People v. Lindenbaum

11 Cal.App.3d 1 (1970) 90 Cal. Rptr. 340 THE PEOPLE, Plaintiff and Appellant,

v.

ROBERT LINDENBAUM, Defendant and Respondent. (And 17 other cases.)[*]

Docket No. 9444. Court of Appeals of California, Appellate Department, Superior Court, Los Angeles.

September 4, 1970. [3] COUNSEL

Robert C. Gustaveson, City Attorney, and Patrick J. Sampson, Deputy City Attorney, for Plaintiffs and Appellants.

Mydland, Dugan, Grant & Pic'l for Defendants and Respondents.

OPINION

WHYTE, P.J.

The People appeal from an order of the Municipal Court of the Pomona Judicial District dismissing prosecutions "brought for nude performances in places where alcoholic beverages were served and for procuring performers in such places." (Amendment to Statement on Appeal, p. 1, lines 28-29.) Said dismissals followed the sustaining of demurrers to the criminal complaints on the ground that section 14.4-5 of Ordinance No. 1673 as amended by Ordinance No. 2336 of the City of Pomona is unconstitutional on its face.

Although counsel for the respondents obtained an extension of time within which to file briefs with this court, no briefs were filed and no [4] appearance was made at the time of oral argument. While we could treat this as a concession of error justifying a holding that the appeals are meritorious (Weisberg v. Ashcraft (1961) 194 Cal. App.2d 225 [14 Cal. Rptr. 817]; Sowell v. Sowell (1958) 164 Cal. App.2d 371 [330 P.2d 391]; Brunscher v. Reagh (1958) 164 Cal. App.2d 174 [330 P.2d 396]), because of the importance of the questions involved, we elect to proceed on our own without the assistance of respondents' counsel.

(1) At the outset, we must consider Penal Code sections 318.5 and 318.6 which are said to "authorize" the Pomona city ordinance, herein involved. Absent such sections, there would be no doubt that the ordinance would be invalid (People v. Hansen (1966) 245 Cal. App.2d 689 [54 Cal. Rptr. 311]) for the simple reason that it invades a field held preempted in In re Lane (1962) 58 Cal.2d 99 [22 Cal. Rptr. 857, 372 P.2d 897]. However, as pointed out by Judge Wisot in Walton v. The City of Carson (L.A. Superior Ct. SOC 21646), "it would be a reaction becoming only of an ostrich to regard those sections as anything than what they plainly are, to wit, expressions of the Legislature's intent to dissipate in some measure the effect of the ruling in In re Lane. The Legislature has now said, effective November 10, 1969, In re Lane is no longer effective as to the Legislative intent to preempt the entire field of control of sexual activity in public places; it is now our intent to permit counties and cities throughout the state to legislate in the field of `topless' and `bottomless' in their respective territorial areas — except in theaters and concert halls." These Penal Code sections permit the city to adopt this type of ordinance free from the restraint of preemption. They do not authorize the ordinance, for if, as claimed by respondents at the trial level, the state itself could not constitutionally prohibit "topless" and "bottomless" in establishments of the type here involved, it cannot authorize its subdivisions to do so.