IN RE: Joseph Bruce FRANCE on Habeas Corpus. (1981)

The People appeal from a judgment directing issuance of a writ of habeas corpus to “annul” a judgment rendered on November 19, 1968, convicting respondent Joseph Bruce France of lewd conduct (Pen.Code, § 647, subd. (a)).  The writ petition was submitted on the transcript of the preliminary hearing in the criminal case.

According to that evidence, a Mrs. Miller was the owner of property which people parked on and crossed over in order to get to a public beach in San Mateo County.   She relayed to the sheriff's office complaints heard from persons who had seen “many acts of homosexuality being committed on the beach areas.”   Mrs. Miller described a “repeater” who had been using the beach almost every weekend.   Officers went to the beach for the purpose of stopping the offensive activity.   An officer entered a small cave on the beach where he found six nude males, one of whom, respondent, was orally copulating another;  the others were also engaged in homosexual activity.   Although the interior of the cave was rather dark, the officer testified that one “can stand on the sandy beach and see what is going on in the cave.”

Several arrests were made;  respondent was held to answer for oral copulation (Pen.Code, § 288a), and an information charging him with that offense was filed in the superior court.

Respondent pleaded guilty to the included misdemeanor of lewd conduct (Pen.Code, § 647, subd. (a)), and on December 10, 1968, was admitted to probation.   Upon completion of the term of probation, respondent initiated proceedings under Penal Code section 1203.4;  on January 18, 1970, the court terminated probation, entered a plea of not guilty and dismissed the charge.

At the hearing on the writ petition it was stipulated that respondent would testify that although charges had been dismissed the conviction prevents him from obtaining a license as a clinical social worker.   In a declaration supporting the petition he related that his reputation had been damaged “by the occasional revelation of the record of ․ conviction” and that employment opportunities had been diminished by the actuality or the hazard of such disclosures.

In granting a writ to annul respondent's conviction, the trial court considered that it was following Carafas v. La Vallee (1968) 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554.   In Carafas, the United States Supreme Court was dealing with a question of mootness with respect to a state prisoner who had been discharged from custody while his federal habeas corpus proceedings was pending.   Noting that federal jurisdiction had attached upon the filing of the petition while the petitioner was in custody, the United States Supreme Court rejected a suggestion of mootness, remarking that the challenged state judgment created disabilities in regard to employment, voting and jury service.  (391 U.S. at p. 237, 88 S.Ct. at 1559.)   Here, in contrast, the question is not one of mootness but of jurisdiction to entertain a new habeas corpus proceeding where there was no custody or constructive custody.

 The scope of the “great writ” is not defined in the California Constitution (see Cal.Const. Art. I, § 11, Art. VI, § 10);  that definition is left to legislative determination, subject to the implied condition that a definition of scope narrower than the historical scope of the writ could be challenged as an unconstitutional suspension of the writ.   California legislation governing the scope of the writ is fully consistent with the traditional reach of habeas corpus:  it makes the writ available to “every person unlawfully imprisoned or restrained of liberty․”  (Pen.Code, § 1473, subd. (a);  see Duker, A Constitutional History of Habeas Corpus (1980) Westport, Conn. Greenwood Press, p. 299.)   Although actual custody is not required (Witkin, Cal.Criminal Procedure, Habeas Corpus and Other Extraordinary Writs, § 794, p. 766), respondent has cited no authority recognizing extension of the writ beyond instances of constructive custody connected with pending criminal proceedings or possible reimposition of actual custody.  (See In re Marzec (1945) 25 Cal.2d 794, 154 P.2d 873 [parole];  In re Petersen (1958) 51 Cal.2d 177, 331 P.2d 24 [bail], app. dism. 360 U.S. 314, 79 S.Ct. 1294, 3 L.Ed.2d 1259;  In re Smiley (1967) 66 Cal.2d 606, 58 Cal.Rptr. 599, 427 P.2d 179 [own recognizance].)  No case has been found recognizing habeas corpus jurisdiction where the criminal process has terminated.   The present case well illustrates why the statute reserves the writ to restraints on liberty;  here, the petition tendered factual issues concerning events 12 years earlier which a judicial proceeding is not well equipped to resolve.   The court acted in excess of jurisdiction in granting the writ.

 Aside from the jurisdictional defect, the court acted incorrectly in annulling the conviction on the basis of Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636, where the California Supreme Court shortened the reach of the statute punishing disorderly or lewd conduct.   To obviate a constitutional challenge, the court construed the statute as applying only “if the actor knows or should know of the presence of persons who may be offended by his conduct.”  (25 Cal.3d at p. 256, 158 Cal.Rptr. 330, 599 P.2d 636;  also see In re Anders (1979) 25 Cal.3d 414, 417, 158 Cal.Rptr. 661, 599 P.2d 1364.)   In Pryor, the California Supreme Court gave directions concerning retroactivity of its construction of the statute:  “A defendant whose conviction is now final, however, will be entitled to relief by writ of habeas corpus only if there is no material dispute as to the facts relating to his conviction and if it appears that the statute as construed in this opinion did not prohibit his conduct.”  (25 Cal.3d at p. 258, 158 Cal.Rptr. 330, 599 P.2d 636.)   Once lawful process has been shown to justify the challenged restraint, it is of course the responsibility of the petitioner to adduce evidence showing that he is nevertheless entitled to relief.  (Witkin, California Criminal Procedure, Habeas Corpus and Other Extraordinary Writs, § 825, p. 790.)   The facts sketchily presented in the preliminary hearing transcripts do not make it appear that the statute as construed in Pryor did not prohibit respondent's conduct.   On the contrary, that record gives some support to inferences that appellant joined with a group of other men in sexual acts likely to give offense to members of the public at a place exposed to public view.   Thus, the present case does not meet the test announced in Pryor for retroactive application of the new statutory construction.

Reversed.

I respectfully dissent.   In Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636, the Supreme Court salvaged the constitutionality of Penal Code section 647, subdivision (a), by holding that it could be construed as proscribing only sexual conduct (1) by one who “knows or should know of the presence of persons who may be offended by his conduct” and (2) which “occurs in any public place or in any place open to the public or exposed to public view.”  (Id., at pp. 256–257, 158 Cal.Rptr. 330, 599 P.2d 636.)   The court further held that the decision would apply retroactively to cases then “ ‘pending on appeal’ ” (quoting People v. Gainer (1977) 19 Cal.3d 835, 853, 139 Cal.Rptr. 861, 566 P.2d 997) and beyond them, in point of time, as follows:  “A defendant whose conviction is now final, however, will be entitled to relief by writ of habeas corpus only if there is no material dispute as to the facts relating to his conviction and if it appears that the statute as construed in this opinion did not prohibit his conduct.  [Citation.]”  (Pryor v. Municipal Court, supra, at p. 258, 158 Cal.Rptr. 330, 599 P.2d 636.  [emphasis added].)

Respondent has pursued the Pryor remedy to the letter.   Citing and quoting the decision in his petition, he explicitly alleged (among other things) that there was “no material dispute as to the facts” relating to his conviction, that “the statute as newly construed [in Pryor] did not prohibit his conduct,” and that he was accordingly “entitled to relief by writ of habeas corpus.”

There was “no dispute as to the facts” of the 1968 episode, which were established by the testimony of a single witness in the transcript of the preliminary examination on which respondent's petition was submitted for decision.  (See In re Crumpton (1973) 9 Cal.3d 463, 467–468, 106 Cal.Rptr. 770, 507 P.2d 74.)   The facts supported conflicting inferences on the question whether his conduct violated Penal Code section 647, subdivision (a), as construed in the Pryor decision.   The trial court drew inferences in his favor, finding (orally and in effect, but unmistakably) that there had been no one present who would have been offended by his conduct;  that the location where it occurred (a dark cave on a remote beach) was not a public place or open to the public, or exposed to public view, within the meaning of Pryor;  and that the statute as construed in Pryor therefore did not prohibit his conduct.

These findings are fully supported by the testimony in the transcript.   The substantial evidence rule precludes the majority's purported determination to the contrary, which usurps a crucial function of the lower court as the trier of fact in this proceeding.   Its findings thus establish that respondent is entitled to relief from the 1968 conviction pursuant to Pryor.   In the circumstances shown, this conclusion is not affected by the fact that he was convicted in 1968 on a plea of guilty.  (In re Crumpton, supra, 9 Cal.3d 463 at pp. 467–468, 106 Cal.Rptr. 770, 507 P.2d 74;  In re Madrid (1971) 19 Cal.App.3d 996, 999–1003, 97 Cal.Rptr. 354.)

I do not agree that relief should be denied on the ground that respondent has not made the showing of “custody” which is ordinarily required of a petitioner in habeas corpus.   Although he is not in actual custody as a result of the 1968 conviction, “[i]t is settled that ‘the use of habeas corpus has not been restricted to situations in which the applicant is in actual, physical custody’ ․, but has been invoked to relieve a wide variety of ‘other restraints on a man's liberty.’ ”  (In re Smiley (1967) 66 Cal.2d 606, 612, 58 Cal.Rptr. 579, 427 P.2d 179 [quoting Jones v. Cunningham (1963) 371 U.S. 236, 239, 83 S.Ct. 373, 375, 9 L.Ed.2d 285].)  The trial court also found from substantial evidence (in the form of stipulated and uncontradicted testimony) that respondent is suffering from certain occupational and economic disabilities as a result of the conviction he has successfully challenged on its merits.   These disabilities are “restraints on a man's liberty” which will give him standing to obtain habeas corpus relief if he is otherwise entitled to it.  (Carafas v. LaVallee (1968) 391 U.S. 234, 237–239, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554;  Jones v. Cunningham, supra, 371 U.S. 236 at pp. 239–240, 243, 83 S.Ct. 373, 375–377, 9 L.Ed.2d 285;  cf. In re Smiley, supra, 66 Cal.2d 606 at pp. 611–614, 58 Cal.Rptr. 579, 427 P.2d 179.)

This conclusion comports with the passages of our Constitution which guarantee the habeas corpus remedy but do not limit its availability.  (Cal.Const., Art. I, § 11;  id., Art. VI, § 10.)   The conclusion is also consistent with our habeas corpus statute, which makes the writ alternatively available to “[e]very person unlawfully imprisoned or restrained of his liberty” (emphasis added) and which includes open-ended language providing that no part of the statute is to be construed as “limiting the grounds” on which the writ may be obtained.  (Pen.Code, § 1473.) ¹  Finally, the conclusion is consistent with the historic purpose and versatility of the habeas corpus remedy itself.  (See Carafas v. LaVallee, supra, 391 U.S. 234 at p. 238, 88 S.Ct. 1556 at p. 1559, 20 L.Ed.2d 554;  Jones v. Cunningham, supra, 371 U.S. 236 at p. 243, 83 S.Ct. 374 at p. 377, 9 L.Ed.2d 285;  In re Smiley, supra, 66 Cal.2d 606 at p. 612, 58 Cal.Rptr. 579, 427 P.2d 179;  In re Jackson (1964) 61 Cal.2d 500, 503–505, 39 Cal.Rptr. 220, 393 P.2d 420;  In re Bell (1942) 19 Cal.2d 488, 492–495, 122 P.2d 22.)

I draw the same conclusion from the retroactive holding by the Pryor court that a “defendant” with a “final” conviction of violating Penal Code section 647, subdivision (a), would be “entitled to relief by writ of habeas corpus” if he were to make the showing that respondent has now made relative to the conduct for which he was convicted.  (See Pryor v. Municipal Court, supra, 25 Cal.3d 238 at p. 258, 158 Cal.Rptr. 330, 599 P.2d 636.)   Any such “defendant” was by definition a person whose conviction had been punished or punishable by a jail term of not more than six months, or by a fine of not more than $500, or by both, throughout the 18 years during which the statute had been in effect when Pryor was decided in 1979.²  This narrow range of punishment substantially restricted the length of post-conviction time in which any of them, as a result of his conviction, might have remained in “actual custody” (i. e., in jail) or in “constructive custody” as that term has commonly been understood for purposes of standing to obtain relief in habeas corpus.  (See, e. g., In re Marzec (1945) 25 Cal.2d 794, 797, 154 P.2d 873 [parolee has standing].)  Strict definition of either term would thus have the effect of limiting the Pryor court's retroactive holding to some of those “defendants” whose convictions had become “final” within a very few months before the Pryor decision was filed.

I cannot believe that the Pryor majority intended any such limitation.   If they had, they would have said so.   If they had, they would not—because they need not—have extended the retroactive reach of their substantive holding to those defendants whose convictions were “final” (as distinguished from those “pending on appeal”).   The dissent in Pryor reflects the author's view that the majority neither intended nor established such limitation.  (See Pryor v. Municipal Court, supra, 25 Cal.3d 238 at p. 259, 158 Cal.Rptr. 330, 599 P.2d 636 [con. and dis. opn. by Clark, J.].)

I also cannot believe that the entire Supreme Court overlooked the requirement that a petitioner in habeas corpus must have standing to exercise the remedy.   It is neither apparent nor likely that they intended to dispense with the requirement.   I conclude that they intended to make the remedy available to a “defendant” (1) whose “final” conviction of violating Penal Code section 647, subdivision (a), was vulnerable to challenge pursuant to their (the Pryor majority's) holding interpreting the statute and (2) who had standing to exercise the remedy because he was “restrained of his liberty” within the meaning imparted to that term by the context of Penal Code section 1473 (see fn. 1, ante) and recognized in previous decisions of the Supreme Court.   (See, e. g., In re Smiley, supra, 66 Cal.2d 606 at p. 612, 58 Cal.Rptr. 579, 427 P.2d 149 [quoting Jones v. Cunningham, supra, 371 U.S. 236 at p. 239, 83 S.Ct. 373 at p. 375, 9 L.Ed.2d 285].)  Respondent alleged and proved his standing according to this interpretation of it, the trial court found that he had it, and the court's finding is supported by substantial evidence.   In my opinion, the finding is conclusive in support of the relief granted.

Respondent has thus established on the authority of Pryor that he was convicted in 1968 of a crime that he did not commit.   He has also established that he is suffering severe consequences.   The holding that he is not entitled to relief ignores the plain meaning of Pryor, violates the substantial evidence rule, exalts form at the expense of substance, and amounts to a miscarriage of justice.   I would affirm the judgment.

FOOTNOTES

1.   The statute provides in pertinent part:“1473.  (a) Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.“(b) A writ of habeas corpus may be prosecuted for, but not limited to, the following reasons:  ․ [specifying two grounds relative to the use of false evidence] ․“․“(d) Nothing in this section shall be construed as limiting the grounds for a writ of habeas corpus may be prosecuted or as precluding the use of any other remedies.”  (Emphasis added.)The alternative distinction between “imprisonment” and “restraint” on “liberty” (or their respective equivalents) is emphasized by repetition throughout the entire chapter of the Penal Code dealing with habeas corpus.  (Id., pt. 2, tit. 12, ch. 1 [“Writ Of Habeas Corpus,” commencing with § 1473];  see id., § 1474, subd. 1;  §§ 1475, 1477, 1478;  § 1480, subds. 1, 2, and 4;  §§ 1481, 1482, 1485, 1493, 1497, 1500, 1501.)

2.   Section 647, subdivision (a), was added to the Penal Code in 1961.  (Stats.1961, ch. 560, § 2, p. 1672.)   Then and since, the statute has defined its violation as “a misdemeanor” (see Pen.Code, § 647, first par.) but has not prescribed the punishment for it.   The violation has accordingly been “punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding five hundred dollars, or by both.”  (Pen.Code, § 19.)  Pryor was decided on September 7, 1979.   (Pryor v. Municipal Court, supra, 25 Cal.3d at p. 238, 158 Cal.Rptr. 330, 599 P.2d 636.)

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., concurs.