People v. Municipal Court

Opinion

AULT, J.

The People appeal from a judgment of the San Diego County Superior Court discharging an alternative writ and denying their petition for a peremptory writ of mandate. They sought the writ to compel the municipal court to vacate its order dismissing two misdemeanor counts charging real party in interest, Frank Martinez, with soliciting a lewd act (Pen. Code, § 647, subd. (a)). The municipal court ordered the dismissals on May 16, 1969, after Martinez had entered a plea of guilty to a third misdemeanor charge contained in a separate complaint (possession, with the intent to exhibit or distribute, obscene materials, Pen. Code., § 311.2). The plea of guilty resulted from a negotiated plea bargain between Martinez and his attorney and the prosecutor. The court’s minutes reflect the two Penal Code section 647, subdivision (a), counts were dismissed on motion of the People, in the furtherance of justice and in view of the plea of guilty to the Penal Code section 311.2 charge.

The attorney for Martinez then mentioned the case of

Stanley

v.

Georgia,

394 U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243], decided on April 7, 1969, which held a Georgia statute, making the mere private possession of obscene material illegal, unconstitutional under the First and Fourteenth Amendments of the U. S. Constitution. The parties had previously stipulated the allegedly obscene material had been found in Martinez’ possession in his residence, and his attorney asserted Martinez had not violated Penal Code section 311.2 because private possession of obscene material was no longer a crime under the ruling of the

Stanley

case. The judge indicated Martinez had negotiated a plea with the prosecutor and he would not hear argument on the merits of the charge to which he had pleaded guilty. He set the probation hearing for June 6, 1969.

However, at the probation hearing, the judge stated he had then read the

Stanley

case and the probation report and felt he could not accept the guilty

[365]