Opinion

People v. Lohbauer

  • 29 Cal. 3d 364
  • 173 Cal. Rptr. 453
  • 627 P.2d 183
  • 1981 Cal. LEXIS 141
Court
California Supreme Court
Filed
May 4, 1981
Status
Published
Author
Bird
On the bench
Richardson, Bird
Cited by
120 cases
Authority
More cited than 4.8%

failure to unite all offenses arising from the same act or course of conduct, of which the prosecution is or should be aware bars subsequent prosecution of any omitted offense, if the initial proceedings culminate in either acquittal or conviction and sentence

How later courts described this case

  • failure to unite all offenses arising from the same act or course of conduct, of which the prosecution is or should be aware bars subsequent prosecution of any omitted offense, if the initial proceedings culminate in either acquittal or conviction and sentence
  • “The subdivisions of section 261 do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape.”

Written by the judges who cited it.

Distinguished

  • Distinguished by People v. Ortega, 240 Cal. App. 4th 956 (2015)

    Lohbauer, supra, 29 Cal.3d 364 is distinguishable.
    California Court of AppealSep 29, 2015Read it

The opinion

BIRD, C. J.

I concur in the judgment of the court and its opinion. However, I would overrule People v. Collins (1960) 54 Cal.2d 57 [ 4 Cal.Rptr. 158 , 351 P.2d 326 ]. The rationale of Collins , even when read narrowly (ante, at pp. 371-372), does not satisfy the due process requirement of adequate notice to an accused. (People v. West (1970) 3 Cal.3d 595, 612 [ 91 Cal.Rptr. 385 , 477 P.2d 409 ].)

The rationale articulated in Collins subordinates elementary principles of due process to the vagaries of statutory organization. Under that decision, a person charged with begging (Pen. Code, § 647, subd. (c)) *374 could be convicted of prostitution (Pen. Code, § 647, subd. (b)), on the theory that the various subdivisions of Penal Code section 647 do not state different offenses, but merely define the different circumstances in which one may commit the misdemeanor of disorderly conduct. 1

Since I am unwilling to reaffirm in even a limited fashion a legal rationale that makes fundamental due process rights dependent upon accidents of criminal law codification, I would overrule Collins .

Respondent’s petition for a rehearing was denied June 17, 1981.

Penal Code section 647 provides in pertinent part: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:

“(b) Who solicits or who engages in any act of prostitution. As used in this subdivision, ‘prostitution’ includes any lewd act between persons for money or other consideration.

“(c) Who accosts other persons in any public place or in any place open to the public for the purpose of begging or soliciting alms.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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