People v. Rodrigues

63 Cal.App.3d 1 (1976) 133 Cal. Rptr. 765 THE PEOPLE, Plaintiff and Respondent,

v.

JAMES EDWARD RODRIGUES et al., Defendants and Appellants.

Docket No. 588. Court of Appeals of California, Appellate Department, Superior Court, San Bernardino.

September 9, 1976. [3] COUNSEL

George H. Bye and David W. Call for Defendants and Appellants. Martha Goldin as Amici Curiae on behalf of Defendants and Appellants.

James M. Cramer, District Attorney, and David J. Tobias, Deputy District Attorney, for Plaintiff and Respondent.

OPINION

THE COURT.[*]

Riviera and Rodrigues appeal from a conviction by court trial of violating Penal Code section 647, subdivision (a). The complaint charged them with unlawfully engaging in "lewd and dissolute conduct in a place exposed to public view." Riviera filed a brief in which Rodrigues later joined, and an amici curiae brief was submitted by attorneys for the American Civil Liberties Union Foundation of Southern California.

The settled facts presented to this court are that appellants were observed by the arresting officers at a freeway rest stop in the Fontana area along Interstate 10 early in the morning in question. For a period of at least one hour and forty minutes appellants, sitting in a parked car, [4] engaged in kissing, hugging, and sitting, alternately, on each other's laps. On one occasion one man was observed touching the other's thigh.

(1) Appellants make two contentions on appeal. They say first that Penal Code section 647, subdivision (a), is unconstitutionally vague. Then they argue that, in any event, their described conduct did not constitute a violation of that statute.

Their first contention is quickly answered by reference to the decision in In Re Giannini (1968) 69 Cal.2d 563 [72 Cal. Rptr. 655, 446 P.2d 535]. There the words "lewd and dissolute" were upheld by equating them with the constitutionally sufficient term "obscene." (At p. 571, fn. 4.) Then in Silva v. Municipal Court (1974) 40 Cal. App.3d 733, 738 [115 Cal. Rptr. 479], this holding was applied specifically to the statute here in question.