EDDY YUEN, Plaintiff and Respondent, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; THE PEOPLE, Real Party in Interest and Appellant.
Civ. No. 36350
First Dist., Div. Three.
Oct. 21, 1975.
351
John J. Ferdon, District Attorney, and Philip L. Strauss, Assistant District Attorney, for Real Party in Interest and Appellant.
Richard A. Hodge and Joseph L. Matthews for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
OPINION
SCOTT, J.—Eddy Yuen was charged with a violation of section 1291(b) of the Municipal Police Code of the City and County of San Francisco. Yuen‘s demurrer to the complaint was overruled. The superior court granted his petition for writ of prohibition permanently restraining the municipal court from taking any further action against him. The basis for the order was that the subject matter covered by the ordinance had been preempted by state law. The People, who are the real party in interest, appeal.
I. The People first contend that the subject matter of the ordinance has not been preempted by state law as to either loitering or weapons control such that the ordinance is not unconstitutional under
The ordinance provides as follows:
“SEC. 1291. Prohibiting Loitering While Carrying Concealed Weapons. (a) As used in this section, but in no wise limited thereto, ‘dangerous or deadly weapon’ shall mean: Any knife with a blade three inches or more in length; any spring-blade, switch-blade, or snap-blade knife or other similar type knife; any knife any blade of which is automatically released by a spring mechanism or other mechanical device; any ice pick, or similar sharp, stabbing tool; any straight edge razor or any razor blade fitted to a handle; any cutting, stabbing, bludgeoning weapon or device capable of inflicting grievous bodily harm.
“(b) It shall be unlawful for any person, while carrying concealed upon his person any dangerous or deadly weapon, to loaf or loiter upon any public street, sidewalk, or alley, or to wander about from place to place, with no lawful business thereby to perform, or to hide, lurk, or loiter upon or about the premises of another.
“(c) It shall be unlawful for any person who has concealed upon his person or who has in his immediate physical possession any dangerous or deadly weapon to engage in any fight or to participate in any other rough or disorderly conduct upon any public place or way or upon the premises of another.
“(d) It shall be unlawful for any person who has concealed upon his person any dangerous or deadly weapon to loiter about any place where intoxicating liquors are sold or any other place of public resort.
“(e) The foregoing restrictions shall not be deemed to prohibit the carrying of ordinary tools or equipment carried in good faith for uses of honest work, trade or business or for the purpose of legitimate recreation.”
There are three tests to determine whether a subject has been preempted by the Legislature: 1) whether the subject matter has been so fully and completely covered by general law as to indicate that it has become exclusively a matter of state concern; 2) whether the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or 3) whether 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 (1964) 62 Cal.2d 119, 128, overruled on other grounds in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63; Galvan v. Superior Court (1969) 70 Cal.2d 851, 859-860.)
A local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by the general law. (In re Moss (1962) 58 Cal.2d 117, 118; cf. Crownover v. Musick (1973) 9 Cal.3d 405, 416; Younger v. Berkeley City Council (1975) 45 Cal.App.3d 825, 830.)
The San Francisco ordinance, as the Los Angeles ordinance in Gleason, “supplements the state legislation in a field which we consider the Legislature did not intend to preempt.” (226 Cal.App.2d at pp. 587-588.)
In In re Hoffman (1967) 67 Cal.2d 845, the court found constitutional, in part, another Los Angeles Municipal Code prohibiting loafing or loitering about a train depot. Although preemption was not an issue discussed in that opinion, Gleason was cited with approval at page 853, where the court stated: “As so interpreted the first part of the ordinance is a justified police measure that protects the city‘s interest in assuring public safety (cf. Gleason v. Municipal Court (1964) 226 Cal.App.2d 584, 587) without interfering with the legitimate exercise of any constitutionally protected activity.”
Yuen relies on In re Moss, supra, 58 Cal.2d 117 and In re Koehne (1963) 59 Cal.2d 646 in support of his position that state law has preempted local ordinances purporting to control so-called “loitering” or “vagrancy.” As Yuen asserts, the California Supreme Court has held preempted certain local ordinances which dealt with various aspects covered by the general law. In re Moss held invalid a local ordinance covering indecent shows, upon its conclusion that the state had adopted a general scheme for the regulation of the criminal aspects of sexual activity and determined, to the exclusion of local regulation, what acts of exposure and exhibition shall be criminal. In re Koehne held invalid a local ordinance covering public intoxication upon its conclusion that the state had adopted a general scheme for the regulation of the criminal aspects of being intoxicated in a public place (59 Cal.2d at p. 648).
Despite Yuen‘s assertion that these cases dealt with “vagrancy in the form of intoxication” or “vagrancy in the context of lewd or lascivious
In applying the three Hubbard tests, we conclude that the San Francisco ordinance is not preempted by the general state law concerning loitering or vagrancy.
B. We next examine whether the Legislature has preempted the control of knives and knife-like objects as dangerous or deadly weapons.
Yuen refers us to
Therefore, turning to the first test of Hubbard (62 Cal.2d at p. 128), it is clear that the Legislature, by these three sections, has not “fully and
As in Galvan (at p. 863), there is no relevant statute which expressly states that the concealed carrying of dangerous or deadly weapons is exclusively a matter of state concern. Nor do we find that there is a reasonable implication of such legislative intent that a paramount state concern will not permit further local regulation.
Turning to the third Hubbard test, no adverse effect upon transient state citizens appears to outweigh the possible benefit to the municipality. Clearly, nonresidents who pass through San Francisco will not be confronted by a peculiar prohibition, unless of course they are disposed to loiter for a sinister or wrongful purpose3 while carrying, concealed, a dangerous or deadly weapon. If they are so disposed, the municipality has a legitimate interest in proscribing such conduct by transient and citizen alike.
Yuen‘s reliance upon People v. Bass (1963) 225 Cal.App.2d Supp. 777 is misplaced. There the Appellate Department of the Los Angeles Superior Court did hold unconstitutional as having been preempted, a local ordinance making it unlawful to carry, concealed, any dirk, dagger, knife with a blade three inches or more in length, and any snap-blade or spring-blade knife. The Supreme Court in Galvan, in discussing the constitutionality of a local gun registration ordinance, referred to Bass in a footnote: “Thus, that the state has preempted the field of knife-like weapons (People v. Bass, 225 Cal.App.2d Supp. 777, 782) does not determine either whether the state has preempted all aspects of weapons control, or the relevant field of firearms registration.” (70 Cal.2d at p. 862, fn. 5.) We do not view this
The ordinance is not preempted by the general law concerning the control of knives or knife-like objects.
II. Lastly, we consider whether this ordinance is unconstitutionally vague and overbroad.
Initially, we observe that some so-called “vagrancy” statutes have been held to be unconstitutional where the statute “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” (Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162, quoting United States v. Harriss (1954) 347 U.S. 612, 617.) Here, however, in addition to loitering, the proscribed conduct requires that the person be carrying, concealed on his person, a dangerous or deadly weapon. In People v. Solomon (1973) 33 Cal.App.3d 429, certiorari denied, 415 U.S. 951, the court found that
Here, the carrying of the concealed weapon is a sufficient additional requirement to give notice as to what constitutes the unlawful conduct. The term “dangerous or deadly weapon” has a precise meaning. A partial list of such objects is in fact set forth in section 1291(a) of the ordinance itself. The ordinance therefore is constitutional by the standards of Papachristou, supra.
Subdivision (e) is not vague or uncertain. It is clearly a question of fact to determine if the person is carrying, in good faith, ordinary tools or equipment for use in honest work, trade or business, or for the purpose of legitimate recreation. Although the language may be somewhat Victorian, a reasonable person could not misunderstand its meaning.
Judgment is reversed. The cause is remanded with directions that the writ of prohibition be denied and that the criminal proceedings in the municipal court be ordered reinstated.
Brown (H. C.), J., concurred.
DRAPER, P. J.—I concur in the judgment, although with some misgivings. Under the broad language of the ordinance, one carrying an ordinary pocketknife while sitting on a bench awaiting a bus could conceivably be charged and convicted. The ordinance seems to me to be saved only by construing the phrase “loaf or loiter” as bearing a “sinister or wrongful” implication (In re Hoffman, 67 Cal.2d 845, 853).
The petition of the plaintiff and respondent for a hearing by the Supreme Court was denied December 30, 1975. Mosk, J., and Sullivan, J., were of the opinion that the petition should be granted.
Notes
“Every person who carries upon his person, and every person who sells, offers for sale, exposes for sale, loans, transfers, or gives to any other person a switch-blade knife having a blade over two inches in length is guilty of a misdemeanor.
“For the purposes of this section a ‘switch-blade knife’ is a knife having the appearance of a pocketknife, and shall include a spring-blade knife, snap-blade knife, gravity knife or any other similar type knife; the blade or blades of which are two or more inches long and which can be released automatically by a flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever.”
“(f) The words ‘deadly weapon’ as used in this section are hereby defined to include any instrument or weapon of the kind commonly known as a blackjack, slung shot, billy, sandclub, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than five inches, any razor with an unguarded blade and any metal pipe or bar used or intended to be used as a club.”
“Any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, sawed-off shotgun, or metal knuckles, or who carries concealed upon his person any explosive substance, other than fixed ammunition or who carries concealed upon his person any dirk or dagger, is guilty of a felony, and upon conviction shall be punishable by imprisonment in the county jail not exceeding one year or in a state prison for not less than one year nor more than five years.”
“Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
“(e) Who loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when requested by any peace officer so to do, if the surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.”