# Motion to Affirm — Wylan v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0785%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Affirm - **Published:** January 1, 1966 - **Citation:** 384 U.S. 266 ## Text ‘@ z 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 2 MMMOCION wn asennageencesenssesensesesnenenennseesinesatbescanenenensssoneaes . 2 IO esses. Sesssastenecndeans ec dtciain Te 8 \ 2 \ ’ / \ _ 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 _ ae . 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.” * | en 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