Filed 5/29/18



                    TO BE PUBLISHED IN THE OFFICIAL REPORTS




                       SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                           COUNTY OF SAN DIEGO
                                            APPELLATE DIVISION

THE PEOPLE,                                                  Appellate Division No.: CA273304
                                                             Trial Court Case No.: 2027491
                  Plaintiff(s) and Respondent(s),            Trial Court Location: Central Division

         v.
                                                             OPINION
TONY DIAZ,

                  Defendant(s) and Appellant(s).




         Appeal from the June 27, 2017 judgment of conviction after court trial, finding defendant
Tony Diaz guilty of violating San Diego Municipal Code section 86.0137(f)1, entered by the
Superior Court, San Diego County, Corinne Miesfeld, Commissioner. Following argument on
May 17, 2018, this matter was taken under submission.
         AFFIRMED.
         On September 21, 2016, San Diego Police Department Officer Colin Governski went to
Bonita Cove to investigate persons living out of their cars. The officer recognized Mr. Diaz’ truck
-- it had a camper shell missing a rear window that was partially covered with a blanket. The

1
 San Diego Municipal Code Section 86.0137(f) provides: “ It is unlawful for any person to use a vehicle while it is
parked or standing on any street as either temporary or permanent living quarters, abode, or place of habitation either
overnight or day by day.”
officer also observed his bicycle behind the truck and saw Diaz sleeping in the bed of the truck.
The officer could hear him snoring. The officer retrieved his camera from his patrol car and also
activated his body camera.
         The officer testified he had given Diaz three prior warnings and three prior citations. During
each of the seven total contacts with Diaz, the officer offered a number of resources, including food
and shelter, provided by the Homeless Outreach Team (HOT), but each time he declined. The
officer testified that during the June 10, 2016 contact, Diaz explained that, although he had never
used the HOT services, he declined to use them because he believes his medication would be taken
away and also stated that he couldn’t live at his sister’s house because she has a child.
         Shortly after 6 p.m. on the date in question, the officer called out to Diaz and eventually
awakened him. He informed him that the police were receiving complaints, but Diaz again
declined the offer of HOT services. The officer issued the instant citation.
         Diaz testified the law was so vague that all he had to do was have a camper shell full of
camping equipment and, to the officer, that would be habitation. He said he takes a lot of
medication and gets tired, so he has to lie down. He testified the officer would tell him he would go
to jail or be ticketed, and he didn’t understand how he could be punished for doing all he could and
using what he had “to live and get by” and to make himself “well and sheltered.”
         On appeal, Diaz asserts that San Diego Municipal Code section 86.0137(f) violates due
process because it is unconstitutionally vague. Appellant also argues that the ordinance violates
equal protection by impermissibly infringing on Appellant’s “fundamental right” to travel.2
I.       Vagueness3
         With regard to the vagueness claim, a facial challenge to the constitutional validity of a
statute or ordinance considers only the text of the measure itself, not its application to the particular


2
  We have also considered a brief filed by amici curiae ACLU Foundation of San Diego and Imperial Counties and
Think Dignity. However, any issues raised in that brief that were not addressed by the parties are not considered by the
appellate court. (Younger v. State of California (1982) 137 Cal.App.3d 806, 813-814; Pratt v. Coast Trucking, Inc.
(1964) 228 Cal.App.2d 139, 143.)
3
  Respondent argues Appellant has forfeited his constitutional claims by not raising them at trial (Respondent’s Brief, p.
4). Insofar as the issues raised involve pure questions of law, with no factual issues to be decided, we address
Appellant’s claims on the merits. (See In re Sheena K. (2007) 40 Cal.4th 875; People v. Yarbrough (2008) 169
Cal.App.4th 303, 310.) However, as explained in footnote 4, we decline to address Appellant’s additional
constitutional challenge based on the specific facts of this case.

                                                           -2-
circumstances of an individual. To support a determination of facial unconstitutionality, voiding the
statute as a whole, Appellant cannot prevail by suggesting that in some future hypothetical situation
constitutional problems may possibly arise as to the particular application of the statute. Rather,
Appellant must demonstrate that the law’s provisions inevitably pose a present total and fatal
conflict with applicable constitutional provisions. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,
1084.)4
          Section 86.0137(f) provides: “ It is unlawful for any person to use a vehicle while it is
parked or standing on any street as either temporary or permanent living quarters, abode, or place of
habitation either overnight or day by day.” Appellant argues in his opening brief that the statute is
unconstitutionally vague because it does not define the terms “living quarters” and “habitation,”
and, therefore, provides no guidance as to what conduct is prohibited. In support of his argument,
Appellant cites Desertrain v. City of Los Angeles (9th Cir. 2014) 754 F.3d 1147, in which that Court
found a similar Los Angeles ordinance unconstitutionally vague. The Court in Desertrain found
that the ordinance violated due process in that it provided insufficient notice as to what conduct was
prohibited. It set forth a number of hypothetical innocent circumstances in which the ordinance
could be deemed violated. (Id. at pp. 1155-1156.)
          A contrary conclusion was reached in Hershey v. City of Clearwater (11th Cir. 1987) 834
F.2d 937. The challenged ordinance in that case provided:

                  It shall be unlawful for any person to lodge or sleep in, on or about
                  any automobile, truck, trailer, camper, or similar vehicle in any public
                  street, public park area, public way, right of way, parking lot or other
                  public property within the limits of Clearwater, Florida.

(Id. at p. 939.) The Court in Hershey struck the word “sleep” as vague, but found the remaining

statute constitutionally sound. It declared, “there remains an ordinance that is both complete and
sensible and that effectuates Clearwater’s apparent purpose in passing the ordinance: to prevent use


4
  Although Appellant’s Opening Brief contains an additional argument entitled “As-Applied Challenge,” that issue is
not properly before this Court. Such a challenge contemplates analysis by the trial court of the facts of a particular case
or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in
those particular circumstances the application deprived the individual to whom it was applied of a protected right. (In re
Sheena K., supra, pp. 882-886; Tobe, supra, 9 Cal.4th at pp. 1084-1089.) The trial record contains no such argument or
analysis. Therefore, the argument is forfeited on appeal.

                                                           -3-
of motor vehicles, lacking basic amenities or sanitation facilities, as living quarters….” (Id. at p.
940.)
        In Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, the Court of Appeal considered
Plaintiffs’ challenge to a City of Sacramento ordinance that prohibited “camping” under certain
circumstances and rejected the claim of vagueness. Plaintiffs had argued, inter alia, that the
ordinance was unconstitutionally vague, and discussed its impact on the City’s homeless
population. The Allen court explained:

               Protections against vagueness are based on due process. To satisfy the
               constitutional requirement of due process of law, a penal statute must
               (1) be sufficiently definite to provide adequate notice of the conduct
               proscribed, and (2) provide sufficiently definite guidelines for the
               police in order to prevent arbitrary and discriminatory enforcement.
               [Citation.] However, no more than a reasonable degree of certainty is
               required. [Citation.] Thus, a statute is not void for uncertainty if any
               reasonable and practical construction can be given to its language.
               [Citation.] And “ ‘[o]ften the requisite standards of certainty can be
               fleshed out from otherwise vague statutory language by reference to
               any of the following sources: (1) long established or commonly
               accepted usage; (2) usage at common law; (3) judicial interpretations
               of the statutory language or of similar language; [and] (4) legislative
               history or purpose. [Citation.]’ ” [Citations.]

(Allen, supra, 234 Cal.App.4th at pp. 54-55.)

        The Court of Appeal has previously analyzed a vagueness challenge to the provision in
Penal Code section 415 prohibiting the use of “offensive words in a public place which are
inherently likely to provoke an immediate violent reaction.” (In re John V. (1985) 167 Cal.App.3d
761.) Rejecting the vagueness challenge, the Court of Appeal stated:
               A vagueness argument necessarily concerns our interpretation of
               “words” which inevitably contain germs of uncertainty. There are
               limitations in the English language with respect to being both specific
               and manageably brief which present problems of interpretation.
               [Citation.] But a statute is not vague if an ordinary person exercising
               ordinary common sense can sufficiently comply with its language.
               [Citation.] Even though words may be marked by “flexibility and
               reasonable breadth, rather than meticulous specificity” it is sufficient
               if a statute gives fair notice to those to whom it is directed. [Citation.]
               “The presumptive validity of the legislative act militates against
               invalidating a statute merely”…because difficulty is found in
               determining whether certain marginal offenses fall within…[its]

                                                   -4-
               language.” [Citations.] We are not obligated to ‘consider every
               conceivable situation which might arise under the language of the
               statute’ [citation], so long as it may be given ‘a reasonable and
               practical construction in accordance with the probable intent of the
               Legislature’ [citation].”[Citation.]

(Id. at pp. 768-769; see also In re Alejandro G. (1995) 37 Cal.App.4th 44, 48 [whether words are
“fighting words” must be determined on a case-by-case basis].)
       The reasonable and practical construction of the ordinance here is clear -- to prevent people
from living in their vehicles on city streets. The language of the ordinance is sufficiently clear to
inform persons that they may not use their vehicles as homes on any street, as well as to inform law
enforcement that a person utilizing his or her vehicle for a purpose that does not turn the vehicle
into a place of residence does not violate this ordinance. While there may be circumstances where
the facts are open to conflicting interpretations, that does not render the ordinance
unconstitutional—it simply creates a factual issue for the court.
II.    Equal Protection
        Appellant’s equal protection argument is based on the assertion that the challenged
ordinance improperly infringes on Appellant’s right to travel. The California Supreme Court in
Tobe analyzed this issue at length, and concluded that the ordinance in question there, which
prohibited camping and storage of certain items in particular public places, did not impermissibly
infringe on the right of the homeless, or others, to travel. (Tobe, supra, 9 Cal.4th at pp. 1096-1104.)
The Court cited Joyce v. City and County of San Francisco (N.D. Cal. 1994) 846 F.Supp. 843, in
which that Court rejected the argument that the city must show a compelling state interest under a
strict scrutiny standard, noting that the law was not facially discriminatory as it did not distinguish
between residents of the city and other persons.
       The California Supreme Court in Tobe reversed the Court of Appeal’s judgment that the
Santa Ana ordinance impermissibly infringes on the right of homeless to travel and declared:

               The right to travel does not…endow citizens with a “right to live or
               stay where one will.” While an individual may travel where he will
               and remain in a chosen location, that constitutional guaranty does not
               confer immunity against local trespass laws and does not create a
               right to remain without regard to the ownership of property on which
               he chooses to live or stay, be it public or privately owned property.

                                                   -5-
               [¶]…[W]ith few exceptions, the creation or recognition of a
               constitutional right does not impose on a state or governmental
               subdivision the obligation to provide its citizens with the means to
               enjoy that right. [Citations.] Santa Ana has no constitutional
               obligation to make accommodations on or in public property
               available to the transient homeless to facilitate their exercise of the
               right to travel. [Citations.]
(Tobe, supra, 9 Cal.4th at pp. 1103-1104; see also, Allen, supra, 234 Cal.App.4th, p. 55, fn.1
[rejecting a similar claim].) We similarly conclude that the San Diego ordinance at issue does not
impermissibly restrict the right to travel.
       The Tobe Court noted that it was not insensitive to the importance of the larger issues raised
by petitioners and amici curiae, but explained:

               Many of those issues are the result of legislative policy decisions.
               The arguments of many amici curiae regarding the apparently
               intractable problem of homelessness and the impact of the Santa Ana
               ordinance on various groups of homeless persons (e.g., teenagers,
               families with children, and the mentally ill) should be addressed to
               the Legislature and the Orange County Board of Supervisors, not the
               judiciary. Neither the criminal justice system nor the judiciary is
               equipped to resolve chronic social problems, but criminalizing
               conduct that is a product of those problems is not for that reason
               constitutionally impermissible. [Citation.]

(Tobe, supra, 9 Cal.4th at p. 1092, fn. 12.)
       This court is not insensitive to the struggles faced by the homeless population in San Diego
or the serious collateral issues caused by homelessness within the San Diego community.
However, our function is limited to judicial review of the validity of the ordinance being challenged
as a result of the judgment in the trial department. As the Supreme Court in Tobe advised, broader
policy considerations should be addressed by the appropriate legislative bodies.
       The judgment is affirmed.




                                                  -6-
                                      HOWARD H. SHORE
                                      Judge, Appellate Division

GILL, J., concurring:

       I concur.


CHARLES R. GILL
Presiding Judge, Appellate Division


KANESHIRO, J., concurring:

       I concur.


GALE E. KANESHIRO
Judge, Appellate Division
Counsel for Appellant,                  Coleen Cusack
Tony Diaz                               3555 Fourth Avenue
                                        San Diego, CA 92103


Counsel for Respondent,                 Mara W. Elliott, City Atty
The People of the State of California   Appellate Division
                                        1200 Third Ave, Suite 700
                                        San Diego, CA 92101
