In Re Anders

[416]

Opinion

TOBRINER, J.

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, ante,

p. 238 [158 Cal.Rptr. 330, 599 P.2d 636]. 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.”