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.
S.F. No. 25040
Supreme Court of California
Aug. 22, 1988
46 Cal. 3d 381
Leo Himmelsbach, District Attorney, and Joseph V. Thibodeaux, Deputy District Attorney, for Petitioner and Real Party in Interest the People.
No appearance for Respondent.
Joan W. Howarth, Paul Hoffman, Robert Black, Margaret Crosby, Ed Chen and Alan Schlosser as Amici Curiae on behalf of Real Parties in Interest Caswell et al. and Petitioner Grassi.
OPINION
ARGUELLES, J.—
FACTS
Defendants were charged in municipal court with violating
Both the People and Grassi sought appellate review and the Court of Appeal consolidated the cases. Although cognizant of the decision in Soto,
DISCUSSION
That no person shall be deprived of life, liberty or property without due process of law is, of course, a cornerstone of our jurisprudence. (
First, a statute must be sufficiently definite to provide adequate notice of the conduct proscribed. “[A] statute which either forbids or requires the doing of an act in terms so vague thаt 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. [Citations.]” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126]; see also Colautti v. Franklin (1979) 439 U.S. 379, 390 [58 L.Ed.2d 596, 606, 99 S.Ct. 675]; Smith v. Goguen (1974) 415 U.S. 566, 572, fn. 8 [39 L.Ed.2d 605, 611, 94 S.Ct. 1242]; Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [83 L.Ed. 888, 890, 59 S.Ct. 618]; Burg v. Municipal Court (1983) 35 Cal.3d 257, 269 [198 Cal.Rptr. 145, 673 P.2d 732], cert. den. & app. dism. 466 U.S. 967 [80 L.Ed.2d 812, 104 S.Ct. 2337]; People v. Mirmirani (1981) 30 Cal.3d 375, 382 [178 Cal.Rptr. 792, 636 P.2d 1130]; see also Cranston v. City of Richmond (1985) 40 Cal.3d 755 [221 Cal.Rptr. 779, 710 P.2d 845] [vagueness challenge to administrative regulation].) “[B]ecause 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. Vague laws may
Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. “A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Grayned, supra, 408 U.S. at pp. 108-109.) “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.‘” (Kolender v. Lawson (1983) 461 U.S. 352, 358 [75 L.Ed.2d 903, 909, 103 S.Ct. 1855], quoting Smith v. Goguen, supra, 415 U.S. at p. 575.)
We evaluate the provisions of
A. Adequate notice
At the outset, we note past cases make clear that the statute is not rendered impermissibly indefinite by its use of the word “loiter.” More than a quarter of a century ago, in In re Cregler (1961) 56 Cal.2d 308 [14 Cal.Rptr. 289, 363 P.2d 305], we sustained a different, much less specific, loitering statute against a vagueness challenge, explaining that “the word ‘loiter’ in our view has a sinister or wrongful . . . implication,” excluding “mere waiting for any lawful purpose” but connoting “lingering in the designated places for the purpose of committing a crime as opportunity may be discovered.” (Id. at pp. 311-312; see also People v. Teresinski (1982) 30 Cal.3d 822, 830 [180 Cal.Rptr. 617, 640 P.2d 753]; In re Hoffman (1967) 67 Cal.2d 845, 853 [64 Cal.Rptr. 97, 434 P.2d 353].)
On a number of occasions, the United States Supreme Court has emphasized the value that a specific intent requirement plays in overcoming the potential vagueness of a statute. As the court noted in Hoffman Estates, supra, 455 U.S. at page 499, “a scienter requirement may mitigate a law‘s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Because
Nor do the words “in or about any toilet open to the public” appear misleading or cryptic. “It is not required that a statute, to be valid, have that degree of exactness which inherеs in a mathematical theorem” (Smith v. Peterson (1955) 131 Cal.App.2d 241, 246 [280 P.2d 522, 49 A.L.R.2d 1194]); “no more than a reasonable degree of certainty can be demanded.” (Boyce Motor Lines v. United States (1952) 342 U.S. 337, 340 [96 L.Ed. 367, 371, 72 S.Ct. 329]; see also Burg, supra, 35 Cal.3d at p. 270; Mirmirani, supra, 30 Cal.3d at p. 382.)2 It is thus clear this statutory phrase is sufficiently definite such that no reasonable person could misunderstand its meaning.
Finally, the phrase “lewd or lascivious or any unlawful act,” as interpreted by prior case law, also withstands constitutional scrutiny.3 This court was confronted with construing similar
B. Adequate guidelines to permit nonarbitrary enforcement
Defendants’ principal argument is that even if the provisions of
In reaching this conclusion, the Soto court rested its holding largely on the reasoning of the then-recent United States Supreme Court decision in Kolender, supra, 461 U.S. 352, in which the high court sustained a vagueness challenge to a different subdivision of section 647—section 647, subdivision (e) (hereafter section 647(e))—which provided that a person was guilty of a misdemeanor if he “loiters . . . upon the streets . . . without apparent reason or business and . . . refuses to identify himself or to account for his presence when requested by an peace officer so to do. . . .” Because of the central role Kolender assumed in the Soto court‘s analysis, Kolender is a logical starting point for our analysis of defendants’ present claim.
In Kolender, supra, 461 U.S. 352, the state defended section 647(e) against the defendant‘s vagueness challenge by pointing to an earlier state court decision—People v. Solomon (1973) 33 Cal.App.3d 429, 438-439 [108 Cal.Rptr. 867]—which, in upholding the statute against a prior constitutional challenge, had construed section 647(e) to simply require a person to
The United States Supreme Court found even this limiting judicial gloss insufficient to save the constitutionality of the section, explaining: “Section 647(e), as presently drafted and as construed by the state courts, contains no standard for determining what a suspect has to do in order to satisfy the requirement to provide a ‘credible and reliable’ identification. As such, the statute vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute and must be permitted to go on his way in the absence of probable cause to arrest. An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets ‘only at the whim of any police officer’ whо happens to stop that individual under § 647(e). [Citation.]” (Kolender, supra, 461 U.S. at p. 358.) Later, the high court observed: “It is clear that the full discretion accorded to the police to determine whether the suspect has provided a ‘credible and reliable’ identification necessarily ‘entrust[s] lawmaking “to the moment-to-moment judgment of the policeman on his beat.“” [Citations.] Section 647(e) ‘furnishes a convenient tool for “harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure,“’ [citations], and ‘confers on police a virtually unrestrained power to arrest and charge persons with a violation.‘” (Id. at p. 360.)
The Soto court found the high court‘s critical analysis of section 647(e) equally applicable to
In reaching this conclusion, however, we think that the Soto court failed to take adequate account of the significant differences between the loitering
As we have seen, the key portion of the loitering provision at issue in Kolender was the requirement that an individual, who the police believed was loitering or wandering upon the streets without apparent reason or business, provide “credible and reliable” evidence of his or her identity; if the person failed to provide such “credible and reliable” identification, he or she was guilty of a crime. Because the statute, even with the judicial gloss, contained “no standard for determining what a suspеct ha[d] to do to satisfy the requirement to provide a ‘credible and reliable’ identification” (Kolender, supra, 461 U.S. at p. 358), the Kolender court concluded that the provision effectively made the very definition of the crime subject to the personal standards of each individual law enforcement officer.
By contrast,
The Soto court, while recognizing the important interests served by
We believe the Soto court‘s reasoning is flawed on several levels. First, even if probable cause to arrest for a violation of
Moreover, we think the Soto court was mistaken in suggesting that
There are two problems with defendants’ argument. First, we can readily envision numerous situations where noncriminal conduct may legitimately give rise to probable cause to believe an individual is in violation of
The Model Penal Code is instructive on this point. Section 251.3 of that code sets forth a loitering statute similar to
The second flaw in both the Soto court‘s and defendants’ argument that
Of course,
Similarly, the crime of conspiracy is complete “when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement.” (People v. Cockrell (1965) 63 Cal.2d 659, 667 [47 Cal.Rptr. 788, 408 P.2d 116];
Defendants counter that the law of attempts and the law of conspiracy make poor analogies since both require an overt act for a completed crime. By contrast, they suggest that
Defendants find this answer lacking and contend that loitering is not an affirmative criminal act but is instead “mere presence” at a certain place. However, “mere presence” can, in some circumstances, constitute the actus reus of a crime. (See, e.g.,
In concluding that
In striking down a statute prohibiting loitering near pinball machines, the Hawaii Supreme Court distinguished two cases cited by the Peoplе in support, noting that unlike those cases, the statute in question “contains no additional requirement of unlawful intent to give meaning to the loitering provision within the statute.” (State v. Bloss (1980) 62 Hawaii 147, 152 [613 P.2d 354, 357-358].) Although our sister states are not unanimous on this point, it appears the majority of the decisions have held such loitering statutes are not unconstitutionally vague if they require a specific intent in addition to the act of loitering. (See Short v. City of Birmingham (Ala.Crim.App. 1981) 393 So.2d 518; City of South Bend v. Bowman (Ind.App. 1982) 434 N.E.2d 104; State v. Armstrong (1968) 282 Minn. 39 [162 N.W.2d 357]; State v. Evans (1985) 73 N.C.App. 214 [326 S.E.2d 303] [intent requirement renders the statute not void for overbreadth]; City of Akron v. Parrish (1981) 1 Ohio Misc.2d 7 [437 N.E.2d 1220]; City of Seattle v. Jones (1971) 79 Wn.2d 626 [488 P.2d 750]; City of Milwaukee v. Wilson (1980) 96 Wis.2d 11 [291 N.W.2d 452]. See, however, contra, Brown v. Municipality of Anchorage (Alaska 1978) 584 P.2d 35; People v. Gibson (1974) 184 Colo. 444 [521 P.2d 774]; Christian v. City of Kansas City (Mo.App. 1986) 710 S.W.2d 11 [court did not directly address whether intent limited vagueness of the statute]; Profit v. City of Tulsa (Okla.Cr. 1980) 617 P.2d 250.)
Aside from the scienter requirement, the language in
The importance of limiting the place of enforcement in order to mitigate a statute‘s potential vagueness has been recognized in other states. In People v. Clark (N.Y. App. Term 1987) 135 Misc.2d 22 [515 N.Y.S.2d 382], the court was faced with a vagueness challenge to a law which made a person guilty of loitering when he “loiters or remains in any transportation facility, . . . and is unable to give a satisfactory explanation of his presence.” (Clark, supra, at p. 23, quoting N.Y. Pen. Law § 240.35(7).) The court explained that “the vagueness of a proscription of loitering alone . . . [may] be overcome by . . . the designation that loitering is prohibited in a specific place of restricted public access [citation].” (Ibid., italics added; see also People v. Guilbert (N.Y. City Crim. Ct. 1983) 122 Misc.2d 694, 698-699 [472 N.Y.S.2d 90, 93-94].)8
This is consistent with the position taken by the Wisconsin Supreme Court in State v. Starks (1971) 51 Wis.2d 256 [186 N.W.2d 245], which held a loitering statute would be impermissibly vague unless limited as to scope, place, or purpose. (Starks, supra at p. 262; see also discussion of Starks in City of Milwaukee v. Wilson, supra, 96 Wis.2d 11, 16-19.) By limiting the scope of the statute to include only those loitering in a certain place, the likelihood
One final point deserves mention. Although an enactment‘s potential vagueness may be ameliorated by the express enumeration of observable behavior which can serve to guide police discretion,9 a loitering statute that
Although we find
In addition to the vagueness arguments discussed, ante, defendants also contend
Defendants also complain
CONCLUSION
In sum, we conclude
The judgment of the Court of Appeal is affirmed. The stays of defendants’ respective trials, issued by the lower court and continued by this court, are dissolved.
Lucas, C. J., Panelli, J., Eagleson, J., and Kaufman, J., concurred.
MOSK, J.—I dissent.
Vagrancy laws have traditionally been used to clear the streets of persons who have committed no crime but are nevertheless deemed repugnant to
Vagrancy laws have been meeting an unsympathetic fate as courts become increasingly aware of the manner in which vagueness contributes to abuse by authorities. Over the years a plethora of well-considered opinions invalidated all or part of one after another of such laws, both at the federal and state levels. (See, e.g., Papachristou v. City of Jacksonville, supra, 405 U.S. 156; Kolender v. Lawson (1983) 461 U.S. 352 [75 L.Ed.2d 903, 103 S.Ct. 1855]; People v. Soto (1985) 171 Cal.App.3d 1158, 1168 [217 Cal.Rptr. 795]; Gates v. Municipal Court (1982) 135 Cal.App.3d 309, 320 [185 Cal.Rptr. 330]; Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 262 [150 Cal.Rptr. 813, 2 A.L.R.4th 1230]; People in Interest of C. M. (Colo. 1981) 630 P.2d 593; Sawyer v. Sandstrom (5th Cir. 1980) 615 F.2d 311, 318; City of Bellevue v. Miller (1975) 85 Wn.2d 539 [536 P.2d 603, 608]; State v. Debnam (1975) 23 Ore.App. 433 [542 P.2d 939, 942]; State v. Martinez (1975) 85 Wn.2d 671 [538 P.2d 521, 527]; United States ex rel. Newsome v. Malcolm (2d Cir. 1974) 492 F.2d 1166, 1174; People v. Gibson (1974) 184 Colo. 444 [521 P.2d 774, 775]; City of Seattle v. Pullman (1973) 82 Wn.2d 794 [514 P.2d 1059]; Anderson v. Nemetz (9th Cir. 1973) 474 F.2d 814, 817; People v. Berck (1973) 32 N.Y.2d 567 [300 N.E.2d 411, 416]; In re Doe (1973) 54 Hawaii 647 [513 P.2d 1385, 1389]; Hall v. United States (D.C. Cir. 1972) 148 App.D.C. 42 [459 F.2d 831, 840]; State v. Starks (1971) 51 Wis.2d 256 [186 N.W.2d 245, 250]; State v. Aucoin (Me. 1971) 278 A.2d 395, 397; State v. Grahovac (1971) 52 Hawaii 527 [480 P.2d 148, 153]; Hayes v. Municipal Court of Oklahoma City (Okla.Crim. 1971) 487 P.2d 974, 981; Arnold v. City and County of Denver (1970) 171 Colo. 1 [464 P.2d 515, 517]; City of Portland v. White (1972) 9 Ore.App. 239 [495 P.2d 778, 780]; Goldman v. Knecht (D.Colo. 1969) 295 F.Supp. 897, 906; Lazarus v. Faircloth (S.D.Fla. 1969) 301 F.Supp. 266, 273; City of Portland v. James (1968) 251 Ore. 8 [444 P.2d 554, 558]; Ricks v. District of Columbia (D.C. Cir. 1968) 134 App.D.C. 201 [414 F.2d 1097, 1110]; City of Seattle v. Drew (1967) 70 Wn.2d 405 [423 P.2d 522, 525, 25 A.L.R.3d 827]; Alegata v. Commonwealth (1967) 353 Mass.287 [231 N.E.2d 201, 205]; Headley v. Selkowitz (Fla. 1965) 171 So.2d 368, 370 [12 A.L.R.3d 1443]; Cleveland v. Baker (1960) 83 Ohio L.Abs. 502 [167 N.E.2d 119, 121]; People v. Diaz (1958) 4 N.Y.2d 469 [151 N.E.2d 871]; Soles v. City of Vidalia (1955) 92 Ga.App. 839 [90 S.E.2d 249, 252]; Commonwealth v. Carpenter (1950) 325 Mass. 519 [91 N.E.2d 666, 667]; Territory of Hawaii v. Anduha (9th Cir. 1931) 48 F.2d 171, 173; Stoutenburgh v. Frazier (1900) 16 App.D.C. 229, 240; see Shuttlesworth v. Birmingham (1965) 382 U.S. 87, 90 [15 L.Ed.2d 176, 179, 86 S.Ct. 211]; Pryor v. Municipal Court, supra, 25 Cal.3d 238, 253.)
In this case we must decide whether
Our court has observed that “it is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]” (Burg v. Municipal Court, supra, 35 Cal.3d 257, 269.) With regard to this second component, we declared that “vague statutory language . . . creates the danger that police, prosecutors, it judges and juries will lack sufficient standards to reach their decisions, thus opening the door to arbitrary or discriminatory enforcement of the law.” (Pryor v. Municipal Court, supra, 25 Cal.3d 238, 252.)
As the court observed in Bank of America etc. Assn. v. Kelsey (1935) 6 Cal.App.2d 346, 351 [44 P.2d 617], intention “is a state of mind and, until
To compound the problems with the statute, I find the phrase “any unlawful act” to be about as vague and uncertain a term as can be devised. The
The majority, perhaps inadvertently, reveal one of the ways in which this vague statute can be—and probably is—misused. They indicate that noncriminal conduct may give rise to probable cause to believe an individual is in violation of
There can be no doubt that a penal statute is void on its face if it forbids “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. . . .” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) All persons are required to avoid unlawful conduct, but to do so they must be told in clear and unequivocal terms precisely what conduct is unlawful.
The statute at issue refers to only one act that constitutes conduct: loitering. Yet loitering—i.e., lingering, dawdling, loafing, tarrying, lazying, lagging, idling, dallying—admittedly is not in itself a criminal offense. That leaves only intent as the prohibited element. Thus to be vulnerable to prosecution, a person must linger near a restroom and think or fantasize about improper sexual acts or any other crime on the books. No overt act. No advances toward any other person. Just thoughts.
We have come a long way toward controlling crime and criminals. There are adequate laws on the books to prevent illegal conduct. But when we
Justice Arguelles pointed out the adequacy of other laws in his concurring opinion in a decision invalidating this very statute in People v. Soto, supra, 171 Cal.App.3d at page 1170: “the deterrence of socially prohibited activities in public restrooms can be met by enforcement of existing sections 647, subdivision (a) (prohibiting commission or solicitation of a lewd act), section 314 (prohibiting indecent exposure), and similar statutes which prohibit specific conduct.” It is regrettable that he now disavows his offspring. He was right the first time.
Justice Douglas, writing for a unanimous United States Supreme Court in Papachristou v. City of Jacksonville, supra, 405 U.S. at page 171, emphasized the vice of vagrancy laws comparable to
Broussard, J., concurred.
The petition of real parties in interest Caswell et al., and petitioner Grassi for a rehearing was denied October 13, 1988. Mosk, J., was of the opinion that the petition shоuld be granted.