People v. Pina

Filed 6/22/17

CERTIFIED FOR PUBLICATION APPELLATE DIVISION OF THE SUPERIOR COURT STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

THE PEOPLE, ) No. BR 053105 ) Plaintiff and Respondent, ) Long Beach Trial Court ) v. ) No. 6LB03096 ) VINCENT PINA, ) ) Defendant and Appellant. ) OPINION )

Appeal from a Judgment of the Superior Court of Los Angeles County, Long Beach Trial Court, Halim Dhanidina, Judge. Reversed. Medvei Law Group and Sebastian M. Medvei for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

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INTRODUCTION We hold here Vehicle Code section 22520.5, subdivision (a), which makes it a crime to “solicit, display, sell, offer for sale, or otherwise vend or attempt to vend any merchandise or service” in designated locations on and near freeway on-ramps and off-ramps, does not prohibit begging or panhandling. Defendant Vincent Pina appeals the judgment following his conviction of violating Vehicle Code section 22520.5, subdivision (a), contending there was insufficient evidence presented at trial that he violated the statute. He further contends the statute violated his First Amendment rights. The People have not filed a brief disputing defendant’s position. As discussed below, we agree with defendant’s first contention, and reverse solely on that basis. FACTUAL AND PROCEDURAL BACKGROUND Defendant was originally charged with a misdemeanor violation of Vehicle Code section 22520.5, subdivision (a). The court reduced the offense to an infraction on the People’s motion, and the matter proceeded to a court trial. City of Long Beach Police Officer Michael Demarco testified that, on June 10, 2016, he was in a patrol vehicle, exiting the 405 Freeway at the Bellflower off-ramp. Demarco noticed cars were stopped and traffic had built up on the off-ramp. A person, subsequently identified as defendant, was walking in lanes of traffic on the freeway off-ramp accepting money from motorists whose vehicles were stopped for the red light. In one instance, defendant walked up to a vehicle, accepted money from a driver, put the money in his pants pocket, and returned to the curb. Demarco drove up to defendant, who was sitting on the curb of the off-ramp. Defendant was holding a sign that said, “Lost my job. Lost my home. Lost my car. Please pray for me and my family. Thank you. God bless.” Demarco ordered defendant to exit the off-ramp, but defendant refused, asserting his right to stay. Demarco arrested defendant for panhandling on the freeway off-ramp, and found $51.35 in dollar bills and change in his front pocket.

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The court found defendant guilty of violating Vehicle Code section 22520.5, subdivision (a). The court ordered defendant to pay a fine which, when penalty assessments and other fees were added, amounted to $530. DISCUSSION Defendant’s Argument Defendant argues Vehicle Code section 22520.5, subdivision (a), only applies to “commercial transactions” and, since he received money without selling goods or services, the People failed to prove he violated the statute. We exercise de novo review regarding the construction of the statute. (People v. Lofchie (2014) 229 Cal.App.4th 240, 250.) Vehicle Code section 22520.5 provides, in relevant part, “(a) No person shall solicit, display, sell, offer for sale, or otherwise vend or attempt to vend any merchandise or service while being wholly or partly within any of the following: [¶] (1) The right-of-way of any freeway, including any on[-]ramp, off[-]ramp, or roadway shoulder which lies within the right-of-way of the freeway. [¶] (2) Any roadway or adjacent shoulder within 500 feet of a freeway off[-]ramp or on[-]ramp. [¶] (3) Any sidewalk within 500 feet of a freeway off[-]ramp or on[-]ramp, when vending or attempting to vend to vehicular traffic. [¶] . . . [¶] (c) A violation of this section is an infraction. A second or subsequent conviction of a violation of this section is a misdemeanor.” Contrary to defendant’s argument, the question of the statute’s applicability is not governed by Xiloj-Itzep v. City of Agoura Hills (1994) 24 Cal.App.4th 620 (Xiloj-Itzep). In that case, the Court of Appeal found Vehicle Code section 22520.5, subdivision (a), did not preempt a local anti-solicitation ordinance. (Id. at p. 634.) The Court of Appeal stated, “Vehicle Code section 22520.5 prohibits vending” on or near freeways (i.e., freeways, freeway ramps or areas within 500 feet of a ramp), whereas the city ordinance “regulates solicitation on sidewalks, streets, driveways and highways within the City’s jurisdiction.” (Id. at pp. 642-643.) Yet, Xiloj-Itzep did not consider the question of whether Vehicle Code section 22520.5’s prohibition against solicitation applied to solicitation of alms, begging, or panhandling, and therefore the opinion is not controlling on the issue before us. (See People v. Scheid (1997) 16 Cal.4th 1, 17