Ex parte Lane

CourtUnited States State Supreme Court (California)
Citation22 Cal.Rptr. 857,58 Cal.2d 99,372 P.2d 897
Docket NumberCr. 6929
Parties, 372 P.2d 897 In re Carol LANE on Habeas Corpus.
Decision Date28 June 1962

Burton Marks, Beverly Hills, for petitioner.

A. L. Wirin, Fred Okrand, Los Angeles, Hillel Chodos and Sheldon G. Bardach, Beverly Hills, amici curiae on behalf of petitioner.

Roger Arnebergh, City Atty. (Los Angeles), Philip E. Grey, Asst. City Atty., Wm. E. Doran and George J. Franscell, Deputy City Attys., for respondent.

Stanley Mosk, Atty. Gen., Arlo E. Smith, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Harold W. Kennedy, County Counsel (Los Angeles), Robert C. Lynch, Deputy County Counsel, Thomas M. Montgomery, County Counsel (Humboldt), Everett L. Coffee, County, Counsel (Madera), E. Warren McGuire, County Counsel (Marin), Dean C. Lauritzen, Dist. Atty. (Mariposa), William H. Stoffers, County Counsel (Monterey), George F. Holden, County Counsel (Orange), Ray T. Sullivan, Jr., County Counsel (Riverside), Stanford D. Herlick, County Counsel (San Bernardino), Henry A. Dietz, County Counsel (San Diego), Thomas M. O'Connor, City Atty., (San Francisco), Robert K. Cutler, County Counsel (Santa Barbara), Spencer M. Williams, County Counsel (Santa Clara), Richard

M. Ramsey, County Counsel (Sonoma), Calvin E. Baldwin, County Counsel (Tulare), J. F. Coakley, Dist. Atty. (Alameda), John J. Fox, Deputy Dist. Atty., A. Caminetti, Jr., Dist. Atty. (Amador), C. Keith Lyde, Dist. Atty. (Butte), Harold Wilsey, Jr., Dist Atty. (Colusa), John A. Nejedly, Dist. Atty. (Contra Costa), Jack R. Winkler, Dist. Atty. (El Dorado), Clyde H. Larimer, Dist. Atty. (Glenn), Leonard M. Conry, Dist. Atty. (Humboldt), James E. Marable, Dist. Atty. (Imperial), Boyd A. Taylor, Dist. Atty. (Inyo), Kit Nelson, Dist. Atty. (Kern), Charles F. Leach, Dist. Atty. (Kings), Fredric S. Crump, Dist. Atty. (Lake), Paula A. Tennant, Dist. Atty. (Lassen), William B. McKesson, Dist. Atty. (Los Angeles), Frank S. Petersen, Dist. Atty. (Mendocino), Stephen P. Galvin, Dist. Atty. (Merced), Paul B. Baker, Dist. Atty. (Modoc), N. Edward Denton, Dist. Atty. (Mono), David R. York, Dist. Atty. (Napa), Harold A. Berliner, Dist. Atty. (Nevada), Al. B. Broyer, Dist. Atty. (Placer) Chellis Carpenter, Dist. Atty. (Plumas), William O. Mackey, Dist. Atty. (Riverside), John H. O'Brien, Dist. Atty. (San Benito), Lowell E. Lathrop, Dist. Atty. (San Bernardino), James Don Keller, Dist. Atty. (San Diego), Thomas C. Lynch, Dist. Atty. (San Francisco), Laurence Drivon, Dist. Atty. (San Joaquin), Keith C. Sorenson, Dist. Atty. (San Mateo), Vern B. Thomas, Dist. Atty. (Santa Barbara), Richard W. Abbe, Dist. Atty. (Shasta), Gordon I. Smith, Dist. Atty. (Sierra), Albert H. Newton, Jr., Dist. Atty. (Siskiyou), Joseph Maddux, Dist. Atty. (Sonoma), Alexander M. Wolfe, Dist. Atty. (Stanislaus), John G. Hauck, Dist. Atty. (Sutter), Donald R. Kennedy, Dist. Atty. (Trinity), Jay R. Ballantyne, Dist. Atty. (Tulare), Bruce A. Thompson, Dist. Atty. (Ventura), Anthony B. Avilla, Dist. Atty. (Yolo), Joseph L. Heenan, Dist. Atty. (Yuba), Alan M. Firestone, City Atty. (San Diego), Richard J. Curran, Asst. City Atty., Dale Austin, City Atty. (Oceanside), Barbara, Lang Hayes, City Atty. (Carlsbad), Thomas G. Duffy, City Atty. (El Cajon), Gilbert Harelson, City Atty. (La Mesa), James S. Duberg, City Atty. (Chula Vista), Russell G. Taliaferro, City Atty. (Escondido), Robert O. Curran, City Atty. (National City), John F. O'Laughlin, City Atty. (Imperial Beach), and M. Tellefson, Culver City, amici curiae on behalf of respondent.

McCOMB, Justice.

Burton Marks petitions for a writ of habeas corpus on behalf of his client, Carol Lane (hereinafter referred to as 'defendant'), claiming that she is being illegally restrained of her liberty by the Chief of Police of the City of Los Angeles.

Facts: Defendant was convicted of the crime of 'resorting,' after a court trial in the Municipal Court for the Los Angeles Judicial District on two charges of violating section 41.07 of the Los Angeles Municipal Code, which provides: 'No person shall resort to any office building or to any room used or occupied in connection with, or under the same management as any cafe, restaurant, soft-drink parlor, liquor establishment or similar businesses, or to any public park or to any of the buildings therein or to any vacant lot, room, rooming house, lodging house, residence, apartment house, hotel, housetrailer, street or sidewalk for the purpose of having sexual intercourse with a person to whom he or she is not married, or for the purpose of performing or participating in any lewd act with any such person.'

The evidence in support of the convictions was that in each case defendant went from her living room to her bedroom in her own home for the purpose of having sexual intercourse with a male to whom she was not married.

This is the sole question necessary for us to determine: Has the State adopted a general scheme for the regulation of the criminal aspects of sexual activity and determined, to the exclusion of local requlation, when sexual intercourse between persons not married to each other shall be criminal?


The Law: A local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by the general law. (Cal.Const., art. XI, § 11; Abbott v. City of Los Angeles, 53 Cal.2d 674, 682, 3 Cal.Rptr. 158, 349 P.2d 974; Agnew v. City of Los Angeles, 51 Cal.2d 1, 5(2), 330 P.2d 385; Tolman v. Underhill, 39 Cal.2d 708, 712(4), 249 P.2d 283; Pipoly v. Benson, 20 Cal.2d 366, 370(5), 125 P.2d 402, 147 A.L.R. 515; Nat. Milk etc. Assn. v. City etc. of S. F., 20 Cal.2d 101, 108(1), 124 P.2d 25.)

Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned. (Pipoly v. Benson, supra, 20 Cal.2d 366, 371, 125 P.2d 482, 147 A.L.R. 515.)

In determining whether the Legislature intended to occupy a particular field to the exclusion of all local regulation we may look to the 'whole purpose and scope of the legislative scheme' and are not required to find such an intent solely in the language used in the statute. (Tolman v. Underhill, supra, 39 Cal.2d at p. 712(6), 249 P.2d at p. 283; Abbott v. City of Los Angeles supra, at pp. 682(9), 684, 3 Cal.Rptr. 158.)

The Penal Code sections covering the criminal aspects of sexual activity are so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject. Following are the Penal Code sections relating thereto: (1) Sections 261, 262, 263, 264 and 653f (rape); (2) sections 265, 266, 266a, 266b, 266c, 266d, 266e, 266f, 266g, 266h, 266i, 267 and 784, subdivision 3 (abduction, procurement, pimping and pandering); (3) sections 268 and 269 (seduction under promise of marriage); (4) sections 269a and 269b (adultery); (5) sections 273e, 273f, 273g, 288, 288.1 and 647a (crimes against children); (6) sections 274, 275 and 276 (abortions); (7) sections 281, 282, 283 and 284 (bigamy); (8) sections 285 and 785 (incest); (9) sections 286 and 287 (crime against nature); (10) section 288a (sex perversions); (11) sections 290 and 291 (registration with sheriff or police chief); (12) sections 311, 311.2, 311.3, 311.4, 311.5, 311.6, 311.7, 311.8, 311.9 and 312 (obscene matter); (13) sections 314, 415, 647, subdivisions (a) and (d), and 650 1/2 (acts against public decency); (14) sections 315, 316 and 318 (keeping, residing in, or prevailing upon person to visit place kept for prostitution); and (15) section 647, subdivision (b), (prostitution).

Sexual intercourse between persons not married to each other is prohibited by some of the above mentioned Penal Code sections under specified circumstances, including where the famale is under the age of 18 (Pen.Code, § 261, subd. 1); where she resists and her resistance is overcome by force or violence (Pen.Code, § 261, subd. 3); where she is prevented from resisting by threats or by use of a narcotic or anesthetic (Pen.Code, § 261, subd. 4); where she is in no position to resist because of insanity, an unconsciousness of the nature of the act, or a fraudulent belief that the perpetrator is her husband (Pen.Code, § 261, Subds. 2, 5, 6); where there is a monetary consideration (prostitution) (Pen.Code, § 647, subd. (b)); where the female is of previous chaste character and is seduced under promise of marriage (Pen.Code, § 268); where the parties or either of them, are married to others, and the parties live in a state of cohabitation (Pen.Code, §§ 269a, 269b); and where the parties are within the degrees of relationship declared by law to be incestuous (Pen.Code, § 285).

Other Penal Code sections hereinabove cited, although not limited to acts of sexual intercourse, may, depending upon the circumstances, prohibit such acts. (See, e. g., Pen.Code, § 647, subds. (a), (d) (lewd or dissolute conduct in a public place); § 288 (crimes against children); § 314 (indecent exposure and obscene exhibitions); and § 650 1/2 (acts against public decency).)

Although living in a state of cohabitation and adultery is prohibited (Pen.Code, §§ 269a, 269b), neither simple fornication or adultery alone nor living in a state of cohabitation and fornication has been made a crime in this state. (Rudell v. Board of Administration, etc., 8 Cal.2d 600, 602(2), 66 P.2d 1203; In re Cooper, 162 Cal. 81, 83 et seq., 121 P. 318; Ex parte Thomas, 103 Cal. 497, 37 P. 514; White v. White, 82 Cal. 427, 449, 23 P. 276, 7 L.R.A. 799; San Chez v. Superior Court, 153 Cal.App.2d 162, 165(6), 314 P.2d 135.)

It is the therefore clear that the Legislature has determined by implication that such conduct shall not be criminal in this state. (Cf. Abbott v. City of Los Angeles, Supra, 53 Cal.2d 674, 685, 3 Cal.Rptr. 158, 349 P.2d...

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