FRANK v. PEOPLE

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Court of Appeal, First District, Division 3, California.

Deverous FRANK, Petitioner, v. The MUNICIPAL COURT For the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE of the State of California, Real Party in Interest.

A018345.

Decided: July 21, 1983

George Forman, California Indian Legal Services, Oakland, Laurence J. Lichter, San Francisco, for petitioner. No appearance for respondent. George Deukmejian, Fr. Atty. Gen., and John K. Van De Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Charles W. Getz, IV, Mary E. Hackenbracht, Bruce S. Flushman, Deputy Attys. Gen., San Francisco, for real party in interest.

In 1979, Deverous Frank, an Indian of the Hoopa Valley Indian Reservation, was charged with violating California Administrative Code, title 14, section 1.18, which prohibited possession of more than two salmon outside the boundaries of the reservation unless the fish were clearly marked in a specified manner, and were possessed for subsistence or ceremonial purposes by eligible Indians as defined by chapter 1, part 258, title 25 of the Code of Federal Regulations.1  The municipal court sustained Frank's demurrer and dismissed the complaint;  the appellate department reversed, and Frank petitioned this court for a writ of prohibition.   We issued an alternative writ.

 Frank contends:  (1) his prosecution is an unlawful interference with his federally protected right to fish on the lower Klamath River, absent proof that the state had exhausted all other means of conserving the salmon fishery on that river;  (2) the state's power to regulate his fishing rights has been preempted by regulations promulgated by the Department of the Interior;  and (3) Fish and Game Code section 8685.6 impermissibly discriminates against Indians and Indian commerce.   For the reasons stated in People v. McCovey, 145 Cal.App.3d 190, 193 Cal.Rptr. 293, these contentions are without merit.

 Frank also contends that section 1.18, which was promulgated by the Fish and Game Commission, was inconsistent with the Legislature's delegation of power to that commission and is therefore void.   The contention is without merit.  Section 1.18, which set a daily bag limit for salmon, but recognized the subsistence and ceremonial fishing permitted reservation Indians by federal regulations, was well within the broad authority of the commission to regulate the taking or possession of fish.  (See, e.g., Fish & G. Code, §§ 200 et seq., 300 et seq.)

 Frank also contends that section 1.18 is unconstitutionally vague because it fails to define the terms “subsistence” or “ceremonial.”   It is true that a statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process.  (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 491, 134 Cal.Rptr. 630, 556 P.2d 1081.)   A statute will not be held void for uncertainty, however, if its terms may be made reasonably certain by reference to other definable sources.  (County of Nevada v. MacMillen (1974) 11 Cal.3d 662, 673, 114 Cal.Rptr. 345, 522 P.2d 1345.)   For instance, a term in a statute may be made certain by reference to and adoption of the rules or regulations of another state or of the United States.  (People v. International Steel Corp. (1951) 102 Cal.App.2d Supp. 935, 938, 226 P.2d 587.)  Section 1.18 expressly refers to the federal regulations which governed fishing on the Hoopa Valley Reservation;  those regulations defined subsistence fishing as “the taking of fish to be eaten by Indians of the Reservation or their immediate families.”  (44 Fed.Reg. 17148 (Mar. 20, 1979) [former 25 C.F.R. § 258.4(c) ].)  The meaning of the term “subsistence” in section 1.18 is clearly ascertainable from those federal regulations.

 The federal regulations do not appear to define the term “ceremonial.”   However, one cannot complain of the vagueness of a statute if the conduct with which he or she is charged falls clearly within its bounds.  (Bowland v. Municipal Court, supra, 18 Cal.3d at p. 492, 134 Cal.Rptr. 630, 556 P.2d 1081.)   Frank was charged with possession of fish which were not for subsistence or ceremonial purposes and which were not properly marked.   The absence of the required markings alone would constitute a violation of section 1.18.   Furthermore, Frank does not claim he possessed these fish for ceremonial purposes.   We need not speculate about a hypothetical situation to which the regulation may have uncertain applicability.

The alternative writ is discharged and the peremptory writ denied.

FOOTNOTES

1.   Effective March 1, 1980, section 1.18 was renumbered as section 1.51 (Cal.Admin.Register 80, No. 2).

SCOTT, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.