People v. Fogelson

*168MOSK, J.

I concur.

I agree with the majority that the city ordinance is fatally flawed on its face because it lacks standards to guide city functionaries in the issuance or rejection of permits to solicit funds on public property.

In concurring with the opinion, however, I emphasize that this defendant’s conduct is not impervious to reasonable restraint. Indeed, there was an element of fraud in his modus operandi. Defendant did not forthrightly solicit contributions to his religious order; to persons approached at the airport he purported to beg for alms to buy meals for needy children. On the stand, however, he conceded his actual intent was to sell books, the funds therefrom being appropriated not to needy children but to maintain his order’s preaching program. Nevertheless he was not charged with fraud or theft, but with violation of the municipal code section on solicitation, and thus we may consider only that offense.

If defendant was actually seeking aid for needy children, his conduct could be regulated or proscribed. It has been held that begging and soliciting for alms do not enjoy absolute constitutional protection. (Ulmer v. Municipal Court (1976) 55 Cal.App.3d 263, 266 [127 Cal.Rptr. 445].) And if he was selling literature for religious sustenance, his practices—as distinguished from his beliefs—are also subject to reasonable circumscription. (People v. Woody (1964) 61 Cal.2d 716, 718 [40 Cal.Rptr. 69, 394 P.2d 813].) As this court declared in Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 470 [171 P.2d 8], there is no question “that a person is free to hold whatever belief his conscience dictates, but when he translates his belief into action he may be required to conform to reasonable regulations which are applicable to all persons and are designed to accomplish a permissible objective.” The United States Supreme Court put it succinctly: religious liberty “embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.” (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1217-1218, 60 S.Ct. 900, 128 A.L.R. 1352].) To the same view is Justice Traynor’s exhaustive opinion for this court in Gospel Army v. City of Los Angeles (1945) 27 Cal.2d 232 [163 P.2d 704].

Thus it is clear to me that while the instant municipal ordinance falters because of constitutional infirmity, it is not impossible for the city to reasonably regulate the public conduct of mendicants, including those *169who purport to be motivated by religious fervor. Nothing in the court’s opinion should deter the city from appropriately legislating if the public welfare so dictates.

Clark, J., concurred.