Gleason v. Municipal Court

BURKE, P. J.

Petitioner seeks a writ of prohibition restraining the Municipal Court of the City of Los Angeles from prosecuting petitioner for violation of section 41.18 (b) of the Los Angeles Municipal Code, a loitering ordinance, contending such ordinance is invalid in that the State of California, by the provisions of Penal Code section 647, has preempted the field encompassing loitering offenses. The two sections are set forth in the footnote.

1

[586]

Petitioner was arrested for loitering in a pedestrian tunnel and filed a demurrer to the charge; briefs were filed, the matter submitted, and on February 7, 1964, petitioner was notified the demurrer was overruled and he was ordered to plead on or before February 17, 1964. Thereupon, he filed his petition for a writ of prohibition seeking to foreclose further proceedings in the ease.

The Supreme Court of the State of California has considered the subject of preemption at length in

In re Lane,

58 Cal.2d 99 [22 Cal.Rptr. 857, 372 P.2d 897], and repetition of its holdings therein is unnecessary here. In

Abbott

v.

City of Los Angeles,

53 Cal.2d 674, 683 [3 Cal.Rptr. 158, 349 P.2d 974, 82 A.L.B.2d 385], the court recognizes that there can be supplementary regulation in a field which general laws already cover. (See also

Hunter

v.

Adams,

180 Cal.App. 2d 511, 518 [4 Cal.Rptr. 776].) For preemption there should be either (1) total absorption of the legislative scheme

(In re Moss,

58 Cal.2d 117 [23 Cal.Rptr. 361, 373 P.2d 425]), or (2) an extended body of statutes manifesting the legislative intent that a general scheme was intended for the field