PC 647

Loitering

In California, the crime of loitering is treated as three separate offenses:

  • Loitering under PC 647(h)
  • Loitering: Peeking under PC 647(i)
  • Loitering: About School under PC 653(g)

Under the statute, loitering is essentially described as actions including: “linger”, “wander”, “delay” and “prowl”, on someone else’s property, without a proper purpose, and with the specific intent to commit a crime “if the opportunity arises” (emphasis added). This italicized element distinguishes the crime under 647(h) from that under 647(i). In short, the action of peeking into the door or window of an inhabited structure is already a specific intent crime by itself. “Specific intent” crimes are a category of crimes that require a perpetrator to do a specific act to bring about a specific result. On the other hand, there are also general intent crimes, which only require proof that the perpetrator committed an illegal act, and do not require the planned purpose to bring about a specific result.

Loitering:

PC 647(h)

To prove this crime, the prosecutor has to prove all of the following elements beyond a reasonable doubt:

  • The defendant delayed, or prowled, or lingered or wandered on property belonging to someone else; and
  • When the defendant set foot on the property, he or she had no legal purpose to be there; and
  • The defendant intended to commit a crime on the property in question if the opportunity arose; and
  • The defendant’s purpose on the property was to commit a crime if the opportunity arose.

What is the difference between “loitering” and idling / standing / waiting around?

It can be a difficult question to answer. Although, arguably, someone just standing around could theoretically fit the description of someone “loitering”, the case law in this area has distinguished criminal from non-criminal actions through a collection of factors like (1) the lawfulness of the purpose to the conduct, (2) the criminal background of the defendant to establish the likelihood of the commission of a crime and (3) presence for the purpose of committing a crime by discovering such an opportunity. But even these factors have been subject to controversial interpretations. For instance, in a 1961 case, a man waiting around the Greyhound Bus Stop in San Francisco, supposedly for a friend, was convicted of loitering. The defendant challenged his conviction on appeal by arguing that 1) he was simply standing around while waiting for a friend and, 2) this law unreasonably restricted his freedom. But the court still held he was guilty as he could produce no legal means of support while waiting, and had a previous conviction for pick-pocketing, so there was a likelihood that he’d take advantage of the public under the circumstances. In re Cregler (1961) 56 Cal.App.2d 308. Interestingly, some of the judges criticized the court’s finding as absurd because the man had clearly not “calculated to do harm” and his conduct was “essentially innocent”.

Can a homeless person be convicted under the loitering statute for extended non-criminal presence on a sidewalk?

No. Unless a homeless person’s presence on a sidewalk actually obstructs the free flow of pedestrian movement, he or she cannot be arrested for loitering. Justin v. City of Los Angeles, No. CV-00-12352 LGB (AIJx) (C.D. Cal. Dec 05, 2000). This case also states there is a constitutionally-protected right to loiter as far as standing and walking (peacefully) on the sidewalks. This right is guaranteed under the Due Process Clause of California and the Due Process Clause of the 14th Amendment to all citizens of the U.S.

Loitering: Peeking

PC 647(i)

To prove this crime, the prosecution must prove all of the following three elements beyond a reasonable doubt:

  • The defendant delayed, prowled, wandered or lingered on private property that belongs to another person, and
  • The defendant was present on the property without any legal purpose, and
  • While on the property, the defendant peeked through a door or window of a building or structure which was inhabited
  • If people who use a building of structure as a dwelling were not present at the time of the peeking, is it still a crime?

Yes. The crime of loitering by peeking does not require the inhabitants of the home, apartment etc to be present during the time the peeking occurs. Only if the inhabitants have moved out and intend never to return to the premises will the building / structure be uninhabited, even if they leave personal belongings behind. So, only if the inhabitants subjectively give up their possessory interest in a place, will it be “uninhabited”. In a California case, the tenants had in fact paid rent until the 15th of the month, two days after the house was set on fire by an arsonist, so the tenants had an existing objective rightful possessory interest, and had even left some of their personal belongings in that dwelling at the time of the crime. But the court’s only concern was the tenants’ (inhabitants’) subjective intent not to return. This was even more important evidence than their legal right to remain in the building another two days. People v. Cardona (1983) 143 Cal.App.3d 481. In short, only if the people of the location on which peeking occurs have decided never to return to that location, and for this reason the location was uninhabited, there can be no loitering by peeking charge.

Penalties

A county jail sentence of 6 months possibly accompanied by a maximum monetary fine of $1,000.

However, upon a second conviction for this crime, the jail sentence could be doubled to a maximum one year county jail term, and the fine to a maximum of $2,000.

Defenses

Lawful presence: it is always a defense to the crime of loitering if you had legal status on the premises in question, or the defendant was in a public area, like on a sidewalk.

Abandoned residence: if the inhabitants of the building or structure where the alleged loitering and peeking occurred have in fact completely deserted that location without any intent to return, the premises will be considered “uninhabited”, therefore the third element of the crime won’t be established for purposes of criminal conviction.

Loitering: About School

PC 653(g)

The prosecution can only bring this charge if it can be proved beyond a reasonable doubt that:

  • The defendant delayed, lingered or idled at a school or near a school attended by children, or a public location where children typically gather; and
  • The defendant remained, reentered or returned to a school attended by children, or a public location normally frequearson offensesnted by children within 72 hours after the chief administrative official of the school, or someone in the chief administrative position, or a member of the security patrol of the school district, or a city police officer, or a sheriff, or a deputy sheriff, or a California Highway Patrol peace officer asked the person to leave the premises;
  • While at this location, the defendant had no lawful purpose; and
  • The defendant intended to commit a crime if the opportunity arose while stationed at one of the specified locations.

Defenses

Lawful presence: in addition to offering a reasonable and legal explanation for your presence on the premises, from case law, it appears that even distributing anti-draft pamphlets that protested the war in Vietnam to students on school premises (Mandel v. Municipal Court (1969) 276 Cal.App.2d 649) and distributing literature in school lunch venues and on the campus (People v. Hirst (1975) 31 Cal.App.3d 75) are considered to be for a legal purpose and a legitimate extension to the constitutionally-protected right to freedom of speech.

No lingering or idling: if a defendant’s conduct was completely innocent of any opportunistic harm, then the failure to prove the first element of this crime prevents conviction for the entire offense.

Penalties

A county jail sentence of 6 months possibly accompanied by a maximum monetary fine of $1,000.

However, upon a second conviction, the monetary fee is doubled to a maximum $2,000 payment and the defendant subject to a maximum one year county jail imprisonment term.

Free Consultation

If you have recently been arrested for Loitering or related offense, please don’t hesitate to call us for a free, no-obligation consultation with Seppi Esfandi. During your call, Esfandi will hear the details of the case and advise you on the best approach to defend yourself. If you wish, a consultation in our office can be promptly scheduled.

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References

1. Judicial Council of California, Criminal Jury Instructions, Fall 2007 Edition
2. California Penal Code §§ 647, 653g
3. In re Cregler (1961) 56 Cal.App.2d 308
4. Justin v. City of Los Angeles, No. CV-00-12352 LGB (AIJx)
5. People v. Cardona (1983) 143 Cal.App.3d 481
6. Mandel v. Municipal Court (1969) 276 Cal.App.2d 649
7. People v. Hirst (1975) 31 Cal.App.3d 75)

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