In re Cregler

In In re Cregler (1961) 56 Cal. 2d 308, 312 14 Cal. Rptr. 289, 363 P.2d 305, the Supreme Court upheld the consitutionality of former section 647, subdivision 4, which prohibited loitering in enumerated public places by persons convicted of certain specified crimes. ( Cregler, supra, 56 Cal. 2d at p. 309.) Taken literally, the statute as written would make it unlawful for a person convicted of one of the enumerated crimes to simply be in one of the specified public places. A literal interpretation is obviously unconstitutional. It cannot be unlawful for a person convicted of one of the enumerated offenses to simply be in one of the specified public places. In order to save the statute from a constitutional challenge, the court wrote an additional element into the statute, i.e., it defined loitering as "connoting lingering in the designated places for the purpose of committing a crime as opportunity may be discovered." (Cregler, supra, 56 Cal. 2d at p. 312.) The Legislature included this intent element when it redrafted former section 647, subdivision 4 as present section 647, subdivision (h). Section 647, subdivision (h) provides that every person is guilty of disorderly conduct: "Who loiters, prowls, or wanders upon the private property of another, at any time, without visible or lawful business with the owner or occupant. As used in this subdivision, 'loiter' means to delay or linger without a lawful purpose for being on the property and for the purpose of committing a crime as opportunity may be discovered." Section 647, subdivisions (h) and (i) define separate and distinct crimes, along with others specified in section 647, under the general heading of disorderly conduct. In subdivision (h), a person is guilty of disorderly conduct if he or she is found loitering on the private property of another with the specific intent to commit a crime "as opportunity may be discovered." By its own wording, subdivision (h)'s definition of loitering is limited to subdivision (h).