By Marisa Kendall | CalMatters
Wickey Twohands woke up early on the day he was scheduled to go on trial for sleeping outside.
First, he dropped off all his possessions — a bedroll, blankets, clothes and some food — at a friend’s house for safekeeping. Then the 77-year-old caught a bus to the courthouse in downtown Fresno. He arrived an hour early, before his lawyer or even the judge, and took a seat on a bench in the hall to wait.
“I didn’t want to miss it,” he said.
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Three hours later, Twohands got disappointing news. His trial would be delayed, at the request of the city, and he’d have to come back and do it all again in April. As he left the courthouse, an advocate who’d showed up to support him offered to give him a ride and buy him lunch. He still hadn’t eaten yet that day.
Twohands was set to be the first person to go on trial for camping in Fresno since the city made it a misdemeanor in September to sit, lie, sleep or camp in any public place. Cities across the state have passed similar measures banning or restricting encampments following the U.S. Supreme Court giving the go-ahead in a ruling out of Grants Pass, Oregon. Now some attorneys who represent homeless campers are champing at the bit to put these new ordinances before a jury. At least three cases — Twohands’, a second case in Fresno, and one in San Francisco — are headed for trials that will test this new wave of enforcement against homeless encampments.
“This trial is a way to vindicate an innocent man, but it’s also a way to show this ordinance shouldn’t be enforced, shouldn’t be prosecuted,” said Twohands’ lawyer, Kevin Little.
He has another camping case scheduled for a pre-trial hearing in April, which likely will get a May trial date.
It’s unusual for unhoused defendants to get their day in court. After police cite or arrest someone for illegal camping, prosecutors often decide not to file charges. If the person does get charged, the charges often are quickly dropped — sometimes as a result of a diversion program, where the defendant promises to avoid additional citations or meet other requirements.
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Other times, the defendant doesn’t show up for an initial court date, so instead of setting the case for trial, the court issues an arrest warrant. The stressful, unpredictable nature of life on the streets doesn’t lend itself to keeping appointments, and many people forget their court date, can’t find transportation to the courthouse, can’t leave their belongings unattended on the street, or simply don’t see the point in showing up.
‘I want justice’
In San Francisco, attorney Samantha Pérez with the Public Defender’s Office hasn’t been shy about demanding a trial for clients charged with camping. She has one case heading that way later this year. The client is Linda Vazquez, a 52-year-old long-time San Francisco resident who was briefly handcuffed, cited for camping and then released in October.
“I’ve had clients who are angry, and that’s why we both feel empowered to…kind of make the city answer for these methods. And just to get justice,” she said. “People associate criminal charges with having done something wrong, and they haven’t done anything wrong, so (they say) ‘I want my name cleared. I want justice.’ Trial is a great path for that.”
In April, she and her colleagues will go to court and argue that Vazquez’s case should be dismissed because San Francisco’s anti-camping ordinance is too vague to enforce. It will be the first time the ordinance has been challenged on those grounds. And it marks a rare opportunity for an unhoused person to publicly challenge the arrest in front of a judge, instead of quietly accepting a diversion program.
If Pérez doesn’t succeed in getting Vazquez’s case thrown out at that point, she’ll continue pushing it toward trial.
But so far, there doesn’t seem to be much interest on the other side, from the district attorney’s office or the court, in taking these cases to trial. That reluctance baffles Pérez and her colleague, Deputy Public Defender Amy Tao.
“If they’re going to file charges, then they should be able to prove it,” Tao said.
The Public Defender’s Office has gotten several illegal camping cases ready for trial since the city started cracking down on encampments in August, Tao said. But on the date each trial was supposed to start, the judge dismissed the case in the “interest of justice,” she said.
That could be a matter of resource allocation, Tao said. There are only so many courtrooms available, and attorneys, clerks, bailiffs and other personnel already are stretched thin.
As another way to avoid trial, prosecutors often offer a diversion program. Defendants who go that route agree to abide by certain rules — such as avoiding any new citations for several months — in exchange for having their charges dropped.
But if people continue to live on the street, it’s hard for them to avoid new camping citations, making diversion a poor choice, Tao said.
The city of Fresno offered Twohands a diversion program, which he and his lawyer declined. In a statement to CalMatters, City Attorney Andrew Janz lamented Twohands’ refusal to accept the program, which he said would secure him permanent housing.
“The City firmly believes this defendant, given his age and condition, should receive a diversion program, treatment, and permanent housing, and not…be put back out on the streets without resources and a path for success,” Janz said in an email. “We hope that the defense team will reconsider the offer for a non-trial resolution.”
Fresno’s camping ban specifies that the court can grant diversion or probation as an alternative to fines and jail time, pointed out Councilmember Miguel Arias, who cosponsored the ordinance.
“If you’re lying or sleeping illegally, we’re going to offer you help,” he said. “If you choose to accept that help, we’re going to press pause on these pending charges. If you choose not to accept help, we’re going to proceed with the charges.”
If someone rejects help, they should be held accountable, which could include seeing a case all the way through trial, Arias said.
The city didn’t specify the terms of Twohands’ diversion offer, said Little, his attorney. But he doubted whether the program would help Twohands — there are few long-term housing placements — unless the city gave Twohands special treatment by getting him into housing not available to other seniors on the street.
“If the city agrees to put its money where its mouth is and offer the same benefits to ALL unhoused people subject to enforcement under this ordinance that they are now offering to Wickey, then we would not hesitate to accept,” he said in a text message to CalMatters. “But if they are only being offered to Wickey in order to avoid court and public scrutiny of the ordinance, then no thank you.”
Twohands, a soft-spoken African-American man with a gray beard, hopes by taking his case to trial, he might help change the way Fresno police target people for sleeping outside.
“It’s not a crime to survive,” he said. “I haven’t killed anyone. I’m not trying to kill anyone. I’m just trying to live.”
Police arrested Twohands in October for camping in a public place and unlawful possession of a shopping cart. He was released from jail after just 10 or 20 minutes, he said, but police confiscated his shopping cart and all his possessions.
When he got out of jail, he returned to the streets to await his trial. Twohands knew he couldn’t go back to where he was arrested, a vacant patch of land in front of an apartment building where Twohands was friendly with the owner. Instead, he now moves around the city, sleeping wherever he can.
Documents Little filed with the court preview the arguments he might use before a jury. For example, he says Twohands was standing up — not lying down or sleeping — when he encountered the police officer, and the officer saw no evidence of camping. He also plans on calling expert witnesses to testify about the biological necessity of people living on the street to sleep.
The risks of trial
If Twohands is convicted of illegal camping, a misdemeanor, he could face a year in jail and a fine of up to $1,000 — though Little says it would be “unheard of” for him to get any jail time.
But even without jail, trials come with all sorts of additional risks and hardship for unhoused defendants. That’s why the San Joaquin County Public Defender’s Office has yet to try to bring any of its camping cases before a jury, instead settling for probation to save its clients the headache, said Public Defender Judyanne Vallado.
The county’s courthouse in Lodi was closed for two years, so anyone cited for camping there would have to make the trek to Stockton for trial, a trip that could take an hour by bus, Vallado said. Between the multiple pre-trial conferences, jury selection and the trial itself, the defendant could be in Stockton an entire week. That’s untenable for many people who have nowhere safe to leave their pets or possessions.
“Just for one stupid trespass,” she said. “Just for falling asleep on the sidewalk because you had nowhere else to sleep. That’s a lot.”
As a result, camping cases in San Joaquin County — where both the county and the city of Stockton have made it illegal to camp anywhere — are resolving without trials. Defendants typically are ordered to complete probation and to stay 100 yards away from where they were caught, Vallado said.
It’s frustrating, Vallado said. Her office wants to go before a jury and fight back against what its attorneys say is the unjust practice of punishing people for having nowhere to sleep.
“We’re not helping them by just signing them up for probation and a stay away order that we don’t think is legal,” she said.
Vallado also worries that some people cited for camping aren’t even given the chance to fight their charges. As law enforcement ramped up its crackdown against homeless encampments and local jurisdictions started passing new camping bans, at some point the Stockton courthouse started sending all camping cases to its traffic courtroom, Vallado said. The public defender’s office doesn’t staff that courtroom, because in the past, it dealt with minor traffic infractions that didn’t require a lawyer. Vallado didn’t even realize camping cases were being sent there until recently.
That’s a problem, she said. While any defendant in that courtroom can request a lawyer, even if there isn’t one present, many may not know they have that option. Ideally, her office would assign a lawyer to that courtroom, she said. But they’re already short six attorneys.
“We’re definitely short-staffed,” Vallado said. “It’s not a great time to be staffing additional courtrooms.”
The Lodi courthouse was set to reopen this month, but it’s unclear what that means for the county’s camping cases.
Linda Vazquez’s day in court
It was 9:15 a.m. — 15 minutes past the time Vazquez had been told to show up in court for trial — and the judge still wasn’t there.
“Oh come on,” she muttered, visibly stressed. “I have to get back to my doggies.”
Vazquez had left her tent late and in a rush that morning after a CalMatters reporter woke her up. She didn’t have time to make arrangements for her three dogs, Sebastian, Bella and Jordan, so she just zipped them up inside her tent and hoped for the best. Bella recently had puppies, which were sleeping in an old portable baby crib inside the tent, and Vazquez hated to leave them alone.
Police cited Vazquez for camping at the edge of San Francisco’s Tenderloin neighborhood one afternoon in October, while she was cooking chicharrones for lunch on a portable camp stove. It was her second citation in two weeks.
While waiting for that case to go to trial, still sleeping every night in the same place on the sidewalk, Vazquez was cited again for illegal camping in November. Since then, she moved into a motel, but it’s unclear how long she can stay there.
When the judge came in and called her case at around 9:30, he postponed her trial to give her lawyer, Pérez, more time to put together her defense. Then Vazquez had to go up to the fourth floor to get fingerprinted before she could start the long walk back to her dogs.
As she left the courthouse, she said she felt good about how her hearing went.
But does she want her case to go to trial?
“I’d rather it not,” she said. “But if we have to, let’s do it, because you’re wrong. Because you shoulda put me up in housing.”
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