# Opposition — Marler v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 1000

## Text

_—_

‘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 ..........

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2346%3A2. Public record. Not legal advice.