Leonard James McSherry v. Sherman Block, Sheriff

880 F.2d 1049 55 Ed. Law Rep. 82 Leonard James McSHERRY, Petitioner-Appellant, v. Sherman BLOCK, Sheriff, et al., Respondents-Appellees. No. 88-5822. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 10, 1989. Decided July 21, 1989. John H. Scott, Los Angeles, Cal., for petitioner-appellant. John A. Vander Lans, Long Beach City Prosecutor, Robert R. Recknagel, Asst. City Prosecutor, Gerry L. Ensley, Long Beach, Cal., for respondents-appellees. Appeal from the United States District Court for the Central District of California. Before WALLACE, CANBY and TROTT, Circuit Judges. TROTT, Circuit Judge: 1 In a habeas corpus petition, Leonard James McSherry challenges his conviction in state court for violations of California's loitering statute. He argues that because the statute is ambiguous and had not been clarified at the time of the conduct for which he was convicted, his conviction under that statute violated due process and must be set aside. McSherry also contends that the jury was improperly instructed on the standard of proof required to show an intent to loiter. We disagree with both contentions and affirm the dismissal of his petition. 2 * BACKGROUND 3…

In a habeas corpus petition, Leonard James McSherry challenges his conviction in state court for violations of California’s loitering statute. He argues that because the statute is ambiguous and had not been clarified at the time of the conduct for which he was convicted, his conviction under that statute violated due process and must be set aside. McSherry also contends *1051 that the jury was improperly instructed on the standard of proof required to show an intent to loiter. We disagree with both contentions and affirm the dismissal of his petition.

I

BACKGROUND

On August 4, 1986, appellant was convicted of five counts of loitering about schools in violation of California Penal Code § 653g. That statute provides in pertinent part:

The evidence at trial consisted of highly incriminatory observations of the appellant at five different schools, other relevant observations of his behavior, and his prior convictions for kidnapping a minor and lewd conduct with a girl under the age of eighteen. However, it was undisputed that appellant was never asked to leave any of the premises in connection with which his conviction was based.

On August 20, 1986, MeSherry filed a petition for…

dissenting:

As Judge Trott’s opinion recognizes, the crucial question in this case is whether the California court’s interpretation of the loitering statute “was so unforeseeable as to deprive the defendant of the fair warning to which the Constitution entitles him." Bouie v. City of Columbia, 378 U.S. 347, 354 , 84 S.Ct. 1697, 1703 , 12 L.Ed.2d 894 (1964). In my view, the state’s interpretation was unforeseeable for the simple reason that it ran quite counter to the plain words of the statute. The statute provides:

Cal.Penal Code § 653g (emphasis added). Whatever the legislature may have intended, it is rather clear what it said. “And who remains” is a conjunctive phrase; the crime that is described in the first part of the statute requires that the offender both loiter and remain. The word “remain” is itself incomplete unless qualified by some additional phrase, such as “remain for more than five minutes” or “remain after being asked to leave.” The legislature specified the latter qualification. If words are given no more than their permissible meaning, a person does not violate section 653g by loitering at a school unless he remains after being asked to leave.

*1060 It…