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DEERING'S CALIFORNIA CODES ANNOTATED
Copyright (c) 2004 by Matthew Bender & Company, Inc.
a member of the LexisNexis Group.
All rights reserved.
*** ARCHIVE MATERIAL ***
*** THIS SECTION IS CURRENT THROUGH THE 2004 SUPPLEMENT ***
(2003 SESSION)
PENAL CODE
PART 1. Crimes and Punishments
TITLE 15. Miscellaneous Crimes
CHAPTER 2. Other and Miscellaneous Offenses
Cal Pen Code § 647 (2004)
§ 647. Disorderly conduct; Restrictions on probation
Every person who commits any of the following acts is guilty of disorderly
conduct, a misdemeanor:
(a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct
in any public place or in any place open to the public or exposed to public
view.
(b) Who solicits or who agrees to engage in or who engages in any act of
prostitution. A person agrees to engage in an act of prostitution when, with
specific intent to so engage, he or she manifests an acceptance of an offer
or solicitation to so engage, regardless of whether the offer or
solicitation was made by a person who also possessed the specific intent to
engage in prostitution. No agreement to engage in an act of prostitution
shall constitute a violation of this subdivision unless some act, in
addition to the agreement, is done within this state in furtherance of the
commission of an act of prostitution by the person agreeing to engage in
that act. As used in this subdivision, "prostitution" includes any lewd act
between persons for money or other consideration.
(c) Who accosts other persons in any public place or in any place open to
the public for the purpose of begging or soliciting alms.
(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.
(e) Who loiters or wanders upon the streets or from place to place
without apparent reason or business and who refuses to identify himself or
herself and to account for his or her presence when requested by any peace
officer so to do, if the surrounding circumstances would indicate to a
reasonable person that the public safety demands this identification.
(f) Who is found in any public place under the influence of intoxicating
liquor, any drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, controlled substance, or toluene, in such a
condition that he or she is unable to exercise care for his or her own
safety or the safety of others, or by reason of his or her being under the
influence of intoxicating liquor, any drug, controlled substance, toluene,
or any combination of any intoxicating liquor, drug, or toluene, interferes
with or obstructs or prevents the free use of any street, sidewalk, or other
public way.
(g) When a person has violated subdivision (f) of this section, a peace
officer, if he or she is reasonably able to do so, shall place the person,
or cause him or her to be placed, in civil protective custody. The person
shall be taken to a facility, designated pursuant to Section 5170 of the
Welfare and Institutions Code, for the 72-hour treatment and evaluation of
inebriates. A peace officer may place a person in civil protective custody
with that kind and degree of force which would be lawful were he or she
effecting an arrest for a misdemeanor without a warrant. No person who has
been placed in civil protective custody shall thereafter be subject to any
criminal prosecution or juvenile court proceeding based on the facts giving
rise to this placement. This subdivision shall not apply to the following
persons:
(1) Any person who is under the influence of any drug, or under the
combined influence of intoxicating liquor and any drug.
(2) Any person who a peace officer has probable cause to believe has
committed any felony, or who has committed any misdemeanor in addition to
subdivision (f) of this section.
(3) Any person who a peace officer in good faith believes will attempt
escape or will be unreasonably difficult for medical personnel to control.
(h) Who loiters, prowls, or wanders upon the private property of another,
at any time, without visible or lawful business with the owner or occupant.
As used in this subdivision, "loiter" means to delay or linger without a
lawful purpose for being on the property and for the purpose of committing a
crime as opportunity may be discovered.
(i) Who, while loitering, prowling, or wandering upon the private
property of another, at any time, peeks in the door or window of any
inhabited building or structure, without visible or lawful business with the
owner or occupant.
(j) Who lodges in any building, structure, vehicle, or place, whether
public or private, without the permission of the owner or person entitled to
the possession or in control of it.
(k) (1) Any person who looks through a hole or opening, into, or
otherwise views, by means of any instrumentality, including, but not limited
to, a periscope, telescope, binoculars, camera,motion picture camera, or
camcorder, the interior of a bathroom, changing room, fitting room, dressing
room, or tanning booth, or the interior of any other area in which the
occupant has a reasonable expectation of privacy, with the intent to invade
the privacy of a person or persons inside. This subdivision shall not apply
to those areas of a private business used to count currency or other
negotiable instruments.
(2) Any person who uses a concealed camcorder, motion picture camera, or
photographic camera of any type, to secretly videotape, film, photograph, or
record by electronic means, another, identifiable person under or through
the clothing being worn by that other person, for the purpose of viewing the
body of, or the undergarments worn by, that other person, without the
consent or knowledge of that other person, with the intent to arouse, appeal
to, or gratify the lust, passions, or sexual desires of that person and
invade the privacy of that other person, under circumstances in which the
other person has a reasonable expectation of privacy.
In any accusatory pleading charging a violation of subdivision (b), if
the defendant has been once previously convicted of a violation of that
subdivision, the previous conviction shall be charged in the accusatory
pleading. If the previous conviction is found to be true by the jury, upon a
jury trial, or by the court, upon a court trial, or is admitted by the
defendant, the defendant shall be imprisoned in a county jail for a period
of not less than 45 days and shall not be eligible for release upon
completion of sentence, on probation, on parole, on work furlough or work
release, or on any other basis until he or she has served a period of not
less than 45 days in a county jail. In all cases in which probation is
granted, the court shall require as a condition thereof that the person be
confined in a county jail for at least 45 days. In no event does the court
have the power to absolve a person who violates this subdivision from the
obligation of spending at least 45 days in confinement in a county jail.
In any accusatory pleading charging a violation of subdivision (b), if
the defendant has been previously convicted two or more times of a violation
of that subdivision, each such previous conviction shall be charged in the
accusatory pleading. If two or more of these previous convictions are found
to be true by the jury, upon a jury trial, or by the court, upon a court
trial, or are admitted by the defendant, the defendant shall be imprisoned
in a county jail for a period of not less than 90 days and shall not be
eligible for release upon completion of sentence, on probation, on parole,
on work furlough or work release, or on any other basis until he or she has
served a period of not less than 90 days in a county jail. In all cases in
which probation is granted, the court shall require as a condition thereof
that the person be confined in a county jail for at least 90 days. In no
event does the court have the power to absolve a person who violates this
subdivision from the obligation of spending at least 90 days in confinement
in a county jail.
In addition to any punishment prescribed by this section, a court may
suspend, for not more than 30 days, the privilege of the person to operate a
motor vehicle pursuant to Section 13201.5 of the Vehicle Code for any
violation of subdivision (b) that was committed within 1,000 feet of a
private residence and with the use of a vehicle. In lieu of the suspension,
the court may order a person's privilege to operate a motor vehicle
restricted, for not more than six months, to necessary travel to and from
the person's place of employment or education. If driving a motor vehicle is
necessary to perform the duties of the person's employment, the court may
also allow the person to drive in that person's scope of employment.
HISTORY:
Added Stats 1961 ch 560 § 2. Amended Stats 1965 ch 1959 § 1; Stats 1967
ch 1317 § 1; Stats 1969 ch 204 § 1, ch 1319 § 2; Stats 1970 ch 26 § 1,
effective March 23, 1970; Stats 1971 ch 1581 § 1; Stats 1977 ch 426 § 1;
Stats 1984 ch 1633 § 1, ch 1635 § 80; Stats 1986 ch 264 § 1, ch 1276 § 1;
Stats 1987 ch 828 § 41; Stats 1988 ch 524 § 1; Stats 1st Ex Sess 1993-94 ch
21 § 1 (AB 116 X), effective November 30, 1994; Stats 1995 ch 91 § 126 (SB
975); Stats 1996 ch 1019 § 2 (AB 2949), ch 1020 § 2 (AB 2051); Stats 1998 ch
758 § 1 (AB 1788).
Amended Stats 1999 ch 231 § 1 (AB 182).
NOTES:
FORMER SECTIONS:
Former § 647, relating to vagrants, was enacted Stats 1872, amended Stats
1891 ch 117 § 1, Stats 1903 ch 89 § 1, Stats 1911 ch 316 § 1, Stats 1929 ch
35 § 1, Stats 1931 ch 288 § 1, Stats 1939 ch 1078 § 1, Stats 1947 ch 989 §
1, Stats 1955 ch 169 § 2, and repealed Stats 1961 ch 560 § 1.
AMENDMENTS:
1965 Amendment:
Added the second sentence of subd (b).
1967 Amendment:
Substituted "influence of toluene or any substance defined as a poison in
Schedule D of Section 4160 of the Business and Professions Code, or under
the influence of any combination of any intoxicating liquor, drug, toluene
or any such poison," for "combined influence of intoxicating liquor and any
drug" wherever it appears after "or any drug, or the" in subd (f).
1969 Amendment:
(1) Deleted the former introductory clause which read: "Every person who
commits any of the following acts shall be guilty of disorderly conduct, a
misdemeanor:"; (2) deleted "of the same sex" after "persons" in subd (b);
(3) deleted "; or," after "thereof" at the end of subd (g); (4) added
subdivision designation (h); (5) redesignated former subdivision designation
(h) to be subd (i); and (6) added the last two paragraphs.
1970 Amendment:
(1) Added the introductory clause; (2) deleting "or" before "any drug"
wherever it appears in subd (f); (3) deleted "or the influence of" after
"any drug," wherever it appears in subd (f); (4) deleted "or" before "any
substance" wherever it appears in subd (f); (5) deleted "under the influence
of" before "any combination" wherever it appears in subd (f); (6)
substituted "the" for "such" after "a violation of" in the last two
paragraphs; (7) substituted "the" for "such" before "previous" wherever it
appears in the next to last paragraph; (8) added "a period of" wherever it
appears in the last two paragraphs; (9) deleted "or" before "on parole" in
the last two paragraphs; (10) substituted "he" for "the defendant" after
"basis until" in the last two paragraphs; and (11) substituted "the
defendant" for "such person" after "sentence imposed upon" in the last two
paragraphs.
1971 Amendment:
Added subd (ff).
1977 Amendment:
(1) Substituted "person" for "man" after "reasonable" in subd (e); and
(2) amended subd (i) by (a) adding "vehicle," after "structure," in the
first paragraph; (b) substituting "that" for "the" before "subdivision,";
and (c) substituting the semicolon for the comma after "in the accusatory
pleading" wherever it appears in the second and third paragraphs.
1984 Amendment:
In addition to making technical changes, (1) added all references to
controlled substances in subd (f); (2) substituted "at any time" for "in the
nighttime" in subds (g) and (h); and (3) added the second sentence of subd
(g). (As amended Stats 1984 ch 1635, compared to the section as it read
prior to 1984. This section was also amended by an earlier chapter, ch 1633.
See Gov C § 9605.)
1986 Amendment:
Amended subd (b) by adding (1) "or who agrees to engage in" after
"solicits" in the first sentence; and (2) the second and third sentences.
(As amended Stats 1986 ch 1276, compared to the section as it read prior to
1986. This section was also amended by an earlier chapter, ch 264. See Gov C
§ 9605.)
1987 Amendment:
Amended subd (f) by deleting (1) "any substance defined as a poison in
Schedule D of Section 4160 of the Business and Professions Code," after "or
any combination of any" wherever it appears; and (2) "if any such poison"
before "in such a condition" and before "interferes with or obstructs".
1988 Amendment:
Amended the second and third paragraphs by substituting (1) "probation,
on parole, on work furlough or work release" for "parole" in the first
sentences; and (2) the second and third sentences for the former last
sentence which read: "In no such case shall the trial court grant probation
or suspend the execution of sentence imposed upon the defendant."
1994 Amendment:
In addition to making technical changes, added subd (j).
1995 Amendment:
Routine code maintenance.
1996 Amendment:
In addition to making technical changes, (1) substituted subd (k) for
former subd (k) which read: "(k) Anyone who looks through a hole into a
bathroom with the intent to invade the privacy of persons therein."; and (2)
added the last paragraph. (As amended Stats 1996 ch 1020, compared to the
section as it read prior to 1996. This section was also amended by an
earlier chapter, ch 1019. See Gov C § 9605.)
1998 Amendment:
Added the last sentence of the last paragraph of subd (k).
1999 Amendment:
Amended subd (k) by (1) adding subdivision designation (k)(1); (2)
substituting "Any person" for "Anyone" at the beginning; (3) adding "motion
picture camera," after "binoculars, camera," in subd (k)(1); and (4) adding
subd (k)(2).
CROSS REFERENCES:
Taking female for purpose of prostitution: Pen C § 266e.
Selling female for immoral purposes: Pen C § 266f.
Pimping: Pen C § 266h.
Pandering: Pen C § 266i.
Abduction of minor for prostitution: Pen C § 267.
Registration of sex offenders: Pen C § 290.
Disturbing religious meetings: Pen C § 302.
Misdemeanor in participating in obscene live conduct: Pen C § 311.6.
Indecent exposures and exhibitions: Pen C § 314.
Keeping houses for prostitution: Pen C §§ 315, 316.
Inhalation of toluene as misdemeanor: Pen C § 381.
Crimes against public peace: Pen C §§ 403 et seq.
Using offensive words or disturbing others by loud noise: Pen C § 415.
Unlawful interference with property: Pen C §§ 552 et seq.
Unauthorized entering or remaining in dwelling, as misdemeanor: Pen C §
602.5.
Annoying or molesting children: Pen C § 647a.
Disposition of repeat offender for intoxication offenses: Pen C § 647d.
Loitering about schools or other public places attended by children as
vagrancy: Pen C § 653g.
"Peace officer": Pen C §§ 830, 830.1.
Diversion of criminal proceedings in narcotic and drug abuse cases: Pen C
§§ 1000 et seq.
Restriction on report or maintenance of information relating to arrests
for public drunkenness: Pen C § 13153.
Eviction from recreational vehicle park on conviction of prostitution: CC
§ 799.70.
Pilot program for declaring vehicle used in commission of act of
prostitution to be public nuisance and for abatement: Veh C § 22659.5.
COLLATERAL REFERENCES:
Cal Forms Pl & Practice (Matthew Bender) ch 429 "Privacy" II(F), ch 304
"Insane and Other Incompetent Persons".
Witkin & Epstein, Criminal Law (2d ed) §§ 23, 31, 33, 44, 50, 58, 60,
101, 125, 794, 802, 807, 809, 414, 865-875, 1417, 1779, 2068, 2159, 2220,
2389, 2810, 3039.
Witkin Summary (9th ed) Constitutional Law § 327; Torts §§ 161, 203.
Cal Jur 3d (Rev) Criminal Law §§ 731, 841, 842, 1951-1958, 1962, 1963,
1965, 2145, 2474, 2537, 2549, 2818; Government Tort Liability § 11.
LAW REVIEW ARTICLES:
Alcohol or drug addiction, and punishment of a man because he is ill.
52 ABAJ 932.
Chronic alcohol addiction and criminal responsibility. 54 ABAJ 877.
Constitutional reflections on California's request for identification
law. 8 Black LJ 177.
Who is a vagrant. 23 Cal LR 506, 616.
Establishment of vagrant status. 39 Cal LR 579.
Guilty plea protection and administration. 63 Cal LR 197.
Sex on the Internet: A Legal Click or an Illicit Trick?38 Cal Western
LR 527.
Police demand for documentary identification. 13 Crim Just J 243.
Virtual prostitution: new technologies and the world's oldest
profession. 18 Hast Com/Ent 869.
The impact of Kolender v Lawson on law enforcement and minority
groups. 12 Hast Const L Q 105.
Aggressive panhandling legislation and the constitution: evisceration
of fundamental rights--or valid restrictions upon offensive conduct? 23 Hast
Const LQ 557.
Vagrancy concept. 9 Hast LJ 237.
Vagrancy concept--idle and loose. 9 Hast LJ 240.
Vagrancy concept--common drunkard. 9 Hast LJ 247.
Who is "vagrant." 13 LA Bar B 148.
Problem of "vag-roamer." 13 LA Bar B 205.
Vagrant and poor, as social and economic problem. 13 LA Bar B 279.
The alcoholic, alcoholics anonymous, and the court. 43 LA Bar B 156.
Involuntary commitment of mentally disordered persons under the
Lanterman-Petris-Short Act; treatment of alcoholics. 8 Lincoln LR 71.
Public inebriate health: legislature and the revolving door. 1 Pacific
LJ 65.
Could California reduce AIDS by modeling Nevada prostitution law? 2
San Diego Justice Journal 491.
Absence of requirement that suspected vagrant account for his presence
to interrogating police officer. 14 Santa Clara Law 139.
Pretrial release of public drunkenness offenders. 15 Santa Clara Law
81.
Development of law of burglary in California. 25 SCLR 75.
Mens rea and status criminality, with respect to vagrancy. 40 SCLR
465.
Commercial Sex: Beyond Decriminalization. 73 SCLR 523.
The scope of search incident to arrest for minor offenses:
California's independent and adequate approach. 7 Southwestern U LR 383.
Constitutional attacks on vagrancy laws. 20 Stan LR 782.
Taking the public inebriate out of California's criminal justice
system. 7 UCD LR 539.
Consenting adult homosexual and the law. 13 UCLA LR 643.
New prosecutorial techniques and continued judicial vagueness,
respecting obscenity; use of "sex act prosecution approach." 21 UCLA LR 214.
Vagrancy laws and the right to privacy. 2 USF LR 337.
Constitutionality of the Arrest of the Homeless Under the Basis of
Cruel and Unusual Punishment. 20 Western St LR 649.
Decriminalization and beyond: public inebriety in Los Angeles County.
3 Whittier LR 55.
California disorderly conduct statute violates due process clause. 5
Whittier LR 585.
Kreimer v. Bureau of Police: Are the Homeless Ready for Suspect
Classification? 14 Whittier LR 731.
ATTORNEY GENERAL'S OPINIONS:
Offenses denounced by subd (a) and (d) of this section as "sex
offenses" under Ed C § 13207 respecting revocation of teaching credentials.
39 Ops. Cal. Atty. Gen. 304.
Municipal liability for cost of hospitalization of individual arrested
for disorderly conduct and hospitalized in county hospital before being
booked and arraigned. 41 Ops. Cal. Atty. Gen. 155.
County curfew ordinance as not impaired by subd (d) of this section.
49 Ops. Cal. Atty. Gen. 112.
Lawfulness of arrest after accident for misdemeanor drunk driving and
drunkenness in public place, where officer making arrest arrives at scene
sometime after accident, and suspect is identified as driver by witnesses at
scene. 52 Ops. Cal. Atty. Gen. 250.
City ordinance which establishes misdemeanor offense for loitering for
purpose of engaging in prostitution would be preempted by state law. 78 Ops.
Cal. Atty. Gen. 22.
ANNOTATIONS:
Statutes relating to sexual psychopaths. 24 ALR2d 350.
Location of offense as "public" within requirement of enactments
against drunkenness. 8 ALR3d 930.
Vagueness as invalidating statutes or ordinances dealing with
disorderly persons or conduct. 12 ALR3d 1448.
Validity of vagrancy statutes and ordinances. 25 ALR3d 792.
Validity of loitering statutes and ordinances. 25 ALR3d 836.
Larceny as within disorderly conduct statute or ordinance. 71 ALR3d
1156.
Validity and construction of statute or ordinance proscribing
solicitation for purposes of prostitution, lewdness, or assignation--modern
cases. 77 ALR3d 519.
Validity and construction of statute or ordinance prohibiting use of
"obscene" language in public. 2 ALR4th 1331.
Validity and application of statute exempting nonmanagerial,
nonfinancially interested employees from obscenity prosecution. 35 ALR4th
1237.
Laws regulating begging, panhandling, or similar activity by poor or
homeless persons. 7 ALR5th 455.
Laws prohibiting or regulating "escort services," "outcall
entertainment," or similar services used to carry on prostitution. 15 ALR5th
900.
Validity, construction, and application of loitering statutes and
ordinances. 72 ALR5th 1.
Validity, construction, and operation of federal disorderly conduct
regulation (36 C.F.R. § 2.34). 180 ALR Fed 637.
NOTES OF DECISIONS
1. In General
2. Constitutionality
3. Preemption of Local Acts
4. Construction, Generally
5. Public Place
6. Solicitation; Prostitution
7. Loitering; Wandering; Prowling
8. Intoxicated; Under the Influence
9. Police Investigation; Arrest; Search
10. Procedural Questions
1. In General
The Legislature did not intend Pen Code, § 647, subd (a), designating as
disorderly conduct the engaging in lewd or dissolute conduct in a place open
to the public, or Pen Code, § 311.6, prohibiting the speaking of obscene
words in a public place, to apply to theatrical performances. Barrows v
Municipal Court of Los Angeles Judicial Dist. (1970) 1 Cal 3d 821, 83 Cal
Rptr 819, 464 P2d 483.
Theatrical performances do not fall within the purview of the vagrancy
law, Pen Code, § 647, subd (a). Barrows v Municipal Court of Los Angeles
Judicial Dist. (1970) 1 Cal 3d 821, 83 Cal Rptr 819, 464 P2d 483.
Terms of probation imposed on conviction of soliciting an act of
prostitution in violation of Pen. Code, § 647, subd. (b), which prohibited
defendant from soliciting or accepting rides from motorists and from
approaching male pedestrians or motorists or engaging them in conversation
on public streets or in public places were overly broad in their
proscription of otherwise legal activities. People v Norris (1978, App Dep't
Super Ct) 88 Cal App 3d Supp 32, 152 Cal Rptr 134.
A police officer who failed to take an inebriated individual to a
detoxification center as provided by Pen. Code, § 647, subd. (ff), did not
breach a mandatory duty to the individual, who was subsequently struck by a
car driven by a third person, within the meaning of Gov. Code, § 815.6,
which makes a public entity liable for an injury caused by breach of a
mandatory duty where the public entity is under a mandatory duty imposed by
enactment that is designed to protect against the risk of a particular kind
of injury. Pen. Code, § 647, subd. (ff), does not require police to take a
public inebriate into custody--it merely provides an alternative disposition
of a public inebriate to criminal prosecution. Furthermore, any duty arising
out of § 647, subd. (ff), did not relate to the particular kind of harm
suffered by the individual. The purposes of subd. (ff) concern possible
diminishment of the "revolving-door," inhumane treatment in the criminal
system of persons who are "sick." It is not intended to protect public
inebriates from the dangers of the street. Stout v City of Porterville
(1983, 5th Dist) 148 Cal App 3d 937, 196 Cal Rptr 301.
In light of the fact that violation of Pen. Code, § 266i (pandering),
requires a specific intent to influence a person to become a prostitute, a
violation of Pen. Code, § 647, subd. (b) (aiding and abetting an act of
prostitution), cannot be considered a lesser included offense of pandering.
People v Mathis (1985, 4th Dist) 173 Cal App 3d 1251, 219 Cal Rptr 693.
Pen. Code, § 647, subd. (b) (a person who solicits or agrees to engage in
an act of prostitution is guilty of disorderly conduct, a misdemeanor),
makes an act in furtherance of the commission of an act of prostitution an
essential element of the offense of agreeing to engage in an act of
prostitution. Hence, absent an allegation of such an act, a complaint does
not advise the defendant of the charge against him and thereby denies him
due process of law and fails to comply with the requirements of Pen. Code, §
952 (statement of public offense charged in accusatory pleading may be in
any words sufficient to give defendant notice of offense of which he is
accused). Gaylord v Municipal Court (1987, 2nd Dist) 196 Cal App 3d 1348,
242 Cal Rptr 486.
Limiting the place of enforcement of a criminal statute may mitigate its
potential vagueness. By limiting the scope of Pen. Code, § 647, subd. (d)
(loitering about public toilet for illicit purpose), to include only those
loitering in a certain place, the likelihood of arbitrary or discriminatory
enforcement is reduced. People v Superior Court (Caswell) (1988) 46 Cal 3d
381, 250 Cal Rptr 515, 758 P2d 1046.
A school superintendent who installed a hidden video camera in a high
school principal's office to determine if someone was taking or reading
confidential documents was improperly convicted of violating Pen C § 632(a),
since the photographing for a purpose and in a manner which did not reveal
the content of any conversation was not an intentional act of recording a
"confidential communication" as those terms are used in § 632. The taking of
timed, still photographs of two or more people carrying on a confidential
conversation, without accompanying sound, does not constitute the recording
of a confidential communication under the statute. Nor does § 632 protect a
general right of privacy from unconsented videotaping. Such a right enforced
by penal sanctions is found in Pen C § 647(k). People v Drennan (2000, 3rd
Dist) 84 Cal App 4th 1349, 101 Cal Rptr 2d 584.
Workers' state law claims that the employer invaded their privacy by
surreptitiously videotaping restrooms through two-way mirrors in violation
of Cal. Penal Code §§ 653n, 647(k), 632(a), 635 were preempted by § 301 of
the Labor Management Relations Act, 29 U.S.C.S. § 185 because determining
whether their privacy rights had been violated required an interpretation
and application of the collective bargaining agreement (CBA). The civil tort
on which the workers proceeded turned on the existence of a reasonable
expectation of privacy; thus, the extent to which the CBA and the
relationship between the parties in the workplace allowed for surveillance
would inevitably inform the decision about how reasonable the employees'
expectations were. Cramer v Consol. Freightways, Inc. (2000, CA9 Cal) 209
F.3d 1122; 2000 U.S. App. LEXIS 7759; 164 L.R.R.M. 2129; 16 BNA IER CAS 321;
2000 Cal. Daily Op. Service 3184; 2000 Daily Journal DAR 4327.
2. Constitutionality
In the context of Pen Code, § 647, subd (d), relating to disorderly
conduct, to "account for" one's presence is not unconstitutionally vague. It
is to be given its lay meaning, namely, to furnish substantial reasons or a
convincing explanation of one's presence, and is, in substance, an integral
part of the identification required by the section. People v Weger (1967,
2nd Dist) 251 Cal App 2d 584, 59 Cal Rptr 661.
Pen Code, § 647, subd (f), penalizes the act of being in a public place
while under the influence of intoxicating liquor, defines the offense in
terms of acts rather than status, does not punish a person for being
intoxicated, does not punish a chronic alcoholic because of his alcoholism,
and is not unconstitutional as punishing an illness or penalizing the status
of an illness, or as imposing cruel and unusual punishment within the
meaning of US Const, 8th Amend. In re Spinks (1967, 4th Dist) 253 Cal App 2d
748, 61 Cal Rptr 743.
Pen Code, § 647, subd (a), proscribing lewd and dissolute conduct in a
public place, is not unconstitutionally vague as applied to entertainment
before an audience; in such cases the words "lewd and dissolute" refer to
that which is obscene under the contemporary standards test of Pen Code, §
311, subd (a), which test is applicable to live entertainment as well as to
fixed representations. Dixon v Municipal Court of San Francisco (1968, 1st
Dist) 267 Cal App 2d 789, 73 Cal Rptr 587.
Statute declaring that being in a public place while in a state of
intoxication is a misdemeanor is not unconstitutionally vague. Budd v
Madigan (1969, CA9 Cal) 418 F2d 1032.
The basic purpose of Pen Code, § 647, is to punish the crime of vagrancy
in its various overt aspects, and nothing in the legislative history of that
section indicates that it was intended to apply to activities, such as
theatrical performances, which are prima facie within the ambit of First
Amendment protection. Barrows v Municipal Court of Los Angeles Judicial
Dist. (1970) 1 Cal 3d 821, 83 Cal Rptr 819, 464 P2d 483.
No unconstitutional vagueness emanates from the use of the word "safety"
in the disorderly conduct statute (Pen Code, § 647) in reference to an
intoxicated person's ability to exercise care for himself or others, nor
from the fact that application of the term may rest in a large part on
opinion evidence; the word has a clear and understandable dictionary
definition and is widely and commonly used, as evidenced by reference to the
California Constitution and codes. Moreover, opinion evidence of the nature
involved is admissible under both decisional law and the evidence code,
provided the opinion is based upon the perception of the witness. In re G.
(1970, 5th Dist) 7 Cal App 3d 695, 87 Cal Rptr 25.
Prosecution under Pen Code, § 647, relating to disorderly conduct, did
not deny defendant due process of law, even though the introductory clause
of the statute making the acts described therein misdemeanors had, at the
time of defendant's arrest, been inadvertently deleted by legislative
action, assuming defendant knew of the deletion, he would still have
received adequate notice of the nature of the offense from the remaining
parts of the statute and from other material in the Penal Code relating,
inter alia, to the statute. People v Medina (1971, 2nd Dist) 15 Cal App 3d
845, 93 Cal Rptr 560.
Pen. Code, § 647, subd. (ff), providing for treatment of inebriates by
civil confinement rather than by criminal sanctions where appropriate
facilities are available does not violate the equal protection clause by
subjecting a person to criminal prosecution under Pen. Code, § 647, subd.
(f), or to treatment as a sick person depending solely on the place of the
offense. Since a person arrested for disorderly conduct for being in a
public place under the influence of intoxicating liquor has no fundamental
right to be treated in identically the same manner in each county, any
rational basis is sufficient to uphold the statute, which basis is found in
the state's interest in providing a more effective way to deal with
inebriates by allowing each county the option of experimenting with various
modes of treatment. People v Superior Court of Monterey County (1972, 1st
Dist) 29 Cal App 3d 397, 105 Cal Rptr 695.
Florida vagrancy statute proscribing behavior similar to that prohibited
by California Penal Code, § 647(e), was held void for vagueness.
Papachristou v City of Jacksonville (1972) 405 US 156, 31 L Ed 2d 110, 92 S
Ct 839.
Defendant charged with a simple violation of Pen. Code, § 647, subd. (f),
relating to public intoxication was not denied equal protection of the law
by the fact that the county in which the offense occurred does not operate a
detoxification center so as to entitle him to be treated civilly as a
patient under Pen. Code, § 647, subd. (ff), rather than criminally. There is
nothing in Welf. & Inst. Code, §§ 5170 et seq., relating to detention of
inebriates for evaluation and treatment or in Welf. & Inst. Code, §§ 5650 et
seq., providing for methods of financing county mental health services that
compels a county to establish a detoxification center, and there is nothing
arbitrary about the criteria employed by local authorities in determining
whether to establish such facilities; by consistent state policy, the
availability of facilities depends on the judgment of local authorities who,
presumably, are most familiar with local conditions. People v McNaught
(1973, 2nd Dist) 31 Cal App 3d 599, 107 Cal Rptr 566.
Pen. Code, § 647, subd. (e), declaring a street loiterer guilty of
disorderly conduct if he refuses to identify himself and account for his
presence on the request of a peace officer, "if the surrounding
circumstances are such as to indicate to a reasonable man that the public
safety demands such identification" is not unconstitutionally vague,
incriminatory, or arbitrary. The statutory standard for a peace officer's
exercise of the authority granted is comparable to that employed in
determining the validity of a temporary detention in the absence of statute,
and the section puts a person requested to identify himself on direct notice
as to what constitutes the unlawful conduct. The identification requirement
does not conflict with the privilege against self-incrimination, and,
properly construed, the requirement of accounting for presence is wholly
subordinate and adjunct to the identification requirement, and is operative
only to the extent it assists in producing credible and reliable
identification. Sufficient protection against arbitrary enforcement is
provided by the reasonable man test as to whether circumstances indicate
that public safety demands identification. People v Solomon (1973, 2nd Dist)
33 Cal App 3d 429, 108 Cal Rptr 867.
Notwithstanding testimony that many more females than males had been
arrested by a city's police for soliciting or engaging in prostitution in
violation of Pen. Code, § 647, subd. (b), a female minor failed to sustain
her defense, in juvenile court, that she had been the subject of intentional
and purposeful invidious discrimination where the evidence failed to show
that the police had embarked on a systematic program of intentional and
purposeful discriminatory enforcement of the statute against females, and it
appeared that the police actions constituted reasonable law enforcement
procedures. In re G. (1975, 3rd Dist) 53 Cal App 3d 725, 126 Cal Rptr 118.
Pen. Code, § 647, subd. (c), prohibiting one from accosting another in a
public place for the purpose of begging or soliciting for alms, is not
unconstitutionally vague or indefinite. The Legislative comments to the
statute make it clear that it is aimed at the conduct of an individual who
goes about on the streets accosting others for handouts, but does not extend
to one who merely sits or stands by the wayside. Thus, the manner of
approach is pertinent, and the statute forbids any approach in a public
place for the purpose of soliciting or begging for alms, and, therefore, the
meaning of the statute is thus sufficiently clear to give warning of the
conduct that is proscribed. Ulmer v Municipal Court for Oakland-Piedmont
Judicial Dist. (1976, 1st Dist) 55 Cal App 3d 263, 127 Cal Rptr 445.
The First Amendment to the Constitution of the United States, and art. I,
§ 9 of the California Constitution, protect the freedom of individuals to
speak, write, print, or disseminate information or opinion; regulation of
conduct bearing no necessary relationship to the freedom to speak, write,
print or distribute information or opinion does not abridge the guarantees
of the First Amendment. Accordingly, Pen. Code, § 647, subd. (c),
prohibiting one from accosting another in a public place for the purpose of
begging or soliciting for alms, is not invalid on First Amendment grounds,
since begging and soliciting for alms does not necessarily involve the
communication of information or opinion, and, therefore, approaching
individuals for that purpose is not protected by the First Amendment. Ulmer
v Municipal Court for Oakland-Piedmont Judicial Dist. (1976, 1st Dist) 55
Cal App 3d 263, 127 Cal Rptr 445.
Defendant, prosecuted for violation of Pen. Code, § 647, subd. (d)
(loitering near public toilet for purpose of soliciting a lewd, lascivious
or unlawful act), could not successfully argue that the words "lewd,"
"loiter," and "unlawful act" are unconstitutionally vague. "Loiter," as used
in the statute, means linger for the purpose of committing a crime; "lewd"
affords reasonably adequate disclosure of the legislative intent; and
"unlawful act" means under the doctrine of ejusdem generis and in the
context of the subdivision, a "lewd" act. People v Ledenbach (1976, App
Dep't Super Ct) 61 Cal App 3d Supp 7, 132 Cal Rptr 643.
The registration requirements of Pen. Code, § 290, as applied to one
convicted of lewd or dissolute conduct in public (Pen. Code, § 647, subd.
(a)), do not constitute cruel and unusual punishment as being out of all
proportion to the offense. People v Rodrigues (1976, App Dep't Super Ct) 63
Cal App 3d Supp 1, 133 Cal Rptr 765 (disapproved in part on other grounds by
Pryor v Municipal Court for Los Angeles Judicial Dist., 25 Cal 3d 238, 158
Cal Rptr 330, 599 P2d 636).
Pen. Code, § 647, subd. (b), insofar as it provides that every person who
"solicits" any act of prostitution is guilty of the misdemeanor of
disorderly conduct, is not so vague as to deny an accused due process of law
under the federal or California Constitutions; on the contrary, the
provision satisfies due process standards. People v Superior Court of
Alameda County (1977) 19 Cal 3d 338, 138 Cal Rptr 66, 562 P2d 1315.
Though Pen. Code, § 647, subd. (b), providing that "every person. . . who
solicits or engages in any act of prostitution" is guilty of the misdemeanor
of disorderly conduct is fair on its face and impartial in appearance, equal
protection may be denied if the statute is applied with an evil eye and an
unequal hand. People v Superior Court of Alameda County (1977) 19 Cal 3d
338, 138 Cal Rptr 66, 562 P2d 1315.
Pen. Code, § 637, subd. (ff), providing that persons intoxicated in a
public place in violation of Pen. Code, § 647, subd. (f), shall be placed in
civil protective custody and taken to a detoxification facility if the peace
officer is reasonably able to do so, and that no person so placed shall
thereafter be subject to criminal prosecution under the same facts, does not
deny equal protection to those who, when apprehended, cannot be accommodated
in the detoxification facility, since the program of civil protective
custody for inebriates is experimental and in the absence of a legislative
intent that a county which establishes such a facility must make it large
enough to accommodate all violators. Accordingly, persons arrested for
violation of Pen. Code, § 647, subd. (f), were properly prosecuted as
misdemeanants, where there was no space available for them at the civil
facility, where there was no singling out or discrimination against such
persons, nor the exercise of any choice of police or prosecutors as to the
place of confinement. Johnson v Municipal Court for Oakland-Piedmont
Judicial Dist. (1977, 1st Dist) 70 Cal App 3d 761, 139 Cal Rptr 152.
Punishment under Pen. Code, § 647, subd. (f), making it a misdemeanor to
be drunk in public in such a condition that one is unable to exercise care
for his or her own safety or that of others, did not constitute cruel and
unusual punishment proscribed by the Constitution as applied to a chronic
alcoholic who was not homeless. People v Ambellas (1978, App Dep't Super Ct)
85 Cal App 3d Supp 24, 149 Cal Rptr 680.
Pen. Code, § 647, subd. (a), declaring a person is guilty of disorderly
conduct who solicits anyone to engage in or who engages in lewd or dissolute
conduct in any public place, prohibits only the solicitation or commission
of conduct in a public place or one open to the public or exposed to public
view, which involves the touching of the genitals, buttocks, or female
breasts, for purposes of sexual arousal, gratification, annoyance or
offense, by a person who knows or should know of the presence of persons who
may be offended by the conduct. As so construed, the statute does not
abridge the right of freedom of speech and association, nor does it invade
the right to privacy or violate equal protection of the laws. Pryor v
Municipal Court for Los Angeles Judicial Dist. (1979) 25 Cal 3d 238, 158 Cal
Rptr 330, 599 P2d 636.
Pen. Code, § 647(e), California's vagrancy statute requiring a person to
provide reliable identification when requested by a police officer who had a
reasonable suspicion of criminal activity, violated the Fourth Amendment
proscription against unreasonable searches and seizures as well as the due
process clause because it impermissibly granted police virtually unfettered
discretion by providing no standards for determining whether a person is
engaged in suspicious loitering and by failing to specify what forms of
identification were sufficient to satisfy the statute. Lawson v Kolender
(1981, CA9 Cal) 658 F2d 1362, affd, remanded 461 US 352, 75 L Ed 2d 903, 103
S Ct 1855.
The requirement that persons convicted of soliciting to engage in, or
engaging in, lewd or dissolute conduct in any public place or any place
exposed to public view (Pen. Code, § 647, subd. (a)) register with the chief
of police of the city in which they reside (Pen. Code, § 290) imposes a
lifelong stigma on offenders that is out of all proportion to the crime, and
is therefore void under Cal. Const., art. I, § 17, as cruel and unusual
punishment. In re Reed (1983) 33 Cal 3d 914, 191 Cal Rptr 658, 663 P2d 216.
Pen Code § 647 subd (e), which requires persons who loiter or wander on
the streets to provide a credible and reliable identification and to account
for their presence when requested by a peace officer under circumstances
that would justify a valid stop, is unconstitutionally vague on its face
within the meaning of the due process clause of the Fourteenth Amendment
because it encourages arbitrary enforcement by failing to clarify what is
contemplated by the requirement that a suspect provide a credible and
reliable identification. (White and Rehnquist, JJ., dissenting). Kolender v
Lawson (1983) 461 US 352, 75, 75 L Ed 2d 903, 103 S Ct 1855.
On appeal of an action by four public inebriates and one taxpayer
challenging Pen. Code, § 647, subd. (f) (making public drunkenness a
disorderly conduct offense), plaintiffs' argument that the arrest and
incarceration of chronic alcoholics for the crime of public intoxication
lacks penological justification applied only to chronic alcoholics who could
not be deterred from violating § 647, subd. (f), and thus could not serve as
a basis for enjoining enforcement of the statute. The trial court was not
presented with any evidence that § 647, subd. (f), could not deter
nonalcoholics from appearing in public in a state of severe intoxication.
(By The Court.) Sundance v Municipal Court (1986) 42 Cal 3d 1101, 232 Cal
Rptr 814, 729 P2d 80.
In determining whether a sentence is so severe as to violate
constitutional prohibitions against cruel and unusual punishment, sentences
for violation of the same crime may not be cumulated. Thus, in an action by
four public inebriates and one taxpayer challenging Pen. Code, § 647, subd.
(f) (making public drunkenness a disorderly conduct offense), the trial
court properly found that the punishment of chronic alcoholics under § 647,
subd. (f), did not amount to excessive punishment in violation of the state
or federal Constitutions, where at the time of trial the average sentence
imposed for violation of the statute was 1.87 days. (By The Court.) Sundance
v Municipal Court (1986) 42 Cal 3d 1101, 232 Cal Rptr 814, 729 P2d 80.
Pen. Code, § 647, subd. (f), was not invalid on the ground that the
arrest, incarceration, prosecution, conviction, and sentencing practices
carried on under it by defendants (a city, a county, a municipal court, and
individual public officials) were arbitrary, capricious, and random in their
operation. The arbitrary enforcement claim of plaintiffs (four public
inebriates and a taxpayer) relied solely on a United States Supreme Court
case in which judgments of death were reversed, whereas three of the four
practices challenged by plaintiffs were pretrial procedures and the fourth
involved only a jail sentence, not the death penalty. (By The Court.)
Sundance v Municipal Court (1986) 42 Cal 3d 1101, 232 Cal Rptr 814, 729 P2d
80.
The state does not acquire the power to punish with which U.S. Const.,
8th Amend., is concerned until after it has secured a formal adjudication of
guilt in accordance with due process of law. Where the state seeks to impose
punishment without such an adjudication, the pretrial constitutional
guaranty is the due process clause of U.S. Const., 14th Amend. Thus, in an
action by four public inebriates and one taxpayer challenging Pen. Code, §
647, subd. (f) (making public drunkenness a disorderly conduct offense),
plaintiffs' contention that enforcement of § 647, subd. (f), violated
constitutional guaranties against cruel and unusual punishment in that
defendants' enforcement practices demonstrated deliberate indifference to
serious medical needs of prisoners was technically a due process challenge.
(By The Court.) Sundance v Municipal Court (1986) 42 Cal 3d 1101, 232 Cal
Rptr 814, 729 P2d 80.
To the extent that criminal prosecution of chronic alcoholics under Pen.
Code, § 647, subd. (f) (making public drunkenness a disorderly conduct
offense), has a dehabilitative effect, it does not constitute cruel and
unusual punishment. County jails, which serve primarily as detention
centers, are neither intended nor equipped to provide rehabilitative
services. Further, any alleged difference between chronic alcoholics and
other prisoners does not require that § 647, subd. (f), arrestees be
detained in civil detoxification facilities. (By The Court.) Sundance v
Municipal Court (1986) 42 Cal 3d 1101, 232 Cal Rptr 814, 729 P2d 80.
Pen. Code, § 647, subd. (d) (loitering about public toilet for lewd or
illicit purpose), is not unconstitutionally vague on the asserted ground it
fails to set forth sufficient guidelines for law enforcement and thereby
creates an unconstitutional risk of arbitrary and discriminatory
enforcement. Enforcement discretion is narrowed by limiting the statute's
reach to a defined geographical location in which loitering for the
proscribed purpose has historically been a problem, combined with a specific
intent requirement. A person is subject to arrest under the statute only if
his or her conduct gives rise to probable cause to believe that he or she is
loitering in or about a public restroom with the proscribed illicit intent.
People v Superior Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515,
758 P2d 1046.
Pen. Code, § 647, subd. (d), which prohibits loitering in or about a
public toilet for the purpose of engaging in or soliciting any lewd,
lascivious or unlawful act, provides sufficient notice of the proscribed
conduct to withstand constitutional due process challenge on vagueness
grounds. The terms "loiter," "public toilet," and "lewd and lascivious" are
not indefinite words. The statute prohibits lingering near a public toilet
with the specific intent to engage in illicit conduct involving the touching
of the genitals, buttocks, or female breast for sexual arousal,
gratification, annoyance or offense, if the actor knows or should know of
the presence of persons who may be offended by the conduct. People v
Superior Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d
1046.
Although an enactment's potential vagueness may be ameliorated by the
express enumeration of observable behavior which can serve to guide police
discretion, a loitering statute that fails to do so is not necessarily
unconstitutionally vague. Thus, although Pen. Code, § 647, subd. (d)
(loitering about public toilet for illicit purpose), fails to list actions
which, if observed, give rise to a legitimate inference of the prohibited
intent, it nevertheless provides sufficient guidance to police by requiring
the loitering be done with a specific intent and within a designated area.
Thus, it is not unconstitutionally vague. People v Superior Court (Caswell)
(1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.
Pen. Code, § 647, subd. (d), (loitering about public toilet for illicit
purpose), does not violate the constitutional command that all laws of a
general nature have a uniform operation (Cal. Const., art. IV, § 16), on the
asserted ground that some cases will not be prosecuted where the identical
conduct in another part of the state will result in prosecution. The terms
"loiter" and "lewd intent" are sufficiently clear to avoid any problems
under the uniform operation of law provision. People v Superior Court
(Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.
Showing a specific intent on the part of law enforcement to punish
defendant for membership in a particular class was not necessary to
establish discriminatory prosecution for Cal. Penal Code § 647(a). Baluyut v
Superior Court (1996) 12 Cal 4th 826, 50 Cal Rptr 2d 101, 911 P2d 1.
The trial court erred in dismissing a misdemeanor complaint charging
defendant with violating Pen. Code, § 647, subd. (c) (accosting persons in
any public place for purpose of begging or soliciting alms), on the ground
that the statute was unconstitutional. The statute does not violate the
equal protection clause of U.S. Const., 14th Amend. Charitable appeals
involve a variety of speech interests, while the object of begging is the
transfer of money. Thus, for purpose of protection under U.S. Const., 1st
Amend., charitable solicitations are distinguishable from begging. Since
begging is not constitutionally protected activity, the statute does not
impinge on a fundamental right. Thus, the rational relationship test
applies, and the classification is valid if it bears a rational relationship
to a legitimate state purpose. Pen. Code, § 647, subd. (c), bears a rational
relationship to the state's legitimate interest in protecting its citizens
from intimidation, harassment, and other improprieties which may accompany
the accosting of persons in a public place. People v Zimmerman (1993, App
Dep't Super Ct) 15 Cal App 4th Supp 7, 19 Cal Rptr 2d 486.
3. Preemption of Local Acts
State has adopted general scheme for regulation of criminal aspects of
sexual activity and determined, to exclusion of local regulation, when
sexual intercourse between persons not married to each other shall be
criminal. In re Lane (1962) 58 Cal 2d 99, 22 Cal Rptr 857, 372 P2d 897.
State has adopted general scheme for regulation of criminal aspects of
sexual activity and has determined, to exclusion of local regulation, what
acts of exposure and exhibition shall be criminal. In re Moss (1962) 58 Cal
2d 117, 23 Cal Rptr 361, 373 P2d 425.
City ordinance attempting to make certain acts of indecent exposure and
obscene exhibition criminal is in conflict with State law and is void. In re
Moss (1962) 58 Cal 2d 117, 23 Cal Rptr 361, 373 P2d 425.
Legislature, by means of § 311, relating to indecent exposures, writings,
and like, § 650 1/2, making it misdemeanor for person to wilfully and
wrongfully commit any act that openly outrages public decency, and subd 5 of
this section, has occupied field with regard to criminal aspects of obscene
exhibitions and municipal ordinance making it unlawful for any person to
hold or carry on, or permit to be held or carried on, any motion picture
exhibition, or entertainment of any sort that is offensive to decency, or
which excites vicious or lewd thoughts or acts, or which is lewd or obscene
or vulgar, or so suggestive as to be offensive to moral sense, is in
conflict with State law and is void. Whitney v Municipal Court of San
Francisco (1962) 58 Cal 2d 907, 27 Cal Rptr 16, 377 P2d 80.
State has adopted general scheme and has preempted field for regulation
of criminal aspects of being intoxicated in public place by enactment of
subd (f), which makes it misdemeanor to be intoxicated in public place under
certain circumstances and provides uniform, definite standard for police
control of public drunk who is nuisance to others and danger to himself.
Thus, city ordinance attempting to make certain acts pertaining to
intoxication in public place criminal is in conflict with subd (f), and is
void. In re Koehne (1963) 59 Cal 2d 646, 30 Cal Rptr 809, 381 P2d 633.
Language of subd (f) shows that state has occupied field and adopted
general scheme for regulation of criminal aspects of being intoxicated in
public place. In re Zorn (1963) 59 Cal 2d 650, 30 Cal Rptr 811, 381 P2d 635.
State has adopted general scheme and has occupied field for the
regulation of criminal aspects of being intoxicated in public place as is
shown by language of subd (f). People v Lopez (1963) 60 Cal 2d 223, 32 Cal
Rptr 424, 384 P2d 16.
City loitering ordinance relating to tunnels, pedestrian subways, and
bridge overpasses is not invalid as being in conflict with this section, and
§ 647a subd (2); lack of extended body of state legislation on subject
indicates legislature did not intend to preempt field, and local ordinances
may supplement state legislation with respect to problems not common to
state in general, but more peculiar to centers of population in which
pedestrian tunnels and subways are provided for school children and others.
Gleason v Municipal Court for Los Angeles Judicial Dist. (1964, 2nd Dist)
226 Cal App 2d 584, 38 Cal Rptr 226.
From numerous legislative enactments regulating the criminal aspects of
intoxication, and particularly in view of subd (f), taken with circumstances
of its enactment and decisions of Supreme Court, it is clear that the
legislature has determined by implication that it intended to preempt field
for regulation of criminal aspects of being intoxicated, both in public and
private places. People v De Young (1964, 2nd Dist) 228 Cal App 2d 331, 39
Cal Rptr 487.
Municipal ordinance providing that no person shall be on any public
street or in any public place in state or drunkenness or intoxication to
annoyance of any other person is invalid as constituting legislation in
field preempted by state law. People v De Young (1964, 2nd Dist) 228 Cal App
2d 331, 39 Cal Rptr 487.
The Court of Appeal reversed misdemeanor convictions of seven "lap
dancers" and two "theater managers," as aiders and abettors, for alleged
local ordinance violations and prostitution under Penal C § 647. Although
cities may require adult theaters to obtain permits or licenses and regulate
the time, place, and manner for the conduct of adult businesses, including
the hours of operation, noise, and parking, and can revoke permits for
noncompliance or prosecute for operating without one, they can not punish
alleged violations directly as sex crimes without express legislative
authority. Gov C § 36900 has never been cited as authority for an express
statutory waiver of state preemption in the field of sex crimes. To the
contrary, Gov C § 36901 authorizes municipalities to impose penalties by
fine or imprisonment for violations of ordinances, while Gov C § 37100
prohibits them from enacting ordinances that conflict with state law.
Further, nothing on the face of Gov C § 65850 suggests a legislative purpose
to allow localities to depart from the well-established rule that state law
has preempted use of criminal sanctions to deal with unwelcome sexual
activity. People v Janini (1999, 4th Dist) 75 Cal App 4th 347, 352, 89 Cal
Rptr 2d 244.
4. Construction, Generally
The fact that Pen. Code, § 290, requires registration of persons
convicted of sexual offenses including those found guilty of lewd and
dissolute conduct in a public place (Pen. Code, § 647, subd. (a)), does not
indicate a legislative intent that § 647, subd. (a), shall not apply to
performances wherein the participants exhibit or communicate ideas or
impressions to an audience; whether § 290 is applicable to a performer
convicted on evidence of a simulated act, as well as to a person actually
committing a sexual offense, may be decided only on a direct challenge by a
performer so convicted. Dixon v Municipal Court of San Francisco (1968, 1st
Dist) 267 Cal App 2d 789, 73 Cal Rptr 587.
The holding in Barrows v Municipal Court, 1 Cal 3d 821[83 Cal Rptr 819,
464 P2d 483] that Pen Code, §§ 647 subd (a), 311.6, do not apply to live
theatrical performances, i.e., stage productions, did not preclude
prosecution of bottomless dancing in a bar as an occurrance of indecent
exposure proscribed by Pen Code, § 314, even though the dances in question
fell within the category of live theatrical performances; in addition to
other distinctions in the statutes involved, the wording of subd 2 of Pen
Code, § 314, makes it clear that the Legislature intended to make the
statute applicable to exhibitions on stage whether "model artist" exhibits
or some other kind. People v Newton (1970, App Dep't Super Ct) 9 Cal App 3d
Supp 24, 88 Cal Rptr 343.
Pen Code, § 647, relating to disorderly conduct stated a valid offense
even though there had been an inadvertent legislative deletion of the
introductory clause of the statute declaring acts set forth therein to be
misdemeanors, where the intent of the legislature to punish the prohibited
conduct was clear; under such circumstances, words inadvertently omitted
from a statute may be supplied in the process of construction in order to
effectuate the legislative intent. People v Medina (1971, 2nd Dist) 15 Cal
App 3d 845, 93 Cal Rptr 560.
Defendants convicted of oral copulation and conspiracy to commit that act
could not successfully assert that oral copulation is merely a method of
expression and is a form of speech protected by the First Amendment. The
act, performed as a part of a public performance was purely and simply an
obscene act performed for the purpose of inciting the sexual desires and
imaginations of a group of randy patrons, and the rule exempting theatrical
performances from the operation of Pen. Code, § 647, subd. (a), proscribing
lewd or dissolute conduct in public places may not be construed as
permitting acts which are independently prohibited by law to be consumated
without sanction on the stage merely because they occur during the course of
a theatrical play. People v Drolet (1973, 1st Dist) 30 Cal App 3d 207, 105
Cal Rptr 824.
For conduct to constitute indecent exposure (Pen. Code, § 314, subd. 1),
just as for conduct to constitute lewd or dissolute conduct (Pen. Code, §
647, subd. (a)), sexual motivation is a prime requisite. People v
Swearington (1977, 2nd Dist) 71 Cal App 3d 935, 140 Cal Rptr 5.
In a prosecution of defendant for felony indecent exposure arising out of
defendant exposing himself to a female door-to-door sales representative he
had requested to come to his home, there was no error in the trial court's
failure to instruct, sua sponte, on the offense of lewd and disorderly
conduct (Pen. Code, § 647, subd. (a)) as a necessarily included lesser
offense to indecent exposure. While all violations of the lewd and
disorderly conduct offense must occur in any public place or any place open
to public view, a violation of indecent exposure statute may occur in any
place in which there are present other persons to be offended, and a
violation of Pen. Code, § 647, subd. (a), is therefore not a necessarily
included offense to Pen. Code, § 314, subd. 1. People v Tolliver (1980, 3rd
Dist) 108 Cal App 3d 171, 166 Cal Rptr 328.
In a prosecution for loitering 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, the trial court erred in sustaining a demurrer to the charge
on the basis that the term "in or about" was vague, in the absence of any
facts as to where defendant was at the time of the alleged violation. It was
incumbent on defendant to provide the actual circumstances or place of his
alleged activities, and if his activities were in a public toilet, he could
not be heard to complain that the statute is vague as applied to him. People
v P. (1980, App Dep't Super Ct) 115 Cal App 3d Supp 12, 170 Cal Rptr 478.
The phrase "or any unlawful act," as used in Pen. Code, § 647, subd. (d),
which prohibits loitering in or about a public toilet for the purpose of
engaging in or soliciting any lewd, lascivious or unlawful act, is
synonymous with a "lewd" act. People v Superior Court (Caswell) (1988) 46
Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.
The crime of prostitution (Pen. Code, § 647, subd. (b)) does not require
for its completion that payment be made to the person actually providing
sexual favors. People v Bell (1988, 2nd Dist) 201 Cal App 3d 1396, 248 Cal
Rptr 57.
5. Public Place
By specifically prohibiting in subd (a) "lewd or dissolute conduct in any
public place or in any place open to public or exposed to public view," and
prohibiting in subd (c) begging in "any public place or in any place open to
the public," and then in subd (f) prohibiting intoxication only in "public
place," legislature has by implication provided that intoxication in place
which is not public place but is exposed to public view should not be
criminal. In re Koehne (1963) 59 Cal 2d 646, 30 Cal Rptr 809, 381 P2d 633.
Barbershop is "public place" within meaning of subd (f). In re Zorn
(1963) 59 Cal 2d 650, 30 Cal Rptr 811, 381 P2d 635.
By use of words "private property" in subd (g), and "public or private"
in subd (h), these words were, by implication, purposely omitted by
legislature from subd (f) with results that legislature has seen fit to
adopt general scheme for regulation of criminal intoxication, and that
intoxication only in any public place is criminal. People v De Young (1964,
2nd Dist) 228 Cal App 2d 331, 39 Cal Rptr 487.
A person sitting in an automobile on the street and in an intoxicated
condition unable to exercise care for the safety of others or self is in a
public place as contemplated by Pen. Code, § 647, subd. (f), and it is
immaterial whether he is exposed to public view or whether his conduct
interferes with or obstructs or prevents the free use of the street,
sidewalk or other public way. People v Belanger (1966, 2nd Dist) 243 Cal App
2d 654, 52 Cal Rptr 660.
Pen. Code, § 647, subd (a), proscribing lewd and dissolute conduct in a
public place, applies to performances within a theatre which patrons must
pay to enter, provided the tests for obscenity (Pen. Code, § 311, subd (a)),
are met. Dixon v Municipal Court of San Francisco (1968, 1st Dist) 267 Cal
App 2d 789, 73 Cal Rptr 587.
The front area outside of a person's house was a public place within the
meaning of Pen Code, § 647, subd (f), where the area was open to common or
general use so that a complete stranger was able to walk through the outside
area to the front door of the home without challenge. People v Olson (1971,
2nd Dist) 18 Cal App 3d 592, 96 Cal Rptr 132.
The hallway of an apartment is a "public place," within the contemplation
of Pen. Code, § 647, subd. (f), which proscribes being under the influence
of intoxicating liquor or any drug in a "public place" in such condition
that accused is unable to exercise care for his own safety or the safety of
others. A "public place", within the meaning of the subdivision is any
location readily accessible to all those who wish to go there. Thus, the
trial court improperly dismissed a prosecution for possession of heroin in
violation of Health & Saf. Code, § 11350, following improper grant of a
motion to suppress evidence, where police officers had searched defendant
and seized the evidence, after placing defendant under arrest in the hallway
of an apartment building in which his estranged wife lived, for being drunk
in a public place in violation of Pen. Code, § 647, subd. (f). People v
Perez (1976, 2nd Dist) 64 Cal App 3d 297, 134 Cal Rptr 338.
In a prosecution for soliciting an act of prostitution under Pen. Code, §
647, subd. (a), it was not necessary that there be proof that the lewd act
of oral copulation for pay was to be performed in a public place. Under the
statute, the "public solicitation of lewd and dissolute conduct" satisfies
the "public place" requirement, and it is irrelevant where the solicited
acts are to be performed. People v Norris (1978, App Dep't Super Ct) 88 Cal
App 3d Supp 32, 152 Cal Rptr 134.
A closed room made available to different members of the public at
successive intervals is not a place open to the public within the meaning of
Pen. Code, § 647, subd. (a), declaring that a person is guilty of disorderly
conduct who solicits anyone to engage in or who engages in lewd or dissolute
conduct in any public place or in any place open to the public or exposed to
the public view. (Disapproving In re Steinke (1969) 2 Cal.App.3d 569[82
Cal.Rptr. 789], to the extent it is inconsistent.) Pryor v Municipal Court
for Los Angeles Judicial Dist. (1979) 25 Cal 3d 238, 158 Cal Rptr 330, 599
P2d 636.
The trial court's finding in a Welf. & Inst. Code, § 602, proceeding
against a juvenile that the juvenile violated the statute specifying the
offense involving drug-induced disorderly conduct in a public place (Pen.
Code, § 647, subd. (f)) was error in that the finding resulted from police
officers' observation of the juvenile while under the influence of drugs and
unable to care for the safety of himself and others at a time when he was in
the bedroom of his own home, and in that the bedroom was manifestly not a
public place. Although the police took him by police car to a hospital, his
presence on the public sidewalk outside his house, in the car, or in the
hospital did not support the court's finding, in that his presence in those
places was not voluntary, since he was taken to those places while
handcuffed and apparently resisting the officers transporting him. However,
the finding was not reversible error, since the judgment ordering the
juvenile's confinement on probation was also based on a finding the juvenile
was guilty of the more serious offense of sale of marijuana, and since the
court did not accumulate the offenses for purposes of declaring the maximum
period of confinement. In re W. (1981, 2nd Dist) 116 Cal App 3d 689, 172 Cal
Rptr 266.
The evidence did not support defendant's conviction of unlawful public
intoxication in violation of Pen. Code, § 647, subd. (f), since defendant's
front yard, where he was arrested, was not a "public place" within the
meaning of the statute. Whether a particular location is a public place
depends upon the facts of the individual case. At the time the arresting
officer, who was responding to a report that someone was in a gray van
screaming and trying to escape, reached defendant's residence, defendant was
on his front porch. His yard was surrounded by a three-and-a-half-foot-high
fence with a gate that was unlocked. The gate was not standing open; the
arresting officer opened it, whereupon defendant released three dogs into
the yard, which acted as an effective if unintentional deterrent to the
officer. A "public place" means "common to all or many; general; open to
common use." The fence, gate, and dogs all provided challenge to public
access. People v White (1991, 5th Dist) 227 Cal App 3d 886, 278 Cal Rptr 48.
An individual found drunk in his or her automobile parked at the curb of
a public street is in "a public place" within the meaning of Pen. Code, §
647 (public intoxication). People v Lively (1992, 6th Dist) 10 Cal App 4th
1364, 13 Cal Rptr 2d 368.
Due process protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime
with which he or she is charged. It requires the state to prove every
ingredient of an offense beyond a reasonable doubt. This rule applies no
matter how compelling the People's evidence may be. Even if the
prosecution's evidence appears to establish all of the elements of an
offense or sentence enhancement as a matter of law, it is nevertheless error
to give an instruction which removes determination of the offense or
enhancement from the province of the jury. People v Jimenez (1995, 2nd Dist)
33 Cal App 4th 54, 39 Cal Rptr 2d 12.
Cal. Penal Code § 647e, which authorizes local governments to enact
ordinances prohibiting the possession of opened containers of alcohol
beverages on specified premises, uses the definition of public place found
in § 647(c). In re Danny H. (2002, 2nd Dist) 104 Cal App 4th 92, 128 Cal
Rptr 2d 222.
Cal. Penal Code § 653k, which prohibits the possession of switchblade
knives, uses the definition of "public place" found in Cal. Penal Code §
647(c). In re Danny H. (2002, 2nd Dist) 104 Cal App 4th 92, 128 Cal Rptr 2d
222.
6. Solicitation; Prostitution
Though substantive offense of prostitution requires action by two
persons, there may be conspiracy to commit prostitution where one of actors
joins with third persons on his side of transaction in their criminal
association with keepers of house of prostitution. People v Lewis (1963, 1st
Dist) 214 Cal App 2d 799, 29 Cal Rptr 825.
There was ample evidence to prove conspiracy to commit prostitution where
defendant met informant at bar and gave him telephone numbers and address
and invited him to telephone at any time he wanted girl, where, in response
to informant's telephone request for girls, informant and three men were
introduced to three women, and where sheriff's deputies overheard their
haggling about money and, when deputies were admitted, they found two marked
bills in possession of woman who had telephoned for girls. People v Lewis
(1963, 1st Dist) 214 Cal App 2d 799, 29 Cal Rptr 825.
There were sufficient facts brought out at a preliminary hearing to make
out a charge of conspiracy between the operator of a telephone answering
service and a prostitute to commit prostitution where it was shown that the
operator promised to introduce a supposed prostitute to someone who would
give her lots of business, and later made good her promise by putting the
supposed prostitute in touch with a known prostitute, and that detailed
arrangements for the splitting of business, division of fees, and for
specific deals were thereafter discussed by the supposed prostitute and the
known prostitute. People v Roy (1967, 2nd Dist) 251 Cal App 2d 459, 59 Cal
Rptr 636.
In a prosecution for conspiracy to commit prostitution, to establish the
element of agreement the prosecution need show no more than a tacit, mutual
understanding between coconspirators to accomplish an unlawful act. People v
Lauria (1967, 2nd Dist) 251 Cal App 2d 471, 59 Cal Rptr 628.
A woman could not properly be charged with the felony of conspiracy to
commit prostitution on the basis of her having been procured by her alleged
pimp for the purpose of an act of prostitution with another. The Legislature
has provided under Pen. Code, § 647, relating to disorderly conduct, a
misdemeanor, for a lesser penalty for prostitution than for pimping and
pandering, felonies under Pen. Code, §§ 266h, 266i, and it would defeat that
legislative classification to permit a prostitute to be charged with
conspiracy in a case in which the alleged co-conspirator is either a pimp or
panderer. Williams v Superior Court of San Mateo County (1973, 1st Dist) 30
Cal App 3d 8, 106 Cal Rptr 89.
A juvenile court's finding that a minor girl had solicited an act of
prostitution in violation of Pen. Code, § 647, subd. (b), was sustained by
evidence that on the way to a motel room with a man, she indicated that she
would discuss her price for the evening later, that when they arrived there,
she declared that the price would depend on what the man wanted, and by
further evidence that she admitted to past acts of prostitution and had
intended to "turn a trick" that evening. In re G. (1975, 3rd Dist) 53 Cal
App 3d 725, 126 Cal Rptr 118.
The words "every person. . . who solicits. . . any act of prostitution,"
in Pen. Code, § 647, subd. (b), defining such conduct as disorderly conduct,
are clear and unambiguous. Thus, the ordinary meaning of the statute is that
all persons, customers as well as prostitutes, who solicit an act of
prostitution are guilty of disorderly conduct. and it gives fair notice to
customers that they are included within its ambit. Leffel v Municipal Court
for Fresno County (1976, 5th Dist) 54 Cal App 3d 569, 126 Cal Rptr 773.
Within the meaning of Pen. Code, § 647, subd. (b), providing that every
person who "solicits" any act of prostitution is guilty of the misdemeanor
of disorderly conduct, merely waving to a passing vehicle, nodding to a
passing stranger, or standing on a street corner in a miniskirt should not
be deemed a violation of the statute; on the other hand, the concept of
"soliciting" is not limited to offers specifying price and services, or even
to verbal offers. People v Superior Court of Alameda County (1977) 19 Cal 3d
338, 138 Cal Rptr 66, 562 P2d 1315.
Prostitution is defined as any lewd act between persons for money or
other consideration. People v Grow (1978, 1st Dist) 84 Cal App 3d 310, 148
Cal Rptr 648.
In a prosecution for soliciting an act of prostitution under Pen. Code, §
647 subd. (b), it was unnecessary that the testimony of a police officer
that defendant engaged in such solicitation be corroborated. People v Norris
(1978, App Dep't Super Ct) 88 Cal App 3d Supp 32, 152 Cal Rptr 134.
Solicitation of an act of prostitution in violation of Pen. Code, § 647
subd. (b) is a specific intent crime, and the specific intent involved is to
engage in prostitution. People v Norris (1978, App Dep't Super Ct) 88 Cal
App 3d Supp 32, 152 Cal Rptr 134.
A defendant was properly convicted of soliciting or engaging in an act of
prostitution in violation of Pen. Code, § 647, subd. (b), without proof that
the offense occurred in a public place or one open to the public or exposed
to public view. Pen. Code, § 647, subd. (b), prohibits solicitation or
engaging in an act of prostitution, which includes any lewd act between
persons for money or other consideration, and is not limited by reference to
public place or view, as is Pen. Code, § 647, subd. (a), which serves the
purpose of protecting onlookers who might be offended by the proscribed
conduct. People v Fitzgerald (1979, App Dep't Super Ct) 106 Cal App 3d Supp
1, 165 Cal Rptr 271.
The conduct prohibited by Pen. Code, § 647, subd. (b) (prostitution and
solicitation of an act of prostitution), can all take place in a private
place and still constitute a violation. There is no limiting language of
being in a "public place or in any place open to the public or exposed to
public view" as there is in Pen. Code, § 647, subd. (a) (lewd conduct).
Moreover, the requirement (for lewd conduct) that the actor knew or should
know of the presence of persons who may be offended by his conduct, is not
applicable in prosecutions for prostitution or solicitation of an act of
prostitution. People v Love (1980, App Dep't Super Ct) 111 Cal App 3d Supp
1, 168 Cal Rptr 591.
In a prosecution on two separate counts of solicitation of an act of
prostitution, the trial court erred in instructing the jury that the
specific intent required for solicitation for an act of prostitution is "to
communicate to another an offer of sex for money or other consideration,"
and in then telling the jury, in effect, that it did not matter what the
actual intent of the speaker was at the time the words were spoken. The
specific intent necessary in the crime of solicitation of an act of
prostitution in violation of Pen. Code, § 647, subd. (b), is to engage in
prostitution, and a defendant is not guilty of the offense unless he or she
seriously intends to carry through by performing an act of prostitution.
People v Love (1980, App Dep't Super Ct) 111 Cal App 3d Supp 1, 168 Cal Rptr
591.
In a prosecution on two separate counts of solicitation of an act of
prostitution, the trial court erred in admitting the People's rebuttal
evidence of a prior uncharged act of solicitation, even though the court
instructed the jury that such evidence could only be considered on the
issues of identity, motive, intent, or a characteristic method, plan or
scheme. While the court correctly recognized the limited admissibility of
other crimes evidence, the identity of the perpetrator of the charged crimes
was not then an issue in the case. Motive is not an element of the crime
charged and the prior solicitation did not tend to prove motive to commit
the charged crimes other than to establish that defendant was a prostitute
by profession, which is character trait evidence prohibited by Evid. Code, §
1101, subd. (a). The words of solicitation of sex for money used by
defendant, according to the testimony of police officers, left no doubt as
to the specific intent of the speaker, and defendant simply denied having
spoken them. Finally, the only evidence of similarity of method, plan or
scheme was that one of the charged offenses occurred in the same area of the
city as the uncharged incident and thus no striking similarity was shown.
People v Love (1980, App Dep't Super Ct) 111 Cal App 3d Supp 1, 168 Cal Rptr
591.
Defendant's conduct of providing, at the theater he managed and owned,
on-stage sexual performances involving the participation of employees and
paying customers, constituted pimping (Pen. Code, § 266h) and pandering
(Pen. Code, § 266i) inasmuch as the on-stage activity constituted
"prostitution" under Pen. Code, § 647, subd. (b), and as that term is used
in Pen. Code, §§ 266h, 266i. People v Maita (1984, 1st Dist) 157 Cal App 3d
309, 203 Cal Rptr 685.
Defendant was improperly convicted of agreeing to engage in an act of
prostitution under Pen. Code, § 647, subd. (b), where she committed no act
in furtherance of the agreement as required by the statute in order for
there to be a violation. The plain meaning of the statutory language, the
legislative history of the amendment prohibiting agreement to engage in an
act of prostitution, and the established interpretation of similar language
contained in the conspiracy provisions of Pen. Code, § 184, all indicate
that the act must happen after the agreement was reached. Here, the only act
relied on by the prosecution was defendants' act of entering a cab with an
undercover policeman, which occurred before any agreement was reached for an
act of prostitution. People v Davis (1988, App Dep't Super Ct) 201 Cal App
3d Supp 1, 247 Cal Rptr 359.
The Legislature amended Pen. Code, § 647, subd. (b), which previously
prohibited only solicitation or engaging in an act of prostitution, to also
prohibit agreement to engage in an act of prostitution, in order to avoid
the difficulty of proving solicitation on the part of sophisticated
prostitutes. People v Davis (1988, App Dep't Super Ct) 201 Cal App 3d Supp
1, 247 Cal Rptr 359.
As amended in 1986, Pen. Code, § 647, subd. (b), prohibiting agreements
to engage in an act of prostitution, requires that the act done "in
furtherance of the commission of an act of prostitution by the person
agreeing to engage in that act" must happen after the agreement is reached.
Thus, in a prosecution under § 647, subd. (b), the trial court erred in
finding defendant guilty pursuant to a misinterpretation that found the
statute did not require the act to be done in furtherance of the agreement.
The only act relied upon by the prosecution was defendant's act of entering
a car containing undercover police officers, which act was done before any
agreement was reached with one of the officers for an act of prostitution.
Acts committed before final agreement as to the price or the nature of the
lewd act may not give rise to prosecution. People v Davis (1988, App Dep't
Super Ct) 203 Cal App 3d Supp 16.
The juvenile court did not err when it sustained a petition charging a
juvenile with solicitation of prostitution and declaring her to be a ward of
the court. Penal C § 647 includes language to the effect that no agreement
to engage in an act of prostitution is a violation of the section unless
some act, in addition to the agreement, is done in furtherance of the
commission of an act of prostitution by the person agreeing to engage in
that act. Contrary to the juvenile's contention that there was insufficient
evidence to find an agreement to engage in an act of prostitution under §
647(b) because she grabbed the arresting officer's crotch prior to there
being an agreement for her to commit an act of prostitution, the legislative
history of the amended statute, combined with the purpose behind that
legislation, led to a different conclusion. The overt-act requirement exists
to provide conspirators an opportunity to reconsider and terminate their
agreement and therefore avoid punishment. It is not necessary to impose the
additional requirement that the clarifying or corroborative act must occur
after the agreement was made. Such an interpretation would produce the
absurd result of making the offense of agreeing to an act of prostitution
coextensive with the previously existing crime of conspiracy. In re Cheri T.
(1999, 2nd Dist) 70 Cal App 4th 1400, 83 Cal Rptr 2d 397, 1405, 1407.
In a prosecution against the managers of a strip club, the trial court
erred in refusing to set aside an information charging them with pimping and
pandering (Pen C §§ 266h, 266i), where the evidence showed the women
sexually touched only each other and not the customer; however, a lewd act,
an element of "prostitution" (Pen C § 647), required physical contact
between the prostitute and the customer. Since there was insufficient
evidence of prostitution, there was also insufficient evidence of either
pimping or pandering. Wooten v Superior Court (2001, 4th Dist) 93 Cal App
4th 422, 113 Cal Rptr 2d 195.
7. Loitering; Wandering; Prowling
"Loitering" as used in criminal statute has sinister connotation that
includes waiting but excludes notion of waiting for lawful purpose;
similarly, wandering as prohibited under subd (e) consists of movement for
evil purposes. People v Bruno (1962, App Dep't Super Ct) 211 Cal App 2d Supp
855, 27 Cal Rptr 458.
To produce conviction under subd (e) prosecution must prove that accused
was loitering or wandering without apparent reason or business; that, though
requested by officer, he refused to identify himself and account for his
presence; and that public safety considerations reasonably indicated
necessity for defendant's identification. People v Bruno (1962, App Dep't
Super Ct) 211 Cal App 2d Supp 855, 27 Cal Rptr 458.
There was substantial evidence to sustain court's findings that
defendant's presence in certain neighborhood constituted conduct within
meaning of subd (e), where officer had received report of male prowler and
saw isolated male pedestrian who was defendant walking in dark along street
in neighborhood five blocks away from reported prowling incident, and where
inconsistencies and contradictions characterized defendant's statements to
officer and his testimony in court. People v Bruno (1962, App Dep't Super
Ct) 211 Cal App 2d Supp 855, 27 Cal Rptr 458.
Pen Code, § 647, subd (e), providing the circumstances under which
loitering may constitute disorderly conduct, is not unconstitutionally vague
and uncertain, nor does it fail to establish clearly defined standards of
guilt such as to deprive a violator of due process of law. People v Weger
(1967, 2nd Dist) 251 Cal App 2d 584, 59 Cal Rptr 661.
If a person chooses to remain silent and refuses to identify himself to a
peace officer in violation of Pen Code, § 647, subd (e), relating to
disorderly conduct, such silence is mere nonassertive conduct, and therefor
falls outside the ambit of US Const, 5th Amend, both as to
self-incrimination and to invasion of personal privacy. People v Weger
(1967, 2nd Dist) 251 Cal App 2d 584, 59 Cal Rptr 661.
The words "loiter," and "wander," taken by themselves and in their broad
meaning, may carry no criminal implications, but as employed in a penal
statute and considered in such statutory context, may have a sinister,
wrongful or criminal import. People v Weger (1967, 2nd Dist) 251 Cal App 2d
584, 59 Cal Rptr 661.
Pen. Code, § 647, subd. (e), relating to disorderly conduct, does not
make loitering and wandering upon the streets or from place to place without
apparent reason or business, without more, a punishable offense. The words
"loitering" and "wandering," as used in the statute, do not connote unlawful
activity, but merely describe the person who may be asked by a peace officer
to identify himself and to account for his presence in the prescribed
circumstances, and are not so vague that men of common intelligence must
necessarily guess at their meaning and differ as to their application.
People v Weger (1967, 2nd Dist) 251 Cal App 2d 584, 59 Cal Rptr 661.
The offenses of attempted burglary (Pen. Code, §§ 459, 663), disorderly
conduct (Pen. Code, § 647, subd. (g)), trespass (Pen. Code, § 602), and
assault and battery (Pen. Code, §§ 240, 242) were shown to have been
committed in the presence of a citizen who arrested the suspect, where the
arresting citizen saw the suspect looking through the window of an apartment
on premises upon which he had no visible or lawful business, where the
suspect attempted to flee when the arresting citizen approached him, where
his conduct when queried as to his presence on the premises was equivocal,
where he was wearing gloves, where he again attempted to flee when told that
the police would be called, and where, after the arrest was effected, the
suspect struck the citizen on the chest and arms. People v Garcia (1969, 1st
Dist) 274 Cal App 2d 100, 78 Cal Rptr 775.
The word "loitering" as used in a criminal statute has a sinister or
wrongful as well as a reasonable definite implication; as proscribed by such
a statute, it connotes lingering in the designated places for the purpose of
committing a crime as opportunity may be discovered, and excludes the notion
of waiting for a lawful purpose. People v Caylor (1970, 2nd Dist) 6 Cal App
3d 51, 85 Cal Rptr 497.
As prohibited by the antiloitering statute, "wandering" consists of
movement for evil purposes. People v Caylor (1970, 2nd Dist) 6 Cal App 3d
51, 85 Cal Rptr 497.
To sustain a conviction under Pen. Code, § 647, subd. (e), the
prosecution must establish: (a) that the accused was loitering or wandering
without apparent reason or business; (b) that, although requested by an
officer, he refused to identify himself and account for his presence, and
(c) that public safety considerations reasonably indicated a necessity for
the defendant's identification. People v Caylor (1970, 2nd Dist) 6 Cal App
3d 51, 85 Cal Rptr 497.
Mere presence on a street during prohibited hours cannot constitute
"loitering" within the meaning of penal statutes or police regulations.
People v McKelvy (1972, 4th Dist) 23 Cal App 3d 1027, 100 Cal Rptr 661.
In a prosecution for loitering 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, the trial court erred in sustaining a demurrer to the charge
on the basis that the term "loiter" was vague. The term, as used in the
statute, has a sinister or wrongful as well as a reasonable definite
implication; it clearly means lingering for a lewd and lascivious purpose
and punishes only unlawful activity. People v P. (1980, App Dep't Super Ct)
115 Cal App 3d Supp 12, 170 Cal Rptr 478.
Pen Code § 647 subd (e), which requires persons who loiter or wander on
the streets to provide a credible and reliable identification and to account
for their presence when requested by a peace officer under circumstances
that would justify a valid stop, is unconstitutionally vague on its face
within the meaning of the due process clause of the Fourteenth Amendment
because it encourages arbitrary enforcement by failing to clarify what is
contemplated by the requirement that a suspect provide a credible and
reliable identification. (White and Rehnquist, JJ., dissenting). Kolender v
Lawson (1983) 461 US 352, 75, 75 L Ed 2d 903, 103 S Ct 1855.
Pen. Code, § 647, subd. (d), which prohibits loitering in or about a
public toilet for the purpose of engaging in or soliciting any lewd,
lascivious or unlawful act, is a specific intent crime, which is violated
only when a person loiters for the proscribed purpose. People v Superior
Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.
Pen. Code, § 647, subd. (d) (prohibiting loitering in or about public
toilet for purpose of engaging in or soliciting lewd, lascivious or unlawful
act), does not require that the defendant commit an independent criminal
act, so long as the police have some other firm indication to infer the
defendant was loitering with the requisite illicit intent. Indicia of intent
are satisfied, for example, if the officer personally knows an individual
and is aware he has repeatedly solicited or committed lewd acts at the same
location in the past, if a reliable informant discloses an individual's
intent to frequent a particular public restroom to attempt to solicit acts
in the restroom, or if citizens complain of an individual lingering inside a
certain restroom and engaging in suggestive conduct. People v Superior Court
(Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.
Although a violation of Pen. Code, § 647, subd. (d), which prohibits
loitering in or about a public toilet for the purpose of engaging in or
soliciting any lewd, lascivious or unlawful act, does not require that the
defendant have committed an independent criminal act, nevertheless the
statute does specify an overt act, namely loitering near a public restroom.
Although the overt act required is mere presence at a certain place, it may
constitute a criminal act when it is coupled with the requisite criminal
intent. People v Superior Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr
515, 758 P2d 1046.
Pen C § 647(i) criminalized the act of peeking without reference to
committing another offense if the opportunity was discovered. Therefore, the
People were not required to prove that a minor peeked through the victim's
blinds with the intent to commit an offense if the opportunity was
discovered. This intent was not a required element for the offense of
peeking, as defined by subdivision (i), because being on the property and
peeking into a window constituted the crime. Because the statute explicitly
required peeking, in addition to merely being on someone's private property,
it was constitutional without the necessity of engrafting the additional
element of specific intent to commit a crime as opportunity may be
discovered. In re Joshua M. (2001, 4th Dist) 91 Cal App 4th 743, 110 Cal
Rptr 2d 662.
8. Intoxicated; Under the Influence
Pen. Code, § 647, subd. (f), making it a misdemeanor to be in a public
place in an intoxicated condition with the inability to exercise care for
the safety of self or others, clearly indicates the purpose to protect the
offender from his own folly, as well as the general public from dangers
attendant on the presence of such persons on the streets or highways and in
other public places, and contemplates that such an intoxicated person in an
automobile parked on a public street is in a public place. People v Belanger
(1966, 2nd Dist) 243 Cal App 2d 654, 52 Cal Rptr 660.
Under Pen. Code, § 836, subd. 1, an experienced highway patrolman had
reasonable cause to arrest defendant for the offense of being in a public
place under the influence of intoxicating liquor or a drug and in such a
condition that he was unable to exercise care for his own safety (Pen. Code,
§ 647, subd. (f)), when the officer, in answer to a daytime accident call,
observed a car with a broken windshield and defendant standing alongside the
driver's side, unable to maintain his balance, his eyes dilated, his speech
slurred, with a cut over one eye and a contusion on his forehead, for which
he refused to accept aid or go to the hospital. People v Murrietta (1967,
2nd Dist) 251 Cal App 2d 1002, 60 Cal Rptr 56.
In a prosecution for battery against peace officers, the officers were
shown to have had probable cause to believe that defendant was, in their
presence, violating Pen. Code, § 647, subd. (f), by being found in a public
place under the influence of intoxicating liquor, and Veh. Code, § 23122, by
possessing an alcoholic beverage in an open container in a motor vehicle on
a public highway, where, by the testimony of both sides, defendant was found
in the early morning slumped behind the steering wheel of an automobile
which was standing on a public street with its lights out and the motor
running, and where a whiskey bottle, nearly empty, was on the seat beside
him; moreover, the circumstances indicated that prompt and efficient police
action was necessary for defendant's safety, as well as that of the public.
People v Kelley (1969, 2nd Dist) 3 Cal App 3d 146, 83 Cal Rptr 287.
Defendant's arrest for being in a public place under the influence of
liquor or drugs (Pen Code, § 647, subd (f)) was proper and a search of his
person for drugs was reasonable, regardless of the validity of the statute
under which he was arrested, where the arresting officer observed defendant
staggering, glassyeyed on a public street, and where defendant's breath did
not smell of alcohol; public drunkenness has always been a crime, and a
police officer could not be expected to know of the legislature's
inadvertent deletion of the introductory clause of the statute making a
violation thereof a misdemeanor, or to draw a correct legal conclusion as to
the effect of such deletion. People v Medina (1971, 2nd Dist) 15 Cal App 3d
845, 93 Cal Rptr 560.
There was probable cause to arrest a suspect for being under the
influence of liquor or drugs in a public place (Pen Code, § 647, subd (f)),
and evidence taken from her clothing was not the product of an illegal
search and seizure, where the suspect was taken to a hospital after being
found lying unconscious on a roadway, where the doctor in attendance advised
the arresting officer that in his opinion the suspect was suffering from an
overdose of seconal, where her speech was extremely slurred, her eyes had
little reaction to the officer's flashlight, and his attempts to converse
with her brought forth no coherent response, and where the clothing searched
by the officer was lying on a chair about 10 feet from the suspect. People v
Kemick (1971, 2nd Dist) 17 Cal App 3d 419, 94 Cal Rptr 835.
A police officer had probable cause to arrest defendant under Pen. Code,
§ 647, subd. (f), as a person under the influence of a drug or narcotic in a
public place in a condition that she was unable to care for herself, where
defendant spoke abusively in the officer's presence, where her speech was
thick and she had difficulty enunciating, where her eyes did not focus, and
her head swayed back and forth, where the officer smelled no alcohol on her
breath, and where defendant's father stated that she was "stoned." People v
Blatt (1972, 2nd Dist) 23 Cal App 3d 148, 99 Cal Rptr 855.
The facial language of Pen. Code, § 647, subd. (a), declaring that a
person is guilty of disorderly conduct who solicits anyone to engage in or
engages in lewd or dissolute conduct in any public place, does not supply a
sufficiently clear definition of the term "lewd or dissolute conduct" to
bring the statute into compliance with due process standards. The
legislative history reveals the statute to be the lineal descendent of the
archaic vagrancy statutes which were purposely drafted to grant police and
prosecutors a vague and standardless discretion. Thus, the legislative
history of the statute does not supply a clear and definite content to the
meaning of the statute. Furthermore, the judicial cases interpreting the
statute also fail to provide a clear and consistent definition of the term
"lewd or dissolute conduct" as used in the statute. Pryor v Municipal Court
for Los Angeles Judicial Dist. (1979) 25 Cal 3d 238, 158 Cal Rptr 330, 599
P2d 636.
In juvenile court proceedings, there was substantial evidence to support
a finding that a minor was under the influence of intoxicating liquor in a
public place and unable to take care of himself. (Pen. Code, § 647, subd.
(f)), where the arresting officer testified that the minor was staggering
very badly and was very unsteady on his feet, that his speech was slurred
and his eyes were bloodshot, and that there was a strong odor of alcoholic
beverage on his person. In re G. (1980, 5th Dist) 107 Cal App 3d 210, 165
Cal Rptr 587.
The term "lewd act" as used in the definition of prostitution in Pen.
Code, § 647, subd. (b), making it a misdemeanor to solicit or engage in "any
act of prostitution," is confined to conduct where the genitals, buttocks,
or female breasts of either the prostitute or the customer come in contact
with some part of the body of the other for the purpose of sexual arousal or
gratification of the customer or of the prostitute. People v Love (1980, App
Dep't Super Ct) 111 Cal App 3d Supp 1, 168 Cal Rptr 591.
In a prosecution for engaging in lewd conduct in violation of Pen. Code,
§ 647, subd. (a), there was sufficient evidence to support the jury's
verdict defendant was guilty of the offense, including the element of the
offense requiring that an alleged perpetrator must know or reasonably should
know that another person is present who may be offended by his lewd acts,
where a vice officer testified defendant started masturbating shortly after
entering a restroom and before any conversation with the officer other than
a salutation. Under such circumstances the evidence was sufficient to
support the verdict notwithstanding other evidence that the officer was an
experienced vice officer, ostensibly hardened to conduct such as defendant's
that the officer, although offended, tried to give the appearance that he
was not offended by defendant's act, and that defendant took some care to
hide his activities from the other persons who entered the restroom while
the officer was observing him. People v Reed (1980, App Dep't Super Ct) 114
Cal App 3d Supp 1, 170 Cal Rptr 770.
In a prosecution for the offense of lewd conduct that was based on
defendant's alleged masturbation in front of a vice officer in a public
restroom (Pen. Code, § 647, subd. (a)), the trial court did not err in
failing to submit to the jury an instruction proffered by defendant to the
effect that if the jurors found the officer was actually offended by the
conduct of defendant, but that he acted in a way so as to reasonably appear
to defendant that he would not be offended, then it must find defendant not
guilty, where the instructions given, especially one proffered by defendant,
correctly instructed the jury and focused its attention on defendant's
theory there was no one to be offended by his conduct in the restroom.
Though the court must instruct on a defendant's theory of the case,
duplicative instructions need not be given and the court is not required to
give each instruction offered by the parties, even if such instructions are
correct statements of the law, if it otherwise instructs fully and fairly on
each material issue. People v Reed (1980, App Dep't Super Ct) 114 Cal App 3d
Supp 1, 170 Cal Rptr 770.
In a prosecution for loitering 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 (Pen. Code, § 647, subd. (d)), the trial court erred in
sustaining a demurrer to the charge on the basis that the term "lewd and
lascivious" was vague. As used in the statute the term means the touching of
the genitals, buttocks or female breasts, for the purpose of sexual arousal,
gratification, annoyance or offense, and the term "or any unlawful act" does
not expand this definition. People v P. (1980, App Dep't Super Ct) 115 Cal
App 3d Supp 12, 170 Cal Rptr 478.
In a prosecution for violating Pen. Code, § 647, subd. (a) (disorderly
conduct--lewd or dissolute conduct), evidence that a police officer standing
in a film booth observed an erect penis protruding through a hole in the
partition between the officer's film booth and an adjacent film booth and
that the officer went to the adjacent booth and placed defendant under
arrest, was sufficient to establish a touching of the genitals, as
proscribed by § 647, subd. (a), by defendant or some other person. The trial
judge concluded that there was a touching by defendant of his penis in
guiding it through the hole in the partition. The judge had before him
photographs depicting the size and location of the hole and, although
circumstantial, the evidence was sufficient to support this finding. People
v Rylaarsdam (1982, App Dep't Super Ct) 130 Cal App 3d Supp 1, 181 Cal Rptr
723.
The terms "lewd" and "dissolute" are synonymous, and refer to conduct
which involves the touching of the genitals, buttocks, or female breast for
the purpose of sexual arousal, gratification, annoyance or offense. It is
limited to situations where the actor knows or should know of the presence
of persons who may be offended by the conduct. The limitation serves not
only to define the reach of the law, but also to add a requirement of
specific intent, thereby avoiding problems of unconstitutional vagueness.
People v Superior Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515,
758 P2d 1046.
Even though police officers, coming upon an intoxicated person in a
parked car, may not have observed the person driving the car, they may
arrest him or her for "attempted drunk driving" or public intoxication (Pen.
Code, § 647, subd. (f)) and thereafter force the arrestee to submit to
chemical testing. Mercer v Department of Motor Vehicles (1991) 53 Cal 3d
753, 280 Cal Rptr 745, 809 P2d 404.
Whenever a person so intoxicated that his or her motor skills are
impaired is found as a potential driver behind the steering wheel of a car,
this constitutes evidence the person is unable to exercise due care for his
or her safety, or the safety of others. In an arrest for public intoxication
(Pen. Code, § 647, subd. (f)), the totality of circumstances must be
considered in determining whether the intoxicated person can exercise care
for his or her own safety or the safety of others. An inebriated person
behind the wheel of a car or power boat or plane or train poses a greater
danger to himself or herself and others than the same person lying on a park
bench. People v Lively (1992, 6th Dist) 10 Cal App 4th 1364, 13 Cal Rptr 2d
368.
The district court did not err when it determined that a misdemeanor
conviction for lewd conduct (Pen C § 647, subd. (b)) was inadmissible for
the purpose of impeaching an adverse witness. The conviction involved
neither dishonesty nor a false statement. United States v Colbert (1997, CA9
Cal) 116 F3d 395.
Inmate who was arrested for public intoxication under Cal. Penal Code §
647, and who was being held in a City jail pending release without charges
pursuant to Cal. Penal Code § 849 because the City did not have a civil
detoxification facility, was a prisoner within the meaning of Cal. Gov't
Code § 844.6 of the California Tort Claims Act, Cal. Gov't. Code § 810 et
seq., and, therefore, the City was immune from suit by the inmate for
personal injuries suffered when the inmate was severely beaten by another
inmate; California Supreme Court specifically disapproved the contrary
holding of Meyer v. City of Oakland, 166 Cal. Rptr. 79 (1980). Teter v City
of Newport Beach (2003) 30 Cal 4th 446, 133 Cal Rptr 2d 139, 66 P3d 1225.
9. Police Investigation; Arrest; Search
In gauging propriety of officer's inquiry of defendant under subd (e)
trier of fact must measure "surrounding circumstances" in relation to time
and state of mind, and such "surrounding circumstances" must exist as of
time of arrest, cannot be assembled later as artificial justification for
arrest that was causeless when made, and must exist only with reference to
knowledge or state of mind of inquiring officer, and his information, none
other, must meet reasonable man standard. People v Bruno (1962, App Dep't
Super Ct) 211 Cal App 2d Supp 855, 27 Cal Rptr 458.
There is nothing unreasonable in officer's questioning persons outdoors
at night and in some circumstances refusal to answer justifies arrest.
People v Wilson (1965, 1st Dist) 238 Cal App 2d 447, 48 Cal Rptr 55.
Pen Code, § 647, subd (e), relating to disorderly conduct, is a
codification of the rule which sanctions police action in temporarily
detaining citizens and questioning them in situations which indicate to a
peace officer, as a reasonable man, that the public safety demands that the
citizen identify himself, and while the rule is operable under circumstances
short of probable cause to make an arrest, there must exist some suspicious
or unusual circumstance to authorize even this limited invasion of a
citizen's privacy. People v Weger (1967, 2nd Dist) 251 Cal App 2d 584, 59
Cal Rptr 661.
In the context of Pen Code, § 647, subd (e), relating to disorderly
conduct, the requirement that a person "identify himself" is not
unconstitutionally vague. It means what it is commonly accepted to mean,
namely, that the person must establish that he is what he purports to be.
People v Weger (1967, 2nd Dist) 251 Cal App 2d 584, 59 Cal Rptr 661.
Whether action by a police officer in arresting a person for an offense
under Pen. Code, § 647, subd. (e), relating to disorderly conduct, is
reasonable, depends upon the facts and circumstances of the case as
developed at the time of trial, People v Weger (1967, 2nd Dist) 251 Cal App
2d 584, 59 Cal Rptr 661.
Before a person is asked by a peace officer to identify himself under the
circumstances delineated in Pen. Code, § 647, subd. (e), relating to
disorderly conduct, the peace officer is not required, under Miranda, to
advise him of his right to remain silent, where there is neither probable
cause for arrest nor an actual arrest. People v Weger (1967, 2nd Dist) 251
Cal App 2d 584, 59 Cal Rptr 661.
The conduct of police officers was not in contravention of the Fourth
Amendment to the Federal Constitution, and the court properly admitted
evidence which was the fruit of their search in an apartment house where,
after midnight, the officers saw two known prostitutes with two men enter an
apartment house known to be used for purposes of prostitution, where they
had reasonable cause to believe that one or more public offenses were being
committed in their presence, and had a right to arrest the offenders, and
where they had a right to enter the apartment house to make the arrest.
People v Seals (1968, 1st Dist) 263 Cal App 2d 575, 69 Cal Rptr 861.
An arrest for a violation of Pen. Code, § 647, subd. (f), providing that
a person who is found in any public place under the influence of any drug is
guilty of disorderly conduct, a misdemeanor, was unlawful, where at the time
of the arrest, the arrestee was in bed in his apartment and not in a public
place. Reinert v Superior Court of Los Angeles County (1969, 2nd Dist) 2 Cal
App 3d 36, 82 Cal Rptr 263.
In proceedings for injunctions and restraining orders forbidding
enforcement of laws pertaining to nude entertainment, whose constitutional
validity was unchallenged, plaintiffs failed to show that irreparable injury
would result from enforcement, and the evidence was insufficient for the
trial court to infer that the motive of the People was interference with
freedom of expression and not law enforcement, where, on the record,
acquittal of one dancer based on one performance at one place of business,
and the trial judge's personal view of the entertainment presented at one
place of business, were not sufficient to establish a pattern of harassment
or suppression, and where, in the context of harassment, judicial notice
taken by the trial judge of the number of citations issued under the laws in
question had little meaning absent a showing of the total scope of the
conduct in question in the jurisdiction and the specific nature of the
conduct for which each of the arrests was made. Pitchess v Superior Court of
Los Angeles County (1969, 2nd Dist) 2 Cal App 3d 644, 83 Cal Rptr 35.
An arrest by peace officers was lawful, where they had probable cause to
believe that the arrestee had committed a misdemeanor under Pen. Code, §
647, subd. (e), namely, where, at 11:30 p.m., they had seen him on a
darkened street being patrolled because of numerous burglary and prowler
complaints, where they had stopped him to determine who he was, where he
lived and why he was there, and where, though asked several times, he had
refused to give his name and told them they would have to take him to his
"pad" if they wanted to learn his street address. People v Caylor (1970, 2nd
Dist) 6 Cal App 3d 51, 85 Cal Rptr 497.
When there is a valid arrest for driving while under the influence of
intoxicating liquor (Veh Code, § 23102), or because the driver or passenger
of a vehicle is found to be under the influence of intoxicating liquor in
any public place (Pen Code, § 647, subd f), an officer, as an incident to
such arrest for the purpose of discovering evidence of the crime, may search
the offender and the car in which he was observed. People v Superior Court
of Marin County (1971, 1st Dist) 14 Cal App 3d 935, 92 Cal Rptr 545.
A police officer had reasonable cause to arrest a suspect for disorderly
conduct (Pen Code, § 647 subd (g)) or for burglary or attempted burglary,
where he had received two radio calls in the early morning hours, moments
apart, concerning a prowler at a particular address and at a point three
blocks from such address, where he observed the suspect between a
residential building and a business building five or six feet from the
street, and then observed him run 50 to 75 yards when he saw the uniformed
officer and his marked police vehicle, where the suspect stated, before any
accusation was made, that he was not a prowler, where the suspect had an out
of state driver's license and was unable to supply any verifiable facts as
to his whereabouts immediately before he was encountered or why he was
between two buildings at that hour, some distance from his home, where he
stated to the officer that he had been released from jail a few weeks before
for prowling, and that he had been in trouble in another state for burglary,
and where the officer knew that a "cat burglary" had occurred in the area in
the early morning hours of the previous day. People v Superior Court of Los
Angeles County (1971, 2nd Dist) 15 Cal App 3d 146, 92 Cal Rptr 916.
When a person is arrested on probable cause to believe he is in violation
of Pen. Code, § 647, subd. (f) (intoxication in a public place), but at the
time there is no evidence that he is under the influence of intoxicating
liquor, creating the strong suspicion that he was under the influence of a
narcotic, a search of his person for drugs is proper for the purpose of
discovering evidence of the crime. People v Superior Court of Los Angeles
County (1971, 2nd Dist) 22 Cal App 3d 227, 99 Cal Rptr 338.
Officer saw man urinating against wall in an abandoned service station
and arrested him for violation of a city ordinance which did not purport to
make it a crime to urinate in public. He did not have reasonable grounds to
arrest him for indecent exposure or as a person in a public place under the
influence of intoxicating liquor or drug. The search which followed the
arrest was unlawful and the codine discovered was inadmissible in evidence
should have been suppressed. (1971) Wainwright v Procunier (1971, CA9 Cal)
446 F2d 757.
Defendant's arrest was not illegal and counterfeit vehicle registration
cards seized from his truck were properly admitted in evidence against him
in a prosecution for possession of such cards, where defendant was first
stopped on a private university campus by a security officer who had
probable cause to detain and arrest him under Pen. Code, § 647, subd. (g),
making it a misdemeanor to loiter, prowl, or wander on the private property
of another, in the nighttime without visible or lawful business with the
owner or occupant, where the security officer also had reasonable cause to
believe that defendant had committed the felony of receiving stolen
property, where defendant was thereafter arrested by a city police officer
for receiving stolen property on the basis of information provided by the
security officer, and where, following such arrest, the counterfeit
registration certificates were observed by the police officer, with the aid
of a flashlight, from outside of defendant's vehicle. People v Wilkins
(1972, 2nd Dist) 27 Cal App 3d 763, 104 Cal Rptr 89.
One who violates Pen. Code, § 647, subd. (f) (being in a public place
under the influence of intoxicating liquor), may be lawfully arrested and
detained and, as an incident to his lawful arrest, he may be searched
irrespective of the place of his confinement, whether in jail or a
detoxification facility. Thus, amphetamine pills taken from defendant during
the booking process following his arrest for violation of the statute were
admissible in evidence in a prosecution for possession of restricted
dangerous drugs (Health & Saf. Code, § 11910). People v Superior Court of
Monterey County (1972, 1st Dist) 29 Cal App 3d 397, 105 Cal Rptr 695.
A conclusion that police had probable cause to arrest defendant for
burglary was proper under evidence that, among other things, about 4 a.m.,
in an area in which a series of felonies, including burglaries, had been
committed by apparently the same person, police officers saw defendant
engaging in conduct directly related to burglary and justifying arrest for
violation of Pen. Code, § 647, subd. (h), proscribing peeking in an
inhabited building at night without having any visible or lawful business
with the occupant. People v Clark (1973, 4th Dist) 30 Cal App 3d 549, 106
Cal Rptr 147.
In a prosecution for possession of marijuana and narcotics paraphernalia,
the trial court erred in denying defendant's motion to suppress evidence
seized in a full body search following his arrest for public intoxication,
which was conducted by a peace officer prior to placing him in a patrol
vehicle after a pat-down which disclosed nothing resembling a weapon. In
view of the significant probability that a given public intoxication arrest
may never reach the point at which the individual is actually incarcerated,
a full body search may not be justified in such a case as an "accelerated
booking search." A body search of an individual arrested for public
intoxication is forbidden until such time as he is actually to be
incarcerated. (Disapproving the holding in People v Steeples, 22 Cal App 3d
993[99 Cal Rptr 883] and disapproving People v Markin, 34 Cal App 3d 58[109
Cal Rptr 609] insofar as it concludes that Pen. Code, § 647, subd (ff)
shifts the burden to the defendant to demonstrate that he would not have
been released under one of the statutory provisions therefor. People v
Longwill (1975) 14 Cal 3d 943, 123 Cal Rptr 297, 538 P2d 753.
In a prosecution of defendant for possession of amphetamines, the trial
court properly suppressed packages of amphetamines seized pursuant to a
search of defendant following his arrest without a warrant for being under
the influence of drugs (Pen. Code, § 647, subd. (f)), since it did not
appear there was probable cause for the arresting officer to believe that
defendant was under the influence of a drug, where the only manifestations
of drug usage were the facts that defendant was walking in an unsteady
manner, seemed to have problems in maintaining his balance, his eyes did not
react to light, he had no odor of alcohol on his breath, his speech was
rapid and thick, and where there was no testimony that the arresting officer
was experienced in what constituted manifestations of drug use. People v
Dunkel (1977, 2nd Dist) 71 Cal App 3d 928, 139 Cal Rptr 685.
Pen. Code, § 647(e), California's vagrancy statute requiring a person to
provide reliable identification when requested by a police officer who had a
reasonable suspicion of criminal activity, violated the Fourth Amendment
proscription against unreasonable searches and seizures as well as the due
process clause because it impermissibly granted police virtually unfettered
discretion by providing no standards for determining whether a person is
engaged in suspicious loitering and by failing to specify what forms of
identification were sufficient to satisfy the statute. Lawson v Kolender
(1981, CA9 Cal) 658 F2d 1362, affd, remanded 461 US 352, 75 L Ed 2d 903, 103
S Ct 1855.
In a prosecution for possession of LSD and other offenses, the trial
court erred in denying defendant's motion to suppress evidence seized from
his person during a full body search following his arrest for public
intoxication (Pen. Code, § 647, subd. (f)). Though defendant's initial
detention was valid and there was sufficient evidence to give police
officers probable cause to arrest him for public intoxication, absent a
reasonable and articulable suspicion that a suspect is armed, full body
searches of public intoxication arrestees are allowed only at the time of
actual booking and incarceration. The search could not be justified as an
"accelerated booking search," even though the arresting officer had the
final decision as to whether defendant would be jailed or cited for the
offense and had decided that he would be jailed. In such a case, the
possibility of release without booking exists as a matter of law. People v
Mosqueda (1982, 1st Dist) 128 Cal App 3d 918, 180 Cal Rptr 591.
Fourth Amendment concerns are implicated where a state statute permits
investigative detentions in situations where the police officers lack a
reasonable suspicion of criminal activity based on objective facts. Kolender
v Lawson (1983) 461 US 352, 75, 75 L Ed 2d 903, 103 S Ct 1855.
Pen. Code, § 647, subd. (ff) does not preclude an arrest, or a search
incident to that arrest. The statute requires a good faith determination of
the appropriateness of taking a person to a detoxification facility, which
can usually be made only after an officer determines there is probable cause
to believe the person comes within the provisions of Pen. Code, § 647, subd.
(f) (public intoxication), and after the person has been taken into custody.
The police officer's action in taking the person into custody constitutes an
arrest, which is sufficient justification for a subsequent search. Although
the sole purpose of § 647, subd. (ff), is to promote the treatment of public
inebriates as invalids rather than criminals, nothing indicates the
Legislature intended to abrogate arrests under the public intoxication
statute. People v Boren (1987, 5th Dist) 188 Cal App 3d 1171, 233 Cal Rptr
859.
Pen. Code, § 647, subd. (d) (loitering about public toilet for illicit
purpose), does not violate the separation of powers doctrine by assertedly
transforming every police officer into a "mini-legislature" with the power
to determine on an ad hoc basis what types of behavior constitute a crime.
Any discretion possessed by police to determine whether the crime has
occurred is merely a question of probable cause to arrest, not a flaw in the
definition of the crime itself. People v Superior Court (Caswell) (1988) 46
Cal 3d 381, 250 Cal Rptr 515, 758 P2d 1046.
Pen. Code, § 647, subd. (d), which prohibits loitering in or about a
public toilet for the purpose of engaging in or soliciting any lewd,
lascivious or unlawful act, though constitutional, provides a possibility
for harassment of citizens based on unorthodox lifestyles or sexual
orientation. Accordingly, since the potential for discriminatory enforcement
is more pronounced in loitering cases than in most other contexts, a
potential suspect's sexual orientation is not a sufficient articulable fact
to give rise to probable cause to suspect violation of the statute. The
police must apply equal standards to both homosexuals and heterosexuals in
determining whether an individual's conduct in fact provides probable cause
to believe he or she is loitering with the proscribed intent. People v
Superior Court (Caswell) (1988) 46 Cal 3d 381, 250 Cal Rptr 515, 758 P2d
1046.
10. Procedural Questions
In a prosecution of a "topless" dancer and a nightclub manager for wilful
and lewd exposure (Pen. Code, § 314, subd. (1), and lewd or dissolute
conduct (Pen. Code, § 647, subd. (a), the trial judge correctly instructed
the jury that the relevant community for the application of contemporary
standards (Pen. Code, § 311) was the entire State of California; use of a
state-wide standard promotes the strong policy favoring uniformity in
application of the state criminal law; it does not present the difficulty of
obtaining expert witnesses inherent in the use of a national standard (if
such a standard exists), and it avoids administrative problems in
determining the exact scope of a smaller community. In re Giannini (1968) 69
Cal 2d 563, 72 Cal Rptr 655, 446 P2d 535.
In a proceeding in prohibition the trial court erred in forbidding
prosecution of persons charged with lewd and dissolute conduct in a public
place (Pen. Code, § 647, subd. (a) as a result of a simulated act of oral
copulation done in the course of the performance of a play; whether the act
charged was obscene, when taken in context with the whole performance and
judged by standards of the State of California as a whole on consideration
of expert testimony is a question to be decided by the trier of fact. Dixon
v Municipal Court of San Francisco (1968, 1st Dist) 267 Cal App 2d 789, 73
Cal Rptr 587.
Pen. Code, § 647, subd. (f), making it a misdemeanor for one to be in a
public place under the influence of intoxicating liquor, and Pen. Code, §
647, subd. (f), providing for the civil confinement, rather than arrest of,
a person in violation of the former subdivision, are not in conflict since
the applicability of the latter subdivision is dependent on the arresting
officers being "reasonably able" to place the person in civil custody, which
is dependent on the availability of appropriate facilities. Thus, the
statutes offer alternative modes of procedure, and the special statute (Pen.
Code, § 647, subd. (f) does not supplant the general statute (Pen. Code, §
647, subd. (f). People v Superior Court of Monterey County (1972, 1st Dist)
29 Cal App 3d 397, 105 Cal Rptr 695.
Reversal of a conviction of the misdemeanor of lewd or dissolute conduct
in violation of Pen. Code, § 647, subd. (a), under a guilty plea entered
without representation by counsel, was required by failure of the record to
explicitly demonstrate that before acceptance of the plea, the accused had
been informed that a conviction under that statute would compel him to
register as a sex offender, pursuant to Pen. Code, § 290. In re Birch (1973)
10 Cal 3d 314, 110 Cal Rptr 212, 515 P2d 12.
Absent a knowing and intelligent waiver, no person may be imprisoned for
any sentence, whether classified as petty, misdemeanor, or felony, and
including violations of municipal ordinances, unless he was represented by
counsel at his trial, and the denial of assistance of counsel will preclude
the imposition of a jail sentence. Thus, a municipal court judge erred in
imposing a jail sentence upon defendant following his conviction for
intoxication in a public place, where the judge had denied defendant
appointed counsel on the ground that the offense wasn't of a sufficiently
serious nature. In re Dellasala (1977, 1st Dist) 66 Cal App 3d 453, 136 Cal
Rptr 99.
In a prosecution in which defendant was convicted on two counts of
indecent exposure (Pen. Code, § 314, subd. 1) with a prior conviction of a
similar offense, it was reversible error for the court not to give, sua
sponte, a jury instruction on the lesser and necessarily included
misdemeanor offense of lewd conduct in a public place (Pen. Code, § 647,
subd. (a), where no evidence was offered by defendant and where the
prosecution's evidence was such that the jury could have found that
defendant had engaged in the latter conduct but had lacked the specific
intent, required for indecent exposure, to direct public attention to his
genitals for the purpose of his sexual gratification or to affront others.
People v Swearington (1977, 2nd Dist) 71 Cal App 3d 935, 140 Cal Rptr 5.
The fact that police officers who arrested a defendant for public
drunkenness (Pen. Code, § 647, subd. (f), did not know of the existence of a
civil detoxification center did not excuse them from compliance with Pen.
Code, § 647, subd. (f), requiring an officer arresting a person for public
drunkenness to place the arrested person in civil protective custody in a
detoxification center if he is reasonably able to do so. The statute places
a mandatory duty on the arresting officer, and if he did not know of the
existence of the facility, his superiors in the police department are
chargeable with such knowledge. People v Ambellas (1978, App Dep't Super Ct)
85 Cal App 3d Supp 24, 149 Cal Rptr 680.
In a prosecution of a defendant for public drunkenness under Pen. Code, §
647, subd. (f), when a defendant suggests that the People's failure to
comply with Pen. Code, § 647, subd. (f) (requiring a peace officer who is
reasonably able to do so to place the arrestee in civil protective custody
in a detoxification center) should result in his acquittal, the burden
shifts to the People to produce evidence of the reasons for the failure.
Once that evidence has been presented the defendant is free to present other
relevant evidence of his own on the issue. Because the defense is one
allowed for reasons extraneous to the guilt or innocence of the defendant,
the ultimate burden remains on defendant to persuade the trier of fact by a
preponderance of the evidence that the defense is well taken. Accordingly,
in a prosecution of defendant for violation of Pen. Code, § 647, subd. (f),
in which defendant raised the issue of noncompliance with subd. (f), the
failure of the trial court to require the People to present evidence on that
issue constituted reversible error. People v Ambellas (1978, App Dep't Super
Ct) 85 Cal App 3d Supp 24, 149 Cal Rptr 680.
Proof of compliance with Pen. Code, § 647, subd. (f), requiring a peace
officer who is reasonably able to do so to place a person arrested for
public drunkenness in civil protective custody in a detoxification center,
is not an element of the offense proscribed by Pen. Code, § 647, subd. (f),
making it a misdemeanor to be drunk in public in such a condition that one
is unable to exercise care for his or her own safety or that of others.
People v Ambellas (1978, App Dep't Super Ct) 85 Cal App 3d Supp 24, 149 Cal
Rptr 680.
In determining whether police officers who have arrested a person for
public drunkenness (Pen. Code, § 647, subd. (f), were reasonably able to
place the arrestee in a civil detoxification center as required by Pen.
Code, § 647, subd. (f), the number of police officers in vehicles, the
number of arrests in the vicinity and the time and distance involved in
traveling to the only available facility play a legitimate role in deciding
whether the arresting officer was reasonably able to comply with the
statute. People v Ambellas (1978, App Dep't Super Ct) 85 Cal App 3d Supp 24,
149 Cal Rptr 680.
In a prosecution for soliciting an act of prostitution in violation of
Pen. Code, § 647 subd. (b), the trial court erred in refusing to give an
instruction regarding concurrence of act and specific intent, as requested
by defendant, and in giving instead the misdemeanor version of the
instruction regarding concurrence of act and general criminal intent. It is
the trial court's duty to instruct as to the particular specific intent
which is an essential element of the crime being prosecuted. People v Norris
(1978, App Dep't Super Ct) 88 Cal App 3d Supp 32, 152 Cal Rptr 134.
In a prosecution for soliciting an act of prostitution in violation of
Pen. Code, § 647, subd. (b), although it was error for the trial court to
refuse to give defendant's requested instruction defining solicitation of an
act of prostitution as a specific intent crime and instructing that the
specific intent was "engage in prostitution," the error was not prejudicial,
where defendant testified that he did not solicit a police officer but that
the officer solicited him. The jury, by its verdict of guilty, believed the
officer, whose testimony left no other interpretation than that defendant
entertained a specific intent to engage in prostitution when he solicited
the officer. People v Norris (1978, App Dep't Super Ct) 88 Cal App 3d Supp
32, 152 Cal Rptr 134.
Habeas corpus relief could not be granted to one convicted of
solicitation of or engaging in lewd or dissolute conduct in a public place
in violation of Pen C § 647 subd (a). Though the statute is to be construed
to prohibit only the solicitation or commission of conduct in a public place
or one open to the public or exposed to public view, which involves the
touching of the genitals, buttocks, or female breasts, for purposes of
sexual arousal, gratification, annoyance or offense, by a person who knows
or should know of the presence of persons who might be offended by the
conduct, the record did not touch on questions crucial to such application
of the statute, in particular, the question whether petitioner knew or
should have known of the presence of persons who might be offended by his
conduct. However, relief is available to a person whose conviction is final
if there is no material dispute as to the facts relating to his conviction
and if his conduct did not violate the statute as so construed, and denial
of relief was therefore without prejudice to petitioner's right to seek
relief by writ of habeas corpus in the proper trial court. In re Anders
(1979) 25 Cal 3d 414, 158 Cal Rptr 661, 599 P2d 1364.
In a prosecution for pimping and pandering in violation of Pen. Code, §
266h and § 266i, the trial court did not err in refusing to instruct the
jury than they might find defendant guilty of the lesser included offense of
disorderly conduct through solicitation or engagement in the act of
prostitution in violation of Pen. Code, § 647, subd. (b). The record
indicated that defendant, if guilty at all, was guilty of the crimes of
pimping and pandering. People v Kent (1979, 1st Dist) 96 Cal App 3d 130, 158
Cal Rptr 35.
On appeal from a juvenile court proceeding in which a minor was found to
have been under the influence of intoxicating liquor in a public place (Pen.
Code, § 647, subd. (f), the defense that he should have been placed in civil
protective custody under Pen. Code, § 647, subd. (f), could not be raised,
where the issue was not presented as a defense at the trial court hearing.
In re G. (1980, 5th Dist) 107 Cal App 3d 210, 165 Cal Rptr 587.
In a prosecution on two separate counts of solicitation of an act of
prostitution, the record established that the trial court's erroneous
admission of evidence of a prior uncharged act of solicitation constituted
reversible error, where the jury was unable to agree on a verdict as to one
of the charges and the evidence on the other charge consisted of one police
officer's testimony that defendant spoke the words of solicitation, as
against defendant's denial that she uttered those words to the officer. Thus
it was reasonably probable that a result more favorable to defendant would
have been reached in the absence of the error in admitting the evidence of
the uncharged crime of solicitation of prostitution. People v Love (1980,
App Dep't Super Ct) 111 Cal App 3d Supp 1, 168 Cal Rptr 591.
In a prosecution for lewd conduct the trial court committed reversible
error in sustaining defendant's demurrer to the complaint that was based on
the grounds that the complaint alleged no facts to constitute a public
offense and that insufficient facts were alleged to give him notice of the
offense charged, where the complaint, in alleging the offense, stated that
defendant "did willfully and unlawfully engage in lewd and dissolute conduct
in a public place and in a place open to the public and exposed to public
view." The complaint essentially pleaded the offense in the words of the
statute and thus constituted a permissible form of pleading (Pen. Code, §
952). Moreover, the allegations of the complaint incorporated a prior
judicial definition of lewd and dissolute conduct. People v Callahan (1980,
App Dep't Super Ct) 112 Cal App 3d Supp 10, 169 Cal Rptr 574.
Pen. Code, § 647, subd. (d), which prohibits loitering 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, is not mere surplusage to a similar
provision prohibiting solicitation of anyone to engage in, or engaging in,
lewd conduct in any public place or any place open to the public or exposed
to public view (Pen. Code, § 647, subd. (a). The offense set forth in § 647,
subd. (d), can be established by both direct and circumstantial evidence,
without a showing that the other provision has been violated. People v P.
(1980, App Dep't Super Ct) 115 Cal App 3d Supp 12, 170 Cal Rptr 478.
In a prosecution for violation of Pen. Code, § 647, subd. (a) (disorderly
conduct--lewd and dissolute conduct), based on a police officer's having
observed defendant masturbating in a public toilet, an instruction
permitting the jury to find guilt if a person who might be offended by the
proscribed conduct "will be present" was erroneous. However, it was not
reasonably probable that the jury was influenced by the error in reaching
its verdict, and thus the error was harmless beyond a reasonable doubt,
where there was no dispute that the police officer was present at the time
of the alleged conduct, where defendant's defense was that he did not engage
in the conduct of which he was accused, and where the jury apparently
resolved this conflict against defendant. People v Rylaarsdam (1982, App
Dep't Super Ct) 130 Cal App 3d Supp 1, 181 Cal Rptr 723.
Arrestees under Pen. Code, § 647, subd. (f) (making public drunkenness a
disorderly conduct offense), do not have a constitutional right to treatment
during pretrial detention, and therefore are not required to be taken to
civil detoxification facilities upon arrest, since, even though most of such
arrestees never go to trial, the short period of pretrial detention to which
they are subjected is attendant upon enforcement of a criminal statute. (By
The Court.) Sundance v Municipal Court (1986) 42 Cal 3d 1101, 232 Cal Rptr
814, 729 P2d 80.
In an action by a person arrested for aggressive panhandling, challenging
the constitutionality of the state panhandling statute, the state would be
permitted to intervene on remand to protect its interests in its law. Blair
v Shanahan (1996, ND Cal) 919 F Supp 1361.
SUGGESTED FORMS
ALLEGATION CHARGING DISORDERLY CONDUCT
------, being duly sworn, states on information and belief that the
defendant[s] did in the ------ [City of ------, County of ------ or ------
Judicial District, County of ------], State of California, on or about
------
[date] , commit a misdemeanor, that is: A violation of Section 647, subsec.
------, of the Penal Code of the State of California, in that ------ [he or
she or they] ------ [insert one of the following allegations]:
[Subd (a)] ------ did ------ [solicit another to engage or engage] in
lewd
or dissolute conduct, that is: ------ in ------ [a public place or a place
open to the public or a place exposed to public view], that is: ------.
[Subd (b)] ------ did ------ [solicit or agree to engage in or engage
in]
an act of prostitution.
[Subd (c)] ------ did accost other persons in ------ [a public place or a
place open to the public], that is: ------, for the purpose of begging or
soliciting alms.
[Subd (d)] ------ did loiter in or about a toilet open to the public, that
is: ------, for the purpose of ------ [engaging in or soliciting] a ------
[lewd or lascivious or unlawful] act, that is: ------.
[Subd (f)] ------ was found in a public place, that is: ------, under the
influence of ------ [intoxicating liquor or a drug or controlled
substance
or toluene or any combination of the foregoing] in such condition ------
[that he or she was unable to exercise care for his or her own safety or
the safety of others or by reason of his or her being under the
influence
of ------ (intoxicating liquor, etc.) ------ (interfered with or
obstructed
or prevented) the free use of the ------ (street or sidewalk or other
public way)].
[Subd (h)] ------ did ------ [loiter or prowl or wander] upon the
private
property of another, that is: ------, without visible or lawful business
with
the ------ [owner or occupant] thereof.
[Subd (i)] ------ did, while ------ [loitering or prowling or
wandering]
upon the private property of another, that is: ------, peek in the ------
[door
or window] of an inhabited ------ [building or structure] located
thereon,
without visible or lawful business with the ------ [owner or occupant]
thereof.
[Subd (j)] ------ did lodge in a ------ [building or structure or
vehicle
or enumerate other place], that is: ------, without the permission of
------,
the ------ [owner or person entitled to the possession or person in
control] thereof.
[Subd (k)] ------ did look through a hole or opening into, or otherwise
view,
by means of ------ [a periscope or telescope or binoculars or or
camera
or camcorder or any other instrumentality] the interior of a ------
[bathroom or changing room or fitting room or dressing room or the
interior of any other area in which the occupant has a reasonable
expectation
of privacy] with the intent to invade the privacy of a person or persons
inside.
Source: Legal > / . . . / > CA - Deering's California Code Annotated -
2003
Terms: cal pen code sec 647 (Edit Search)
View: Full
Date/Time: Saturday, August 21, 2004 - 1:06 AM EDT
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