Gaylord v. Municipal Court

[1350]

Opinion

THE COURT.

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—Petitioner Gaylord is charged in a misdemeanor complaint with disorderly conduct, in violation of Penal Code section 647, subdivision (b),

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by soliciting or agreeing to engage in an act of prostitution. In the instant proceeding, he challenges the respondent’s order overruling his demurrer to the complaint. Petitioner principally urges the complaint is fatally deficient because it does not contain a statement sufficient to give him notice of the offense of which he is accused. (§§ 950, 952.) We have heretofore given notice to the parties that we may act by peremptory writ in the first instance, and have requested opposition from the People “addressing in particular the issue whether the complaint gives petitioner sufficient notice of the offense of which he is accused. (See Pen. Code, §§ 647, subd. (b), 950, 952.)” We have read and considered the opposition filed by the People in response to our request.

Section 647, as amended effective January 1, 1987, provides in relevant part: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:

“(b) Who solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.

No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, beside the agreement, be done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act.

As used in this subdivision, ‘prostitution’ includes any lewd act between persons for money or other consideration.” (Italics supplied.)

Section 950 requires an accusatory pleading to contain a statement of the public offense charged. Section 952 provides such statement may be “in any words sufficient to give the accused notice of the offense of which he is accused.” Hence the issue presented in this proceeding is whether a complaint charging violation of section 647, subdivision (b) by agreeing to engage in an act of prostitution must specify an “act, beside the agreement . . . in furtherance of the commission of an act of prostitution.” We