In Re Cregler

¶1In this proceeding begun by a petition for prohibition but by stipulation to be considered as an application for the writ of habeas corpus, petitioner attacks the constitutionality of the provisions of subdivision 4 of section 647 of the Penal Code1 as that section read before it was repealed2 and a new section 647 enacted in 1961. (Stats. 1961, ch. 560.)

¶2*310An alternative writ issued, which hy stipulation is deemed an order to show cause on petition for habeas corpus. On the record which is before us we have concluded that petitioner’s contentions (that the statute is unconstitutionally vague and indefinite in its language and its meaning) are without merit, and that the application should be denied.

¶3On January 31, 1961, while petitioner was standing in the Greyhound Bus Station in San Francisco allegedly waiting for a friend, he was arrested by an officer of the San Francisco Police Department. Thereafter a complaint was filed in the municipal court in San Francisco by the district attorney of the City and County of San Francisco charging petitioner with a violation of subdivision 4 of former section 647 of the Penal Code, in that he “being a known thief by his having been convicted of such offense and having no visible and lawful means of support, did loiter about a place of public gathering and was then and there a vagrant.”

¶4On February 15,1961, petitioner demurred to the complaint on the specified ground that the statute is unconstitutional as being in conflict with article I, sections 11 and 13,3 of the Constitution of the State of California and the Fourteenth Amendment (“due process” and “equal protection” clauses) to the Constitution of the United States. He also moved to dismiss the complaint upon the same grounds.

¶5The demurrer was overruled and the motion to dismiss denied. Petitioner then entered a plea of not guilty, and the case was set for trial. The present petition followed.

¶6In support of the ground specified petitioner contends that the word “loitering” is so vague and indefinite as to “leave the defendant to the vagaries of individual judges” and, further, that the statute “unduly restricts a person’s liberty.” These contentions, in any application of the statute relevant to the facts of this ease as they now appear, are without merit.

¶7The statute with which we are here concerned (Pen. Code, § 647, subd. 4) by its own terms is limited in application to the classification of “pickpocket, thief, burglar or confidence operator . . . having no visible or lawful means of support,” and makes it unlawful for a person in that class to loiter “around any steamboat landing, railroad depot, banking institution, broker’s office, place of amusement, auction room, store, *311shop or crowded thoroughfare, car, or omnibus, or any public gathering or assembly.” The pertinent facts of this ease on which (in this proceeding and in the present state of the record) the constitutionality of applying the subject statute must be tested are as above indicated; i.e., petitioner, “being a known thief by his having been convicted of such offense and having no visible and lawful means of support” was observed standing in the Greyhound Bus Station in San Francisco and was arrested while so waiting there.

¶8The reasonableness of such a statute appears to be plain. The public has an obvious interest in preventing professional pickpockets and thieves from loitering about places in which they may most conveniently and lucratively ply their trade. As pointed out in People v. Superior Court (1937), 10 Cal.2d 288, 298 [4] [73 P.2d 1221], “judicial decisions abound with declarations to the effect that all presumptions and intendments favor the validity of statutes; that mere doubt by the judicial branch of the government as to the validity of a statute will not afford a sufficient reason for a judicial declaration of its invalidity. ...” (See also Flores v. Los Angeles Turf Club (1961), 55 Cal.2d 736, 744 [4] [13 Cal.Rptr. 201, 361 P.2d 921] ; Allied Properties v. Department of Alcoholic Beverage Control (1959), 53 Cal.2d 141, 146 [3] [346 P.2d 737]; State v. Industrial Acc. Com. (1957), 48 Cal.2d 365, 371-372 [1-7] [310 P.2d 7]; Lundberg v. County of Alameda (1956), 46 Cal.2d 644, 652 [10] [298 P.2d 1] ; In re Herrera (1943), 23 Cal.2d 206, 212 [2] [143 P.2d 345].) Thus in the Flores case the ejection from a race track of one who had previously been convicted of violating section 337a of the Penal Code (bookmaking) was upheld under legislation and regulations which required the exclusion or ejection from such tracks of “known bookmakers, known touts, persons who have been convicted of violations of . . . [this chapter, including section 19561.5 of the Business and Professions Code] or of the laws prohibiting bookmaking or other illegal forms of wagering on horse races, and other persons or classes of persons whose presence in such enclosure would, in the opinion of the [Horse Racing] board, be inimical to the interests of the State or of legitimate horse racing, or both.” (P. 746.)

¶9Further, the word “loiter” as used in the subject statute (and in many other police power regulations)4 in our *312view has a sinister or wrongful as well as a reasonable definite implication. As proscribed by the statute the word “loiter” obviously connotes lingering in the designated places for the purpose of committing a crime as opportunity may be discovered. Section 4 of the Penal Code declares that the provisions of that code “are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” (See People v. Carskaddon (1957), 49 Cal.2d 423, 425 [1] [318 P.2d 4].) Manifestly one who goes to a bus station or railroad depot and waits for the purpose of buying a ticket, boarding the conveyance, meeting a relative or friend actually expected to arrive, or with any other legitimate objective, is not loitering within the sense of the statute. Loitering as forbidden includes waiting, but mere waiting for any lawful purpose does not constitute such loitering. (Cf. Phillips v. Municipal Court (1938), 24 Cal.App.2d 453, 454-456 [1-3] [75 P.2d 548].) It is elementary that, if possible, statutes will be so construed as to avoid absurd applications and to uphold their validity. (See Warner v. Kenny (1946), 27 Cal.2d 627, 629 [3] [165 P.2d 889].) A statute “will not be given an interpretation in conflict with its clear purpose, and . . . general words used therein will be given a restricted meaning when reason and justice require it, rather than a literal meaning which would lead to an unjust and absurd consequence.” (People v. Kelley (1937), 27 Cal. App.2d Supp. 771, 774 [3] [70 P.2d 276]; see also People v. King (1952), 115 Cal.App.2d Supp. 875, 877-880 [252 P.2d 78].)

¶10*313In the light of these rules the eases relied upon by petitioner (such as In re Bell (1942), 19 Cal.2d 488, 496-497 [4] [122 P.2d 22] ; Matter of Williams (1910), 158 Cal. 550 [111 P. 1035]; In re McCue (1908), 7 Cal.App. 765 [96 P. 110] ; In re Harder (1935), 9 Cal.App.2d 153 [49 P.2d 304]) lack persuasive force and no useful purpose would be served by discussing them in detail. The same may be said of Territory of Hawaii v. Anduha (1931), 48 F.2d 171, 173 [2],

¶11It has also been suggested that the words “pickpocket” and “confidence operator,” which appear in the subject statute, are unconstitutionally vague, and, further, that the statute is unreasonable in its possible application towards persons who might in their youth have suffered conviction of one of the listed offenses but who for many years thereafter have led exemplary lives. The rule is well established, however, that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. (United States v. Raines (1960), 362 U. S. 17, 21-22 [80 S.Ct. 519, 523 [3, 4], 4 L.Ed.2d 524] ; People v. Perry (1931), 212 Cal. 186, 193 [3] [298 P. 19, 76 A.L.R. 1331]; People v. Naumcheff (1952), 114 Cal.App.2d 278, 280 [1, 2] [250 P.2d 8].) Petitioner has not shown that the statute is being invoked against him in the aspects or under the circumstances which he suggests, and hence may not be heard to complain.

¶12The alternative writ of prohibition, herein by stipulation deemed an order to show cause, and such order to show cause, are discharged; the petition for prohibition, deemed to be an application for habeas corpus, is denied; and the petitioner is remanded for trial on the charge as laid.

¶13Gibson, C. J., Traynor, J., White, J., and Dooling, J., concurred.