People v. Lopez, Cr. A

• Decision Date: 09 August 1962
• Docket Number: Cr. A
• Citation: 24 Cal.Rptr. 412
• Court: California Superior Court
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Demund Nmn LOPEZ, Defendant and Respondent. 5031. Appellate Department, Superior Court, Los Angeles County, California

Page 412

24 Cal.Rptr. 412

PEOPLE of the State of California, Plaintiff and Appellant, v. Demund Nmn LOPEZ, Defendant and Respondent.

Cr. A. 5031.

Appellate Department, Superior Court, Los Angeles County, California.

Aug. 9, 1962.

Arlo E. Rickett, Jr., City Atty. of Pomona, Robert C. Gustaveson, Deputy City Atty., for appellant.

Daniel N. Fox, Pomona, for respondent.

BISHOP, Judge.

Expressed in general terms the crucial question before us is this: May a city make it a misdemeanor to be drunk in public, or is such local legislation ineffective because it is in conflict with general laws? We are called upon to consider the problem by the appeal of the People from an order dismissing this action in which the charge was that the defendant had appeared in a public place drunk, in violation of an ordinance of the City of Pomona. We have concluded that section 11 of Article XI of the state constitution authorized the adoption of the ordinance and that the action should not have been dismissed.

The constitutional provision, as of interest in this case, reads: 'Any * * * city * * * may make and enforce within its limits all such local, police, sanitary and other regulations as are not in conflict with general laws.' It is not to be doubted that, with this backing, and subject to the condition that it be 'not in conflict', a city may make and enforce an ordinance making it a misdemeanor to be publicly drunk. It was so held in In re Boza, 1940, 41 Cal.App.2d 25, 30, 106 P.2d 29, 31, where the charge was that the defendant did 'commit the crime of being intoxicated in a public place or a place open to public view', acts made a public offense by a city ordinance.

The City of Pomona adopted a like provision in section 16-4 of its ordinance 1673, in these words: 'Any person who appears at or is in any public place, or in any place open to the public view, or on any street, sidewalk, parkway, alley, highway, court, public park, railway, depot, plaza, bus depot or public square in a state of drunkenness or intoxication, or under the influence of an alcoholic beverage, narcotics, sedatives or derivatives is guilty of a misdemeanor.' Marking use of a part of this legislation, a complaint was filed against the defendant, in which it was charged that he did 'appear in a public place, a place open to public view, to wit: Hull House * * * within the corporate limits of the City of Pomona, in a state of drunkenness or intoxication or under the influence of an alcoholic beverage.'

At the time the case was called for trial, but before the trial was begun, the defendant moved to dismiss 'on the grounds that subsection (f) ¹ of Section 647 of the Penal Code which was adoped at the last session of the legislature pre-empted the field of drunkenness in public' and so the city ordinance was no longer enforceable. As authority for this motion defendant's counsel cited In re Lane, 57 A.C. 103, 18 Cal.Rptr. 33, 367 P.2d 673, and now relies upon the opinion filed in that case, after a rehearing (June 28, 1962, 58 A.C. 97, 22 Cal.Rptr. 857, 372 P.2d 897) which again held the provision of the city ordinance there in question to be in conflict with the general laws. Seventy attorneys, representing many cities and counties of the state, joined with the attorneys for the respondent as amici curiae, upon the rehearing. Now, therefore, the principles governing our problem must be regarded as settled by the Lane case and by In re Moss, July, 1962, 58 A.C. 116, 23 Cal.Rptr. 361, 373 P.2d 425, which echoed it. Our task is to ascertain what those principles are, and to determine how they affect our particular problem.

We may in this case, as the Supreme Court did in the Lane and Moss cases, pass over without comment those situations where the local ordinance purports to make legal that which the state law prohibits, for plainly that situation is not before us. Nor need we determine whether the City's ordinance covers the same offense that the state law covers. Quite likely it does, in part, for the penal code provisions are to be interpreted to make sense, so that the act of being 'found in any public place' is to be understood as meaning the act of 'appearing' there. It seems sure, also, that one who is 'under the influence of intoxicating liquor * * * in such a condition that he is unable to exercise care for his own safety or the safety of others' must be 'intoxicated'. In so far as the state law and the City's ordinance are, in effect, the same, the ordinance has no force. This does not mean, however, that the order dismissing the action is to be approved. The complaint--even respecting the 'field' in which the general law occupies all, to the exclusion of the ordinance--states a public offense; its reference to the City ordinance does not detract from its effectiveness as a pleading. (People v. Papayanis, 1950, 101 Cal.App.2d Supp. 918, 923, 226 P.2d 91, 95-96, and cases cited. See also People v. Marshall, 1957, 48 Cal.2d 394, 404, 309 P.2d 456, 462.)

We now come to a test that might lead to the conclusion that the ordinance is invalid, although the state laws do not 'occupy the whole field.' Plainly, in the Lane case the state legislation did not occupty the whole field, the purpose of the local law being to fill in where the state law left a gap. The local ordinance was condemned on this principle: 'A local municipal ordinance is * * * invalid if it attempts to impose additional requirements in a field that is preempted by the general law.' One of the definitions of the word we have emphasized, is this, as given in Webster's New Collegiate Dictionary: 'Seize upon to the exclusion of others.' The idea thus expressed includes one frequently appearing in the five cases ² cited in support of the statement we have quoted from the Lane case and which, together with the statement, appear also in the case of In re Moss, 1962, 58 A.C. 116, 117, 23 Cal.Rptr. 361, 373 P.2d 425. We find it in this sentence in the Lane case (58 A.C. 101, 22 Cal.Rptr. 857, 859, 372 P.2d 897, 899): '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.' Thus it may be that although the general laws do not occupy the whole field, the Legislature intended that they should have that effect, in which event there is no room for a local regulation 'in that field.'

We would emphasize, however, the recent cases of Lane and Moss have neither attempted nor effected a repeal of section 11 of Article XI of the state constitution. In Natural Milk P. Ass'n v. City and County of San Francisco, 1942, 20 Cal.2d 101, ...