Petition for Writ of Certiorari — Tobalina v. California

=merr.

nace MAY 24 1974

Supreme Court of the bite ie

October Term, 1973

ee +3 1.4704

EFRAIN TOBALINA,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Appellate De-

partment of the Superior Court of the State of

California for the County of Los Angeles.

FLEISHMAN, MCDANIEL, BROWN &

WESTON,

By STANLEY FLEISHMAN,

6922 Hollywood Boulevard,

Suite 718,

Hollywood, Calif. 90028,

Attorney for Petitioner.

SAM ROSENWEIN,

Davip M. Brown,

Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

TID neti nn sc acennanenis eamntnantadanadsnciibaeanasanees 1

ae i oe ces awmachsombiomasocnieliie 1

CUOIEIOIS FUMIE ov.nssnccsecesscccccessessncccesscssscessscasens 2

Constitutional and Statutory Provisions Involved .... 4

IIE, © “sscctiahibiuhhacaansdaiiodiegimnreniennadnesenevtacaninnaeonna 5

How the Federal Questions Are Presented .......... 5

Reasons for Granting the Writ ............0000.0.. eee 11

SURI cc vesuislicaninbihansenaenamnenndsnmenannabenabesseaciasanans 20

INDEX TO APPENDICES

Appendix A. Judgment and Opinion of Appellate

SR IIIT: :sccsssunasitiiennnianceninadoninannatonmenennied App. p. 1

Appendix B. Order Denying Rehearing ................ 3

Appendix C. Constitutional and Statutory Provi-

BE MII | suichesihccichinnnnnninisndnncessumnncknsenixatessvancinien 4

wv

TABLE OF AUTHORITIES CITED

Cases Page

Ashton v. Kentucky. 384 U.S.195 ........ IG LIES 16

Bantam Books, Inc. v. Sullivan, 372 U.S.58 ........ 20

Blount v. Rizzi, 400 U.S.410 ........ yA RE UE SE 20

Burgin v. South Carolina, 404 U.S.806 .................... 19

Cole v. Arkanens, 333 U.S.196 .............2.0.-0cc0ccessseeee 17

DeJonge v. Oregon, 299 U.S.353 .................:.::22000 17

Enskat v. California (Oct. Term 1973), No.

Wale RUE A cissensnctansespuaatennuaaneguasnasenthtcaddhdakatetantaes 9, 18

Freedman vy. Maryland, 380 U.S.51 ....022....202.22002..... 20

Giaccio v. Pennsylvania, 382 U.S.399 _..002...... 16

Gooding v. Wilson, 405 U.S.518 -.............000000..220-02 16

Herndon v. Lowry, 301 U.S.242 ..0000...0.02..eeeeeeee ee 16

Interstate Circuit, Inc. v. Dallas, 390 U.S.676 ........ 16

Kaplan v. California, 413 U.S.115 -20 2

Marcus v. Search Warrants of Property, 367 U.S.717

iphdbecginliadehchibecsdedaniiakasansaiinadeasticidadiamantiansetslendéadmatiebibas 19

Memoirs v. Massachusetts, 383 U.S.413 _...000000000... 3, 11

ssp cai lebheniedhaiacadeaaetcaediasaeianieniaiaciiababindlts iz, 13, 17

Miller v. California, 413 U.S.15 ........ > 2m 88, 12

Papachristou v. Jacksonville, 405 U.S.156 ............ 16

Paris Adult Theatre I v. Slaton, 413 U.S.73 ....2, 12, 13

People v. Enskat, 33 Cal.App.3d 900, 109 Cal.

Rs FI sricteninncenellicen sect scarinnnintelacesined 8, 10, 17

Plummer v. City of Columbus, Ohio, 94 S.Ct.17 ...... 17

Rabe v. Washington, 405 U.S.313 ....0000000000e.. 17

Russell v. United States, 369 U.S.749 0000000020022... 17

Screws v. United States, 325 U.S.91 .000.. ee. 18

Smith v. California, 361 U.S.147 ............00..0..00..... a §9

Tobalina v. California, .... U.S. ..... 93 S.Ct. 3043

(Oct. Term 1971, No. 71-1587) ........................ 7

United States v. Oritc, 413 U.S.139 0000, 2

United States v. 12 200-Ft. Reels, 413 U.S.123 ... 2

Vachon v. New Hampshire, 94 §.Ct.664 .................. 19

Virginia Ry. Co. v. Mullins, 271 U.S.220 ................ 2

Wiener v. California, 404 U.S.988 _..........0.0... 19

Winship, In re, 397 U.S.358 0000... ee 17, 19

Winters v. New York, 333 U.S.507 .......................... 16

Zeitlin v. Arnebergh, 59 Cal.2d 901, 383 P.2d

134, 31 Cal Retr. 600 (1963) .............................. 11

Rules

California Rules of Court, Rule 24(a) ................ 2

California Rules of Court, Rules 28(b) .............. 2

California Rules of Court. Rule 62 .............0.. 2

Statutes

California Penal Code, Sec. 311 .............. oe oe

shasiishesienicenaatiah debutante nadie tues nm & 1,

Californa Penal Code, Sec. 311(e) 2.000.000.0000... 18

California Penal Code, Sec. 311.2 ................ ~~ ©

a Se ng Ie OPE om ORL | NE 6 7, 8% 11, 18

California Penal Code, Sec. 311.9 00000. 4

California Penal Code, Sec. 1471 .........000.......0... 2

United States Code, Title 28, Sec. 1257(3) ........ 2

aiunsir mabe keenaied 4, 5, 6, 8, 9, 14, 15, 16, 17, 19

United States Constitution, Fourteenth Amendment

Gioisanidaumeainananel 2, 3, 4, 5, 6, 8, 9, 14, 15, 17, 19

IN THE

Supreme Court of the United States

October Term, 1973

SOUIY. ccniviisaiieiins

EFRAIN TOBALINA,

Petitioner,

vs.

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for a Writ of Certiorari to the Appellate De-

partment of the Superior Court of the State of

California for the County of Los Angeles,

Petitioner Efrain Tobalina prays that a writ of cer-

tiorari issue to review the judgment and ruling of the

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles, en-

tered in the above-entitled action on February 6, 1974.

Opinions Below.

A memorandum opinion was rendered by the Ap-

pellate Department of the Superior Court of the State

of California for the County of Los Angeles on Feb-

ruary 6, 1974. A copy of the said memorandum opin-

ion and judgment appears in Appendix A hereto.

Jurisdiction.

The judgment and memorandum opinion of the Ap-

pellate Department of the Superior Court of the State

jie seni

of California for the County of Los Angeles was cn-

tered on February 6, 1974 (Appendix A). A due and

timely petition for rehearing or, in the alternative, for

certification of the cause to the Court of Appeal was

denied by the said Appellate Department on February

27, 1974. A copy of the order appears in Appendix B

hereto.

By the aforesaid denial of the petition for rehearing

or, in the alternative, for transfer to the Court of Ap-

peal, the Appellate Department of the Superior Court

of the State of California for the County of Los An-

geles became the highest court of the State in which

a decision could be had. See, California Penal Code

$1471; California Rules of Court, Rule 62. See also,

California Rules of Court, Rules 24(a) and 28(b):

Smith v. California, 361 U.S.147, 148, fn.2; Virginia

Ry. Co. v. Mullins, 271 U.S.220, 222.

The jurisdiction of this Court is invoked under 28

U.S.C. §1257(3).

Questions Presented.

(1) Whether the provisions of California Penal

Code §$311 and 311.2, on their face and as construed

and applied to authorize the judgment of conviction

herein, violate the free speech and press and due proc-

ess provisions of the First and Fourteenth Amendments

and the interpretive decisions of the Supreme Court

rendered on June 21, 1973, in Miller v. California,

413 U.S.15; Kaplan v. California, 413 U.S.115; Paris

Adult Theatre I v. Slaton, 413 U.S.49; United States

v. Orito, 413 U.S.139; and United States v. 12 200-Ft.

Reels, 413 U.S.123.

(2) Whether the provisions of California Penal

Code §$311 and 311.2, which embody solely the Mem-

en, een

oirs tripartite standard: for judging obscenity, includ-

ing the “utterly without redeeming social importance”

test, on their face and as construed and applied to

authorize the judgment of conviction herein, are vague,

ambiguous, uncertain and overbroad, in violation of the

free speech ard press and due process provisions of

the First and Fourteenth Amendments and the afore-

said decisions of the Court rendered on June 21, 1973.

(3) Whether the provisions of California Penal

Code §§311 and 311.2, which embody solely the Mem-

oirs tripartite standards for judging obscenity, on their

face and as construed and applied to authorize the

judgment of conviction herein, without the use of a

national community standard test which at the time of

the trial of the petitioner limited state obscenity prose-

cutions, are vague, ambiguous, uncertain and over-

broad, in violation of the free speech and press and

due process provisions of the First and Fourteenth

Amendments and the aforesaid decisions of the Court

rendered on June 21, 1973.

(4) Whether the provisions of California Penal

Code §§311 and 311.2, which embody solely the Mem-

oirs tripartite standards for judging obscenity, and

which do not specifically define sexual conduct pur-

portedly subject to regulation, on their face and as

construed and applied to authorize the judgment of

conviction herein, are vague, ambiguous, uncertain and

overbroad, in violation of the free speech and press and

due process provisions of the First and Fourteenth

Amendments and the aforesaid decisions of the Court

rendered on June 21, 1973.

(5) Whether the provisions of California Penal

Code §§311 and 311.2, on their face and as construed

_

and applied to authorize the judgment of conviction

herein, without any instruction to the jury on the ap-

plicable law of the case with respect to the specifically

defined sexual conduct which the state obscenity stat-

ute purportedly proscribed, violate the free speech and

press and due process provisions of the First and Four-

teenth Amendments.

(6) Whether the provisions of California Penal

Code §$31! and 311.2, on their face and as construed

and applied to authorize the judgment of conviction.

without prcof of the essential element of scienter, vio-

late the free speech and press and due process provi-

sions of the First and Fourteenth Amendments.

(7) Whether the motion picture film here involved

is not obscene and is entitled to constitutional pro-

tection under the free speech and press and due process

provisions of the First and Fourteenth Amendments.

(8) Whether California Penal Code §$311, 311.2

and 311.9, as construed and applied to authorize con-

secutive terms of imprisonment for the exhibition of a

single film in a single theater on two different days,

prior to any judicial determination in an adversary pro-

ceeding that the film was obscene, constitute a prior

restraint on freedom of expression and deprive petition-

er of his liberty and property without due process of

law, in violation of the First and Fourteenth Amend-

ments.

Constitutional and Statutory Provisions Involved.

The pertinent provisions of the First and Fourteenth

Amendments to the Constitution of the United States

and the applicable provisions of California Penal Code

S$$211. 311.2 and 311.9 appear in Appendix C here-

to.

sealed

Statenient.

Two Complaints were filed in the Municipal Court

of the Los Angeles Judicial District, County of Los

Angeles, State of California, charging Petitioner with

the exhibitior: of a motion picture film entitled “Janu-

arius,” in violation of the state obscenity statute, Calli-

fornia Penal Code §311.2. One Complaint charged ex-

hibition of the film at a motion picture theatre, the

Mayan Theater, on May 28, 1971; the second Com-

paint charged the exhibition of the same film at the

same theatre on June 9, 1971.

The two Complaints were consolidated for trial, and

following a trial by jury, Petitioner was found guiliy on

both Complaints and on each conviction was sentenced

to the maximum penalty: six months in the county jail

and a fine of $1,000.00, the jail sentences to run con-

secutively.

How the Federal Questions Are Fresented.

1. In the trial court. petitioner raised among

others, the following constitutional questions: (a) That

the evidence of scienter, ard the instructions with re-

gard thereto, failed to satisiy the constitutional stand-

ards enunciated by this Court in Smith v. California,

361 U.S.147; (b) that the film involved was not ob-

scene, but rather was entitled to constitutional protec-

tion under the First and Fourteenth Amendments: (c)

that the court’s instructions to the jury to judge the

challenged film according to state-wide rather than na-

tional community standards violated federal constitu-

tional principles enunciated by this Court: and (d)

that the trial court’s instructions with respect to the

constitutional standards and criteria for judging alleged

obscenity were erroneous and inconsistent.

wilds

2. On appeal to the Appellate Department, peti-

tioner contended, among other things, that: (a) Calli-

fornia Penal Code §§311 and 311.2, on their face and

as construed and applied to authorize the 'udgment of

conviction without any evidence that petitioner knew

the alleged obscene character of the film, violated the

free speech and press and due process provisions of

the First and Fourteenth Amendments; (b) the motion

picture film “Januarius” is not obscene and is entitled

to constitutional protection under the free speech and

press and due process provisions of the First and Four-

teenth Amendments; (c) California Penal Code $§311

and 311.2, as construed and applied to authorize

the judgments of conviction solely on the basis of a

state standard instead of a national standard, violated

the free speech and press, due process and equal pro-

tection provisions of the First and Fourteenth Amend-

ments; (d) California Penal Code §§311 and 311.2,

as construed and applied to authorize the judgments

of conviction based upon the conflicting, misleading

and erroneous instructions of the trial court with re-

spect to the issues of scienter and the standards and

criteria for judging obscenity. violated the free speech

and press and due process provisions of the First and

Fourteenth Amendments; and (e) the construction and

application of the said statutes to authorize consecu-

tive punishments for the exhibition of a single film in a

single theater on two different days, constituted a prior

restraint on freedom of expression, deprived petitioner

of his liberty without due process of law, and con-

stituted double punishment, in violation of the provisions

of the First and Fourteenth Amendments.

The Appellate Department rejected petitioner's fed-

eral constitutional claims without written opinion and

mn, eee

affirmed the judgment of conviction on March 8,

1972. A due and timely petition for rehearing or, in the

alternative. for certification of transfer to the Court

of Appeal was denied on March 22, 1972. A petition

for a writ of certiorar: was thereafter duly filed with

this Court and was granted on June 25, 1973. Tobalina

v. California, ...... U.S. ......, 93 S.Ct. 3043 (October

Term 1971, No. 71-1587). The petition for writ of

certiorari was granted, the judgment of the Appellate

Department vacated, and the case remanded to the

Appellate Department for further consideration in light

of the decisions of this Court on June 21, 1973.

3. Following remand to the Appellate Department

of the Superior Court of California for the County of

Los Angeles, there was further briefing and argument

before the said court. Petitioner urged. in addition to

all previous contentions, that the judgment of convic-

tion should be reversed upon the following grounds,

among others: (a) The standards for judging obscenity

embodied in the provisions of California Penal Code

§§311 and 311.2 have been rejected as constitutionally

impermissible by the rulings of the Court on June 21.

1973; (b) the aforesaid provisions under which the

judgment of conviction was rendered are vague, am-

biguous, uncertain and overbroad; (c) the standards

for judging obscenity contained in the statute are un-

workable and incapable of objective measurement; (d)

the statute fails to proscribe specifically defined sexual

conduct: (e) the proceedings against petitioner arbi-

trarily. capriciously and discriminatorily deprived peti-

tioner of his liberty and property without due process

of law. abridged the exercise of freedoms of speech

and press. denied the equal protection of the laws, and

inflicted cruel and unusual punishment, in violation of

asia

the First and Fourteenth Amendments to the United

States Constitution; (f) the state obscenity statute, on

its face and as construed and applied to authorize the

jury to return a verdict of guilt against petitioner,

without any instructions relative to the specifically de-

fined sexual conduct allegedly proscribed by the law,

as judicially construed, deprived petitioner of his liberty

and property without due process of law and abridged

the exercise of freedoms of speech and press, contrary

to the provisions of the First and Fourteenth Amend-

ments to the United States Constitution; and (g) the

motion picture film here involved is not obscene and

is entitled to constitutional protection under the free

speech and press and due process provisions of the

First and Fourteenth Amendments.

4. Pending the ruling by the aforesaid Appellate

Department of the Superior Court, an intervening ruling

by the Court of Appeal of the State of California

was rendered which affected the ultimate ruling by the

Appellate Department. The circumstances were as fol-

lows:

Following the decisions of the Supreme Court of

June 21, 1973, the Court of Appeal of the State of

California, Second Appellate District, Division Five,

renderzd an opinion in a case entitled People v. En-

skat. 33 Cal.App.3d 900, 109 Cal.Rptr. 433. The

court rejected the claim that California Penal Code

§$311 and 311.2 were unconstitutional and unenforce-

able as a result of the decisions of this Court on June

21. 1973. as against claims that in the light of those

decisions the California state obscenity statute had been

rendered vague, ambiguous. uncertain and overbroad,

in violation of the free specch and press and due proc-

ess provisions of the First and Fourteenth Amendments.

— we

The Court of Appeal held that the state obscenity

Statute, as written, could continue to be applied in state

obscenity prosecutions.

A petition for hearing to the California Supreme

Court was denied on October 24, 1973. Among the

questions presented to the California Supreme Court

were whether the standard for judging obscenity em-

bodied in the California state obscenity statute have

been rejected as constitutionally impermissible by the

rulings of this Court on June 21, 1973, and wheth-

er the provisions of California Penal Code §§311 and

311.2 are vague, ambiguous, uncertain and overbroad,

since the standards for judging obscenity are unwork-

able and incapable of objective measurement and the

statute fails to proscribe specifically defined sexual con-

duct, ali in violation of the free speech and press and

due process provisions of the First and Fourteenth

Amendments to the United States Constitution.

The opinion and judgment of the Court of Appeal,

as aforestated, and the denial of hearing thereafter by

the California Supreme Court on October 24, 1973,

rejecting all constitutional objections to the state ob-

scenity statute, became binding upon the Appellate De-

partment of the Superior Court, County of Los An-

geles, State of California, in the then pending appeals

before it in obscenity prosecutions.

A petition for a writ of certiorari to the aforesaid

Court of Appeal in Enskat v. California has been filed

with this Court, October Term 1973. No. 73-1136.

5. As a result of the ruling by the Court of Ap-

peal in Enskat, the judgment of conviction in the case

herein was affirmed in a memorandum opinion on

February 6, 1974 (Appendix A), holding that the

= oo

standards set forth in Miller v. California, 413 U.S.15,

were met by the state obscenity statute in the light of

the decision by the Court of Appeal in Peopie v. En-

skat. As aforestated, a petition for rehearing or, in

\the alternative, for certification of transfer, was duly

‘filed by petitioner in the said Appellate Department of

the Superior Court and denied on February 27, 1974

(Appendix B). Thereafter, the remittitur issued from

the Appellate Department, but upon stipulation of coun-

sel for petitioner and respondent herein. the court

made its order recalling the remittitur and staying

issuance of the remittitur to and including April 15,

1974, to permit petitioner to file a petition for a writ of

certiorari in the Supreme Court, with the further proviso

that any further stay was to come from the Supreme

Court or a Justice thereof. On April 8, 1974, an order

was made by Mr. Justice Douglas, continuing the order

recalling the remittitur and staying its issuance, pend-

ing reconsideration of the application when the memo-

randum of the respondent 1s received.

re) ee

REASONS FOR GRANTING THE WRIT.

1. The provisions of the California obscenity law

(Penal Code §$311, 311.2) solely embody the Memoirs

test. The statute defines “obscene matter”, taken as a

whole, the predominant appeal of which to the average

person, applying contemporary standards, is to a pru-

rient interest, i.e., a shameful or morbid interest in sex,

- nudity or excretion; and is matter which, taken as a

whole, goes substantially beyond customary limits of

candor in the depiction or representation of sex or

nudity; and is matter which, taken as a whole. is utterly

without redeeming social importance. The stuite legisla-

ture “intentionally incorporated as part of the definition

itself the important provision that obscene matter ‘is

matter which is utterly without redeeming social im-

portance’, changing the function of these words from a

description of a matter of defense to an element of the

offense”. Zeitlin v. Arnebergh, 59 Cal.2d 901, 383 P.

2d 152, 31 Cal.Rptr.800, 812 (1963). See, Memoirs

v. Massachusetts, 383 U.S.413.

The state obscenity law does not define for regula-

tion any specific sexual conduct. The petitioner herein

was tried for an offense allegedly committed in 1969,

and the standards for judging obscenity which were

used by the trial judge and jury in the case, resulting

in the judgment of conviction herein, were predicated

solely upon the tripartite test as appears in the state ob-

scenity law.

2. In Miller v. California, 413 U.S.15, this Court

noted that since the decision in Roth, no majority of th:

Court had at any given time been able to agree on a

standard to determine what constituted obscene, porno-

graphic material subject to regulation under the Statc’s

on

police power. The Court stated that “. . . we are called

on to define the standards which must be used to iden-

tify obscene material that a State may regulate without

infringing the First Amendment as applicable to the

States through the Fourteenth Amendment” (413 U.S.

at 19-20).

Before enunciating the standards for judging ob-

scenity, the Court unanimously rejected the Memoirs

test. “The case we now review was tried on the theory

that the California Penal Code §311 approximately in-

corporates the three-stage Memoirs test, supra. But now

the Memoirs test has been abandoned as unworkable

by its author and no member of the Court today sup-

ports the Memoirs formulation.” (413 U.S. at 23).

The opinion of the Chief Justice noted the observation

by Justice Harian that “utterly without rede:ming social

value” did not seem to have “any meaning at all”.

Moreover, stated the majority opinion: “We do not

adopt as a constitutional standard the ‘utterly without

redeeming social value’ test of Memoirs v. Massachu-

setts.” (413 U.S. at 24). Further, it was emphasized,

“We also reject, as a constitutional standard, the am-

biguous concept of ‘social importance’.” (413 U.S. at

25, n.7) (Emphasis added). Justice Brennan, dissent-

ing in Paris Adult Theatre I v. Slaton, 413 U.S. at 73,

to which the Chief Justice pointed in Miller, agreed

that the Court had “failed to formulate a standard that

sharply distinguishes protected from unprotected

speech”, (413 U.S. at 83) and that none of the differ-

ing formulas enunciated by the individual Justices in

the past could “reduce the vagueness to a tolerable

level” (413 U.S. at 84). As a result of “our failure

to define standards with predictable application”. the

past had been marked by a “lack of fair notice” and a

a)

“chill on protected expression” (413 U.S. at 93). And

Mr. Justice Douglas added in his dissenting opinion in

Miller: “The Court has worked hard to define ob-

scenity and concededly has failed.” (413 U.S. at 37).

Petitioner submits, with deference, that the only con-

clusion which can be drawn from the opinion of the

Court in the quintet of decisions rendered on June 21,

1973, is that a statute which purports to identify and

delimit “obscenity” by a test of “utterly without redeem-

ing social importance” is constitutionally unacceptable.

In the view of this Court, the test is unworkable, in-

operable, unachievable, vague and ambiguous. It is, in

the words of this Court, ambiguous and vague and can-

not be accepted “as a constitutional standard”.

3. Another prong of the tripartite test of Memoirs

which this Court found constitutionally infirm was the

“national community” standard. This Court described

such standard as “unrealistic” and “an exercise in fu-

tility’. A national standard was termed “hypothetical”

and “unascertainable”; a standard which was not “rzov-

able” and “neither realistic nor constitutionally sound”

(413 U.S. at 31-32). Thus, the “national stand-

ard” test was found to be clearly unconstitutional. Nev-

ertheless, such standard was “correctly regarded at the

time of trial as limiting state prosecution under the

controlling case law” (413 U.S. at 30-31).

Unlike the record presented in the case of Miller v.

California, the petitioner here constantly objected to

the use of a state community standard instead of a na-

tional community standard. as then required under the

interpretive decisions of this Court. On appeal, peti-

tioner specifically urged that the state obscenity law. as

construed and applicd to authorize the judgment of

——

sisi ins

conviction, solely upon the basis of a state standard in-

stead of a national standard, violated the free speech

and press and due process provisions of the First and

Fourteenth Amendments.

Thus, petitioner was not only tried under the consti-

tutionally vague and ambiguous standard of “utterly

without redeeming social importance”, but he was also

refused a trial under a “national standard of First

Amendment protection”, correctly regarded at the time

of trial “as limiting state prosecution under the control-

ling case law”.

4. As heretofore stated, the state statute under

which the judgment of conviction rests does not spe-

cifically define any physical sexual conduct allegedly

subject to regulation. The statute only proscribes ex-

pression. This, again, is a defect of constitutional di-

mension, as the Court in iis decisions of June 21.

1972, made clear.

“We acknowledge, however, the inherent d-.nzers

of undertaking to regulate any form of expres-

sion. State statutes designed to regulate obscene

materials must be carefully limited. . . . As a re-

sult, we now confine the permissible scope of such

regulation to works which depict or describe sex-

ual conduct. That conduct must. be specifically de-

fined by the applicable state law, as written or

authoritatively construed . . . The basic guide-

lines for the trier of facts must be: ... (b)

whether the work depicts or describes, in a patent-

ly offensive way, sexual conduct specifically de-

fined by the applicable state law . . . We em-

phasize that it is not our function to propose regu-

latory schemes for the States. That must await

a: va

their concrete legislative efforts. It is possible, how-

ever, to give a few plain examples of what a state

statute could define for regulation under the sec-

ond part (b) of the standard announced in this

opinion . . . Under the holdings announced today,

no one will be subject to prosecution for the sale

or exposure of obscene materials unless these ma-

terials depict or describe patently offensive ‘hard

core’ sexual conduct specifically defined by the

regulating state law, as written or construed.”

(413 U.S. at 23-27).

Since the requirement that a state statute specifically

define the sexual conduct the State proposes to regu-

late was deemed by this Court in Miller to be a critical

due process requirement in order to satisfy that “pre-

cision of regulation” which the First Amendment de-

mands, the absence of such specificity in California

Penal Code §§311 and 311.2 is a third ground for in-

validating the judgment of conviction herein.

5. In the light of the foregoing, the provisions of

the state obscenity law are vague, ambiguous, uncer-

tain and overbroad. The statute, on its face and as con-

strued and applied to the petitioner herein, violates the

free speech and press and due process provisions of

the First and Fourteenth Amendments and the inter-

pretive decisions of this Court. A trial conducted under

statutes which are unascertainable, ambiguous, without

clear meaning, incapable of objective measurement, and

not limited to specified conduct, is a deprivation of due

process in the most primary sense. Standards which

are not specifically defined in the law, and which are

incapable of objective measurement, fail to provide

adequate notice to persons who are engaged in activities

*

PBprreesesin scorn ctesonnes

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ne

ae

which the statute purports to proscribe. In an area

where First Amendment rights are implicated, the dan-

ger of such lack of meaningful standards is that the

statute may sweep within its ambit expression ordinar-

ily entitled to constitutional protection. Such statutes

lend themselves to arbitrary and capricious enforce-

ment by law enforcement officers and prosecutors and

result in capricious and erratic judgments by courts

and juries. Plummer v. City of Columbus, Ohio, 94

S.Ct.17; Gooding v. Wilson, 405 U.S.518; Interstate

Circuit, Inc. v. Dallas, 390 U.S.676; Papachristou v.

Jacksonville, 405 U.S.156; Ashton v. Kentucky, 384

U.S.195; Giaccio v. Pennsylvania, 382 U.S.399; Win-

ters v. New York, 333 U.S. 507.

The submission of the issues to the jury in this case,

in the light of the absence of constitutionally accepted

standards for judging obscenity, amounted to no more

than a request for the jurors to assert their own sub-

jective and unguided predilections with respect to the

suppression of a motion picture film. The petitioner was

deprived of a jury trial in the constitutional sense be-

cause the jury was merely licensed to create its own

law of the case, its own personal standards. See, Hern-

don v. Lowry, 301 U.S.242.

The trial in the case herein, conducted as it was

under the existing statutes, was a denial of due process.

The statute does not contain the specific sexual con-

duct proscribed. The standards which are contained in

the statute have been held to be constitutionally in-

firm. The law therefore did not give fair notice to this

petitioner of what was forbidden. Neither the charge nor

the proof at the trial ever gave petitioner fair notice

that criminal liability was dependent upon violations of

_=,

specifically defined conduct or standards contained in

the statute. See, Rabe v. Washington, 405 U.S.313;

Russell v. United States, 369 U.S.749; DeJonge v. Ore-

gon, 299 U.S.353; Cole v. Arkansas, 333 U.S.196.

Even the rudimentary requirements in criminal prose-

cutions of proof of guilt beyond a reasonable doubt

(In re Winship, 397 U.S.358) were violated when pe-

titioner in this case was compelled to stand trial under

the state obscenity statute which, on its face and as

construed and applied, is vague, ambiguous, uncertain

and overbroad.

6. The Enskat ruling which became binding upon

the Appellate Department of the Superior Court below

appears contrary to the principles enunciated by this

Court on June 21, 1973. In essence, the Enskat court

held that a state statute which entirely omits the pre-

requisite of sexual conduct specifically defined by law,

and which retains the tripartite test of Memoirs as the

sole basis for the suppression of expression and for

criminal prosecution thereunder, may be deemed valid

despite the free speech and press and due process pro-

visions of the First and Fourteenth Amendments to

the Constitution and the interpretive decisions of this

Court.

The Enskat court appears to have been of the view

that increased specificity in the state law was not re-

quired if the “utterly without redeeming social value”

test was retained. However, this Court in its decisions

of June 21, 1973, gave no indication that the retention

of the “utterly without redeeming social value” test

would in any way justify omitting specifically defined

sexual conduct from a statute. This Court emphasized

that if the requirements of due process notice are to

="

be met, a state statute must specifically define the

sexual conduct. Without such specificity in the statute,

an obscenity law is rendered unconstitutionally vague,

ambiguous, uncertain and overbroad. Contrary to the

view enunciated in Enskat, the California Supreme

Court has never authoritatively construed the state ob-

scenity statute to specifically include the sexual con-

duct which this Court held essential to the validity of

a state obscenity statute. See the discussion in the peti-

tion for a writ of certiorari in Enskat v. California,

October Term 1973, No. 73-1136, pages 19-24.

7. California Penal Code §311.2 makes it an of-

fense to “knowingly” exhibit any obscene matter. Penal

Code §$311(e) defines knowingly as meaning “being

aware of the character of the matter”. The trial court

instructed the jury that “knowingly” meant nothing

more than that petitioner knew the character of the

contents of the material in question. The court refused

to instruct the jury that the mental element requisite

in a constitutionally permissible prosecution was knowl-

edge of the obscene nature and character of the con-

tents. The petitioner contends that in failing to instruct

the jury with respect to the proper standard for judg-

ing scienter, the court committed constitutional error.

Failure to submit to a jury the essential ingredients

of the only offense on which a conviction can rest

deprives an accused of the right to a jury trial and to

the guarantees of due process. Screws v. United States,

325 U.S.91, 107. Petitioner contends that the proof in

an obscenity prosecution, in order to establish culpabil-

ity. must show that the accused knew the contents of

the material he was disseminating and was in some

manner aware that the material exceeded contemporary

standards in the depiction or representation of sex,

onlin

appealed to a prurient interest, and was utterly without

any social value or importance.

In addition, petitioner urged below and urges here

that the record is barren of any competent evidence to

establish beyond a reasonable doubt that the petitioner

here knew the alleged obscene nature and character of

the film. See, Vachon v. New Hampshire, 94 S§.Ct.664;

In re Winship, 397 U.S.358.

8. The state statute, as construed and applied to

the motion picture film here involved, violates the free

speech and press and due process provisions of the

First and Fourteenth Amendments. In the constitution-

al sense, the film is not obscene. The alleged offense

of exhibiting this film occurred in 1971. Comparable

material was subsequently held to be constitutionally

protected. Wiener v. California, 404 U.S.988:; Burgin v.

South Carolina, 404 U.S.866.

9. The exhibition of a single film at a single the-

atre, prior to any judicial determination of obscenity,

is essentially intended as a single act. A rule of law

which treats each exhibition as a separate criminal of-

fense would cause film exhibitors to censor and sup-

press many films dealing with sex for fear that their

estimation that the film was constitutionally protected

would ultimately prove wrong and subject them to mul-

tiple punishment. Such self-censorship tends to diminish

the circulation of expression entitled to constitutional

protection. See, Smith v. California, 361 U.S.147;

Marcus v. Search Warrants of Property, 367 U.S.717.

Further, if the state statutes are construed to permit

consecutive punishment for multiple showings of the

same film before its obscenity is judicially determined

in an adversary proceeding, the practical effect would

anitinn

be to force a film exhibitor to cease showing a film

simply because a complaint has been filed. Thus, films

could be effectively suppressed upon a mere allegation

by a policeman or prosecutor that a film is obscene.

See, Freedman v. Maryland, 380 U.S.5i; Blount v.

Rizzi, 400 U.S.410; Bantam Books, Inc. v. Sullivan,

372 U.S.58.

Conclusion.

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and ruling of the Appel-

late Department of the Superior Court of the State

of California for the County of Los Angeles.

Respectfully submitted,

FLEISHMAN, MCDANIEL, BROWN &

WESTON,

By STANLEY FLEISHMAN,

Attorne for Petitioner.

SAM ROSENWEIN,

Davip M. Brown,

Of Counsel.

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APPENDIX A.

Judgment and Opinion of Appellate Department.

In the Appellate Department of the Superior Court,

of the State of California for the County of Los An-

geles.

Superior Court Nos. CR A 10921, CR A 10922.

People of the State of California, Plaintiff and Re-

spondeut, vs. Efrain Tobalina, Defendant and Appel-

lant. People of the State of California, Plaintiff and

Respondent, vs. Maria Ayala, et al., Defendants; Ef-

rain Tobalina, Defendant and Appellant. Trial Court

No. 390628, 391000. On Appeal from the Municipal

Court of the Los Angeles Judicial District, County of

Los Angeles, State of California. Pat Mullendore,

Judge (311.2 PC).

Filed: Feb. 6, 1974.

This cause having been argued and submitted and

fully considered, judgment is ordered as follows:

It is Ordered and Adjudged that the judgments made

and entered in the Municipal Court of the Los An-

geles Judicial Disirict, County of Los Angeles, State of

California, in the above entitled causes be and the

same are hereby affirmed.

MEMO

After further consideration in light of Miller v. Cali-

fornia {1973] ........ i) ae [93 S.Ct.2607, 37 L.Ed.

2d 419], Paris Adult Theatre I v. Slaton [1973]

....U.S...... [93 S$.Ct.2628, 37 L.Ed.2d 446], Kaplan v.

California |1973| ....U.S..... {93 S.Ct.2680, 37 L.Ed.

2d 492|, United States vy. 12 200-Ft. Reels of Super

8 mm. Film [1973] ....U.S..... [93 S.Ct.2665, 37 L.

coin

3 Ed.2d 500], United States v. Orito [1973] ....US.....

[93 S.Ct.2674, 37 L.Ed.2d 513], Heller v. New York

[1973] ....U.S..... [93 S.Ct. 2789, 37 L.Ed.2d 745],

Roaden v. Kentucky [1973] ....U.S..... [93 S.Ct.2796,

37 L.Ed.2d 757] and Alexander ». Virginia [1973]

....U.S...... [93 $.Ct.2803, 37 L.Ed.2d 993], we affirm

the judgment. Penal Code section 311.2 meets the stand-

ards set forth in Miller v. California, supra, and is

not vague or overbroad. (People v. Enskat [1973] 33

Cal.App.3d 900 [109 Cal.Rptr.433].)

BY THE COURT

/s/ Katz

Presiding Judge

/s/ Zack

Judge.

—

APPENDIX B.

Order Denying Rehearing.

Appellate Department of the Superior Court, of the

State of California for the County of Los Angeles.

People of the State of California, Plaintiff and Re-

spondent, vs. Efrain Tobalina, Defendant and Appel-

lant. Superior Court No. CR A_ 10921, Municipal

Court of the Los Angeles Judicial District, No. 390628.

People of the State of California, Plaintiff and Re-

spondent, vs. Maria Ayala, et al., Defendants; Efrain

Tobalina, Defendant and Appellant. Superior Court

No. CR A 10922, Municipal Court of the Los An-

geles Judicial District. No. 391000.

Filed: Feb. 27. 1974.

ORDER DENYING REHEARING AND

DENYING CERTIFICATION

The petition of appellan: for a rehearing after judg-

ment of this court on appeal, or. in the alternative,

petition for certification of causes to the Court of Ap-

real lis the above-entitled cases, having been filed and

having beer dary considered,

Said petiuon is hereby denied.

Dated Feb. 27, 1974.

BY THE COURT

/s /Katz

Presiding Judge

/s/ Zack

Judge

a

APPENDIX C.

Constitutional and Statutory Provisions Involved.

1. The pertinent provisions of the First Amend-

ment to the United States Constitution are:

“Congress shall make no law . . . abridging the

freedom of speech, or of the press;.. .”

2. The pertinent provisions of the Fourteenth

Amendment to the United States Constitution are:

“No State shall . . . deprive any person of life,

liberty, or property, without due process of law;

”

3. The pertinent provisions of Czlifornia Penal

Code §311 provide as follows:

“As used in this chapter:

(a) ‘Obscene matter’ means matter, taken as

a whole, the predominant appeal of which to the

average person, applying conten'porary standards,

is to prurient interest, i.e., a shaineful 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 repre-

sentation of such matters; and is matter which

taken as a whole is utterly without redeeming so-

cial importance.

(1) The predominant appeal to prurient inter-

est of the matter is juu, -d with reference to aver-

age adults unless it appears from the nature of the

matter or the circumstances of its dissemination,

distribution or exhibition, that it is designed for

clearly defined deviant sexual groups, in which

case the predominant appeal of the matter shall

be judged with reference to its intended recipient

group.

—

(2) In prosecutions under this chapter, where

circumstances of production, presentation, sale,

dissemination, distribution, or publicity indicate

that matter is being commercially exploited by the

defendant for the sake of its prurient appeal, such

evidence is probative with respect to the nature

of the matter and can justify the conclusion that

the matter is utterly without redeeming social im-

portance.

(b) ‘Matter’ means any book, magazine, news-

paper, or other printed or written material or any

picture, drawing, photograph, motion picture, or

other pictorial representation or any statue or

other figure, or any recording, transcription or

mechanical, chemical or electrical reproduction or

any other articles, equipment, machines or mate-

rials.

(c) ‘Person’ means any individual, partnership,

firm, association, corporation, or other legal entity.

(d) ‘Distribute’ means to transfer possession

of, whether with or without consideration.

(e) ‘Knowingly’ means being aware of the

character of the matter or live conduct.

(f) ‘Exhibit’ means to show.”

4. The pertinent provisions of California Penal

Code $311.2 provide as follows:

“(a) Every person who knowingly sends or

causes to be sent, or brings or causes to be

brought, into this state for sale or distribution, or

in this state possesses, prepares, publishes, or

prints, with intent to distribute or to exhibit to

others, or who offers to distribute. distributes, or

exhibits to others, any obscene matter is guilty of

a misdemeanor.

— 7

“(b) The provisions of this section with re-

spect to the exhibition of, or the possession with

intent to exhibit, any obscene matter shall not ap-

ply to a motion picture operator or projectionist

who is employed by a person licensed by any city

or county and who is acting within the scope of

his employment, provided that such operator or

projectionist has no financial interest in the place

wherein he is so employed.”

5. The pertinent provisions of California Penal

Code §311.9 provide as follows:

“(a) Every person who violates Section 311.2

or 311.5 is punishable by fine of not more than

one thousand dollars ($1,000) plus five dollars

($5) for each additional unit of material coming

within the provisions of this chapter, which is

involved in the offense, not to exceed ten thousand

dollars ($10,000), or by imprisonment in the

county jail for not more than six months plus one

day for each additional unit of material coming

within the provisions of this chapter, and which

is involved in the offense, such basic maximum

and additional days not to exceed 360 days in

the county jail, or by both such fine and impris-

onment. If such person has previously been con-

victed of any offense in this chapter, or of a vio-

lation of Section 313.1, a violation of Section

311.2 or 311.5 is punishable as a felony.”