Opposition — Marler v. California

_—_

‘oa Supreme Court, U. S, a

FILED

Hoy 4 i977

IN THE

Supreme Court of the Anite

DAK, JR., CLERK

OCTOBER TERM, 1977

No. 77-211

ROBERT CLIFTON MARLER,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

OPPOSITION OF RESPONDENT TO PETITION

FOR WRIT OF CERTIORARI

*

JOHN W WITT, City Attorney

STUART H. SWETT, Chief Criminal Deputy

JANIS SAMMARTINO GARDNER, Deputy

R. WILLIAM FERRANTE, Deputy

City Administration Building

202 “C” Street

San Diego, California 92101

Telephone: (714) 236-6220

Attorneys for Respondent

INTERIM PRINTING & MAILING COMPANY

1105 WEST MORENA BOULEVARD, SAN DIEGO, CALIFORNIA 92110 — 275-3050

TOPICAL INDEX

PROCEEDINGS BELONNVVMVWWwd .

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QUESTIONS PRESENTED ....................

STATEMENT OF THE CASE ..................

REASONS WHY THE WRIT OF

CERTIORARI SHOULD BE DENIED ..........

.es tes eee eee

I. PETITIONER IS PRECLUDED FROM

RAISING THE ISSUE OF CONSTITU-

TIONAL PROTECTION ..............

II. FINGER IS UNPROTECTED BY THE

FIRST AND FOURTEENTH AMEND-

MENTS TO THE UNITED STATES

CONSTrrUrIobWUUWU0UWUWO

III. CALIFORNIA PENAL CODE SECTION

311.2(a) IS CONSISTENT WITH THE

SCIENTER REQUIREMENT OF

SMITH V. CALIFORNIA AND

MISHKIN V. NEW YORK ............

IV. PETITIONER’S CONVICTION WAS

BASED ON EVIDENCE CONSISTENT

WITH THE SCIENTER REQUIRE-

MENT OF SMITH V. CALIFORNIA

AND MISHKIN V. NEW TORK

V. PETITIONER’S CONVICTION IS NOT

UNCONSTITUTIONAL FOR LACK OF

EVIDENCE OF SCIENTER ..........

VI. PETITIONER WAS NOT DENIED DUE

PROCESS OF THE LAW BY REASON

OF THE JUDGE’S COMMENT .......

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TABLE OF AUTHORITIES

CASES

California v. Taylor,

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Hamling v. United States,

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Jenkins v. Georgia,

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Kois v. Wisconsin,

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Lawn v. United States,

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Miller v. California,

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Mishkin v. New York,

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People v. Andrews,

23 Cal.App.3d Supp. 1 (1972) .................

People v. Flores,

17 Cal.App.3d 579 (197i177⸗

People v. Friend,

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People v. Kuhns,

61 Cal. App. 3d 735 (19760)0))))))):

People v. Ottey,

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People v. Pinkus,

256 Cal. App. 2d Supp. 941 (1967) .............

Roth v. United States,

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Smith v. California,

Aenne .

Page

6.8.10

9,10,11

10

13

13

10

13

10

7

9,10,11

.

TABLE OF AUTHORITIES

CODES

California Penal Code:

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28 U.S.C.:

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CONSTITUTIONS

California Constitution:

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United States Constitution:

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Fourteenth Amendmenntʒd

Page

13

5, 6,8

5,6,8,12

IN THE

Supreme Court of the United States

7 OCTOBER TERM, 1977

, No. 77-211

ROBERT CLIFTON MARLER,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

OPPOSITION OF RESPONDENT TO PETITION

FOR WRIT OF CERTIORARI

PROCEEDINGS BELOW

A misdemeanor complaint was filed on behalf of respondent

by the City Attorney of San Diego charging petitioner with a

violation of California Penal Code section 311.2(a) on

| February 24, 1976. A jury returned a verdict of guilty on

| September 1, 1976. Judgment of conviction was entered on

} December 13, 1976, by Judge Carlos A. Cazares of the

Municipal Court of San Diego Judicial District.

The Appellate Department of the Superior Court of the State

of California for the County of San Diego affirmed the jury’s

verdict.

2

Petitioner’s requests for a rehearing and an appucation for

certification to the California Court of Appeal, Fourth

Appellate District, Division One were denied on June 14, 1977.

JURISDICTION

Petitioner invokes the jurisdiction of this Court pursuant to

Title 28, United States Code section 1257(3).

QUESTIONS PRESENTED

I. Is petitioner precluded from raising the issue of

constitutional protection?

II. Is Issue Number 14 of Finger protected by the First

and Fourteenth Amendments to the United States

Constitution?

III. Is California Penal Code section 311.2(a) consistent

with the scienter requirement of Smith v. California and

Mishkin v. New York?

IV. Is petitioner’s conviction based on evidence consistent

with the scienter requirement of Smith v. California and

Mishkin v. New York?

V. Is petitioner’s conviction unconstitutional for lack

of evidence of scienter?

VI. Was petitioner denied due process of the law by reason

of the judge’s comment?

8.

STATEMENT OF THE CASE

On August 30, 1975, petitioner's jury trial commenced.

During voir dire examination by petitioner’s counsel, the

judge made the following comment in response to a juror’s

reluctance to serve due to her negative feelings about the

material in question:

We have to select a group of a cross section of

society. Everybody is entitled to be

represented. The People are entitled to a fair

trial and so are the defendants, so don’t feel

badly if you have opinions and express those

opinions because we want to make sure you

can ignore your personal feelings and your

personal experiences and opinions and decide

this case solely on the evidence here and the

law as stated to you by the Court.

So don’t feel badly because you happen to

disapprove of this type of magazine.

I think that, by ard large, most people do. I

don’t know. I don’t know most people -

The People’s evidence was presented through the testimony

of San Diego Police Officer Howard Goldly, the defendant’s

store clerk Donna Ingalls, and the defendant’s store manager

James Chapman.

The evidence indicated that in 1975, petitioner came to San

Diego to open adult bookstores. Petitioner met with Officer

Goldy and indicated that he, petitioner, would move to San

Diego or come to San Diego on a weekly basis in order to run

his business personally. Additionally, petitioner disclosed

that he would have the sole financial interest in the business.

x

After his discussion with Officer Goldy, petitioner applied

for and received a city business license. The license identified

petitioner as the sole owner and operator of an adult bookstore

located at 4281 University Avenue, San Diego.

On February 24, 1976, Officer Goldy went to petitioner’s

store at the above address. Signs in front of the store read:

“World’s Largest Book Shop,” “Adult Section,” “Adult

Books,” and “Movies.” Inside, the store was divided into two

sections. The larger portion of the store’s interior was

designated as the adult section. A. sign was posted at the front

of this section which stated: “No one under the age of 18

allowed.” The magazines in this section were in plain view

and displayed on shelves. The covers of many of the

magazines were in color and depicted various sexual acts such

as oral copulation and intercourse in graphic detail.

Issue No. 14 of Finger (hereinafter referred to as Finger)

was on a shelf in plain view. The magazine contains

numerous pictures and drawings depicting males and females

in various sexual acts including group sex, defacation,

masturbation, urination, urination into the mouth of another,

insertion of hands and feet into the anus of another,

intercourse with a chicken, bondage, necrophelia, and

homosexual acts including oral copulation and anal

intercourse. Officer Goldy purchased this magazine from the

store clerk.

Mr. James Chapman was the clerk-manager at the store. He

saw petitioner in the store at least three or four times during

the course of his employment. Chapman’s responsibilities at

the store did not involve the ordering of any materials for the

-

store. Chapman also testified that petitioner signed the

payroll checks.

The petitioner presented no evidence in his own behalf.

The Judge’s instruction to the jury included the following:

I have not intended by anything that I have

said or done, or by any questions that I may

have asked, to intimate or suggest what you

should find to be the facts on any questions

that were submitted to you or that I believed or

disbelieved any witness.

If anything I have done or said has seemed

to so indicate, you will disregard it and form

your own opinion.

On August 31, 1976, the jury returned a verdict of guilty of

California Penal Code section 311.2(a).

REASONS WHY THE WRIT OF

CERTIORARI SHOULD BE DENIED

There is no merit to petitioner’s claim that Finger is

protected by the First and Fourtee th Amendments to the

United States Constitution. The issue of whether Finger is

obscene was presented to the jury under state statutes and

instructions by the court which complied fully with the

provisions of the United States Constitution. Further, the

Appellate Department of the Superior Court correctly

concluded that the comment by the trial judge was not a

violation of petitioner’s due process rights to a fair trial and

an impartial judge.

+e

ARGUMENT

I

PETITIONER IS PRECLUDED FROM

RAISING THE ISSUE OF CONSTITUTIONAL

PROTECTION.

Only issues which properly arise in the record and which

have been urged and briefed below may be presented by

petitioner for review, California v. Taylor, 353 U.S. 553, 557 n.

2, 1 L.Ed.2d 1034, 1037 n. 2, 77 S.Ct. 1037, 1039 n. 2 (1957),

unless there are exceptional circumstances. Lawn v. United

States, 355 U.S. 339, 363 n. 16, 2 L.Ed.2d 321, 337 n. 16, 78 S.Ct.

311, 324 n. 16, rehg. denied, 355 U.S. 967, 2 L.Ed.2d 542, 78

S.Ct. 529 (1958).

In the instant case, petitioner did not raise the question of

whether Finger is protected by the First and Fourteenth

Amendments to the United States Constitution (see p. 7 of

Petitioner’s Brief), nor does he state in his brief any

exceptional circumstances which entitle him to raise this

issue now. Accordingly, petitioner’s request for an

independent review by this Court should be denied.

II

FINGER IS UNPROTECTED BY THE

FIRST AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

If this court grants petitioner’s request for an independent

review, it is clear that Finger is unprotected by the First and

Fourteenth amendments to the United States Constitution.

—

— 7

ez

57.

These amendments have never been treated as absolutes, and

this court has held that obscene material is unprotected by the

First Amendment. Miller v. California, 413 U.S. 15, 37 L. Ed. 2d

419, 93 S.Ct. 2607 (1973); Roth v. United States, 354 U.S. 476, 1

L.Ed.2d 1498, 77 S.Ct. 1304 (1957).

In determining whether or not a matter is obscene, a jury

does not have unbridled discretion. This Court may

independently test the material for the existence of each of the

three obscenity elements (prurient-appeal, patent-

offensiveness, and social value) because these elements are

questions of constitutional fact. Jenkins v. Georgia, 418 U.S.

153, 41 L.Ed.2d 642, 94 S.Ct. 2750 (1974); Kois v. Wisconsin,

408 U.S. 229, 33 L.Ed.2d 312, 92 S.Ct. 2245 (1972). Such a test

will find that each element is indeed present.

Prurient Appeal

The dominant theme of Finger taken as a whole is explicitly

aimed at a shameful, or morbid interest in nudity, sex, or

excretion. It containes numerous pictures and drawings

depicting males and females in various sexual acts including

group sex, defaction, masturbation, urination, urination into

the mouth of another, insertion of hands and feet into the

anus of another, intercourse with a chicken, bondage,

necrophilia, and homosexual acts such as oral copulation and

anal intercourse.

Additionally, the text which has been inserted with these

photographs and drawings is an unsuccessful attempt to

dignify what is clearly intended to be sold as hard core

pornography. The text is a sham attempt to cloak commercial

pornography in the guise of legitimacy. As such, the theme of

pruriency remains dominant throughout the magazine.

Patent-Offensiveness

This Court hag held that no one will be subject to

prosectuion for the sale of obscene materials unless these

materials depict or describe patently offensive hardcore

sexual conduct. Jenkins v. Georgia, supra. Furthermore, this

Court has provided examples of what is patently offensive

hardcore sexual conduct: representations or descriptions of

(1) ultimate sexual acts, normal or perverted, actual or

simulated; (2) masturbation; (3) excretory functions; and (4)

lewd exhibition of the genitals. Miller v. California, supra.

Finger is patently offensive because it contains representa-

tions and descriptions of these same hardcore sexual acts.

Social Value

The First Amendment is designed, inter alia, to protect

minority or unpopular views, tastes, opinions, ideas or

desires; particularly in the area of literature, art, politics, and

science. Miller v. California, supra.

Petitioner does not claim now nor did he offer any evidence

at trial to show that Finger has any social value. Both the

written and pictorial representations are not intended to

convey literary, artistic, political or scientific ideas or

messages, but rather to “dress up” material which is sold and

distributed for its obscenity.

Each element of obscenity is present in Finger.

Accordingly, Finger is unprotected by the First and

Fourteenth Amendments to the United States Constitution.

«4.

III

CALIFORNIA PENAL CODE SECTION

311.2(a) IS CONSISTENT WITH THE

SCIENTER REQUIREMENT OF SMITH V.

CALIFORNIA AND MISHKIN V. NEW YORK.

Without evidence of scienter, a book seller may not be held

criminally liable for the sale of obscene matter. To hold

otherwise would restrict the distribution of both constitu-

tionally protected literature as well as obscene literature.

Smith v. California, 361 U.S. 147, 4 L.Ed. 205, 80 S.Ct. 215

(1959), rehg. denied, 361 U.S. 950, 4 L.Ed.2d 383, 80 S.Ct. 399

(1960); Mishkin v. New York, 383 U.S. 502, 16 L.Ed.2d 56, 86

S.Ct. 958, rehg. denied, 384 U.S. 934, 16 L.Ed.2d 535, 86 S.Ct.

1440 (1966). A book seller, however, may be well aware of the

nature of a book he sells and its appeal without opening its

cover, or in a true sense having knowledge of the book

(concurring opinion of Justice Felix Frankfurter in Smith v.

California, supra).

California Penal Code section 311.2(a) embodies the

foregoing precept by making scienter, i.e., knowledge, a

required element of every obscenity case. The term

“knowingly” is defined in California Penal Code section

31l(e): “ ‘Knowingly’ means being aware of the character of

the matter or live conduct.” This definition is consistent with

Mishkin which held that to establish scienter, the evidence

must show that the defendant was aware of the character of

the material.

On page seven of his brief, petitioner cites the instruction

given to the jury on the word “knowingly”: “ ‘Knowingly’

means being aware of the contents of the matter. It does not

10

mean knowledge that the matter was legally obscene.”

Substitution of the word contents“ for the word character“

creates no inconsistency. If anything, this change created a

heavier burden for the prosecution in proving scienter.

Moreover, petitioner did not raise this instruction as error

below and is precluded from doing so now. California v.

Taylor, supra.

IV

PETITIONER’S CONVICTION WAS BASED

ON EVIDENCE CONSISTENT WITH THE

SCIENTER REQUIREMENT OF SMITH V.

CALIFORNIA AND MISHKIN V. NEW YORK.

The evidence to support a finding of scienter in obscenity

cases may be either direct or circumstantial. Mishkin v. New

York, supra. The required degree of circumstantial evidence

will depend on the facts of each obscenity case. Accordingly,

petitioner’s request that this court compile a exhaustive

catalogue of such circumstances or formulate a uniform test

in determining scienter is unrealistic, if not impossible.

Furthermore, the California obscenity cases which have

decided the question of sufficient circumstantial evidence of

scienter on the part of a bookstore owner are consistent with

the requirements of Smith and Mishkin.

In People v. Andrews, 23 Cal.App.3d Supp. 1, 100 Cal.Rptr.

276 (1972), as in Smith, ownership alone was held to be

insufficient circumstantial evidence of scienter on the part of

a bookstore owner. In People v. Pinkus, 256 Cal.App.2d Supp.

941, 63 Cal.Rptr. 680 (1967); People v. Kuhns, 61 Cal.App.3d

=~ ©

735, 132 Cal.Rptr. 725 91976), as in Mishkin, a bookstore

owner’s scienter was established by ownership plus various

circumstantial evidence, e.g. payments by the owner of bills

and payroll, signs on the premises indicating the character of

the material for sale, pictures on the covers of magazines

inside the store, displays of the material in plain view, and

visits to the bookstore by the owner.

While the circumstantial evidence establishing scienter

necessarily varies from case to case, the requirement of

scienter remains constant: Does the evidence amply show

that the defendant was aware of the character of the material

and that his activity was not innocent but calculated

purveyance of filth? Mishkin, supra, at 511-512. In light of

this requirement, and the California cases noted above,

petitioner’s conviction is consistent with the scienter

requirement of Smith v. California, supra; Mishkin v. New

York, supra.

V

PETITIONER’S CONVICTION IS NOT

UNCONSTITUTIONAL FOR LACK OF

EVIDENCE OF SCIENTER.

Evidence of scienter does not have to establish a

defendant’s knowledge of the actual contents of the alleged

obscene matter, but rather his awareness of the character of

the material. Hamling v. United States, 418 U.S. 87, 41

L.Ed.2d 590, 94 S.Ct. 2887 (1974).

In the instant case, petitioner’s awareness of the character

of Finger was established, inter alia, by the following

-12-

circumstantial evidence: (1) petitioner applied for and was

granted a business license as owner and operator of the adult

bookstore; (2) he indicated that he would have the sole

financial interest in the business; (3) he indicated his intent to

run the business himself, and on the date of the offense his

business included the bookstore where Finger was sold; (4) he

personally hired an employee to manage the store; (5) he

personally signed the payroll checks to both the manager and

the clerk of the bookstore; (6) none of the employees of the

store ordered any of the materials for sale; (7) signs outside

the store advertised “Adult Material,” and a sign inside the

store stated No One Under 18”; (8) Finger as well as other

magazines depicting explicit sexual acts, were in plain view

on the shelves in the bookstore; and (9) he had met personally

with the bookstore manager at the bookstore at least three or

four times.

The foregoing evidence established petitioner’s awareness

of the character of Finger as well as his calculated rather than

innocent purveyance of it. The jury did not permit petitioner

to hide behind the guise of absentee ownership. Accordingly,

petitioner’s conviction did not violate the due process clause of

the Fourteenth Amendment.

VI

PETITIONER WAS NOT DENIED DUE

PROCESS OF THE LAW BY REASON OF

THE JUDGE’S COMMENT.

The California Constitution expressly permits the court to

„ .. make such comment on the evidence and the testimony

and credibility of any witness as in its opinion is necessary for

-13-

the proper determination of the case. California Constitution

Article VI, Section 10. This judicial right of comment has

received statutory enactment in California Penal Code

sections 1093 and 1127.

The judicial power to comment on the evidence, however, is

not arbitrary and has inherent limitations. A judge may not

withdraw material from the jury’s consideration or distort the

testimony of witnesses. Similarly, a judge’s comments should

be temperately and fairly made and should not assume the

complexion of partisan advocacy. People v. Flores, 17

Cal.App.3d 579, 587, 95 Cal.Rptr. 138, 143 (1971).

As long as a judge’s comments do not usurp the exclusive

provence of the jury to decide the facts and the credibility of

witnesses, the comments are within the bounds of propriety.

People v. Friend, 50 Cal.2d 570, 577, 327 P.2d 97, 101 (1958).

Beyond these obvious limitations, “No hard and fast rule

determinative of what a trial judge may or may not say to a

jury in commenting on the evidence and the credibility of

witnesses can be laid down.” People v. Ottey, 5 Cal.2d 714,

724, 56 P.2d 193, 197 (1936); People v. Flores, supra, 95

Cal.Rptr. 138, 141 (1971).

It is impossible to generalize as to what particular

comments should or should not be permitted in all criminal

cases. Each case must necessarily turn upon the context and

extent of the comments and the peculiar circumstances under

which comments are made. People v. Ottey, supra. Neverthe-

less, within the bounds of propriety, the court may exercise its

own discretion with respect to what comments it will make.

The trial court is the best judge of the extent of the comments

and should be free to exercise its discretion in accordance with

its own judgment. People v. Ottey, supra.

.

In the instant case, the judge’s comment was intended to

reassure the jury and to foster open and honest answers to the

voir dire questions. The court made numerous statements to

the prospective jury panel members in an attempt to put them

at ease and enable them to effectively answer questions of a

delicate and sensitive nature. In essence, the judge instructed

the jurors not to feel badly regarding their personal opinions

and to express any such feelings. The court asked the jurors to

express any disapproval of this type of magazine so that the

extent of and basis for the disapproval could be examined by

both counsel. The court’s statement did not express the

opinion that the magazine was obscene, nor that petitioner

had knowledge of its character; nor was the comment directed

at any evidence or element of the case. The statement was not

directive in nature nor was it part of the charge to the jury.

Furthermore, any possible prejudice was cured by the

instruction given to the jury to disregard all statements made

by the court during the trial. (Reporter’s Transcript, 332.)

Accordingly, petitioner was not denied due process of law by

reason of the judge’s comment during voir dire.

+ ©

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

the petition for Writ of Certiorari should be denied.

Dated: November 2, 1977

JOHN W. WITT, City Attorney

STUART H. SWETT, Chief Criminal Deputy

JANIS SAMMARTINO GARDNER, Deputy

R. WILLIAM FERRANTE, Deputy

Attorneys for Respondent