People v. Metcalf

Opinion

AISO, J.

Defendant and a codefendant (not a party to this appeal) were charged by an information with a violation of Penal Code section 288a. Defendant’s motions pursuant to Penal Code sections 995 and 1538.5 were denied. Defendant then waived his rights to a jury trial, to confront and cross-examine witnesses, and his privilege against self-incrimination, and further stipulated to the cause being submitted on the transcript of the preliminary hearing. Defendant’s trial counsel and defendant personally

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stipulated to a violation of Penal Code section 647, subdivision (b), being a “lesser included offense to 288a of the Penal Code” and defendant was then found guilty of a violation of Penal Code section 647, subdivision (b).

1

Defendant waived a formal probation hearing. Proceedings were suspended and defendant was placed upon summary probation for six months conditioned upon his payment of a fine and a penalty assessment in the amount of $125. On the same date as the order placing him on probation, defendant paid the fine and penalty assessment. Likewise on the same date, the trial court ordered probation terminated and the “case dismissed pursuant to Section 1203.3 . . . and 1203.4” of the Penal Code. Defendant’s appeal “from the judgment” we construe to be from the order granting probation. (Pen. Code, § 1237, subd. 1.)

Defendant urges upon this appeal that his motion under Penal Code section 1538.5 should have been granted on the basis that observations by a police officer violated defendant’s Fourth Amendment rights. (Pen. Code, § 1538.5, subd. (m).) Since we find merit in this contention, it is unnecessary for us to deal with other questions, e.g., whether a violation of Penal Code section 647, subdivision (b), is a lesser included offense to a violation of Penal Code section 288a with or without a stipulation, or whether we have a type of

People

v.

West

(1970) 3 Cal.3d 595, 611-613 [91 Cal.Rptr. 385, 477 P.2d 409] situation.