IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CRUZ IN RE THE MATTER OF LINDA LEMASTER, Petitioner, On Habeas Corpus. No. Superior Court No. M55730 Honorable Paul Marigonda TRAVERSE OF RETURN TO WRIT OF HABEAS CORPUS AND BRIEF IN SUPPORT THEREOF JONATHAN CHE GETTLEMAN (SBN# 243560 223 River Street, Suite D Santa Cruz, CA 95060 Tel: (831427-2658 Fax: (831 515-5228 Jonathangettleman@yahoo.com Attorney for Petitioner LINDA LEMASTER
TABLE OF CONTENTS PETITION FOR WRIT OF HABEAS CORPUS................................ 1 VERIFICATION....................................................... POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS..................................................... STATEMENT OF FACTS................................................ ARGUMENT.......................................................... INTRODUCTION..................................................... I. THE FILING OF THIS PETITION PRETRIAL FOR A DETERMINATION OF CONSTITUTIONAL RIGHTS IS THE PROPER PROCEDURE........... II. PENAL CODE SECTION 647(e IS OVERBROAD AS APPLIED TO PETITIONER S FIRST AMENDMENT ACTIVITY IN VIOLATION OF ARTICLE ONE, SECTION TWO OF THE CALIFORNIA CONSTITUTION AND THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION... A. Application of the First Amendment to Speech and Expressive Activities.... B. Petitioner Was Engaged in Protected First Amendment Conduct at the Time of Her Citation... C. Overbreadth Doctrine as Applied in a First Amendment Context... D. As Applied to a First Amendment Context Generally and to Petitioner Specifically Penal Code Section 647(e is Over Broad and, Therefore, Violates Petitioner s Rights Pursuant to Article One, Section Two of the California Constitution and the First and Fourteenth Amendments to the United States Constitution... 1. Introduction to the Overbreadth Doctrine in a First Amendment Context... 2. The History of Penal Code Section 657, subsection (e... 3. The Application of 647(e to Petitioner s Facts Clearly Establishes the 647(e as Applied to Petitioner is Over Broad... Page i
4. The Use of Penal Code section 647(e in a First Amendment Speech and Expression Setting Chills Free Speech on its Face... III. PENAL CODE SECTION 647(e IS UNCONSTITUTIONALLY VAGUE AND FOR THAT REASON SHOULD BE VOIDED... A. Penal Code 657(e is Unconstitutionally Vague Because It Does Not Provide Fair Notice of the Conduct Proscribed... B. Penal Code 657(e is Unconstitutionally Vague Because It Fails to Provide Sufficiently Definite Standards of Application to Prevent Arbitrary and Discriminatory Enforcement... CONCLUSION...................................................... EXHIBIT A: PETITIONER S DECLARATION.............................. EXHIBIT B : TRIAL COUNSEL S DECLARATION......................... DECLARATION OF WORD COUNT...................................... DECLARATION OF SERVICE........................................... Page ii
TABLE OF AUTHORITIES Constitutional Provisions California Constitution, Article I, section 2......................... United States Constitution, First Amendment........................ United States Constitution, Fourteenth Amendment.................... Cases Castro v. Superior Court of the State of California for the County of Los Angeles (1970 9 Cal.App.3d 675... Clark v. Community for Creative Non-Violence (1984 468 U.S. 288... Edwards v. City of Los Angeles (1941 48 Cal.App.2d 62... Freedman v. Maryland (1965 380 U.S. 51... In re Cox (1970 3 Cal.3d 205... In re Berry (1968 68 Cal.2d 137... Joyce v. City and County of San Francisco (1994 846 F.Supp. 843... Kolender v. Lawson (1983 461 U.S. 352... Papachristou vs. City of Jacksonville (1972 405 U.S. 156... th People vs. Heitzman (1994 9 Cal. 4 189... People v. Scott (1993 20 Cal.App.4th Supp. 5... Roberts vs. Casey (1939 36 Cal. App.2d Supp.767... Shuttlesworth v. Birmingham (1965 382 U.S. 87... Smith v. Goguen (1974 415 U.S. 566... Snatchco v. Westfield, LLC (2010 187 Cal.App.4th 494... Spencer v. City of San Diego, Civil Case No. 04-CV-2314 BEN (2004- United States District Court... Stowe v. Fritzie Hotels, Inc. (19 44 Cal.2d. 416... Terminiello v. Chicago (1949 337 U.S. 1... Tobe v. City of Santa Ana (1995 9 Cal.4th 1069... United Farm Worker v. Superior Court of Monterey County (1976 16 Cal.3d 499... Statutes Civil Code section 1946... Civil Code section 1946.5... Civil Code section 1940... Code of Civil Procedure section 1159... Evidence Code section 452... Penal Code section 647... Page iii
IN RE THE MATTER OF LINDA LEMASTER, Petitioner, On Habeas Corpus. No. Superior Court No. M55730 Honorable Paul Marigonda TRAVERSE OF RETURN TO WRIT OF HABEAS CORPUS TO THE HONORABLE PAUL MARIGONDA, ASSIGNED JUDGE OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CRUZ: Petitioner, Linda Lemaster, by and through her attorney, Jonathan Che Gettleman, respectfully files this traverse to Respondent s Return to Petitioner s Writ of Habeas Corpus (Entitled Opposition to Petitioner s Writ of Habeas Corpus, and set forth the following facts and causes for the issuance of said writ: I. A WRIT OF HABEAS CORPUS IS THE PROPER PROCEDURE FOR DETERMINING PRETRIAL CONSTITUTIONAL CHALLENGES WHERE MATERIAL FACTS ARE NOT IN DISPUTE. A. Petitioner Objects to Respondent s Non-verified Return. Penal Code section 1480 requires that, The return must be signed by the person making the same, and, except when such person is a sworn public officer and makes such return in his official capacity, it must be verified by his oath. Id. Simply said, the return must be sworn so the Court can have confidence in the facts asserted from both sides. Respondent s Return contains three exhibits: Exhibit 1 is one partial unsigned, Page -1-
unsworn and unverified police report comprised of rank hearsay statements by police officers related to the incident resulting in Petitioner s citation. Respondent could have obtained sworn statements from the witnesses involved and chose not to do so. Many of the law enforcement witnesses testified about the same incident at trials resulting from the same incident. The Court should not accept such rank and multiple hearsay statements as properly alleging facts for the purposes of Return of an Order to Show Cause. Exhibit 2 is a flyer which was previously submitted as Petitioner s Exhibit E and is not in dispute. Exhibit 3 is an internet blog purported by Respondent to have been written by Petitioner. Respondent offers the blog as a basis for admissions regarding whether Petitioner slept on the night at issue. Respondent provides no evidence authenticating the blog nor establishing that Petitioner in fact wrote it. A casual observation of the blog reveals that Linda Lemaster did not even post the text. Becky Johnson posted the text. The text is hearsay, if not double hearsay. Without authentication or some foundation it cannot constitute an admission to any fact. The above three documents are the basis of all facts stated in Respondent s Return. No facts in the Return are verified. Penal Code section 1480. The Return s exhibits 1 and 3 are also insufficiently reliable on their face based on the nature of the hearsay documents. Therefore, Respondent s exhibits 1 & 2 should not be credited with providing facts sufficiently authenticated and verified to place facts in Petitioner s verified Petition in dispute. Page -2-
B. An As Applied Challenge to a Statute Can Occur Pretrial. Respondent s Return of the Writ in the present case asserts that an as applied challenge to a statute cannot be determined pretrial. [See Opposition to Petitioner s Writ of Habeas Corpus and Brief in Support Thereof (hereinafter Return, p. 5-7] Respondent is incorrect. Respondent first cites, In Re Cox (1970 3 Cal.3d 205, 224 to support its position. The Court in Cox addressed the problem of an appellate court facing a situation of unresolved facts between parties that is determinative of the outcome. Id. However, the material facts in the present petition are in front of the trial court and not in dispute as will be demonstrated below. The California Supreme Court also held that where the critical facts before the court are not in dispute, a habeas court may issue the writ pretrial. In Re Berry (1968 68 Cal.2d 137, 145. Respondent expressly acknowledges In Re Berry this authority. (Return, p.6; see Appeals and Writs in Criminal Cases section 9.23. B. Respondent has Not Placed Material Determinative Facts in Dispute to Preclude Pretrial Writ Proceedings to Petitioner s As Applied Constitutional Challenge. The sufficiency of habeas pleading requirements related to Returns was addressed in an exhaustive manner by the California Supreme Court in People v. Duvall (1995 9 Cal.4th 464. At the Return stage the Respondent must...either admit the factual allegations set forth in the habeas corpus petition, or allege additional facts that contradict those allegations. Id. at 483. In Duvall, the Court found that, The four paragraphs that were generally denied by Respondent were the key paragraphs in the petition that explain the alleged factual and Page -3-
legal basis for the requested relief. Although it is true the return specifically denied petitioner received ineffective assistance of counsel at trial, it did not indicate the factual basis on which the people reach that conclusion. Such assertions do not assist the appellate court in identifying the factual issues in dispute. Accordingly, they may fairly be characterized as general denials for the purposes of habeas corpus pleading. Id. at 481-82. The finding of a pleading being a general denial as opposed to a specific denial is significant. The Duvall Court ruled, By failing to allege facts demonstrating the lawfulness of the challenged detention, a return containing on general denials is deficient in two important ways. First, such a return fails to fulfill its function of narrowing the facts and issues to those that are truly in dispute... Second, failure to allege facts in the return prevents a habeas petitioner from controverting those facts in his or her traverse... Id. at 480. In the present case, the Return does nothing more than make general factual denials, which, in turn, Respondent claims to put Petitioner s facts at issue. The Return completely fails to allege facts that form the basis of Respondent s conclusions that Penal Code Section 647(e is constitutionally valid as applied to Petitioner s actions or on its th face. (See Return, p. 1-3 Id. at 481-82; accord In Re Marquez (6 Dist. 2007 153 Cal.App.4th 1, 14 (The Board's denial that petitioner received ineffective assistance of counsel did not indicate the factual basis upon which the Board reached that conclusion and thus could fairly be characterized as a general denial as it did not assist this court in identifying material factual issues actually in dispute. Therefore, as demonstrated in the following section, the Return fails to place any material facts or law in dispute. Page -4-
1. Facts Alleged in the Return s Statement of Facts Are Not In Dispute. Petitioner incorporates all the facts stated in her Petition for Habeas Corpus and its accompanying exhibits as if fully re-alleged herein. In its memorandum, Respondent alleged some specific unverified facts that are not contested by Petitioner. The Return responded generally to the facts alleged in the petition and then alleged certain facts in the memorandum. (Return p. 6. Petitioner responds as follows: 1 Petitioner does not contest the date and time of contact. 2 Petitioner does not dispute that only individuals who initially appeared to be sleeping were contacted by officers, given flyers and commanded by law enforcement to leave. The two persons not sleeping immediately agreed to leave upon contact. (Return, p. 6. For the purposes of this Petition, Petitioner will not dispute that all but two of twenty people who had already agreed to leave were contacted and threatened with citation for not leaving. 3 Petitioner does not dispute that Petitioner may have appeared to law enforcement to be sleeping. Petitioner also does not dispute, for the purposes of this petition, that at the time of initial contact she may have inadvertently fallen asleep. Respondent fails to explain how this fact is relevant to the constitutional overbreadth analysis on its face or as applied. Petitioner was cited for lodging for not leaving the courthouse upon command of law enforcement after she was awake, that much remains undisputed. (Return, Exhibit 1, p. 8. Page -5-
4 Petitioner does not dispute that after initial contact, Deputies allowed people who wanted to leave to do so and no further contact was made with those who left. The relevant fact is that anyone who did not agree to leave was cited. 5 Petitioner does not deny that after ten minutes deputies re-contacted those who decided did not leave, including defendant and cited them for 647(e because of their failure to leave. (Return, p. 6 Petitioner asserts that she was cited while awake and seated and while asking deputies what lodging meant and why did she have to leave. 6 Respondent does not provide any support for the fact that deputies did not contact persons sitting, standing, walking or otherwise not sleeping after the initial contact. (Return, p. 4. In Exhibit 1, page ten of the Return the deputy clearly states he contacted individuals sitting near their items and cited them when they refused to leave. Whether sitting or lying, the relevant issue is whether protected First Amendment activity was occurring and whether lodging was interpreted so broadly as to permit the now awakened protesters no legal option accept to leave, and thus stop the demonstration, or face citation. 7 In the body of its argument, Respondent concludes that Petitioner s conduct leading to the citation is in dispute, and the manner and method in which the deputies enforced the code section is also in dispute. Until these facts are resolved at trial, an as applied determination cannot be made. (Return, page 6. This statement is a classic general denial. It provides no specific information as to what conduct of the defendant or Page -6-
manner and method of enforcement is in dispute. Duvall, supra, 9 Cal.4th at 480. Petitioner effectively has no specific material factual allegations to dispute other than those specifically averred in the Return that are materially consistent with the petition. Id. at 475. Finally, the Return also notes in the context of argument that Petitioner does not claim that she was engaged in First Amendment conduct at the time of the violation. Therefore, the question of whether Petitioner s conduct fell under the rubric of the First Amendment remains in dispute. (Return, p. 6-7. Whether petitioner was engaged in First Amendment activity is a legal conclusion and not a factual issue. Therefore, no material dispute of fact exists. Moreover, none of the facts raised above contradicts any facts stated in the Petition 1 itself. Petitioner notes that all the other material facts raised in the Petition, related to the nature of the event as a protest and other material facts, are completely ignored and uncontested by the Return. The Return also concedes all of the facts in the Petition s exhibits by not contesting them or even acknowledging their existence other than to state, The Respondent objects to the Petitioner s request to take judicial notice of the exhibits, since they are irrelevant to a facial challenge of Penal Code section 647(e. (Return, p. 3. 1 One exception is that Petitioner initially claimed that all persons were given warnings. Apparently two people who immediately agreed to leave did not get warnings. Petitioner concedes this point for the purposes of this petition. Page -7-
Petitioner s Exhibits 7 and 8 are equally applicable to the facial challenge. Without any specific reference to a legal basis for their exclusion, Respondent s broad brush one sentence dismissal of all of Petitioner s proper requests for judicial notice should be treated as nothing more than a waiver of any specific objection. Therefore, the Return has no disputed the vast majority of facts verified in the Petition. II. RESPONDENT FAILED TO SHOW CAUSE AS TO WHY PETITION DOES NOT STATE A GROUND FOR RELIEF BASED ON AN AS APPLIED ANALYSIS. The Duvall Court ruled that Issuance of an OSC signifies the court s preliminary determination that the petitioner has plead sufficient facts, that if true, would entitle him to relief. Duvall, supra, 9 Cal.4th at 475; In Re Soussounian (1995 9 Cal.4th 535. The burden then falls upon Respondent to plead sufficient facts to respond to the allegations of the petition that form the basis of the petitioner s claim that the confinement is unlawful. Id. at 476. The Return does not put specific material facts in dispute related to the question of whether Penal Code section 647(e is overbroad relative to petitioner or on its face. Court ruled, This leaves the petitioner in an untenable situation. As the California Supreme The requirement that the return allege facts responsive to the petition is critical, for the factual allegations in the return are either admitted or disputed in the traverse and this interplay frames the issues that the court must decide. Facts set forth in the return that are not disputed in the traverse are deemed true. Conversely, when the return effectively acknowledges or admits allegations in the petition Page -8-
which, if true, justify relief sought, such relief may be granted without a hearing on the other factual issues joined by the pleadings. Duvall, supra, 9 Cal.4th at 477. In the present case, Petitioner, by his Petition, established a prima facie case for relief that if true would entitle him to relief. Id. In its Exhibits, Petitioner already brought to the attention of the Court several pages of the Sheriff s report, including the only page of the one Sheriff s report relating specifically to Petitioner. (Petitioner, Exhibit 9. Respondent presents nothing new. Petitioner never broached the issue of sleeping at the time of initial contact one way or another in her petition because its not relevant to the Constitutional analysis. By only specifically disputing the issue of sleeping, Respondents fail to dispute any facts that, if true, would entitle Petitioner to relief. If factual allegations in the return are so inadequate that the petitioner cannot answer them, the petitioner may accept to the sufficiency of the return in the traverse, thus raising questions of law in a procedure analogous to a demurrer. Id. at 477. When the return effectively acknowledges or admits allegations in the petition and traverse which, if true, justify the relief sought, such relief may be granted without a hearing on the other factual issues joined by the pleadings. Id, citing, In Re Saunders (1970 2 Cal.3d 1033, 1047. Respondent simply waived its right to contest Petitioner s as applied challenge by not making any argument in opposition after Petitioner presented a sufficient prima facie case for relief and after the Court ordered Respondent to show cause as to why the Page -9-
requested relief should not be granted. Id; In Re Marquez, 153 Cal.App.4th at 14. To the degree the Court deems it necessary, Petitioner relies on her facts and arguments related to 647(e being overbroad as applied as previously set forth in her Petition. III. RESPONDENT FAILS TO DEMONSTRATE CAUSE AS TO WHY PENAL CODE SECTION 647(e DOES NOT VIOLATE PETITIONER S FIRST AMENDMENT RIGHTS AS BEING OVERBROAD ON ITS FACE IN VIOLATION OF THE FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION BY THOUGH THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Petitioner reasserts, as if set forth fully herein, the arguments and facts in her petition regarding the manner in which Penal Code section 647(e is constitutionally overbroad on its face when applied in a First Amendment setting. A. Respondent Fails to Contest and, Therefore, Admits All of Petitioner s Cited Authority Related to the Application of the First Amendment to Speech and Expressive Activities are Applicable to the Present Petition. Respondent concedes by failing to contest, distinguish or acknowledge the following cases that they are applicable and analogous to the present case: Castro v. Superior Court for the State of California (Los Angeles (1970 9 Cal.App.3d 675 and United Farm Workers v. Superior Court of Monterey (1976 16 Cal.3d 499. These cases require that speech, picketing and demonstrations can only be regulated in the narrowest pinpoint terms. Id. (See Petition, p. 16 and 17. B. Respondent Does Not Dispute and, Therefore, Admits that Petitioner was Engaged in First Amendment Conduct At the Time of Her Citation. Respondent expressly concedes that the United States Supreme Court Page -10-
acknowledged sleeping was expressive conduct protected by the First Amendment when the sleeping is in conjunction with an organized protest. (Return, p. 8. That is the precise point for which Petitioner cited Clark v. Community for Creative Non-Violence (1984 468 U.S. 288, 293. Respondent also does not specifically dispute any of the litany of facts establishing that the event in which Petitioner participated, and during which Petitioner was cited, arose within the context of Petitioner s constitutionally protected First Amendment rights. Nor does Respondent contend that Petitioner was not engaged in First Amendment protected activity at the time of her citation. (Return, p. 8-10. Therefore, these facts and conclusions must be accepted as true. C. Respondent s Arguments Related to Time, Manner and Place Restrictions are Without Merit. Petitioner re-asserts as if set forth herein the arguments in her petition regarding the manner in which Penal Code section 647(e is constitutionally overbroad on its face when applied in a First Amendment setting. Respondent cites Clark, supra, 468 U.S. at 293 for its position that First Amendment conduct is subject to reasonable time, manner and place restrictions. Petitioner does not dispute this point. Respondent does not explain how Clark is analogous to the present situation in that regard. In Clark, the CCNV sought a permit in part to set up a tent city and to camp in the park across from the Whitehouse in Washington, DC. as a means of protesting issues related to homelessness..cites IN THIS PARAGRAPH The parks service determined Page -11-
that the permit would be granted for the vacant tent city but denied the permit for actual human camping due to aesthetic and sanitary reasons largely surrounding the protests proximity to the Whitehouse. In denying the challenge to the permit restriction as a violation of the First Amendment, the United States Supreme Court ruled that the specific restriction was narrowly tailored to serve a significant government interest in maintaining the park, especially where it was immediately joining a national monument. (Id. at 296. Clark is in no way analogous to the undisputed facts in the present case. First, the partial denial of the permit came within the context of a regulatory structure that was specifically designed to narrowly regulate First Amendment activity. The regulatory structure was specifically established to consider the time, manner and place of the requested conduct. The final permit was specifically designed to prohibit no more speech than was necessary to maintain the park. The permit left ample room open for continued protest speech. Petitioner cited this case in her Petition and, therefore, the Court was aware of it when it issued the OSC. th Respondent also cites Stone v. Agnos (9 Cir. 1992 960 F.2d 893, 894. This is the only case substantively relied on in the entire Return that was not already cited in the Petition. Respondent asserts that the Stone Court was faced with a constitutional challenge to Penal Code section 647(i, the predecessor of 647(e. The Respondent is wrong. Stone did not challenge the statute. Stone s civil suit was based on a claim that Agnos was arrested because he was exercising his First Amendment rights more akin to a Page -12-
vindictive prosecution clam. The court noted that Stone could not support that his actions implicated the first amendment where he was sleeping alone in a park with a guitar and case, bedding, clothes, toiletries, food preparation items, radio, cash, jewelry, books, and papers. Petitioner will note that Stone s charges for violating Penal Code 647(i had been dismissed by the time of Stone s civil suit. Id. at 894. Respondent, therefore, cites no authority that holds Penal Code section 647(e is a reasonable time, manner and place restriction in a First Amendment setting. In the present case, the application of 647(e did not arise within the context of the partial denial of a permit by a regulatory structure set up to consider time, manner and place restrictions. Instead a group deputies armed with the broadest of Penal Code sections chased off or arrested all protesters from the steps of the courthouse during the designated hours of a protest. Respondents fail to show cause as to how Penal Code 647(e is a legal instrument that was in any way contemplated to regulate the time, manner and place of First Amendment speech. 2 D. Respondent s Fail to Even Allege that Penal Code Section 647(e is Narrowly Tailored in Relation to First Amendment Activity. Respondents do not even make the argument that Penal Code section 647(e is narrowly tailored. Such an argument would not pass the straight face test. Not even the deputies knew what lodging meant other than you are lodging without permission and if 2 Because Penal Code section 647(e is not designed as a speech regulation, the content neutrality point raised by Respondent has no significance. Page -13-
you don t leave I will cite you. The term lodge is undefined in the statute. The jury instruction in the sister cases had the jury perceive to lodge as To settle or live in a place, including temporary living, and may include sleep. (Petition, Exhibit 6-C. The Court also considered lodging a general intent crime, meaning one does not even have to intend to settle or stay in the place to be guilty. (Ibid. at 6-D. The law simply has no limitation and is the exact opposite of a narrowly tailored regulation. Petitioner continues to assert that Penal Code section 647(e is content void as its has no discernable definition. 1. Respondent Failed to Contest or Respond to Any Authority Provided by Petitioner Regarding How a Challenge to Penal Code Section 647(e in a First Amendment Setting Must Be Analyzed in Other Potential Circumstances. In the context of the First Amendment, the Court must look beyond the immediate circumstances and determine if the legitimate application of 647(e in other circumstances will significantly compromise First Amendment speech. Castro, supra, 9 Cal.App.3d at 700, Snatchco v. Westfield, LLC (2010 187.App.4th 494. Respondent neither acknowledged this standard nor argued that it is distinguishable or inapplicable. Therefore, Respondent through its silence waives any opposition to the authority stated in this section or to the analysis presented in the Petition related to the above standard. (Petition, section II, D, 4. IV. PENAL CODE SECTION 647(e IS UNCONSTITUTIONALLY VAGUE. Petitioner reasserts all the facts, authority and arguments in Section III of her Page -14-
Petition as if fully set forth herein. The parties agree on the general standard for determining whether a law is void for vagueness. First, the statute must be sufficiently definite to provide adequate notice of the conduct proscribed. Second, a statute must provide sufficiently definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. Snatchco, supra, 187 Cal.App.4th at 495. Respondents cite Joyce v. City and County of San Francisco (1994 846 F.Supp. 843 for the proposition that the San Francisco s matrix program was not found to be vague. (Return, p. 11. Respondent fails to mention that the both the predecessor to 647(e and the matrix program were only found to be not void when they were read in conjunction with a supplemental memorandum to police clearly indicating that merely sleeping on a bedroll is insufficient to constitute a violation. Santa Cruz has not such limiting or supplemental language. (See Petition, p. 34 and Exhibit 8D-G., Traverse, Exhibit 9. Considering Joyce was already raised in the Petition it can hardly now support a return to an OSC. Respondents raise People v. Scott (1993 20 Cal.App.4th Supp.5. First, it should be noted that Scott is not precedential. In Scott, the Court found that where a camping statute contained a specific definition of what camping meant, the statute was not vague. Id. at 11-12. Petitioner does not dispute camping in the context of Scott was not vague. Considering Scott was already raised in the Petition it can hardly now support an OSC either. The Court is clearly aware of this case. Scott and Joyce illustrate the problem in the present case, that Page -15-
with no specific definition, Penal Code 647(e does not provide notice of what behavior is illegal and does not protect against arbitrary enforcement. It is instructive that to define lodging, Respondent cites multiple definitions including to rent lodgings. As set forth in the Petition, various definitions of lodging exist in the Civil Code of Procedure, the Civil Code and case law. (Petition, p. 29-30. Most legal definitions relate to regulations concerning housing rental. The fact is the police had no statutory definition of, or specific directive related to, 3 lodging to limit their actions. The flyer only stated you are illegally lodging without permission. Merely telling Petitioner or anyone else that they are lodging or that they do not have the owner s permission in no way clarifies what lodging means or how one can avoid it. In this circumstance to lodge illegally appears to have meant to the deputies- to further physically occupy space in any manner on the steps of the Santa Cruz County courthouse. With all respect, the court then invented, for purposes of trying these cases, a definition that had the ironic effect of further broadening the definition to literally put people at risk of being convicted for lodging by remaining in any way sedentary at any time with or without sleep. In light of Respondent s lack of presentation of any new law or facts, Respondents 3 Respondent ironically uses an as applied analysis as its primary means of attempting to save Penal Code 647(e from vagueness. Respondent puts the Petitioner in the untenable position that it refused to argue the case as applied and rejects all Petitioner s Exhibits related thereto, but now argues the case as is with Petitioner s exhibits. Page -16-
have failed to show cause as to why Penal Code Section 647(e is not void for vagueness both for failure to provide sufficient notice and for establishing minimal guidelines to govern law enforcement. V. CONCLUSION Petitioner reasserts his request for all relief set forth in the petition in light of the facts Respondents have failed to present any new facts or law which shows good cause as to why the writ should not issue. Page -17-
DECLARATION OF WORD COUNT I, Jonathan Che Gettleman, declare: I am trial counsel in In re Linda Lemaster and I have prepared this Petition for Writ of Habeas Corpus. The word count of the computer program used to prepare this brief is 12,226. I declare that the foregoing is true and correct under penalty of perjury pursuant to the laws of the State of California. Executed this day of September, 2011. JONATHAN CHE GETTLEMAN Attorney for Petitioner, Linda Lemaster Page -18-
DECLARATION OF SERVICE I, Jonathan CheGettleman, declare: I am over eighteen years of age, and not a party to the within cause; my business address is 223 River Street, Suite D Santa Cruz, California 94619; I have caused to be served a copy of the within Petition for Writ of Habeas Corpus on each of the persons named below by hand delivery. I declare under penalty of perjury and under the laws of the State of California that the foregoing is true and correct. Executed this day of September, 2011 at Santa Cruz, California. JONATHAN CHE GETTLEMAN Page -19-