In Re Moss

373 P.2d 425, 58 Cal. 2d 117, 23 Cal. Rptr. 361, 1962 Cal. LEXIS 245

• Court: California Supreme Court
• Decided: July 17, 1962
• Docket: Crim. 7078
• Status: Published

Opinions

McCOMB, J.

Petitioner (hereinafter referred to as “defendant”) seeks a writ of habeas corpus, claiming that she is being illegally restrained of her liberty by the Chief of Police of the City of Los Angeles.

Facts: On October 6, 1960, a member of the Los Angeles City Police Department operated a moving picture camera at intervals during a 15-minute performance by defendant at an establishment licensed by the city to present burlesque shows and to serve liquor.

On October 17, 1960, defendant was arrested and charged with a violation of section 41.02(b) of the Los Angeles Municipal Code, which provides: “Indecent Shows: . . . (b) No person shall exhibit or perform, or participate in the presentation of any obscene, indecent or lewd play or representation.”

On January 18, 1961, after a jury trial, defendant was found guilty of violating the aforementioned section of the Los Angeles Municipal Code.

This is the sole question necessary for us to determine : Has the state 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 f

Tes.

The Law: A local municipal ordinance is invalid if it attempts to impose additional requirements in a field that is preempted by the general law. (Cal. Const., art. XI, § 11; Abbott v. City of Los Angeles, 53 Cal.2d 674, 682 [3 Cal.Rptr. 158, 349 P.2d 974]; Agnew v. City of Los Angeles, 51 Cal.2d 1, 5 [2] [330 P.2d 385]; Tolman v. Underhill, 39 Cal.2d 708, 712 [4] [249 P.2d 280]; Pipoly v. Benson, 20 Cal.2d 366, 370 [5] [125 P.2d 482, 147 A.L.R. 515]; Natural Milk etc. Assn. v. City & County of San Francisco, 20 Cal.2d 101, 108 [1] [124 P.2d 25].)

Whenever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned. (Pipoly v. Benson, supra, 20 Cal.2d 366, 371.)

In determining whether the Legislature intended to occupy a particular field to the exclusion of all local regulation, we may look to the “whole purpose and scope of the legislative scheme” and are not required to find such an intent solely in the language used in the statute. (Tolman v. Underhill, supra, at p. 712 [6]; Abbott v. City of Los Angeles, supra, at pp. 682 [9], 684.)

In In re Lane, ante, p. 99 [22 Cal.Rptr. 857, 372 P. 2d 897], we called attention to the numerous Penal Code sections enacted by the Legislature covering the criminal aspects of sexual activity and held that such sections are so extensive in their scope that they clearly show an intention by the Legislature to adopt a general scheme for the regulation of this subject.

At the time of the commission of the alleged offense, section 311, subdivisions 1 and 2 [now § 314, subds. 1, 2], of the Penal Code provided, in part: “Every person who wilfully and lewdly, either: 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, 2. Procures, counsels, or assists any person so to expose himself or to take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adopted to excite to vicious or lewd thoughts or acts ... is guilty of a misdemeanor. ...”

Section 647, subdivision 5, of the Penal Code at the time of the commission of the alleged offense provided, in part: “Every lewd or dissolute person . . . [i]s a vagrant, and is punishable by a fine of not exceeding five hundred dollars ($500), or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.”

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Section 650% of the Penal Code now provides, and provided at the time of the commission of the alleged offense, in part: “A person who willfully and wrongfully commits any act . . . which openly outrages public decency ... is guilty of a misdemeanor.”

A reading of the above-quoted sections of the Penal Code shows clearly that the state had occupied the field with regard to the criminal aspects of indecent exposure and obscene exhibitions. Accordingly, a city ordinance attempting to make certain acts of exposure and exhibition criminal is in conflict with the state law and is void.

In view of our conclusions, it is unnecessary to discuss other questions raised by defendant.

Defendant is ordered discharged from custody.

Gibson, C. J., Traynor, J., Sehauer, J., and Peters, J., concurred.

A single act of lewdness or dissoluteness may be sufficient to establish that a person is a vagrant under this provision. (People v. Babb, 103 Cal.App.2d 326, 330 [15, 16] et seq. [229 P.2d 843] ; People v. Scott, 113 Cal.App.Supp. 778, 781 [2] et seq. [296 P. 601] [nude dancing].)