dissenting:
As Judge Trott’s opinion recognizes, the crucial question in this case is whether the California court’s interpretation of the loitering statute “was so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him." Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 1703, 12 L.Ed.2d 894 (1964). In my view, the state’s interpretation was unforeseeable for the simple reason that it ran quite counter to the plain words of the statute. The statute provides:
Every person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or comes upon such school or place within 72 hours, after being asked to leave ... is a vagrant....
Cal.Penal Code § 653g (emphasis added). Whatever the legislature may have intended, it is rather clear what it said. “And who remains” is a conjunctive phrase; the crime that is described in the first part of the statute requires that the offender both loiter and remain. The word “remain” is itself incomplete unless qualified by some additional phrase, such as “remain for more than five minutes” or “remain after being asked to leave.” The legislature specified the latter qualification. If words are given no more than their permissible meaning, a person does not violate section 653g by loitering at a school unless he remains after being asked to leave.
*1060It follows from what I have said that I do not regard section 653g as ambiguous.1 I am unable, therefore to accept the view of the majority that the very ambiguity of section 653g put McSherry on notice that his conduct might later be held unlawful. Instead, I view this case as falling within the rule of Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). There the Supreme Court was faced with a South Carolina statute that prohibited “entry upon the lands of another ... after notice ... prohibiting such entry.” The South Carolina Supreme Court interpreted the statute to apply to civil rights sit-in demonstrators who had entered restaurants without being given notice, but who had been given notice to leave after having entered. The United States Supreme Court, in reversing on due process grounds, differentiated the case from the usual one involving a vague criminal statute:
The instant case seems distinguishable, since on its face the language of § 16-386 of the South Carolina Code was admirably narrow and precise.... The thrust of the distinction, however, is to produce a potentially greater deprivation of the right to fair notice in this sort of case, where the claim is that a statute precise on its face has been unforesee-ably and retroactively expanded by judicial construction, than in the typical “void for vagueness” situation. When a statute on its face is vague or overbroad, it at least gives a potential defendant some notice, by virtue of this very characteristic, that a question may arise as to its coverage, and that it may be held to cover his contemplated conduct. When a statute on its face is narrow and precise, however, it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction.
Id. at 351-52, 84 S.Ct. at 1701-02.
The majority opinion distinguishes Bouie partly on the ground that the would-be offenders there were not engaging in clearly immoral or otherwise unlawful conduct. It is certainly true that McSherry was up to no good. It is dangerous to assume, however, that would-be violators should be on notice of the potential unlawfulness of their conduct when the crime in question is such an inchoate one as loitering or vagrancy. Loitering, as California defines it, does require an intent to commit a crime, Huddleson v. Hill, 229 Cal.App.2d 618, 40 Cal.Rptr. 581 (1964), but the requisite intent is far less definite than in the usual specific intent crime. In McSherry’s case, the jury was instructed:
The intent to be proved is the intent to commit a crime as the opportunity might present itself. Neither an allegation nor proof requires an intent to commit a specific crime, but only a specific intent to commit some crime, the fact of the existence of such an intent to be inferred from all the circumstances.
Loitering, then, is a highly incipient crime, falling far short of an attempt. It establishes the earliest boundary of criminality, and one who approaches its line is not to be compared to the criminal already in the act of kidnapping who is merely quibbling about the nature of ransom. See Knutson v. Brewer, 619 F.2d 747 (8th Cir.1980). The issue here is “the drawing of a line between legal conduct and illegal conduct.” Id. at 750. So far as the record here reveals, McSherry was committing no crime at all absent the California court’s disputed interpretation of section 653g.
The majority opinion traces the history of section 653g and the judicial interpretation of its predecessors, making a substantial case that the California legislature intended to do something other than what it did in its last amendment to the statute. *1061That point carries little weight, however, when the words of the statute are as clear as those of section 653g in its present form. Citizens should not be required, on pain of criminal conviction, to explore legislative and judicial history to determine whether that history condemns their conduct even though the statute itself does not. “[T]o ensure that a legislature speaks with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishment for actions that are not ‘plainly and unmistakably’ proscribed.” Dunn v. United States, 442 U.S. 100, 112-113, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979) (quoting United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 411, 61 L.Ed. 857 (1917)).
It is true, of course, that citizens do not normally carry statute books around with them, or memorize their contents. There is accordingly a certain degree of fiction inherent in the requirement of due process notice to the potential offender. We adhere, however, to the constitutional imperative that crimes be defined in advance, rather than retrospectively by policemen or judges, as a guarantee against arbitrary and discriminatory government. See L. Tribe, American Constitutional Law 474-77 (1978); Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 1858-59, 75 L.Ed.2d 903 (1983). Nowhere is this precaution more important than in regard to such potentially dragnet crimes as loitering and vagrancy.
Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of the law implies equality and justice in its application.
Papachristou v. City of Jacksonville, 405 U.S. 156, 171, 92 S.Ct. 839, 848, 31 L.Ed.2d 110 (1972). Here, California’s statute appeared on its face to have avoided the uncertainties attending many vagrancy statutes, by requiring a request that the potential offender leave the school grounds or other place where children congregate. That specificity was destroyed when the California courts interpreted the statute contrary to its plain words.
There is a final irony in this case. To the extent that- we do tolerate retrospective judicial interpretation of criminal statutes, we do so out of necessity. Language is incapable of being made perfectly certain in all of its applications. See Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 669, 89 L.Ed. 944 (1945); Knutson v. Brewer, 619 F.2d 747, 750 (8th Cir.1980). Consequently, we accept the cost of some peripheral surprise to a criminal defendant in order to achieve the benefits of a judicial interpretation that binds not only him, but the entire populace in the future. What is to some degree arbitrary for the individual defendant is saved from being arbitrary as a matter of government because the decision makes law.
In McSherry’s case, however, the California Supreme Court has eliminated any public benefit that might inhere in judicial construction of the statute, because it has ordered depublication of the decision of the Appellate Department that construed the statute. That action wholly undermines the conclusion of the majority opinion that section 653g was ambiguous on its face, but was rendered non-ambiguous by the construction placed upon it by the Appellate Department. That construction binds McSherry, but it binds no one else in the world because the opinion of the Appellate Department cannot be cited or relied upon as precedent. Rule 977(a) California Rules of Court. Under the majority’s view of section 653g, that statute remains ambiguous for everyone but McSherry, and police, prosecutors and courts are free to attempt new interpretations.
For my part, I would hold California to the words of the statute it has enacted, until it adopts another interpretation applicable to all. And if that interpretation is directly contrary to the words of the statute, as in this case, due process requires that it not apply retrospectively. I would grant the writ.
. It is true that McSherry has argued that section 653g is ambiguous, partly because two courts found it so. I do not regard him, however, as having waived the right to claim that the statute clearly requires a request to leave. The whole thrust of his argument is that the California courts unexpectedly and unforsee-ably eliminated that requirement from the statute.