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IN THE SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CRUZ
IN RE THE MATTER OF
LINDA LEMASTER,
Petitioner,
On Habeas Corpus.
_________________________________
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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: (831)427-2658
Fax: (831) 515-5228
Attorney for Petitioner
LINDA LEMASTER
Page i
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 ii
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 iii
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 ..........................................
People vs. Heitzman (1994) 9 Cal. 4 189 ..................................................................th
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.................................................................................................
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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,
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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.
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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
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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
face. (See Return, p. 1-3) Id. at 481-82; accord In Re Marquez (6 Dist. 2007) 153th
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.
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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.)
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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
One exception is that Petitioner initially claimed that all persons were given1
warnings. Apparently two people who immediately agreed to leave did not get warnings.
Petitioner concedes this point for the purposes of this petition.
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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
itself. Petitioner notes that all the other material facts raised in the Petition, related to the1
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.)
Page -8-
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.
This leaves the petitioner in an untenable situation. As the California Supreme
Court ruled,
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
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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
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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
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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
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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.
Respondent also cites Stone v. Agnos (9 Cir. 1992) 960 F.2d 893, 894. This is theth
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
Because Penal Code section 647(e) is not designed as a speech regulation, the2
content neutrality point raised by Respondent has no significance.
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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
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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
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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
Respondent ironically uses an “as applied”analysis as its primary means of3
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.
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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,
lodging to limit their actions. The flyer only stated you are illegally lodging without3
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
Page -17-
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 -18-
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 -19-
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
