Anders, In re, Cr. 20198

• Citation: 25 Cal.3d 414,599 P.2d 1364,158 Cal.Rptr. 661
• Decision Date: 04 October 1979
• Docket Number: Cr. 20198
• Court: United States State Supreme Court (California)
• Parties: , 599 P.2d 1364 In re Thad C. ANDERS on Habeas Corpus.

Page 661

158 Cal.Rptr. 661

25 Cal.3d 414, 599 P.2d 1364

In re Thad C. ANDERS on Habeas Corpus.

Cr. 20198.

Supreme Court of California, In Bank.

Oct. 4, 1979.

Robert D. Carpenter, Los Angeles, under appointment by the Supreme Court, for petitioner.

Gordon & Hatler, Albert L. Gordon, Ray A. Hatler, Los Angeles, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, Jill Jakes, Fred Okrand, Mark Rosenbaum, Terry Smerling, Los Angeles, Donald C. Knutson, Jerel McCrary and Donald M. Solomon, San Francisco, as amici curiae on behalf of petitioner.

Burt Pines, City Atty., Ward G. McConnell, Asst. City Atty., and Mark L. Brown, Deputy City Atty., for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and John A. Saurenman, Deputy Attys. Gen., as amici curiae on behalf of respondent.

TOBRINER, Justice.

Petitioner Anders brings habeas corpus to challenge his conviction and punishment for a violation of Penal Code section 647, subdivision (a), which provides that every person "Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or any place open to the public or exposed to public view" is guilty of disorderly conduct. The conviction rests on the testimony of a police officer that he observed petitioner masturbating in a closed pay toilet stall in a bus station restroom. The door to the toilet stall was solid, except for two 12- by 18-inch wire mesh grates; the officer looked through the upper grate to observe petitioner's conduct.

Petitioner primarily argues that the officer's observation constituted an illegal search. (See Britt v. Superior Court (1962) 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817; Bielicki v. Superior Court (1962) 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288.) That contention is not cognizable on habeas corpus. (In re Sterling (1965) 63 Cal.2d 486, 47 Cal.Rptr. 205, 407 P.2d 5.)

Petitioner may, however, be entitled to relief under our recent decision in Pryor v. Municipal Court, --- Cal.3d ---, --- Cal.Rptr. ---, --- P.2d ----. In that case we adopted a narrow and specific construction of Penal Code section 647, subdivision (a), in order to overcome charges that the section as written and previously construed was unconstitutionally vague. We construed the statute "to prohibit only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves the touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct." (p. --- of --- Cal.Rptr., p. ---- of --- P.2d.)

With respect to the retroactivity of our decision, we stated that a defendant whose conviction is final, such as petitioner in the instant case, would be entitled to relief by writ of habeas corpus "if there is no material dispute as to the facts relating to his conviction and if it appears that the statute as construed in this opinion (Pryor v. Municipal Court ) did not prohibit his conduct." (p. --- of --- Cal.Rptr., p. ---- of --- P.2d.)

The record in the present proceedings was compiled before the filing of our decision in Pryor v. Municipal Court, supra. (p. --- of --- Cal.Rptr., p. ---- of --- P.2d.) It does not touch upon questions crucial to the application of the statute as construed in Pryor to the instant conviction, in particular, the question whether petitioner knew or should have known of the presence of persons who...