Whitlow

Defendant, a licensed physician, was charged in an information with 22 violations of sections 11163 and 11164 of the Health and Safety Code. In October, 1950, defendant moved to reduce the offenses charged in Counts I, VII and XV to misdemeanors under section 11165 of the Health and Safety Code, as lesser included offenses. Upon the granting of this motion, defendant pleaded guilty to said misdemeanor offenses. No new or amended information was filed charging violation of section 11165 of the Health and Safety Code. The district attorney then moved to dismiss all other counts in the information, which motion was granted.

In December, 1951, following a substitution of counsel, defendant filed a notice of motion and petition to set aside the judgment and to declare void and a nullity defendant’s plea of guilty as to said Counts I, VII and XV on the grounds: (1) that said counts do not state a public offense because they do not charge that defendant did the acts complained of other than in the regular practice of his profession, and (2) that the offenses to which defendant pleaded guilty are not offenses necessarily included in section 11163 of the Health and Safety Code. In…