The People appeal from a trial court order of dismissal after the sustaining of a demurrer to a charge of violating Penal Code section 647, subdivision (d). That section states that a person “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,” is guilty of disorderly conduct, a misdemeanor. In support of his demurrer, defendant argued that the terms “loiter,” “in or about” and “lewd and lascivious” were vague. Additionally, he claimed that the term “loiter” is constitutionally overbroad. He added that the statute violates the First, Fourth, Sixth and Fourteenth Amendments to the United States Constitution and the corresponding amendments in the California Constitution. He avers that the statute provides no guidance as to standards for arrest; that it punishes status as opposed to a course of conduct; and, that it impinges on freedom of thought, speech and association.
“It is well settled that a criminal statute which is so indefinite, vague and uncertain that the definition of the crime or standard of conduct cannot be ascertained therefrom, is unconstitutional and void. However, there is a uniformity of opinion among the authorities that a statute will not be held void for uncertainty if any reasonable and practical construction can be given to its language.
“Nor does the fact that its meaning is difficult to ascertain or susceptible of different interpretations render the statute void. 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 unmistakably appears. Doubts as to its construction will not justify us in disregarding it. In determining whether a penal statute is sufficiently explicit to inform those who are subject to it what is required of them the courts must endeavor, if possible, to view the statute from the standpoint of the reasonable man who might be subject to its terms. It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited. The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.” (Cita
It is conceded that the term “lewd and lascivious” must be redefined in accordance with the holding of Pryor v. Municipal Court (1979) 25 Cal.3d 238, 245 [158 Cal.Rptr. 330, 599 P.2d 636]. The rest of defendant’s arguments are without merit.
Pryor v. Municipal Court addressed the constitutional issues raised by the terms “lewd and dissolute” as those terms had been defined in previous case law. The court defined those terms to prohibit the “touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense....” (25 Cal. 3d at p. 244.) In Pryor, the court upheld the constitutionality of Penal Code section 647, subdivision (a) which prohibits the solicitation of or engaging in lewd or dissolute conduct in a public place or in any place open to the public or exposed to public view. In contrast, subdivision (d) prohibits loitering in or about toilets open to the public for the purpose of engaging in or soliciting any lewd or lascivious act. Webster’s Third New International Dictionary defines the terms lewd, dissolute and lascivious to be synonymous. It is thus appropriate to apply the Pryor definition in the context of subdivision (d).
People v. Ledenbach, supra, is the only case to have construed Penal Code section 647, subdivision (d). Although it relied on disapproved cases for the definition of lewd, that definition is not so inextricably woven into the opinion as to invalidate the rest of the court’s reasoning. The court held that the term “loiter” is not vague and that it means lingering for a lewd and lascivious purpose. Defendant argues
Defendant argues that the term “in or about” is unconstitutionally vague. He admits that the term “in” is sufficiently clear. Free speech not being involved in the act of loitering,
Defendant’s claim that once the Pryor limiting construction is applied to subdivision (d), the statute will be mere surplusage to subdivision (a), is not well taken. Subdivision (d) proscribes loitering for the purpose of committing a lewd act. Its elements can be established by both direct and circumstantial evidence, without a showing that subdivi
The orders dismissing the complaint as to count II and sustaining the demurrer as to that count are reversed.
A petition for a rehearing was denied November 10, 1980.
Before Ibáñez, P. J., Bigelow, J., and Fainer, J.
People v. Hill (1980) 103 Cal.App.3d 525 [163 Cal.Rptr. 99] used the Pryor definition of lewd and dissolute as those words were considered with reference to prostitution in the pimping and pandering statutes; (Pen. Code, §§ 266h and 266i.)
Pryor v. Municipal Court, supra, holds that “[a] statute which by judicial construction prohibits only the solicitation of criminal acts does not abridge freedom of speech.” (25 Cal.3d at p. 254.)