanor. . As . .” we have seen, high statutory duty school students have a to attend (Ed. Code, 10609). unexplained school Three absences con- § truancy; stitute five such absences result in a student .being an (Ed. Code, declared truant 12401-12403). habitual §§ truancy ground (Ed. Habitual is a Code, 12405). arrest § Welfare and provides: Institutions Code “Any person age years under the of 21 persistently who or habitu- ally obey refuses proper the reasonable and orders or direc- tions of parents, guardian, his authorities, custodian or school or who is the control of person, any person such beyond who is from, a habitual truant school within meaning of of any State, law this or who from danger cause is in leading idle, an dissolute, lewd, or immoral life, is within the jurisdiction juvenile may adjudge court which such person (Italics to be a ward of the added.) court.” requires
It argument little to demonstrate that encouraging students engage in a school (see strike at least “tends” Code, 272) Pen. to cause such students to become § habitual (Welf. Code, truants & juvenile Inst. 601) therefore § delinquents. argument given
Much Handel’s over to what he calls protest his First right Amendment the war, draft, racism the means used. an argument here Such has been repeatedly by set rest decisions of the United States Su- preme Court. Empire Giboney Storage Co., & Ice 834, 841, 684], L.Ed. rarely is stated: “It has suggested speech
been that the constitutional freedom for its press speech immunity writing extends used as an
677 integral part of in violation a conduct valid of criminal statute. ...” In Louisiana, Cox v. U.S. L.Ed.2d 85 S.Ct.
476], the was court eonc’emed with a criminal pro- statute scribing parade near a purpose, among courthouse for the other impeding of things, justice the administration of judge juror. influencing (p. court said The L.Ed. p. 492]) 2d at : “We hold that this statute on its is a face dealing valid subject regulation law with conduct to so as important vindicate society of interests the fact that speech intermingled free with bring such conduct does not protection.” with it constitutional Independent
Tinker Des Moines Community School Dist., 731, 741, 733], dis- cussing the relation of student behavior to the First Amend- ment, by student, tells “But in us: conduct the class of or out it, which for time, place, reason—whether it stems from type materially disrupts of classwork or involves behavior — substantial disorder or invasion the rights is, of others course, not immunized the constitutional of free- guaranty ” speech. dom of [Citation.]
I proper conclude that for California constitutionally forbid, to penalize, conduct such as that of in Mandel us, though ease before even such conduct be an admixture might unlawfulness what protec- otherwise be activity ted the First Amendment.
For reason, majority, another as indicated yet Man- immunity del prosecution. claims constitutional from He con- punishing tends 653g, that Penal Code one for section “loiter- ing” vague areas, unconstitutionally certain and over- ap- broad. also, This contention to the writer this dissent, pears to be without merit. argument In same was raised the case of re Huddle- son, (hear den.). Cal.Rptr. There dealing 647a, the court was with Penal sub- Code repealed predecessor statute, division (2), 1967, which was containing precisely language, the same Penal Code section 653g, 1967. Huddleson holds “loiter” in the added the word 653g 647a, (2), context of sections subdivision have places “lingering public schools and meaning about ’’ effectuating criminal act. or with intent of some The court said: case, challenges
“In instant made to the consti- tutionality under center subdivision attack about
use they of the word ‘loiter’ the statute. essence assert all-embracing that the word is of a broad and character as to encompass objectionable innocent well as actions and thus impose proscription upon an unreasonable the conduct of the mean, large. The word ‘loiter’ has been defined to delay; lag ‘To be slow moving; linger; saunter; behind’ (Webster’s (2d Dictionary New International ed.); see State linger v. Starr 357]) Ariz. or ‘to idly by (Phillips Municipal to idle’ Court (1938) *24 way, 548]). While taken itself meaning and in may carry its broad the term no criminal implications, penal as in a nevertheless statute and employed statutory context, may it a sinister, considered such have wrongful import. (In Cregler, supra, re or criminal 56 Cal.2d 308, 311-312;. .). Cregler, Supreme upheld
“Thus in supra, the Court the constitutionality of former Penal Code subdivi- sion person which made it a misdemeanor for known to be a thief, burglar operator pickpocket, or confidence around, having support, no visible or lawful means of to loiter specified public places certain The court héld or assemblies. that the word ‘loiter’ as Used in the statute there under con- sideration ‘has a wrongful sinister or as-well as a reasonable implication. definite proscribed As by the statute the word “loiter” obviously connotes lingering in designated the places purpose for the of committing a crime as opportunity ” be discovered.’ may p. 312.) (Pp. Cal.2d at 621-622.) persuaded
“We are that as used the statute now before us the term ‘loiter’ was intended to have a restricted rather than general a meaning employed and that as so here, it has as in the statute under in Cregler, consideration ‘a sinister or ’ wrongful as well as a reasonable implication. definite (In re Cregler, supra, 312.) We are the opinion that the word ‘loiter’ was intended proscribe lingering about public places schools and purpose or the with the for effectuating intent some (P. criminal act. ...” 623; italics added.)
“Therefore as we construe the us, persons statute before merely park who public sit on benches, pause loll on beaches, in the linger of schools or public the vicinity areas many frequented reasonably cannot be considered children as loitering compass when, within the of the statute. It only is loitering is of such a nature that from the totality of person’s actions and in light of the prevailing circum- stances, reasonably it being be concluded that it is en- may gaged in ‘for purpose oppor- a committing crime as tunity (In Cregler, supra) re discovered’ that such conduct falls within the therefore hold that statute. We term loiter significance has a clear and reasonable definite statute, vague context not that so and indefinite as guaranties to offend constitutional and that the statute so abridge invade, deny personal rights construed does not (Pp. 625-626.) and liberties....” complaint Each of the several of the misdemeanor counts ‘‘ against charges did a Mandel that he loiter about school and ’’
public place at and near children which school attend. Fol- lowing authority Huddleson, language this a matter of law to read, meaning, must be deemed and have the that he ‘‘ public place did loiter about school at and near school children attend or with the intent effectuating some criminal act.” n construed, argument So subject Mandel’s com- plaint vague uncertain without merit. And complaint construed, sufficiently so states facts constituting municipal offense. Accordingly, Pen, properly overruled Mandel’s (See court demurrer. Code, 4.) subd. § *25 argued required specific
It
that a
alleged
must
intent
be
accusatory
in an
pleading;
implied
it
not be
may
operation of
This does not appear
law.
to be the
One
rule.
charged
be
language
with
crime
statute
declaring
the matter
be a
Thus
charging
offense.
allege
theft
is sufficient to
that the defendant “unlawfully
property
(Pen.
took the .
.
Code,
.
another”
im
952);
§
plied by
allegation
taking
law the further
that the
was with
specific
permanently deprive
“intent
the owner of the
(See Witkin,
p. 357.)
Cal. Crimes
property.”
Like
inwise
of robbery
crimes
it is
assault
sufficient to
allege
(People
that the
Kent,
defendant “robbed”
v.
90 Cal.
App.2d
376])
P.2d
“did . .
. assault” an
(People Macias, Cal.App.2d
other
v.
895];
P.2d
People Mitchell,
pleading must may he without knowl- the accused specific intent; otherwise charge against our him. Under edge nature of the true fully available to procedures such information present day pro- preliminary grand transcript of jury an accused discovery. ceedings, byor superior court. judgment affirm
I would respondent party in interest and real petition of the December Supreme was denied hearing Court for a petition should opinion that the J., Burke, was of 1969. granted. 8,1969.] Dist., Oct. No. Fourth Div. One. 9332.
[Civ. HEARST Appellant, v. HANBERRY, ZAYDA Plaintiff and Respondent. Defendant and CORPORATION,