Petition — Marler v. California

Supreme Court, U, &

~aEILEQ. aii

AUG 8 977

IN THE |.

SUPREME COUR iact rooak, se, curr |

OF THE UNITED STATES

October Term, 197 "4

7 i 2116

No.

ROBERT CLIFTON MARLER,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE DEPARTMENT

OF THE SUPERIOR COURT OF

THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO

ROGER JON DIAMOND

15415 Sunset Boulevard

Pacific Palisades, California 90272

(213) 454-1351

Attorney for Petitioner

IN ‘THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1977

No.

ROBERT CLIFTON MARLER,

Petitioner,

vs.

STATE OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE APPELLATE DEPARTMENT

OF THE SUPERIOR COURT OF

THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO

ROGER JON DIAMOND

15415 Sunset Boulevard

Pacific Palisades, California 90272

(213) 454-1351

Attorney for Petitioner

TOPICAL INDEX

Table of Authorities

PROCEEDINGS BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

A. The Judgment Below Violates

Petitioner's Rights Under the

Free Speech Provisions of the

First and Fourteenth Amend-

ments and the Due Process

Clause of the Fourteenth

Amendment

1. Free Speech

a. Issue No. 14 of Finger

b. Scienter

i.

. 2 "

B. The Judgment Below Raises an

Important Constitutional Issue

Which Should Be Determined

Due Process

a. Lack of Evidence

b. Unfair Trial

By This Court

CONCLUSION

APPENDIX A

APPENDIX B

ii.

10

10

10

11

13

TABLE OF AUTHORITIES

Cases

Estes v. Texas,

381 U.S. 532, 14 L. Ed. 2d 542,

85 S.Ct. 1628, reh. den.

382 U.S. 875, 15 L. Ed. 2d 118,

86 S.Ct. 18 (1965)

In re Murchison,

349 U.S. 133, 99 L. Ed. 942,

75 S.Ct. 623 (1955)

Jenkins v. Georgia,

418 U.S. 153, 41 L. Ed. 2d 642,

94 S.Ct. 2750 (1974)

Kuhns v. California,

419 U.S. 1066, 42 L. Ed. 2d 662,

95 S.Ct. 651 (1974)

Mayberry v. Pennsylvania,

400 U.S. 455, 27 L. Ed.2d 532,

91 S.Ct. 499 (1971)

Miller v. California,

413 U.S. 15, 37 L. Ed. 2d 419,

93 S.Ct. 2607 (1973)

Mishkin v. New York,

383 U.S. 502, 16 L. Ed. 2d 56,

86 S.Ct. 958, reh. den.

384 U.S. 934, 16 L. Ed. 2d 535,

Page

10

10

10

86 S.Ct. 1440 (1966) 3, 11, 12, 13

iii.

Schmerber v. California,

384 U.S. 757, 16 L. Ed. 2d 908,

86 S.Ct. 1826 (1966) 3

Smith v. California,

361 U.S. 147, 4 L. Ed. 2d 205,

80 S.Ct. 215 (1959), reh. den.

361 U.S. 950, 4 L. Ed. 2d 383,

80 S.Ct. 399 (1960) 3, 9, 11, 13

Thompson v. Louisville,

362 U.S. 199, 4 L. Ed. 2d 654,

80 S.Ct. 624 (1960) 4,10

Tumey v. Ohio,

273 U.S. 510, 71 L.Ed. 749,

47 S.Ct. 437 (1927) 10

Constitutions

California Constitution;

Article VI, §11 3

United States Constitution:

First Amendment a. Ge Va e

9, 13

Fourteenth Amendment 3. G@ tee

9, 10

Rule

California Rules of Court,

Rules 62 and 63 3

iv.

Statutes

California Penal Code:

Section 311.2

Section 311. 2(a)

Section 1471

28 U.S.C. §1257(3)

IN THE PROCEEDINGS BELOW

SUPREME COURT

OF THE UNITED STATES 4

October Term, 1977 No written or oral opinions were rendered

No. in this matter. A misdemeanor complaint was

filed on behalf of respondent by the City Attorney

of San Diego alleging that petitioner violated

ROBERT CLIFTON MARLER, Penal Code Section 311.2 on February 24, 1976.

On September 1, 1976, petitioner was found guilty

Petitioner, by ajury. The judgment of conviction was entered

V8. on December 13, 1976 by Judge Carlos A. Cazares

of the Municipal Court of the San Diego Judicial

STATE OF CALIFORNIA, District. No opinion was rendered by him.

Respondent. . Petitioner appealed his conviction to the

Appellate Department of the Superior Court of

the State of California for the County of San Diego,

: which affirmed the conviction without opinion on

PETITION FOR WRIT OF CERTIORARI May 18, 1977. A copy of the two word Order

TO THE APPELLATE DEPARTMENT ("Judgment affirmed") is reprinted in Appendix A

OF THE SUPERIOR COURT OF to this Petition. Petitioner's petition for rehearing

THE STATE OF CALIFORNIA and applications for certification to the California

FOR THE COUNTY OF SAN DIEGO Court of Appeal, Fourth Appellate District, Division

One and for publication of opinion were denied on

June 14, 1977. A copy of the June 14th Order is

reprinted in Appendix B to this Petition.

Petitioner, ROBERT CLIFTON MARLER,

prays that a Writ of Certiorari issue to review

the judgment of the Appellate Department of the JURISDICTION

Superior Court of the State of California for the

County of San Diego which affirmed without opinion

the judgment of the Municipal Court of the San The date of the judgment sought to be reviewed

Diego Judicial District convicting petitioner of : is May 18, 1977. This Court has jurisdiction

violating California Penal Code Section 311.2 under 28 U.S.C. §1257(3). The Appellate Depart-

(sale of obscene matter). ment of the Superior Court of the State of California

for the County of San Diego is the highest state

. 2.

court to which a misdemeanor appeal can be taken,

California Constitution, Article VI, §11; California

Penal Code §1471; California Rules of Court,

Rules 62 and 63, unless certification is granted; it

was denied herein. See Miller v. California,

413 U.S. 15, 37 L. Ed. 2d 419, 93 S.Ct. 2607 (1973);

Kuhns v. California, 419 U.S. 1066, 42 L. Ed.2d

662, 95 S.Ct. 651 (1974); Schmerber v. California,

384 U.S. 757, 759 n. 3, 16 L. Ed. 2d 908, 86 S.Ct.

1826 (1966).

QUESTIONS PRESENTED

1. Whether issue number 14 of the news-

magazine, Finger is protected by the First and

Fourteenth Amendments to the United States

Constitution;

2. Whether petitioner's conviction for

violating California Penal Code $311.2 is incon-

sistent with the scienter requirement of Smith v.

California, 361 U.S. 147, 4 L.Ed.2d 205, 80 S.Ct.

215 (1959), reh. den. 361 U.S. 950, 4 L. Ed. 2d

383, 80 S.Ct. 399 (1960) and Mishkin v. New York,

383 U.S. 502, 16 L. Ed.2d 56, 86 S.Ct. 958,

reh. den. 384 U.S. 934, 16 L. Ed.2d 535, 86 S.

Ct. 1440 (1966) and therefore violative of the

First and Fourteenth Amendments to the United

States Constitution;

3. Whether petitioner's conviction for

violating California Penal Code $311.2 is unconsti-

tutional under the due process clause of the

Fourteenth Amendment because there was no

3.

evidence of scienter, a critical element in an

obscenity prosecution. Thompson v. Louisville,

362 U.S. 199, 4 L. Ed.2d 654, 80 S.Ct. 624 (1960);

4. Whether petitioner's due process right

to a fair trial and an impartial judge was violated

by the judge's statement to the jury that most

people disapprove of the type of magazine on trial.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the First and Fourteenth

Amendments to the United States Constitution and

California Penal Code Section 311. 2(a).

First Amendment:

"Congress shall make no law...

abridging the freedom of speech, or

of the press; or the right of the people

peaceably to assemble, and to petition

the Government for a redress of grievances. "

Fourth Amendment:

"Section 1 .. . No state shall

make or enforce any law which shall

abridge the privileges or immunities

of citizens of the United States; nor

shall any state deprive any person of

life, liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal protection

4.

of the laws... ."

California Penal Code Section 311. 2(a)

provides, in pertinent part, as follows:

"Every person who knowingly

sends or causes to be sent, or brings

or causes to be brought, into this state

for sale or distribution, or in this state

possesses, prepares, publishes, or

prints, with intent to distribute or to

exhibit to others, or who offers to dis-

tribute, distributes, or exhibits to others,

any obscene matter is guilty of a mis-

demeanor."

STATEMENT OF THE CASE

Petitioner is the owner and licensee of

a licensee to operate a book store in San Diego,

California. He resided in Fullerton, California.

San Diego police officer Howard Goldy purchased

a news-magazine, Finger" (issue number 14),

from a clerk, Donna Ingalls, at the bookstore

on February 24, 1976. The bookstore had a

variety of books, magazines, and newspapers

available for purchase: e.g., the New York

Times, TV Guide, Jaws, All the President's Men,

and so-called "adult material’ of the kind available

in adult bookstores. The bookstore was very

large and had numerous books, magazines, and

newspapers available.

The store was operated by James Chapman,

who managed the premises since January 1976.

He had only seen petitioner in the store three or

four times between January 1976 and the time of

the trial (August 31, 1976). Chapman did not

order the materials sold at the store and no other

employee did either, to his knowledge.

Officer Goldy, clerk Ingalls, and manager

Chapman all testified for the prosecution. Peti-

tioner did not testify and called no witnesses.

During jury selection, the trial judge made

the following statement to a prospective juror

which was heard by all the prospective jurors:

", . « [DJon't feel badly because you

happen to disapprove of this type of

magazine.

"I think that, by and large,

most people do. Idon't know most

people --'"'

Petitioner's counsel interrupted the judge

at this point and, outside the presence of the

prospective jurors, moved for a mistrial and

moved for an order discharging all the jurors

(those tentatively seated in the box and those in

the audience) who heard the statement, but the

motions were denied. The prospective jurors

who heard the statement eventually became the

trial jurors (petitioner did not have enough

peremptory challenges to eliminate them).

Petitioner accepted the jury under protest.

The jury found petitioner guilty of violating

Penal Code Section 311.2(a). The jury was

instructed with respect to the word "knowingly"

in Penal Code Section 311. 2(a):

''Knowingly' means being aware of the

contents of the matter. It does not

mean knowledge that the matter was

legally obscene. "

In the trial court petitioner argued there

was no evidence of ''scienter" and that "Finger"

was not obscene. The "'scienter' argument was

made in a pretrial motion to dismiss, in a motion

for a directed verdict after the prosecution rested,

in argument to the jury, and in a motion for new

trial.

Petitioner appealed his conviction to the

Appellate Department of the Superior Court,

where he made a number of arguments, including

the ones set forth in this petition (except he did

not specifically argue "Finger, No. 14'' was

protected by the First and Fourteenth Amendments).

The Appellate Department affirmed without

opinion.

REASONS FOR GRANTING THE WRIT

A. The Judgment Below Violates

Petitioner's Rights Under the

Free Speech Provisions of the

First and Fourteenth Amend-

ments and the Due Process

Clause of the Fourteenth

Amendment

1. Free Speech

a. Issue No. 14 of Finger

The news-magazine which is the basis for

the conviction is protected by the First and

Fourteenth Amendments to the United States

Constitution. This Court has a duty under the

Constitution to examine the alleged obscene matter

and to make an independent determination as to

its "obscenity. '' See Jenkins v. Georgia, 418

U.S. 153, 41 L. Ed. 2d 642, 94 S.Ct. 2750 (1974).

While petitioner did not specifically contend in

his briefs filed with the Appellate Department

that the news-magazine was protected by the

constitution, it is clear the Appellate Department,

aware of its duty to examine materials in obscenity

cases to determine independently whether they

are constitutionally protected, considered the

news-magazine. It was delivered to the Appellate

Department by the municipal court on January 4,

1977 as part of the record on appeal; the Appellate

8.

Department necessarily considered the question

when it examined the news-magazine. It neces-

sarily concluded that no free speech interest was

infringed when it summarily affirmed the conviction.

See Jenkins v. Georgia, supra, 418 U.S. at 157,

41 L. Ed. 2d at 648.

b. Scienter

Petitioner's conviction for sale of an obscene

news-magazine, without evidence of scienter,

violates the free speech provisions of the First

and Fourteenth Amendments. In invalidating an

ordinance which imposed absolute criminal

liability for the sale of obscene matter without

regard for the seller's knowledge, the Court in

Smith v. California, 361 U.S. 147, 153, 4 L. Ed.

2d 205,211, 80 S.Ct. 215 (1959), reh. den. 361

U.S. 950, 4 L. Ed. 2d 383, 80 S.Ct. 390 (1960)

stated,

"By dispensing with any require-

ment of knowledge of the contents of the

book on the part of the seller, the

ordinance tends to impose a severe limita-

tion on the public's access to constitutionally

protected matter. For if the bookseller

is criminally liable without knowledge

of the contents, and the ordinance fulfills

its purpose, he will tend to restrict the

books he sells to those he has inspected;

and thus the State will have imposed

a restriction upon the distribution of

constitutionally protected as well as

9.

obscene literature. "'

2. Due Process

a. Lack of Evidence

Insofar as an element of the crime is

"scienter,'' the conviction violates the due process

clause of the Fourteenth Amendment. Thompson

v. Louisville, 362 U.S. 199, 4 L. Ed. 2d 654, 80

S.Ct. 624 (1960)(violation of due process to convict

without evidence of guilt).

b. Unfair Trial

Petitioner was deprived of a fair trial because

the trial judge made a disparaging remark about

the news-magazine, " Finger'' (No. 14) in the

presence of the jury. It is elementary that a trial

judge must be fair and impartial. Tumey v. Ohio,

273 U.S. 510, 71 L.Ed. 749, 47 S.Ct. 437 (1927);

In re Murchison, 349 U.S. 133, 99 L.Ed. 942,

75 S.Ct. 623 (1955); Mayberry v. Pennsylvania,

400 U.S. 455, 27 L. Ed. 2d 532, 91 S.Ct. 499

(1971). The remark contaminated the jury, which

heard it the same day the trial concluded (the

presentation of evidence took less than one day) and

only one day before the verdict was rendered. If

pre-trial publicity can prejudice a jury, see e.g.,

Estes v. Texas, 381 U.S. 532, 14 L, Ed. 2d 543,

85 S.Ct. 1628, reh. den. 382 U.S. 875, 15 L. Ed.2d

10.

118, 86 S.Ct. 18 (1965) and cases cited therein, 1440 (1966), this Court last considered proof of

a fortiori a statement maligning the very news- scienter in an obscenity case. Justice Brennan,

magazine on trial at the commencement of the . expressing the views of five members of the Court

trial by the trial judge certainly may be considered in affirming the conviction, stated,

prejudicial.

."Appellant's principal argument is that

The error could have been easily corrected

at the time but, unfortunately, the trial judge

decided to move ahead. The comment was

devastating because it went to the heart of the case,

the obscenity of the subject matter.

B. The Judgment Below Raises an

Important Constitutional Issue

Which Should Be Determined

there was insufficient proof of scienter.

This argument is without merit. The

evidence of scienter in this record

consists, inpart, of appellant's instruc-

tions to his artists and writers; his

efforts to disguise his role in the enter-

prise that published and sold the books;

the transparency of the character of the

material in question, highlighted by the

titles, covers, and illustrations; the

By This Court massive number of obscene books appel-

lant published, hired others to prepare,

and possessed for sale: the repetitive

This Court has never formulated a test to quality of the sequences and formats

determine the existence of scienter in obscenity of the books; and the exorbitant prices

cases. In Smith v. California, supra, the land- marked on the books. This evidence

mark scienter case, this Court recognized that amply shows that appellant was 'aware

proof of scienter was constitutionally required in of the character of the material' and

obscenity cases. However, the Court expressly that his activity was 'not innocent but

declined to," calculated purveyance of filth. '"'

383 U.S. at 511-512, 16 L. Ed. 2d

"pass. . . on what sort of mental element at 63-64.

is requisite to a constitutionally permis-

sible prosecution of a bookseller for

carrying an obscene book in stock... .

361 U.S. at 154, 4 L. Ed.2d at 212.

In contrast, there was no evidence in the

instant case establishing petitioner's awareness

of the character of the material. Essentially,

. petitioner was an absentee owner. He was not

Over eleven years ago, in Mishkin v. New present on the day of the sale, and there was no

York, 383 U.S. 502, 16 L. Ed. 2d 56, 86 S.Ct. 958, evidence that issue number 14 of ''Finger" was at

reh. den. 384 U.S. 934,16 L. Ed. 2d 535, 86 S.Ct. ; the location when petitioner was last there. In

11. 12.

short, there was no evidence petitioner ever saw

the news-magazine which formed the basis of the

conviction.

Petitioner was convicted simply becuuse he

owned the store where the news-magazine was sold.

Yet, Smith v. California teaches us that this kind —

of absolute liability may not be tolerated so long as

the First Amendment is a part of our constitution.

Review by this Court is necessary so that the

scienter formulation of Smith can be explained.

Smith did not develop a test, and Mishkin involved

a case where scienter had been established. This

Court shou'd grant certiorari in order to develop

a test for determining scienter. Otherwise,

bookstore owners such as petitioner will be forced

to limit the number of books and magazines sold,

which is precisely what Smith wanted to avoid.

At a minimum, by deciding that the facts of this

case do not establish scienter, this Court will

have given some guidance in that in the future

conduct will be able to be measured against the

facts of Mishkin and the facts of the instant case,

thereby affording some measure of predictability.

CONCLUSION

For the foregoing reasons, this petition for

Writ of Certiorari should be granted.

Respectfully submitted,

ROGER JON DIAMOND

Attorney for Petitioner

13.

APPENDIX A

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN DIEGO

APPELLATE DEPARTMENT

FILED __May 18 1977

THE PEOPLE OF THE STATE OF

)

CALIFORNIA, ) SUPERIOR

) COURT NO.

Plaintiff and ) CR 39457

Respondent, )

v. ) MUNICIPAL

) COURT NO.

ROBERT CLIFTON MARLER, ) M 203274

) (San Diego

Defendant and ) Judicial

Appellant. ) District)

)

ORDER

Judgment affirmed.

BY THE COURT

/s/ Conyers P. J.

/s/ Focht J.

/s/ Welsh J.

APPENDIX B

FILED

Robert D. Zumwalt, Clerk

JUN 14 1977

By

Deputy

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN DIEGO

APPELLATE DEPARTMENT

FILED JUN 14 1977

THE PEOPLE OF THE

STATE OF CALIFORNIA, SUPERIOR COURT

NO. CR 39457

Plaintiff and

Respondent, MUNICIPAL COURT

NO. M 203274

(San Diego Judicial

District)

v.

ROBERT CLIFTON MARLER,

Defendant and

Appellant.

ed

Petition for rehearing is denied.

Application for certification to the Court of

Appeal, Fourth Appellate District, Division One,

is denied.

Application for order directing publication

of opinion is denied.

BY THE COURT: /s/ Conyers P.J.

/s/ Focht 3.

/s/ Welsh J.