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Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT, COUNTY OF ALAMEDA, Respondent; Cynthia HARTWAY et al., Real Parties in Interest.

Civ. 37851.

Decided: March 26, 1976

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Martin S. Kaye, Deputy Attys. Gen., San Francisco, for petitioner. James C. Hooley, Public Defender, County of Alameda, Michale G. Millman, Asst. Public Defender, Oakland, for real parties in interest.

In this extraordinary writ proceeding, the People seek to prevent respondent superior court from enforcing its order directing that a peremptory writ of prohibition issue restraining the municipal court from proceeding with the prosecution of real parties in interest, women charged in the Municipal Court, Oakland-Piedmont Judicial District, with violations of section 647, subdivision (b), of the Penal Code.1 Section 647 provides in part as follows: ‘Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: . . .

‘(b) Who solicits or who engages in any act of prostitution. As used in this subdivision, ‘prostitution’ includes any lewd act between persons for money or other consideration.'2 (Emphasis added.)

Respondent superior court, basing its decision upon evidence concerning the manner in which section 647, subdivision (b), was enforced by the Oakland Police Department and upon statistics showing a great numerical imbalance arrests of women as opposed to men, found that the Oakland Police Department had systematically enforced section 647, subdivision (b), in a manner which had discriminated against women, and that this enforcement pattern had denied to real parties the equal protection of the laws. In addition, respondent court found the word ‘solicit’ to be unconstitutionally vague, but held that portion of the statute severable from the balance of section 647, subdivision (b), leaving the valid portion as follows: “Every person who commits any of the following acts shall be [sic] guilty of disorderly conduct, a misdemeanor . . . (b) Who engages in any act of prostitution. As used in this subdivision, ‘prostitution’ includes any lewd act between persons for money or other consideration.” (Emphasis added.) By granting an alternative writ, we agreed with the People that their remedy by appeal is inadequate since respondent court has effectively prohibited enforcement of a state penal law, and the public interest requires a prompt determination of the issue.

We begin with an examination of real parties' claim that discrimination in the enforcement of the laws has denied them equal protection of the laws. The Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a), of the California Constitution prohibit all state action which denies to any person the ‘equal protection of the laws.’

In Murguia v. Municipal Court (1975) 15 Cal.3d 286, 294, 124 Cal.Rptr. 204, 540 P.2d 44, the Supreme Court pointed out that although the great bulk of litigation under these constitutional provisions has 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 Fourteenth Amendment, courts have recognized that the equal protection clause safeguards individuals from invidiously discriminatory acts of all branches of government, including the executive. The court noted that as early as 1886, in Yik Wo v. Hopkins (1886) 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, the United States Supreme Court had applied the principles of the equal protection clause to the discriminatory enforcement of a San Francisco ordinance by administrative or executive officials. The court rejected the People's contention that the rationale of Yik Wo did not extend to the enforcement of penal statutes and held that a criminal defendant may object, in the course of a criminal proceeding, to the maintenance of the prosecution on the ground of deliberate invidious discrimination in the enforcement of the law (Murguia v. Municipal Court, supra, 15 Cal.3d p. 300, 124 Cal.Rptr. 204, 540 P.2d 44).

A court has authority to entertain such a claim on a pretrial motion to dismiss (Murguia v. Municipal Court, supra, p. 293, fn. 4, 124 Cal.Rptr. 204, 540 P.2d 44). Real parties made such a motion in the municipal court, during which they produced evidence in support of their claim, including testimony concerning the manner in which section 647, subdivision (b), was being enforced by the Oakland Police Department and statistics showing a great numerical imbalance in the number of arrests of women as opposed to men. Respondent superior court cited the following statistics in its opinion:

‘(1) In 1973 and 1974, the total arrests under Section 647(b) were:

‘(a) 1,448 women.

‘(b) 59 men.

‘(2) 1,217 of the total arrests were made through a police decoy:

‘(a) 1,160 women arrested through male decoys.

‘(b) 57 men arrested through female decoys.

‘(3) 327 of the total arrests were made in non-decoy cases:

‘(a) 325 women

‘(b) 2 men.

‘Similar statistical imbalances exist for quarantine and noncustody citation cases.’

It appears from the testimony that Lieutenant Strelo, commander of a vice squad consisting of 18 officers, all of whom are male, made a determination as to the method by which section 647, subdivision (b), was to be enforced by his department. Lieutenant Strelo determined to place primary vice squad emphasis upon the ‘profiteer.’ An individual prostitute came within the definition of a profiteer. Other profiteers were pimps, panderers, and motel and bar owners, most of whom are male. About 30 percent of the department's effort is directed to the street prostitute. The statistics show that almost all of the arrests for violations of section 647, subdivision (b) were for solicitation. Most of the arrests were made by decoys, and the court found that women were arrested 20 times more than men because of a policy decision of the department to use male decoys 20 times more than female decoys. The evidence shows that this policy was pursued despite the fact that the deployment of a female decoy had resulted in a significant number of arrests of males for soliciting. Lieutenant Strelo testified that the arrests of customers and subsequent newspaper publicity in which the customers arrested were identified by name had a ‘devastating’ effect in reducing street prostitution. Lieutenant Strelo admitted that the use of female decoys to arrest male customers was a highly effective method of controlling prostitution and that in 1975 his department began to use more female decoys.

The disparity in the number of arrests is even more glaring in ‘trick cases,’ cases involving an alleged female prostitute and a male customer who was not a decoy employed by the police department. In this category, the statistics show that in only two of 325 cases was the male customer arrested. The evidence showed that this was true even when the male customer admitted to having in an act of prostitution with the female prostitute.

We note that the criminal statute involved here, like the ordinance in Yik Wo v. Hopkins, is ‘fair on its face and impartial in appearance.’ Section 647, subdivision (b), by its terms applies to ‘Every person . . . [w]ho solicits or who engages in any act of prostitution . . .’ (emphasis added). In Leffel v. Municipal Court (1976) 54 Cal.App.3d 569, 126 Cal.Rptr. 773, a customer arrested and charged with violation of section 647, subdivision (b), contended that the statute applied only to soliciting by a prostitute and not by a customer, and that a customer was never intended to be included within its scope. The court properly concluded that the words of the statute were clear and unambiguous, and that ‘the ordinary meaning of the statute is that all persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct’ (Leffel v. Municipal Court, supra at p. 575, 126 Cal.Rptr. p. 777, emphasis added; see also Kirby v. Alcoholic Bev. etc. Appeals Bd. (1972) 25 Cal.App.3d 331, 338, 101 Cal.Rptr. 815).

Yik Wo and Murguia teach that a denial of equal protection may result if a statute fair on its face and impartial in appearance is applied and administered by public authority ‘with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights . . .’ (Yik Wo v. Hopkins, supra 118 U.S. at pp. 373–374, 6 S.Ct. at p. 1073; Murguia v. Municipal Court, supra, 15 Cal.3d at p. 295, 124 Cal.Rptr. 204, 540 P.2d 44). If real parties have established that the prosecuting authorities charged with the administration of the statute, and thus representing the state itself, have followed an enforcement policy “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,” a denial of equal protection will have been demonstrated (Murguia v. Municipal Court, supra at p. 300, 124 Cal.Rptr. at p. 213, 540 P.2d at p. 53).

Although the Supreme Court in Murguia did not have occasion to consider the entire range of classifications that may be ‘arbitrary’ in this context, we have no doubt that enforcement policies which discriminate on the basis of sex are included, since sex, like race and national origin, has been held to be a ‘suspect’ classification in California (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 20, 75 Cal.Rptr. 329, 485 P.2d 529).

A substantial statistical imbalance may create an inference that an improper criterion has in fact been used (Yik Wo v. Hopkins, supra). The substantial statistical imbalance in arrests, quarantine and noncustody cases shown by real parties, as well as the testimony with respect to the manner in which the law was being enforced, was sufficient to support a claim of invidious discrimination which is prima facie invalid under the equal protection clause (Murguia v. Municipal Court, supra, 15 Cal.3d at p. 301, 124 Cal.Rptr. 204, 540 P.2d 44). The People must then demonstrate that they have a compelling interest that necessitates the discriminatory enforcement of the statute (id., p. 304, 124 Cal.Rptr. 204, 540 P.2d 44).

The People argue that prosecutorial authorities have broad discretion in enforcing the law, and that enforcement procedures and methods of police and prosecutors which differ as to different people because of simple laxity of enforcement or nonarbitrary selection does not amount to a denial of the equal protection of the laws (see Murguia v. Municipal Court, supra at p. 296, 124 Cal.Rptr. 204, 540 P.2d 44).

The People argue further that the great numerical differences in the totals of men and women arrested for section 647, subdivision (b), did not result from law enforcement practices which intentionally discriminated against women, but resulted from a distinction based on prostitute and customer. This distinction, they contend, Constitutes a rational basis for law enforcement emphasis on prostitutes rather than on customers, since police must expend their finite resources on the most criminal element, i. e., those who profit from their crimes, and those whose activities are the most disruptive to the community at large.

Real parties argue that the prosection's emphasis on the commercial aspect of prostitution has the practical effect of leaving men free to solicit and engage in prostitution without fear of sanction, and that although it has long been the custom to arrest the women and let the men go, changing social perspectives dictate that enforcement policies which result in such unequal treatment can no longer be permitted to continue. We agree.

It is clear that law enforcement authorities may not enforce a facially fair penal statute as if it was explicitly directed only at a particular classification. Just as it would have been constitutionally impermissible for San Francisco to enact an ordinance specifically barring only Chinese from obtaining laundry permits, or constitutionally improper for the state to pass a statute declaring gambling to be a criminal offense only if committed by blacks, Yik Wo teaches that law enforcement authorities may not enforce a facially fair prostitution statute as if it was explicitly directed only at women (see Murguia v. Municipal Court, supra at p. 296, 124 Cal.Rptr. 204, 540 P.2d 44).

The superior court took the view that the Legislature, in enacting section 647, subdivision (b), in 1961, contemplated that violators be prosecuted on a neutral gender basis, thereby rejecting the outdated notion, set forth in In re Carey (1922) 57 Cal.App. 297, 207 P. 271, that the woman alone is to be punished. We agree that section 647, subdivision (b), is ‘clearly designed to punish specific acts without reference to the status or sex of the perpetrator.’ (Leffel v. Municipal Court, supra, 54 Cal.App.3d at p. 575, 126 Cal.Rptr. at p. 776; emphasis added.) In construing the statute to apply to the customer as well as to the prostitute, the court in Leffel, after first describing the contrary view expressed in In re Carey, supra, as ‘anachronistic by today's standards' (p. 574, 126 Cal.Rptr. 773), noted that ‘The legislative purpose in proscribing solicitation for prostitution is to eliminate prostitution and its attendant evils. Subjecting the customer to prosecution will further the legislative purpose—probably mere so than any other legislative remedy.’ (P. 576, 126 Cal.Rptr. p. 777.)

The superior court, upon reviewing the lengthy record made in the municipal court, found that the evidence in the record did not support the municipal court's findings. It is apparent that the municipal court fell into error in accepting the prosecution's argument that an enforcement emphasis on the person profiting from the crime did not create a suspect classification. The superior court, on the other hand, in viewing the same evidence, recognized that in commerce there are buyers as well as sellers, and in looking beyond the label of ‘profiteer,’ perceived that the label could not obscure the result of the enforcement practice, which, in a statute directed to every person, clearly amounted to discrimination against women on the basis of their sex.

Once the suspect classification has been demonstrated, the justification which must be shown by the prosecution for its enforcement practices is not a reasonable relationship between the classification and the permissible objects of the statute, which was found to exist by the municipal court, but a compelling interest that necessitated the discriminatory enforcement; in other words, the People are required to show the necessity of singling out for discriminatory treatment only a portion of those who violate section 647, subdivision (b). (Murguia Municipal Court, supra, 15 Cal.3d p. 304, 124 Cal.Rptr. 204, 540 P.2d 44; see also Sail'er Inn, Inc. v. Kirby, 5 Cal.3d p. 16, 95 Cal.Rptr. 329, 485 P.2d 529.)3 Nothing in the record supports such a contention. The superior court found that the evidence in the record revealed neither a rational basis nor a compelling interest to justify the sex discrimination. We agree that real parties have established that the prosecuting authorities, in administering the statute, have followed an enforcement pattern deliberately based upon an unjustifiable standard, and that a denial of equal protection has been demonstrated.

Directing our attention to the remaining portion of the superior court's order, we cannot agree that the word ‘solicits' as used in section 647, subdivision (b), is unconstitutionally vague. The test for determining vagueness in a criminal statute in light of the due process clause was recently set forth in Rose v. Locke (1975) 423 U.S. 48, 96 S.Ct. 243, 244, 46 L.Ed.2d 185. In that case the court rejected the contention that a statute prohibiting a ‘crime against nature’ was unconstitutionally vague, as follows: ‘It is settled that the fairwarning 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.’ United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); see Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973). 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.’ Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 89 L.Ed. 944 (1945). 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. Cf. Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 57 L.Ed. 1232 (1913); United States v. National Dairy Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963). All the Due Process Clause requires is that the law give sufficient warning that men may conform their conduct so as to avoid that which is forbidden.' (See also Keeler v. Superior Court (1970) 2 Cal.3d 619, 633–634, 87 Cal.Rptr. 481, 470 P.2d 617.)

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.’ [Citation.] It will be upheld if its terms may be made reasonably certain by reference to other definable sources.' [Citation.]' (People v. Victor (1965) 62 Cal.2d 280, 300, 42 Cal.Rptr. 199, 211, 398 P.2d 391, 403; County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673, 114 Cal.Rptr. 345, 522 P.2d 1345; cf. Wright v. Munro (1956) 144 Cal.App.2d 843, 848, 301 P.2d 997.)

‘Solicit’ is defined as ‘to seek for by . . . request’ (The Random House Dictionary of the English Language (unabridged, 1966); ‘to approach with a request or plea’ (Webster's Third New International Dictionary (unabridged ed. 1965). Each of these dictionaries contains a reference to prostitution as a commonly understood context in which the word is used. In addition, the word solicit has been defined by judicial decisions of this state (Leffel v. Municipal Court, supra, 54 Cal.App.3d p. 575, 126 Cal.Rptr. 773; People v. Phillips (1945) 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). We have no doubt that the word solicit has a commonly understood meaning, particularly in the prostitution context, and that the statute is not unconstitutionally vague.

In summary, although we have held section 647, subdivision (b), to be constitutional on its face, the People may not in any event proceed with the prosecution of the real parties because of the unconstitutional manner in which the statute has been applied by the Oakland Police Department. The alternative writ is discharged, and the petition for a peremptory writ of prohibition is denied.


FN1. Unless otherwise indicated, all references will be to the California Penal Code..  FN1. Unless otherwise indicated, all references will be to the California Penal Code.

2.  Approximately 252 individual actions are included in this proceeding. More than 60 women joined in the original action; thereafter it was stipulated that women whose cases were pending in the municipal court as of July 25, 1975, would be permitted to join as petitioners in this proceeding.

3.  In re Elizabeth G. (1975) 53 Cal.App.3d 725, 126 Cal.Rptr. 118 is distinguishable. The evidence in that case was not sufficient to demonstrate a suspect classification; consequently, the People were not required to meet the compelling interest standard.

KANE, Associate Justice.

TAYLOR, P. J., and ROUSE, J., concur.

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