Opinion
7-28-1959
Virginia LAMBERT, Plaintiff and Appellant, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent. * Civ. 23343.
Samuel C. McMorris, Los Angeles, for appellant. Harold W. Kennedy, County Counsel of Los Angeles County, Donald K. Byrne, Deputy County Counsel, Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Deputy City Atty., Los Angeles, for respondent.
Virginia LAMBERT, Plaintiff and Appellant,
v.
MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent. *
July 28, 1959.
Hearing Granted Sept. 24, 1959.
Opinion, 334 P.2d 605, vacated.
Samuel C. McMorris, Los Angeles, for appellant.
Harold W. Kennedy, County Counsel of Los Angeles County, Donald K. Byrne, Deputy County Counsel, Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., William E. Doran, Deputy City Atty., Los Angeles, for respondent.
A. L. Wirin and Fred Okrand, Los Angeles, amici curiae on behalf of appellant.
FOURT, Justice.
This is an appeal from an order made in the Superior Court denying a petition for a writ of prohibition.
It is necessary for an understanding of this case that certain statutes or ordinances be set forth in part. Section 52.39 of the Municipal Code of Los Angeles provides in part as follows:
'(a) It shall be unlawful for any convicted person to be or remain in the City of Los Angeles for a period of more than five days, without, during such five-day period, registering with the Chief of Police in the manner hereinafter prescribed. * * * * * *
'(d) Every person required by this section to register shall do so by filing with the Chief of Police of the City of Los Angeles a statement in writing, signed by such person, upon a form prescribed and furnished by the Chief of Police, giving the following information:
'1. His true name and all aliases which he has used or under which he may have been known;
'2. A full and complete description of his person;
'3. The kind, character and nature of each crime of which he has been convicted;
'4. The name under which he was convicted in each instance and the date thereof;
'5. The place where each of such crimes was committed and the place or places of conviction;
'6. The name, if any, and the location of each prison, reformatory, jail or other penal institution in which he was confined or to which he was sentenced;
'7. The location and address of his residence, stopping place, living quarters or place of abode in the City; if more than one residence, stopping place, or place of abode, that fact must be stated and the location and address of each given;
'8. A statement of the kind of residence, stopping place or place of abode in which he resides, whether the same is temporary or permanent, i. e., whether the same is a private residence, hotel, apartment house or other building or structure;
'9. The length of time he has occupied such place of residence, stopping place or place of abode; and the length of time he expects or intends to remain in the City;
'10. Such other and further information as may be required by the Chief of Police for the purpose of aiding and assisting in carrying into effect the provisions and intent of Sections 52.38 to 52.43, inclusive.'
There is also a provision in the ordinance with reference to the registrant who changes his place of residence within the city. Further, each person registering is required to be photographed and fingerprinted.
The records are confidential and it is made a crime for any officer to disclose to any person any information contained in any statement other than in the regular course of his duties.
Section 52.38 of the Municipal Code of Los Angeles supplies the definition of a 'convicted person':
'(a) Any person, who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony; * * * * * *
'(f) Provided, however, that any person, except as hereinafter set forth, whose conviction is or has been set aside in a manner provided by law, shall not be deemed a convicted person; provided further, however, that one who has been convicted of the commission of one or more of the crimes referred to in Subdivision (d) hereof [sex offenses], and whose conviction has been set aside at the termination of probation, and in connection therewith, shall be considered a convicted person, as such term is used in Section 52.38 to Section 52.43 inclusive.'
Petitioner was arrested on February 2, 1955, and thereafter charged with a violation of section 52.39, subdivision (a) of the Municipal Code, supra, and was thereafter convicted and sentenced following a jury trial. The complaint set forth in effect that petitioner, hereinafter referred to as Lambert, had been convicted of an offense punishable as a felony on two separate occasions in California, once on or about May 29, 1951, and once on or about June 18, 1951, both times for forgery, and that the convictions had not been set aside.
At the trial certified copies of the judgments of conviction in the two separate cases were introduced. It was stipulated that Lambert had resided in Los Angeles for a seven and one-half year uninterrupted period, and that the convictions had not been set aside at the time of her arrest, and that she had not registered with the police department prior to her arrest. Lambert offered to prove that she did not know of the duty to register, and an objection thereto was sustained. Lambert testified that she had no knowledge that forgery was a felony in California; however, on cross-examination she stated that she had heard the charges read at the arraignment; that she talked with the deputy public defender concerning the forgery charges, and that she had entered pleas of guilty, and was present in court when the judgments were read. It was undisputed that Lambert was sentenced to prison on each of such forgery charges; that the execution of the sentance was suspended and that she was granted probation on condition that she serve ninety days in the county jail. In the trial in the municipal court Lambert was found guilty by the jury as charged. She made a motion for a new trial, which was denied. The court suspended the imposition of sentence and placed Lambert on three years summary probation on condition that the violate no law dealing with public health, welfare or morals, and further pay forthwith $250.
Lambert first appealed to the Appellate Department of the Superior Court of Los Angeles County. She contended in the trial court, among other things, that the ordinance was unconstitutional in that there was: (a) denial of equal protection; (b) denial of due process; (c) conflict with general law; (d) self-incrimination; (e) additional punishment; (f) cruel and unusual punishment; (g) police abuse of the ordinance in this case; (h) unreasonable exercise of the police power, and (i) unreasonable search and seizure.
The Appellate Department of the Superior Court filed on opinion on March 2, 1956, wherein the contentions of Lambert were rejected, and the judgment in the municipal court was affirmed. The court said, among other things, that there '* * * is no merit to the defense that she did not know she had been convicted of felonies and that she did not know she had to register with the police * * * as a convicted felon. There is no merit to the claim that the ordinance is unconstitutional.'
Lambert then appealed to the Supreme Court of the United States, and that Court rendered an opinion on December 16, 1957 (Lambert v. People of the State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228). In the appeal before the Supreme Court of the United States, Lambert urged that she was denied her rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution as follows: (1) self-incrimination is required by the ordinance under which conviction was had, in derogation of her rights under the said amendment and under Article I, section 19 of the Constitution of the State of California; (2) the security of appellant's privacy against arbitrary intrusion by the police is violated by the said ordinance; (3) due process and equal protection were denied by her unlawful arrest; (4) due process and equal protection were denied because of the bias and prejudice of the trial judge; (5) the ordinance, the violation of which appellant was convicted, is too vague, indefinite, and uncertain to constitute valid criminal legislation; (6) the complaint filed against appellant does not state a cause of action; (7) evidence resulting from unlawful arrest was introduced against appellant; (8) the trial court excluded relevant facts which were proffered by appellant and which would tend to show the illegality of appellant's arrest, and thereby denied appellant equal benefit of settled principles of law; (9) the requirement of mens rea, or wilful misconduct, was improperly abolished by the ordinance and by judical interpretation thereof; (10) appellant was denied equal benefit of the rules of court. * * *
Lambert further stated in her brief before the United States Supreme Court, 'Specifically, the said ordinance and the proceedings pertinent hereto, constitute a denial of equal protection and of due process of law; cruel and unusual punishment; forced self-incrimination; unreasonable exercise of the police power; the ordinance is too vague to constitute valid criminal legislation, permits and encourages unreasonable search and seizure, and, in the instant case, served as a vehicle for police abuse.'
The Supreme Court apparently 'invited' amicus curiae to file a brief, and such a brief was filed, wherein it was urged by such counsel that: 'I.
'Conviction under the ordinance in the absence of wrongful intent violates due process of law. A. Appellant neither knew nor should have known of the existence of the ordinance making her innocent and passive status a crime. B. Due process requires proof of wrongful intent for conviction of the crime created by the ordinance.' And that 'The ordinance is an unwarranted invasion of the right of privacy, right to liberty, and privileges and immunities of a citizen of the United States in that it penalizes a morally innocent and passive status and is not reasonably restricted to the evil with which it purports to deal. A. Constitutionally-protected rights are invaded by the ordinance. Right of privacy. Right to liberty. Privileges and immunities. B. Status as a 'convicted person' does not justify the ordinance's infringement of constitutional rights. C. The ordinance is not reasonably restricted to evil with which it purports to deal.'
The Supreme Court 'reversed' the judgment.
During the early part of 1958, proceedings were commenced in Los Angeles County to the end that a new trial would be had in the municipal court. On February 26, 1958, Lambert filed a petition for a writ of prohibition in the Superior Court seeking that court's order prohibiting a new trial in the municipal court. The Superior Court refused an alternative writ and this appeal follows from such order.
Lambert presently contends, among other things, that the municipal court has no jurisdiction because of the statute of limitations; that the trial would impose double jeopardy on her; would involve the application of an ex post facto law, and that she does not come within the law. Her main contention, however, is that section 52.39 of the ordinance is unconstitutional because: 'a. The ordinance conflicts with state law; b. The ordinance is beyond the legislative power of the municipality; c. The ordinance contains no provision for notice on its face; d. The ordinance is too vague, indefinite, and uncertain to constitute valid criminal legislation; e. The ordinance contains an unconstitutional delegation of legislative power; f. Equal protection is denied by unequal and unreasonable classification; g. The ordinance requires a kind of self-incrimination; h. The ordinance inflicts cruel and unusual punishment; i. The ordinance is ex post facto and a bill of attainder; j. The ordinance denies privileges and immunities; k. The ordinance is an unreasonable exercise of police power.'
Lambert asserts that the Supreme Court of the United States, in Lambert v. People of State of California, supra, declared the ordinance void and of no effect whatsoever, whereas the respondent asserts that the court made no such declaration.
I am of the opinion that the Supreme Court held that as applied to Lambert, under the circumstances set forth in its opinion, the ordinance violated the due process requirement of the Fourteenth Amendment. However, I do not believe that the Court held that the ordinance was void and unconstitutional on its face, nor do I believe that the Court held that no valid conviction could be had under the ordinance. Through Mr. Justice Douglas, the opinion of the Supreme Court sets forth, among other things, that Lambert asserted in that Court that she had been denied 'due process of law and other rights under the Federal Constitution, unnecessary to enumerate.' (Emphasis added.) The Court further said (355 U.S. at page 231, 78 S.Ct. at page 242): 'The case having been argued and reargued, we now hold that the registration provisions of the Code as sought to be applied here violate the Due Process requirement of the Fourteenth Amendment.' (Emphasis added.) I assume that the Supreme Court considered all of the matters and contentions which Lambert had raised on the appeal before that Court, and in effect dismissed as being without merit all of the questions and contentions raised and heretofore set forth with respect to the unconstitutionality of the ordinance itself, and grounded its reversal of the conviction solely upon the due process question and the consequent unconstitutionality of the ordinance as it was applied to Lambert. Among other reasons, I make such assumption because the court made no mention, and no disposition of the 'other rights under the Federal Constitution, unnecessary to enumerate.'
The Supreme Court also set forth the following 355 U.S. at page 231, 78 S.Ct. at page 242:
'We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.' (Emphasis added.)
The truth or falsity of whether Lambert had no actual knowledge, or the probability of such knowledge of the requirement to register was never passed upon by the trier of fact. As has been pointed out hereinabove, objection was sustained in the trial court to Lambert's offer to prove that she did not know of the duty to register. If the question is one of whether Lambert had knowledge or notice of the requirements of the ordinance, then and in that event the question should be determined by the trier of the facts. As a matter of fact, in one of the briefs filed by the prosecution, the following appears:
'A review of our records shows that on October 30, 1951 the defendant was given written instructions which embodied the conditions of probation as imposed by the Court on August 17, 1951, and also the usual instructions to probationers. We are enclosing a photocopy of the instructions as given to Mrs. Lambert and as signed by her.
'Our records further show the following notation dated October 30, 1951: 'Advised to register.' In accordance with our practice that indicates that Mrs. Lambert was advised by the Deputy Probation Officer to register with the Los Angeles Police Department in accordance with the City's Registration Ordinance.' (Emphasis added.) The probation officers for years had directed probationers who were required to register to do so, and in fact, presently such procedure is formalized in the Department's Manual of Instructions.
The Supreme Court further said:
'There is wide latitude on the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. * * * But we deal here with conduct that is wholly passive--mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. * * * The rule that 'ignorance of the law will not excuse' * * * is deep in our law, as is the principle that of all the powers of local government, the police power is 'one of the least limitable.' * * * On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice.'
The Court went on to draw the analogy or parallel between the cases holding that there must be notice in situations having to do with property interests, and saying that, '* * * the principle is equally appropriate where a person, wholly passive and unaware of any wrongdoing, is brought to the bar of justice. * * *' (Emphasis added.)
The Court, at this point cited civil cases which held, in effect, that substituted service was invalid where personal service or actual notice was both possible and feasible. The Court then went on to state 355 U.S. at pages 231-232, 78 S.Ct. at page 243: 'Registration laws are common and their range is wide,' and that the ordinance in question was different in that, '[v]iolation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test.' The Court then volunteered that, 'At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is complied.' It was then stated, 'Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent.' (Emphasis added.) There is nothing in the evidence to warrant such a statement. Counsel for Lambert did, at the time of making a motion in arrest of judgment, make a statement to the effect that his client had been so treated, but the Supreme Court apparently assumed that such statement as made by counsel was true The prosecution contends that it is able to refute conclusively any such statement.
The Supreme Court further said, 'We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.' (Emphasis added.) The Court concluded by saying, 'Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.'
Mr. Justice Burton dissented because he did not believe that, as applied to Lambert, the ordinance was unconstitutional. Mr. Justice Frankfurter wrote a dissent, concurred in by Mr. Justice Harlan and Mr. Justice Whittaker, in which it was said that the majority decision '* * * will turn out to be an isolated deviation from the strong current of precedents--a derelict on the waters of the law.'
It seems to me that had the prosecution established that Lambert had received notice and knew of the requirement to register, that the conviction would have been valid and would have been sustained. In other words, if the prosecution is able to establish, for example, that a defendant in a prosecution under the ordinance (1) received written instructions upon leaving prison to the effect that if he went to Los Angeles he would be required to register as an ex-convict; (2) received from his parole officer, upon arriving in Los Angeles, a copy of the ordinance, and was told by the parole officer to register and was given and receipted for a copy of the ordinance; and (3) was told by the police upon arrival here that he should comply with the provisions of the ordinance within due time or suffer the consequences--that under such circumstances it could be said that the ex-convict had reasonable notice of the requirement to register and there would be little substance to any argument to the effect that he did not have legal notice of the requirement to so register. Or, for example, if a defendant in a felony prosecution was found guilty, but not sent to prison, as is the case of Lambert, but the execution of the sentence was suspended and the defendant was put on probation, and the probation officer told the defendant about the usual reports which would be required by that office, and about the requirement to register as a convicted person, it would appear that such defendant had received sufficient notice of the law with reference to registration; and that if such person paid no attention to the requirement to make reports, and paid no attention to the requirement to register, that then and in such event, such person could be convicted validly under the ordinance without any denial of due process.
It appears to me that the ordinance is directed at the evil of professionalism in crime, and that it is constitutional under the police power. The people of the city, through their police, are entitled to know of the presence of the persons who have previously been convicted of felonies, in order to be better able to cope with crime and all its ramifications. There is no added punishment or penalty by reason of a person's having the status of ex-convict, nor does the ordinance restrict the movement of an exconvict. All that is required is notice of his presence and whereabouts, and some other data, which is in nowise damaging to the person giving the information, if such person is conducting himself properly and within the law. It may be true that it is irritating and restrictive upon some of the personal liberties of the ex-convict, but there is nothing new about the proposition that a statute can be constitutionally valid and at the same time, in terms of policy, be undesirable to some people. It is important in a society such as ours that the overall safety of the entire community be served and protected. It appears to me that all must, and we all do, in many ways bend to the good of society as a whole and that ex-convicts should not be excluded.
There are many provisions in our law which in effect penalize an ex-convict to some degree. See Constitution of California, Article XX, section 10 (disqualified from holding office if convicted of bribery), and section 11 (excluded from office, denied right of serving on juries, and the right of suffrage, if person convicted of bribery, perjury, forgery); Article IV, section 21 (ineligible to any office of trust or profit in this State if convicted of certain offenses); sections 1021 and 1405 of Government Code (disqualified from holding office, and no person shall be appointed a special policeman); sections 298 and 299 of Elections Code (if registered voters convicted of certain crimes, names stricken from records); section 92, Civil Code (divorce granted for conviction of felony); sections 199 and 2051, Code of Civil Procedure (not competent as a juror; witness impeachable, if convicted of felony); sections 98, 1072 and 1202 of the Penal Code (forfeiture of office, challenge of juror, ineligible for probation under certain conditions).
It is true that there are differences of opinion as to whether a person heretofore convicted of a felony will be more likely to commit a crime than one who has never been convicted of any crime. Statistics can be presented to substantiate almost any view in the premises. It was said in an article 'The Treatment of Recidivists' (Journal of Criminal Law, Criminology and Police Science, Vol. 47, page 1) among other things, the following: 'The following figures may serve as an illustration of the proportion which this issue is presently assuming. According to a report recently received from the Bureau of Criminal Statistics of the California State Department of Justice, only about 15.5 percent of the total of male admissions to California state prisons are without prior commitment, which leaves 84.5 percent of the men admitted with prior records. To be sure, this percentage of prior commitments includes misdemeanors and juvenile commitments. On the other hand, 35.7 percent of the admissions had had one or more prior prison records.'
There are many and varied views as to what should be done about the matter. The author of the article above mentioned stated in this regard:
'In the light of the foregoing, it seems to me that our only hope in reducing crime is to radically revise our own attitude toward nonconformists. In our ruthlessly competitive society, most crimes are the tragic results of the struggle for survival; they are committed by men and women who either doubt their ability to compete successfully, or who for various reasons are actually unable to do so. One answer, and in my opinion the only answer, is to try to free these endangered and therefore dangerous human beings from their fears; and this is a therapeutical, educational and sociological task which can be carried out only by highly trained personnel in an atmosphere of intelligent understanding. * * * * * *
'More than a generation ago, Mead, in his 'Psychology of Punitive Justice,' pointed to the irreconcilability of the following two attitudes: '* * * that of control of crime by the hostile procedure of the law, and that of control through comprehension of social and psychological conditions. * * * To understand is to forgive and the social procedure seems to deny the very responsibility which the law affirms, and on the other hand the pursuit by criminal justice inevitably awakens the hostile attitude in the offender and renders the attitude of mutual comprehension practically impossible. * * *'' (Emphasis added.)
As a very practical matter, there is a definite problem in Los Angeles. It is interesting to note that apparently in answer to a request of counsel who acted as a friend of the Court, the information division of the police department set forth that by June of 1957, 43,313 felons had registered in the city under the ordinance now under consideration--further, that the Department of Corrections in California, prior to the release of a prisoner, advises such person of the local ordinances pertaining to registration, and that the parolee is again advised of the necessity for registration upon his release by his parole officer.
The statistical data of the police department indicate that as of June, 1959, 50,025 ex-felons had registered under the ordinance and that for the first six months of 1959 over 2,250 ex-felons registered in the city.
It was stated by the City Attorney, and I believe correctly so, at the time matter was submitted to the Supreme Court of the United States: 'It must be assumed that the legislative body ahd reason to believe there was a need for such legislation; that there was shown to said body some facts and figures which justified their belief that persons who had been previously convicted of felonies and certain types of misdemeanors were more likely to repeat in their activities and to cause harm to the inhabitants of the city, and that by requiring their registration, potential evil could be corrected to some degree; that the requirement of such registration would deter and cause persons registered to try harder to stay within the law; that such legislation would enable law enforcement agencies to keep better track of those persons in the community more inclined to engage in criminal activities and would afford a better means of seeing that the various laws relating to persons previously convicted of felonies were enforced. It would also aid law enforcement in apprehending those who had committed a current crime by reason of their being registered as present in the community where the pattern of the current crime committed was known to have the same pattern, operation and method used in the past by such persons.'
The ordinance, when complied with and enforced, certainly aids the police in the enforcement of the law which prohibits the possession of firearms by ex-convicts, and aids in the parole and supervision of persons in that field. The ordinance, in many cases, would be of assistance to the police if an ex-convict were being victimized by some unscrupulous person because of his past experiences. The ordinance could well be a deterrent to any new criminal endeavors by a registrant, and particularly so if the registrant contemplated that with his method of operation the police might well know where to look to find him. The classification is a perfectly reasonable one (Skinner v. State of Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655; In re Rameriz, 193 Cal. 633, 226 P. 914, 34 A.L.R. 51; People v. James, 71 Cal.App. 374, 235 P. 81; People v. Dunlop, 102 Cal.App.2d 314, 227 P.2d 281), and is no more burdensome than the requirement of registration of aliens (Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581), passengers on a ship (Mayor, Aldermen and Commonalty of City of New York v. Miln, 11 Pet. 102, 9 L.Ed. 648), members of secret organizations (People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184), lobbyists (United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989), foreign agents (United States v. Peace Information Center, D.C., 97 F.Supp. 255), bookmakers (United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754), bootblacks (City of Manchester v. Leiby, 1 Cir., 117 F.2d 661), taxi drivers (Walton v. City of Atlanta, 5 Cir., 181 F.2d 693), voters and person engaged in certain types of businesses.
The police power of the state '* * * springs from the obligation of the state to protect its citizens and provide for the safety and good order of society. Under it there is no unrestricted authority to accomplish plish whatever the public may presently desire. It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury.' Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 622, 623, 55 S.Ct. 563, 567, 79 L.Ed. 1090, 1097.
In Walton v. City of Atlanta, supra, the court said, among other things (181 F.2d at page 694):
'We cannot say that it would not be within the power of a state to require all inhabitants to have their finger prints taken by the police; and, if so, we see no reason why all members of the class known as bus or taxi drivers should not be so required. The same is true as to the $3 fee and the requirement of a photograph being furnished by each applicant for a license. * * * The assailed provisions are not void upon the face of the ordinances; but if they are administered with an evil eye and in a discriminatory manner, our judgment herein shall be without prejudice to the appellants' several rights to recover damages for the deprivation, under color of said ordinances, of any right, privilege, or immunity secured to them by the Constitution and laws of the United States, providing for the equal rights of citizens or of all persons within the jurisdiction of the United States.'
And in City of Manchester v. Leiby, supra, 117 F.2d at page 666, it was said: "Even the exercise of religion may be at some slight inconvenience in order that the state may protect its citizens from injury. Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent."
All presumptions and intendments are in favor of the constitutionality of the statute. People v. Western Fruit Growers, 22 Cal.2d 494, 140 P.2d 13; In re Porterfield, 28 Cal.2d 91, 168 P.2d 706, 167 A.L.R. 675. It is set forth in 11 American Jurisprudence at pages 1140-1142 as follows:
'In accordance with the general principle that all rights are subject to a proper exercise of the police power, it is well settled that the possession and enjoyment by the individual of his right of liberty are subject to such reasonable regulations and restraints as may be imposed by the state in the exercise of the police power in order to preserve the health, safety, morals, and welfare of the community. Thus, without violating the constitutional guaranty of liberty, the state may forbid one to make use of polluted water for drinking purposes, may provide for the sterilization of a feeble-minded inmate of a state institution who is the daughter of a feeble-minded mother and the mother of an illegitimate feeble-minded child, may prohibit one, under penalty, from becoming a member of a secret, oathbound association which has not filed a copy of its constitution, bylaws, rules, regulations, and oath of membership, and the roster of its membership, and may prohibit the publication of information which would have a tendency to induce people to gamble.
'It seems to be generally agreed that the legislature in enacting a police regulation may include within the purview of the statute acts innocent in themselves where the inclusion of such acts is necessary in order to make the regulation effective. Hence, in such matters a law may expressly prohibit and make criminal the doing of an act which, in the absence of such law, would constitute a right of liberty within the meaning of the Constitution, even though such act may not in itself be immoral. * * *
'* * * The prevailing view is that individual rights must yield to proper and reasonable regulation imposed for the best interests of the entire community. * * * * * *
'* * * Without in any way violating the constitutional guarantees as to liberty, a citizen may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country and risk his life in its defense.'
The case of Reyes v. United States, 9 Cir., 1958, 258 F.2d 774, 776, involved a prosecution for the violation of a statute regulating border crossings of narcotic addicts or any person '* * * who has been convicted of a violation of any of the narcotic or marihuana laws of the United States, or of any State thereof * * * shall depart from or enter into or attempt to depart from or enter into the United States, unless such person registers. * * *' The court held, in effect, that it was not necessary to show intent to violate the statute, nor to show knowledge of such statute by one charged with its violation. The court drew heavily from what was said in United States v. Erandjian, D.C. 1957, 155 F.Supp. 914. In referring to Lambert v. People of State of California, supra, the court pointed out that the Supreme Court 'assumed' Lambert had no knowledge of the existence of the ordinance requiring registration. I have heretofore pointed out that from the record before us, no such assumption can correctly be made, and at best there would be a conflict between the statement of the probation officer to the effect that Lambert was notified to register, and Lambert's statement that such was not the case, or that if she was told such, she did not understand it. The court in the Reyes case further interpreted the Lambert case, and said (258 F.2d at page 784): 'The question in the Lambert case was 'whether a registration act of this character violates Due Process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.'' The court also pointed out in a footnote (at page 785, footnote 9): "Narcotic offenders are generally recidivistic in that the addict by definition is engaged in a course of repetitious behavior and those engaged in selling narcotics are predominantly either professionals or addicts."
In another recent case, United States v. Juzwiak, 2 Cir., 258 F.2d 844, the court affirmed a lower court conviction where the defendant left the country without first registering as a narcotic violator. Juzwiak had been convicted of a narcotic violation in the New York state court, and left the United States without registering. He testified at the trial that he did not know of the statutory requirement to register when he accepted employment as a seaman on a ship bound for Europe. He said he first learned of the registration requirements when he was questioned by the authorities upon his return. The evidence disclosed that notices of the statutory requirement to register were posted at the union hall, the employment office and on board ship, where the defendant had previously been. The court said, among other things (at page 845):
'It has generally been held that when criminal intent has not been made an essential element of a statutory crime, such intent need not be alleged or proved to sustain a conviction. [Citing cases and authorities.] In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, the Supreme Court discusses crimes whose sources are in the common law and, as such, require proof of criminal intent to sustain a conviction, and those where the crime depends upon no mental elements, but consist only of acts or omissions forbidden by statute. The offenses included in this latter category are sometimes referred to those involving public welfare.'
The court in the Juzwiak case quoted from United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 302, 66 L.Ed. 604, in part as follows (258 F.2d at page 846): "It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. [State of] Minnesota, 218 U.S. 57, 69, 70, 30 S.Ct. 663, 666 , in which it was held that in the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide 'that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.' Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se."
The court also referred to the Lambert decision and set forth that 'she had no knowledge of the existence of the ordinance,' which is undoubtedly but a misstatement of the Supreme Court's assumption that she 'had no actual knowledge of the requirement that she register,' which, as I have heretofore pointed out, was an erroneous assumption, and certainly not a fact which was established by evidence or otherwise. The court went on to quote from the Lambert case, wherein the Supreme Court had said (258 F.2d at page 847): "We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand." The Circuit Court in the Juzwiak case then held that the showing of the defendant being in the union hall, at the employment office and on board ship, where such notices were posted, satisfies the 'probability of such knowledge' requirement. Chief Judge Clark of that Court concurred in the result, and said among other things (258 F.2d at pages 847-848): 'I do not really see a more positive act by this seaman in leaving the country with his ship than Lambert's continued stay in Los Angeles; and I am dubious as to the reality of notice through posters to ordinary seaman coming in and going out of the country. On the other hand, this legislation obviously assists in the execution of a strongly held Congressional policy for the control of the traffic in narcotic drugs. Courts must be slower to strike down such a policy, whatever doubts they may have as to its ultimate wisdom, than to invalidate legislation such as the Los Angeles ordinance in the Lambert case, which was at most 'but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled.''
A reading of the terms of the ordinance demonstrates that it is far more than just a list of the names and addresses of felons residing in Los Angeles.
I think there is no merit to any of the contentions of appellant, and that the order of the superior court in denying a writ of prohibition should be affirmed.
Order affirmed.
LILLIE, J., concurs in the judgment.
WHITE, Presiding Justice.
I dissent.
To me it appears that the sole question presented to us is whether respondent's contention that the decision of the Supreme Court of the United States when the conviction of appellant was before that tribunal on appeal (Lambert v. People of the State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228, 231), did not hold the municipal ordinance here in question unconstitutional on its face but merely held that the ordinance, as sought to be applied to appellant, violated the due process requirement of the Fourteenth Amendment to the Federal Constitution, is correct.
Based upon a careful reading and mature consideration of the decision of the United States Supreme Court, I am persuaded that the holding of that court was that no valid conviction can be predicated upon an ordinance which is not concerned with crimes of commission, but with offenses of omission, unless the accused is made aware of his obligation, has knowledge thereof, and wilfully omits to comply therewith.
I am satisfied that inherent in the decision of the Supreme Court of the United States is the philosophy that while intent is not necessarily an element of crime, and the police power of local government is broad and one of the most freely exercisable instruments of enforcement, that nevertheless, when an act of omission is made punishable an individual must have actual knowledge of its criminality.
As was said by the United States Supreme Court in reversing the conviction of appellant herein, '* * * No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.' I am persuaded that a statute, though valid on its face but administered unconstitutionally should be invalidated.
After noting that registration ordinances are common and that their range is wide, as indicated by cases cited in the opinion, the court (355 U.S. at page 232, 78 S.Ct. at page 243) went on to say: 'But the present ordinance is entirely different. Violation of its provisions in unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Homes wrote in The Common Law, 'A law which punished conduct which would not be blameworthly in the average member of the community would be too severe for that community to bear.' Id., at 50. Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.' (Emphasis added.)
Since the appellate department of the Superior Court (the court of last resort on appeal in the instant case) has held that actual knowledge of the requirement to register under the Municipal Code provision is not a prerequisite to conviction thereunder, and the United States Supreme Court has held to the contrary, we are bound by the latter's ruling, and until the ordinance in question is amended to include the essential element of knowledge and consequent wilfulness, no valid conviction can be based thereon.
It would reverse the order of the court below denying the petition for a Writ of Prohibition. --------------- * Opinion vacated 3 Cal.Rptr. 168, 349 P.2d 984.