Crayton

By petition for writ of prohibition a felony defendant seeks to compel the trial court to dismiss a felony complaint on the ground that he has entered a plea of nolo contendere to and been sentenced upon a misdemeanor offense that arose out of the identical underlying criminal conduct now being prosecuted as a felony.

The issue presented is whether a defendant, who has in no way manipulated prosecutorial procedures nor judicial proceedings to conceal the fact of dual prosecution, perpetrates a fraud upon the court by entering a guilty plea to misdemeanor charges without informing the court of the pending felony prosecution.

The critical question to be resolved is whether a defendant has an affirmative duty to volunteer the fact of dual prosecution to the court before entering a plea. The parties concede that this question has not been determined by any reported case.

The facts are simple and not in dispute.

On July 9, 1984, defendant was arrested and has since remained in custody.

A misdemeanor complaint was filed against defendant on July 12 charging violations of Penal Code sections 524 (attempted extortion) and 496 (receiving stolen property). Defendant,…