THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; CYNTHIA HARTWAY et al., Real Parties in Interest.
S.F. No. 23477
Supreme Court of California
Apr. 27, 1977.
Rehearing Denied May 26, 1977
19 Cal.3d 338 | 562 P.2d 1315 | 138 Cal. Rptr. 66
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O‘Brien, Assistant Attorney General, Clifford K. Thompson, Jr., and Martin S. Kaye, Deputy Attorneys General, for Petitioner.
No appearance for Respondent.
James C. Hooley, Public Defender, Michael G. Millman and Robert H. Betzenderfer, Assistant Public Defenders, Paul N. Halvonik, State Public Defender, and Clifton R. Jeffers, Chief Assistant State Public Defender, for Real Parties in Interest.
Ephraim Margolin, Nicholas Arguimbau, Margaret C. Crosby, Charles C. Marson, Alan L. Schlosser, Ellen Chaitin, Mark I. Soler, Amitai Schwartz Treuhaft, Walker, Brown & Cooper, Treuhaft & Walker, Mark I. Soler and Mary C. Dunlap as Amici Curiae on behalf of Real Parties in Interest.
OPINION
CLARK, J.—The People petition for a writ of prohibition to prevent respondent superior court from enforcing its order directing that a peremptory writ of prohibition issue restraining the Municipal Court for the Oakland-Piedmont Judicial District from proceeding with prosecution of defendants, real parties in interest herein.
Upon application by defendants, respondent superior court then issued its writ restraining trial proceedings. Disagreeing with the trial court on both questions, respondent held: (1)
Like the municipal court, and unlike respondent superior court, we find the challenged statute to be constitutional both on its face and as applied. Accordingly, we grant the People‘s petition for a peremptory writ of prohibition.3
The solicitation provision of
The federal due process standard was recently restated in Rose v. Locke (1975) 423 U.S. 48 [46 L.Ed.2d 185, 96 S.Ct. 243]. Rejecting the contention that a statute prohibiting a “crime against nature” was unconstitutionally vague, the high court observed: “It is settled that the fair-warning requirement embodied in the Due Process Clause prohibits the States from holding an individual ‘criminally responsible for conduct which he could not reasonably understand to be proscribed.’ But this prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for ‘[i]n most English words and phrases there lurk uncertainties.’ Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid. All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” (Id., at pp. 49-50 [46 L.Ed.2d at p. 188], citations omitted.)
Similarly, under California law, ” ‘Reasonable certainty is all that is required. A statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.’ It will be upheld if its terms may be made reasonably certain by reference to other definable sources.” (American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218 [28 Cal. Rptr. 700, 379 P.2d 4], citations omitted; see County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673 [114 Cal.Rptr. 345, 522 P.2d 1345]; People v. Victor (1965) 62 Cal.2d 280, 300 [42 Cal.Rptr. 199, 398 P.2d 391].)
“Solicit” was defined in a related context—soliciting for a prostitute, i.e., pimping (
Phillips was among the sources this court relied upon in defining “solicit” in the context of an action to enjoin a former employee from soliciting customers of his former employer. ” ‘Solicit’ is defined as: ‘To ask for with earnestness, to make petition to, to endeavor to obtain, to awake or excite to action, to appeal to, or to invite.’ (Black‘s Law Dictionary, 3d ed., p. 1639.) ‘It implies personal petition and importunity addressed to a particular individual to do some particular thing, . . .’ (Golden & Co. v. Justice‘s Court, 23 Cal.App. 778, 798 [140 P. 49].) It means: ‘To appeal to (for something); to apply to for obtaining something; to ask earnestly; to ask for the purpose of receiving; to endeavor to obtain by asking or pleading; to entreat, implore, or importune; to make petition to; to plead for; to try to obtain.’ (People v. Phillips, 70 Cal.App.2d 449, 453 [160 P.2d 872].)” (Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198, 203-204 [246 P.2d 11].)
Amici are critical of a portion of the Phillips definition which this court deleted in quoting from that case in Aetna. The passage in question defines “solicit” as: “To tempt (a person); to lure on, esp. into evil, . . . to bring about, forth, on, etc., by gentle or natural operations; to seek to induce or elicit; . . . [‘]” (People v. Phillips, supra, 70 Cal.App.2d at p. 453.) If merely “tempting” a person to engage in an act of prostitution constitutes solicitation within the meaning of
We agree that such conduct, per se, should not be deemed a violation of the statute. However, there is no evidence in this record that anyone has been arrested for, much less convicted of, soliciting an act of prostitution on the basis of such ambiguous conduct. To the contrary, the evidence indicates that persons arrested for this crime not only make their entreaties verbally, but, assuming one is familiar with their jargon, express themselves in language of brutal clarity.
Although most solicitations are verbal, we are not prepared to accept amici‘s suggestion that the concept be limited, for the purposes of this statute, to “verbal offers.” If we so held, well-advised prostitutes would
“The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” (Colten v. Kentucky (1972) 407 U.S. 104, 110 [32 L.Ed.2d 584, 590, 92 S.Ct. 1953].) The challenged statute, insofar as it prohibits soliciting an act of prostitution, satisfies this standard.
DISCRIMINATORY ENFORCEMENT
The Oakland Police Department, in enforcing
The
In Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44], this court pointed out that although the great bulk of litigation under these constitutional provisions has recently focused upon the propriety of classifications in statutory enactments, this contemporary emphasis on the application of the equal protection doctrine to legislation should not obscure the fact that from the very inception of the
Like the ordinance in Yick Wo, the statute challenged here is “fair on its face and impartial in appearance.” (Yick Wo v. Hopkins, supra, 118 U.S. at p. 373 [30 L.Ed. at p. 227].)
Because of the presumption that official duty has been properly, hence constitutionally, performed (
The elements of the defense of discriminatory enforcement were set forth in Murgia v. Municipal Court, supra. To establish the defense, the defendant must prove: (1) “that he has been deliberately singled out for prosecution on the basis of some invidious criterion;” and (2) that “the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities.” (15 Cal.3d at p. 298.)
1. More men than women are employed as “decoys” for solicitation of acts of prostitution with the result that more female prostitutes than male customers are arrested for that crime.
2. In “trick” cases, the female prostitute, but not the male customer, is arrested even if his culpability is as great as, or greater than, hers.4
3. If the man is arrested in a trick case, he is merely cited, i.e., released with a written notice to appear in court, whereas the woman is subjected to custodial arrest.
4. Female prostitutes are quarantined when arrested whereas their male customers are not so restrained.
Decoy Cases
The record establishes that the Oakland Police Department does employ more men than women as decoys for solicitation of acts of prostitution and that, as a result of this practice, the department does arrest more female prostitutes than male customers for this crime.5 The critical question is whether the department adopted this practice—employing more men than women as decoys—with intent to discriminate against women. After a thorough evidentiary hearing into this matter of fact, the municipal court found that the practice was not adopted with such intent. It found, instead, that the practice is a consequence of the department‘s sexually unbiased policy of concentrating its enforcement effort on the “profiteer,” rather than the customer of commercial vice. This dispositive finding of fact is amply supported by substantial evidence. Therefore, under settled principles of
The subdivision of the Oakland Police Department having special responsibility for the enforcement of
In order to most efficiently utilize its limited resources, the vice control unit concentrates on the profiteers in each vice with special emphasis on those at the apex of the illicit commerce. It is a matter of common knowledge of which we may take judicial notice that most law enforcement agencies—federal, state and local—endorse this approach with respect to narcotics. Although both parties to an illicit narcotics transaction break the law, as do both parties to an act of prostitution, no one seriously suggests that it is inappropriate for a law enforcement agency to concentrate on the profiteer and to carry out this policy by, among other things, using its undercover officers as decoys to arrest sellers rather than buyers. The record supports the municipal court‘s conclusion that the Oakland Police Department adopted a profiteer-oriented approach to prostitution in good faith and not as a smokescreen for deliberate discrimination against women.
It is by no means certain that employing more male than female undercover officers as decoys for solicitation is the most efficient use of this limited resource in fighting prostitution. However, on the available evidence, the Oakland Police Department could in good faith come to this conclusion. Prostitutes, the municipal court found, average five customers per night; the average customer does not patronize prostitutes five times a year. Because of an effective grapevine, arrest of one prostitute by an undercover officer will deter others, at least for a time. Customers, on the other hand, are usually unknown to one another. Therefore, in the absence of widespread publicity, arrest of one customer will not deter others. Finally, using female decoys is twice as “expensive” as using males because an additional officer is required under current practice to ensure the female‘s safety.
Even assuming arguendo that using more male than female decoys is a manifestation of a policy of deliberate discrimination against women, defendants have not established the other element of a discriminatory enforcement defense—that they would not have been arrested but for this policy. To the contrary, substantial evidence supports the municipal court‘s conclusion that “[t]he Oakland Police Department made arrests for violations of
Trick Cases
In trick cases,7 defendants allege, the Oakland Police Department arrests the woman, but not the man, even if his culpability is as great as, or greater than, hers.
In support of this allegation, defendants introduced evidence of six trick cases in which the woman was arrested for solicitation while the
Arrest Procedures
Prior to 29 March 1975, the customary practice of the Oakland Police Department was to custodially arrest the prostitute—male and female alike—and cite the customer, i.e., release him with a written notice to appear in court pursuant to
The municipal court concluded that the previous practice was not a manifestation of a policy of deliberate discrimination against women. The most obvious ground for this conclusion is that male and female prostitutes were treated alike in this regard. However, the court also based its conclusion on a finding that prostitutes, unlike their customers, did not ordinarily satisfy the standards for release pursuant to
Quarantine
In the ordinary course of events, when weekends and holidays did not intervene, a female prostitute was tested for gonorrhea and syphilis the morning after her arrest. The result of the gonorrhea test was available the following morning. If the test was negative, she was released from quarantine. If the test was positive, she was given penicillin and then released from quarantine. In either case she was encouraged to return voluntarily to a clinic in a few days to obtain the result of the syphilis test. The procedure was the same for a male prostitute except that he was released from quarantine earlier because the test for gonorrhea in the male yields results more quickly. Customers were not quarantined. The quarantine procedure was discontinued on 21 April 1975 because of a significant decline in the gonorrhea infectivity rate among female prostitutes and because voluntary programs had become the preferred alternative among California public health officials.
The municipal court concluded that the previous practice—quarantining prostitutes while not so restraining their customers—was not a manifestation of a policy of deliberate discrimination against women by the Oakland Police Department. This conclusion was based on a finding that female prostitutes were more likely than their male customers to communicate venereal diseases. This finding was amply supported by the following evidence: Whereas the venereal disease rate for the general population was 4 percent, the infectivity rate among quarantined female
However, the most obvious ground for the trial court‘s conclusion that the quarantine procedure was not a manifestation of a policy of deliberate discrimination against women is, again, that male and female prostitutes were, essentially, treated alike under the program. The distinction was not between male and female, but between prostitute and customer.
Finally, the quarantine procedure was the responsibility—not of the police or of the prosecutor—but of the public health officials. (See
Let the peremptory writ of prohibition issue as prayed.
Mosk, J., Richardson, J., and Sullivan, J.,* concurred.
TOBRINER, Acting C. J.—I dissent. Despite the clear language of
It has, of course, long been established that the discriminatory enforcement of an otherwise valid statutory prohibition constitutes a violation of the
In the instant case, defendants presented a wealth of statistical evidence which established beyond question that the procedures employed by the Oakland police in enforcing the prostitution solicitation law have resulted in the arrest of a significantly disproportionate number of women, as compared to men. Indeed, the police do not deny that by consciously choosing to employ primarily male decoys, they virtually assured that most of the law violators apprehended would be women, not men. The superior court concluded that this practice constituted invidious, constitutionally proscribed discrimination.
The majority argue, however, that the real parties have failed to demonstrate that the challenged police enforcement policies were motivated by “an intent to discriminate against women.” According to the majority, the disparate treatment of the sexes is simply “a consequence of the department‘s sexually unbiased policy of concentrating its enforcement effort on the ‘profiteer’ rather than the customer of commercial vice.” (Ante, p. 349.)
In reaching this conclusion, I believe that the majority err in two respects. First, the majority mistakenly equate concentration of law enforcement efforts on sellers of illegal narcotics with the similar focus of enforcement procedures on the “profiteer” in prostitution transactions. In the case of narcotics transactions the Legislature itself has drawn a distinction between buyers and sellers, and has endorsed the policy of concentrating police resources on the apprehension of sellers. (See
But the Legislature specifically refused to draw such a distinction between prostitutes and their customers in defining the offense of solicitation. (
Despite the clear legislative mandate to arrest and prosecute customers as well as prostitutes, the Oakland police have adopted an enforcement policy that directly contravenes the judgment of the Legislature. Although the police unquestionably may exercise discretion in the allocation of scarce resources, such discretion is not so unbridled as to permit the police to carve out invidious exceptions to a statutory prohibition, exceptions which the Legislature has specifically declined to enact. As the court noted in People v. Gray (1967) 254 Cal.App.2d 256, at page 266 [63 Cal. Rptr. 211]: “[T]he recognition of the discriminatory enforcement of a penal law as a defense to a criminal action is one of the few means the individual citizen has to force public officials to do their job properly. . . . The availability of discriminatory enforcement as a defense . . . serves a good purpose; it acts as a constant reminder to the executive that the will of the people, expressed through the legislative branch, should be obeyed.” Thus, just as the police “may not enforce a facially fair gambling statute as if it were explicitly directed only at blacks” (Murgia v. Municipal Court, supra, 15 Cal.3d 286, 296 (citing People v. Harris (1960) 182 Cal.App.2d Supp. 837 [5 Cal.Rptr. 852] and People v. Winters (1959) 171 Cal.App.2d Supp. 876 [342 P.2d 538])), they may not enforce a facially fair solicitation statute as if it were directed only at women.
In addition to drawing an inappropriate analogy to the enforcement of drug laws, the majority err in accepting at face value the People‘s contention that the challenged “profiteer-oriented” enforcement policy bears no relation to traditional sex-based stereotypes but instead simply represents the most efficient means of reducing the incidence of prostitution. (Cf. Castaneda v. Partida (1977) 430 U.S. 482, 492 [51 L.Ed.2d 498, 509, 97 S.Ct. 1272].) Several centuries of law enforcement history belie any claim that a “profiteer“-directed enforcement program is an effective
From February 26, 1975, through April 22, 1975, the Oakland police were compelled by order of the Alameda County Superior Court to employ female decoys and to arrest male customers guilty of
In light of the demonstrated success of an enforcement policy which encompasses both customers and prostitutes, I cannot accept the suggestion that the police department‘s resumption of its traditional enforcement policy, directed primarily at women, is explicable by reference to legitimate law enforcement objectives. Although the majority discern no discriminatory intent in the action of the Oakland police, I agree with the American Bar Association‘s section of Individual Rights and Responsibilities which has characterized such police practices as “one of the most direct forms of discrimination against women in this country today. In accordance with society‘s double standard of sexual morality, the woman who sells her body is punished criminally and stigmatized socially while her male customer . . . is left unscathed.” (ABA Section of Individual Rights and Responsibilities, Rep. to House of Delegates, Rep. No. 101B, p. 1 (1974).)
More than a half century ago, a New York court observed: “The men create the market, and the women who supply the demand pay the penalty. It is time this unfair discrimination and injustice should cease.” (People v. Edwards (N.Y. Co. Ct. 1920) 180 N.Y.S. 631, 634-635.)
I would deny the requested writ.
Wright, J., * concurred.
The petition of the real parties in interest for a rehearing was denied May 26, 1977. Bird, C. J., and Tobriner, J., were of the opinion that the petition should be granted.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
*Retired Chief Justice of California sitting under assignment by the Acting Chairman of the Judicial Council.