People v. Mason

• Decision Date: 19 April 1968
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Barbara Jean MASON, Defendant and Respondent. Crim. 14523.

Page 17

68 Cal.Rptr. 17

261 Cal.App.2d 348

The PEOPLE, Plaintiff and Appellant, v. Barbara Jean MASON, Defendant and Respondent.

Crim. 14523.

Court of Appeal, Second District, Division 1, California.

April 19, 1968.

Rehearing Denied May 14, 1968.

Evelle J. Younger, Dist. Atty., and Harry Wood and Robert Lederman, Deputy Dist. Attys., for plaintiff and appellant.

Harry V. Goza, Jr., Norwalk, for defendant and respondent.

WOOD, Presiding Justice.

In a complaint filed in the Municipal Court of the Whittier Judicial District, it was alleged that, in said judicial district, the defendant Barbara Jean Mason committed a misdemeanor, to wit, Possession of Pinball Machine, in violation of Santa Fe Springs Ordinance 25, Section 15--23, ¹ in that she did 'unlawfully keep * * * and have under her control as owner, lessee, agent, employee, mortgagee, and otherwise, in a place other than a building designed for and used exclusively for residence purposes and a part of a building where such part was designed for and is used exclusively for residence purposes, a pinball machine.'

Defendant demurred to the complaint on the ground that the 'facts do not charge a public offense on the grounds that the City of Santa Fe Springs Ordinance No. 25, Sections 1 through 6 is void and violates the Constitution of the State of California.'

On the day set for hearing the demurrer, the demurrer was withdrawn and a plea of not guilty was entered. On the day set for the trial, the plea of not guilty was set aside on motion of the defendant, and the matter was resubmitted on the demurrer. The demurrer was sustained, and the complaint was dismissed. The transcript of the docket states that the demurrer was sustained 'for reason Ordinance preempted re pin ball machines. No public offense stated.'

The People appealed, to the Appellate Department of the Superior Court (Los Angeles County), from the judgment of dismissal. The Appellate Department reversed the judgment, with instructions to overrule the demurrer and allow the defendant an opportunity to replead to the complaint. That court certified the case for transfer to the Court of Appeal, and pursuant thereto this court made an order for such transfer.

The People contend that the court erred in sustaining the demurrer--that the complaint states a public offense, that the state has not preempted the field of pinball regulation, and that the ordinance is not unconstitutional.

The defendant contends that the ordinance is unconstitutional in that the state has preempted the field of pinball regulation.

Section 1 of Ordinance 25 of the City of Santa Fe Springs, enacted in 1957, provides: 'As used in this Ordinance, 'pin ball machine' means any punchboard or any table game or device commonly known as a 'pin game' or 'marble game' or any claw, scoop or grab machine, or any 'horse racing' machine or game, or any device similar thereto, the operation, use or play of which is controlled by placing therein any coin, plate, disk, plug, key or other device, or by the payment or delivery of anything of value, or upon the making of any purchase.'

Section 2 of said ordinance provides: 'Every person, firm, or corporation who keeps, maintains, possesses, or has under his control, either as owner, lessee, agent, employee, mortgagee, or otherwise, in any place except a building designed for and used exclusively for resident purposes or a part of a building where such part was designed for and is used exclusively for residence purposes and any yards or courts used exclusively appurtenant thereto, any pin ball machine, is guilty of a misdemeanor.'

Section 6 of said ordinance provides in part: '(T)his Ordinance is an Ordinance for the immediate preservation of the public peace, health and safety, and shall take effect immediately. The following is a statement of facts constituting the urgency: Prior to the time of the incorporation of the City of Santa Fe Springs, its residents were subject to the provisions of Ordinance 4852 (new series) of the County of Los Angeles, which Ordinance prohibited possession of pin ball machines. At the time of the incorporation of the City of Santa Fe Springs, the Los Angeles County Ordinances became inoperative within the City. This Ordinance is passed for the purpose of preventing the possession of pin ball machines which were outlawed in the County and which must immediately be prohibited within the City to preserve the public peace, health and safety.'

Section 11 of article XI of the California Constitution provides: '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 ordinance of Santa Fe Springs, as above shown, defines the term 'pin ball machine' and declares that possession of a pin ball machine is unlawful.

Defendant asserts that the ordinance is in conflict with Penal Code sections regarding gambling, and that the state, by reason of such sections, has preempted the field of pinball regulation.

The state has not preempted the entire field as to regulation of gambling. (In re Hubbard, 62 Cal.2d 119, 125, 127, 41 Cal.Rptr. 393, 396 P.2d 809.) In considering whether pinball machine regulation has been preempted by the state it is necessary to refer to several sections of the Penal Code.

Section 330 of the Penal Code, so referred to, provides in part: 'Every person who deals, plays * * * or who conducts * * * any game of faro, monte, roulette * * * (9 other games are here designated) or any banking or percentage game played with cards, dice, or any device, for money * * *, and every person who plays or bets at or against any of said prohibited games, is guilty of a misdemeanor.'

Section 330.1 of the Penal Code defines 'slot machine or device,' and provides, in part, that any person who manufactures or possesses such a machine or device as defined herein is guilty of a misdemeanor. Section 330.2 defines 'thing of value' as used in code provisions relating to a slot machine or device. Section 330.3 provides, in part, that such a slot machine or device may be seized and destroyed. Section 330.4 relates to unlawful possession and to confiscation of such slot machine or device.

Section 330.5 of the Penal Code provides in part: '(I)t is further expressly provided that with respect to the provisions of Sections 330.1 to 330.4, inclusive, only, of this code, Pin ball, and other amusement machines or devices which are predominantly games of skill, whether affording the opportunity of additional chances or free plays or not, Are not intended to be and are not included within the term slot machine or device as defined within Sections 330.1 to 330.4, inclusive, of this code.' (Italics added.)

Section 330b of the Penal Code provides: 'It is unlawful for any person to manufacture * * * possess * * * any slot machine or device as hereinafter defined * * * pursuant to which the user thereof, as a result of any element of hazard or chance * * * may become entitled to receive any money * * * or thing of value * * *. (2) Any machine, apparatus or device is a slot machine or device within the provisions of the section if it is one that is adapted * * * for use in such a way that, as a result of the insertion of any piece of money or coin or other object * * * such machine or device is caused to operate * * * and by reason of any element of hazard or chance * * * the user may receive * * * any piece of money * * * or thing of value * * *. (3) Every person who violates this section is guilty of a misdemeanor. (4) It is expressly provided that with respect to the provisions of Section 330b only of this code, Pin ball, and other amusement machines or devices which are predominantly games of skill, whether affording the opportunity of additional chances or free plays or not, Are not intended to be and are not included within the term slot machine or device as defined in said Section 330b of this code.' (Italics added.)

It thus...