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Court of Appeal, Sixth District, California.

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.

Nos. H000940, H001026.

Decided: May 16, 1986

Leo Himmelscbach, Dist. Atty., Joseph V. Thibodeaux, Deputy Dist. Atty., San Jose, for the People. Bruce W. Nickerson, Geoffrey A. Braun, Linda Campbell, San Jose, for real parties in interest. Fred B. Rosenberg, Law Offices of Fred B. Rosenberg, San Francisco, for petitioner in No. H001026.

In these matters we conclude that on its face subdivision (d) of Penal Code section 647 is constitutionally valid and enforceable.   We acknowledge, but respectfully disagree with, another Court of Appeal's conclusion to the contrary in People v. Soto (1985) 171 Cal.App.3d 1158, 1168, 217 Cal.Rptr. 795.

Penal Code section 647, subdivision (d), provides that “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:  [¶]․  [¶] (d) Who loiters in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.”   Violation of the subdivision is a registrable sex offense.  (Pen.Code, § 290, subd. (a).)

Ralph Alexander Caswell, Kenneth Eugene Grassi, and several other individuals were accused, in municipal court, of violations of subdivision (d).   Each of them demurred to the charge on various constitutional grounds;  The municipal court overruled each demurrer.   The defendants then sought review in the superior court by petitions for extraordinary writs.   In Grassi's case the petition was denied;  a petition filed by Caswell and the remaining defendants was ultimately granted.   In this court the People seek further pretrial writ review in all cases except Grassi's;  Grassi has filed his own petition in a separate proceeding.   We issued alternative writs and requested and received additional briefing in both matters;  we ordered the matters on calendar to be argued and decided together.

The defendants attack the validity of subdivision (d) on its face;  none of the facts of any of the cases is before us.   In this court the defendants contend primarily that subdivision (d) is not definite enough to meet federal or state constitutional standards, in that it provides neither “a standard of conduct for those whose activities are proscribed” nor “a standard for police enforcement and for ascertainment of guilt.”  (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, 198 Cal.Rptr. 145, 673 P.2d 732.)   They also advance several contentions which they apparently intend to be distinct from their theory that the subdivision is not sufficiently definite, suggesting that the subdivision does not identify a cognizable criminal act, does not sufficiently establish an element of criminal intent, defines nothing more than a “status crime,” and represents an impermissible attempt to regulate what the defendants characterize as mere “suspicious activity.”

Because to do so will furnish a useful perspective for our consideration of the definiteness issues, we turn first to the group of contentions last described.

 It is well established that, subject only to constitutional limitations, the Legislature may define crimes and set punishments as it sees fit, and that its power to do so is not restricted by definitions contained in the statutes of other states or in the common law.  (People v. Knowles (1950) 35 Cal.2d 175, 181, 217 P.2d 1;  Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765, 150 Cal.Rptr. 785, 587 P.2d 227;  People v. Wingo (1975) 14 Cal.3d 169, 174, 121 Cal.Rptr. 97, 534 P.2d 1001;  People v. Guthrie (1983) 144 Cal.App.3d 832, 844, 193 Cal.Rptr. 54;  cf. also Rochin v. California (1952) 342 U.S. 165, 168, 72 S.Ct. 205, 207, 96 L.Ed. 183 (“Broadly speaking, crimes in the United States are what the laws of the individual States make them, subject to [constitutional] limitations ․”).)

Most of the acknowledged constitutional limitations on this legislative power address not so much the power itself as the manner in which the Legislature may exercise it, stating, in essence, constitutional standards for legislative draftsmanship.   One example is the requirement, which we shall discuss in detail, that a criminal statute be reasonably definite.   Another is the so-called “overbreadth” doctrine:  “[N]o statute may be drawn in such a way as to inhibit the exercise of individual freedoms affirmatively protected by the Constitution.”  (Findley v. Justice Court (1976) 62 Cal.App.3d 566, 571, 133 Cal.Rptr. 241.)

Constitutional limitation upon the legislative power itself is perhaps most commonly articulated in terms of the proscription upon cruel or unusual punishment.  (U.S. Const., 8th and 14th Amends. (“cruel and unusual”);  Cal. Const., art. I, § 17 (“cruel or unusual”);  In re Lynch (1972) 8 Cal.3d 410, 414 et seq., 105 Cal.Rptr. 217, 503 P.2d 921.)  “Implicit in the characterization of the constitutional prohibition as flexible and progressive is the notion that punishment may not be grossly disproportionate to the offense.”  (In re Reed (1983) 33 Cal.3d 914, 923, 191 Cal.Rptr. 658, 663 P.2d 216.)   Courts from time to time conclude, logically, that it would in any event be cruel or unusual to punish conduct which, measured by some external standard of morality, should not be deemed an offense at all.   A well-known example is Robinson v. California (1962) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, in which the U.S. Supreme Court invalidated a California statute that, in part, declared it to be a crime to “be addicted to the use of narcotics.”   The court acknowledged “[t]he broad power of a State to regulate the narcotic drug traffic within its borders” (Id. at pp. 664–665, 82 S.Ct. at p. 1419) and enumerated various legislative measures a state might properly take to exercise that power, but concluded that “narcotic addiction is an illness․  We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.”  (Robinson v. California, supra, at p. 667, 82 S.Ct. at 1420;  cf. People v. Olsen (1984) 36 Cal.3d 638, 650, 205 Cal.Rptr. 492, 685 P.2d 52 (dis. opn. of Grodin, J.).)   More rarely one can find broader statements to the effect, without reference to cruel or unusual punishment, that the Legislature's power to define crimes does not in any event extend to conduct which embodies no element of abstractly-defined wrong or fault.  (E.g., Findley v. Justice Court, supra, 62 Cal.App.3d 566, 571–572, 133 Cal.Rptr. 241 (“the state cannot proscribe entirely innocent activity, except insofar as may be incidentally necessary for the accomplishment of some paramount object concerning the public welfare”).)

 The defendants' general contentions may be summarized as an argument that to impose any criminal sanction upon the conduct described in subdivision (d) of Penal Code section 647 is impermissible.   The argument is unpersuasive.   In no sense can the conduct which subdivision (d) proscribes—loitering in or about a public toilet for the purpose of engaging in or soliciting any lewd, lascivious, or other unlawful act—be fairly characterized as “entirely innocent activity.”   Nor may it rationally be analogized to the illness which Robinson held not subject to criminal sanction.   We find in subdivision (d) requirements that the defendant have knowingly placed himself in the situation and that he or she possess a specified animus, elements which clearly distinguish such a defendant from the passive occupier of a “status” to which the statute invalidated in Robinson was addressed.   That the defined activity has not yet ripened into overt conduct against specific victims does not distinguish it from (for example) conspiracy (Pen.Code, § 182) or solicitation (Pen Code, § 653f).   The defendants do not argue that there is no valid social purpose to be served by regulating ill-motivated conduct near public toilets:  The need is apparent to anyone who, in our increasingly permissive times, has made legitimate use of such a facility.   We conclude that the conduct described in subdivision (d) may validly be defined as a crime.

The defendants' stronger argument is that, as written, the definition is not sufficiently definite:  That by constitutional standards it is fatally vague.   “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.  [Citations.]  Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the requirement that a legislature establish minimal guidelines to govern law enforcement.’  [Citation.]  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.’  [Citation.]”  (Kolender v. Lawson (1983) 461 U.S. 352, 257–358, 103 S.Ct. 1855, 1858–1859, 75 L.Ed.2d 903.)

“It goes without saying that ‘All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity.   Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.’   [Citation.]  Further ‘ “Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.” ’  [Citation.]  Also, ‘It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem.   It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited.’  [Citation.]”  (In re Davis (1966) 242 Cal.App.2d 645, 651, 51 Cal.Rptr. 702.)

 On the issue of actual notice to the citizen the defendants argue that subdivision (d) provides no clear standard of conduct:  That “ ‘loitering’ ․ simply means doing nothing” and gives no indication how long one may do nothing before being guilty of loitering;  that “in or about” provides no meaningful measure of the area around a public toilet to which the subdivision applies;  and that the requirement that the defendant harbor a specified wrongful purpose does not save the subdivision.

“ ‘Fair notice’ requires only that a violation be described with a ‘ “reasonable degree of certainty” ’ [citation] so that ‘ordinary people can understand what conduct is prohibited.’  [Citation.]  The notice provided must be such that prosecution does not ‘trap the innocent’ without ‘fair warning.’   [Citation.]”  (Burg v. Municipal Court, supra, 35 Cal.3d at pp. 270–271, 198 Cal.Rptr. 145, 673 P.2d 732.)   In applying this standard we are entitled to depend upon prior judicial construction, which “becomes part of the statute ‘as if it had been so amended by the legislature ․’ ”  (In re Davis, supra, 242 Cal.App.2d at p. 653, 51 Cal.Rptr. 702) and even, if necessary, to apply our own construction to terms not heretofore authoritatively construed (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253–254, 158 Cal.Rptr. 330, 599 P.2d 636.)

In light of these principles we conclude that neither the term “loiters” nor the term “in or about” is so vague as to deny the citizen notice as to the nature of the proscribed conduct.   Twenty-five years ago our Supreme Court concluded that “the word ‘loiter’ ․ in our view has a sinister or wrongful as well as a reasonable definite 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.”  (In re Cregler (1961) 56 Cal.2d 308, 311–312, 14 Cal.Rptr. 289, 363 P.2d 305;  cf. In re Hoffman (1967) 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.)   And we perceive no possibility of confusion as to the meaning of “in or about”:  No reasonable person could fail to understand that the area to be regulated is that within or immediately adjacent to, and thus directly associated with, a public toilet.

Many of the cases on which the defendants rely questioned the validity of statutes which prohibited “loitering,” or “loitering without any lawful business,” whether or not in specified locations but without further reference to the animus of the actor.   Subdivision (d), in contrast, is directed at one who “loiters in or about” a public toilet but only if that person has “the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.”   We agree with People v. Soto (1985) 171 Cal.App.3d 1158, 217 Cal.Rptr. 795, that “lewd or lascivious” refers to sexually motivated conduct and that in light of the Supreme Court's reasoning in Pryor v. Municipal Court, supra, “the term ‘unlawful act’ ․ also must necessarily be construed as referring to sexually motivated conduct that can be described as ‘lewd or lascivious.’ ”  (People v. Soto, supra, at p. 1165, 217 Cal.Rptr. 795.)   Contrary to the defendants' position, this requirement of a specific intent reinforces our conclusion that subdivision (d) gives adequate notice to citizens who might be accused of violating it.  (Cf., e.g., Erlich v. Municipal Court (1961) 55 Cal.2d 553, 559, 11 Cal.Rptr. 758, 360 P.2d 334;  Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362;  Colautti v. Franklin (1979) 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596;  Boyce Motor Lines v. United States (1952) 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367.)   The subdivision contains no hidden trap for one who innocently pauses near a public toilet.

 The notice issue was not directly raised in the Court of Appeal in People v. Soto, supra, 171 Cal.App.3d at p. 1163, 217 Cal.Rptr. 795.   Soto's holding is based on the court's conclusion that subdivision (d) “encourages arbitrary and discriminatory enforcement and therefore does not comport with principles of due process.”  (Id. at p. 1165, 217 Cal.Rptr. 795.)   All of the defendants endorse the Soto reasoning and urge us to adopt it.

We have given the Soto opinion the careful consideration to which it is entitled, but we are not required to follow it and on the basis of our own analysis we respectfully decline to do so.  (See 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 772–773, pp. 740–743.)   Specifically, we disagree with Soto's conclusion that the absence of “objective criteria to guide an officer's decision making process with regard to the criminality of an actor's conduct” is fatal to subdivision (d).  (People v. Soto, supra, at p. 1166, 217 Cal.Rptr. 795.)

Soto states the position that under subdivision (d) “discretion to determine the actor's intent or ‘purpose’ rests solely within the subjective thought processes of police officers who are free at whim to decide in each case whether the requisite intent to engage in or to solicit ‘any lewd or lascivious or any unlawful act’ accompanies the act of loitering in or about a public restroom and ultimately whether a person is to be arrested or allowed to walk away.  [The] subdivision ․ further permits judges and juries who might widely differ to find criminal intent without the guidance of objective predictors.   This unfettered discretion clearly offends California and United States constitutional concepts of due process of law for it permits the criminality of conduct to be measured ‘by community or even individual notions of what is distasteful behavior.’  [Citation.]”  (Id. at p. 1166, 217 Cal.Rptr. 795.)

What Soto does not explain is how the factors it describes would distinguish enforcement of subdivision (d) from attempts to enforce any of several other provisions keyed to the specific intent of the actor.   Examples which come to mind include conspiracy (Pen. Code, § 182), various criminal attempts (id. §§ 663–664), and issuance of bad checks with intent to defraud (id. § 476a).   In each instance the elements of the offense include conduct which might in another context be noncriminal, together with a specific intent.   To arrest an individual without a warrant for commission of any of these crimes in his or her presence a police officer must believe, and must have a rational objective basis for believing, that all elements of the crime, including the requisite specific intent, are present.  (Pen.Code, § 836, subds. 1, 3;  People v. Miller (1972) 7 Cal.3d 219, 225, 101 Cal.Rptr. 860, 496 P.2d 1228.)   To convict the individual the court must receive evidence sufficient to persuade it beyond a reasonable doubt of all elements of the crime.   In each instance the inferences by which, as a practical matter, specific intent must be found require support in evidence.   Any perceived differences in these respects between the examples we have cited and the crime defined by subdivision (d) of section 647 are, we submit, merely nondispositive differences of degree.   The risk of “harsh and discriminatory enforcement” inheres in all law enforcement activity, and particularly so when subjective factors such as specific intent are involved.

Soto relied, as the defendants here rely, on Kolender v. Lawson, supra, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903, in which the U.S. Supreme Court concluded that subdivision (e) of section 647, as construed to require that a person on the street, accosted by a police officer, must provide “credible and reliable” identification, impermissibly vested “virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute․”  (Id. at p. 358, 103 S.Ct. at 1859.)   In our view the situation with which Kolender dealt was distinguishable from that before us:  In Kolender it was the sufficiency of the definition of the crime which was in issue.   Here, as we have explained, the definition is sufficient:  The concern which the defendants expressed, and which apparently moved the Soto court, is that “policemen, prosecutors, and juries” will arbitrarily disregard the definitions and also the rules of probable cause and proof.   If this is, indeed, a constitutionally significant flaw, then it is a flaw which would invalidate not only subdivision (d) but many other criminal statutes as well.   We consider such a conclusion unreasonable and unrealistic.   The defendants' concerns can be adequately dealt with in the course of prosecution of individual cases on their individual facts;  these concerns are not an adequate predicate for a finding that the statute is invalid on its face.   By the same token we deem it unnecessary to discuss, hypothetically, the kinds of evidence which might give rise to the necessary inferences:  The sufficiency of the empirical showing must necessarily be tested, on the basis of well-established legal principles, case by case.

In proceeding H000940, People v. Superior Court (Caswell et al.), let a peremptory writ of mandate issue directing respondent Santa Clara County Superior Court to vacate its order of June 3, 1985, granting the petition for writ of prohibition or mandate in action 570797, Sallas et al. v. Superior Court, and to make a new order denying the petition.

In proceeding H001026, Grassi v. Superior Court (People), the alternative writ of mandate is discharged and the petition for writ of mandate or prohibition is denied.

In each matter the stays of municipal court proceedings heretofore issued by this court shall be dissolved upon issuance of the peremptory writ in proceeding H000940.

AGLIANO, Presiding Justice.

BRAUER, and CHANG *, JJ., concur.

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