Opposition Brief — Maita v. Superior Court of California

Supreme Court brief1973

Ask Donna

What actually matters in this document.

Text

Questions presented ..... 6.6... ee sees cece este eeeeeeeeeees 2

Constitutional provisions and statutes involved ......-...-+ 3

Statement of case and facts ............eee cree cece eeeees 5

AYQUMENt 2.0... eee cece eee e etree e tence terse ceeeetes 10

The sixth amendment does not require the states to

grant jury trials to a defendant charged with several

counts of criminal contempt where the maximum pos-

sible imprisonment on conviction for a single count

is six months and where the total imprisonment actu-

ally imposed for convictions on all counts is less than

ql meMES oo ccc ccc ccc ccccccccccccccccccccnceccs 10

Petitioner’s failure to present the state courts with the

issue of whether he was entitled to a jury trial because

of the fine imposed precludes consideration of the issue

at this juncture ...........- eee cece eee cence tees 14

Assuming arguendo that the issue is properly before this :

court, the sixth amendment does not require the states ;

to afford a jury trial in a case where a $2500 fine

is imposed ........- ee cece cece eee rete ence ee eeeees 16

Petitioner may not raise the issue of whether his activi- ;

ties were subjected to a prior restraint violative of

the first amendment because that issue was not neccs- :

sary to the state court’s determination of this case ... 19 ©

The conduct that is the target of the modified injunc-

tion is not protected by the first amendment

Sh nt a Ka

ii Suspsect Impex

VI Page

Assuming arguendo that the conduct proscribed by the

injunction is conduct protected by the First Amend-

ment, the injunction nevertheless remains as a valid

SES occ ccvcccccccccetBectocsecceseocesessenss 22

CIEE ccccccccccecccsancenessvessabsosentsocscesens 24

Table of Authorities Cited

Cases Pages

Argersinger v. Hamlin, 407 U.S. 25 (1972) ........... 13, 17,18

Baldwin v. New York, 399 U.S. 66 (1970) ...... 10, 11, 12, 15,17

Beck v. Washington, 369 U.S. 541 (1962) ................ 14

Bloom v. Illinois, 391 U.S. 194 (1968) .......... 10, 11, 12, 13, 15

Burstyn v. Wilson, 343 U.S. 495 (1952) ................. 20, 21

California v. LaRue, U.S. Sup. Ct., Dee. 5, 1972, 41

ei edd eee Ad eenawete Cah deen nae 21, 22

Cardinale v. Louisiana, 394 U.S. 437 (1969) ............. 14

Carruth v. Fitch, 36 Cal.2d 426 (1950) ...............-.. 20

Cheff v. Schnackenberg, 384 U.S. 373 (1966) .......... 10, 15, 17

District of Columbia v. Clawans, 300 U.S. 617 (1937) ..10, 12,13

Duncan v. Louisiana, 391 U.S. 145 (1968) .......... 10, 12, 15, 17

Ferguson v. Georgia, 365 U.S. 570 (1961) ................ 14

Ginzburg v. United States, 383 U.S. 463 (1966) .......... 21, 22

Hedgebeth v. North Carolina, 334 U.S. 806 (1948) ........ 19

Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957) ...... 23

Landau v. Fording, 245 Cal.App.2d 820, affirmed per

Ce Ec nec kandanetehdddsagsbacsocianere 21

Lerner v. Los Angeles City Board, 59 Cal.2d 382 (1963) .. 20

McGoldrick v. Gulf Oil Corp., 309 U.S. 2 (1940) ......... 19

Mishkin v. New York, 383 U.S. 502 (1966) ............... 21

TaB_e or AUTHORITIES CiTED iii

Pages

People v. Mason, 5 Cal.3d 759 (1971) ......-.----+-eeeee 23, 24

State v. Koscot, 330 N.Y.S. 492 (1972) .....-..+----e0e- 13

State v. Owens, 254 A.2d 97 (N.J. Sup.Ct. 1969) .......-. 13

Stembridge v. Georgia, 343 U.S. 541 (1952) ............-. 14,19

Street v. New York, 394 U.S. 576 (1969) ............-+--- 14

United States v. Mine Workers, 330 U.S. 258 (1947) ...... 16, 17

United States v. O’Brien, 391 U.S. 367 (1968) ............ 21

United States v. R. L. Polk and Co., 438 F.2d 377 (6th Cir.

WI) .nccccccccccccccccccccsccscvccccccccccscossees 16, 17

United States v. Seale, 461 F.2d 345 (7th Cir. 1972) ...... 13

White v. Ragen, 324 U.S. 760 (1945) .....-.-2----eeee eee 19

Woods v. Nierstheimer, 328 U.S. 211 (1946) ............. 19

Zap v. United States, 328 U.S. 624 ERD veascdoetoceces 24

Codes

California Penal Code:

Restless GOD cc ccccccdccsscverscecestecvevesouseones 12

Sections 11225 et seq. ..-.....e cece cece cece eee eeees 3, 23

Bastien BIBT 2. cc ccccccccccccccccesevesesoescosss 3,5

rile BITE ooo cc cccccseccssccsccsesoscesecessoss 3

EE BEE. cncdoddsscandaewescnnsscasonsesredne 4,6

Destiny TID nina cdc csecsseserccctivserssnesssinss 4

Bastien BIFID .occcccccccccncesescssscccsseccoseces 5

ee TEED pc cnccccddscendcccencontesaneeneveses 20

United States Code:

Title 18, Section 1 ....... 2... e eee eee eee eee eens 16, 17

Title 28, Section 1257(3) ....... 6... eee eee e eect ee eees 2

Texts

Petty Federal Offenses and the Constitutional Guarantee of

Trial by Jury, 39 Harv. L.Rev. 917, Frankfurter and

Corcoran (1926) .....-..0e-c cece ete eee etree eet eeeeeee 10

Constitutions

United States Constitution:

First Amendment ...........-+-.-+- 2, 3, 19, 20, 21, 22, 23, 24

Sixth Amendment .............--c2-seee: 2, 3, 10, 13, 14, 15

Fourteenth Amendment ...........---++eeeeeeeeeeee 3, 21

CHEN PELE POINT

UY Roger NU raTammomeNY

No.

Pum Joserx Marra, Petitioner

vs.

Svupertor Covrr oF THE State or CALIFORNIA,

Respondent

THe Prope oF THE STaTE OF CALIFORNIA,

Real Party in Interest

OPINION BELOW

The judgment and order of the Superior Court |

(P v. Maita and Vennemeyer, No. 149826) is set :

forth in Appendix A. The order of the California

Court of Appeal denying the petition for writ of

habeas corpus or certiorari is set forth in Appendix

B. The order of the California Supreme Court deny-

ing petition for hearing of habeas corpus or certiorari

is set forth in Appendix C.

JURISDICTION

The jurisdiction of this Court is invoked under

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

QUESTIONS PRESENTED

1. Does the Sixth Amendment require the states

to grant jury trials to a defendant charged with

several criminal contempts in a single action where

the maximum possible imprisonment for a single

contempt is six months and where the total imprison-

ment actually imposed is less than six months?

2. Does petitioner’s failure to raise the issue of

whether he was entitled to a jury trial because of

the fine imposed preclude consideration of the issue?

3. Does the Sixth Amendment require the states to

afford a jury trial in a case where a $2500 fine is

imposed ?

4. May petitioner raise the issue of whether his

activities were subjected to a prior restraint violative

of the First Amendment despite the fact that that

issue was not necessary to the state court’s determina-

ion of this case?

5. Is the conduct that is the target of the modified

injunction in the instant case protected by the First

Amendment ?

6. Assuming, arguendo, that the conduct proscribed

by the injunction is conduct protected by the First

Amendment, is the injunction nevertheless a valid

restraint ?

The First, Sixth and Fourteenth Amendments to

the Constitution of the United States, as follows:

First Amendment: “Congress shall make no

law .. . abridging the freedom of speech. . . .”

Sixth Amendment: “In all criminal prosecu-

tions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury.

Fourteenth Amendment: “Nor shall any state

deprive any person of life, liberty and property

without due process of law. . . .”

California Penal Code sections 11225 ef seq., as

follows :

§11225. Every building or place used for the

purpose of illegal gambling as defined by state

law or local ordinance, lewdness, assignation, or

prostitution, and every building or place in or

upon which acts of illegal gambling as defined by

state law or local ordinance, lewdness, assignation

or prostitution, are held or occur, is a nuisance

which shall be enjoined, abated and prevented,

whether it is a publie or private nuisance.

Nothing in this section shall be construed to

apply the definition of a nuisance to a private

residence where illegal gambling is conducted on

an intermittent basis and without the purpose of

producing profit for the owner or oceupier of the

premises.

§11226. Whenever there is reason to believe

that a nuisance as defined in this article is kept,

maintained or is in existence in any county, the

district attorney, in the name of the people of

the State of California, must, or any citizen of

the State resident within said county, in his own

name may, maintain an action in equity to abate

and prevent the nuisance and to perpetually en-

join the person conducting or maintaining it, and

the owner, lessee or agent of the building, or place,

in or upon which the nuisance exists, from di-

rectly or indirectly maintaining or permitting it.

§11227. Whenever the existence of a nuisance

is shown in an action brought under this article

to the satisfaction of the court or judge thereof,

either by verified complaint or affidavit, the court

or judge shall allow a temporary writ of injunc-

tion to abate and prevent the continuance or

recurrence of such nuisance.

§11228. Actions brought under this article

have precedence over all actions, excepting crim-

inal proceedings, election contests and hearings

on injunctions, and in such actions evidence of

the general reputation of a place is admissible for

the purpose of proving the existence of a nui-

sance. If the complaint is filed by a citizen, it

shall not be dismissed by the plaintiff or for want

of prosecution except upon a sworn statement

made by the complainant and his attorney, set-

ting forth the reasons why the action should be

dismissed, and the dismissal ordered by the court.

In ease of failure to prosecute any such action

with reasonable diligence, may substitute any

other citizen consenting thereto for the plaintiff.

If the action is brought by a citizen and the court

finds there was no reasonable ground or cause

therefor, the costs shall be taxed against such

citizen. |

§11229. Any violation or disobedience of an

injunction or order expressly provided for by

this article is punishable as a contempt of court

by a fine of not less than two hundred dollars

($200) nor more than one thousand dollars

($1,000), by imprisonment in the county jail for

not less than one nor more than six months, or

by both.

STATEMENT OF CASE AND FACTS

On December 11, 1969, the San Mateo District At-

rorney filed in Superior Court a “‘Complaint for

Equitable Relief from Nuisance,” pursuant to the

California Red Light Abatement Law, which named

1s defendants petitioner and one August Vennemeyer,

together with property known as the Easy Street Bar.

The complaint alleged that acts of ‘“‘lewdness”—as

that term is used in California Penal Code section

11225—were being permitted in the Easy Street Bar.

Hearing on the complaint was held December 17,

18, 22, 23, 29, 30, 31, 1969, and January 6, 7, and 8,

1970. Subsequently, the Superior Court issued a Mem-

orandum Decision which ruled, inter alia, that the con-

duct at Easy Street was lewd within the meaning of

the statute. Evidence adduced at the hearing which

the Superior Court reviewed in making its finding

of lewdness included evidence of nude cocktail wait-

resses, nude dance performances and the exhibition

of color motion pictures of nude males and females

engaging in sexual activities ‘“‘ineluding graphic and

explicit view of sexual intercourse and oral genital

copulation.” In making the finding of lewdness, the

iii imieciiiaiadidnatica aaa

Superior Court specifically equated the definition of

lewdness with the definition of obscenity, i.e., the

terms “‘lewd matter” and “‘obscene matter” were both

defined as matter “which taken as a whole, the pre-

dominant appeal of which to the average person

applying contemporary standards is to prurient inter-

est, #.e., a shameful or morbid interest in nudity, sex

or excretion; and is matter which taken as a whole

goes substantially beyond customary limits of candor

in description or representation of such matters; and

is matter which taken as a whole is utterly without

redeeming social importance or value.”

The Superior Court issued a temporary injunction,

pursuant to California Penal Code section 11227,

which enjoined petitioner and codefendant Venne-

meyer from ‘“‘conducting, maintaining, using, oecupy-

ing, permitting, causing or exhibiting:

**1) Cocktail waitresses the genitalia and

anuses of which and the pubic hair areas of

which are not covered completely by material

which cannot be seen through by the nearest

spectator ;

**2) Dancers and live performers exhibiting

genitalia and anuses and pubic hair areas which

are not completely covered by material which can-

not be seen through by the nearest spectator ;

“*3) Motion pictures or live performances ex-

hibiting or simulating the exhibition of human

genitalia and anuses and pubic hair areas which

are not completely covered by material which can-

not be seen through by the nearest spectator;

““4) Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

SV7—~—™

sexual intercourse by, with or between human

beings.

‘‘5) Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

oral genital copulation ;

““6) Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

oral-breast copulation ;

““7) Motion pictures or live performances ex-

hibiting or simulating the exhibition of male or

female masturbation.

“‘8) Motion pictures or live performances ex-

hibiting or simulating the exhibition of female

humans engaging in auto-eroticisms by the use

of any inanimate object.”

Petitioner challenged this injunction with a peti-

tion for writ of prohibition in the California Court

of Appeal. The petition for writ of prohibition was

denied February 18, 1970; and a petition for hearing

in the California Supreme Court (1/Civil 27808) was

denied March 19, 1970.

On September 14, 1971, pursuant to a stipulation,

an order was filed, which read in part as follows:

“The preliminary injunction dated January 27,

1970, presently in effect in these proceedings . . .

is modified as follows:

‘‘1, Paragraphs numbered 2] and 3] thereof,

page 2, lines 23 through 29, inclusive, are deleted

in their entirety;

‘29, Paragraphs numbered 4] through 8],

pages 2 and 3, are amended, modified, renum-

bered, and supplemented as follows:

OSE E PL ALT IN PONY F

2] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

sexual intercourse by, with or between human

beings ;

3] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of 4

sexual intercourse by, with or between human

beings and animals (beastiality) ;

4] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of :

oral-genital copulation ;

5] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

rectal foreplay, kissing, touching, caressing,

fondling or manipulating of male or female

genitalia.

6] : Motion pictures or live performances ex-

hibiting or simulating the exhibition of male or

female masturbation ;

7] Motion pictures or live performances ex-

hibiting or simulating the exhibition of sodomy

or flagellation ;

8] Motion pictures or live performances ex-

hibiting or simulating sexual activity where the

genitals of the performers can then be seen;

9] Motion pictures or live performances ex-

hibiting or simulating the exhibition of male or

female humans engaging in auto-eroticisms or

any of the prohibited activities hereinabove de-

seribed by the use of any drawing, artificial

device or inanimate object.

**3. Exeept as hereinabove specifically pro-

vided, the Preliminary Injunction presently in

effect in these proceedings dated January 27,

1970, is and shall continue to be in full foree and

effect and shall hereafter be considered and con-

strued with this Order Modifying Preliminary

Injunction as one instrument enjoining and con-

straining defendant as provided herein.”

On February 2, 1972, the Superior Court ordered

petitioner and codefendant Vennemeyer to show cause

why they should not be held in contempt for willful

violation of the temporary injunction as modified by

the stipulated order of September 14, 1971. Hearing

on the order to show cause was held February 18 and

March 2 and 3, 1972.

At the conclusion of the hearing, the court found

that petitioner’s conduct in exhibiting certain films

and in permitting his waitresses to work while nude

violated the injunctions.’ Petitioner was found guilty

of four counts of contempt — one count for each date

on which he had permitted the proscribed conduct. On

Count One, petitioner was fined $1000 and sentenced

to 6 months in the county jail, with 4 months of the

sentence suspended. On each of the other 3 counts,

petitioner was fined $500 and sentenced to 60 days in

the county jail. Jail sentences for all counts were

made concurrent. All portions of the sentence are

presently stayed.

The Superior Court dismissed the charges of con-

tempt against codefendant Vennemeyer without ob-

jection from the district attorney.

The specific provisions of the injunctions which the court found

had been violated are paragraph 1 of the original temporary injune-

tion and subparagraphs 2, 4, 5, 6, 8 and 9 of paragraph 2 of the

modified injunction. See pp. 6-8, supra.

THE SIXTH AMENDMENT DOES NOT REQUIRE THE STATES

TO GRANT JURY TRIALS TO A DEFENDANT CHARGED

WITH SEVERAL OOUNTS OF ORIMINAL OONTEMPT

WHERE THE MAXIMUM POSSIBLE IMPRISONMENT ON

CONVICTION FOR A SINGLE OOUNT IS SIX MONTHS AND

WHERE THE TOTAL IMPRISONMENT ACTUALLY IMPOSED

FOR CONVICTIONS ON ALL COUNTS IS LESS THAN SIX

MONTHS.2

The Sixth Amendment does not require that states

grant jury trials to persons charged with petty of-

fenses. Baldwin v. New York, 399 US. 66 (1970);

Duncan v. Louisiana, 391 U.S. 145 (1968); Bloom v.

Illinois, 391 U.S. 194 (1968) ; Cheff v. Schnackenberg,

384 U.S. 373 (1966); Petty Federal Offenses and the

Constitutional Guarantee of Trial by Jury, 39 Harv.

L.Rev. 917, Frankfurter and Corcoran (1926). Cri-

teria that are relevant to a classification of an offense

as petty or serious for purposes of the Sixth Amend-

ment’s jury trial provision include the severity of the

penalty, the moral quality of the act and the act’s

relation to common law crimes. District of Columbia

v. Clawans, 300 U.S. 617, 625 (1937). The history and

the nature of criminal contempt do not—without ref-

erence to penalty—warant classification of this offense

as serious. Bloom v. Illinois, supra, 391 U.S. at 198;

Cheff v. Schnackenberg, supra, 384 U.S. at 380. For

crimes generally and for criminal contempts in par-

2We recognize that a consideration of the fines discussed in Argu-

ment III, infra, may be required for a proper consideration of the

instant issue. We have separated the two issues because we are con-

tending that the jury trial issue raised by the imposition of the fines

is not properly before this Court. Arguments IT and ITI, infra.

ticular, the penalty is the most important considera-

tion in classifying the crime as serious or petty.

Baldwin v. New York, supra, 399 U.S. at 68; Bloom

v. Illinois, supra, 391 U.S. at 211.

It has already been decided that where the Legisla-

ture has prescribed a penalty exceeding 6 months for

an offense, that offense is classified as serious. Bald-

win v. New York, supra. It has also been decided that

where the Legislature has not fixed a maximum pos-

sible penalty, one must look to the penalty actually

imposed to determine the seriousness of the offense.

Bloom v. Minois, supra, 391 U.S. at 211. For a single

conviction of the offense here before us, California

law provides a maximum possible penalty of 6 months.

The total sentence petitioner is actually likely to serve

should his conviction stand, is 60 days.* Petitioner

contends that for purposes of interpreting the Sixth

Amendment jury trial provision, the 6-month maxi-

mum possible penalty should be multiplied by 4—e.,

the number of counts with which petitioner was

charged—thereby giving a total of 24 months maxi-

mum possible penalty and, according to petitioner,

giving him the right to a jury trial under the rule of

Baldwin v. New York, supra. For this contention,

petitioner relies heavily on the statement in Baldwin

that ‘‘no offense can be deemed ‘petty’ for purposes

of the right to trial by jury where imprisonment for

more than 6 months is authorized.” Id. at 69. We

3On one count, petitioner did receive a 6-month sentence but 4 of

those 6 months are suspended. See Statement of Case and Facts,

supra, p. 9.

believe that petitioner misconstrues the meaning of

the quoted statement.

The maximum penalty that the Legislature au-

thorizes is important as a criterion in the determina-

tion of the seriousness of the offense because that

maximum penalty reflects the Legislature’s and pre-

sumably society’s judgment of the seriousness of the

offense.* Duncan v Louisiana, supra, 391 U.S. at 160,

162; District of Columbia v. Clawans, supra, 300 U.S.

at 625-627. Because the legislative maximum penalty

reflects society’s judgment of the gravity of the crime,

a person cannot be constitutionally convicted of a

single offense carrying a maximum possible penalty

that exceeds 6 months even though he is actually

sentenced to less than 6 months. Baldwin v. New

York, supra, 399 U.S. at 69. When a person is charged

in a single action with several counts of an offense

which the Legislature has, by its assignment of the

maximum penalty, designated as petty’ the joining

of the counts does not change the legislative judgment

of the nature of the offense. The moral quality of

the act involved and the act’s relation to common

law crimes remain the same. See District of Columbia

v. Clawans, supra, 300 U.S. at 625.

We do not contend that this Court’s previously

announced limitations on actual penalty (Bloom v.

4In this respect, it is relevant to note that in California there

is a presumption favoring concurrent sentences which operates to

make all sentences which are simultaneously imposed concurrent

unless otherwise specified. Cal. Pen. Code § 669.

5We assume here an offense like criminal contempt, which is not

—without consideration of the penalty—a serious offense.

Illinois, supra, 391 U.S. at 211) for persons not

afforded the right to jury trial, could be escaped by

joining several counts of a petty offense. Compare

United States v. Seale, 461 F.2d 345 (7th Cir. 1972).

Assignment of importance to the actual penalty when

interpreting the Sixth Amendment jury trial pro-

vision reflects a concern in addition to the concern

of what judgment the Legislature has made of the

erime’s onerousness. That is, the actual penalty is

important because no matter what the moral quality

of the act and no matter what the act’s relation to

common law crimes (see District of Columbia v.

Clawans, supra), the Sixth Amendment will not per-

mit severe imprisonment where a person has not been

afforded the right to a trial by jury. Bloom v. I llinots,

supra, 391 U.S. at 211. See also Argersinger v. Ham-

lin, 407 U.S. 25 (1972).

In the instant case then, the Legislature having

adjudged the offense as petty by its prescription of

a 6month maximum penalty and criminal contempt

being otherwise considered a petty offense, it is the

actual penalty that should he looked to. State v.

Owens, 254 A.2d 97 (NJ. Sup.Ct. 1969); State v.

Koscot, 330 N.Y.S. 492 (1972). See also United States

v. Seale, supra, at 356.° Here the actual penalty is

6Where the maximum authorized penalty for a petty offense is

6 months, joinder of several counts of the offense in a single action

serves a useful purpose even though the actual penalty limit (e.¢.,

6 months) could be theoretically reached with a conviction for a

single count. The trial may produce a guilty verdict on only one

count and even if guilty verdicts are returned on several counts,

those verdicts will be important to determine the actual penalty

within the 0 to 6 month range.

i ak ea as ; .

EET ee See PM NI Ore BAe Sh Ma a Dl re ol at n

60 days, which leaves the case in a category where a

state may proceed without offering the right to a

jury trial.

PETITIONER'S FAILURE TO PRESENT THE STATE OOURTS

WITH THE ISSUE OF WHETHER HE WAS ENTITLED TO A

JURY TRIAL BBCAUSE OF THE FINE IMPOSED PRECLUDES |

CONSIDERATION OF THE ISSUE AT THIS JUNCTURE. |

This Court has repeatedly held that it will only

review those federal questions which were properly

presented in the state proceedings. Cardinale v. Louisi-

ana, 394 US. 437, 439 (1969); Beck v. Washington,

369 U.S. 541, 550 (1962); Ferguson v. Georgia, 365

US. 570, 572 (1961) ; Stembridge v. Georgia, 343 US.

541, 547 (1952). See also Street v. New York, 394

U.S. 576, 583 (1969). The federal issue must have

been raised with specificity and state courts need not

search through the brief to properly formulate the

issue for the petitioner. Street v. New York, supra, at

583; Beck v. Washington, supra, at 553; Stembridge

v. Georgia, supra, at 547. Where the highest court of

the state does not deliver an opinion and it appears

that the judgment might have rested upon a non-

federal ground, this Court will not take jurisdiction

to review the judgment. Stembridge v. Georgia, supra,

at 547.

In the petition for writ of habeas corpus or cer-

tiorari which the petitioner filed in the California

Court of Appeal, he used this heading for his argu-

ment on the Sixth Amendment jury trial issue: “As

a matter of federal constitutional law, petitioner was

entitled to trial by jury.” Under this heading peti-

tioner disenssed only the issue of whether the maxi-

mum possible imprisonment gave him the right to a

jury trial. (The complete argument presented to the

California Court of Appeal by petitioner on the

Sixth Amendment jury trial issue is attached hereto

as Appendix D.) The same is true of the petition for

hearing filed with the California Supreme Court. (The

California Supreme Court on the Sixth Amendment

jury trial issue is attached hereto as Appendix E.)

Nowhere in either petition was it argued that the

fines imposed entitled petitioner to a jury trial under

the Sixth Amendment. The theory that fines may

render the right to a jury trial applicable is clearly

distinct from the theory behind the rule that imprison-

ment of a certain length will render the right to jury

trial applicable. See Argument I, supra, and Arcu-

ment III, infra. The theory concerning fines is not

treated in this Court’s recent decisions of Baldwin

v. New York, Duncan v. Louisiana, Bloom v. Illinois,

and Cheff v. Schnackenberg, and the paucity of ap-

pellate cases generally that deal directly with this

issue further demonstrates the comparative novelty

of the fines theory. See Argument ITI, infra, and

Petitioner’s Petition, pp. 9-11. Under these cireum-

stances, it cannot fairly be said that the California

Supreme Court passed upon the fines theory, and

petitioner should be barred from having this theory

considered at the present time.

conducted by a judge without a jury. Jd. at 298."

Petitioner correctly cites United States v. R. L.

Polk and Co., 438 F.2d 377 (6th Cir. 1971), as a case

which holds that a fine exceeding $500 may not be

imposed without affording the defendant the right to

a trial by jury." Polk is contra to United States v.

Mine Workers, supra, and, we contend, constitutes

an incorrect application of this Court's recent inter-

This statute was only one of several criteria relied

upon in the cases of Baldwin v. New York, supra, 399

US. at 70-71; Duncan v. Louisiana, supra, 391 US.

at 160-162; Bloom v. Illinois, supra, 391 US. at 204-

210; Chef v. Schnackenberg, supra, 384 US. at 379-

380; and nowhere in these four opinions does this

Court refer to the statute as the controlling test for

purposes of the jury trial provision. Furthermore,

none of these four opinions dealt with the fines pro-

viso of section 1 of Title 18. We think that the recent

case of Argersinger v. Hamlin, supra, makes it clear

that the fine proviso of that statute is not to be in-

serted into the right to jury trial test.

The Sixth Amendment right at issue in Argersinger

was the right to counsel. The petitioner in Arger-

singer was tried for an offense punishable by impris-

onment up to 6 months, a $1000 fine or both, and was

given a 90-day jail sentence. This Court reversed the

conviction holding that no person may be imprisoned

for any offense unless afforded the right to counsel.

The decisions of Baldwin, Duncan, Bloom and Cheff

which hold that a person may be imprisoned for as

much as 6 months without being afforded the right

to jury trial are not disturbed by Argersinger. The

Argersinger opinion explains that the category of

eases in which the right to counsel applies is broader

than the category of cases in which the right to jury

trial applies and, further, that the latter category

encompasses the former. Argersinger v. Hamlin,

supra, at 27-31, 45-46.

Important to the instant discussion is the fact that

in Argersinger the offense carried the possibility of

a $1000 fine. Under the reasoning of United States

v. R. L. Polk, supra, this fact by itself would have

required that Argersinger be afforded the right to

jury trial and—because the right to counsel exists

in all cases in which the right to jury trial exists—

the right to counsel. Yet the possibility of a $1000

fine is nowhere cited as a basis for the Argersinger

holding.

The the reasoning of Polk is unsound is also sup-

ported by this statement of Justice Powell concur-

ring in Argersinger:

“As used herein, the term ‘petty offense’ means

any offense where the authorized imprisonment

does not exceed 6 months, Baldwin v. New Yorl:,

399 U.S. 66, 69 (1970). It also includes all of-

fenses not punishable by imprisonment regardless

of the amount of any fine that might be au-

thorized. To this extent, the definition used herein

differs from the Federal statutory definition of

‘petty offense’ which includes offenses punishable

by not more than 6 months imprisonment or hy

a fine not exceeding $500. 18 U.S.C. §1.” 407 US.

at 45 n. 2, (emphasis added).

We would submit that the reasoning of United

States v. R. L. Polk, supra, is incorrect and that the

holding of United States v. Mine Workers, supra, is

still valid.

®In Argersinger no fine was actually imposed.

judgment where the highest court of the state delivers

no opinion and it appears that the judgment might

have rested upon a nonfederal ground. Stembridge v.

Georgia, supra, 343 US. at 547; Hedgebeth v. North

Carolina, 334 U.S. 806 (1948) ; Woods v. Nierstheimer,

328 U.S. 211 (1946); White v. Ragen, 324 U.S. 760

(1945); McGoldrick v. Gulf Oil Corp., 39 US. 2

(1940). See Argument II, supra. The nonfederal

ground upon which the California courts’ rejection

of petitioner’s First Amendment contention might

have rested in the instant case is estoppel.

Petitioner's first petition for hearing in the Cali-

fornia Supreme Court—which challenged the original

temporary injunction—was denied on March 19, i970.

After the denial of this petition for hearing, peti-

tioner agreed to abide by the terms of the temporary

injunction. The district attorney thereupon agreed to

take off calendar the hearing on the plea for abate-

ment."® Nothing further occurred in the proceedings

until September 1971 when the injunction was modi-

fied by stipulation. Some of the language of the

modification was suggested by petitioner’s attorney.

1©These facts are detailed in an affidavit prepared by the deputy

district attorney who was then handling this case. The affidavit was

presented to the California Court of Appeal and the California

Supreme Court and is attached hereto as APPENDIX F.

The district attorney never attempted to recalendar

the hearing on the plea for abatement. Thus, by

agreeing to abide by the injunction, petitioner kept

the injunction in effect and secured the advantage

of preventing any attempt to bring the matter to the

Light Abatement Law contemplates."*

California has long recognized the doctrine of

estoppel. See, ¢.g., Lerner v. Los Angeles City Board,

59 Cal.2d 382, 396 (1963); Carruth v. Fitch, 36 Cal.

2d 426, 433 (1950). Under the circumstances pre-

THE CONDUCT THAT IS THE TARGET OF THE MODIFIED IN-

JUNCTION IS NOT PROTECTED BY THE FIRST AMEND-

MENT.

Petitioner argues that the injunction as modified

violates his First Amendment right by prohibiting the

Wilson, 343 U.S. 495, 502-508 (1952), for the holding

that motion pictures are “included within the free

1tPenal Code section 11230 direets in part that “if the existence

of a nuisance is established in an action as provided in this article,

on anlee of Getenent Gall be ean = part of the judgment

speech and free press guarantees of the First and

Fourteenth Amendments.” Motion pictures, though,

are not “necessarily subject to the precise rules

governing any other particular method of expression”

(Burstyn v. Wilson, supra, at 502-503) and as “the

mode of expression moves from the printed page to

the commission of public acts which may themselves

violate valid penal statutes, the scope of permissible

state regulations significantly increases.” California

v. LaRue, U.S. Sup. Ct., Dee. 5, 1972, 41 U.S.L.W.

at pp. 4039, 4042. This Court has rejected the propo-

sition that a “limitless variety of conduct may be

labeled ‘speech’ whenever the person engaging in the

conduct intends thereby to express an idea.” California

v. LaRue, supra, 41 U.S.L.W. at 4042; United States

v. O’Brien, 391 U.S. 367, 376 (1968).

In the instant case, the injunction prohibits films

that depict masturbation, sodomy, flagellation, graphic

sexual activity, and the fondling of genitalia—all

activities, the depiction of which has previously been

labeled obscene by this Court. Mishkin v. New York,

383 U.S. 502, 505 (1966); Ginzburg v. United States,

383 U.S. 463, 471 (1966). See Landau v. Fording,

245 Cal. App.2d 820, 822, affirmed per curiam, 388 US.

456. While it is true that the injunction prohibits all

films depicting the described activities without regard

to the qualities of the films otherwise, the injunction

is directed only against the showing of the films in one

specific setting, i.c., a liquor bar with patronage com-

posed of the general public. Thus, the prohibited

showings are not ones catering to the scientifie or

literary interests of scholars (Compare Ginzburg v.

United States, supra, at 469-474); rather, they are

ones designed to appeal to the prurient interests of

ordinary persons in a barroom setting.

Under California v. LaRue, the conduct here at

issue could clearly have been prohibited through Cali-

fornia’s authority to control the dispensation of

liquor."* Even though the instant prosecution was not

initiated by the State’s liquor control authorities, the

result sought is the same. That is, the modified in-

junction seeks to prohibit the above-described activi-

ties in a place where liquor is dispensed.

We submit that under these circumstances, the

conduct proscribed by the injunction is not conduct

that comes within the protection of the First Amend-

ment.

ASSUMING ARGUENDO THAT THE CONDUCT PROSORIBED BY

THE INJUNCTION IS CONDUCT PROTECTED BY THE FIRST

AMENDMENT, THE INJUNCTION NEVERTHELESS REMAINS

AS A VALID RESTRAINT.

Petitioner alleges that the injunction as modified

constitutes an invalid prior restraint on his right of

free expression. This assertion ignores the fact that

petitioner received due notice of the request for the

injunction and an opportunity to controvert the re-

spondent’s contentions. In fact, petitioner was al-

12The injunction in the instant case is much narrower than the

regulations described in LaRue. The LaRue ions prohibit

the showings of films which merely display pubic hairs, anuses,

vulvas or genitals—without regard to presence or absence of sex-

ual activity. Compare, California v. LaRue, 41 U.S.L.W. at 4040

with the modified injunction of the instant case, Statement of Case

and Facets, supra, at pp. 6-8.

lowed to present the testimony of 21 witnesses to

controvert the respondent’s allegations and proof.

Based on this evidence, the judgment of respondent

court was that the described pren.uses constituted a

nuisance “by virtue of acts of lewdness.” Appendix

A. The Court’s memorandum decision makes it clear

that “lewd” was treated as synonymous with “ob-

scene” and that correct First Amendment principles

were applied. Appendix A.

The California Red Light Abatement law under

which petitioner was sued actually contemplates the

issuance of a temporary injunction upon verified

complaint or affidavit with a full adversary hearing to

presumably. follow soon after the issuance of the

injunction. Cal. Pen. Code §§11225, et seq. See pages

3-5, supra. Compare Kingsley Books, Inc. v. Brown,

354 U.S. 436, 437-445 (1957). In the instant case, the

district attorney did not seek the injunction until

after the full adversary hearing had been held. After

the injunction issued, petitioner, through his attorney,

sought to avoid the judgment of abatement by agree-

ing to comply with the injunction. See Argument

IV, supra.

In this posture, the injunction against petitioner

is not unlike a condition of probation. That is, peti-

tioner was afforded a full hearing on the merits and

was found to have allowed obscene conduct. It would

appear that petitioner has the option yet of terminat-

ing the injunction by moving to proceed to judgment

or by otherwise moving to terminate the proceedings

in the superior court. Compare People v. Mason, 5

Cal.3d 759, 764 (1971). Thus even if the instant

injunction is viewed as embracing some conduct that ©

is within the First Amendment’s protection, the in- —

junction is nevertheless valid because petitioner has ©

waived those First Amendment benefits to avoid the ©

abatement judgment. Compare Zap v. United States, ©

328 U.S. 624 (1946) [advance waiver of right to ©

privacy given to obtain government business].

We submit that the injunction constitutes a valid ©

restraint.

CONCLUSION

For the stated reasons, the People of the State of :

California respectfully: urge this Court to deny the

petition for writ of certiorari.

Dated, January 10, 1973.

EVELLE J. YOUNGER,

Attorney General of the State of California,

Epwarp A. Hinz, JR.,

Chief Assistant Attorney General—

Criminal Division,

Doris H. Maier,

Assistant Attorney General—Writs Section,

Epwarp P. O’BRIEN,

Assistant Attorney General,

Wu D. STEIN,

Deputy Attorney General,

EUGENE W. KASTER,

Deputy Attorney General,

Attorneys for Respondent and

Real Party in Interest.

(Appendices Follow)

Appendix A

In the Superior Court of the State of California,

in and for the County of San Mateo

No. 149826

The People of the State of California ex |

rel. Keith Sorenson, District Attorney

County of San Mateo,

Plaintiff,

against ;

Philip Joseph Maita, August Vennemeyer, q

and a certain portion of land and build-

ing thereon known as Easy Street Bar,

situated at 2322 South El Camino Real,

City of San Mateo, State of California,

as Mortgagee and lessee, and all other

persons unknown claiming any right, title

or interest in the property affected by

this action, seeieestiie ;

eren .

4 4

[Filed Jan. 27, 1970]

MEMORANDUM DECISION

The hearing of the above entitled matter (temp-

orary,/preliminary injunction under Section 11225,

and following Sections of the Penal Code of the State

of Californie, ‘Red Light Abatement Law”,) having

been heretofore submitted for consideration and de-

cision, now the Court, having considered the same

eee eet

PEGA LS ye PE Ce

Oe een eee

and being fully advised herein, renders the following

decision :

The defendant raises the question of this Court's

jurisdiction to act in the matter; so this will be dealt

with at the outset.

Jurisdicti

The defendant argues that Penal Code Section

11225 does not apply to the instant case and there-

fore the Court has no jurisdiction to act. In this re-

gard the defendant argues that since the section is

entitled “‘Place of Prostitution, a Nuisance” without

mention of lewdness or assignation, the legislature

only intended the statute to apply when the element

of prostitution was present in conjunction with lewd-

ness or assignation.

nuisance which shall be enjoined, abated, and pre-

vented, whether it is a public or private nusance.”

(Emphasis added.)

Thus the language of the section clearly indicates

that the legislature intended that the elements be

applied disjunctively. The title to the section is not

controlling.

Furthermore, in People v. Arcega, 49 C.A. 239

(1920), the court states:

“ _ . obviously the nuisance upon which the

statute places its ban may consist alone of acts

of lewdness.”

The defendant argues that to allow the District At-

torney to use section 11225 is to reduce the burden

of proof from beyond a reasonable doubt and to

deprive the defendant of a trial by jury.

The answer to this argument, put quite simply, is

that this is not a criminal action against the defend-

ant Maita per se, but a civil action to abate a nui-

sance, i.e. to close a building.

Defendant argues that equitable relief should not |

be available because there is an adequate remedy at _

law, i.e. criminal charges against the defendant Maita. —

The answer to this argument would appear to be

that the legislature has chosen to make the equitable

remedy available (“‘shall be enjoined, abated ...”) |

and it would appear that the legislature has thus ~

made a binding determination that other and existing

remedies are not in fact adequate.

Defendant argues that equitable jurisdiction, if

present, should not be exercised to enjoin the com-

mission of a crime.

However, defendant's own citation of People v. Lim,

18 C.2d 872 (1941), would appear to dispose of the

matter. In Lim, the court stated that equity is loath

to interfere where the standards of public policy can

be enforced by resort to the criminal law, and in the

absence of a specific legislative declaration to that

effect, the courts should not broaden the field in

which injunctions against criminal activity will he

granted. The simple answer is that section 11225 is

just such a specifie legislative declaration. See also

in this regard Burton v. Superior Court, 68 C. 2d 684,

693.

Defendant argues that a preliminary injunction

would violate the usual purpose of preserving the

status quo until trial and judgment.

While defendant is correct in stating that the effect

of the preliminary injunction would be to change the

status quo, the answer to his argument appears to be

that this is exactly the procedure and the effect that

the statute contemplates.

The defendant argues that section 11225 is over-

broad and excessive in its impact in view of the fact

that the alternative means of criminal prosecution is

available to enforce the legitimate governmental ob-

jective of prohibiting the publie display of lewd or

obscene conduct.

In explaining this theory, the Supreme Court in

Vogel v. County of Los Angeles, 68 C. 2d 18 (1967),

held:

“Precision of regulation is required so that

the exercise of most precious freedoms will not be

unduly curtailed ercept to the extent necessitated

by the legitimate governmental objective.” (Em-

phasis added.)

The United States Supreme Court expressed the

rule in Shelton v. Tucker, 364 U.S. 479 (1960), where-

in it stated:

“Even though the governmental purpose be le

gitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fundamental

personal liberties, when the end can be more

narrowly achieved.” (Emphasis added.)

Or as counsel for the defendant so quaintly puts it,

“This declaration of constitutional law prohib-

its the meat cleaver where the scalpel, the more

sensitive tool, will do; . . .”.

The point is that in the instant case, section 11225

is in fact the more sensitive tool, the scalpel as op-

posed to the meat cleaver of criminal punishment. Is

not imprisonment more prone to stifle fundamental

personal liberties than the civil abatement of a nui-

sance? Is not the legitimate governmental interest in

preventing lewd or obscene conduct or displays more

narrowly achieved by closing of a building and opera-

tion than by imprisonment of the defendant? Thus it

would appear that section 11225 is, when compared to

the alternative of criminal prosecution, far less sub-

versive of or burdensome on fundamental First

Amendment rights.

Defendant argues that this Court should not order

a preliminary injunction due to the continual develop-

ment, interpretation and refinement of the statutes

regulating obscene material.

Counsel is certainly correct in his assertion that

the law of obscenity has been undergoing almost con-

stant change and reinterpretation by our appellate

courts. Indeed where or when the law will finally rest,

we do not know. The Court must, however, take the

law as it finds it, as it exists teday, not as it may or

may not exist sometime in the future. Trial Courts

+1 ae geome Te

Rewer ere

must decide cases when they are submitted to them;

Judges are not permitted the luxury of the scholar

who can await further development in the law before

committing himself. Courts must not and cannot

shrink from their duty to make decisions when they

are called upon to do so, by the law as it exists at

that point in time. Thus the Court may not shirk its

duty because the law is in a state of flux.

Defendant argues that even assuming the Court

finds the conduct upon the premises to be lewd (i.e.,

obscene In Re Giannini 69 C. 2d 563, 1968), the prem-

ises still does not necessarily constitute a nuisance

and further that the People have failed in any event

to prove that Easy Street constitutes a nuisance.

Section 11225 clearly states that every building in

which acts of lewdness occur, “‘is a nuisance which

shall be enjoined . . .” (Emphasis added.)

Counsel for the defendant cites several cases for

the proposition that a house of prostitution is a nui-

sance per se and argues that since there is no claim

of prostitution at Easy Street, the People must prove

not only that lewd conduct occurs therein but also

that it otherwise constitutes a nuisance. This argu-

ment ignores the plain language of the section. Clearly

a building in which acts of lewdness occur is a nui-

sance per se under section 11225. See also in this

regard People v. Arcega.

For the foregoing reasons the Court does have the

jurisdiction to make a decision as to the obscenity

(and therefore lewdness) of the conduct at Easy

Street and, if the Court finds that said conduct is

Been cameo mage STs tee

vii

obscene within the meaning of the law, to abate the

operation as a nuisance under section 11225 of the

Penal Code.

Easy Street—Lewdness, Obscenity

The Court having decided on its jurisdiction to deal

with this matter, the focus of determination is

whether the conduct and entertainment carried on

and offered at the Easy Street Night Club, 2322 El

Camino Real, San Mateo, San Mateo County, Cali-

fornia, is lewd or obseene as those terms are defined

by California statute and decision law. (Lewdness and

obscenity are synonymous under California law and

have been so treated by the parties herein.)

If the finding determines that the lewdness/obscen-

ity exists then Section 11225, and following sections

of the Penal Code, must be enforced and injunctive

and abatement relief ordered as prescribed.

In essence, the entertainment provided at Easy

Street for the paying adult public (being served by

nude, that is, topless and bottomless waitresses) is (1)

nude dances—this is easily understandable to and ap-

tion of color motion pictures of nude males and fe-

males engaging in numerous types of gyrations and

sexual activities, including graphie and explicit views

of sexual intercourse and oral genital copulation. The

nude dance performances ‘‘Cucumber Dance” and

“‘Snake Dance”, as described, each appear to be de-

signed to represent sexual activity connotations. Sex-

ual play is designed to he predominant, particularly

in the movies, and to an ascertainable extent, in the

nude dances—this is easily understandable to and ap-

PPR EO RR

viii

preciated by the average adult recipient of the view-

ing. One does not have to be possessed of the capacity

to artistically discern the message to the average per-

son (patron) is basically and patently clear. Were it

not so, the whole thing would be completely meaning-

less; and, it does not take a ditry mind to arrive at

this conclusion. The old cliché that “it is in the mind

of the beholder” that determines what is obscene is

really not a truism, under these circumstances. If

matters are so graphically and explicitly presented

and portrayed that there is no other conclusion to be

drawn than that which is intended by the producer

then the “‘beholder” is possessed of a mind which is,

in essence, captive; at this point he has no choice

except to logically accept the offering in conformity

with the design. While the “beholder” proposition

might well apply in many instances, and this is

granted, it must be analyzed in the light of the cir-

cumstances, in all fairness, of the given case. Now,

let us consider the particular case of Easy Street.

The three elements of what is obscene (or lewd)

are clear; the interpretation, in any given case, is

unclear. Our statutory and decision law in California

define obscene matter as that which taken as a whole,

the predominant appeal of which to the average per-

son, applying contemporary standards, is to prurient

interest, i.e. a shameful or morbid interest in nudity,

sex or excretion ; and is matter which taken as a whole

goes substantially beyond customary limits of candor

in description or representation of such matters; and

is matter which taken as a whole is utterly without

redeeming social importance or value.

How do the offerings, entertainment and conduct

at Easy Street fit into the elements of the definition

of obscenity (lewdness) just herein described? In Re

Giannini 69 C. 24 563 (1968) supra, establishes the

principles that (1) the community standard is the

state-wide community, that is, the State of California,

and (2) evidence of community standards (expert)

must be introduced for the benefit of the court and/or

the jury. Giannini, among other matters, quoting

from other cases, states: “‘Community standards . .

can . . hardly be established except through experts

_.. There is no external measuring rod for obscenity.

Neither, on the other hand, is its ascertainment a

merely subjective reflection of the taste or moral

outlook of individual jurors or individual judges...

Their interpretation ought not to depend solely on the

necessarily limited, hit-or-miss, subjective view of

what they are believed to be by the individual juror

or judge. It bears repetition that the determination

of obscenity is for juror or judge, not on the basis

of his personal upbringing or restricted reflection or

particular experience of life, but on the basis of ‘con-

temporary community standard.’ ” Tn this day and age

where the rights of persons are zealously protected,

in all forms of adversary litigation, it is hard to

understand why a juror or judge cannot determine

‘community standards” because his judgment might

be tainted by ‘“‘personal upbsinging or restricted re-

flection (whatever that means) or particular experi-

ence of life.” At this point I think that jurors and

judges should be protected in their respective rights

to judge as the law traditionally empowered them so

to do. However, this court is bound by the dictates of

the decisions of our Supreme Court and will follow

them, as usual, and in this instance.

In the case we have had expert testimony on the

subject of “‘community standards” (in conformity

with the requirements set forth in Giannini, supra).

Among the witnesses was one Donald Shaidell of the

Obscenity Unit of the Los Angeles Police Depart-

ment; his expertise is on a statewide basis.

Mr. Shaidell, along with certain clinical psycholo-

gists, psychiatrists, clergy and officers of the Sexual

Freedom League presented testimony in the areas in-

volved herein; other than Mr. Shaidell, who confined

himself to standards, the other above named witnesses

gave testimony on redeeming social importance and

value, which related itself to the following effect: the

entertainment offered, particularly the movies, had

redeeming social importance and value because it re-

lieved or removed sexual hang-ups and was a further

therapy in that the viewers were given the opportun-

ity to observe and know other people, as we are not

so sure we know ourselves, as to certain portions of

our respective bodies. This Court concludes that as

far as therapy is concerned the only type involved

here is the financial therapy that is enjoyed by the

owner-operator of the night club in question, the

purveyor of the filth without any saving grace!

Several movies were shown, and other items of

paperhack books and other material were submitted

in evidence as ‘‘comparables” to indicate that what

was being offered at Easy Street was within what the

! xi

‘“‘eomparables” might indicate to be the community

standard. Among the foregoing items was the Berke-

ley Barb; if this constitutes a fair ‘‘eomparable”, then

trash is the keynote of journalism; it is hardly a fair

expression of legally sanctified free journalism; may

the patron saint of journalists get to work and tend

to his chores! The offered ‘“‘comparables”, including

the Berkeley Barb, while interesting as to attempted

proof of standards, do not establish the community

standard, as far as this court is concerned, in the

area of obscenity with which we are here concerned.

In Giannini, supra, the court states:

“Dancing consists in the rhythmical movement

of any or all parts of the body in accordance with

some scheme of individual or concerted action

which is expressive of emotions or ideas.” (7 En-

eyclopaedia Britannica (1945) pp. 13-14.) The

Century Dictiona~y and Cyclopedia defines dance

as follows: ‘‘danee—A succession of more or less

regularly ordered steps and movements of the

body, commonly guided by rhythmical intervals

of a musical accompaniment; any leaping or glid-

ing movement with more or less regular steps and

turnings, expressive of or designed to awaken

some emotion. The dance is perhaps the earliest

and most spontaneous mode of expressing emo-

tion and dramatic feeling; it exists in a great

variety of forms and is among some people con-

nected with religious belief and practice, as

among the Mohammedans and Hindus.” (2 The

Century Dictionary and Cyclopedia (1914) p.

1450.)

The Supreme Court has held that analogous

media of expression, such as motion pictures,

oAEe ae Ce es

SS Se OP

“9

come ‘‘within the ambit of the constitutional

guarantees of freedom of speech and of the press.

Joseph Burstyn, Ine. v. Wilson, 343 U.S. 495 (96

L.Ed. 1098, 72 S.Ct. 777).” (Jacobellis v. Ohio

(1964) 378 U.S. 184, 187 (12 L.Ed.2d 793, 797,

84 §.Ct. 1676) (judgment of the court per Bren-

nan, J.) ; see also Flack v. Municipal Court (1967)

66 Cal.2d 981 (59 Cal.Rptr. 872, 429 P.2d 192).)

**It cannot be doubted that motion pictures are a

significant medium for the communication of

ideas. They may affect public attitudes and be-

havior in a variety of ways, ranging . . . to the

subtle shaping of thought which characterizes all

artistic expression. The importance of motion

pictures as an organ of public opinion is not less-

ened by the fact that they are designed to enter-

tain as well as to inform.” (Joseph Burstyn, Inc.

v. Wilson (1952) 343 U.S. 495, 501 (96 L.Ed.

1098, 1105, 72 S.Ct. 777).) (Fn. omitted; italics

added.)

The use of the language ‘‘. . . organ of public

opinion . . .” above quoted is either a Freudian slip

or a designed apt expression because the dances at

Kasy Street in the nude and with gimmicks indeed

communicate ideas, obscene in nature and designed

as such. Cucumber, snake?? Phallic symbolism ??

Conclusion

In People v. Noroff 67 C.2d 791 (1967), followed

in In Re Panchot 70 A.C. 109 (1968), the Supreme

Court of this State, in decision, expressed the fol-

lowing:

“The United States Supreme Court has wisely

recognized that ultimately the public taste must

eee

determine that which is offensive to it and that

which is not; a public taste that is sophisticated

and mature will reject the offensive and the dull;

it will in its own good sense discard the tawdry,

and once having done so, the tawdry will disap-

pear because its production and distribution will

not be profitable. Understandably, such maturity

does not come quickly or easily, and, in a time

when the strictures of Victorianism have been

replaced by wide swings of extremism, it seems

hopelessly remote.

(4) Yet this court is bound, of course, by

the decisions of the United States Supreme Court.

That court has imposed its prohibitions only at

the outer limits of the area of publication, leav-

ing to the public the task of voluntarily casting

out the offensive. That court has held that the

representation of the nude human form in a non-

sexual context is not obscene. The Supreme Court

has decided that the judiciary cannot engage in

the task of placing legal fig leaves upon variegated

presentations of the human figure. That court has

told us that no matter how ugly or repulsive the

presentation, we are not to hold nudity, absent

a sexual activity, to be obscene. In the materials

before us we find some of the poses of the sub-

jects to be inexcusably replusive, and we trust

that a discerning public will discard and reject

them. But the decisions of the United States Su-

preme Court tell us that the task of rejection lies

not with us but with the public.” (Emphasis —

added.)

}

Easy Street entertainment, as herein indicated,

has sexual context and portrays graphic and explicit

sexual activity. This complies with the dictates of

ee Tie |

xiv

the Supreme Court of the United States and of the

Supreme Court of this State on what shall be de-

termined as obscene.

If there ever was a time to affiz and appropriately

put in place the “‘legal fig leaf” this is it! If this be

not the time to institute ‘‘operation fig leaf”, then

we must forget this whole bit about obscenity and

go about our way and do our thing as we personally

see fit; the word “obscenity”, on this basis, can effec-

tively be removed from both our vocabulary and dic-

tionary, and the problem put to rest in an unmarked

grave!

The conduct and entertainment at Easy Street,

taken as a whole, is such that the predominant appeal

is to prurient interest, and is a matter which, taken

as a whole, goes substantially beyond customary limits

of candor in description or presentation of such mat-

ters; and is a matter which, taken as a whole, is

utterly without redeeming social value or importance.

The injunction is granted as prayed, and abatement

is ordered pursuant to Section 11227 of the Penal

Code of the State of California.

Counsel for Plaintiff will prepare the appropriate

order.

Dated: January 26, 1970.

/s/ James T. O'Keefe

Judge of the Superior Court

Appendix B

In the Court of Appeal

State of California

First Appellate District

Division Two

1 Civil No. 31,155

Philip Joseph Maita, Petitioner, :

Vs.

Superior Court, County of San Mateo,

Respondent.

People of the State of California, Real

Party in Interest.

[Filed May 19, 1972]

By the Court:

The petition for a writ of certiorari is denied.

Dated May 19 1972

Taylor, P.J.

In the Court of Appeal

State of California

Firet Appellate District

Drviston Two

1 Crim. No. 10552

In re Philip Joseph Maita on Habeas

Corpus.

[Filed May 19, 1972]

By the Court:

The petition for a writ of habeas corpus is denied.

Dated May 19 1972

Taylor, P.J.

Appendix C

—_-_-_-_-——~

Clerk’s Office, Supreme Court

4250 State Building

Jun 15 1972

Dear Sir: I have this day filed Order .

Jun 15 1972

Hearing Denied

In re: 1 Crv. No. 31155

Maita

Superior Court, San Mateo

Respectfully,

G. E. Bishel

Clerk

Appendix D

ARGUMENT PRESENTED TO THE CALIFORNIA COURT

OF APPEAL ON THE SIXTH AMENDMENT

AS A MATTER OF FEDERAL CONSTITUTIONAL LAW,

PETITIONER WAS ENTITLED TO TRIAL BY JURY

The foregoing discussion dealt exclusively with pe-

titioner’s right to trial by jury according to California

law. That California may confer upon its citizens

a more extensive right to trial by jury than is man-

dated by the United States Constitution is clear.

See Baker v. City of Fairbanks (Alaska, 1971) 471

P. 2d 386; New State Ice Co. v. Letbmann (1924)

285 U.S. 262, 311, dissenting opinion of Brandeis, J.

Nonetheless, petitioner had a separate, independent

right to a jury trial under the Sixth Amendment to

the United States Constitution. The United States

Supreme Court has held that all citizens are entitled

to a jury trial where the offenses charged are not

“petty.” Duncan v. Louisiana (1968) 391 U.S. 145;

Baldwin v. New York (1971) 399 U.S. 66. A petty

offense as defined by the Court is one for which the

maximum penalty does not exceed six months, impris-

onment.

Here petitioner was facing the loss of his liberty

for a maximum period of two years, standing accused

of four counts of contempt, each of which carried

a maximum penalty of six months in jail. Since the

maximum penalty to which he could have been sub-

jected far exceeded the “petty” limitation, petitioner’s

case falls within the rule of Bloom v. Illinois (1968)

392 U.S. 194, and he was entitled to a jury trial.

Appendix E

ARGUMENT PRESENTED TO THE CALIFORNIA

SUPREME COURT ON THE SIXTH AMENDMENT

AS A MATTER OF FEDERAL CONSTITUTIONAL LAW,

PETITIONER WAS ENTITLED TO TRIAL BY JURY

The foregoing discussion dealt exclusively with pe-

titioner’s right to trial by jury according to Califor-

nia law. That California may confer upon its citi-

zens a more extensive right to trial by jury than is

mandated by the United States Constitution is clear.

See Baker v. City of Fairbanks (Alaska, 1971) 471

P. 2d 386; New State Ice Co. v. Letbmann (1924) 285

U.S. 262, 311, dissenting opinion of Brandeis, J.

Nonetheless, petitioner had a separate, independent

right to a jury trial under the Sixth Amendment to

the United States Constitution. The United States

Supreme Court has held that all citizens are entitled

to a jury trial where the offenses charged are not

“petty”. Duncan v. Louisiana (1968) 391 US. 145;

Baldwin v. New York (1971) 399 U.S. 66. A petty

offense as defined by the Court is one for which the

maximum penalty does not exceed six months’ im-

prisonment.

Here petitioner was facing the loss of his liberty

for a maximum period of two years, standing accused

of four counts of contempt, each of which carried a

maximum penalty of six months in jail. Since the

maximum penalty to which he could have been sub-

jected far exceeded the “petty” limitation, petition-

er’s case falls within the rule of Bloom v. Illinois

(1968) 392 U. S. 194, and he was entitled to a jury

trial.

DA! epP OBEY oe

EEL IE NES IO

Appendix F

1/Crim. 10552 & 1/Civil 31155

In the Court of Appeal of the State of California

First Appellate District, Division Two

Philip Joseph Maita, }

Petitioner,

vs.

The Superior Court of the State of California

in and for the County of San Mateo,

Respondent,

The People of the State of California,

DECLARATION UNDER PENALTY

OF PERJURY

I Wilbur Johnson say:

I am presently a Judge of the Municipal Court of

the Southern Judicial District of San Mateo County.

From 1958 to December 31, 1971, I was a Deputy

District Attorney of San Mateo County, and in that

capacity, I represented the People in the case of Pco-

ple v. Maita, San Mateo Superior Court No. 149826.

This was a proceeding brought under the Red Light

Abatement Law which sought to abate the Easy Street

Bar in San Mateo. The complaint in Action No.

149826 was filed on Decmeber 11, 1969, and the Su-

perior Court issued an order requiring the defend-

ants to show cause why a preliminary injunction

should not issue. Hearing on that order to show

xxi

cause was held December 17, 18, 22, 23, 29, 30 and

31, 1969, and January 6, 7, 8, 1970. The Superior

Court issued a temporary injunction on January 27,

1970. The defendants challenged the injunction by

filing a Petition for Writ of Prohibition in the Cali-

fornia Court of Appeal. The Petition for Writ of

Prohibition was denied on February 18, 1970, and the

defendant’s Petition for Hearing in the California

Supreme Court was denied March 19, 1970.

Subsequent to the denial of said Petition for Hear-

ing, I had conversations with Attorney Tenenbaum,

who represented defendant Maita. Mr. Tenenbaum

stated that his client would abide by the provisions

of the temporary injunction. It was thereupon agreed

that the hearing on the plea for abatement would be

taken off calendar until such a hearing was deemed

necessary by the parties.

I turned over the file in Action No. 149826 to an-

other deputy in 1970, but in my capacity as Chief

Deputy District Attorney, I retained a supervisory §

control of the case until my departure from the }

District Attorney’s Office on December 31, 1971. The

matter was not calendared for hearing on the plea

for abatement during the time that I was a Deputy |

District Attorney.

I declare under penalty of perjury that the fore-

going is true and correct.

1972. :

/s/ Wilbur N. Johnson

Wilbur N. Johnson

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.