2917. Loitering: About School
The defendant is charged [in Count ______] with loitering at or near (a school children attend/ [or] a public place where children normally congregate).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant delayed, lingered, or idled at or near (a school children attend/ [or] a public place where children normally congregate);
2. The defendant remained at, reentered, or returned to (a school children attend/ [or] a public place where children normally congregate) within 72 hours after being asked to leave by (the chief administrative official of that school/the person acting as the chief administrative official/an authorized member of the security patrol of the school district/a city police officer/a sheriff or deputy sheriff/a California Highway Patrol peace officer);
3. When the defendant was at or near the (school/ [or] public place), (he/she) did not have a lawful purpose for being there;
4. When the defendant was at or near the (school/ [or] public place), (he/she) intended to commit a crime if the opportunity arose.
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Elements. Pen. Code, § 653g.
Specific Intent to Commit Crime Required. In re Christopher S. (1978) 80 Cal.App.3d 903, 911 [146 Cal.Rptr. 247]; People v. Hirst (1973) 31 Cal.App.3d 75, 82-83 [106 Cal.Rptr. 815]; People v. Frazier (1970) 11 Cal.App.3d 174, 183 [90 Cal.Rptr. 58]; Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 663 [81 Cal.Rptr. 173].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, § 52.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.02 (Matthew Bender).
Activity Protected by First Amendment
In Mandel v. Municipal Court (1969) 276 Cal.App.2d 649, 670-674 [81 Cal.Rptr. 173], the court held that the defendant could not be convicted of loitering near a school for an unlawful purpose when the defendant was giving the students leaflets protesting the war and calling for a student strike. (See also People v. Hirst (1973) 31 Cal.App.3d 75, 85-86 [106 Cal.Rptr. 815].)
(New January 2006)