Dapper, In re, Cr. 12720

• Court: United States State Supreme Court (California)
• Writing for the Court: PETERS; TRAYNOR; McCOMB
• Citation: 77 Cal.Rptr. 897,454 P.2d 905,71 Cal.2d 184
• Parties: , 454 P.2d 905 In re Johnny B. DAPPER on Habeas Corpus.
• Docket Number: Cr. 12720
• Decision Date: 28 May 1969

Page 897

77 Cal.Rptr. 897 71 Cal.2d 184, 454 P.2d 905 In re Johnny B. DAPPER on Habeas Corpus. Cr. 12720. Supreme Court of California,
In Bank. May 28, 1969.
Rehearing Denied June 25, 1969.

Page 898

[454 P.2d 906] [71 Cal.2d 186] Johnny B. Dapper, in pro. per.

Edward T. Butler, City Atty., Kenneth H. Lounsbery, Chief Deputy City Atty., and J. David Franklin, Deputy City Atty., for respondent.

PETERS, Justice.

Johnny B. Dapper petitions for a writ of habeas corpus.

In August 1966, he was charged with five counts of violating the San Diego Municipal Code: Count 1 (§ 55.30.10), permitting combustible material and debris to accumulate; count 2 (§ 55.36), allowing rubbish to remain without a permit; count 3 (§ 55.30.7(c)), storing lumber without a permit; count 4 (§ 44.0350), accumulating debris so as to afford a shelter for rats; and count 5 (§ 55.35), allowing dangerous weeds.

Dapper pleaded guilty to and was sentenced on counts 1 and 5. The other counts were dismissed 'in furtherance of justice.' Upon Dapper's petition, the court granted a petition for a writ of error Coram nobis, including in its order a stipulation by the district attorney and Dapper's court-appointed counsel that the dismissed counts be reinstated.

A jury trial was held, and Dapper was found guilty on all [71 Cal.2d 187] five counts. On count 1, he was sentenced to pay a fine of $500 and serve 180 days in jail; execution of judgment was stayed, and he was placed on probation for three years. On count 5, he was sentenced to 180 days in jail; except for three days, execution of sentence was stayed, and he was placed on probation for three years. The sentences were to run consecutively. As a condition of probation, he was required 'to clean up his property.'

Page 899

[454 P.2d 907] Dapper contends that he could not be validly prosecuted under counts 2, 3, and 4, because section 1387 of the Penal Code bars the refiling of misdemeanor complaints which have been dismissed. ¹ He argues that the stipulation to the reinstatement of the dismissed counts is invalid, because it was made over his objection, and shows incompetence of counsel. However, even assuming that Dapper objected to the stipulation at the time it was made and that because of his objection it was improper for counsel to enter into the stipulation, Dapper may not in this proceeding attack the stipulation, and the stipulation does not show incompetence of counsel.

The granting or denying of a petition for writ of error Coram nobis is an appealable order, governed by the same procedural rules that apply to appeals from a judgment of conviction. (People v. Griggs, 67 Cal.2d 314, 316, 61 Cal.Rptr. 641, 431 P.2d 225; In re Horowitz, 33 Cal.2d 534, 537, 203 P.2d 513.) The reinstatement of the dismissed charges may have been an integral part of the order granting the writ, and had Dapper attacked the order on the basis of the part reinstating the charges, the entire order may have been held inseverable. (Cf. Hamasaki v. Flotho, 39 Cal.2d 602, 608--610, 248 P.2d 910; People v. Dominguez, 256 Cal.App.2d 623, 629, 64 Cal.Rptr. 290; People v. Williams, 247 Cal.App.2d 394, 409--410, 55 Cal.Rptr. 550; People ex rel. Dept. of Public Works v. Mascotti, 206 Cal.App.2d 772, 778--779, 23 Cal.Rptr. 846, 24 Cal.Rptr. 679; People v. Mason, 184 Cal.App.2d 182, 187, 7 Cal.Rptr. 525.) He did not appeal the order granting the writ or move to set aside the order and vacate the writ. He has attacked only the portion of the order which, based on the stipulation, directed reinstatement of the dismissed charges. He has never urged that the order should be set aside in its entirety. Instead, he has taken advantage of [71 Cal.2d 188] the order by withdrawing his guilty pleas and proceeding to trial on the merits of all of the charges. We are satisfied that in the circumstances of this case he may not be permitted at this time to attack the order granting the writ after he has taken advantage of those portions which are favorable to him.

The decision of the attorney to enter into the stipulation, even if beyond his authority, does not show that he was incompetent. The record does not show that counsel was unaware of the facts or the law applicable to the Coram nobis proceeding, and, so far as appears from the record, the determination to enter into the stipulation may have been the wisest course to follow to secure the vacation of defendant's convictions. (Cf. In re Hawley, 67 Cal.2d 824, 828--829, 63 Cal.Rptr. 831, 433 P.2d 919.)

Dapper further contends that the municipal court had no jurisdiction to prosecute him under San Diego Municipal Code sections 55.30.10, 55.36, 55.30.7(c), and 55.35 because, although the provisions were in effect when the violations were allegedly committed, 'on or about' June 30, 1966, the sections were repealed June 20, 1967, before the prosecution of Dapper had been reduced to final judgment in October 1967. This contention does not apply to count 4, accumulating debris so as to afford a shelter for rats, because that section has not been repealed.

The law is well-established that 'the outright repeal of a criminal statute without a saving clause bars prosecution for violations of the statute committed before the repeal.' (Sekt v. Justice's Court of San Rafael, 26 Cal.2d 297, 304, 159 P.2d 17, 21, 167 A.L.R. 833.) The rule applies equally to local ordinances. (Spears v. County of Modoc, 101 Cal. 303, 304, 307, 35 P. 869.)

Respondent contends that the San Diego Municipal Code contains such a saving clause. The clause on which respondent relies reads: 'Neither the adoption of this Code nor the repeal Hereby of any Ordinance[454 P.2d 908]

Page 900

of this City shall in any manner effect (sic) the prosecution for violation of Ordinances, Which violations were committed prior to the effective date hereof, * * *' (San Diego Mun.Code, § 11.04; italics added.) It is patently clear that the savings clause refers to ordinances repealed By the code, and not to ordinances comprising the code which are subsequently repealed. It is equally clear that the 'violations' referred to, prosecution for which is preserved, are violations occurring before the adoption of the code and not violations like those involved here which [71 Cal.2d 189] occurred after...