Thursday, February 7, 2013

Appellate Closing Brief



I. THE DISTRICT ATTORNEY’S RESPONSE TO VAGUENESS CLAIM SUPPORTS
    APPELLANT’S CHALLENGE

            A. The District Attorney Erroneously Denies The Existence Of An As-Applied
                 Challenge

            Appellant seeks a holding that the “lodging statute is invalid, both on its face and as applied…” (Opening Brief, p. 20: emphasis added).
            Without offering any explanation, however, the District Attorney contends that there is no “as applied” challenge here.  (Resp. Brief, p. 5) First, that ignores appellant’s overbreadth argument supported by the decision in Snatchko v. Westfield (2010) 187 Cal.App.4th 469 (Opening Brief, p. 9).
            In Tobe v. City of Santa Ana (1995) 9Cal 4th 1069, 1083-1089, the court makes it clear that, as here, an as-applied challenge ripens once the facts of the particular case have been litigated.  In Tobe there had been no trial.  Here, a full trial was conducted, and all relevant facts are a matter of record. The case is thus ripe for decision on the as-applied challenge.        
           
            B. The District Attorney Fails To Explain The Stark Inconsistency Of The Trial
     Court’s Actions On Vagueness Issue

            Appellant pointed out that the trial court denied the appellant’s pretrial motion challenging the statute on its face based on vagueness of the term “lodging”, but later, over appellant’s objection, invented its own jury instruction definition of lodging as “sleeping”.  (Opening Brief, pp. 8-9).
            Although the court’s action can fairly be described as intellectually dishonest, logically inconsistent, grossly hypocritical, legally erroneous, transparently result-oriented and clearly prejudicial, the District Attorney offers no justification for this about-face, nor makes any reference to it at all.
            Citizens who are subject to arrest were apparently held to be intelligent and clearly on notice about what the statute prohibits, but the jurors were looked upon, correctly, as being unable to figure it out. The actions of the court and the arguments of the District Attorney are erroneous. In United States v. Resnick (1936) 299 U.S. 207, 210 the court states that “statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to extend to cases not covered by the words used.” Similarly, in People v. Anderson (1987) 43 Cal.3rd 1104, 1146, the court states that the “statute must be realistically susceptible of two interpretations and the interpretation to be rejected must raise grave and doubtful constitutional issues.” In People v. Davis (1981) 29 Cal.3rd 814, 829 the court states that “We must, in applying the provision, adopt an interpretation that, consistent with the statutory language and purpose, eliminates doubt as to the provision’s constitutionality.” Further, the defendant is entitled to the benefit of every reasonable doubt.  Id. at 828
           
            C. The District Attorney’s Case Authorities Support Appellant’s Challenge
            The District Attorney cites People v. Scott (1993) 20Cal.App.4th Supp.5.  Any honest reading of that case shows that the only factor that saved the ordinance from a holding of vagueness was the definition contained in the ordinance itself; that definition provided the citizen and police officer with guidance as to the meaning of the term “camping”. The instant statute (Penal Code Sec. 647(e)) provides no such guidance.
            In Joyce v. City and County of San Francisco (1994) 846 F.Supp.843 the court rejected the vagueness claim on the ground that the police were guided not only by the anti-lodging statute but also by a very explicit supplemental guideline which made it clear that mere sleeping (the instant appellant’s only act) was not to be considered to be lodging.
            The District Attorney fails to respond at all to appellant’s contentions that, based on California Supreme Court definitions, lodging cannot occur unless the defendant is seen to be in occupancy of the property.  (Opening Brief, p.9-10). Mere overnight sleeping, with no trace of the defendant left in the morning, cannot meet the occupancy standard. The tourist industry in Santa Cruz will be unsettled by the trial court’s holding that mere sleeping (e.g., on the beach) is a criminal act.

II. THE DISTRICT ATTORNEY FAILS TO DEMONSTRATE THAT THE LODGING STATUTE SETS REASONABLE STANDARD AS TO TIME, PLACE AND MANNER
           
Appellant argued that the lodging statute as applied here prohibits demonstrative sleeping anywhere outside at any time of the day or night, anywhere in the entire state of California. (Opening Brief, p. 7). How can these restrictions upon a sleep-in demonstrator (or even a person who merely wants to fall asleep) be considered “reasonable” when they preclude such activity altogether? A demonstrator may not sleep anywhere outside at any time.  It is not tenable that such severely broad limitations are reasonable. They are patently unreasonable as to time, as to place, and as to manner.
The District Attorney fails to address the issue of reasonableness, except to argue (without the benefit of any evidence in support) that appellant’s activity interfered with the county’s need to maintain the grounds. (Resp. Brief, p. 4). There is no evidence that any maintenance employees worked in the middle of the night, and even if they did they would not have been hampered by appellant sleeping on a bench. The statute’s categorical prohibition, on its face and as applied, destroys the freedom to protest the sleeping ban in the obviously, demonstrative manner appellant employed.
Further, insofar as the District Attorney implies that the 7p.m.-7a.m. time limitation applied to appellant, that is invalid.  Those hours were what the “no trespassing” signs prohibited, but for reasons discussed in the Opening Brief, the appellant was not charged with trespassing.

III. FUNDAMENTAL RIGHTS CONTINUE TO BE IGNORED
            An objective observer could readily conclude that the lack of appellate court precedents on the right of homeless people to sleep outside suggests the existence of a judicial gentlemen’s agreement to suppress the issue. It is not mere speculation to say that at least hundreds of thousands of police roustings of homeless out-of-doors sleepers occur every year in California, and yet there is but one California Supreme Court case dealing with the issue. Tobe v. City of Santa Ana (1995) 9 Cal.4th1069. That case involved one of the weakest claims conceivable on behalf of the homeless, procedurally as well as substantively.  The observer might readily conclude that what is happening here is judicial cherry picking in support of the status quo. Each branch of government, including the judicial system, appears to be captured by the forces of commerce and finance, for whom the mere sight of a homeless person is anathema. How else can one understand this on-going governmental deprivation of sleep? On paper everyone in California has all the broad and fundamental rights enumerated in Article I, Sec. 1 of the California Constitution, as well as the unenumerated rights “retained by the people” under the Ninth Amendment of the United States Constitution (and the California Constitution), and yet the courts continue (in silence) to treat homeless people like dirt. The District Attorney appears so confident as to the prevailing judicial attitude that he can peremptorily dismiss these constitutional statements of fundamental principles with one short paragraph, stating merely that “counsel has not identified” which protections apply here. (Resp. Brief, p. 12). The problem for the District Attorney is that he would be hard-pressed to name one of those protections that would not apply in protecting a person’s right to sleep.
            Furthermore, the District Attorney argues that there is no “right to sleep on public property…”. (Resp. Brief, p. 12). Here, ironically, the prosecutor appears to have fallen into a trap created by the Tobe court. When the homeless litigants in Tobe argue that the City of Santa Ana “may not deny homeless persons the right to live on public property anywhere in the city unless it provides alternative accommodations”, the court in a footnote clearly indicated that cities might get away with such cruelty, but the counties of California appear to be required to make such provisions, pursuant to Welfare and Institutions Code Sections 17000-17001.5. Id., 9 Cal.4th at 1104 fn.18.
            Here we have a clear indication that, instead of spending public resources to send out peace officers in the middle of the night to breach the peace, the county is obligated to face up to the realities that Professor Waldron so eloquently points up (Opening Brief, p. 16) by setting aside a piece of county real property for people to get a night’s sleep. Appellant pointed out this statutory duty in the Opening Brief at page 19, but the District Attorney makes no response to it. Tobe’s reference to it seems to have been studiously ignored over the past eighteen years, consistent with the above-mentioned gentleman’s agreement.

IV. THE TWO-YEAR JAIL SENTENCE IS CRUEL AND/OR UNUSUAL PUNISHMENT

            The District Attorney presents four standards by which the question of cruel/unusual punishment issue can be determined. All four of these standards require a holding in appellant’s favor:
            (1) Punishment must not be degrading to human dignity;
            (2) It must not be a severe punishment that is inflicted in a wholly arbitrary fashion;
            (3) The punishment must not be so severe as to be clearly and totally rejected throughout society; and
            (4) The punishment must not be so severe that it is patently unnecessary.
            The fact that the two-year sentence was stayed after appellant had served 84 days does not mitigate the fact that appellant is unable to get a night’s sleep in this county or anywhere in the state of California without taking the chance that he will end up spending the full two years in jail.
            It is helpful to recall that the California Constitution requires only that the punishment be cruel or unusual.



V. CONCLUSION
            The judgment below, and particularly the way it was obtained through cynical manipulation of the jury and the statutory language, perpetuates the governmental tradition of rendering the mere status of poverty itself a crime.
            One day this oppressive corruption of the law will be lifted from the shoulders of society. Such reform, however, will require that the judicial system overcome the ethical blockage that now largely prevents the courts from processing and applying considerations of human decency in the treatment of the homeless. Until that time the courts can claim the greatest proportion of responsibility for injecting poison into the social atmosphere that wreaks the ongoing degradation under which we all suffer.

Dated: February 4, 2013
Respectfully submitted,

                                                                                    ______________________________
                                                                                    Ed Frey, Attorney for Appellant
                                                                                    Gary Allen Johnson

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