The opinion
THOMPSON, J.
I dissent. While appellant’s conduct could have been held to be a breach of the peace (People v. Cohen, 1 Cal.App.3d 94 [ 81 Cal.Rptr. 503 ]), it does not constitute a violation of Penal Code section 311.6, the statute which the juvenile court referee found to have been violated by appellant.
Penal Code section 311.6 states, “Every person who knowingly sings or speaks any obscene song, ballard, or other words, in any public place is guilty of a misdemeanor.” At the time of the offense here charged, Penal Code section 311 defined “obscene.” It stated, “As used in this chapter: (a) ‘Obscene’ means that to the average person, applying contemporary community standards, the predominate appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.”
While the words used by appellant were in their context profane and intentionally offensive, I find in them no appeal to prurient interest. They. would not, to the average person, appeal to a shameful or morbid interest *948 in sex, nudity, or excretion. (The Meaning of Obscene and the Problem of Scienter, 36 So.Cal. L. Rev. 513; Krueger, What’s All This---About Pornography (August 1965) L. A. Bar Bull., p. 505; Stegner, Goodby to All T.....- T, The Atlantic, March 1965, cited in Krueger, supra.) The term “f-----g pigs” in the context in which it was used referred not to copulation of porcine animals but was rather a highly insulting epithet directed to the police officers. The term “f.....g law” referred not to the law of sexual intercourse but a derogatory reference to the law in general. The average person would not have construed the phrase “f - - k them” uttered by appellant in reference to the police officers as an invitation to engage in sexual activities with them. Appellant’s use of the vulgarism describing the filial partner in an oedipal relationship is fairly to be viewed as an epithet rather than as a phrase appealing to a shameful or morbid interest in intra-family sex.
I thus conclude that the words uttered by appellant do not meet the California statutory definition of that which is obscene. The reliance of the majority opinion upon Goldberg v. Regents of the University of California, 248 Cal.App.2d 867 [ 57 Cal.Rptr. 463 ] as standing for a contrary position is misplaced. Goldberg deals not with a prosecution for obscene conduct or speech but with the definition of speech or conduct which properly justifies academic discipline, there a suspension from the university. Goldberg and People v. Cohen, 1 Cal.App.3d 94 [ 81 Cal.Rptr. 503 ] are authority for what might properly have occurred in the trial court—appellant might have been held to have been in violation of Penal Code section 415 by reason of his use of offensive language under the circumstances in which it was used. Goldberg is not authority for the proposition that the California statutory definition of obscenity and the United States Supreme Court cases on which it is based should be ignored.
There is a second reason impelling reversal of the juvenile court’s determination. Our Supreme Court has held that absent expert testimony that matter offends “contemporary community standards,” it cannot be held obscene. 1 (In re Giannini, 69 Cal.2d 563 [ 72 Cal.Rptr. 655 , 446 P.2d 535 ].) No expert testimony or other evidence bearing upon the obscene character of the words spoken was introduced at the hearing before the juvenile court referee. The requirement of Giannini is fatal to the order from which an appeal has been taken.
I cannot accept the attempt of the majority to distinguish In re Giannini, supra. The majority opinion states that the rule of Giannini, developed in a prosecution of performers of an allegedly obscene dance, is inapplicable to *949 pure speech if that speech is a “sex word” not uttered “in any context” which appeals to prurient interest in the judgment of the court. The approach of the majority is deficient in two respects. It ignores the proposition that the requirement of expert testimony imposed by Giannini is directed primarily toward the proof of community standards by which speech or conduct is to be judged and not toward proof of that which appeals to prurient interest in the abstract. (In re Giannini, supra, 69 Cal.2d 563, 574 .) It also pays no respect to the reason for the rule articulated by the Supreme Court. In imposing the requirement of expert testimony, the Court said: “ ‘There is no external measuring rod for obscenity. Neither, on the other hand, is its ascertainment a merely subjective reflection of the taste or moral outlook of individual jurors or individual judges .... Their interpretation ought not to depend solely on the necessarily limited, hit-or-miss, subjective view of what they [m'c] are believed to be by the individual juror or judge. It bears repetition that the determination of obscenity is for the juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of “contemporary community standards.” ’ ” (In re Giannini, 69 Cal.2d 563, 575 .)
The impediment to the prosecution of commercial peddlers of smut inherent in the rule of Giannini is regrettable. The need for the rule is, however, perhaps well illustrated by the majority opinion in the case at bench. There is, after all, a strong possibility that an expert witness called in the matter before us might have testified to the occasional use of the offending profane adjective in bar association quarters or in trial judges’ lounges—alas, all too often in reference to a decision of the Court of Appeal.
I would reverse the judgment.
A petition for a rehearing was denied March 25, 1970, and appellant’s petition for a hearing by the Supreme Court was denied April 22, 1970.
The rule of Giannini has been repealed by the addition of section 312.1 to the Penal Code in 1969. The statutory repeal occurred after the trial of. the case at bench.