Soto

In a complaint, respondent Jose Luis Soto was charged with violating Penal Code section 647, 1 which provides: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶] . . . . [¶] (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.”

The municipal court sustained respondent’s demurrer to the complaint on two federal constitutional grounds. That court found that section 647, subdivision (d) encourages “arbitrary and erratic arrest and convictions” and, therefore, is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment and that section 647, subdivision (d) invites arrests without probable cause in violation of the Fourth Amendment which guarantees the right of people to be free from unreasonable searches and seizures. The trial court expressly declared that it was making no ruling on the numerous other issues that had been raised by respondent in his demurrer.

Having sustained the demurrer, the trial court, on respondent’s motion, dismissed the complaint.

The prosecution then appealed the order…

McCLOSKY, Acting P.J.

In a complaint, respondent Jose Luis Soto was charged with violating Penal Code section 647, [1] which provides: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶].... [¶] (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."

The municipal court sustained respondent's demurrer to the complaint on two federal constitutional grounds. That court found that section 647, subdivision (d) encourages "arbitrary and erratic arrest and convictions" and, therefore, is unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment and that section 647, subdivision (d) invites arrests without probable cause in violation of the Fourth Amendment which guarantees the right of people to be free from unreasonable searches and seizures. The trial court expressly declared that it was making no ruling on the numerous other issues that had been raised by respondent in his demurrer.

Having sustained the demurrer, the trial court, on respondent's motion, dismissed the complaint.

The prosecution…

I concur in the decision to affirm the order of dismissal on the ground that section 647, subdivision (d) is unconstitutionally vague. This result appears compelled by the recent pronouncement of our nation’s Supreme Court in Kolender v. Lawson (1983) 461 U.S. 352 [ 75 L.Ed.2d 903 , 103 S.Ct. 1855 ], Writing for a seven-person majority, Justice O’Con-nor found section 647, subdivision (e) “unconstitutionally vague on its face *1169 because it encourages arbitrary enforcement by failing to describe with sufficient particularity what a suspect must do in order to satisfy the statute.” (Id., at p. 361 [ 75 L.Ed.2d at p. 911 ]; fn. omitted.) The court emphasized that the crucial safeguard from arbitrary and discriminatory enforcement is the establishment of ‘“minimal guidelines to govern law enforcement.’” Stated otherwise, the issue is whether the statute vests overbroad discretion in the arresting officer. (Id., at p. 358 [ 75 L.Ed.2d at p. 909 ].)

The nagging problem with section 647, subdivision (d) is that, despite our scrutiny, it fails to provide any concrete guidelines for a law enforcement officer to ascertain when and under what circumstances he may properly arrest for…