[9 Penal Code section 950: "The accusatory pleading must
contain: "1. The title of the action, specifying the name of the
court to which the same is presented, and the names of the
parties; "2. A statement of the public offense or offenses
charged therein." Penal Code section 952: "In charging an
offense, each count shall contain, and shall be sufficient if it
contains in substance, a statement that the accused has committed
some public offense therein specified. Such statement may be
made in ordinary and concise language without any technical
averments or any allegations of matter not essential to be
proved. It may be in the words of the enactment describing the
offense or declaring the matter to be a public offense, or in any
words sufficient to give the accused notice of the offense of
which he is accused. In charging theft it shall be sufficient to
allege that the defendant unlawfully took the labor or property
of another."]
413
facts alleged
did not constitute a public offense; that the complaints
contained matters constituting a legal justification or excuse
or other legal bar to the prosecution; and that the
offense charged was unconstitutionally vague, overbroad, and
violated the right to travel. The demurrer recited in addition
that it was "based upon the fact that the ordinances and penal
statutes allegedly violated are unconstitutionally overbroad and
vague in violation of the Fourteenth Amendment to the United
States Constitution and article I, section 7 of the California
Constitution; unconstitutionally infringe on the defendant's
right to travel and freedom of travel [sic ]." Elsewhere the
demurrer also asserted that the ordinance violates the Eighth
Amendment prohibition against cruel and unusual punishment and
the state constitutional prohibition against cruel or unusual
punishment. (Cal. Const., art. I, § 17.) [10]
None of the complaints in the Zuckernick proceedings included any
allegations identifying the defendant as an involuntarily
homeless person whose violation of the ordinance was involuntary
and/or occurred at a time when shelter beds were unavailable.
[11] Although the petition for writ of mandate included
allegations regarding Santa Ana's past efforts to rid the city of
its homeless population, those allegations, even if true, were
irrelevant to the legal sufficiency of the complaints. (Harman
v. City and County of San Francisco (1972) 7 Cal.3d 150, 166, 101
Cal.Rptr. 880, 496 P.2d 1248; People v. Williams (1979) 97
Cal.App.3d 382, 391, 158 Cal.Rptr. 778.)
The Zuckernick demurrers and petition for writ of mandate
necessarily constituted only a facial attack on the ordinance
since the defendants could not, on a demurrer to the accusatory
pleading, offer evidence that as applied to their
individual circumstances the ordinance was invalid. (See Dillon
v. Municipal Court, supra, 4 Cal.3d 860, 865, 94 Cal.Rptr. 777,
484 P.2d 945.) Those allegations are also irrelevant in
determining the facial validity of the ordinance insofar as
petitioners alleged that it violated their right to travel and
constituted cruel and unusual punishment for status, since they
do not establish that there were no circumstances in which the
ordinance could be constitutionally applied.
[16] Therefore, while we are not insensitive to the importance of
the larger issues petitioners and amici curiae [12] seek to
raise in
[10 We assume, and respondents do not contend otherwise, that
if a statute under which a defendant is charged with a crime is
invalid, the complaint is subject to demurrer under subdivisions
1, 4 and 5 of Penal Code section 1004 on the ground that the
court lacks jurisdiction because the statute is invalid, the
facts stated do not constitute a public offense, and the
complaint contains matter which constitutes a legal bar to the
prosecution. (See Dillon v. Municipal Court, supra, 4 Cal.3d
860, 865, 94 Cal.Rptr. 777, 484 P.2d 945; In re Cregler (1961)
56 Cal.2d 308, 310, 14 Cal.Rptr. 289, 363 P.2d 305; Mandel v.
Municipal Court (1969) 276 Cal.App.2d 649, 652, 81 Cal.Rptr.
173.) We do not agree with the Court of Appeal in People v.
Jackson (1985) 171 Cal.App.3d 609, 615, 217 Cal.Rptr. 540, that
grounds other than those specified in Penal Code section 1004 may
be urged in support of a "common law demurrer" raising
"constitutional and other attacks on the sufficiency of an
accusatory pleading." Penal Code section 1002 specifies: "The
only pleading on the part of the defendant is either a demurrer
or a plea." Penal Code section 1004 specifies the grounds on
which a demurrer may be made, and we have recognized that if a
constitutional challenge is based on matters not appearing on the
face of the accusatory pleading a demurrer will not lie. (In re
Berry (1968) 68 Cal.2d 137, 146, 65 Cal.Rptr. 273, 436 P.2d 273.)]
[11 The allegations charging violation of the ordinance recited
only that: "On or about [date] said defendant, in violation of
Section 10-402 of the Santa Ana Municipal Code, a MISDEMEANOR,
did willfully and unlawfully, camp, use camp facilities, or camp
paraphernalia in a public street or a public parking lot or other
public area."]
[12 Many of those issues are the result of legislative policy
decisions. The arguments of many amici curiae regarding the
apparently intractable problem of homelessness and the impact of
the Santa Ana ordinance on various groups of homeless persons
(e.g., teenagers, families with children, and the mentally ill)
should be addressed to the Legislature and the Orange County
Board of Supervisors, not the judiciary. Neither the criminal
justice system nor the judiciary is equipped to resolve chronic
social problems, but criminalizing conduct that is a product of
those problems is not for that reason constitutionally
impermissible. (See Sundance v. Municipal Court, supra, 42
Cal.3d 1101, 232 Cal.Rptr. 814, 729 P.2d 80, and conc. opn. of
Grodin, J., id. at p. 1139, 232 Cal.Rptr. 814, 729 P.2d 80.)]
414
these actions, or to the disturbing nature
of the evidence which persuaded the Court of Appeal to base its
decision on what it believed to be the impact of the ordinance on
homeless persons, the only question properly before the municipal
and superior courts and the Court of Appeal for decision was the
facial validity of the ordinance.
[17][18] We emphasize that the procedural posture of a case is
not simply a "technicality." The procedural posture of a case is
crucial to determining the proper scope of appellate review.
(See, e.g., Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d
1372, 1379, 259 Cal.Rptr. 918.) The procedural posture of a case
also determines the ability of the parties to exercise their
right to present relevant evidence and to the creation of a full
record adequate to enable the reviewing court to make a reasoned
decision on the questions before it. When an appellate court
fails to limit the scope of review to issues properly presented
in the trial court, it denies litigants their right to have
appellate questions decided on the basis of a full record which
exposes all of the relevant facts and circumstances.
The importance of these considerations is most clearly
demonstrated in the Zuckernick matter. There the People had no
opportunity to present evidence regarding the circumstances in
which the petitioners had been arrested, as the only issue before
the municipal court in ruling on the demurrer was the sufficiency
of the complaints. That court properly ruled that the complaints
were sufficient. How then can a reviewing court find error in
that ruling on the basis of evidence unrelated to the sufficiency
of the complaint which the People had no opportunity to rebut in
the municipal court?
In the Tobe matter, notwithstanding the declarations that
were submitted by the plaintiffs, there was no evidence that the
ordinance had been applied to any person in a constitutionally
impermissible manner.
This court's consideration will, therefore, be limited to the
facial validity of the ordinance.
B. Motive of Legislators.
[19] The Court of Appeal also considered the evidence of Santa
Ana's past attempts to remove homeless persons from the city
significant evidence of the purpose for which the ordinance was
adopted. It then considered that purpose in assessing the
validity of the ordinance. While the intent or purpose of the
legislative body must be considered in construing an ambiguous
statute or ordinance (Code Civ.Proc., § 1859; People v. Pieters
(1991) 52 Cal.3d 894, 898-899, 276 Cal.Rptr. 918, 802 P.2d 420),
the motive of the legislative body is generally irrelevant to the
validity of the statute or ordinance. (Birkenfeld v. City of
Berkeley (1976) 17 Cal.3d 129, 145, 130 Cal.Rptr. 465, 550 P.2d
1001; City and County of San Francisco v. Cooper (1975) 13
Cal.3d 898, 913, 120 Cal.Rptr. 707, 534 P.2d 403; County of Los
Angeles v. Superior Court (1975) 13 Cal.3d 721, 726-727, 119
Cal.Rptr. 631, 532 P.2d 495; Sunny Slope Water Co. v. City of
Pasadena (1934) 1 Cal.2d 87, 99, 33 P.2d 672; In re Sumida
(1918) 177 Cal. 388, 390, 170 P. 823; Hadacheck v. Alexander
(1915) 169 Cal. 616, 617, 147 P. 259; Odd Fellows' Cem. Assn. v.
City and County of San Francisco (1903) 140 Cal. 226, 235-236, 73
P. 987; Dobbins v. City of Los Angeles (1903) 139 Cal. 179, 184,
72 P. 970; revd. on other grounds (1904) 195 U.S. 223, 25 S.Ct.
18, 49 L.Ed. 169; People v. County of Glenn (1893) 100 Cal. 419,
423, 35 P. 302.) [13]
[13 While the Court of Appeal considered Santa Ana's past actions and the documents suggesting that the city had mounted a
concerted effort to remove homeless persons, it did not
acknowledge that, as part of the settlement of a lawsuit seeking
to enjoin further unlawful attempts to remove homeless persons,
Santa Ana had agreed to take no further action to drive the
homeless from the city. The Court of Appeal nonetheless assumed
that the adoption of a facially neutral ordinance prohibiting
camping and storing personal possessions on public property was a
renewed effort to do so and a violation of the settlement
agreement. Had it been a violation of the settlement agreement,
however, the Tobe plaintiffs' appropriate recourse would have
been through an action to enforce the settlement.]
415
The Court of Appeal relied in part on Pottinger v.
City of Miami (S.D.Fla.1992) 810 F.Supp. 1551, 1581, for its
assumption that consideration of the motives of the Santa Ana
City Council may be considered in assessing the validity of the
ordinance. That is not the rule in this state, but even were it
so, Pottinger was not a challenge to the facial validity of the
Miami ordinance in question there. Moreover, the district
court's conclusion that the ordinance was invalid as applied was
not based on the motives of the legislators in enacting the
ordinance. The court considered internal memoranda and evidence
of arrest records as evidence of the purpose underlying
enforcement of the ordinance against homeless persons.
[20] Absent a basis for believing that the ordinance would not
have been adopted if the public areas of Santa Ana had been
appropriated for living accommodation by any group other than the
homeless, or that it was the intent of that body that the
ordinance be enforced only against homeless persons (see, e.g.,
Parr v. Municipal Court (1971) 3 Cal.3d 861, 92 Cal.Rptr. 153,
479 P.2d 353), the ordinance is not subject to attack on the
basis that the city council may have hoped that its impact would
be to discourage homeless persons from moving to Santa Ana.
We cannot assume, as does the dissent, that the sole purpose of
the Santa Ana ordinance was to force the homeless out of the
city. The city had agreed to discontinue such attempts when it
settled the prior litigation. The record confirms that the city
faced a problem common to many urban areas, the occupation of
public parks and other public facilities by homeless persons.
Were we to adopt the approach suggested by the dissent, any
facially valid ordinance enacted by a city that had once acted in
a legally impermissible manner to achieve a permissible objective
could be found invalid on the basis that its past conduct
established that the ordinance was not enacted for a permissible
purpose. Absent evidence other than the enactment of a facially
valid ordinance, we cannot make that assumption here.
The dissent relies on Parr v. Municipal Court, supra, 3 Cal.3d
861, 92 Cal.Rptr. 153, 479 P.2d 353, as supporting invalidation
of a facially valid ordinance on the ground that it is motivated
by impermissible legislative intent. The Santa Ana ordinance and
the circumstances of its adoption are distinguishable from the
Carmel ordinance at issue in Parr, however. There, the city had
not entered into a court-approved settlement in which it
stipulated that it would not engage in discriminatory enforcement
of the law against "undesirables," and, unlike the Santa Ana
ordinance, the Carmel ordinance banned a customary use of the
city park--sitting or lying on the lawn. A "Declaration of
Urgency" which accompanied the Carmel ordinance stated that its
purpose was to regulate the use of public property, parks, and
beaches by transient visitors.
The Carmel ordinance was challenged as facially invalid on
grounds that it discriminated against undesirable and unsanitary
persons, referring to them as "hippies" and "transients." In
Parr v. Municipal Court, supra, 3 Cal.3d 861, 92 Cal.Rptr. 153,
479 P.2d 353, we rejected the People's argument that only the
operative language of the ordinance should be considered
because the declaration of purpose suggested that the operative
sections were intended to be limited in their application to the
group it described. On that basis we concluded that the Carmel
ordinance had a discriminatory purpose.
The ordinance, by contrast, bans use of public property in the
city for purposes for which it was not designed. At the time it
was adopted the city had agreed not to engage in discriminatory
law enforcement. And no declaration of purpose comparable to
that which accompanied the Carmel ordinance was made. The
declared purpose of the ordinance did not suggest that it was to
be enforced solely against the homeless. We cannot, for those
reasons, join the assumption of the dissent that the purpose of
the ordinance is simply to drive the homeless out
416
of Santa Ana. [14]
[14 We also decline to join the conclusion of the dissent that
enactment of an ordinance like that adopted by Santa Ana, whose
purpose is to preserve public property for its intended use, is
constitutionally impermissible because it may lead to the
adoption of similar ordinances in other cities with the result
that the homeless are everywhere excluded from living on public
property.]
Opinion Continued
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