# Petition for Writ of Certiorari — Tobalina v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 926

## Text

=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

*

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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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0435%3A1. Public record. Not legal advice.