[12] Moreover, even assuming that plaintiffs attempted to allege and prosecute an as applied challenge, and that the superior court did entertain plaintiffs' argument that they had mounted an as applied challenge to the ordinance, the superior court did not err in failing to rule on an as applied challenge as plaintiffs did not perfect a basis for ruling on such a challenge.

The only documents in the record that describe the manner in which the ordinance has been applied are declarations submitted six months after the petition was filed in conjunction with the superior court's hearing on plaintiffs' motion for issuance of a peremptory writ. Some of the declarations were by persons other than plaintiffs who stated that they had been arrested or cited for violation of the ordinance. None of those declared that he or she had ever been convicted and had a sentence imposed for violation of the ordinance. None stated facts to support a conclusion that citations were given solely for the purpose of harassment and were not prosecuted thereafter, and none stated facts to support either the claim that the ordinance had been enforced discriminatorily against the homeless or the claim that a pattern of constitutionally impermissible enforcement existed. The declarations, which were the only evidence offered in the case, [6] reflected only that persons who were homeless engaged in conduct that violated the ordinance and were arrested or cited for so doing. [7] The declarations described the conduct which led to citations only from the perspective of the person cited. They left unclear whether it may have appeared to the officer who issued the citation that the individual was using or storing camp paraphernalia, or living temporarily, on public property.

Moreover, assuming that persons whose violation of the ordinance is involuntary may offer a due-process-based necessity defense, the declarations did not demonstrate an impermissible pattern of enforcement against such persons. [8]

Two of the declarants were plaintiffs. One was not homeless. The other conceded, contrary to the allegations of the petition, that he had never been cited under the ordinance.

Only one of the remaining seven declarants explained why he had not been able to find lawful shelter on the night he was cited for violation of the ordinance. That declarant was unable to get on the bus to the armory shelter on the night he was cited. His declaration, like those of most of the other declarants, did not indicate that he had applied for public assistance that might have made it possible to find housing. Among the reasons given by the other declarants for "camping" on public property at the time they were cited were that the civic center area was "safer," that the declarant had been turned away from a shelter a few weeks earlier and had not returned, that the civic center was convenient to food and there was safety in numbers, that the declarant had missed the bus to the armory, that shelters were so noisy and overcrowded that the declarant could not sleep there, and that the declarant did not like the armory because there was too much noise and he liked to be by himself.

While one of the declarants claimed to be schizophrenic, and stated that she had applied for and was awaiting Social Security assistance, she did not state whether she had sought public assistance from the county or that she had been turned away by a homeless shelter on the night she was cited.

[6 Santa Ana did not offer evidence to rebut the declarants' description of the circumstances in which they were cited for violating the ordinance, believing the declarations to be irrelevant to the issues raised by the petition.]

[7 We do not understand plaintiffs to be arguing that a person who chooses voluntarily to camp on public property has a constitutionally protected right to do so, or that it would be improper to cite and convict such persons for violating the Santa Ana ordinance.]

[8 Unlike the dissent, we cannot conclude that the city intends to enforce the ordinance against persons who have no alternative to "camping" or placing "camp paraphernalia" on public property. (Dis. opn., post, p. 435, fn. 14 of 40 Cal.Rptr.2d, p. 1178, fn. 14 of 892 P.2d.) A senior deputy district attorney expressed his opinion at oral argument before this court that a necessity defense might be available to "truly homeless" persons and said that prosecutorial discretion would be exercised.]


Assuming that plaintiffs attempted to mount an as applied challenge to the ordinance on this basis, therefore, they simply did not demonstrate that the ordinance had been enforced in a constitutionally impermissible manner against homeless persons who had no alternative but to "camp" on public property in Santa Ana.

As discussed above, an as applied challenge assumes that the statute or ordinance violated is valid and asserts that the manner of enforcement against a particular individual or individuals or the circumstances in which the statute or ordinance is applied is unconstitutional. All of the declarants who had been cited under the ordinance described conduct in which they had engaged and that conduct appears to have violated the ordinance. None describes an impermissible means of enforcement of the ordinance or enforcement in circumstances that violated the constitutional rights the petition claimed had been violated. None demonstrated that the circumstances in which he or she was cited affected the declarant's right to travel. None states facts to support a conclusion that any punishment, let alone cruel and unusual punishment proscribed by the Eighth Amendment, had been imposed. Since no constitutionally impermissible pattern, or even single instance, of constitutionally impermissible enforcement was shown, no injunction against such enforcement could be issued and none was sought by plaintiffs. Because the Tobe plaintiffs sought only to enjoin any enforcement of the ordinance and did not demonstrate a pattern of unconstitutional enforcement, the petition must be considered as one which presented only a facial challenge to the ordinance.

2. The Zuckernick petition.

[13] The second action (Zuckernick) has been prosecuted as a petition for writ of mandate to compel the municipal court in which petitioners are charged with violation of the ordinance to sustain their demurrers to the complaints and to dismiss the charges. The petition was filed in the Court of Appeal after the municipal court overruled the demurrers.

[14] The Zuckernick petition arises out of an order overruling a demurrer to a criminal complaint. A demurrer to a criminal complaint lies only to challenge the sufficiency of the pleading and raises only issues of law. (People v. McConnell (1890) 82 Cal. 620, 23 P. 40; Ratner v. Municipal Court for the Los Angeles Judicial District (1967) 256 Cal.App.2d 925, 929, 64 Cal.Rptr. 500; see also, 4 Witkin, Cal.Criminal Law (2d ed. 1989) 2127, p. 2498.) Penal Code section 1004 expressly limits demurrers to defects appearing on the face of the accusatory pleading:

"The defendant may demur to the accusatory pleading at any time prior to the entry of a plea, when it appears upon the face thereof either:

"1. If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged, or, if an information or complaint that the court has no jurisdiction of the offense charged therein;

"2. That it does not substantially conform to the provisions of Sections 950 and 952, and also Section 951 in case of an indictment or information;

"3. That more than one offense is charged, except as provided in Section 954;

"4. That the facts stated do not constitute a public offense;

"5. That it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution." (Italics added.)

[15] The Zuckernick petitioners demurred to the complaints on the ground that they did not conform to the provisions of Penal Code sections 950 and 952; [9] that the

[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."]


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.)]


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.]


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


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

Case Listing --- Proposition One ---- Peace Park