*1 Dist., 5, 1967.] Div. Two. June No. 13090. Second [Crim. W. PEOPLE, Appellant, THE Plaintiff and CHESTER Respondent. WEGER, Defendant and *3 City Prosecutor, Press, and David Gentry, Assis- Byron B. Appellant. for Plaintiff and Prosecutor, City tant Attorney General, James, William Lynch, E. Thomas C. Attorney General, Younger, J. District Evelle Attor- Assistant ney, Harry Sondheim, Deputy B. District Harry Wood (Los City Attorney Roger Arnebergh, Angeles), Attorneys, City Attorney, and Grey, Assistant Melvin L. Jen- Philip E. City Attorney, as Amici Curiae on Deputy behalf of sen, Appellant. Plaintiff Wirin, A. Fred Okrand Neiman, L. and Laurence Allen I. Respondent. Defendant and for Sperber
R. People pro June 1966 the McCOY, tem.*In filed a J. Municipal for the Court Pasadena Judicial complaint in the with a violation of charging defendant District, Penal The trial Code. court sustained (e) of section (Pen. the case and ordered demurrer dismissed. defendant’s Appellate Depart appeal 1008.) On Code, § Angeles County Superior Los affirmed ment certified case to this court. of dismissal and judgment impor transferred order to settle an the case ordered We law. question of tant constitutionality question us is the of sec only before (e), of the Penal Code. That section 647, subdivision tion provides Every person part:11 who commits in relevant disorderly conduct, guilty of following shall be acts upon or wanders (e) . . Who loiters . misdemeanor: apparent place place without reason or from streets identify himself and to account and who refuses business *4 do, requested by any peace officerso to presence when surrounding such as to indicate to a circumstances are if *Assigned by Judicial Council. Chairman of the
588 public safety man that the demands such reasonable identification. 1 guilt We are not ’ concerned with the or innocence of defendant. We hold that the law constitutional and is that judgment dismissing must action be reversed. “ presumption note at the outset that there is a We invalidity legislative and constitutionality, favor of of a can must be clear before it be declared act unconstitutional.” (Patton Bree, 606, Cal.Rptr. v. La 622, 60 608-609 Cal.2d [35 pointed People Superior 398].) 387 P.2d “As out v. ‘judicial 288, 10 298 (1937), Cal.2d P.2d deci [4] [73 that all presump with declarations to the effect sions abound validity favor the of statutes; tions and intendments judicial by government branch of the mere doubt to the validity not afford statute will a sufficient reason for a invalidity. judicial (In declaration of its . . .’ [Citations.]” Cregler, Cal.Rptr. re 308, 289, P.2d language are to so if their 305].) construed, “Statutes valid permits, as to render them and constitutional rather Angeles and Los (County than invalid unconstitutional. Legg, 5 Cal.2d 206]; Cal.Jur.2d, Stat ” p. 624.) utes, Municipal Court, Ehrlich v. 55 Cal.2d § Cal.Rptr. 758, 360 “Statutes must be unconstitutionality clearly, upheld unmistakably appears.” positively their unless re Huddleson, Cal.App.2d Cal.Rptr. 581].) 618, 621 [40 (e) Section subdivision not
Constitutionally Vague and Uncertain Defendant contends Code, vague of the Penal uncertain and fails to estab- clearly deprives defined guilt lish standards of and thus him process opinion and all others due of law. our this is not . contention tenable. Supreme consistently Court of the United “has States precision lack held that is not itself offensive to the re- quirements process. of due ‘. . . does Constitution [T]he impossible require ’; all required standards that is is that the ‘conveys sufficiently language warning pro- definite as to the scribed when conduct measured understanding common (Stats. adopted 560.) 1Seetion was in 1961. ch. Subdivision (e). Bruno, People Cal.App.2d this section was considered in Supp. Cal.Rptr. 458], People Wilson, Cal.App.2d 447 675 Cal.Rptr. Kraps, and was noted However, 89]. neither of these deal cases with the consti tutionality of the section.
589
7, 8
Petrillo, 332
1,
U.S.
. United States
practices.
.
.’
(Roth v. United
1883,
1882,
67 S.Ct.
1877,
1538].
L.Ed.
[91
1510-1511, 77
1498,
491
S.Ct.
476,
L.Ed.2d
States, 354 U.S.
[1
sufficiently defi
must be
“A criminal statute
1304].)
required
who would
conduct to one
give notice of
nite to
judge
application
guide
in its
and to
penalties,
avoid its
charged
defending
with its violation.
lawyer in
one
and the
symbols,
possess
precision of mathematical
few words
But
deal
untold and unforeseen variations
must
with
statutes
most
discharg
situations,
practical
of
and the
necessities
in factual
government inevitably
specificity
ing
limit the
business of
spell
prohibitions.
legislators can
Conse
which
out
certainty
degree
can be
than a reasonable
of
quently,
more
(1952) 342
(Boyce Motor Lines v. United States
demanded."
371,
329].)
72
367,
L.Ed.
S.Ct.
337
U.S.
[96
‘‘
require
that
Similarly
held in this state
it has been
certainty
espe
degree
legislation,
a reasonable
of
ment of
cially
law,
in the criminal
is a well
established element
may
required
process
at
guarantee
due
of law. ‘No one
be
liberty
property
speculate
meaning
peril
life,
as to the
penal
All
statutes.
are entitled to be informed as to what
...
“a
or forbids
statute
either
State commands
doing
vague
requires the
of an act
terms so
forbids or
necessarily guess
intelligence must
at
its
men of common
violates
first
meaning
application,
and differ as to its
’ (Lanzetta
process
Jersey,
v. New
due
of law.”
essential of
888, 890, 59
451,
L.Ed.
S.Ct.
see also
306 U.S.
618]
[83
Co.,
Connolly
385,
v. General Constr.
U.S.
L.Ed.
[70
328,
126].)
also
the law of the State
322,
S.Ct.
Such
is
McCaughan,
(People
409,
49 Cal.2d
California.
(In
Newbern,
786, 792
974].)"
re
P.2d
P.2d
Cal.2d
116].)
Cal.Rptr.
O,
128,
489,
In In re De
59 Cal.2d
La
705], it
“Words used in a
98 A.L.R.2d
is said:
ordinarily
according
statute
to be construed
to the context
are
13),
(Civ.
approved usage
language’
Code,
and ‘the
§
employs
sufficiently
if it
certain
words
and ‘a statute
“notwithstanding
meaning,
long usage
a common law
or with
an element of
might differ"
word as
adhered to these
Cal.2d
used
[8]
degree
’
rules,
(Lorenson v.
particular
in the
adding
statute
definition as to which estimates
Superior
page
”
398 P.2d
may
299 that
People Victor, 62
“a relative
admittedly a
(1950) 35
court
one;
depends
full of
where man’s fate
‘the law is
instances
but
jury subsequently
estimating rightly,
is,
on his
(Nash
degree.’
matter of
v. United
it,
States
estimates
some
(1913)
L.Ed.
S.Ct.
229 U.S.
780].)”
degree
presence
an element of
short,
the
ute will
in
words
be
process.
statutory
meaning rejected,
tion.]
would
the restricted
with
196
lation lest
inquiries
Cal.App.2d 618,
apparent
391].)
certain
them
definition of the words
203,
Victor, 62 Cal.2d
*6
Civil Liberties Union
the evil
given to the
statute.
practical
218
by
light
in their
It
be
have a broad
We
‘ ‘‘
the
not be
will be
object
[9]
into the
language
defeated
their
sought
Reasonable
reference to
of the
turn now
In
467
Legislature
construction
“The
[28
interpretation
doing so we are
language
restricted
purposes be too
held void for
624
upheld
objective sought
to be averted.
Cal.Rptr.
the statute
though
meaning
by construing
insufficiently
632
complexities
v. Board
to a
and also
P.2d
certainty
[16
if
used
require
other definable sources.’
Cal.Rptr.
employed by
sense,
consideration
its terms
can be
Cal.Rptr. 711].)
256].)” (In
of words.”
700,
will be
will
“does
uncertainty if any reasonable
latter
[42
required
easily
a
whereas
(Wotton
Education
certain to
379
given
them
restricted meaning,
be
all that is
to be
581].)
Cal.Rptr. 199,
the
preferred
not of itself render the
subserved
a
nullified
P.2d
the draftsmen
practical
achieved
its
social
of the
“to
(People
be made
re
a principal
be
their broad
language.”
4].)”
comply
required.
Bush (1953)
read
Huddleson,
problems
and the
by
words used in
by
by
construction
“Where the
v.
more
the statute
overrefined
reasonably
construing
(American
(People
398
59 Cal.2d
it
"with
Vaughn,
as well
A stat
if
object
broad
sense,
[Cita
usual
legis
dealt
P.2d
due
229
41
v.
meaning.
meaning
But a narrow or restricted
should
if it would result
given a word
evasion of the evi
act,
meaning
pre
or if a broader
purpose of
would
dent
carry
purpose.”
Cal.Jur.2d,
out the
vent evasion
648.)
Statutes, 140, p.
§
lengthy
prob-
Legislature,
study
a
In 1961 the
after
(see Assembly
Reports,
Interim Committee
lems involved
repealed
647 of
(1961))
former section
the Penal
No.
Code
present
adopted
(Stats. 1961,
its
form.
ch.
section
“vagrancy”
crime of
647 classified
560.) Former
misdemeanor.2
as a
present
enacting the
former section
repealing
urged by
principal
recognized, as
Legislature
section, the
had come to aban
section,
the time
new
draftsman of
don the
section “for statutes
concept of the former
vagrancy
decent,
just
fair and
a
notions of
harmonize
will
justice and which will
the same
criminal
administration
departments
discharge their
possible for
time make
responsibilities
. . .” In
straightforward manner
Pro
“by drafting legisla
Sherry’s words, this was done
fessor
proscribed with
the acts to be
will describe
. . . which
tion
hazy penumbra
free of
and which will be
precision
existing
characteristic of
social control
ideas of
medieval
Vagabonds—Old
Rogues and
Vagrants,
Con
(Sherry,
law.”
(Oct. 1960)
567;
cepts
Revision
48 Cal.L.Rev.
in Need of
Reports
(1961)
Assembly
No.
Interim Committee
and see
;
Cal.App.2d Supp.
859-860
pp.
People Bruno,
7-19
458].)
Cal.Rptr.
defined mean
‘loiter’
been
‘To be slow in
“The word
has
lag
(Webster’s
delay; linger; saunter;
behind’
New
moving;
(2d ed.)
Dictionary
(1941)
see
State
Starr
International
linger idly
356, 357])
by
or ‘to
57 Ariz.
Phillips Municipal
way,
Cal.App.
to idle’
548]).”
(In
Huddleson,
re
2d
App.2d
229 Cal.
621-622
The Random
Dictionary
English Language (unabr.
1966)
ed.
House
linger aimlessly
aimlessly
“loiter” is defined as “1. to
or as if
place:
slow,
manner;
...
2. to move
idle
or about
stops
purposeless
trip,
of a
journey,
course
make
“While taken
itself and in
errand, etc.”
its broad
*7
carry
meaning
no criminal implications,
the term
never
employed
penal
a
statute
considered in
such
theless
context, may
wrongful
statutory
import.
sinister,
have a
or criminal
”
Huddleson,
p.
(In
supra,
re
622.)
[Citations.]
others,
Every
that, among
person
647 declared
“3.
2Former section
who
place
place
any
business; or, Every
roams about from
without
lawful
4.
pickpocket, thief, burglar
operator,
known to be a
or confidence
by
by
confession,
having
any
either
offenses,
Ids own
or
been convicted of
such
having
support,
no visible or lawful means of
when found
loitering
any
landing,
depot, banking
around
steamboat
railroad
insti
tution,
office, place
amusement,
room, store, shop
broker’s
auction
or
or
thoroughfare,
car,
any
omnibus,
public gathering
crowded
or
or
or,
assembly;
Every person
. . . 6.
who wanders about the streets at
night,
any
business;
late or unusual hours of the
without
visible or lawful
vagrant
. . [i]
.
s a
...”
upheld
years
considered and
the courts have
Over
proscribing “loitering”
constitutionality
statutes
of various
Phillips
(See e.g.,
v. Municipal
another.
in one context or
Wright
Cal.App.2d
P.2d
548]
Cal.App.2d
(1956) P.2d
Garcia v.
997];
Munro
Cal.App.2d
894];
(1958) 161
see also
Munro
Angeles
(1961) 55
Flores v. Los
Club
Turf
Cal.Rptr. 201,
921].) In
the court in In re
361 P.2d
Cal.Rptr. 289,
Cregler,
56 Cal.2d
constitutionality
upheld
of subdivision of former section
held
It was there
that the word “loi
647 of
Penal Code.
subject
many
statute and
other
as used
ter”
wrongful
power regulations “has a sinister or
as well
aas
proscribed
implication.
definite
As
the statute
reasonable
obviously
lingering
desig
connotes
the word ‘loiter’
purpose
committing
oppor
crime as
places
nated
tunity may
(Pp. 311-312.) In In re
discovered.”
Huddle
son, 229
the court
Cregler
sustaining
constitutionality
the
provides
of section
followed
(2),
“Every person
which
647a, subdivision
public place
or
at or near
school
loiters about
who
normally congregate
vagrant
is a
...”
or
attend
children
passing
that with the
“unalloyed,
are satisfied
We
uncomplicated
sturdy
criminal
rogue,
character
the idle
vagrant,” (tenBroek, Family
vagabond,
Law,
the true
Part
614, 673-674),
longer required
we
III, 17 Stan.L.Rev.
are
give
meaning
“loiter” a restricted
the word
in order to
to
sustain the
constitutionality of the
statute. As tenBroek
points out,
repealed,
section 647 was
recast and
when
re-
changed
“The
offense was
enacted
name
from
disorderly
roaming
. . Mere
vagrancy
conduct.
.
about
place
place by persons
without visible
from
means of
longer
support
forbidden;
is no
one must also refuse to
presence
identify himself and
account for his
when re-
surrounding
by peace
so,
officerto do
‘if the
circum-
quested
are such
man
stances
as to indicate to
reasonable
that the
’ ” (P. 673.)
public safety demands such identification.
applies
just
word
What we
said about
“loiter”
have
“wander”
equally
“wander.”
its broad sense
to the word
purpose
objective;
means: “1. to ramble without a definite
or
go
indirectly,
rove,
stray:
aimlessly,
2.
or
roam,
...
English
casually.”
Dictionary
(The
Random House
Language (unabr.
1966).)
ed.
does
written,
As now
*8
upon
wandering
the streets or from
loitering and
make
not
apparent reason or
without
business
place without
place to
the words do not
As there used
offense.
punishable
unlawful
amore
Drew, (City
v.
Wn.2d
activity.
Seattle
connote
-
They
more than describe the
do no
522,
identify himself
peace officerto
by a
may
asked
person who
prescribed
circum
presence
his
account
and to
“loiter” and “wander” are
words
used the
As so
stances.
intelligence must neces
men of common
vague that
not so
application.
meaning
to their
and differ as
guess at their
sarily
(La
451, 453
L.Ed.
Jersey,
New
U.S.
nzetta
Harriss,
U.S.
618]; United States
S.Ct
808].)3
74 S.Ct.
L.Ed.
617 [98
that the statute is uncon
contends
also
Defendant
gives
the loiterer or wanderer no
stitutionally vague
that it
identify
must
“to
himself or to
guidance
what he
do
toas
”
agree.
not
We do
presence.
account for
commonly accepted
may
to
mean-
again, we
look
Here,
College
According
American
Dic-
ing
to the
the words.
being
“identify”
particular
means to “establish as
tionary,
purported
prove
or
person
thing; attest or
to be
or
according
College
“Identification,”
Law Dic-
asserted.”
person
thing
person
that a
or
is the
or
tionary means “Proof
supposed
represented to
thing
it is
or
be.”
or]
[he
N.W.2d
involved a
Evjue,
We that section subdivision do not believe can be U.S. 536 Louisiana, so construed. In 471, Cox L.Ed.2d the court held that the statute under S.Ct. which Diaz, Cal.App.2d 799, 4In was that, held of a case disclosure of the circumstances trial, identity necessary was to a fair mere disclosure of an. informer identifying enough. further information was not his name without that, 5It as seems clear to us used public safety concluding phrase, identification" "such demands obligation imposed request back to the on the of whom refers ' ‘ ’’ identify presence. is made himself and to account for convicted, prohibiting obstruction had been defendant because it passages, was unconstitutional public streets regula in local discretion officials “unfettered vested parades peaceful and meet for use of the streets tion of the “ ’’ is, undisputed course, ings. It said, however: The court discretion, properly drawn limited under appropriate, that statutes or place, duration, concerning time, or ordinances, public assemblies of use of the streets manner vested provided that such limited officials, administrative “uniformity treat of method of ‘exercised with discretion improper upon application, each free from the facts of ment from unfair discrimina inappropriate considerations or just “systematic, consistent and tion” . . . with] [and the convenience treatment, with reference to order of ’ Hampshire, highways. v. New . . .” Cox public use of the p. p. 576, 85 L.Ed. at A.L.R. supra, 312 at U.S. 486.) p. p. (379 558, 13L.Ed.2d at 1396.” U.S. peace (e), permits a 647, subdivision Section upon stop wanders the streets “without who or one loiters require “identify apparent business,” and him to reason *10 only presence” for his “if the sur and to account himself rounding as to indicate to a circumstances are such reason^ffie public safety such identification.” In man that the determining demands constitutionality enactment we arc of this the entirety. in its we required read, read it So are satisfied to constitutionally appropriate, limited in that it vests discretion peace this the officersof state. provision original Admittedly, the in the draft of sec the requiring identify himself and tion the loiterer to account for principal presence was conceived draftsman to be his peace authority long with the officershave consistent Sherry says in possessed in California. As Professor footnote “ page in 48 72 to article Law Review at 571: A California private person’s in in the earliest case which the dictum respond police responsibility inquiry dis to reasonable to suspicious point respect in ‘A to loiterer: cussed proper police right inquiry to make in a has a manner upon public at a hour as to his anyone streets late surroundings if identity presence, of his the occasion public man that the as to indicate to a reasonable are such Gisske v. Sanders safety demands such identification.’ later, Cal.App. 13, P. Tears the California 16 [98 People adopted in Supreme Simon this conclusion Although held was (1955) Cal.2d 531].” (p. 650) involved
in v. Simon that the search there case, in the court not reasonable the circumstances of was course, is, nothing point out that was careful to “There persons questioning an outdoors at in officer’s unreasonable night possible that in circumstances [citations], it is some evidence, would, light of other a refusal answer even to (See Sanders, Cal.App. justify supra, an arrest. Gisske surrounding 17.)” phrase, . . if circum- “. man that such as to indicate to a reasonable stances are identification,” public was included safety such demands in 1961 in order to (e), section subdivision as enacted nearly Gisske dictum from make Sanders, upon section “fit more (22 Assembly Interim Com- which it is based.” p. (1961).) Reports, mittee No. opinion our confers peace appropriate
on the officersof the state an limited discre tion which does no to provision. violence constitutional analogous to the discretion This discretion is vested such stop pedestrians officersto motorists ques or on the streets for tioning probable short under circumstances cause to make an arrest. People Mickelson, Cal.Rptr. 18, was decided 1963. (at that case the said court pp. 450-451): consistently have held that circum- “[W]e probable stances short of justify cause may an make arrest still pedestrians stopping an officer’s or motorists on the questioning. streets If the circumstances it, warrant he may self-protection request suspect a alight from an superficial submit automobile search for concealed investigation
weapons. Should the probable then reveal cause arrest, suspect to make an the officer arrest conduct a reasonable page 452, incidental search.” At said: do not court “We believe that our permitting rule temporary questioning detention for conflicts with the Fourth person’s It strikes balance Amendment. between interest immunity from interference and community’s pressure law It equate interest enforcement. wards off *11 investigate reasonable cause to with reasonable cause to arrest, protecting thus from the innocent the risk of arrest when no investigation justified.” than more reasonable This rule People One Coupe, reiterated in v. 1960 Cadillac was 62 Cal.Rptr. 290, Cal.2d 95-96 396 [41 People Cowman, Cal.App.2d v. 109 Cal.Rptr. [35 constitutionally permissible we held that it is for a purpose of interro- stop an automobile peace officerto precon- officer had no occupants when the even gating the occupants conduct a or to arrest the intent either to ceived (p. 117) said We there vehicle. search of the law, an “that officer of decisions is rationale prevent crime, as well peace and to employed maintain right fact, has both the after the apprehend criminals toas suspi- investigation of all reasonable duty make may though fall short the nature thereof even activities cious justify a search of the an arrest or grounds sufficient suspects. Experienced persons effects of or the develop perceive unusual ability to naturally an officers and difficult task suspicious value which is of enormous law-abiding safety citi- security protecting ’’ zens. People Perez, was reached v. same conclusion Cal.Rptr. said at 514], where the court Cal.App.2d 528 [52 stop pedestrian may a or motorist for page 531: “An questioning under probable short cause for circumstances Cal.Rptr. Mickelson, v. 59 Cal.2d (People arrest. suspicious must, however, be some 658].) There 18, 380 with justify such a limited interference even circumstance to (People v. One of movement. freedom an individual’s Cal.Rptr. 290, 396 P.2d Coupe, 62 Cal.2d Cadillac [41 220 Superior Court, Cal. v. 706]; Rptr. Hood precise which it can be There is formula lawfully stopping whether an officer acted determined ‘. . questioning; test is . pedestrian or a motorist for such as would indicate to circumstances are when the position in a that such course neces man like reasonable discharge (People v. One proper of his duties.’ sary in the People Davis, 222 pp. v. Coupe, supra, 95-96; 1960 Cadillac People Porter, Cal.Rptr. 796]; Cal.App.2d 75, Cal.Rptr. 886].) The reasonableness Cal.App.2d 684, 686 [16 depends upon and circum the facts action of an officer’s Cal.App. Alcala, 204 (People v. particular case. stances of People Cal.Rptr. Ingle, Cal.2d 31]; cf. 2d Schader, 62 Cal.Rptr. 14, 348 P.2d 577] 665].) A 401 P.2d mere crimi be involved more, that a hunch, without (People One 1960 activity is, course, insufficient. nal Coupe, supra.)” Cadillac only constitution with the here are concerned We the reasonable ality the statute. We are concerned *12 ness of the arresting officer's action in the defendant. Wheth er his action was necessarily depends reasonable upon the facts and developed circumstances of the case as at the time of (People Perez, trial. 514]; People Cal.App.2d Bird, Cal. Rptr. 501].)
The conclusion we have reached is in accord with the Com
mentary
Reporters
of the
2.02,
on section
subdivisions (2)
(3),
of A
Pre-Arraignment
Model Code of
Procedure,
Tentative Draft No.
submitted to The American Law Insti
2.02,
tute in 1966.6
(1)
Section
of that tentative
provides
draft
stopping
persons
for the
of
may
who
have
knowledge
be material aid
investigation
of
to the
“
(2)
of some crime. Subdivisions
and (3)
(2) Stopping
read:
Stispicious
in
Persons
A
Circumstances.
law enforcement
of
officer
lawfully present
any place
in
may,
person
if a
is ob
suggest
served
circumstances which
that he has committed
felony
or is about to commit a
or misdemeanor, and such
reasonably necessary
action is
to enable the officer to deter
person’s
mine the lawfulness of that
conduct,
per
order that
place
presence
son to
or near such
remain
the officer's
period
twenty
for a
of not more than
(3)
minutes.
Action to
During
Stop.
Be Taken
may
Period
A law enforcement officer
require
presence pursuant
to remain in his
(1)
(2)
only
subsection
or
of this section
insofar as such
reasonably necessary
(a)
action is
obtain the identification
person; (b) verify by readily
of such
available information
person; (c) request cooperation
an identification of such
pur
subject
(d)
suant to and
to the limitations of
2.01;
Section
verify by readily
available information
account of his
presence
given by
per
or conduct or other information
such
’’
son.
commentary
section 2.02
their
on
of the
draft
tentative
reporters say
part (p. 93)
authority
: “Some
to inter
liberty
explic
less than reasonable
fere with
on
cause has been
itly recognized
even
the absence of statute
the courts in
jurisdictions,
including
number of
one Federal Court
a
Appeals.”
constitutionality
proposal
As to the
of the
Meeting,
After
discussion
2.02
extended
at the Annual
Reporters
tentative
draft was
to the
for
recommitted
reconsideration
approval
principle
"stop
with instructions
included
(34
2641-2644, May
1966.)
frisk.”
U.S. L. Week
reporters’
7The
footnote to
reads:
"5. United States
this statement
(2d
Vita,
1961),
denied,
294 F.2d
529-30
Cir.
cert.
U.S.
(1962)
(‘The
L.Ed.2d
S.Ct.
rule
Federal R. Crim.
837]
[of
compelling
appear to be
94) “There
say (p.
:
reporters
authority
persons
stop
an
objections to
constitutional
investigation.
single
criminal
purpose briefly Supreme Court
issue
squarely raised before
case
power,
Rios v.
constitutionality
an exercise
of such
1688, 80 S.Ct.
L.Ed.2d
364 U.S.
States
United
question.
decide the
Where such
court declined to
1431], the
consistently
by statute, it has
explicitly granted
been
has been
power
absence of statute most
uph
And even
eld.
*13
recognized
issue have
which have confronted the
courts
’’9
power.
validity of such
constitutional
Privilege Against
Claim
Self-Incrimination
of
647,
is
subdivision
that
final contention
Defendant’s
right
an
it violates
of
because
unconstitutional
himself,
against
compelled to be a witness
be
to
individual
pro-
right
privacy, and violates due
invades the
it
because
opinion
these
contentions
law.
areWe
cess
sustained.
cannot
“
against
applies
privilege
to
The
self-incrimination
testimony’
accused,
or
but
‘communications
evidence
(Peo
physical
derived from him.”
or
evidence’
‘real
not to
Ellis,
529,
533
385,
65
421 P.2d
ple v.
Cal.2d
cited.) In Ellis it was
there
held that
393], and authorities
‘‘
fall
identification
within the eate-
results of voice
tests
The
5(a)]
apply to a case in which federal officers detain a
Proc.
does not
question
period
’) ;
suspect
a short and reasonable
order to
him.
for
Bonanno,
(S.D.N.Y.),
E.Supp.
v.
other
States
180
71
rev’d on
United
Bufalino,
(2d
grounds
v.
sub nom. United States
the rule as stated in Ellis and Sudduth, the court held that
(p. 914)
privilege protects
“the
an
only
accused
being
from
compelled
testify against himself,
to
provide
or otherwise
State with evidence of a testimonial or
nature,
communicative
and that the withdrawal
analysis
of blood and use of the
question in
compulsion
this case did not involve
to these
(p.
ends.” The court there noted
916) that “both federal and
usually
state
held
courts have
protection
offers no
against compulsion to submit
fingerprinting,
photograph
ing, measurements,
speak
or
or
to write
for identification, to
appear
court,
stand,
assume
stance, walk,
or to
particular gesture.
amake
The distinction which
emerged,
has
expressed in
ways,
often
different
is that
privilege
is a bar
against compelling ‘communications’
‘testimony,’
but that
compulsion
suspect
makes
or accused the source of
physical
‘real or
evidence’ does not violate it.”
(e), provides
Section
that a
who, in the
stated,
circumstances there
refuses
identify
his presence,
guilty
himself
to account for
disorderly
argues
Defendant
that the
conduct.
essential element of the
*14
requested by
crime here defined is his silence when
peace
the
speak,
right
officerto
and that his
protected
to remain silent is
by
put
Fifth
otherwise,
the
Amendment. To
his contention
speak
obligation
imposed
is
that the
to
on him the section
compulsory
results in
in
self-incrimination,
that
thereby
he is
compelled
provide
“to
the
State
evidence of a testi
(Schmerber
monial or communicative nature”
v. California,
908, 914,
757
L.Ed.2d
86
1826]),
U.S.
may
S.Ct.
which
[16
against him at
disorderly
be used
his trial for
conduct.10 This
argument is not tenable.
As we read the authorities,
647,
section
(e),
requiring
cannot be construed
interrogated by
the
Respondent
Reply
Supplemental
10In
’a
to
Briefs of Amici Curiae
say:
question
647(e)
whether,
counsel
ant
answer
“The
under
is
if
not
the defend
charged
may
crime,
is
with the
another
commission of
his refusal
against him,
incriminating
be used
or an
statement he made
warning
either with or without a Miranda-Hseohedo
is
admissible
647(e)
having
The
evidence.
answered there
under
‘crime’
is his not
answered.
he had
If
would, presumably
charge
be no
under
the section.
against
is
himself. While it
peace
to he witness
the
disorderly
guilty
found
conduct
he
may be
if
that
true
he
conduct;
is mere nonassertive
silent, “the silence here
remains
explanation,
failure to
an
but a
offer
it is not
declaration
(People Wilson,
pet.
one.”
which call for
circumstances
under
Cal.Rptr.
hearing
It
held in
that
Supreme
denied.) was
Wilson
evidence
prosecution
in his later
silence was admissible
of defendant’s
for
burglary.
page
affirming
court,
the
at
the conviction Wilson
People
Simon, 45
rule, as
note of the
stated
Cal.2d
took
nothing
is,
course,
“There
that
questioning persons outdoors at
unreasonable in an officer’s
possible
that in
circumstances
night [citations],
it is
some
would,
light
evidence,
a refusal
answer
of other
even
Then,
quoting
justify an arrest.
after
[Citations.]”
as enacted
the court said: “If
647, subdivision
such
right
interrogate,
results of
inter
is such a
there
they
rogation
reflect conduct
should be available where
on the
guilt
which tends to establish
unless
part of
defendant
prevents
supervening policy
there is a
law which
or statements of
accused.”
court
use of
conduct
supervening policy.
reaching
that
was no such
there
found
part
(p. 459):
conclusion the court said
“Circum
this
imagined
answering
type
ques
stances
be
where
provision against
here involved would violate
self-
tion
has
extended
been
incrimination
nontestimonial
People Dorado,
compulsion.
supra,
p.
(See
361], applying
Escobedo
v. Illi
L.Ed.2d
(1964) 378 U.S.
S.Ct.
nois
and
Rptr.
1758]
Stewart,
Cal.App.2d 27,
supra,
Cal.
Dorado, however, recognizes: ‘Nothing
that we
interpreted
said,
course,
should be
restrict
law
have
during
investigatory stage
from
officers
secur
enforcement
later accused of the
ing information from one who is
crime or
’
questions.
(62
obtaining
p.
answers to their
Cal.2d at
from
appears a
distinction between
facts
354.) So here
second
Dorado,
and De Leon
and those of
Stewart
this case
assuming
warning
Accordingly,
arguendo that
Miranda-Eseotedo
even
given
assuming
not
silence
be
need
that
or a statement
could
against
prosecuted
used
the
that still is
ment is
made,
the defendant were he
for a
crime—
different
one, presumably,
stopping
questioning was
for which the
done—
being
If
for it
not to
no basis
a crime
have answered.
a state-
voluntarily made,
thing.
one
But when a statement
is
quite
another.”
*15
(
It is that when also a is interro by peace gated officerunder the circumstances delineated in peace (e), required section subdivision officer is right him advise rules of his to remain silent in accordance with the Arizona, in Miranda stated U.S. 436 L.Ed.2d 974], suggestion ignores A.L.R.3d This S.Ct. (16 explicit holding L.Ed.2d 725-726) of Miranda that the principles protection announced “deal with there which given privilege against must be to the self-incrimination when subjected police is first interrogation the individual in while deprived custody at the station or otherwise his freedom way. any significant in . . Our of action . is in decision hamper police the traditional function tended investigating officersin Illinois, Escobedo v. crime. See 378 U.S. 977, 986, 84 L.Ed.2d When an individual S.Ct. probable custody cause, may, in of course, on seek against field be used inquiry trial out evidence him. Such persons include investigation not under re questioning on-the-scene as to facts surround straint. General general questioning of ing a crime or other citizens the fact- process holding. our finding is not affected It is an act of citizenship give responsible for individuals to whatever in they may aid in have to law enforcement. In formation such atmosphere compelling process inherent situations ’' necessarily present. in-custody interrogation is not opinion need There is no to extend this with a discussion of myriad cases in which the Escobedo, rules stated in Do discussed, distinguished rado and Miranda have been enough to applied.11 It is note that we have found none person stopped interrogation by peace hold that forth in circumstances set probable no where cause for arrest and there is there “ arrest, custody deprived is in or otherwise freedom of significant (See way.” Graham, action What is “Cus Interrogationf” 59, 78-92; People todial 14 U.C.L.A. L. Rev. cases, Cotter, The decision Cal.Rptr. one of these April 20, Min 405 P.2d was vacated 1967. See utes, p. 3, A.C., No. 7. *16 Cal.Rptr. 438, 448 Arnold, [6] [58 v. 515].) the in our conclusion that silence are correct If we interrogation provided stopped for as iswho of a conduct” which (e), is ‘‘nonassertive 647, subdivision section Amendment, of the Fifth the ambit not fall within does provided interrogation does not there consti the that follows tute (Cf. privacy. of his invasion an unconstitutional Cal.Rptr. 385, 421 P.2d Ellis,
v. 65 Cal.2d authority found no to sustain the conten have short, we upon streets or from loiters or wanders the who tions one has a apparent reason or con place business place to without right surrounding remain silent when the cir to stitutional peace to a as indicate a as such to cumstances are safety public the demands that he iden man that reasonable People Machel, said in v. As the court tify himself. 1‘ Cal.Rptr. Cal.App.2d 37, the California ‘ permitting temporary questioning for a detention strikes rule person’s immunity from a interest balance between community’s in law interest interference enforce pressure equate It reasonable cause in ment. wards off to to vestigate protecting arrest, reasonable cause to thus risk of innocent arrest when more than from reasonable ’ justified. investigation Mickelson, supra, v. (People Cal. p. 452.) operative it is under 2d at While circumstances short (People Michelson, probable an cause to make arrest suspicious supra) must exist some ‘nevertheless there or un this usual circumstance to authorize limited invasion a even privacy.’ (Hood Superior (1963) citizen’s Cal. ; People App.2d 242, 245 Cowman 782] Cal.Rptr. 528].)” Sec than a (e), tion is no more subdivision codification (People Cal.App.2d 447, Wilson, that rule. Cal.Rptr. 55].) opinion In our of the Penal in 1961is as constitutional. Code enacted dismissing complaint is The order reversed. FLEMING, J.I concur. Angeles County has as its The Bar Association motto Los “Every saying man a Theodore Roosevelt owes profession to upbuilding some of time to the of the his duty belongs.” comparable on the citizen I think rests
he large said, “Every it can citizen owes at some of whom tranquility society to his time to which he ’’ belongs. duty public legal of the citizen assist to author preserving peace firmly ity in been has established for years obligations
hundreds of and is manifest such join posse duty comitatus, assist to and cry, the hue to expose treason, known and to disclose the commission of felon proper authority.1 (Gov. Code, 26600, 26602, 26604; ies to §§ 839; U.S.C.; Code, 38, 150, 4, 2382.) Pen. §§ §§ scope duty require I think it well within this presence identify public account citizen to morning authority when he is abroad 2:30 under safety public circumstances where the demands such identifica- doing positive the citizen makes a contribution tion. so neighborhood by releasing peace tranquility of performance of his duties officerfor the elsewhere. duty identify substantially I find simi- account This *17 highway identify duty on to him- lar the of a motorist the to right highway, to be to demon- his on the self and establish right report safely, that and to his condition to exercise strate personal involving property damage, injury, or accidents 2804, 12951, 20002, 20003, (Yeh. Code, death. §§ identify comparable duty and ac- to the to (a).) It is subd. building superin- the fulfill at the demand of count which we night, which we enter our offices late when we
tendent immigration inspectors and satisfy demand customs at the carry overseas, which we out at the we return from when when we file Internal Revenue our Director of demand of the written, inquisitions, and some- oral tax returns. These income part price vexing, are of the we inconvenient, sometimes times general promote tranquility and the pay insure domestic to welfare. tinction of to thing deed and of their own fact who knows St.Tr. bodied authority him to (8 and it was cry,’ that officer to "Sir Francis " 1 Director impart Wigmore Ever since that that or to the justice. men over hand, so that it; is to imports their degrees, that a on Evidence much levy Public In the thirteenth say, but of the Bacon, duty constable of the steps or of another’s felony hue and owe more, days he had to age Prosecutions, to king’s : 'You must their can to the join has of hue (3d ed.) if cry, be taken they 15 to knowledge been service, king report Countess of that century and be called town: they ought § committed, pursue [1962] tribute and know that all is, 2190, pp. 66-67.) pursuit.” cry, they to the sheriff to to it was his and apprehend whereupon shout aloud ought the offender and arrest A.C. and Trial, has Shrewsbury’s discovery. to make direct answer.’ to (Lord Denning, J., service, 528, 555.) been examined, themselves undemanded report duty subjects, of the the felon and it was the calling ‘ not If it to the to duty there be whether raise hue and county only without dis- the on of a all able- duty of their 2 How. proper Sykes bring it be him: man, any- ” neighbors no duties to one’s and theory one owes that The obligation render to even small assistance to no is under accounting identifying and oneself and
public order releasing peace work, officerfor other derives from a thus another in- exaggerated era, and individualism of an extreme of a Vanderbilt, reflected the statement “The dividualism public damned,’’ similarly reflected strictures government.2 theory against all The Proudhon is essen- of a implies law, to all and it that tially anarchistic hostile public authority relationship comparable citizen to to conquered province army to an of the inhabitants of obligations recognize legal occupation, owed their who relationship with temporary masters and whose them is based entirely society pure on based on law force. But must theory of individualism defer to a reasonable accom- privilege private public modation between interest. When reasonably public safety demands identification at 2:30 in right morning, has no the citizen constitutional to remain anonymous. respect provision Fifth With Amendment compelled person any
which states that no shall be criminal against case to definition a crim himself, be witness its general has include inal case never been extended to investi (People Perez, gation. Rptr. 65 Cal.2d 716-717 Cal. position gen of a under investigation comparable of a witness before to that eral If judicial, legislative, or administrative officer. the witness put questions him will tend feels that to incrim answers against privilege him he claim the self-incrimina inate claimed, privilege he is If the has been well entitled to tian. Burr, 14,692(e), 25 F.Cas.No. (United remain silent. States privilege validly has But until the been (Marshall, C.J.).) duty identify and account continues claimed, his civic (Sullivan 263-264 *18 States, 274 U.S. force. v. United 1040, 607, A.L.R. 1037, 1039, S.Ct. L.Ed. 1020] 2“ regulated, spied on, watched, inspected, governed to be To be censored, by ruled, persons controlled, indoctrinated, preached at, who every to be action and transaction virtue. It neither wisdom nor have registered, assessed, repri licensed, measured, taxed, patented, stamped, good public manded, pretext corrected, it is to Under frustrated. then, embezzled, exploited, monopolized, the least robbed be protest harassed, vilified, up, fined, complaint, beaten to be or word of shot, garroted, disarmed, judged, condemned, imprisoned, bludgeoned, deceived, outraged, sold, betrayed, swindled, That’s deported, dishonored. ’’ (Pierre morality! Proudhon, justice, government, that’s its that’s its 65.) Tower, p. Tuckman, quoted in The Proud (Holmes, J.); Party Communist v. Control Board, 367 1, U.S.
105-110
L.Ed.2d 625, 694, 697,
(Frank
S.Ct. 1357]
furter, J.).)
I
that
conclude
Penal Code,
section
(e),
subdivision
on
draws
duty
civic
unduly infringing
without
individual
right, and is therefore constitutional.
HERNDON, Acting P. J.I
dissent.
Despite my very strong
support
desire to
and sanction
and all
provisions
constitutional
designed
reasonably
law
strengthen and increase the
effectiveness
our law enforce-
performance
ment officersin the
exceedingly
their
difficult
detecting
preventing
work of
age
crime in this
of increas-
ing lawlessness,
obliged
I feel
major
to dissent and this for two
reasons.
persuaded
I am
judges
First
that the
of the trial court and
appellate department
of the
holdings
were
correct
their
question
that
law here
is unconstitutional. In the cir-
cumstances of this
I deem unnecessary
repeat
ease
it
or set
reasoning
forth herein the
appellate
the decision of the
department.
say
light
Suffice it here to
that in the
of estab-
principles of
lished
constitutional law, I
believe
this stat-
incompatible
held
ute will be
with the
of the
dictates
Fourth
and Fifth
to the
Amendments
federal Constitution.
apprehend
Secondly, I
that even if this law were not vul-
grounds,
nerable to attack on
operation
constitutional
its
complex
the context of the entire
of constitutional principles
Supreme
been enunciated
have
Court would
States
recent times
entail results
United
more harm-
ful than beneficial to the aims of effectivelaw enforcement.
example,
appear
For
would
given
that statements
by an
apparent
response
“loiterer”
even
investiga-
to “normal
questioning”1 might
tory
be deemed to
given
have been
penal compulsion
under
and therefore
inadmissible
a sub-
sequent prosecution of the “loiterer” for the murder or the
seeking
robbery
they pro-
which the officerswere
to solve when
pounded
proper investigatory questions.2
their
agree
I
my colleagues
am unable to
view
“is
no more than a codification of
sanctioning
propriety
rule”
action in
[the]
Perez,
1Cf.
240].
Garrity
Jersey,
2Cf.
v. New
Respondent’s petition for 26, 1967. July denied was Dist., June 5, 1967.] Div. Three. No. 31709. Second
[Civ. JR., WETTELAND, Petitioner, v. WOODROW WINSTON OF LOS COURT ANGELES THE SUPERIOR Respondent. COUNTY,