Yuen

Eddy Yuen was charged with a violation of section 129 1(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 section 7, article XI of the California Constitution.

The ordinance provides as follows:

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…

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, 61 Cal.2d 845, 853 [ 64 Cal.Rptr. 97 , 434 P.2d 353 ]).

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.

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 section 7, article XI of the California Constitution. [1]

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…