¶1Wherever, 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.
¶2Gambling 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.
¶3Yet 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.
¶4*1305For 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, Hoffman Estates (1982) 455 U.S. 489, 498 [71 L.Ed.2d 362, 371-372, 102 S.Ct. 1186].)
¶5It follows that I believe it reasonably likely respondents will succeed at trial on the merits and that, finding no abuse of discretion in issuance of the preliminary injunction, I would leave it undisturbed.