lewd or dissolute act
How later courts described this case
- lewd or dissolute act
Written by the judges who cited it.
The opinion
CLARK, J., Concurring and Dissenting.
I concur only in discharging the alternative writ of prohibition and in denying the petition for peremptory writ, and specifically dissent from giving retroactive effect to the majority’s holding.
Retroactive application of the narrow construction of Penal Code section 647, subdivision (a), announced today provides a windfall to defendants validly convicted under the statute. The injustice of so applying today’s decision may be illustrated by the following example. Prior to the enactment of the Brown Act (Stats. 1975, chs. 71 and 877), one man solicits another, publicly, to commit sodomy, the act to be performed privately, and is convicted of violating section 647, subdivision (a). At that time the Legislature unquestionably intended such solicitation to be punishable under the statute. Then, as now, legislative prohibition of such conduct was constitutional. (See Doe v. Commonwealth’s Attorney for City of Richmond (1976) 425 U.S. 901 [ 47 L.Ed.2d 751 , 96 S.Ct. 1489 ], affirming 403 F.Supp. 1199 .) Nevertheless, the criminal would be entitled to “relief’ under today’s holding.
The majority create a remedy for which there is no wrong.