Motion to Affirm — Wylan v. California

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sal Se us ae Office-S e Ceurt, U.S.

(ory: | "FILED

APR'1 81966

IN THE

: Supreme Court of the United States —

October Term, 1965

No. 991

PETER WYLAN, :

: : Appellant,

US. : °

PEOPLE OF THE STATE OF CALIFORNIA,

7 Appellee.

Motion to Affirm With Argument and Points and

Authorities in Support Thereof.

Byron B. GENTRY,

Pasadena City Prosecutor,

* .$03 Hall of. Justice, ~.

Pasadena, California,

Attorney for Appellee.

Parker & Son, Inc., Law Printers, Los Angeles. Phone MA. 6-9171.

;

_ SUBJECT INDEX

: | Page

Argument and points and authorities in support of

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_ TABLE OF AUTHORITIES CITED

Cases | Page

_ Alberts v. California, 354 U:S. 476, 1 L. Ed’ 2d

PO Ae SA, COD, cnsisinsninsncsocenninennBarcinnant Sencha

Franklin Insurance: Co. v. State Board of Equaliza-

IS a i, Be scctnctcicsiensencenniccnsnss aspigsaibihieaimashosine

Gardner v. Vic Tanny Compton, Inc.. 182 Cal. App.

SEE TEE cuieahbeahiitonansrdabiiadaiieibidiincisnaandiclaesenttadnbieenic

FREER EERE ER EEE EEE EEE EERE EER EEE EE EEE EEE EEE EEE SEES EEE E REESE SEES Hee EEE EEE EMER ESE EES

People v. Hantpton, 236 A. tis SI ails leciatabnsiaaeitace

People v. Price, 46 2S TS eee

People v. Radaha, 69 N.Y.S. 2d 722 ....--cccccssesseecsooee”

People .v. Roberts, 40 Cal. 2d 483 .......... TEL AY PRET |

People v, Severino, 122 Cal. App. 24 172 ....---co-0

_ Roth v. U.S., 354° U.S. 476, 1 L. Ed 2d 1498, 77

I tt sibtcccliainininestintannd

United States v. Barner, 195 Fed. Supp. 103 ..........4,

Whitney v. California, 274 US. 357, 71 L. Ed. 1095

FEE EEE EEE EEE EEE EEE EEE EE EEE EEE EEE EEE EEE EEE DRE Eee ERE E EE EEE SESE SES EEE EE

376 Suduscecenccdcocececcoccoccecensqueegoesnaccaseeccncccese na ee tenn eeteneee eens

Zorn, i in re, 59 ne OA 4,

eee Statutes |

Califormia Penal Code, Sec. 314 ..0...,..--.....0s0000- sep

California Penal Code, Sec. 650% ..................-.- 3, 4.

United States Code Annotated, Title 18, Sec, 242 a

6

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IN THE

Supreme Court of the United States

/

October Term, 1965

No. 991

PETER WYLAN,

Appellant,

US.

PEOPLE OF THE STATE OF CALIFORNIA.

Appellee. -

MOTION TO AFFIRM.

(The Judgment of the Appellate Department of the .

‘Superior Court, in and for the County of Los Angeles,

State of California, sustaining the Judgment and Sen-

tence ‘of the Municipal Court in and for the Pasadena

Judicial District.)

e

a

—Z— .

ARGUMENT AND POINTS AND

, | AUTHORITIES IN-SUPPORT OF MOTION.

: I. |

The Appellate Department of the.Superior Court, In.

and for the County of Los Angeles, State of Californja, |

has ‘direct appellate jurisdiction over all Inferior-Courts ‘

within the county, of which the Municipal Courts in

both the Los Angeles and Pasadena Judicial Districts

are included, as are-all other Municipal Courts within

‘the county.

Thus the so-called “authority” cited by Counsel for

Appellant in his “Motion To Ask Leave of Court To

Supplement The Jurisdictional Statement” is no au-

thority at all, but merely the opinion of a trial judge in a

_ neighboring Inferior Court Judicial District. A trial

judge, incidentally, who stands in the same position as

‘the judge from whom. this, appeal was originally taken

.” to the Appellate Department of the Superior Court,

which. has direct appellate’ jurisdiction over . both of

them ; and which court had already ruled to the contra

on numerous occasions involving almost identical’ fact

‘situations and a Specific challenge to the same statute.

“It may indeed be true that these decisions: and their

opinions were not reported iri the official California Ap- -

pellate Reports. The decisions of the Appellate Depart-

ment of the Superior Court rarely are. However, this

does not make them any the less binding upon the

Municipal Courts within this county.

Such opinions’are nonetheless routinely reported in

the form of “Memorandum Opinions”, on loose-leaf,

“tnimeographed forms; and made available to all Munic>

ipal Court Departments within the County; the Law

Library; Prosecutors; City Attorneys; and ariy private

= ees 215 ~.*

ae |

Counsel suf ficiently interested in an Inferior Court prac-

tice to arrange for the service.

The Appellate Department of the Superior Court, in

and for:the County of Los Angeles, has in fact, as re-

cently as November 18, 1965, written a nineteen page

opinion - sustaining the constitutionality of the Penal

Code Section here under attack by appellant, to wit: Sec-

tion 650% of the Penal Code of the State of Cali-

fornia, on the identical points herein raiséd. by appellant.

That case is People v. Jeanne Davis, etc. Harlan Clay

Davis, CR A 6430 and CR A 6431.

In that opinion, the Appellate Department makes ‘the

‘following ‘specific statement:

“Our Appellate Department of the Los Angeles

Superior Court had before it the questions of

whether Penal Code Section 650% is vague and

whether it is unconstitutional. Our Appellate De- .

partment has upheld the section. We see no reason

to change. It is not vague or unconstitutional.

People v. Neary, (1964) CR A. 5678; People v.

Burt (1963) CR A (5264; People v. Sun Era

(1954) CR A 5818; People v. Smith (1963) CR A

5214; People ~. Rohauer (1959) CR A 3911. The

State has preempted-the field of law on ‘sexual ac-

tivity, and Penal Code Section 650% is.a portion

_of.the sexual activity statutes of the State, thus

approving from a practical standpoint its constitu-

» tionality, In re Lane (1962) 58 Cal: 2d. 99, 104;

., In re Moss (1962) 58 Cal. App. 2d. 117, 119. The

constitutionality is assumed, also, in People v. Proc-

tor (1956) 46 Cal. 2d. 481, 482, 483. These cases

also recognize that California’s scheme of justice

recognizes both sections 314, bcs 650% of the

Penal Code.” * |

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Far ea

II.

In the instant case it is our contention that a dental

office in a regular professional building in a populous

ai

- City is as much a “public place” as a barber shop, which

was specifically held to be a “public place” in this state

in the case of In re Zorn (1963), 59 Cal. 2d 650,

652. See also United States.v. Barner (1961), 195 Fed.

_ Supp. 103, 105.

We contend further that it is an offense against pub-

lic morals and an outrage to “‘public-decency” for a

dentist in such an establishment, licensed by the State

of California to practice a presumably respectable pro- —

‘. fession, to surreptitiously take the hand.of an unsus-

pecting woman patient as she sits in his dental chair, ©

pull it down and back where, she could .not see, and

place it upon his bare penis during the course of- his

professional practice as a dentist.

That he did not in fact “expose his private parts”

- to her shocked and outraged view, thus escaping the

more ,specific prohibition of Penal. Code Section 314,

should not make him any the less culpable under an

appropriate’ statute, in this instance Section 650% for

his indecent and reprehensible conduct against public

decency. | ;

“Statutes are to be construed, if their language

permits, so as to renderthem valid and constitu-

tional rather than invalid and unconstitutional. The

proper .construction to be given to a statute is to

be found by. construing it as a whole and harmoniz-

ing its various parts:” People v. Hampton es :

236 A. os A. 920 (syllabus).

a

The offenses charged in this case give sufficient

notice of the offenses with which Appellant was charged

in the trial court. People v. Roberts (1953), 40 Cal.

2d 483; People v. Price (1941), 46 Cal. App. 2d 59,

61; People v. Severino bcs 122 Cal. App. 2d 172,

179, 181.

III.

_ Penal Code Section 650% is a general law prohibi~

tion, ‘intended by the State Legislature to cover those

offenses against public decency and good ™rals which

have not been stated directly and prohibited by being

made specifically punishable in other sections of the

Penal Codes of California. 7

Legislatures cannot possibly receive evidence _on all

‘ possible variations of potential violations against de-

cency, the human mind and character being what it is,

‘yet they may nonetheless word a valid penal statute to

_ protect the public from the weird machinations of such

minds and character. The variation in human conduct

_ is such that:a general standard may be referred to pro-

vided that standard is a matter of ‘common thinking

and knowledge throughout the state: We are not dealing

here with a City Ordinance of some over-sensitive city.

Section 650% of the Penal Code of the State of Cali-

fornia is an enactment, ”y the lawmakers of the: entire

State.

The word “public” is defined in the dictionary and is

commonly accepted to mean “the general body of man-

‘kind or of a nation, state, or community.” Gardner v.

Vic Tanny Compton, Inc. (1960), 182 Cal. App. 2d

506, 510: In re Zorn (1963), 59 Gal. 2d 650, 652:

United States v. Barner (1961), 195 Fed. Supp. 103.

105.

«

Sr etn mem mete

j ! .

IV.

The United. States Supreme Court in —, this

same Appellate Department in Roth v. U.S. and At

berts v. California (1957), 354 U.S. 476, 1. L. Ed. 2d

(1498, 77 S. Ct. 1304, declared:

“Lack of precision in a criminal statute is not it-

‘self offensive to the requirements of due process;

the constitution does not require impossible stand-

ards, and all that is necessary is that the language

convey sufficient definite’ warning as to.the pro- -

scribed conduct when measured by common under- —

standing and practices.”

“Freedom of expression can be constitutionally

‘suppressed if, and to the extent that, it is so closely |

brigaded with illegal action as to be an inseparable

part of it.” (From separate opinions by Justices

Douglas and Black.)

- This last quotation obviously means conduct, and we

are concerned only with the ‘conduct of ‘Appellant in

the instant case.

i ls V.

In Williams v. United States (1951), 341 U.S. 97,

71 S. Ct. 376, the Court ‘upheld 18 U.S.C.A: (1952), .

Sec. 242, making it a crime for “any person, under

color of any law, to subject any inhabitant to the dep-

rivation of any rights, privileges, or immunities secured

or protected by the Constitution and laws of the United

_ States.” y

- We réspectfully submit that this is a clear-cut ex-

ample of a “catch-all statute”, and therefore precedent

for the constitutionality of such a statute ds the one

under attack here.

7

Pea

In Jordan v. De George (1950), 341 U.S. 223, 231,

232, the United States Supreme ‘Court in a moral ae

tude case said:

“We have several.times held that difficulty j in de-

termining whether certain marginal offenses are

within the meaning of the language under attack

as vague does not automatically render a statute

- unconstitutional for indefiniteness. United States

v. Wurzbach, 280 U.S. 396, 399 ; 74.L. Ed. 508,

510; 50 S. Ct. 167 (1930). Impossible staydards

of specificity are not required. United States v.

Petrillo, 332 U.S. 1; 91 L. Ed. 1877; 67 S, Ct.

* 1538 (1947). The test is whether the language ¢on-

veys sufficiently definite warning as to the pro- .

scribed conduct when measured by common under-

standing and practices. Connally v. General Constr.

Co. 269 U.S. 385; 70 L. Ed. 322; 46 S. Ct. 126

(1926).”

Again we respectfully submit that this test has been

satisfactorily met in the instant case.

2

. Vil.

The fundamental fallacy in the argument of Counsel

.° for Appellant i is that because application of a law under

posstble circumstances, or the facts of some po} sible Oc-

currence, might constitute a violation of one’s constitu-

tional rights that therefore the statute is unconstitu-

tional, and that the constitution was violated ‘in the’

instant case.

—8—_

In a recent decision the California Supreme Court in

the case of Franklin Insurance Co. v. State Board of

Equalization (1965), 63 A. C. 221, 226, held:

“The valid employment: of the’ statute in the

present situation does not fail because the statute

_ might be improperly involved in other. situations.

. It is elementary, of course, that a statute may

be invalid as applied to one set of facts, yet valid

as applied-to another. (Citing cases). The situa-

tions conjured up by respondent are not here in- .

volved, and respondent is limited in his attack to.

the application of the statute to the factual con-

tention now before the court.”

“VII.

Conclusion.

As we have previously smupeested, 5 we are not dealing

here with the somewhat intangible subject of pornog-

raphy. We are not dealing with. the far-reaching con-

stitutional right of free press or freedom of expression.

- We are instead dealing with conduct.

The sweeping charges of vagueness and unconstitu-

tionality made by appellant, because of lack of -particu-

larity, may indeed make consideration of their contents

unriecessary. In Whitney v. California (1927), 274

U.S. 357 at p. 369, 71 L. Ed. 1095, the court states

that one assailing a legislative classification as uncon-

stitutional has the burden of showing: that it does not

rest upon atry reasonable basis, but is essentially arbi- |

trary: | ea :

“A state may properly direct its legislation

against what it deems an existing evil without cov-

ering the whole field of 2 aid abuses.”

ee

Under the Federal constitution, the United States .

Supreme Court is assumed to be limited to a consid-

eration of the specific denials of federal rights. In

Nash v. U.S. (1913), 229 U.S. 373, 57 L. Ed. 1232,

-opinion by Mr. Justice Holmes, the court contemplates

.the matter of vagueness in a criminal * statute and

states (at p. 377 U.S.; p. 1235 L. Ed. Ss

. the law is full of instances where a man’s

fate depénds on his estimating rightly, that-is, as

the jury subsequently estimates it, some matter of .

degree. If his judgment is wrong, not only may he

incur.a fine or a short imprisonment, as here;

‘he may incur the penalty of death. . . . The crite-

rion in such cases is to examine whether common

social duty would, under the circumstances, have

. suggested a more circumspect conduct.” (Emphasis -

ours. ) .

If we may paraphrase the language of the court | in

People v. Radaha (1947), 69 N.Y.S. 2d ‘722, in‘ its defi-

_ nition of “public decency” on page 724:

Public decency as used in this statute connotes the

moral standard by which the people in the various com-

munities of the State abide. That standard does. not in-

clude the type of conduct practiced by the appellant

here. To come within the Statute that set standard

“need not be outraged’ by acts coming to the attention

‘of the majority of the people of the state, or even of

‘one community. It is outraged just as surely if the

°- acts come to the attention of only one person. who lives

and relies on that standard. The use of the term ‘ ‘public

decency” in this statute is in a subjective, rather than an

objective sense.

te gt <n en at

at ee

It is respectfully submitted that for the foregoing ~

reasons, the judgment and sentence of -the state courts

' should be affirmed. |

Byron B. GENTRY,

Pasadena City Prosecutor,

Attorney for Appellee.

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