California Superior Court, 2018

People v. Diaz

California Superior Court · Decided May 29, 2018 · Gill, Kaneshiro

234 Cal. Rptr. 3d 427; 24 Cal. App. Supp. 5th 1 (California Reporter, Third Series)

Counsel

Coleen Cusack, 3555 Fourth Avenue, San Diego, CA 92103, Counsel for Appellant, Tony Diaz, Mara W. Elliott, City Atty., Appellate Division, 1200 Third Ave, Suite 700, San Diego, CA 92101, Counsel for Respondent, The People of the State of California, Diaz testified the law was so vague that all he had to do was have a camper shell full of camping equipment and, to the officer, that would be habitation. He said he takes a lot of medication and gets tired, so he has to lie down. He testified the officer would tell him he would go to jail or be ticketed, and he didn't understand how he could be punished for doing all he could and using what he had "to live and get by" and to make himself "well and sheltered.", Section 86.0137(f) provides: "It is unlawful for any person to use a vehicle while it is parked or standing on any street as either temporary or permanent living quarters, abode, or place of habitation either overnight or day by day." Appellant argues in his opening brief that the statute is unconstitutionally vague because it does not define the terms "living quarters" and "habitation," and, therefore, provides no guidance as to what conduct is prohibited. In support of his argument, Appellant cites Desertrain v. City of Los Angeles (9th Cir. 2014) 754 F.3d 1147, in which that Court found a similar Los Angeles ordinance unconstitutionally vague. The Court in Desertrain found that the ordinance violated due process in that it provided insufficient notice as to what conduct was prohibited. It set forth a number of hypothetical innocent circumstances in which the ordinance could be deemed violated. ( Id . at pp. 1155-1156.), The reasonable and practical construction of the ordinance here is clear-to prevent people from living in their vehicles on city streets. The language of the ordinance is sufficiently clear to inform persons that they may not use their vehicles as homes on any street, as well as to inform law enforcement that a person utilizing his or her vehicle for a purpose that does not turn the vehicle into a place of residence does not violate this ordinance. While there may be circumstances where the facts are open to conflicting interpretations, that does not render the ordinance unconstitutional-it simply creates a factual issue for the court.

Concurring Opinion

GILL, J., concurring:

I concur.

CHARLES R. GILL, Presiding Judge, Appellate Division

Concurring Opinion

KANESHIRO, J., concurring:

I concur.

GALE E. KANESHIRO, Judge, Appellate Division

Opinion of the Court

II. Equal Protection

Appellant's equal protection argument is based on the assertion that the challenged ordinance improperly infringes on Appellant's right to travel. The California Supreme Court in Tobe analyzed this issue at length, and concluded that the ordinance in question there, which prohibited camping and storage of certain items in particular public places, did not impermissibly *432infringe on the right of the homeless, or others, to travel. ( Tobe, supra, 9 Cal.4^th at pp. 1096-1104, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) The Court cited Joyce v. City and County of San Francisco (N.D. Cal. 1994) 846 F.Supp. 843, in which that Court rejected the argument that the city must show a compelling state interest under a strict scrutiny standard, noting that the law was not facially discriminatory as it did not distinguish between residents of the city and other persons.

The California Supreme Court in Tobe reversed the Court of Appeal's judgment that the Santa Ana ordinance impermissibly infringes on the right of homeless to travel and declared:

The right to travel does not ... endow citizens with a "right to live or stay where one will." While an individual may travel where he will and remain in a chosen location, that constitutional guaranty does not confer immunity against local trespass laws and does not create a right to remain without regard to the ownership of property on which he chooses to live or stay, be it public or privately owned property. [¶] ... [W]ith few exceptions, the creation or recognition of a constitutional right does not impose on a state or governmental subdivision the obligation to provide its citizens with the means to enjoy that right. [Citations.] Santa Ana has no constitutional obligation to make accommodations on or in public property available to the transient homeless to facilitate *8their exercise of the right to travel. [Citations.]

( Tobe, supra, 9 Cal.4^th at pp. 1103-1104, 40 Cal.Rptr.2d 402, 892 P.2d 1145 ; see also, Allen, supra, 234 Cal.App.4^th at p. 55, fn.1, 183 Cal.Rptr.3d 654 [rejecting a similar claim].) We similarly conclude that the San Diego ordinance at issue does not impermissibly restrict the right to travel.

The Tobe Court noted that it was not insensitive to the importance of the larger issues raised by petitioners and amici curiae, but explained:

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. [Citation.]

( Tobe, supra , 9 Cal.4^th at p. 1092, fn. 12, 40 Cal.Rptr.2d 402, 892 P.2d 1145.)

This court is not insensitive to the struggles faced by the homeless population in San Diego or the serious collateral issues caused by homelessness within the San Diego community. However, our function is limited to judicial review of the validity of the ordinance being challenged as a result of the judgment in the trial department. As the Supreme Court in Tobe advised, broader policy considerations should be addressed by the appropriate legislative bodies.

The judgment is affirmed.

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