Skip to content
Name: People v. Gary H.
Case #: B264078
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 02/23/2016

Loitering statute (Pen. Code, § 653b) is not unconstitutionally vague when construed to include a scienter element. Gary, an expelled high school student, got into an angry verbal exchange with a student while standing on the sidewalk in front of the school. School administrators told Gary to leave, but he refused. The police were called. A Welfare and Institutions Code section 602 petition was filed alleging misdemeanor loitering. The juvenile court sustained the petition over Gary’s objection that section 653b was unconstitutionally vague. Gary appealed. Held: Affirmed. Section 653b provides in relevant part that “every person who loiters about any school . . . after being asked to leave . . . is a vagrant.” To avoid finding previous versions of the statute vague, courts have construed the word “loiter” as meaning to linger “for the purpose of committing a crime as opportunity may be discovered.” (In re Cregler (1961) 56 Cal.2d 308, 311-312; see also In re Huddleson (1964) 229 Cal.App.2d 618; People v. Hirst (1973) 31 Cal.App.3d 75.) The Court of Appeal here concluded section 653b is constitutional because it “includes a scienter element: it requires proof that a person loitering near a school had the specific intent to commit a crime.” As construed, the statute is not vague. Furthermore, there was sufficient evidence that Gary was lingering in front of the school for the purpose of committing a crime—to start a fight. The juvenile court properly sustained the petition.

The full opinion is available on the court’s website here: