In re Ayala

BRAY, J. The petition for habeas corpus raises the question of whether or not the amended information upon which petitioner was convicted states a public offense sufficiently to give the court jurisdiction to accept defendant’s plea of guilty.

Record

Count I of the amended information* charged petitioner with the crime of violation of section 266h of the Penal Code. Petitioner pleaded guilty to this count and was sentenced to the state prison. He is now in San Quentin.

Based primarily upon People v. Smith, 44 Cal.2d 77 [279 P.2d 33], decided subsequently to his sentence, petitioner contends that either no public offense was alleged in the information, or, if any, merely a misdemeanor, and that hence the superior court had no jurisdiction to act.

Sufficiency of the Information

The portion of section 266h, Penal Code, applicable here reads: “Any male person who, knowing a female person is a prostitute . . . solicits or receives compensation for soliciting for her, is guilty of pimping, a felony. ...” (Emphasis added.)

In the Smith case, supra, the defendant was charged with violating section 266h, Penal Code. (The language of the information does not appear.) The evidence at the preliminary examination showed that the “defendant had solicited a customer for a woman who was known to defendant to be a prostitute, but there was no evidence to show that defendant either solicited compensation or received compensation for the solicitation of any customer.” (P. 78.) The sole question before the Supreme Court was “Does section 266h of the Penal Code proscribe the mere solicitation of [809]a customer for a prostitute?” (P. 78.) The court concluded that it did not, stating that the section provides that pimping may be committed in one of two ways: (1) by the receipt of compensation for soliciting for a prostitute (this was the charge in the second count here, which was dismissed), and (2) by soliciting compensation for soliciting for a prostitute. It further held that merely soliciting a customer for a prostitute, and not for compensation, was not a crime under this section, and that such solicitation would be a misdemeanor under section 318, Penal Code.

In order to determine the contention here presented it is important to know how far the sufficiency of the information can be questioned on habeas corpus. In re Wilson, 196 Cal. 515, 518 [238 P. 359], discusses this subject. It quotes from 13 California Jurisprudence, page 232, section 14: “ ‘The scope of inquiry upon habeas corpus into the sufficiency of an indictment or information is limited, for, although the petitioner may be discharged if the pleading totally fails to charge an offense known to the law, if there is attempted to be stated an offense of a kind of which the court assuming to proceed has jurisdiction, the question whether the facts charged are sufficient to constitute an offense of that kind will not be examined into. ’ ” It quotes from In re Kavanaugh, 180 Cal. 181, 182 [180 P. 533] : “ ‘The information in the superior court upon which the judgment against petitioner is based clearly attempted to charge the felony defined by section 476a of the Penal Code. Whether the specific facts alleged as constituting the particular offense failed to sufficiently show the public offense attempted to be charged is a question which cannot be considered on habeas corpus under the well-settled rule of this jurisdiction. . . .’ ”