People v. Proctor

SCHAUER, J.

Defendant was charged with violation of section 653f of the Penal Code in that he did “solicit . . . Gerald G. Cohen, to commit and join in the commission of the crime of Burglary.” Defendant was tried by the court without a jury. The court determined that defendant was guilty of violation of section 650% of the Penal Code (which denounces the offenses of injuring the person or property of another, disturbing or endangering the public peace or health,

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etc.), “a lesser offense than that charged in the information but necessarily included therein,” and defendant was sentenced to the county jail. He appeals from the judgment and various orders hereinafter described. We have concluded that, assuming but not deciding tenability of the trial court’s determination that violation of section 650% is an offense included within section 653f, the solicitation shown here cannot be punished under section 650% because that section provides that the acts which can be punished thereunder are those “for which no other punishment is expressly prescribed by this code.”

By stipulation the ease was submitted upon a transcript of the evidence at the preliminary hearing. According to such transcript, Gerald G. Cohen testified that he was introduced to defendant by one Morales at defendant’s residence adjoining defendant’s real estate office; Cohen was a police officer, but his identity was not disclosed to defendant; defendant produced the keys to two houses, gave Cohen the addresses, and solicited Cohen to commit burglaries of the houses. It is apparent then that if any offense at all was shown, it was the offense of solicitation.

The trial court expressed the view that the People had not met the requirement of section 653f of the Penal Code that “Such offense [solicitation] must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.” However, as stated, the court determined that the evidence showed the “lesser included” offense of violation of section 650% of the Penal Code.

Section 650% of the Penal Code provides, “A person who willfully and wrongfully commits any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, or who willfully and wrongfully . . . uses another’s name for accomplishing lewd or licentious purposes ... or who with intent of accomplishing any lewd or licentious purpose . . . personifies any person other than himself, . . .