CALCRIM No. 2917. Loitering: About School (Pen. Code, § 653b)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2917.Loitering: About School (Pen. Code, § 653b)
The defendant is charged [in Count ] with loitering at or near (a
school children attend/ [or] a public place where children normally
congregate) [in violation of Penal Code section 653b].
To prove that the defendant is guilty of this crime, the People must
prove that:
<If the court concludes that both loitering as defined in 1A and the conduct
defined in 1B are required pursuant to the statute, give both 1A and 1B if the
defendant is charged with the conduct described in 1B. Otherwise, give
either 1A or 1B, as appropriate.>
1A. The defendant delayed, lingered, or idled at or near (a school
children attend/ [or] a public place where children normally
congregate);
1B. The defendant entered, reentered, or remained at (a school
children attend/ [or] a public place where children normally
congregate) within 72 hours after having been asked to leave by
(the chief administrative official of that school/ <insert
name of other offıcial named in Penal Code section 653(b)>)];
2. The defendant did not have a lawful purpose for being at or near
the (school/ [or] public place);
AND
3. The defendant intended to commit a crime if the opportunity
arose.
New January 2006; Revised August 2009
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In a nonbinding opinion, McSherry v. Block (9th Cir. 1989) 880 F.2d 1049, 1058,
the Ninth Circuit discussed the problem caused by amending the predecessor of
Penal Code section 653b by adding the language described by paragraph 1B,
namely, that it made it possible to “read the request to leave language as modifying
the loitering provision which has been in the statute all along.” The Ninth Circuit
determined that no request to leave was necessary for a loitering conviction. The
court relied on the depublished opinion of the Appellate Department in the case
below, which had determined that the “request to leave” language applies only to
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the vagrancy and not to the loitering provision of the statute. McSherry v. Block (9th
Cir. 1989) 880 F.2d 1049, 1053.
In the absence of binding authority on how to resolve an apparent ambiguity in the
statute, the court must exercise its own discretion to determine whether loitering is
required if the defendant is charged with the conduct described in paragraph 1B, or
whether paragraphs 1A and 1B define separate ways in which this offense may be
committed.
AUTHORITY
• Elements. Pen. Code, § 653b.
• 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].
RELATED ISSUES
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].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, § 72.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.02 (Matthew Bender).
2918-2928. Reserved for Future Use
VANDALISM, LOITERING, AND TRESPASS CALCRIM No. 2917
731

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