Gleason v. Municipal Court of Los Angeles Judicial Dist., Los Angeles County

Citation38 Cal.Rptr. 226,226 Cal.App.2d 584
CourtCalifornia Court of Appeals
Decision Date21 April 1964
PartiesPaul Grant GLEASON, Petitioner, v. MUNNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Respondent; PEOPLE of the State of California, Real Party in Interest. Civ. 28146.

Litwin & Barouh, and Louis L. Litwin, Beverly Hills, for petitioner.

Roger Arnebergh, Philip E. Grey, Asst. City Atty., and John F. Haggerty, Deputy City Atty., for respondent and for real party in interest.

BURKE, Presiding Justice.

Petitioner seeks a writ of prohibition restraining the Municipal Court of the City of Los Angeles from prosecuting petitioner for violation of section 41.18(b) of the Los Angeles Municipal Code, a loitering ordinance, contending such ordinance is invalid in that the State of California, by the provisions of Penal Code section 647, has preempted the field encompassing loitering offenses. The two sections are set forth in the footnote. 1

Petitioner was arrested for loitering in a pedestrian tunnel and filed a demurrer to the charge; briefs were filed, the matter submitted, and on February 7, 1964, petitioner was notified the demurrer was overruled and he was ordered to plead on or before February 17, 1964. Thereupon, he filed his petition for a writ of prohibition seeking to foreclose further proceedings in the case.

The Supreme Court of the State of California has considered the subject of preemption at length in In re Lane, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897, and repetition of its holdings therein is unnecessary here. In Abbott v. City of Los Angeles, 53 Cal.2d 674, 683, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385, the court recognizes that there can be supplementary regulation in a field which general laws already cover. (See also Hunter v. Adams, 180 Cal.App.2d 511, 518, 4 Cal.Rptr. 776.) For preemption there should be either (1) total absorption of the legislative scheme (In re Moss, 58 Cal.2d 117, 23 Cal.Rptr. 361, 373 P.2d 425), or (2) an extended body of statutes manifesting the legislative intent that a general scheme was intended for the field (In re Lane, supra, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897). Whether preemption obtains is a question of legislative intent.

It is evident that the Legislature did not intend to occupy the entire field of loitering and preclude local legislation thereon. There is no extended body of state legislation presented, and Penal Code section 647 is limited in its terms and applications. The only subdivisions of Penal Code section 647 dealing with loitering are (d) loitering about public toilets, (c) common vagrancy, and (g) loitering or prowoling on private property at night. Subdivision (c) uses the terminology '* * * upon the streets or from place to place without apparent reason * * *' Section 647a, subdivision (2), proscribes loitering about any school or public place where children normally congregate. These Penal Code sections make no mention of loitering in tunnels, pedestrian subways or bridge overpasses, unless we interpret the words 'from place to place' in subdivision (e) to be all-encompassing. Had this been the intent of the Legislature, it would have been unnecessary for it to enact subdivisions (d) and (g).

The kind of problem intended to be confronted and remedied by section 41.18(b) of the Municipal Code is not common to the state generally but is more peculiar to centers of population where pedestrian tunnels and subways are provided for school children and others. In such places persons may lurk to annoy or molest women and children and solicit or rob pedestrians, or degenerates may indulge in exhibitionism or other lewd conduct, or others may seek to use such facilities as toilets or for shelter. The mere 'loitering' in such a place carries with it an inference that the 'loiterer' is there for no good. It is common knowledge that these are places which are either partially or wholly obscured from public view, except as to those normally using such facilities. Thus, users are exposed to being trapped therein with the likelihood that shouts or cries for help would be drowned by the din of the nearby flow of vehicular traffic. Loitering in such places can have a sinister connotation implying evil purposes.

Section 21109 of the Vehicle Code specifically provides that local authorities may adopt regulations concerning pedestrian traffic in subways, tubes, and tunnels or upon bridges or viaducts, requiring the posting of notice therefor. However, we consider the intent of the section to be directed primarily to the aspect of pedestrian traffic as it relates to vehicular traffic and as not being contemplative of crimes of the loitering or molesting...

To continue reading

Request your trial
14 cases
  • Cohen v. Board of Supervisors
    • United States
    • California Supreme Court
    • 31 Octubre 1985
    ...51 Cal.App.3d 831, 124 Cal.Rptr. 685), loitering in tunnels, pedestrian subways or general freeway areas (Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 38 Cal.Rptr. 226), glue sniffing (People v. Orozco, supra, 266 Cal.App.2d 507, 72 Cal.Rptr. 452), consumption of alcoholic beverage......
  • Mandel v. Municipal Court for Oakland-Piedmont Judicial Dist., Alameda County
    • United States
    • California Court of Appeals Court of Appeals
    • 8 Octubre 1969
    ...68 Cal.Rptr. 721, 441 P.2d 281; Pain v. Municipal Court (1968) 268 A.C.A. 156, 157, 73 Cal.Rptr. 862; and Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 586, 38 Cal.Rptr. 226.) He alleged, 'On the dates specified in said complaint petitioner was on the public sidewalk near the school......
  • Galvan v. Superior Court of City and County of San Francisco
    • United States
    • California Supreme Court
    • 23 Abril 1969
    ...Cal.Rptr. 410; People v. Commons, Supra, 64 Cal.App.2d Supp. 925, 932, 148 P.2d 724 (see fn. 5 Supra), and in Gleason v. Municipal Court, 226 Cal.App.2d 584, 587, 38 Cal.Rptr. 226. The need for differential treatment of firearms was also recognized by the Legislature in section 25840 of the......
  • Gates v. Municipal Court
    • United States
    • California Court of Appeals Court of Appeals
    • 25 Agosto 1982
    ...as not preempted by state law. (Yuen v. Municipal Court, supra, 52 Cal.App.3d 351, 356, 125 Cal.Rptr. 87; Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 38 Cal.Rptr. 226; see also In re Hoffman (1967) 67 Cal.2d 845, 853, 64 Cal.Rptr. 97, 434 P.2d 353.) In Gleason, supra, the court fo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT