Rudolfo A., In re

Decision Date02 October 1980
Docket NumberCr. 37010
Citation110 Cal.App.3d 845,168 Cal.Rptr. 338
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn the Matter of RUDOLFO Q. A., a person coming under the Juvenile Court Law. The PEOPLE, Petitioner and Respondent, v. RUDOLFO Q. A., a Minor, Appellant.

Michael J. Udovic, Pasadena, under appointment by the Court of Appeal, for appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Richard D. Marino, Deputy Attys. Gen., for petitioner and respondent.

POTTER, Acting Presiding Justice.

Rudolfo Q. A., a minor, appeals from the judgment sustaining a petition under Welfare and Institutions Code section 602 and placing him home on probation. The petition alleged that he "did willfully and unlawfully trespass upon the grounds of a public school, to wit, Cleveland High School, thereby violating Section 63.94 of the Los Angeles Municipal Code, a Misdemeanor." 1

Rudolfo's demurrer to the petition was overruled and there was an adjudication hearing at which several witnesses testified. The testimony showed that on the day of the alleged offense, there was a fight in front of Cleveland High School during the noon hour, involving a dozen or more youths. The battleground included a parking lot and the front lawn of the school. Several of the participants were seen to arrive together in a single vehicle and though Rudolfo was not identified as one of this group, he was later observed to be one of a group of several youths seen fleeing the scene together, none of whom were Cleveland students. The security officer who made this observation saw several of them stop and throw objects back toward the lawn. He "couldn't be sure" that Rudolfo threw anything because "(t)here was so many of them-there was a large group. There was approximately ten of them." The following questions and answers relating to Rudolfo followed:

"Q What was the-what did Rudolfo throw?

A I couldn't tell you.

Q Did he have anything in his hands?

A I couldn't tell you that either because I didn't stop to notice which ones were throwing what. I knew they were all throwing things."

Rudolfo's demurrer to the petition was argued after the presentation of the evidence at the adjudication hearing. One of the arguments made in support of the demurrer was that the Los Angeles Municipal Code section 63.94 suffered from First Amendment overbreadth. Commenting on this claim, the court said that it would be without merit "if we were to say that this particular minor on the state of the evidence, is not there to express free speech" and added "I think there is ample evidence at this point that the state of the evidence would indicate that the minor in concert with others, did come upon the school ground for the purpose of fighting." The court thereafter overruled the demurrer and sustained the petition.


Rudolfo contends that section 63.94 of the Los Angeles Municipal Code is unconstitutional because: (1) "it is in conflict with a general law" which "fully occupies the field," and (2) "it is vague and therefore has violated the minor's rights to due process of law." 2

The People contend that there is no preemption by state law, that Rudolfo "lacks standing to assert due process violations," and that the Municipal Code section "is not unconstitutionally vague and overbroad."


The general laws with respect to trespass upon school grounds do not preempt the field so as to preclude local regulation of trespassory conduct thereon. However, Rudolfo's demurrer to the petition should have been sustained. Los Angeles Municipal Code section 63.94 imposes a criminal sanction for "trespass in or upon the grounds of any public school." It does not, however, define "trespass." There are numerous statutes regulating trespassory conduct on school yards which criminalize various conduct. The charge of "trespass" therefore failed to inform defendant of the offense with which he was charged.

State Law Has Not Preempted the Field of Regulating Trespassory Conduct on School Grounds

The preemption issue in this case is governed by the decision of our Supreme Court in In re Cox (1970) 3 Cal.3d 205, 90 Cal.Rptr. 24, 474 P.2d 992, which upheld the power of the City of San Rafael to enact an ordinance making it an offense to remain upon "business premises after being notified by the person in charge thereof to remove therefrom." (Id., at p. 209, 90 Cal.Rptr. at p. 25, 474 P.2d at p. 995.) The entire discussion of the preemption issue is pertinent to this appeal. It is as follows (id., at pp. 218-220, 90 Cal.Rptr. at p. 32, 474 P.2d at p. 1000):

"In this section we consider, but reject, petitioner's contention that San Rafael Municipal Code section 8.12.210 violates the California Constitution in that it attempts to impose additional strictures in the field of trespass which the state Legislature has preempted by general law. If state law had thus preempted the ordinance, petitioner, regardless of the facts of the case, could not properly have been prosecuted under the ordinance.

"In considering this question of preemption we must begin our analysis with two constitutional provisions: Article XI, section 7 (formerly Cal.Const. art. XI, § 11), of the California Constitution provides that: 'A county or city may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.' Section 5(a) of article XI (formerly Cal.Const. art. XI, § 6) provides that chartered cities may 'make and enforce all ordinances and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws.'

"In regulating trespassory conduct, the Legislature has enacted numerous statutes. They include Penal Code sections 365, 415, 418, 419, 420, 553-555.3, 558-558.1, 587-587b, 592, 593b, 602, (subdivisions) (a)-(n), 602.5, 647, (subdivisions) (g)-(i), 647c; Fish and Game Code, sections 2016, 2018; Health and Safety Code section 8101; Military and Veterans' Code sections 398, 1650, 1651; Water Code section 1052; and Civil Code section 51. Despite this impressive array of laws, the state has significantly failed to prohibit a would-be customer, after being requested to leave, from remaining on business premises generally open to the public.

"Petitioner contends that these statutes constitute a comprehensive legislative scheme completely regulating trespasses on property. Moreover, he argues that the Legislature has enacted trespass provisions which, completely protecting the valid interests of property owners from unauthorized presence of intruders, fully occupy the constitutionally permissible scope of such legislation. Finally, petitioner contends that although San Rafael, as a chartered city, enjoys a home rule provision and retains complete power to legislate in regard to municipal affairs, it may not enact a trespass ordinance in an area in which 'the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the municipality.' (In re Hubbard, supra, 62 Cal.2d 119, 128 (41 Cal.Rptr. 393, 399, 396 P.2d 809, 815); see Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 539, 86 Cal.Rptr. 673, 469 P.2d 353; Galvan v. Superior Court (1969) 70 Cal.2d 851, 859-860, 76 Cal.Rptr. 642, 452 P.2d 930; In re Lane (1962) 58 Cal.2d 99, 106, 22 Cal.Rptr. 857, 372 P.2d 897; Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681-682, 3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.R.2d 385.)

"In the case of conflict between a state enactment which discloses an intent fully to occupy the field, and a local ordinance of a chartered home rule city, the question may arise whether the matter is a municipal affair or one of statewide concern. (See Bishop v. City of San Jose (1969) 1 Cal.3d 56, 62-63, 81 Cal.Rptr. 465, 460 P.2d 137.) (See fn. 18) In the present case, however, we do not reach that issue, inasmuch as the Legislature has expressly evidenced its intent in Penal Code section 647c to permit local regulation of 'conduct upon a street, sidewalk, or other public place on or in a place open to the public.' (See Baron v. City of Los Angeles, supra, 2 Cal.3d 535, 539 (86 Cal.Rptr. 673, 469 P.2d 353); Bishop v. City of San Jose supra, (1969) 1 Cal.3d 56, 63-64 (81 Cal.Rptr. 465, 460 P.2d 137.)) Furthermore, trespass has long been an area in which local units have legislated; such an area may involve special local problems of facilities and geography with which a state Legislature could cope only with difficulty. In In re Hoffman, supra, 67 Cal.2d 845, 848-851 (64 Cal.Rptr. 97, 434 P.2d 353), we recognized that municipalities have a governmental interest in preserving the proprietary interests of non-commercial property owners from intrusions upon their privacy, and in protecting all property owners from obstructions of their property's use (see In re Zerbe (1964) 60 Cal.2d 666, 670, 36 Cal.Rptr. 286, 388 P.2d 182, 10 A.L.R.3d 840). (Fns. omitted.)" (Italics added.)

The situation in the case at bench is indistinguishable. In addition to the numerous statutes "regulating trespassory conduct" listed by the court in Cox (several of which apply to school yards), the following additional general statutes specifically apply to trespassory conduct in respect of school grounds: Penal Code, sections 653g, 626.2, 626.4, 626.6, 626.8, 626.9, 626.10; Education Code, sections 32210, 32211. This "impressive array of laws" (In re Cox, supra, 3 Cal.3d at p. 219, 90 Cal.Rptr. 24, 474 P.2d 992) criminalizes a wide variety of conduct on school yards, including unlawful fighting disturbing others or...

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