Austin v. Municipal Court

Opinion

FILES, P. J.

This proceeding was commenced in the superior court by several employees of a beer bar, seeking a writ of prohibition restraining the Whittier Municipal Court from trying them on charges of indecent exposure. The female plaintiffs, who are employed as waitresses and as nude dancers, are charged with a violation of subdivision 1 of Penal Code

[271]

section 314, and the male plaintiff, who is the manager of the bar, is charged with a violation of subdivision 2.

1

The return filed in the superior court by the People, as real parties in interest, included copies of reports made by police officers who had observed the performances of the female plaintiffs. At the trial in the superior court counsel stipulated that the case would be submitted upon the papers attached to the return. The superior court then made findings of fact to the effect that conduct observed by the officers was not a violation of section 314, because the dancers’ conduct was motivated solely by prospective monetary reward and not for their own sexual arousal or gratification. The superior court then entered a judgment for the issuance of a peremptory writ of prohibition commanding the municipal court “to absolutely and permanently desist and refrain from any prosecution of the petitioners under Penal Code sections 314.1 and 314.2 [sic]. . . .”

The People appeal from that judgment.

What occurred in the superior court was a preliminary hearing of a misdemeanor case using police reports as evidence, and a decision by the superior court that the evidence would not support a conviction. The district attorney pointed out to the superior court the inappropriateness of trying misdemeanor cases by writ of prohibition, and renewed the point on this appeal.

Plaintiffs rely upon

Barrows

v.

Municipal Court

(1970) 1 Cal.3d 821 [83 Cal.Rptr. 819, 464 P.2d 483], as authority for the procedure they employ here. The