Lane, In re

• Decision Date: 21 December 1961
• Citation: 367 P.2d 673,18 Cal.Rptr. 33
• Parties: In re Carol LANE on Habeas Corpus. Crim. 6929.
• Court: California Supreme Court

Page 33

18 Cal.Rptr. 33

367 P.2d 673

In re Carol LANE on Habeas Corpus.

Crim. 6929.

Supreme Court of California, In Bank.

Dec. 21, 1961.

Rehearing Granted Jan. 17, 1962.

Opinion vacated 22 Cal.Rptr. 857, 372 P.2d 897.

Burton Marks, Beverly Hills, for petitioner.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and George J. Franscell, Deputy City Atty., Los Angeles, for 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. She was sentenced to serve 30 days in the Los Angeles City Jail on each count, the sentences to run concurrently. The Appellate Department of the Superior Court of Los Angeles County affirmed the convictions without an opinion.

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 intercourse with a male to whom she was not married, thus violating section 41.07 of the Los Angeles Municipal Code.

This is the sole question necessary for us to determine: Has the State preempted the field of regulating the criminal aspects of sexual activity and prostitution?

Yes.

The Law: A local municipal ordinance that is in conflict with a general law adopted by the Legislature 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. Inderhill, 39 Cal.2d 708, 712 (4), 249 P.2d 280; Pipoly v. Benson, 20 Cal.2d 366, 370 (5), 125 P.2d 482, 147 A.L.R. 515; Natural Milk etc Ass'n v. City etc. of S. F., 20 Cal.2d 101, 108 (1),124 P.2d 25.)

When doubt exists as to whether an attempted regulation pertains to a municipal or a state matter, or if it is the mixed concern of both, such doubt must be resolved in favor of the legislative authority of the state. (Abbott v. City of Los Angeles, supra, 53 Cal.2d at 681 (6), 3 Cal.Rptr. at p. 163, 349 P.2d at p. 979.)

Section 41.07 of the Los Angeles Municipal Code 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.'

An examination of the Penal Code shows clearly that the State has occupied the field with regard to the criminal aspects of sexual activity and prostitution and has provided appropriate penalties in each instance.

As evidence of this fact, we need only refer to the following Penal Code sections: (1) Sections 261, 262, 263 and 264 (rape); (2) sections 265, 266b, 266c, 266d and 266f (abduction for marriage, defilement, or illicit living relationship); (3) sections 266, 266a, 266e, 266g, 267, 315, 316, 318 and 784 (prostitution); (4) section 266h (primping); (5) section 266i (pandering); (6) section 268 (seduction under promise of marriage); (7) sections 269a and 269b (adultery); (8) sections 274, 275 and 276 (abortions); (9) sections 281, 282, 283 and 284 (bigamy); (10) sections 285 and 785 (incest); (11) sections 286 and 287 (crime against nature); (12) sections 288, 288.1 and 647a (crimes against children); (13) section 288a (sex perversions); (14) section 290 (registration with sheriff or police chief); (15) sections 311, 311.2, 311.3, 311.4, 311.5, 311.6, 311.7, 311.8, 311.9 and 312 (obscene matter); and (16) sections 314, 647 and 650 1/2 (acts against public decency).

Although living in a state of cohabitation and adultery is prohibited (Pen.Code, § 269a), 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 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, 159, 349 P.2d 974.)

Abbott v. City of Los Angeles, supra, involved the constitutionality of a 'criminal registration act' enacted by the City of Los Angeles. The only registration of criminals required by the Penal Code was the registration of persons convicted of certain specified sex crimes. (Pen.Code, § 290.) In holding the ordinance unconstitutional as an attempt to legislate in a field already preempted by the state, this court said, at page 685, 3 Cal.Rptr. at page 165, 349 P.2d at page 981: 'In Title 2 of Part IV, the Legislature has provided a method of controlling crimes involving the use of concealed weapons, machine guns, pistols, tear gas, silencers, and similar items to which a portion of the Los Angeles ordinance is directed. That the state Legislature has not included as many types of crime within this specific portion of the statute as does the ordinance is merely indicative of the fact that the state Legislature did not deem such was necessary in the overall state scheme. 'An examination of the Penal Code also indicates that the state Legislature has preempted the very field of registration as a means of apprehension of criminals. This it has done by expressly requiring registration in some instances and by inferentially rejecting it in others. Thus, in this basic respect the state statutes and the local ordinance are in conflict.'

Accordingly, a city ordinance attempting to make sexual intercourse between persons not married to each other criminal is in conflict with the state law and is void.

In view of our conclusions, it is unnecessary to discuss other questions raised by petitioner.

Petitioner is ordered discharged from custody.

GIBSON, C. J., and TRAYNOR, SCHAUER and PETERS, JJ., concur.

DOOLING, Justice (dissenting).

I dissent.

The counties and municipal corporations of the state have a constitutional grant of power contained in section 11, article XI, of the Constitution of California in the following language: 'Any county, city, town or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.' The power so granted by the Constitution to counties and municipalities 'is just as broad, sweeping, and inclusive as the powers with relation thereto which are vested in the legislature itself, except that they must not conflict with the Constitution or with general laws, and must be confined in their application only to the city or county adopting them.' (Stanislaus County etc. Ass'n v. Stanslaus County, 8 Cal.2d 378, 384, 65 P.2d 1305, 1307; see also McKay Jewelers, Inc. v. Bowron, 19 Cal.2d 595, 600, 122 P.2d 543, 139 A.L.R. 1188; In re Mass, 219 Cal. 422, 425, 27 P.2d 373; Odd Fellows' Cem. Ass'n v. City and County San Francisco, 140 Cal. 226, 230, 73 P. 987.) Unless it can reasonably be said that the ordinance before us in this case is 'in conflict with general laws,' it comes within the constitutional grant of power quoted above and is just as effective within the limits of the City of Los Angeles as it would be within the limits of the state if it had been adopted by the Legislature.

The majority opinion recognizes the constitutional power of the city to legislate in this field unless it can be found that its legislation is in conflict with general laws; and from the fact that the Legislature has made criminal many other sexual activities but that 'neither simple fornication or adultery alone nor living in a state of cohabitation and fornication has been made a crime in this state,' the majority opinion concludes that 'the Legislature has determined by implication that such conduct shall not be criminal in this state.'

This holding flies in the fact of the whole body of decisional law that has been built up by the courts in this state in determining from case to case whether particular local ordinances enacted under the authority of the Constitution, article XI, section 11 are or are not in conflict with the general laws.

Commencing with the caveat in In re Sic, 73 Cal. 142, 149, 14 P. 405, 408: 'We do not wish to be understood as holding that the sections of the ordinance which make criminal other acts not punishable under the general law are void because the legislature has seen fit to legislate upon the same subject,' this court has consistently refused to invalidate local legislation on the ground standing alone that the Legislature has adopted some or many regulations in the same field. This court, in every case where it has invalidated such local legislation as being in conflict with general laws, has found some additional factor or factors from which the intention of the Legislature to occupy the field to the exclusion of any local legislation either expressly appears or can be reasonably implied. An examination of some of the decided cases will make this fact perfectly clear.

In the same volume with In re Sic, supra,...