Walker

Wherever, as here, an activity not in itself evil, but morally neutral, is proscribed as criminal, a criminal intent separate from the mere doing of the forbidden act must be established in order to prove commission of a crime.

Gambling is, of course, a morally neutral act, a fact which, if we did not know it as a matter of common sense and experience, we would deduce from the state’s own active participation in gambling schemes which make Pai Gow seem a conservative investment by comparison.

Yet neither I, nor the Legislature, nor to the best of my knowledge “men of common intelligence” (cf., Lanzetta v. New Jersey (1939) 306 U.S. 451, 453 [ 83 L.Ed. 888, 890 , 59 S.Ct. 618 ]) can say with the reasonable certainty required by law what is a “percentage” game as proscribed by Penal Code section 330.

*1305 For that reason, I am of the opinion that Penal Code section 330 is void for vagueness, in that it does not adequately or reasonably define the conduct sought to be prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement. (Kolender v. Lawson (1983) 461 U.S. 352, 357 [ 75 L.Ed.2d 903, 908-909 , 103 S.Ct. 1855 ]; Hoffman Estates v. Flipside,…

This is an appeal by the District Attorney of Alameda County from an order of the superior court granting a preliminary injunction which prevented any interference with the playing of the game of Pai Gow in licensed cardrooms. In light of our agreement with the decision in Sullivan v. Fox (1987) 189 Cal. App.3d 673 [ 235 Cal. Rptr. 5 ], we reverse the order.

Respondents are the owners of licensed card rooms in the City of Emeryville. Penal Code section 330 prohibits "gaming," which is defined as the playing for value of 12 enumerated games and "any banking or percentage game played with cards, dice, or any device...." [1] Games not prohibited by statute may be regulated by municipalities. ( In re Hubbard (1964) 62 Cal.2d 119, 125-127 [ 41 Cal. Rptr. 393 , 396 P.2d 809 ], overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6 [ 81 Cal. Rptr. 465 , 460 P.2d 137 ].) The City of Emeryville has not banned the playing of games which are not prohibited by state statute, but regulates card rooms by local ordinance.

When respondents learned of a decision of a superior court in Los Angeles which determined that the Chinese game of…

This is an appeal by the District Attorney of Alameda County from an order of the superior court granting a preliminary injunction which prevented any interference with the playing of the game of Pai Gow in licensed cardrooms. In light of our agreement with the decision in Sullivan v. Fox (1987) 189 Cal.App.3d 673 [ 235 Cal.Rptr. 5 ], we reverse the order.

Factual and Procedural Background

Respondents are the owners of licensed card rooms in the City of Emery-ville. Penal Code section 330 prohibits “gaming,” which is defined as the playing for value of 12 enumerated games and “any banking or percentage game played with cards, dice, or any device . . . .” 1 Games not prohibited by statute may be regulated by municipalities. (In re Hubbard (1964) 62 Cal.2d 119, 125-127 [ 41 Cal.Rptr. 393 , 396 P.2d 809 ], overruled on another point in Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63, fn. 6 [ 81 Cal.Rptr. 465 , 460 P.2d 137 ].) The City of Emeryville has not banned the playing of games which are not prohibited by state statute, but regulates card rooms by local ordinance.

When respondents learned of a decision of a superior court in Los Angeles which determined that the…