IN RE: DANIEL W. (1995)

OPINION

Daniel W., age 15, was arrested for violating the Bakersfield curfew ordinance, and a search incident to the arrest revealed a loaded weapon in his pocket.   He was adjudicated a minor coming within section 602 of the Welfare and Institutions Code ¹ in that he took a vehicle without the owner's consent (Veh.Code, § 10851, subd. (a)) (two weeks before his curfew arrest), carried a concealed weapon (Pen.Code, § 12025, subd. (b)), and possessed live ammunition without the written permission of his parents (Pen.Code, § 12101, subd. (b)).  The adjudication followed denial of his motion to suppress evidence of possession of the weapon and ammunition as the fruit of an illegal arrest.   Daniel was placed on probation on a number of conditions.

On appeal, Daniel contends the court erred in several regards:  (1) by denying his suppression motion because the curfew ordinance is unconstitutional and the officer had no probable cause to arrest him, (2) by imposing various restitution fines, and (3) by ordering himself and his mother to reimburse the county $150 for his legal services without finding an ability to pay.   We will reject all the contentions and affirm.

FACTS

As pertinent to the issues raised on appeal, on April 2, 1994, Bakersfield police officer Martin Herdia saw five youths standing on the sidewalk in the 2000 block of Chester at 10:55 p.m.   Several of the youths appeared to be minors.   Officer Herdia was aware that a Bakersfield ordinance imposed a curfew for minors between 10 p.m. and 5 a.m.   After observing the youths for five to ten seconds, Herdia approached and asked Daniel his age.   When Daniel replied “15,” Herdia told him he was under arrest for a curfew violation.   Daniel denied having a weapon, but Herdia found a loaded .38-caliber handgun in his right front pants pocket.

Officer Herdia testified young people like to “hang out” and “cruise” on Chester.   In addition, Daniel did not appear to be coming from any amusement or theater, nor did he appear to be in the company of his parents.   Three of the other youths detained with Daniel were 15;  one was 19 years of age but did not look like Daniel's parent.   Officer Herdia was not aware of any bus stops in the area, and the closest theater was four or five blocks away.

In denying Daniel's suppression motion, the court concluded the officer could assume, based on his experience and the totality of the circumstances, that illegal conduct was taking place.

DISCUSSION

1. The Curfew Ordinance is Constitutional

The Bakersfield curfew ordinance provides:

“It is unlawful for any person under the age of eighteen years to loiter upon the streets of the city, in places of amusement or entertainment, or in other public places within the city, between the hours of ten p.m. and five a.m., of any day unless such person is accompanied by a parent, guardian or other adult person having control or charge of such person under the age of eighteen years;  or unless such person under the age of eighteen years has gone to a place of entertainment or amusement other than one at which liquor is sold or served, prior to eight p.m., where a regular program of entertainment has commenced or been arranged for the occasion to commence prior to eight p.m., and had held over or been continued beyond ten p.m., or such person has left such a place, a place of employment or social call after ten p.m., and such person is thereafter returning directly to his/her home or place of residence in a reasonable manner.”  (Bakersfield Mun.Code, § 9.44.010;  Ord. No. 3188, § 1.)

Daniel contends the ordinance violates article I, section 1, of the California Constitution and the 14th Amendment of the United States Constitution in that it unreasonably interferes with the exercise of personal rights guaranteed by these provisions by being too broad and discriminatory.   The People argue the statute is not overly broad or discriminatory in that it proscribes “loitering” and not “presence,” it applies to juveniles and not adults, and it contains reasonable exceptions.   The People have the better argument.

 The constitutional standard applicable to a juvenile curfew ordinance is one of “reasonableness.”  (In re Nancy C. (1972) 28 Cal.App.3d 747, 754, 105 Cal.Rptr. 113.)   When an ordinance is attacked as unduly restrictive of personal rights, the test is whether the ordinance is reasonable, in view of the needs of the state, with reasonableness being roughly measured by the gravity of the evil to be corrected and the importance of the right invaded.  (Ibid.)

 For many years, courts have recognized that curfew ordinances for minors are justified as necessary police power regulations.   Juvenile curfew ordinances serve to control the presence of juveniles in public places at nighttime with the attendant risk of mischief, and they promote safety and order in the community by reducing the incidence of juvenile criminal activity.  (In re Nancy C., supra, 28 Cal.App.3d at pp. 754–755, 105 Cal.Rptr. 113.)   The question for this court then, in view of these interests, is whether the means used, as measured by the words of the ordinance, are so broad as to be unreasonable.  (Id. at p. 755, 105 Cal.Rptr. 113.)

 Curfew statutes that prohibit mere presence, “being in” a particular place, are unconstitutionally overbroad because they constitute an “arbitrary invasion of ․ inherent personal rights” and lack “any real or substantial relationship to the primary purpose” of promoting the welfare of juveniles.   (Alves v. Justice Court (1957) 148 Cal.App.2d 419, 425, 306 P.2d 601 [ordinance proscribed “being on” a public street];  In re Nancy C., supra, 28 Cal.App.3d at pp. 755–756, 105 Cal.Rptr. 113.)   By contrast, ordinances which only proscribe loitering have been held constitutional.  (See People v. Walton (1945) 70 Cal.App.2d Supp. 862, 866, 161 P.2d 498;  In re Nancy C., supra, at pp. 755–756, 105 Cal.Rptr. 113.)

The Los Angeles ordinance in Walton proscribed remaining or loitering.   The court concluded the provision was aimed at preventing minors from “tarrying and staying unnecessarily upon the streets and public places,” and did not restrict those minors who were using public streets or places while going to or from places of business or amusement or otherwise.  (People v. Walton, supra, 70 Cal.App.2d Supp. at p. 866, 161 P.2d 498.)   Similarly, the Sacramento ordinance in Nancy C., which prohibited a minor from loitering, idling, wandering, strolling or playing in or upon public streets after 10 p.m., was upheld as a valid loitering curfew.  (In re Nancy C., supra, 28 Cal.App.3d at pp. 756, 758, 105 Cal.Rptr. 113.)

“The evil to be prevented is danger to children and the incidence of juvenile crime during nighttime hours.   To forbid juveniles from loitering in the streets during nighttime hours has a real and substantial relationship to the dual goal of protection of children and the community, and the ordinance in question does not unduly restrict the rights of minors in view of these interests.”  (Id. at p. 758, 105 Cal.Rptr. 113.)

 Bakersfield's curfew ordinance, like the Los Angeles and Sacramento ordinances, proscribes loitering, rather than mere presence.   Further, if it was dangerous for minors to loiter in the streets in 1945 and 1972, when the earlier ordinances were upheld, it is much more so in 1995.   Moreover, the substantial increase in juvenile crime in recent times bodes in favor of upholding Bakersfield's curfew for the protection of the community as well.

Daniel concedes the ordinance prohibits loitering rather than mere presence but mounts a two-pronged challenge:  (a) the ordinance is unreasonably restrictive in its exceptions, and (b) it is void for vagueness because it provides no notice of the activities prohibited and provides no guidelines to govern law enforcement.   We find no merit in either argument.

(a) Unreasonably Restrictive

 Daniel contends Bakersfield's ordinance is too restrictive because its exceptions, unlike those in the ordinance in Nancy C., are not reasonable or comprehensible.   Daniel's argument is premised on the assumption that loitering-type curfew statutes applicable to minors must contain exceptions to be constitutional.   He cites no authority supporting that assumption.   Nancy C. stated that presence-type curfew statutes or curfew statutes which apply to adults may be unconstitutional if insufficient or overly vague exceptions are included.  (28 Cal.App.3d at pp. 756, 757, 105 Cal.Rptr. 113.)   We will not expand that statement to require exceptions in a loitering-type curfew applying only to minors.

The Bakersfield ordinance prohibits a minor from loitering on public streets, places of amusement or entertainment, or in public places after 10 p.m.   “Loiter” means to delay an activity, errand, or journey with aimless idle stops and purposeless distractions;  to remain in a place in an idle manner;  to hang around aimlessly or without real necessity.  (Webster's New Internat. Dict. (3d ed. 1986) p. 1331.)   Like the ordinances upheld in Walton and Nancy C., Bakersfield's ordinance prevents minors from “tarrying and staying unnecessarily upon the streets and public places,” and does not restrict those minors who are using public streets or places while going to or from places of business or amusement or otherwise.  (People v. Walton, supra, 70 Cal.App.2d Supp. at p. 866, 161 P.2d 498;  In re Nancy C., supra, 28 Cal.App.3d at p. 757, 105 Cal.Rptr. 113.)   Therefore, whether the exceptions in the ordinance are reasonable or comprehensible is immaterial to its constitutionality because it proscribes loitering rather than mere presence.

(b) Void for Vagueness

 The void-for-vagueness doctrine requires that a penal statute define the criminal offenses with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.   Failure to provide guidelines encourages arbitrary and discriminatory enforcement permitting “ ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’  [Citation.]”  (Kolender v. Lawson (1983) 461 U.S. 352, 357–358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, fn. omitted.)

 Daniel contends Bakersfield's ordinance violates this doctrine because its exceptions are unclear.   We disagree.   The ordinance prohibits loitering in a public place or street unless the minor:  (1) is accompanied by a parent or other adult having control or charge of the minor;  (2) has gone to a place of entertainment or amusement prior to 8 p.m., where a regular program of entertainment has commenced prior to 8 p.m. and continued beyond 10 p.m.;   or (3) has left such place of entertainment, or a place of employment or social call after 10 p.m. and is returning directly to his or her residence.

Daniel finds the phrases “a regular program of entertainment” and “social calls” vague, standardless, and ambiguous.   He questions whether occasional school dances or remedial tutorial sessions are “regular” or “entertainment;”  whether a minor's job must be “regular” and begin before 8 p.m.;   and whether the exception for “social calls” applies to dates, visits with noncustodial parents, or meetings between gang members.

Although not a model of clarity, the ordinance gives persons subject to it fair notice of what conduct is forbidden.   The statute prohibits loitering, unless the minor is (1) accompanied by a parent, (2) at a regular program of entertainment, or (3) returning directly to his or her residence from such entertainment, from employment, or from a social call in a reasonable manner.   Under the usual import of the words used, the first exception is self-explanatory;  the second applies to minors “loitering” at a regular program of entertainment, i.e., intermission during a theater performance, waiting in line for an amusement, etc., provided the entertainment meets certain requirements;  the third applies to minors “loitering” after leaving a place of entertainment, employment, or a social call provided they are returning directly home in a reasonable manner, i.e., saying “good-bye” in the parking lot or at the sidewalk, waiting for public or private transportation, etc.

 Daniel's difficulty in applying the wording of the ordinance to various fact patterns results from his lack of recognition of the difference between loitering and mere presence.   The ordinance does not proscribe emergency errands, or travel to and from tutorial sessions, jobs, or social visits of any kind, provided the minor goes promptly about his or her legitimate business.

For the same reasons, the ordinance provides sufficient guidelines to govern law enforcement.   The ordinance requires the officer to determine, first, whether the minor is loitering and, second, whether the surrounding circumstances indicate an exception applies:  a parent is about, the minor is at a regularly scheduled program of entertainment, or the minor is leaving a program of entertainment, employment, or a social call and returning directly to his or her residence in a reasonable manner.   The ordinance does not leave “to the predilections of the arresting officer, the courts and juries to determine what constitutes an acceptable recreational or entertainment event, job or social call․”

2.–4.**

DISPOSITION

Judgment affirmed.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FOOTNOTE.   See footnote*, ante.

THAXTER, Associate Justice.

ARDAIZ, P.J., and MARTIN, J., concur.