People v. Superior Court

MOSK, J.

I dissent.

Vagrancy laws have traditionally been used to clear the streets of persons who have committed no crime but are nevertheless deemed repugnant to *403segments of society. “These statutes are in a class by themselves, in view of the familiar abuses to which they are put. . . . Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of the police and prosecution, although not chargeable with any particular offense.” (Winters v. New York (1948) 333 U.S. 507, 540 [92 L.Ed. 840, 862, 68 S.Ct. 665] (dis. opn.of Frankfurter, J.), quoted in Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 166 [31 L.Ed.2d 110, 118, 92 S.Ct. 839].)

Vagrancy laws have been meeting an unsympathetic fate as courts become increasingly aware of the manner in which vagueness contributes to abuse by authorities. Over the years a plethora of well-considered opinions invalidated all or part of one after another of such laws, both at the federal and state levels. (See, e.g., Papachristou v. City of Jacksonville, supra, 405 U.S. 156; Kolender v. Lawson (1983) 461 U.S. 352 [75 L.Ed.2d 903, 103 S.Ct. 1855]; People v. Soto (1985) 171 Cal.App.3d 1158, 1168 [217 Cal.Rptr. 795]; Gates v. Municipal Court (1982) 135 Cal.App.3d 309, 320 [185 Cal.Rptr. 330]; Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 262 [150 Cal.Rptr. 813, 2 A.L.R.4th 1230]; People in Interest of C. M. (Colo. 1981) 630 P.2d 593; Sawyer v. Sandstrom (5th Cir. 1980) 615 F.2d 311, 318; City of Bellevue v. Miller (1975) 85 Wn.2d 539 [536 P.2d 603, 608]; State v. Debnam (1975) 23 Ore.App. 433 [542 P.2d 939, 942]; State v. Martinez (1975) 85 Wn.2d 671 [538 P.2d 521, 527]; United States ex rel. Newsome v. Malcolm (2d Cir. 1974) 492 F.2d 1166, 1174; People v. Gibson (1974) 184 Colo. 444 [521 P.2d 774, 775]; City of Seattle v. Pullman (1973) 82 Wn.2d 794 [514 P.2d 1059]; Anderson v. Nemetz (9th Cir. 1973) 474 F.2d 814, 817; People v. Berck (1973) 32 N.Y.2d 567 [300 N.E.2d 411, 416]; In re Doe (1973) 54 Hawaii 647 [513 P.2d 1385, 1389]; Hall v. United States (D.C. Cir. 1972) 148 App.D.C. 42 [459 F.2d 831, 840]; State v. Starks (1971) 51 Wis.2d 256 [186 N.W.2d 245, 250]; State v. Aucoin (Me. 1971) 278 A.2d 395, 397; State v. Grahovac (1971) 52 Hawaii 527 [480 P.2d 148, 153]; Hayes v. Municipal Court of Oklahoma City (Okla.Crim. 1971) 487 P.2d 974, 981; Arnold v. City and County of Denver (1970) 171 Colo. 1 [464 P.2d 515, 517]; City of Portland v. White (1972) 9 Ore.App. 239 [495 P.2d 778, 780]; Goldman v. Knecht (D.Colo. 1969) 295 F.Supp. 897, 906; Lazarus v. Faircloth (S.D.Fla. 1969) 301 F.Supp. 266, 273; City of Portland v. James (1968) 251 Ore. 8 [444 P.2d 554, 558]; Ricks v. District of Columbia (D.C. Cir. 1968) 134 App.D.C. 201 [414 F.2d 1097, 1110]; City of Seattle v. Drew (1967) 70 Wn.2d 405 [423 P.2d 522, 525, 25 A.L.R.3d 827]; Alegata v. Commonwealth (1967) 353 Mass.287 [231 N.E.2d 201, 205]; Headley v. Selkowitz (Fla. 1965) 171 So.2d 368, 370 [12 A.L.R.3d 1443]; Cleveland v. Baker (1960) 83 Ohio L.Abs. 502 [167 N.E.2d 119, 121]; People v. Diaz (1958) 4 N.Y.2d 469 [151 N.E.2d 871]; Soles v. City of Vidalia (1955) 92 Ga.App. 839 [90 S.E.2d 249, 252]; Commonwealth v. Carpenter (1950) 325 *404Mass. 519 [91 N.E.2d 666, 667]; Territory of Hawaii v. Anduha (9th Cir. 1931) 48 F.2d 171, 173; Stoutenburgh v. Frazier (1900) 16 App.D.C. 229, 240; see Shuttlesworth v. Birmingham (1965) 382 U.S. 87, 90 [15 L.Ed.2d 176, 179, 86 S.Ct. 211]; Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253 [158 Cal.Rptr. 330, 599 P.2d 636].)

In this case we must decide whether Penal Code section 647, subdivision (d) (hereafter section 647(d)) is unconstitutionally vague in violation of the due process clause of article I, section 15, of the California Constitution. The United States Supreme Court has explained; “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Grayned v. City of Rockford (1972) 408 U.S. 104, 108-109, fn. omitted [33 L.Ed.2d 222, 227-228, 92 S.Ct. 2294].)

Our court has observed that “it is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt. [Citations.]” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269, fn. omitted [198 Cal.Rptr. 145, 673 P.2d 732], app.dism. and cert. den. (1984) 466 U.S. 967 [80 L.Ed.2d 812, 104 S.Ct. 2337].) With regard to this second component, we declared that “vague statutory language . . . creates the danger that police, prosecutors, judges and juries will lack sufficient standards to reach their decisions, thus opening the door to arbitrary or discriminatory enforcement of the law.” (Pryor v. Municipal Court, supra, 25 Cal.3d 238, 252.)

Section 647(d) has two essential elements. The first is, “loiters.” That clearly requires objective conduct, but certainly it cannot be contended that lingering or loitering alone, in a public place, renders one subject to criminal prosecution. The second aspect of the section requires that the loitering be “for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.” That clearly requires intent-, it contemplates that no such actual conduct occurred, but only that it be subjectively contemplated.

As the court observed in Bank of America etc. Assn. v. Kelsey (1935) 6 Cal.App.2d 346, 351 [44 P.2d 617], intention “is a state of mind and, until *405communicated or manifested, is known only to its possessor.” This court, in People v. Fewkes (1931) 214 Cal. 142, 148 [4 P.2d 538], declared that “Intent is a question of fact which may be proved like any other fact, by acts, conduct and circumstances connected with the offense.” The majority have not satisfactorily explained how intent can be determined when there are no accompanying acts or conduct. Perhaps they anticipate a court somehow miraculously peering into the inner recesses of the mind. A crystal ball might be helpful.

To compound the problems with the statute, I find the phrase “any unlawful act” to be about as vague and uncertain a term as can be devised. The Penal Code contains sections 1 to 141Ó2, and various state and municipal codes contain innumerable additional prohibitions. It cannot be seriously contended that “any unlawful act” places a person on adequate notice as to what laws he may not subjectively intend to violate at some imprecise future time in the course of his dallying.

The majority, perhaps inadvertently, reveal one of the ways in which this vague statute can be—and probably is—misused. They indicate that noncriminal conduct may give rise to probable cause to believe an individual is in violation of 647(d) if a police officer may personally know that the person has violated the law in the past. (Maj. opn., ante, p. 395.) I need cite no authority for the universally accepted proposition that previous conduct, or even purported propensity to commit crimes, does not justify an arrest when no actual crime is being or has been committed. That the majority would seriously advance a contrary theory is ominous.

There can be no doubt that a penal statute is void on its face if it forbids “the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application . . . .” (Connally v. General Const. Co. (1926) 269 U.S. 385, 391 [70 L.Ed. 322, 328, 46 S.Ct. 126].) All persons are required to avoid unlawful conduct, but to do so they must be told in clear and unequivocal terms precisely what conduct is unlawful.

The statute at issue refers to only one act that constitutes conduct: loitering. Yet loitering—i.e., lingering, dawdling, loafing, tarrying, lazying, lagging, idling, dallying—admittedly is not in itself a criminal offense. That leaves only intent as the prohibited element. Thus to be vulnerable to prosecution, a person must linger near a restroom and think or fantasize about improper sexual acts or any other crime on the books. No overt act. No advances toward any other person. Just thoughts.

We have come a long way toward controlling crime and criminals. There are adequate laws on the books to prevent illegal conduct. But when we *406invade the thought processes of individuals, we step over the line into a constitutionally impermissible area.

Justice Arguelles pointed out the adequacy of other laws in his concurring opinion in a decision invalidating this very statute in People v. Soto, supra, 171 Cal.App.3d at page 1170: “the deterrence of socially prohibited activities in public restrooms can be met by enforcement of existing sections 647, subdivision (a) (prohibiting commission or solicitation of a lewd act), section 314 (prohibiting indecent exposure), and similar statutes which prohibit specific conduct.” It is regrettable that he now disavows his offspring. He was right the first time.

Justice Douglas, writing for a unanimous United States Supreme Court in Papachristou v. City of Jacksonville, supra, 405 U.S. at page 171 [31 L.Ed.2d at pages 120-121], emphasized the vice of vagrancy laws comparable to 647(d): “A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards—that crime is being nipped in the bud—is too extravagant to deserve extended treatment. 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 law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as rich, is the great mucilage that holds society together.”

Broussard, J., concurred.

The petition of real parties in interest Caswell et al., and petitioner Grassi for a rehearing was denied October 13, 1988. Mosk, J., was of the opinion that the petition should be granted.