Dapper v. Municipal Court

order of the San Diego Superior Court denying his application for a writ of prohibition to restrain the Municipal Court, San Diego Judicial District, from further proceedings in a criminal action brought against him by the San Diego City Attorney on behalf of the People.

In October 1967, Dapper was convicted on five counts of violating provisions of the San Diego Municipal Code. All five violations involved maintaining his real property in an unkempt manner by allowing debris, rubbish and weeds to accumulate. After the date of the charged violations but before trial, four of the municipal code sections involved were repealed. Dapper petitioned the California Supreme Court for a writ of habeas corpus. On May 28, 1969, the Supreme Court ordered his convictions on three of the counts vacated because the ordinances were repealed and allowed a fourth conviction to stand because the ordinance had been substantially reenacted. The fifth conviction based on the unrepealed ordinance was also allowed to stand (

In re Dapper,

71 Cal.2d 184 [77 Cal.Rptr. 897, 454 P.2d 905]).

On July 1, 1968, the city attorney filed a second criminal complaint charging Dapper with one violation of the munici

[818]

pal code, two violations of the Uniform Fire Code and one violation of section 17906, title 8 of the California Administrative Code. The violations charged again were based upon Dapper allowing debris, trash, weeds and rubbish to accumulate and remain on his property.

Dapper contends the second complaint puts him again in jeopardy for the crimes of which he was convicted in 1967. He argues the same trash was on his property when the first complaint was filed as was there when the second complaint was filed. In short, Dapper has. yet to clean up his yard.

The real party in interest, represented by the San Diego City Attorney, argues Dapper has waived his double jeopardy objection because he did not raise that plea in the municipal court until after his prohibition petiton had been denied in the superior court by the order appealed here. We prefer, however, to deal with the constitutional objection on its merits;

We will assume the crimes charged in 1968 are the same as those for which Dapper was convicted in 1967 (neither side argues otherwise although the ordinance sections do not correspond and the administrative regulation charged in 1968 was not charged in 1967).