The opinion
Amendment extends protection to an adult who, in defiance of the law of California, goes upon school grounds and there endeavors to foment a student strike.
On several occasions on school grounds Mandel, 23 years of age, passed out handbills to high school students stating, among other things, that at each of several Alameda County high schools “groups are organizing a student strike and other activities against the war, the draft and racism for April 26.” It continued, “If you want to help, if you need help with the draft, or if you just have questions about the war, there’ll he a meeting.” (Italics added.) The only reasonable interpretation of Mandel’s conduct and handbill is that he was soliciting the students to help organize, and join in, a school strike for, or commencing on, April 26, 1968. Such conduct is unlawful.
Education Code section 10609 provides: “All pupils shall comply with the regulations, pursue the required course of study, and submit to the authority of the teachers of the schools.”
Penal Code section 602.9 states: “Any person who comes . . . upon any school ground . . . without lawful business thereon, and whose presence or acts interfere with the peaceful conduct of the activities of such school or disrupt the school or its pupils or school activities, and who remains there, after being asked to leave [as in the case before us] . . . is guilty of a misdemeanor. ’’ 1
In my view the evidence presented to the municipal court indicated Mandel’s probable intent to violate Penal Code section 602.9. Since the handbill established that Mandel was acting in concert with others in attempting to organize a school strike, the magistrate could reasonably conclude that his loitering was an object, or overt act, of a conspiracy to commit a crime (Pen. Code, §§ 182.1, 602.9) and to commit an act obstructing “the due administration of the laws” (Pen. Code, § 182.5; Ed. Code, § 10609).
*676 Furthermore, it may reasonably be concluded that Mandel’s acts were violative of Penal Code section 272, in that they tended to contribute to the delinquency of minors. Sec-' tion 272, as relevant here, provides: “Every person who commits any act . . ., which act . . . causes or tends to cause or encourage any person under the age of 21 years to come within the provisions of Sections . . . 601 ... of the Welfare and Institutions Code or which act. . . contributes thereto, or any person who by any act . . ., or by . . . persuasion, induces or endeavors to induce any person under the age of 21 years . . . to do or to perform any act or to follow any course of conduct ... as would cause or manifestly tend to cause any such person to become or to remain a person within the provisions of Section . . . 601, ... of the Welfare and Institutions Code, is guilty of a misdemeanor. . . .” As we have seen, high school students have a statutory duty to attend school (Ed. Code, § 10609). Three unexplained absences constitute truancy; five such absences may result in a student .being declared an habitual truant (Ed. Code, §§ 12401-12403). Habitual truancy is a ground for arrest (Ed. Code, § 12405).
Welfare and Institutions Code section 601 provides: “Any person under the age of 21 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his parents, guardian, custodian or school authorities, or who is beyond the control of such person, or any person who is a habitual truant from, school within the meaning of any law of this State, or who from any cause is in danger of leading an idle, dissolute, lewd, or immoral life, is within the jurisdiction of the juvenile court which may adjudge such person to be a ward of the court.” (Italics added.)
It requires little argument to demonstrate that encouraging students to engage in a school strike at least “tends” (see Pen. Code, § 272) to cause such students to become habitual truants (Welf. & Inst. Code, § 601) and therefore juvenile delinquents.
Much of Handel’s argument is given over to what he calls his First Amendment right to protest the war, the draft, and racism by the means here used. Such an argument has been set at rest repeatedly by decisions of the United States Supreme Court.
In Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 [ 93 L.Ed. 834, 841 , 96 S.Ct. 684 ], it is stated: “It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an *677 integral part of conduct in violation of a valid criminal statute. ...”
In Cox v. Louisiana, 379 U.S. 559 [ 13 L.Ed.2d 487 , 85 S.Ct. 476 ], the court was eonc’emed with a criminal statute proscribing a parade near a courthouse for the purpose, among other things, of impeding the administration of justice or influencing a judge or juror. The court said (p. 564 [ 13 L.Ed. 2d at p. 492 ]) : “We hold that this statute on its face is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society and that the fact that free speech is intermingled with such conduct does not bring with it constitutional protection.”
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 [ 21 L.Ed.2d 731, 741 , 89 S.Ct. 733 ], discussing the relation of student behavior to the First Amendment, tells us: “But conduct by the student, in class or out of it, which for any it stems from time, place, or type of disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guaranty of freedom of speech. [Citation.] ”
I conclude that it is constitutionally proper for California to forbid, and to penalize, conduct such as that of Mandel in the ease before us, even though such conduct be an admixture of unlawfulness and what might otherwise be activity protected by the First Amendment.
For yet another reason, as indicated by the majority, Mandel claims constitutional immunity from prosecution. He contends that Penal Code section 653g, punishing one for “loitering” in certain areas, is unconstitutionally vague and over-broad. This contention also, to the writer of this dissent, appears to be without merit.
The same argument was raised in the case of In re Huddleson, 229 Cal.App.2d 618 [ 40 Cal.Rptr. 581 ] (hear den.). There the court was dealing with Penal Code section 647a, subdivision (2), repealed 1967, which was the predecessor statute, containing precisely the same language, to Penal Code section 653g, added 1967. Huddleson holds the word “loiter” in the context of sections 647a, subdivision (2), and 653g to have the meaning of “lingering about schools and public places for the purpose or with the intent of effectuating some criminal act. ’ ’ The court said:
“In the instant case, the challenges made to the constitutionality of the subdivision under attack center about the *678 use of the word ‘loiter’ in the statute. In essence they assert that the word is of a broad and all-embracing character as to encompass innocent as well as objectionable actions and thus impose an unreasonable proscription upon the conduct of the public at large. The word ‘loiter’ has been defined to mean, ‘To be slow in moving; delay; linger; saunter; lag behind’ (Webster’s New International Dictionary (2d ed.); see State v. Starr (1941) 57 Ariz. 270 [ 113 P.2d 356, 357 ]) or ‘to linger idly by the way, to idle’ (Phillips v. Municipal Court (1938) 24 Cal.App.2d 453, 455 [ 75 P.2d 548 ]). While taken by itself and in its broad meaning the term may carry no criminal implications, nevertheless as employed in a penal statute and considered in such statutory context, it may have a sinister, wrongful or criminal import. (In re Cregler, supra, 56 Cal.2d 308, 311-312 ;. . .)
“Thus in Cregler, supra, the Supreme Court upheld the constitutionality of former Penal Code section 647, subdivision 4, which made it a misdemeanor for any person known to be a pickpocket, thief, burglar or confidence operator and having no visible or lawful means of support, to loiter around, certain specified public places or assemblies. The court héld that the word ‘loiter’ as Used in the statute there under consideration ‘has a sinister or wrongful as-well as a reasonable definite implication. As proscribed by the statute the word “loiter” obviously connotes lingering in the designated places for the purpose of committing a crime as opportunity may be discovered.’ ( 56 Cal.2d at p. 312 .) ” (Pp. 621-622.)
“We are persuaded that as used in the statute now before us the term ‘loiter’ was intended to have a restricted rather than a general meaning and that as so employed it has here, as in the statute under consideration in Cregler, ‘a sinister or wrongful as well as a reasonable definite implication. ’ (In re Cregler, supra, 56 Cal.2d 308, 312 .) We are of the opinion that the word ‘loiter’ was intended to proscribe lingering about schools and public places for the purpose or with the intent of effectuating some criminal act. ...” (P. 623; italics added.)
“Therefore as we construe the statute before us, persons who merely sit on park benches, loll on public beaches, pause in the vicinity of schools or linger in the many public areas frequented by children cannot be reasonably considered as loitering within the compass of the statute. It is only when, loitering is of such a nature that from the totality of the person’s actions and in the light of the prevailing circum *679 stances, it may be reasonably concluded that it is being engaged in ‘for the purpose of committing a crime as opportunity may be discovered’ (In re Cregler, supra) that such conduct falls within the statute. We therefore hold that the term loiter has a clear and reasonable definite significance in the context of the statute, that it is not so vague and indefinite as to offend constitutional guaranties and that the statute so construed does not invade, deny or abridge personal rights and liberties....” (Pp. 625-626.)
Each of the several counts of the misdemeanor complaint against Mandel charges that he ‘ ‘ did loiter about a school and public place at and near which school children attend. ’ ’ Following the authority of Huddleson , this language as a matter of law must be deemed to read, and have the meaning, that he ‘ ‘ did loiter about a school and public place at and near which school children attend for the purpose or with the intent of effectuating some criminal act.”
So construed, Mandel’s argument that the subject com- ■ plaint is vague and uncertain is without merit.
And so construed, the complaint sufficiently states facts constituting a public offense. Accordingly, the municipal court properly overruled Mandel’s demurrer. (See Pen, Code, § 1004, subd. 4.)
It is argued that a required specific intent must be alleged in an accusatory pleading; that it may not be implied by operation of law. This does not appear to be the rule. One may be charged with a crime in the language of the statute declaring the matter to be a public offense. Thus in charging theft it is sufficient to allege that the defendant “unlawfully took the . . . property of another” (Pen. Code, § 952); implied by law is the further allegation that the taking was with the specific “intent to permanently deprive the owner of the property.” (See 1 Witkin, Cal. Crimes (1963) p. 357.) Likewise in the crimes of robbery and assault it is sufficient to allege that the defendant “robbed” (People v. Kent, 90 Cal. App.2d 77, 79 [ 202 P.2d 376 ]) and “did . . . assault” another (People v. Macias, 77 Cal.App.2d 71, 78 [ 174 P.2d 895 ]; People v. Mitchell, 40 Cal.App.2d 204, 208 [ 104 P.2d 545 ]). Implied by law are the respective required specific intents “to steal” (People v. Ford, 60 Cal.2d 772, 793 [ 36 Cal.Rptr. 620 , 388 P.2d 892 ]) and “to cause injury” (People v. Coffey, 67 Cal.2d 204, 221-222 [ 60 Cal.Rptr. 457 , 430 P.2d 15 ]; People v. Fanning, 265 Cal.App.2d 729, 734 [ 71 Cal.Rptr. 641 ]).
*680 Nor is there merit to the contention that an accusatory pleading must expressly state the nature o-f the required specific intent; otherwise the accused may he without knowledge of the true nature of the charge against him. Under our present day procedures such information is fully available to an accused by transcript of grand jury or preliminary proceedings, or by discovery.
I would affirm the judgment of the superior court.
The petition of the real party in interest and respondent for a hearing by the Supreme Court was denied December 3, 1969. Burke, J., was of the opinion that the petition should be granted.
In 1968, effective after the subject Penal Code section 653 proceedings were taken against Mandel, Penal Code section 602.9 was amended to define the term ‘‘ lawful business. ’ ’