Fogelson

Petitioner and appellant Fogelson seeks a determination that section 1021.5 of the Code of Civil Procedure may, in a proper case, be used to pay the attorney’s fees incurred by a defendant in a criminal action. The People, as the real party in interest, contend that petitioner chose the wrong remedy to test the correctness of his legal submission with which, in any event, they do not agree.

Facts

In 1974 petitioner was named as the defendant in two criminal complaints containing a total of three counts which were eventually consolidated for trial. He prevailed on two counts which are not material to this proceeding, but was convicted on a third count which charged a violation of section 42.14.1 of the Los Angeles Municipal Code relating to solicitation on city property. The conviction was reversed by the appellate department of the superior court, but another division of this court transferred the case to itself under rule 62(a) and eventually affirmed. The Supreme Court granted a hearing and reversed in a decision filed April 26, 1978—People v. Fogelson (1978) 21 Cal.3d 158 [ 145 Cal.Rptr. 542 , 577 P.2d 677 ].

The municipal court dismissed the criminal proceeding on…