Pryor

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.

Defendant Don Piyor seeks prohibition to bar his trial on a charge of violating Penal Code section 647, subdivision (a). This section declares that a person is guilty of disorderly conduct, a misdemeanor, “Who solicits anyone to engage in or who engages in lewd or *244 dissolute conduct in any public place or in any place open to the public or exposed to public view.” (Italics added.) We agree with defendant that the phrase “lewd or dissolute conduct” as construed by past decisions is unconstitutionally vague. If, however, we can reasonably construe the statute to conform with the mandate of specificity, we should not, and will not declare the enactment unconstitutional. Consequently, rejecting prior interpretations of this statute, we adopt a limited and specific construction consistent with the present function of section 647, subdivision (a), in the California penal statutes; we construe that section to prohibit only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves the touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense,…