PC 370 public nuisance california Public Order, Loitering, Urination

Discussion in 'Criminal Charges' started by jackieo, Aug 5, 2011.

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  1. jackieo

    jackieo Law Topic Starter New Member

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    My 75 year old grandfather was out for a walk and got a ticket for public nuisance (PC 370) because he had to go to the bathroom(#2) and he was no where near a restroom or store, he was out in the country.. so he went behind a bush. it was either go behind the bush or in the pants :( so.... i guess someone saw him???? and called it in - some cops pull him over 1 min later down the road and give him a ticket!!!! it says its a misdemeanor.. with a court date on the bottom.

    My grandfather has NEVER been in trouble with the law EVER. He is so embarrassed and scared.

    I was wondering whats going to happen? Is this really a misdemeanor?? is there any way to get this dismissed???

    How much is he going to have to pay? does he have to do community service???
    please help!
     
  2. wisemans_voyage

    wisemans_voyage New Member

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    Sorry but I responded in between the paragraphs of your post. Please take notice. :)
     
  3. CdwJava

    CdwJava Moderator

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    Then he needs to appear in court at the date and time indicated on the citation. If he fails to apepar, a warrant could be issued for his arrest.

    here is the code section:

    370. Section Three Hundred and Seventy. Anything which is
    injurious to health, or is indecent, or offensive to the senses, or
    an obstruction to the free use of property, so as to interfere with
    the comfortable enjoyment of life or property by an entire community
    or neighborhood, or by any considerable number of persons, or
    unlawfully obstructs the free passage or use, in the customary
    manner, of any navigable lake, or river, bay, stream, canal, or
    basin, or any public park, square, street, or highway, is a public
    nuisance.

    The DA can choose to not prosecute it, but I see no legal reason for it to be dismissed. If the DA pursues it, it will likely go to trial. It might be that the DA will agree to a plea deal to something a little less harsh-sounding such as a disturbing the peace charge per PC 415.

    Grandpa may want to consult an attorney. And, he may want to reconsider such long walks.

    If convicted, I believe the penalties would be up to 6 months in jail and/or up to a $1,000 fine. Chances are a small fine, probation and community service might be the end result. But, an attorney might be able to get a better deal. And, it is possible that the DA may decide to drop the matter.

    A consultation with an attorney would be highly advisable.
     
  4. mightymoose

    mightymoose Well-Known Member

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    First of all, he was cited under the wrong section. PC 370 is simply a definition of public nuisance. The actual offense is PC 372.

    That said, what he did does not at all fit the definition of a public nuisance. Certainly some people might be offended by a person urinating in public, however this offense requires interference "with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any considerable number of persons...".

    Third, as this is a misdemeanor offense (although typically prosecuted as an infraction), the officer can not issue the citation without having witnessed the offense, or without the citizen that witnessed it making a citizen's arrest, which likely did not happen. Technically your grandfather was arrested and released with his promise to appear in court.

    As you describe it, this sounds like a very bone-headed move by the officers. Your grandfather could make quite a stink about this if he wanted to. This could be considered a bad arrest.

    I find it highly unlikely the DA will file the charge against your grandfather, and it is unlikely he will have to pay a dime. With some well placed phone calls you can probably ensure there will be no court appearance as the officer involved is going to be very embarrassed over this- not because of the urinating, but because he did something so dumb. If your grandfather is truly upset and offended by the actions of the officers he can go see a local attorney to discuss a possible civil rights matter over a bad arrest... if he really wanted to push it... but that totally depends on his personal feeling toward it all.

    Last, without a local ordinance that specifically addresses urinating, the most appropriate Penal Code is probably PC 314, but that requires offensive exposure, and that did not happen here either.

    Bottom line here is that your grandfather was confronted by someone that needs better training and better people skills.
     
    Last edited: Aug 5, 2011
  5. CdwJava

    CdwJava Moderator

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    Well, it IS "offensive to the senses" as required by the definition.
     
  6. mightymoose

    mightymoose Well-Known Member

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    Was it offensive to the senses of a considerable number of people? If so, who? This occurred in an isolated area.
    Something that is offensive to a single person in passing is not a public nuisance as defined.
    The best offense that would apply here is PC 314, but only if there was willful exposure in a lewd manner.

    There was no crime here- as least as it was described. The officer goofed.

    Even so- if PC 372 applied, the offense did not occur in the officer's presence and he can take no action without a citizen arrest. This particular officer had a major brain fart.
     
  7. CdwJava

    CdwJava Moderator

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    The reasonable person standard would likely apply. Who would NOT be offended by the deposit of offal where it was.

    I agree that the wrong section may have been cited, as there are several others that are more applicable. However, if he is interested, you KNOW the DA will file the appropriate section regardless of what is on the citation, hence the reason I did not concern myself too much with it. Heck, in my former county the DA wanted officers to cite for PC 484 and not for 488, 487, or 490.5 because he believed the description of the offense was sufficient.

    Where I have worked we have typically used PC 375 for these violations.

    Clearly someone pointed out the offense and the offender to the officer, so it is very likely that they have a C/A or can make an argument for the offense being committed in the officer's presence.

    The only "brain fart" the officer might have made was the code section. But, that is one that is easily correctable, and if not by the officer then by the DA at arraignment. Plus, unless this is a frequent occurrence most officers wouldn't begin to know where to find this sort of section! I used to work in Transient Central, so we cited this with some regularity, but in the city I have been in within the last ten years, we can probably count on one hand the number of times this has been an issue.
     
  8. mightymoose

    mightymoose Well-Known Member

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    I think that is why there was a brain fart- it is not a common occurrence.

    The brain fart is regarding 836. Having stopped the man just down the road the officer most certainly did not obtain a citizen arrest prior to making the stop and issuing the citation. If he issued the citation and then went back and obtained a citizen arrest then he did it wrong, and that can easily be exposed.

    Since citizen arrest is very rare anyway, it likely never even crossed his mind. Based on the circumstances, I also find it highly unlikely that the citizen would have made the arrest if the officer gave the proper advisement.

    Had the officer witnessed anything it would have been far more likely that he would contact the man where this occurred, rather than after he finished his business and walked down the road a ways.

    All signs point to this being a bone-headed citation. There may have been other factors that made the officer want to do something formal, but citation for a misdemeanor offense was not likely a valid option. The citation was probably a result of a statement that was made, but that isn't enough.

    Even if the the officer witnessed it, and even if the officer got a citizen arrest, this still doesn't meet the definition of a public nuisance. A public nuisance, as defined, is one that effects a community or a considerable number of people. It doesn't matter that people might be offended if they were to know about it- they must actually be offended by the act. If they don't know it occurred then there is no nuisance. One caller (likely the case) doesn't justify a public nuisance that was already removed by the time the officer made contact. This man peeing on a bush on the outskirts of town hardly qualifies. If he was peeing in right field during a softball game that might be a different story.

    Hopefully the OP can clarify in better detail how this went down.
     
    Last edited: Aug 6, 2011
  9. CdwJava

    CdwJava Moderator

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    Not quite. He can also indicate to the officer who the person is and express a desire to have the person arrested.

    From CPOLS: Similarly, if the private person does not want to detain or even speak to or directly confront the suspect in any way, he can summon an officer, describe what he saw (the offense), and point out the suspect. (Johanson (1995) 36 Cal.App.4th 1209, 1217; Johnson (1981) 123 Cal.App.3d 495; Green (1977) 68 Cal.App.3d 536; Sjosten (1968) 262 Cal.App.2d 539.)

    There are other things that may have happened (and we do not know WHAT happened) that could support the presence elements of PC 836 such as the officer contacting the subject near the offending pile and the person admitting to such a deposit.

    If the citation was ill-advised, then the DA will simply go the complaint route. No matter, the grandfather will still almost certainly have to address the matter in court unless everyone drops the ball or the DA does not prosecute.
     
  10. mightymoose

    mightymoose Well-Known Member

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    It isn't impossible, but extremely unlikely that occurred. The report was surely a complaint about a man peeing in the open, not a demand to have him arrested for doing so.

    It is not illegal to pee on a bush, even if it was in town. For whatever reason this officer chose to make a stretch. Maybe this was a small town where they don't have real crime to deal with and the cops are just out of practice.

    I hope the OP might indicate where this occurred... I am very curious.
     
  11. CdwJava

    CdwJava Moderator

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    Unless the officer talked with the complainant ahead of time, or the complainant expressed it to the dispatcher, etc. In my jurisdiction, this is a common occurrence and we often have to make such arrests - or ask the dispatcher to contact the party by phone to make the request.

    Again, we don't know what transpired so all we can do is speculate what-ifs.

    It can be. Where I have worked we have an ordinance against it, and the aforementioned 375 PC has also been used. Typically we use the muni code, however. And the caller may very well have reported the man taking a dump ... been there, done that, actually took an evidentiary photo of a real beauty on one occasion (it ended up as a screen saver when someone left their terminal logged in once).

    Small towns with real crime also have to deal with citizen complaints. If the officer did not do something, he may very well have gotten a complaint.

    Ya wanna know the #1 complaint about our personnel was when I first got to MY small town 10+ years ago? It was that the officers did not wave. Yep! And when they call the cops, they want to see something done. And if something CAN be done, you better do it or be able to explain why you couldn't. A lack of probable cause, a need for a C/A and not having one, etc. are all good reasons, but you'd better be able to explain it. :)

    Ditto.
     
  12. charlesc

    charlesc New Member

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    there is no physical evidence to prove that.

    what is necessary, is not unlawful, is it?
     
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