Opinion
Earl Klein, Beverly Hills, for petitioner.
Roger Arneberg, City Atty., philip E. Grey, Asst. City Atty., Charles W. Sullivan, Deputy City Atty., for respondent.
HERNDON, Justice.
Upon petition of Raymond G. Zorn we granted habeas corpus for the purpose of determining the validity of section 41.27(a) of the Municipal Code of the City of Los Angeles which petitioner claims to be invalid because, according to his arguments, it is in conflict with section 647(f) of the Penal Code as enacted in 1961.
Petitioner was charged in the Municipal Court of Los Angeles Judicial District with a violation of said section 41.27(a) of the Los Angeles Municipal Code, in that on July 13, 1962, he 'did wilfully and unlawfully be and appear in a state of drunkenness and intoxication in and upon a public street, sidewalk, highway, alley, public park, railroad depot, bus station, public place, a place open to the patronage of the public, a place open to public view, and in and upon a building and premises owned and occupied by a municipality and other governmental agency, and devoted to a public and governmental use, business and function.'
Petitioner entered a plea of guilty, and on July 16, 1962, he was sentenced to imprisonment in the city jail for 120 days. On July 26, 1962, he filed herein his petition for habeas corpus challenging the validity of the law under which he was charged and sentenced. Section 41.27(a) of the Los Angeles Municipal Code reads as follows: 'No person shall be or appear in a state of drunkenness or intoxication upon any public street, sidewalk, highway or alley or in any public park or in any railroad depot or bus station, or in any public place, or in any place open to the patronage of the public, or in any place open to public view, or in or upon any building or premises or portion thereof which is owned or occupied by any municipality or by any department office thereof, or by any other government or governmental agency or instrumentality, and devoted to any public or governmental use or to the performance of any official business or function, including any premises occupied by the Federal Government, but not under the exclusive jurisdiction thereof.'
Although the phrasing differs somewhat, the foregoing ordinance in its substance undertakes to create the same offense, that is to say, intoxication in a public place or in a place open to public view, as that prohibited by section 16-4 of Ordinance No. 1673 of the City of Pomona which we have held to be valid and enforceable in our opinion this day filed in People v. Lopez, Cal.App., 26 Cal.Rptr. 532. Precisely the same legal problem is here presented so that the reasoning of that opinion and the authorities therein discussed also establish the validity of section 41.27(a) of the Los Angeles Municipal Code.
The petition of habeas corpus is denied, the order to show cause is discharged, and the petitioner is hereby remanded into custody.
FOX, P.J., concurs.
ASHBURN, Justice (dissenting).
Petitioner was charged in the municipal court of Los Angeles Judicial District with a violation of said § 41.27(a) of the Los Angeles Municipal Code, in that he on July 13, 1962, 'did wilfully and unlawfully be and appear in a state of drunkenness and intoxication in and upon a public street, sidewalk, highway, alley, public park, railroad depot, bus station, public place, a place open to the patronage of the public, a place open to public view, and in and upon a building and premises owned and occupied by a municipality and other gove ernmental agency, and devoted to a public and governmental use, business and function.' Defendant entered a plea of guilty and on July 16, 1962, was sentenced to imprisonment in the city jail for 120 days. On July 26 he petitioned for habeas corpus challenging the validity of the law under which he was charged and sentenced.
Section 41.27(a) of the Los Angeles Municipal Code reads: 'No person shall be or appear in a state of drunkenness or intoxication upon any public street, sidewalk, highway or alley or in any public park or in any railroad depot or bus station, or in any public place, or in any place open to the patronage of the public, or in any place open to public view, or in or upon any building or premises or portion thereof which is owned or occupied by any municipality or by any department office thereof, or by any other government or governmental agency or instrumentality, and devoted to any public or governmental use or to the performance of any official business or function, including any premises occupied by the Federal Government but not under the exclusive jurisdiction thereof.'
In substance, though the phrasing differs somewhat, this section undertakes to create the same offense--intoxication in a public place or a place open to public view--as does § 16-4 of Ordinance No. 1673 of the City of Pomona which was upheld by the majority of this court in an opinion this day filed in People v. Lopez, 206 Cal.App.2d ----, 26 Cal.Rptr. 532. The same legal problem is presented and the reasoning of my dissenting opinion also establishes the invalidity of § 41.27(a) of the Los Angeles Municipal Code.
It appears, however, in this case, that subdivision (b) of § 41.27 provides: 'No person shall be on any private premises or in any private house in a state of drunkenness or intoxication to the annoyance of any other person.' These two subdivisions of the section are, of course, to be considered together and subdivision (b) merely emphasizes the attempt of the city to invade a field already occupied by the State. The failure of the statute to mention these phases of the subject of intoxication seems 'merely indicative of the fact that the state Legislature did not deem such was necessary in the overall state scheme' (Abbott v. City of Los Angeles, 53 Cal.2d 674, 685, 3 Cal.Rptr. 158, 165, 349 P.2d 974, 981, 82 A.L.R.2d 385; In re Lane, 58 A.C. 97, 102, 22 Cal.Rptr. 857, 372 P.2d 897).
For the reasons stated in my dissent in People v. Lopez, supra, the court should have held § 41.27(a) of the Municipal Code of the City of Los Angeles to be invalid.