# Opposition Brief — Maita v. Superior Court of California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1776%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 410 U.S. 942 ## 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 I 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 II 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 a 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 © V The conduct that is the target of the modified injunc- tion is not protected by the first amendment . . . . . . . . 3 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 4 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 j 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—~—™ 7 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. il 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. 12 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. 13 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 14 60 days, which leaves the case in a category where a state may proceed without offering the right to a jury trial. II 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- 17 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. VI 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 be iv 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 v 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 vi 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 é 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. ix 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.) . & : > z f ey } J i f x ¢ 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. ms [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 ie ARGUMENT PRESENTED TO THE CALIFORNIA COURT OF APPEAL ON THE SIXTH AMENDMENT V. 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 V. 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. ' > & : a E é # a DA! epP OBEY oe b 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. Executed at 750 Middlefield Road in the City of © Redwood City, County of San Mateo on April 20, © 1972. : /s/ Wilbur N. Johnson Wilbur N. Johnson --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1776%3A2. Public record. Not legal advice.