Lampasona

This is an appeal by the People (Pen. Code, § 1466, subd. 1(a)) from an order dismissing the action pursuant to Penal Code section 1385. The matter, which was transferred to this court from the Appellate Department of the Los Angeles Superior Court pursuant to rule 62(a) of the California Rules of Court, is before us on an “Agreed Settled Statement on Appeal.”

The pertinent facts contained therein are these: defendant was charged with violating subdivision (a) of section 653m of the Penal Code. He pleaded not guilty. At a pretrial conference, counsel for both parties stipulated: “That if the case was tried the evidence would substantially prove that the defendant called the complaining witness on the telephone. The complaining witness was not in his office and the defendant left a message for the complaining witness to return his call. The complaining witness returned the defendant’s call at which time the defendant used language which would constitute a violation of Section 653(m) [sic] of the Penal Code.”

The trial court held, as a matter of law, that defendant did not fall within the purview of the statute because the complaining witness was the one who placed the…

Defendant was charged in a complaint dated September 7, 1976, with a violation of Penal Code section 653m in that he did on or about August 26, 1976, “wilfully and unlawfully with intent to annoy, telephone Richard P. Rodman ... and address to such person a threat to inflict injury to his person... .”

At the pretrial conference in municipal court it was stipulated that “if the case was tried the evidence would substantially prove that the defendant called the complaining witness on the telephone. The complaining witness was not in his office and the defendant left a message for the complaining witness to return his call. The complaining witness returned the defendant’s call at which time the defendant used language which would constitute a violation of Section 653 (m) of the Penal Code.”

The trial court dismissed the complaint on the ground that although defendant had called the victim and requested that he call defendant, defendant did not personally place the call in which the prohibited language was used.

*889 The interpretation placed upon Penal Code section 653m by the trial court and the majority of this court does not appear to me to be “patently correct” as overstated…

This is an appeal by the People (Pen. Code, § 1466, subd. 1(a)) from an order dismissing the action pursuant to Penal Code section 1385. The matter, which was transferred to this court from the Appellate Department of the Los Angeles Superior Court pursuant to rule 62(a) of the California Rules of Court, is before us on an "Agreed Settled Statement on Appeal."

The pertinent facts contained therein are these: defendant was charged with violating subdivision (a) of section 653m of the Penal Code. He pleaded not guilty. At a pretrial conference, counsel for both parties stipulated: "That if the case was tried the evidence would substantially prove that the defendant called the complaining witness on the telephone. The complaining witness was not in his office and the defendant left a message for the complaining witness to return his call. The complaining witness returned the defendant's call at which time the defendant used language which would constitute a violation of Section 653(m) [ sic ] of the Penal Code."

(1a) The trial court held, as a matter of law, that defendant did not fall within the purview of the statute because the complaining witness was the…