Petition for Writ of Certiorari — Baskett v. California

IN THE

SUPREME COURT OF THE UNITED

October Term,

NO.

EDWARD EUGENE BASKETT,

Petit tioner, —

2 V .

PEOPLE OF THE STATE OF

CALIFORNIA,

Respondent.

PETITION FOR A WRIT

f

1971

OF CERTI

TO THE APPELLATE DEPART?

SUPERIOR COURT’

{ENT i ty

COUNTY OF LOS ANGELES

STATE OF CALIFORNIA

ee |

6p)

eal

R2 RT

OF

ALAN

£243)

Attorneys for -

Petitioner

SALTZMAN

MARTHA GOLDIN

6430 Sunset Bivd. 4:

Suite 521

Hollywood,

461

90928

-3464

’ : 2 ee: | |

SUPREME COURT OF THE UNITED STATES

“October Term, 1971.

NO. |

EDWARD EUGENE BASKETT, \

Petitioner,

a ; : , - ae

PEOPLE OF THE STATE OF

CALIFORNIA,

Respondent.

eee

PETITION FOR A WRIT OF CERTIORARI

TO THE APPELLATE DEPARTMENT OF THE:

SUPERIOR COURT.

COUNTY OF LOS ANGELES

STATE OF CALIFORNIA

ALAN SALTZMAN and

MARTHA GOLDIN ~

6430 Sunset Blvd.

Suite 52]

‘Hollywood, Ca. 90028

{213) 461-3464

Attorneys for

'. Petitioner

Las

- TOPICAL INDEX

Table of Authorities

“OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE -

| REASONS FOR GRANTING THE WRIT

CONCLUSION ©

APPENDIX A

JUDGMENT OF. THE’ SUPERIOR ~

COURT

APPENDIX 'B

PETITION FOR REHEARING

DENIED

- APPENDIX C

CONSTITUTIONAL ‘AND

STATUTORY PROVISIONS

INVOLVED

APPENDIX D

ADVERTISEMENTS FROM THE

LOS ANGELES FREE-PRESS,

JULY 23, 1971

an

TABLE. OF AUTHORITIES

Cases

\

Buchanan v. Batchelor

308 F.Supp. 729

(N.D. Tex. 1970)

Cohen v. United States

; U.S. - 91 S.Ct. 1780.

(1971)

Connally v. General.

’ Construction Co. ©

269 U.S. 385

46. S.Ct. 126 (1926)

. Giaccio v. Pennsylvania

382 U.S. 399

86 S.Ct. 518 (1966)

Ginzberg v. United States

348 U.S... 463 2

86 S.Ct. 942 (1966)

Greéne v. United States

ames sera (9th Cir.

November 23, 1971)

Griswold v. Connecticut

_, 381 U.S..-479

65 S.Ct. 1678 €i965)

In re Lane

58 Cal.2d 99 ;

22 Cal.Rptr. 857 (1962)

Lanzetta v. New Jersey

306 U.S. 451 pes

59 s.ct. 618° (1939)

: ee .

a

By

16

18

10.

14 .

16°,

13

10

s

In re McQue (1908) -

7 Cal.Abp. 765, 96 Pac. 110

Morrison v. State Board of

‘Education, 1 Cal.3d 214

82:Cal.Rotr. 175 (1969)

. People v. Arcega

49. Cal.App. 239

193 Pac. 264 (1920)

People, v. Babb |

103 Cal.App.2d 326

229 P.2d 643 (1951)

People v. Bayside Land Co.

48 Cal.App. 257, ’

191 Pac. 995 (1920).

People v. Deibert

- 117 Cal.App.2d 410

256 P.2d 355 (1953)

People Vv. suahey

250 Cal.App.2d Supp 955

58 Cal.Rptr. 557 (1967)

People v. Jaurequi

142 Cal.App.2d 555,

298 P. 2d 896 (1956)

People Ws Scott

Ei3 Cais App. Supp 778°

296 Pac. 601 (1931)

Sherman Vv. United States |

‘356. U.S. 369

78 S.Ct. 819 (1958)

iii.

Page

.

14:

im + oe

14

ee

25

13

12

24

Stanley v. Georgia

394 U.S. 557 -.

89 S.Ct. 1243 (1969)

Street v. New York

- 394 U.S. 576 ...

89 S.Ct. 1354 (1969)

Stromberg v. California -

' 283 U.S. 359 2

*$51°8.Ct. $32 (1931)

Thomas v. Collins

323 U.S. 516

65. S.Ct. 315 (1945)

Thompson v. City of Louisville

362 U.S..199

80 S.Ct. 624 (1960)

oe .

United States v. Cardiff

344 U.S. 174

73 S.Ct." 189 (1952)

Page ;

16

21°. °

21

21

20

10

Wright v. Georgia

373'U.S. 284

83 S.Ct. 1240 (1963)

Statutes

- California Penal Code

- §269(b) |

§647 (a)

1

3

ave

10

~

‘2-5; 7, 8,

1,.14, 15,

Ve 19, 24

ee ee

? California Penal Code

es . -§1118 a

28 U.S.C. §1257(3) ©

A

Constitution.

United States Constitution

*First Amendment

Fourteenth Amendment

-

re IN THE:

SUPREME COURT OF THE UNITED STATES

- October Term, 1971

NO.

_ EDWARD EUGENE BASKETT,

Petitioner,

~ a

PEOPLE OF THE STATE OF -

CALIFORNIA,

Respondent.

PETITION FOR A WRIT OF CERT? *2\RI

TO THE APPELLATE DEPARTMENT C* THE

SUPERIOR COURT.

COUNTY OF LOS ANGELES

STATE OF CALIFORNIA

Petitioner, EDWARD EUGENE BASKET.

respectfully prays that a Writ of

Certiorari issue to review the Judgment

of the Appellate Department -of the

Superior Court, County of Lo: Angeles, —

State of California, entored in this pro-

ceeding on October 1, ‘1971. oo

OPINIONS BELOW

_ No written opinion was rendered by

the court below, the Appellate Department

of the Superior Court, County of Los

Angeles, State of. California, and no

written opinion was rendered by the Muni-

cipal Court for the Long Beach Judicial

District, County of Los Angeles; State

of California, the trial court.

JURISDICTION

The judgment of the .court below was

entered on October 1, 1971, affirming

petitioner's conviction in the Municipal

Court of the Long Beach: Judicial Dis-

trict, County of Los Angeles, State of

California,—tervictating-Catitornia

Penal Code §647(a). A copy of the post- |

card decision of the court below is ‘

“annexed hereto as Appendix a «et ;

' timely Petition for Rehearing or in the

alternative, for certification to the

Court of Appeal for the State of Califor-_

nia was filed. On October -19, 1971, the

Appellate Department denied the Petition

for Rehearing and also denied the alter-

native request for certification. A

..

copy of the postcard decision of the

court below denying rehearing. and/or

’ “certification is annexed hereto as Appen-

- dix "B". The court below, therefore,

became the highest court in the State of

California in which a decision could be

had. ) |

The jurisdiction of this Court is

invoked under 28 U.S.C. §1257(3).

QUESTIONS PRESENTED ©

1. Whether California Penal Code

| §647(a); as construed and applied to

‘ prohibit a "solicitation" for "sex" is

vague, indefinite, uncertain and over-

broad, and constitutes an impermissible

brid i all bits : a]

freedom of speech and deprives petitioner

of liberty and property without due pro-

cess of law contrary to the First and |

Fourteenth Amendments to the United

States Constitution. ;

2. Whether California Penal Code

§647(a), as construed and applied to pro-

hibit lawful conduct which is nowhere.

defined as a cri is vague, indefinite,

uncertain and overboard, and deprives

3 _

>

petitioner of liberty and property with-

out due process of law contrary to the ©

Fourteenth Amendment to the United States

Constitution.. | : |

3. Whether a conviction resulting

from a general verdict based upon two -

intertwined charges, one of which is un-

constitutional, deprives petitioner of

liberty and property without due process

of law and denies to petitioner the equal

protection of the law, contrary to the

Fourteenth Amendment to the United States

Constitution. ; |

4. Whether petitioner’ Ss conviction

based solely upon the testimony of an

undercover police officer.who actively

sought the commission of a violation. of

California Penal Code Ҥ647 (a). deprives

petitioner of his liberty and property

without due process of law and denies

petitioner the equal protection of the

jaw in violation of the provisions of,

the Fourteenth Amendment to the United

States Constitution.

‘CONSTITUTIONAL AND.

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the.

First and Fourteenth Amendments to fne

United States Constitution and the. per-

tinent provisions of California Penal |

Code §647 (a) are set farth in Appendix

"C" attached hereto. +) :

STATEMENT OF THE CASE

Petitioner was arrested in the pri-

vacy of his own automobile at approxi- |

mately 2:00 A.M. on March 27, 1971.- The -

arrest was made by David James Lundberg,

a Long Beach police officer, assigned to

the vice Division, working in piain

clothes. Officer Lundberg had first -

‘seen the petitioner in Little Lucy's, a.

homosexual beer bar. He had gone to the

bar for the express purpose of seeing if.

he could be solicited. He wanted to

deceive people into ‘thinking that he was

-not 4 police officer and to appear as if

he were available for solicitation. His

actions at the bar were designed to sug-

gest to the petitioner that he was

Je

\

available. For that reason, he had said

"Hi," to the petitioner.

The officer next saw petitioner

after Little Lucy's bar closed. He was

walking down the stréet, when the peti-

tioner pulled up behind him in his automo-

“pile. ‘Petitioner honked and offered the |

officer a ride, which was declined

' because the officer was going down to the -

Beach Roamer, another homosexual bar, to

pick up a buddy « » Petitioner said he .

would drop -the officer off, as he was

going that. way. The policeman got into

the car with petitioner. .

Petitioner stopped his car near the

Beach Roamer. He invited the officer to

his apartment but the.officer said he

“had a buddy waiting. Petitioner then

placed his hand on the officer's clothing

'in the. area of his crotch,.and said "why

don't you go home with me and we'll have

some sex?" Petitioner removed his hand

and continued in a brief conversation

with the officer. He then replaced his

hand on the officer's clothing. It was

at this‘moment that petitioner was

arrested.

6.

a

By complaint, petitioner was charged

with a violation of California Penal Code.

§647(a) on or about March 27,:1971. He

entered a plea of not guilty and was

tried by a jury, the Honorable Ellsworth

Mr. Beam, Judge of the Municipal Court

- for the Long Beach Judicial District,

presiding. The only evidence against the

petitioner was the testimony of ‘the. .

aforementioned Officer Lundberg. Peti-

tioner and Officer Lundberg testified

for the defense.

The jury found petitioner guilty of

the offense charged, to wit, a violation

of Penal Code §647(a). Petitioner was

placed on summary probation for a period

‘of oneé_year, and ordered to pay a fine

of $150.00 plus a penalty assessment of

$497.00. a

The constitutional issues here |

raised were first raised before trial on

petitioner ' S motion to require respondent

to elect which crime contained within _

California Penal Code §647(a) they were

proceeding on: "Soliciting to engage in

lewd conduct," or “engaging in lewd con-

duct." The constitutional issues were

7.

ee

again’ eeewes at the close of respondent's

case by aa (oe S Motion for Judgment —-—..-

of Acquittal pursuant to California |

Penal Code §1118, and upon a regewed

motion to have the respondent elect which

crime contained within Penal Code §647(a)

respondent had attempted to prove. The

same constitutional issues were briefed

and argued at each ‘succeeding proceeding

in this case. | =

The Appellate Department, in affirm-—

ing petitioner's conviction without

opinion, by-implication decided that

California Penal Code §647 (a) adequately

defines criminal conduct although "lewd"

is nowhere defined nor is it limited to

‘particular conduct specifically pro-

* scribed by other criminal statutes. The

court below also, by implication, held

that it is illegal to utter words which

“seolicit* lawful conduct in a lawful

manner. The ‘coury below rejected the

long-standing rule of this Court that

where it cannot be’ ascertained whether. a

conviction rests upon a valid or an un-

constitutional charge, the conviction

cannot stand. By its decision the court

below also approved police conduct

8.

designed to create rather than to. control

crime.

REASONS FOR GRANTING THE WRIT

The court below has decided Federal ©

‘ questions of substance mot heretofore

determined by this Court, and decided

the Federal questions in a way not in

accord with applicable decisions of this

Court. — 7 .

i. This Court has often reiterated

that due process of law-requires a penal

statute: to have a reasonable degree of

certainty. It has warned that:

"No one may be required at

peril of life, liberty or prop-

erty to speculate as to the |

_. meaning of penal statutes. All

are entitled to. be informed as

to what the State commands or

forbids. * * * '[A} statute

which either forbids or requires

the doing of an act in terms so

vague that men of common intel-

-ligence must necessarily guess

at its meaning and differ as to

its application violates the :

9.

first essential of due process

of law.'”. Lanzetta v. New >

Jersey, ‘306 U.S. 451, 453, 59

“S.Ct. 618 (1939). *

See also: Wright v. Georgia, 373

U.S..284, 83 S.Ct. 1240 (1963);

Connally v. General Construction Company,

269 U.S. 385, 46 S.Ct. 126 (1926).

Certainty ‘and definiteness of a

criminal statute is an imperative neces-

sity. to insure the rule of law, and not

the rule of man. “An individual must be

warned, in clear and explicit terms, that

he is about to-run aroul of the law.

“The vice of vagueness in

criminal statutes is the

treachery they conceal either

in determining what persons

‘* aré included or what acts are

prohibited. Words which are

vague and fluid, cf. United

States v. L. Cohen Grocery

Company, 255 U.S. 81, 41 S.Ct.

298, 65. L.Ed. 516, may be as

‘much of a trap for the innocent

as the ancient laws of Caligula."

United States v. Cardiff, 344 U.S.

174, 190, 73 S.Ct. 189 (1952).

. 10. .

And courts and juries may not be

eree to render their verdicts on the

basis of subjective predilections, sus-

picions and conjectures.

"Certainly one of the basic

purposes of the Due Process

@lause has always been to pro-

tect a person against having

the Government impose burdens

upon him except in accordance

with the valid laws of the land.

Implicit in this constitutional

safeguard is the premise that

the law must be one that carries

an understandable meaning with-

legal standards that courts must”

enforce. This State Act as

written does not even’ begin to.

meet this constitutional require-

ment." Giaccio v. Pennsylvania,

382 U.S. 399, 403, 86 S.Ct. 518

(1966). |

‘The decision below violates this

fundamental due process precept. Demon-.

strably, California Penal Code §647(a) is

vague,. indefinite, uncertain and over-

broad and fails to meet the

ll.

constitutional standard of specificity.

"The section provides that any person who

commits the following act is guilty of

disorderly conduct, a misdemeanor: ."Who

solicits anyone to engage in or who

engages in lewd or dissolute conduct in

any public place or in any place open to

the public or exposed to-the public view."

Neither the term “lewd” nor the term

"dissolute" is defined in the statute

and the words are used interchangeably

by the courts. ‘See, e.g., People v.

Babb, 103 Cal.App.2d 326, 229 P.2d 843

(1951). No other Penal Code section

. @efines lewd or dissolute, and courts

are free to give the term any definition

_they choose. In a 1908 case, In re McQue,

7 Cal.App. 765, 96 Pac. 110, it was held

that “lewdness” meant "unlawful indul-

‘gence of lust, whether in public or

-_ private or any practice or tendency

which, as shown by experience, is to

weaken or corrupt the morals of those who

follow.it." ‘See also People v. Scott,

113 Cal.App.Supp. 778, 296 Pac. 601

(1931). This old definition gives

neither a warning to the unwary, nor a

f

12.

oe

standard for courts and juries. Were it

followed, many people might finc that

"as shown by experience", adultery, or

simple fornication out of -wedlock is

~ lewd conduct because it tends to weaken.

or corrupt the morals of those who fol-

low the: practice. Yet, under California

law, neither simple fornication nor

adultery without cohabitation is a crime.

In re Lane, 58 Cal.2d 99, 22 Cal.Rptr.

857 (1962); California Penal Code §269(b).

In People v. Deibert, 117 Cal.Avr.

2d 410, 256 P.2d 355 (1953), a Califor-

nia Court held that serving drinks to

minors constituted dissolute conduct.

There, dissolute was defined as "lucse

in morals and conduct, wanton, leye and

debauched." In People v. Jauredi., 142

Cal.App.2d 555, 298 P.2d 896 (1956) .

"dissolute" was defined as indifferent

to moral restraints, given over to dis-

sipation or vicious course. The decini-

tion was applied to a situation invoiving

possession of narcotics. | |

In two cases decided in 1920, keep-

ing a place where assignations were

encouraged was considered to-be lewd.

There, the court held that "lewdness is

13.

of much broader significance than [assig-

nation and prostitution] but includes §.

their meaning as well as all other.

immoral or -degenerate conduct or conver-

sation between persons of opposite sexes."

People v. Bayside Land Company, 48 Cal.

‘App. 257,191 Bac. 995 (1920); People v.

Arcega, 49 Cal.App.239, 193 Pac. 264

(1920). None of the definitions created

by State court interpretations has pro-

vided standards and guides which. give the

words "lewd" and "dissolute" as used in

California Penal Code §647(a) a definite

and certain meaning.: a

"All of the so-called court-.

created conditions and standards

still leave to the jury such |

broad and unlimited power. ..-

that the jurors must make deter-

minations of the crucial issue

upon their own notions of what

the law should be instead of what

it is." Giaccio v. Pennsylvania,

supra, 389 U.S. at 403.

In petitioner's case, the trial |

court instructed the jury that "lewd" is

“indecent, lustful, unchaste, lascivious."

| 14,

, 4

The definition the court gave for "disso-

lute" was "loose in morals or conduct,

wanton, lewd or debauched." This is a

patently vague standard which cannot

define a crime. It permitted the jury to

consider the critical issue upon its own

notions of propriety. If the un er ae a

* social policy here involved is to be

‘

vindicated, if there is to be strict

adherence to the rule of law, then a

conviction for lewd conduct which is

predicated upon individual concepts of

morality must not be sustained. For, as

the California Supreme Court said in

Morrison v. State Board of Education,

- 1 Cal.3d 214, 226, 82 .Cal.Rptr. 175

(1969), "' EP Joday' s morals may be tomor-

row's ancient and absurd customs.'

a * sub keplircrss tice Oe an

impermissible restraint upon free speech.

This Court has repeatedly held that, the

communication of an idea, whether cast in

the guise of a writing or "conduct",

which is nothing more than communication,

-is constitutionally protected. See

Cohen v. United States, U.S. -

91 S.Ct. 1780 (1971). The mere sugges~

tion that/it may be desirable to have

15.04

"sex" cannot be converted into a crime

and stripped of its constitutional pro-

tection by the talismanic label "solicita-

tion for lewd conduct." In the area. of

communications relating to sexual conduct,

the constitutional, mandate in favor of

free expression is becoming increasingly

significant. This Court has more and

more recognized that the number of rights

encompassed by the First Amendment gives

constitutional protection to a variety of

private behavior. cf. Griswold Ve

Connecticut,- 381 U.S. 479,85 S. Ct. 1678

(1965); Stanley Sane 394 U.S. 557,

89 S.Ct. 1243 (1969). . Additionally,

there is an everchanging standard with

reference to private ‘consensual sex--

related conduct iste is also entitled to

constitutional protection. E.G.,

Buchanan v. Batchelor, 308 F.Supp. 729

(N.D. Tex. 1970). Because there is an

ever-widening circle of private conduct

which is protected, social policy dic-

tates that there must be an ever-widening

area of protection for speech which

"solicits" that conduct. And, where the

"solicitation" ‘is in writing, in the

16.

public press, it appears that it is in- .

deed protected. See, e.g., advertise- |

ments which appeared in the Los Angeles

Free Press, July 23, 1971, annexed hereto

as Appendix "D". Equal protection re-

quires the same’ freedom for identical

- speech: i ser

Penal Code §647 (a) which, .on its

face prohibits all solicitation for "lewd

or dissolute" conduct, and which as con-

strued and applied herein to prohibit

solicitation for "sex", ‘is contrary to

the rights protected by the First Amend-

ment as explicated in the above-cited

cases.

The statute is particularly offen-

sive to First Amendment guarantees be-

cause, as construed ‘by the California

Courts, it prohibits solicitation for

private consensual conduct. Such a. con-

struction forecloses upon all public

“communication of ideas which are apart of

the changing mores of our society. This

Court has criticized such a niggardly

coristruction of the Constitution.

"The constitutional right

of free expression is powerful

medicine in a society as diverse

and populous as ours. It is

17.

y designed and intended to

_ remove governmental restrai ts

from the arena of public dis-

cussion, putting the decision

as to what views shall be

voiced ‘largely into the hands

of each of us, in the hope that

‘use of such freedom will ulti-

‘mately produce a more capable

citizenry and more’ perfect

polity and in the belief that

no other approach would comport

with the premise of individual.

dignity and choice upon which

our political system rests. _

oo See Whitney v. California, 274

U.S. 357, 375 to 377, 47 S.Ct.

641, 648-649, 71 L.Ed. 1095 |

(1927) (concurring opinion of

Brandeis, J.)." Cohen v.

California, supra, 91 S.Ct. at

1787-1788. |

3. The verdict affirmed by the

Court below impermissibly permits, it is

submitted, a criminal conviction which

rests upon two intertwined charges, one

of which is unconstitutional. California

18... j

Penal Code §647(a) contains within it at

- Teast two distinct crimes: (1) soliciting

__ to engage in lewd conduct, Aand (2): engag-

ing in léwd conduct. par os continued

efforts by the Petitioner to Ross wy an.

election of charges, the case went to the

jury on the theory that Petitioner could

be convicted of either soliciting or en-

gaging in lewd conduct, without. regard

to distinctions between the crimes. The

verdict rendered by the jury was a gen-_

eral one and did not differentiate

between the two crimes, either.

Not only is the.solicitation charge

unconstitutional because its use of the

word “lewd" is unconstitutionally vague,

but the record is devoid of evidence of

solicitation to engage in "lewa" con-

duct, no matter what unlawful act the

word is construed to encompass. The

totality of evidence of solitication

consists of a purported offer by the

Petitioner to go to his residence for

a "Sex". Whatever lewd-conduct may

be, it is submitted, it is not merely

"sex". Sex encompasses the widest range

of activities: from illegal acts, homo-

sexual as well as heterosexual, to

19.

absolutely innocent marital relations.

Consequently, "sex", including, without

differentiation, innocent lawful sexual

conduct, ‘cannot be equated with "lewd".

Hence ,. Petitioner's conviction cannot

validly rest upon the charge of solicita-

"tion for lewd conduct. That is the only

evidence of "solicitation" here involved.

A conviction based upon that charge would

be without evidentiary support and would

do violence to constitutional guarantees

of due process of law. Thompson v. ct -

of Louisville, 362 U.S. 199, 80 S.Ct. 624

(1960). Such was Petitioner's conviction,

affirmed by the Court below. The trial

court refused to distinguish between

solicitation and conduct, allowing the

jury’ to, render the general verdict of

"guilty". The conviction, based in part.

at least upon the unconstitutional charge,

ignores the constitutional inandate.

"We take the rationale of Thomas

to be that when a single count.

indictment or information charges

the commission of a crime by

virtue of the defendant's having

done both a constitutionally

20.

a protected act and one ‘which

may be unprotected, and a

guilty verdict ensues without

elucidation, there is an \

unacceptable danger that the

trier of fact will have |

regarded the two acts as

'intertwined' ory Oo rested ©

the conviction on both together.

x | * “aie oa

"[WJe are unable to sustain

a conviction that ‘may have

rested on a form of expression,

however distasteful, which the

Constitution — and

protects."

Street v. wae: | icc

394 U.S. 576, 588, 594,

- 89 s.ct. 1354 (1969).

See also, Thomas v.- Collins, 323 U.S. 516,

65 §.Ct. 315 (1945); Stromberg v. Calif-

ornia, 283 U.S. 359, 51/§.Ct. 532 (1931).

Under the circumstances here pre-

sented, the procedures leading to the

return of a general verdict were consti-

tutionally deficient, requiring the

judgment to. be set aside in order to

vindicate Petitioner's constitutional

-vights. 21.

4. There.is today a great hue and

cry for “law and order". This Court

daily is called upon to interpret the

Constitution in such a manner as to dis-

. courage criminal behavior and to encour--

age compliance with the law. It is.

submitted that the public policy is ill

served when police are encouraged to |

create, rather than to discover crime.

Petitioner's conviction presents such a

‘case. Ene

The undisputed record below is that

Officer Lundberg, in plain clothes, went

to a homosexual bar. By his own admis-

sion he went there for the purpose of

being solicited. To effectuate his ends

"he tried to appear available. For the

Same reason he greeted Petitioner. Long

before any alleged crime had been com-

mitted by Petitioner, the police officer

got into Petitioner's car solely in order

to subject himself to what he hoped

would be illegal advances.- The police

officer never attempted to discourage

crime by disabusing the Petitioner of

his possible interest in a relationship

with him. - And the police officer at no

22.

_ time acted as an observer, attempting to

ferret out illegal conduct. At all times

the officer tried to elicit from the

Petitioner a solicitation and/or some i

overt unlawful action. The officer's

- yole, thus, was one of creating crime -

rather than enforcing the laws condemn-

ing it. Such police conduct saps .the

vitality of the law and undermines public

policy: | e

"The function of law enforcement

is the prevention of crime and

the apprehension of criminals.

Manifestly. that function does

not include the manufacturing

of crime. Criminal activity is

such that stealth and strategy

are necessary weapons in the

arsenal of the police officer.

However, ‘a different question

is presented when the criminal

design originates with the

_officials of the Government,

. and they implant in the mind of

an innocent person the disposition .

to commit the alleged offense and |

induce its commission in order

23.

that they may prosecute. ' 287

U.S. at page 442, 53 S.Ct. at

page 212. Then stealth and

strategy become as objection-

able police methods as the

coerced confession and the

unlawful search. Congress

could not have intended that

its statutes were to be enforced

by tempting innocent persons |

into violations." 7

Sherman v. United States,

356 U.S. 369, 372,

78 S.Ct. 819 (1958).

See also, Greene v. United States,

P.2d (9th Cir. November 23, 1971).

The holding of the Court below

applauds Governmental involvement in the

creation of crime. Not only does this

contravene the general interest of the

Courts and the public, it is contrary to

the avowed policy underlying California

Penal Code §647(a). California Courts

have held that the legislative enactment

was intended to protect “innocent by-.

stenders, be they men, women or children,

[from] the public blandishment of

deviates. . . .- {And from) the open,

24.

flagrant and to decent people, disgusting

solicitations of sexual activity which

-have occurred on the public streets of

some of our cities.": People v. Dudley,

250 Cal.App.2d Supp. °55, 58 Cal.Rptr.

557, 559 (1967).- there was no’ element of

thrusting upon the public in this case,

and the case was not tried upon such a

‘theory: The police action here served

ne useful Padicy. Cf. Ginzberg v. United -

States, 348 U.S. 463, 36 S.Ct. 942 (1966).

The public does not go to a homosexual

bar with the purpose of being solicited.

The public does not make itself available

to advances. In short, the public does

not do what the police officer did to

Petitioner. His conduct far exceeded

the acts of an innocent bystander and as

a matter of fact and policy resulted in

the Governmental creation of criminal

conduct.

The affront to the public interest

was enhanced in this case because the

very police officer who created the

crime was the sole witness to it. The

scriptures warn against convictions

based upon such evidence:

25.

SN a Le NT

(

"A single witness shall not

prevail against a man for any

crime or for any wrong in con-

nection with any offense that

‘he has committed; only on the

evidence of two witnesses, Or

of three witnesses shall a

charge be sustained."

. Deuteronomy 19:15.

“This is the third time I

am coming to you. Any charge

must be sustained by the evidence

of two or three witnesses."

II Corinthians 13:1.

If the underlying social policy of

law enforcement is to be vindicated; if

criminal conduct is to be condemned and

not encouraged, an innocent person should

not be held guilty for a "crime" testi-

fied to by the police officer who

created it.

26.

_ - —- ee eer Se eer cs as

CONCLUSION

¢

For the foregoing reasons, a Writ

of Cer orari should issue to “review =

the oda of the Appellate Department ~

of the Superior Court for the crea of *

Los Angeles, State of California.

Respectfully submitted, -

ALAN SALTZMAN and

MARTHA GOLDIN

By: MARTHA GOLDIN

Attorneys for Petitioner

27. ‘

‘4

= Appellate

SUI :OR COURT. LOS ANGELES COUNTY \LIFORNIA

No. CR: A 10499

. People .

- Judgment aMKEVGEr in the above entitled appeal is affirmed. - —-

___ dudgment..filed...... :

: WILLIAM G. SHARP. County Clerk and Clerk of

Date... OCt...1,..1971 che Suomsee Cost of the Stee of Coltternie Os

wR ft _—

-_

76N598 Ca #10

*.

,

. ° ,

‘

. . -

.

.

. 4

.

. ,*

. . ad ’

“es

*

> ° *

*.

;

° ;

.

,.

. ' . . ¢

° *

,

° .

° “

, ° a e

. ° ” .

os

- 3

.

t< i *

¢ *

.

° -- 7”, * °

. =

. y . . . >.

. e =

.

~ ’ .

. .

° .

.

* . °

o >

= a ee

rr —

rEnerserass

ee

*

“4%

'_ a

APPENDIX C

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

“e The pertinent provisions of —

the First Amendment to the United

States Constitution are}

"Congress shall make no

law .. . abridging _the

freedom of speech, or of the

peees; « - -* .

2. The pertinent provisions of

the Fourteenth Amendment to the United

States Constitution are: |

"No State shall make or

enforce any law which shall

abridge the privilege or

immunities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without.due process of law;

nor deny to any person within-

its jurisdiction the equal °

protection of the laws."

3. California Penal Code 6647 (a)

provides in pertinent part as follows:

C-1l

"Every person who commits

any of the following acts is

guilty of disorderly conduct,

a misdemeanor: (a) Who solicits

anyone to engage in or who

engages in lewd or dissolute

conduct in any public place or

in any place open to the public

or exposed to the public view.”

bie te Prva TT

’ :

—

oid i

y,

APPENDIX D

ADVERTISEMENTS FROM THE LOS ANGELES

FREE PRESS, JULY 23, 1971

"ORANGE COUNTY GIRLS

Want good clean sex - no strings?

I'm w/m. age 27. Write me for day occas.

Eve sex at PO Box 63, Anaheim. Cal

92805."

+

"Groovy guy. 28. prof type. tall

& tan. & handsm. but married. looking

for gal. mar or sgl. object good times

& sex. Not looking for marriage. just

affair that will last if chemistry is

right. Unusual condition at home forces

search phone & pic if poss. no hookers.

Bx 1181. Torrance. Cal 90505."

"WHERE IS SHE?

The woman that wants to have her

climax done with a Fr oral expert any

length of time day or night am w/m. 6'

3", 160 lbs, send fone to Box 45161,

LA 90045."

"TALL WOMAN ;

W/M, age 55. 6 ft 4 tall.

“writer. seeks tall woman for occasional

sex and lasting friendship. discreet

if mar. Box 29033. Vermont Sta. Los

Angeles 90029." | .

¢

THE BRIEF SHOP

legal printers

10844 VENTURA BLVD..,

POPLAR 3-2965

NORTH HOLLYWOOD

TRIANGLE 7-8620

ee

“see 0 ye 2

~«<

_IN THE e \%

- Saye wan of the ited ates

October Term, -1971

No: 71-928

: \

“EDWARD EUGENE BASKETT; _~

| 3 _ Petitioner,

Vv.

PEOPLE OF THE STATE OF CALIFORNIA,

ee tes spondent.

OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI

"TO THE APPELLATE DEPARTMENT

_ OF THE SUPERIOR COURT

‘ COUNTY OF LOS ANGELES STATE OF CALIFORNIA -- - -

‘JAMES T. STARR

City Prosecutor of+

_ Long Beach, California —

C. T. ZEIGER -

Deputy City Prosecutor of

Long Beach, California.

Telephone (213) 437-0711

TOPICAL INDEX

: : en _ Page

nO TOME oo er wa ane sipastal canelnidecn cetapeioi alates }

‘Jurisdiction Robe cloneak aenervas pace pues ineinpenenaieone eeeagenlnnsees “2

Questions Presented Re ee Sauer eonesneensnnnsssssces 2

iesustiosionad and Statutory Provisions Involved .............--...i-scec-s++: 3

"Statement of the ANE TEN eecsiecne re eee sea

_ Argument

Bay |

California’s Penal .Code Section 647(a) is not vague, in-

definite, uncertain and overbroad constituting an imper- -

missibife abridgement of 5 te teraar ate eee hal ir lo stameepeenadachon a

II

Califorriia Penal Code Section 647(a) as construed and ap-

plied does not prohibit lawful conduct which is nowhere

eG Me OM ns Sst Ssaicusestoeastaenecal

; ee

Petitioner's conviction was not based upon twa intertwined -

charges, one of which is unconstitutional: 20.02.02... 11.

iV

Officer Lundberg did not actively seek to have petitioner

violaté California Penal Code Section 647 (a). ....eccccccce-e--- 12

mala :

The testimony of one witness is sufficient for the proof of

De RA ERR Fn Rn SOAP Ee MEARESN patel coneeneceinsioeetes pre

Conclusion ...... bh MN MeN KOON NEON AME TE OEE Se aR TE 14

Appendixes .............. shal tpoacon cheba taseadeetaa co Necab bind <a ypcee lees ata eae ae

' TABLE: OF AUTHORITIES CITED

Cases :

; es - Page

American Civil Liberties Uaten v. Board of Education, .

oo Cal. 28 200 ............ POL AER 1 EERE: BE MENS TEENIE 7

Boyce Motor Lints v. United States, 342 U.S. 337 o..c.eceeceeeenee- 6

ee SS gs a” 0 > SESE at ami ead a ever ee ene a.

* In. re De La O, 59 Cal. 2d 128 ........ REMIT CL Ra nes, ER ae

In. re Huddleson, 229 Cal. App. 2d 618 ............. easetatenetects ae

ice ee a a saves 8 .

In ré Steinke, 2 Cal. App. 3d 569 ..W.. 2... acetic Aaa 9

_ Nash v. U.S,.299 US. -373 __........ a bck RS NY ett aE Re PE CUO 7

‘Pethok ~v. ta Gree, 60 Col: 29 OG eee oe a

pei tn ca le en Se Ee a 8

People v.“D’Agostina, 190 Cal. App. 2d 447 ot. ei aaciegs 13

People v. Dudley, 250 Cal. App. 2d Supp. 955.200. 9

People v. Loignon, 160 CA 2d 412 ..2...2.cccccccceccssseseeceseeeeseeees So ae

People v. Vaughn, :196 Cal. ae 2d 622 . ataeatencs ETRE AIS oe

- . .People v. Victor, 62 Cal. 2d 780 .................. Ei ccslatnsanceereegsisase ibe abe kent 6,-7

People vy. Whipple, 100 Cal. ya BE Snr airkcenins anette scbsngex 10

People v. Williams, 16 Cal. App. 2d Supp. eet ent sens 1]

Re eR aR - Sa Sn Zeek ed Sees Ce eRe 6, 9

Trensor v. Superior Court, 35 Cal. 24°49 _20 Piraeus 6

A a ry I Oe SI ce i tesa 1

U.S, «Perum, 322 USS, 3 OLEAN A Ree MER SAC TS BAD "6

Wotton v. Bush. 41 Cal. 5 ana rR SEL a dak Sr a RR EA 1 7

~ Statutes.

United ‘States .

I SE I ss cote eens nc eceeatoan i

. * California :

California Penal Code ; ; wee

a ie a RE A NLL RTO ORs erm 10

ON BO eee it sca i Saat clahaeespicacpucetestaaeaeincadnaanooaiines ods 19

II TIRE Si a ee eee 5, 10, 12

NONI <I a estrccecenpdeacenicnets ictus cost? scenarios peace 1}

i - Encyclopedias :

(14 California Jurisprudence, 2d Criminal Law 205 Sadana aeckeP koe 13.

Dictionaries

- The American College Dictionary, Random House 1962 Edition .. q

The American Heritage NNO DOIN sa sicsscccnmiccencidcencieacoasdones g

IN THE

‘upree Court of the Lnited Mates,

October Term, 1971 :

| No. 71- 928] <s

-EDWARD EUGENE BASKETT,

fs BS | Petitioner,

Vv.

_ PEOPLE OF: THE STATE, OF CALIFORNIA,

Respondent.

‘fs

OPPDSITION TO PETITION FOR.A WRIT OF CERTIORARI

TO THE APPELLATE DEPARTMENT

OF THE SUPERIOR COURT .- | |

COUNTY. OF LOS ANGELES STATE OF CALIFORNIA |

Respondent, THE PEOPLE OF THE STATE OF

‘CALIFORNIA, respectfully pray that a Writ of

* Certiorari not issue.to review the judgment of the

Appellate Department of the Superior Court, County

-of Los Angeles, State of California, entered .in this

ee on October 1, 1971.

“OPINION BELOW

. On October 1, 1971, the Appellate ne tment of the

| Superi ior Court of the County of Los Angeles entered ~

an order affirming petitioner’s convicticn of violation