James Burns was unlucky enough to get busted for sleeping at the edge of Dry Creek on the one and only night that he had no place to lay his head.
Leroy Cole began collecting disability payments in January, so he got an apartment and doesn't sleep in Kewin Park anymore.
Kenneth Hansen earned a certificate as a computer network specialist while homeless. But he hasn't found a job, so he still splits his time between the park, the Modesto Gospel Mission and The Salvation Army's emergency shelter.
Kevin Washburn got sick of having nothing to do all day and found a spot in a sober living home.
And Chuck Yates, who has been on the streets for three years, nurses a dream about a mobile home at his sister's house in Sonora, which he plans to fix up some day.
All five were homeless July 20, when Modesto police officers found them huddled under some brush at the end of a dusty trail that branches off the main path in the La Loma neighborhood park.
Four of the men head to trial Monday in Stanislaus County Superior Court. A fifth man took a deal last week, pleading no contest to illegal lodging, a misdemeanor, so he wouldn't have to take time off from work.
The remaining defendants said they won't negotiate with a prosecutor who initially offered 30 days in jail and a stay-away order aimed at keeping them out of the park, because they don't think it's illegal to be homeless.
"There's no deal to cut in our book," said Hansen, 45, who has a bicycle and carries his belongings on his back. "If I had some place to sleep, I sure as heck wouldn't have been down here."
Drop charges or go to trial
Such cases pop up from time to time in the courthouse, though most are resolved when offenders plead guilty to infractions or a judge dismisses the charges. For example, four men caught sleeping along a canal north of Elk Park in central Modesto on Aug. 3 got off with a warning four months later.
This time, a settlement is unlikely, said Frank Carson, a court-appointed attorney who is paid $75 an hour to represent Cole. He said he and his colleagues will go to trial unless a prosecutor drops all charges.
"These guys weren't littering, they weren't desecrating anything," Carson said. "They're just some poor devils who were broke and trying to get through the night."
Defense attorneys like Carson take a dim view of police sweeps that target the homeless, but Michael Moradian, president of the La Loma Neighborhood Association, is pleased to see the authorities take a seemingly minor case so seriously.
Moradian doesn't think homeless people are behind every nuisance in a neighborhood that recently hired a private security patrol to cut down on Dumpster diving and break-ins.
But he remains suspicious of transients who are in the park all hours of the day and night, saying they have turned a family recreation area into a zone that many moms and dads consider off-limits.
"Put them in jail for 30 days," Moradian said. "Force them to go to some drug rehabilitation or alcohol rehabilitation program."
Whether the men had other options on that summer night -- when they were woken at 4:40 a.m. by police officers who had them surrounded -- remains an open question.
On a 15-day 'out'
Cole, Hansen, Washburn and Yates said they were sleeping along the creek because they were on their 15 days "out" at the mission, which is the only year-round shelter in the county. The typical stay at the mission is no more than 30 days at a stretch, though extensions are sometimes given and people can return after 15 days away.
Burns said he got locked out of the mission because he arrived a few minutes after check-in time.
Barbara Deatherage, administrator of the Modesto Gospel Mission, checked her records because she has been subpoenaed by the prosecution and the defense.
She concluded that each of the men could have had a bed that night. But she was surprised to learn that homeless people can be jailed for sleeping in a park. She assumed such citations were akin to traffic tickets, generating fines and some minor discomfort.
"Either way, guilty or not guilty, I was surprised at the amount of time the courts were going to spend on it," Deatherage said.
Heated debates about the rights of the homeless are often held when cities and towns try to protect public places by banning aggressive panhandling or argue over funding for shelters and services.
A turning point in the debate over police sweeps targeting homeless people came in 2006, when the 9th U.S. Circuit Court of Appeals struck down a Los Angeles ordinance that let authorities arrest people found sleeping on the streets.
The court, which has jurisdiction over California and six other Western states, said the ordinance was unconstitutional because homeless people outnumbered available shelter beds.
In Modesto, authorities could have charged the men with an infraction for violating a city ordinance that bans camping in parks that are closed between 10 p.m. and 6 a.m. That approach would have generated a fine, much like a traffic ticket.
Instead, the men are charged with illegal lodging, a subsection of a state law aimed at cracking down on disorderly conduct. The misdemeanor charge set the criminal process in motion.
As a result, a prosecutor must convince 12 jurors that Cole, Hansen, Washburn and Yates are guilty of setting up temporary quarters in the park. Defense attorneys likely will argue that the lodging charge is aimed at squatters who take over private property.
Follow rules, use social services
Deputy District Attorney Jared Carrillo said his office wants to push the homeless toward social service groups that are willing to lend a hand, or at least persuade them to abide by park rules. Prosecutors won't dismiss a case simply because the defendants want to exercise their right to a trial.
"I think that would send the wrong message," Carrillo said.
If a trial is held, Burns won't be part of the action. He took a deal Wednesday when a different prosecutor offered a $120 fine and one year on probation.
Burns said he was temporarily homeless after he lost a job in Patterson. He returned to his hometown in the Bay Area two days after he was cited for lodging, had a hard time coming up with money for bus tickets so he could attend monthly court hearings in Modesto and couldn't afford to take four days off from his job at Target to plead his case before a jury.
"Having to go to trial means I lose my job, which puts me back at square one," said Burns, 27, of Sunnyvale.
The rest of the men are poised for a battle. They think the government is spending time and money to prosecute people who don't belong in jail and can't afford to pay fines. And they don't mind telling their story to a jury, because they don't have anything else to do.
Yates, 55, said he doesn't appreciate police sweeps that get him up in the middle of the night, because he inevitably loses some of his belongings in the scramble and later watches friends who haven't had enough sleep talk to themselves, or the trees.
Cole, 48, said he has been in trouble before but never had a lawyer who wanted to fight until he met Carson.
Washburn, 47, said he has moved on, but still thinks the charges should be dismissed, on principle.
"It just needs to go away," he said.
Bee staff writer Susan Herendeen can be reached at email@example.com or 578-2338.