LINDA GATES, Plaintiff and Appellant, v. THE MUNICIPAL COURT FOR THE SANTA CLARA COUNTY JUDICIAL DISTRICT OF SANTA CLARA COUNTY, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Respondent.
Civ. No. 54155
First Dist., Div. One.
Aug. 25, 1982.
135 Cal.App.3d 309 | 185 Cal.Rptr. 330
Sheldon Portman, Public Defender, and Stuart C. Rich, Deputy Public Defender, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Robert J. Logan, City Attorney, and George Rios, Deputy City Attorney, for Real Party in Interest and Respondent.
OPINION
NEWSOM, J.—Appellant, Linda Gates, was arrested for violation of
Respondent People dispute appellant‘s standing to challenge the vagueness and overbreadth of the ordinance on the ground that her conduct clearly falls within that proscribed by it. Respondent also claims that the ordinance is simply a loitering law—which does not attempt to define criminal sexual conduct, and is thus not preempted by state law. According to respondent, the ordinance is clearly worded, and law enforcement officials are guided in enforcing it by probable cause standards which apply to all arrests. The People further argue that the ordinance does not threaten First Amendment rights and is therefore not overbroad. Finally, the People maintain that the classification of “known prostitutes and panderers” is rationally related to a legitimate government interest and so does not violate equal protection.
A misdemeanor complaint against appellant was filed on October 29, 1980, in respondent Santa Clara County Municipal Court, and assigned case No. C8029340.
Appellant demurred to the complaint, challenging the legality of
Initially, the People raise the issue of appellant‘s standing to challenge the constitutionality of
In In re Cregler, supra, 56 Cal.2d at page 313, the rule was applied to preclude a challenge for vagueness—facial and as applied. The court there stated: “Petitioner has not shown that the statute is being invoked against him in the aspects or under the circumstances which he suggests, and hence may not be heard to complain.” Thus, the rule applies to challenges both to the face of the statute—vague words affecting fair notice—and “as applied“—vague wording affecting uniform enforcement (In re Cregler, supra, at p. 313; People v. Bratis (1977) 73 Cal.App.3d 751, 758 [141 Cal.Rptr. 45])—and may apply to overbreadth challenges as well (see Sussli v. City of San Mateo, supra, 120 Cal.App.3d 1, 10).2
Absent such a record we cannot—as the People urge—deny appellant standing on the grounds that her conduct falls precisely within the proscriptions of the statute (Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 263 [150 Cal.Rptr. 813, 2 A.L.R.4th 1230]; In re Davis (1966) 242 Cal.App.2d 645, 667 [51 Cal.Rptr. 702]), without assuming fact finding powers which we think are beyond our jurisdiction.4
In like circumstances, in Aaron v. Municipal Court (1977) 73 Cal.App.3d 596 [140 Cal.Rptr. 849], the court declared: “Since the attack on the ordinance followed the overruling of the petitioner‘s demurrers to complaints filed against them, there is no factual setting concerning the application of the ordinance. Review is necessarily limited solely to the constitutionality of the provisions of the ordinance as they were adopted and in effect, not as they might actually be applied.” (Id., at p. 599, italics added.) Unfortunately, the last-cited phrase is ambiguous. If it be taken to mean “not as the provisions of the ordinance were actually applied to petitioner in that case,” then it supports a “demurrer exception” to the standing rule, and stands as authority for our power to review and resolve the vagueness and overbreadth arguments presented here.
In its holding that a municipal ordinance which outlawed solicitation without a license was “vague on its face” (53 Cal.App.3d at p. 599), the Aaron court relied upon cases which found vagueness in the application or enforcement—Perrine v. Municipal Court (1971) 5 Cal.3d 656, 661-662 [97 Cal.Rptr. 320, 488 P.2d 648]; In re Porterfield (1946) 28 Cal.2d 91, 112 [168 Cal.Rptr. 706, 167 A.L.R. 675]. (Aaron v. Municipal Court, supra, 73 Cal.App.3d 596, 607-610) rather than merely facial or abstract vagueness. The offending language was found to present the problem of arbitrary and discriminatory enforcement as well. (Id., at p. 609.) The court did not limit its analysis to “vagueness on its face.” (Id., at pp. 607-608.)
We thus read Aaron as standing for the rule that, reviewing and overruling a demurrer, we may consider vagueness problems arising from application generally and logically following from the terms of the ordinance, but not those which apply precisely and factually to the defendant. Plainly, a constitutional infirmity relating to arbitrary and discriminatory enforcement can often be ascertained merely from reading an ordinance.
Language in Thornhill v. Alabama (1939) 310 U.S. 88 [84 L.Ed. 1093, 60 S.Ct. 736], supports such an interpretation of Aaron. In Thornhill, the court stated: “The finding against petitioner was a general one. It did not specify the testimony upon which it rested. The charges were framed in the words of the statute and so must be given a like construction.... In these circumstances, there is no occasion to go behind the face of the statute or of the complaint for the purpose of de-
Our own high court has reached a similar conclusion. In Pryor v. Municipal Court (1979) 25 Cal.3d 238 [158 Cal.Rptr. 330, 599 P.2d 636], the constitutionality of
We think it proper that a review of facial vagueness or overbreadth should include consideration of both notice and enforcement infirmities to the extent that they can be ascertained from reading the statute. Any other rule would preclude a defendant from claiming constitutional defects whenever it is claimed that his conduct falls precisely within the statutory proscriptions, in circumstances where the court would be powerless—for lack of an evidentiary record—to assess the true nature of such conduct.
Accordingly, we conclude that appellant has standing to challenge the ordinance on grounds of vagueness and overbreadth to the extent that such infirmities can be detected from a general reading of the statute and its probable, logical application.6
Appellant next argues that San Jose Municipal Ordinance 10.40.010 is preempted by state law which regulates the full field of criminal sexual activity. Appellant views the ordinance as a pandering
The People maintain that the ordinance is an antiloitering law, not an ordinance regulating sexual activity; as such, pursuant to appellate decisions which have clearly ruled that the state has not fully occupied the field of loitering, it is not preempted.
Our high court has established the rule that a local municipal ordinance is invalid if it attempts to impose additional requirements in a field which has been preempted by the general law. (In re Moss (1962) 58 Cal.2d 117, 118 [23 Cal.Rptr. 361, 373 P.2d 425]; In re Lane (1962) 58 Cal.2d 99, 102 [22 Cal.Rptr. 857, 372 P.2d 897].) A local ordinance is preempted by general state law when the ordinance legislates in an area fully occupied by general law either expressly or by legislative implication. (In re Lane, supra, at p. 102; Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 681 [3 Cal.Rptr. 127]; Chavez v. Sargent (1959) 52 Cal.2d 162, 176-178 [339 P.2d 801].)
The enactment by the state of legislation constituting a comprehensive and detailed plan or scheme with respect to a subject reveals, without more, an intent to occupy the field, leaving no room for local regulation, despite the lack of an express declaration to that effect by the Legislature. (In re Lane, supra, 58 Cal.2d 99, 104.) If the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject is otherwise one properly characterized as a “municipal affair.” (In re Hubbard (1964) 62 Cal.2d 119, 125 [41 Cal.Rptr. 393, 396 P.2d 809]; In re Zorn (1963) 59 Cal.2d 650 [30 Cal.Rptr. 811, 381 P.2d 635]; In re Lane, supra.)
It is also settled that state law has preempted the field of criminal sexual activity. (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 807-808 [100 Cal.Rptr. 609, 494 P.2d 681]; Yuen v. Municipal Court (1975) 52 Cal.App.3d 351, 355 [125 Cal.Rptr. 87].)
In In re Lane, supra, 58 Cal.2d 99, our high court invalidated a city ordinance prohibiting an unmarried person from “resorting” to numerous specified places for the “purpose of having sexual intercourse” or “participating in a lewd act.” The court found that the entire field of criminal sexual activity, including prostitution (
On this same ground, the court in Lancaster v. Municipal Court, supra, invalidated a city ordinance making it a misdemeanor for a person to massage a member of the opposite sex as a commercial business. (6 Cal.3d at pp. 807-808.) The court declared: “The constant attention the Legislature has given to the criminal aspects of sexual activity establishes that, in the absence of an express statutory provision to the contrary, this area of the law is intended to be wholly within the control of the Legislature and not subject to local regulation.” (6 Cal.3d at p. 808.)
In contrast, local vagrancy and loitering ordinances have generally been upheld as not preempted by state law. (Yuen v. Municipal Court, supra, 52 Cal.App.3d 351, 356; Gleason v. Municipal Court (1964) 226 Cal.App.2d 584 [38 Cal.Rptr. 226]; see also In re Hoffman (1967) 67 Cal.2d 845, 853 [64 Cal.Rptr. 97, 434 P.2d 353].)
In Gleason, supra, the court found that a Los Angeles loitering statute was not preempted by the state vagrancy statute,
More recently, in Yuen v. Municipal Court, supra, 52 Cal.App.3d 351, this court upheld a San Francisco ordinance which criminalized loitering with a concealed weapon against a preemption challenge. Based upon Gleason, supra, the court declared that
Consequently, to address the preemption issue in the case before us, it is first necessary to determine what field is being regulated by the San Jose ordinance: loitering, prostitution, or both.
Since, however, the ordinance also makes illegal conduct not prohibited by state criminal laws, remaining or loitering for the purpose of solicitation, it criminalizes conduct which is not embraced within existing state proscriptions against actual solicitation and prostitution.
The newly defined unlawful conduct is purportedly not simply solicitation, but loitering accompanied by acts or circumstances which indicate an intent to solicit an act of prostitution. For purposes of the preemption issue, the important factor is that the ordinance can be violated by conduct which does not amount to actual solicitation for criminal sexual activity.
We have found no case precisely in point.
In EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179 [158 Cal.Rptr. 579], the court considered a municipal ordinance regulating the operation of picture arcades. A permit to operate such enterprises could be denied if the license application had knowingly allowed any sexual acts or solicitations in the arcade within the past two years. The ordinance also prohibited concealed or partially enclosed picture booths.
Finding that the purpose of the ordinance was not the regulation of lewd conduct pursuant to
Without indicating necessary agreement with the reasoning of EWAP, Inc. v. City of Los Angeles, supra, 97 Cal.App.3d 179, we find important differences between the two ordinances. Most crucially, in EWAP the court dealt with a business which operated not by absolute right, but by privilege. The attachment of reasonable conditions designed to ensure orderly operation of that business for the public protection seems unassailable. And, as the court observed, the “ordinance does not create a new standard of sexual conduct. Nor ... purport to criminalize sexual activity which is not criminal under state law.” (Id., at p. 191.)
The same may not be said of the subject ordinance. First, it impinges on the fundamental right of free association. It creates a new category of crime, an indispensable element of which is an intention to violate state laws governing sexual conduct. The ordinance may not be violated except by a person who harbors an intent, a “purpose” of violating existing state statutes proscribing certain sexual activity. It has, in short, no other purpose than the regulation of sexual conduct and it merely attempts to create a new form of sexual crime akin to and yet different from, and vaguer, than criminal attempt.
Accordingly, we think the conduct at issue was intended to be and is preempted by state laws.
Having so concluded, we find it unnecessary to treat in detail the issue of vagueness. We will observe, however, that while the terms of the ordinance seem sufficiently definite to satisfy constitutional standards respecting fair notice (cf. Rose v. Locke (1975) 423 U.S. 48, 49-50 [46 L.Ed.2d 185, 187-188, 96 S.Ct. 243]), grave problems arise in the enforcement context. No objective standards are described in the ordinance save one—that the offender must possess the status of “known prostitute” or “panderer.” For the rest, plenary discretion is given the arresting authority, whose subjective judgment alone would determine whether sufficient “intent” accompanies the act of “loitering” or “remaining” in a public place.
Because it leaves enforcement to subjective and potentially arbitrary evaluation of law enforcement, we think the ordinance violates applicable constitutional requirements. (U.S. ex rel. Newsome v. Malcolm, su-
The judgment is reversed.
Racanelli, P. J., and Bancroft, J.,* concurred.
RACANELLI, P. J.—I concur but also conclude that the ordinance as enacted is fatally flawed by reason of its vague and standardless scheme sanctioning or encouraging arbitrary and discriminatory enforcement at the whim of local officials. (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 170 [31 L.Ed.2d 110, 119, 92 S.Ct. 839]; Ghafari v. Municipal Court (1978) 87 Cal.App.3d 255, 263 [150 Cal.Rptr. 813, 2 A.L.R.4th 1230].)
*Assigned by the Chairperson of the Judicial Council.