People v. Orozco

• Decision Date: 14 October 1968
• Docket Number: Cr. 15116
• Citation: 72 Cal.Rptr. 452,266 Cal.App.2d 507
• Court: California Court of Appeals Court of Appeals
• Parties: , 32 A.L.R.3d 1429 The PEOPLE, Plaintiff and Respondent, v. Alfred OROZCO and David Valdez, Defendants and Appellants.

Page 452

72 Cal.Rptr. 452

266 Cal.App.2d 507, 32 A.L.R.3d 1429

The PEOPLE, Plaintiff and Respondent, v. Alfred OROZCO and David Valdez, Defendants and Appellants.

Cr. 15116.

Court of Appeal, Second District, Division 3, California.

Oct. 14, 1968.

Hearing Denied Dec. 11, 1968.

Charles R. Martin, Robert A. Neher, Martin & Flandrick, San Marino, for plaintiff and respondent.

Richard S. Buckley, Public Defender, Mark E. Overland, Floyd W. Davis and James L. McCormick, Deputy Public Defenders, for defendants and appellants.

MOSS, Associate Justice.

Defendants were convicted of inhaling glue with the intent of becoming intoxicated in violation of section 4207.1 of the Monterey Park Municipal Code. Orozco was arrested while driving a car in an erratic manner on a public street in the City of Monterey Park. He was found slumped in the driver's seat while a strong odor of glue emanated from a crumpled cloth in his lap; he appeared to be intoxicated. A tube of model cement was found on the front seat. Valdez, a passenger in the car, was found unconscious on the front seat, his face on a diaper which was saturated with glue. The arrest took place on February 12, 1967.

The principal question on this appeal is whether section 4207.1 invades a field that is preempted by state law. We accepted certification from the appellate department of the superior court pursuant to Rule 63 of California Rules of Court to settle that question.

At the time of the arrest section 4207.1 of the Monterey Park Municipal Code provided: 'No person shall inhale, breathe or drink any compound, liquid, chemical or any substance known as glue, adhesive, cement, mucilage, dope or any material or substance, or combination thereof with the intent of becoming intoxicated, elated, dazed, paralyzed, irrational or in any manner changing, distorting or disturbing the eyesight, thinking process, balance or coordination of such person. For the purpose of this part, any such condition so induced is deemed to be an intoxicated condition. The provisions of this section shall not pertain to any person who inhales, breathes or drinks such material or substance pursuant to the direction or discretion of any doctor, physician, surgeon, dentist or pediatrist authorized to so direct or prescribe.'

Section 4207.1 is susceptible of the interpretation that it applies to the inhalation of 'any compound, liquid, chemical * * * or any material or substance'; nevertheless, guided by the rule of construction that particular expressions in a statute qualify those which are general (Civ.Code, § 3534), we read section 4207.1 as if its language included the words inserted in brackets as follows: '* * * any compound, liquid, chemical or any (other) substance known as glue, adhesive, cement, mucilage, dope or any (similar) material or substance, or combination thereof * * *' As so read, this section is 'sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties' (Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328) and, therefore, meets the constitutional requirement of certainty.

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.'

A local ordinance may be in conflict with general laws in several ways. A conflict may exist between general law and ordinance if the ordinance prohibits conduct that is expressly authorized by state law. (Ex parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172; In re Martin, 221 Cal.App.2d 14, 34 Cal.Rptr. 299; see Bragg v. City of Auburn, 253 Cal.App.2d 50, 61 Cal.Rptr. 284.) A conflict may also exist if an ordinance prohibits the same acts which are forbidden by state law. (In re Portnoy, 21 Cal.2d 237, 240, 131 P.2d 1; Pipoly v. Benson, 20 Cal.2d 366, 370, 125 P.2d 482, 147 A.L.R. 515; In re Iverson, 199 Cal. 582, 250 P. 681; In re Sic, 73 Cal. 142, 148, 14 P. 405; People v. Evans, 249 Cal.App.2d 254, 260--261, 57 Cal.Rptr. 276; People v. Papayanis, 101 Cal.App.2d Supp. 918, 921--922, 226 P.2d 91; see People v. Commons, 64 Cal.App.2d Supp. 925, 929, 148 P.2d 724.) No such conflicts exist in this case because the general law does not expressly authorize or prohibit the ingestion of glue of similar substances. ¹

An ordinance may also be in conflict with general law if it enters a field fully occupied by state law, either expressly (People v. Moore, 229 Cal.App.2d 221, 226--227, 40 Cal.Rptr. 121) or by implication (See e.g., In re Lane, 58 Cal.2d 99, 22 Cal.Rptr. 857, 372 P.2d 897; In re Koehne, 59 Cal.2d 646, 30 Cal.Rptr. 809, 381 P.2d 633; In re Moss, 58 Cal.2d 117, 23 Cal.Rptr. 361, 373 P.2d 425; Abbott v. City of Los Angeles, 53 Cal.2d 674, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385; People v. DeYoung, 228 Cal.App.2d 331, 39 Cal.Rptr. 487). 'Whether a particular statute or group of statutes is sufficiently comprehensive to show an intent to occupy the entire field is a matter which cannot properly be decided upon the basis of any single, precise test. Rather, the courts must rely upon broad general principles which are flexible enough to embrace our varied and rapidly expanding body of legislation. Determination of the question depends primarily upon an analysis of the statute and a consideration of the facts and circumstances upon which it was intended to operate, and the intent of the Legislature is not to be measured alone by the language used but by the whole purpose and scope of the legislative scheme.' (In re Lane, supra, 58 Cal.2d 99, 110, 22 Cal.Rptr. 857, 863, 372 P.2d 897, 903 (concurring opinion); Tolman v. Underhill, 39 Cal.2d 708, 712, 249 P.2d 280.)

The court's characterization of the 'field' occupied by state legislation is a principal factor in the determination of the scope of the legislative scheme. For example, the Supreme Court defined the field of state legislation considered in In re Hubbard, 62 Cal.2d 119, 123--127, 41 Cal.Rptr. 393, 396 P.2d 809, not as 'all gambling,' but only those games prohibited by Penal Code section 330, thus permitting local supplementary regulation with respect to other forms of gaming. (See People v. McGennis, 244 Cal.App.2d 527, 53 Cal.Rptr. 215 (upholding 'visiting ordinance').) Since Hubbard, an ordinance regulating pinball machines was upheld because the state had not preempted 'the field of pinball regulation.' (People v. Mason, 261 Cal.App.2d --- ^*, 68 Cal.Rptr. 17.) In contrast, the state was held to have adopted a general scheme for the regulation of the criminal aspects of being intoxicated in a public place so as to render invalid local regulation of public drunkenness. (In re Koehne, supra, 59 Cal.2d 646, 30 Cal.Rptr. 809, 381 P.2d 633; In re Zorn, 59 Cal.2d 650, 30 Cal.Rptr. 811, 381 P.2d 635; People v. Lopez, 59 Cal.2d 653, 30 Cal.Rptr. 813, 381 P.2d 637.) A review of state laws dealing with intoxication on private as well as public premises led the court in People v. DeYoung, supra, 228 Cal.App.2d 331, 333, 39 Cal.Rptr. 487, 488, to characterize the field preempted more broadly as 'the regulation of the criminal aspects of being intoxicated' and thus to void an ordinance which forbade any person to be in a state of intoxication on private premises. On the other hand, where the field was characterized as regulation of the Consumption of alcoholic beverages state law concerning Consumption of liquor was held to be sufficiently selective to permit local regulation in that field. (People v. Butler, 252 Cal.App.2d Supp. 1053, 59 Cal.Rptr. 924.)

Defendants contend that the purpose of section 4207.1 of [266 Cal.App.2d 513] the Monterey Park Municipal Code is to curb or prevent intoxication and, therefore, that the section operates as a regulation of the criminal aspects of intoxication, a field of regulation which has been preempted by state law. (People v. DeYoung, supra, 228 Cal.App.2d 331, 39 Cal.Rptr. 487.) The first sentence of the ordinance, according to defendants, merely describes the physical and mental conditions which the city council was trying to prevent, and the purpose of the ordinance is expressed in the second sentence, which says, 'For the purpose of this part, any such condition so induced is deemed to be an intoxicated condition.'

The major consideration in interpreting a criminal statute is the legislative purpose. (Witkin, Cal. Crimes, (1963 ed.) Introduction, sec. 11, page 13.) The danger of volatile intoxicant sniffing, particularly to minors, has been receiving increasing attention in recent years. (See Task Force Report: Narcotics and Drug Abuse, published by the President's Commission on Law Enforcement and Administration of Justice, 1967, pp. 36--37, 133--134; Ackerly, W.C., and Gibson, G., Lighter Fluid Sniffing, Am.J. Psychiat. (1964) 120, 1056--1061; Krug, D.C., Sokol, J., and Nylander, I., Inhalation of Commercial Solvents, A Form of Deviance Among Adolescents, in Drug Addiction in Youth, ed. Ernest Harms (1965) New York: Pergamon Press; Sterling, J.W., A Comparative Examination of Two Modes of Intoxication--An Exploratory Study of Glue Sniffing, J. Crim. Law, Criminology and Police Science (1964) 55, 94--99.) The activity against which section 4207.1 is directed is the inhalation of glue and similar substances. Since it is possible to inhale intoxicants under innocent circumstances, inhalation is made an offense only when done with the specific intent of becoming intoxicated. The prohibited act is complete whether or not the person achieves an intoxicated condition. When considered in the light of the evil which prompted the enactment of the ordinance and the method of control which the city council chose, it is apparent that the legislative purpose was the control of inhalation of glue, not of intoxication in general. The purpose of...