Appellants Brief — Miller v. California

Supreme Court brief1973

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Text

TOPICAL INDEX

Questions Presented =... 1 ee ee ee eee eee

Statutes Involved 6... we ee eee eee

Statement of the Case ...........--eeeeeeees

Summary of the Argument ........-.---++++5

Whether in a prosecution for the distribution

of obscene printed materials, pursuant to Cal-

ifornia Penal Code Section 311.2, the use of

a statewide standard to establish contempor-

ary community standards component of the

Roth-Memoirs test for obscenity is violative

of the First and Fourteenth Amendments

The use of a statewide standard in the appli-

cation of Penal Code Section 311.2 toa

prosecution for distributing purportedly

obscene printed materials was in violation

of Article I, Section 8, of the United States

Ce ss as i A i vO ie TRS

Ill

The state prosecution under California Penal

Code Section 311.2 for mailing obscene

material constituted error because federal

law has completely pre-empted the field ....

TOPICAL INDEX

Argument (cont'd) Page

The determination of the contemporary

community standards for the purpose of

establishing obscenity, if based upon an

unscientific survey, is violative of First

and Fourteenth Amendments and the

Sixth Amendment to the United States

I as ae os 0.09 bs a8 24

The conviction of petitioner for violation

of Penal Code Section 311.2 was erroneous

because, as a matter of constitutional fact,

the materials were not obscene .......... 29

The conviction of the petitioner under the

— gis amended language of Penal Code Section

311, when the amendment was subsequent

to the offense, was constitutionally defec-

tive in that it was the application of an ex

poet Parte tae oes CSI ES 31

ee a ia st RR MES Cea bead 32

iii

TABLE OF AUTHORITIES CITED

cases

Betts v. Brady, 316 U.S.455 ... 2... - eee ee ees

Bibb v. Navajo Freight Lines, Inc.,

OO) Re SC ee eee area er

Butler v. Michigan, 352 U.S. 380 (1957) .......-.

Calder v. Bull, 3 U.S. 386 (1798)... ----+e-s ;

Charleston and Western Carolina Railroad Co.

y. Varnville Furniture Co.,

iy eG Te oe o . : gt) En oa ee eg ee

City of Phoenix v. Fine, 4 Ariz.App. 303,

OE ics kc ve ake wees cee es

City of Youngstown v. DeLoreto,

251 N.E.2d 491 (1969)... we cee eee eee

Coker v. Superior Court, 70 Cal.App.2d 199

CANS ei IS SE ce ee eee wees

Commonwealth v. Gordon, 66 D.C. 101

(Pennsylvania, 1949)... 2.62. eee ee eee

Connally v. General Construction Co.,

269 U.S. 365 (1926) cc ce cece ees

Cooley v. Board of Wardens, 12 Hod. ee asaxes

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 ........

Dalton v. Baldwin, 64 Cal.App.2d 259 (1944)

Donaldson v. Reed Magazines,

333 US. 178 (1948) cw cw ee eee

TABLE OF AUTHORITIES CITED

Cases (cont'd)

Duggan v. Guild Theatre, Inc., 436 Penn. 191,

a i i 5 6

Dunn v. State Board of Censors, 240 Md. 249,

ea we

Edwards v. California, 314 U.S.160 ..........

Freedman v. Maryland, 380 U.S.51_ ..........

Garrison v. Louisiana, 379 U.S. 64 ............

Gent v. State, 393 S.W.2d 219(1965) _..........

Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ....

Griswold v. Connecticut, 381 U.S.479 ........

See AIR, DOE AL: OO oR in a Sd esc eenees

Head v. New Mexico Board of Examiners,

IIE a, ve ead 6 kc ka baw e be

Hinds v. Davidowitz, 312 U.S. 52(1941)_ ......

House v. Commonwealth, 210 Va. 121,

SO a Oe BI a ini oo vn we RENE A KO

Hudson v. United States, 234 A.2d 903 (1967)

In re Debs, 158 U.S. 564 (1895) ..........26..

In re Estrada, 63 Cal.2d 749(1965) ..........

—

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

In re Seven Magazines, 268 A.2d 707(1970) .... 11,14

Interstate Cir., Inc. v. City of Dallas,

BOP GNT.26 FOR C95 ER een es 14

Jacobellis v. Ohio, 378 U.S. 184 ... 6, 12, 13, 14, 29, 30

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .... 2

_ Lovell v. Griffin; 303 U.S. 444 =... eee eee esse 21

Malinski v. New York, 324U.S.401 ........-- 15

Manuel Enterprises v. Day, 370 U.S.478 ...... 11,12

M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 .. 18

Memoirs v. Massachusetts, 383 U.S. 413 (1966) ..

Pegg ree ter Peet ee 3, 9, 10, 11, 13, 25, 29, 30

Miles Laboratory, Inc. v. Frolich,

195 F.Supp. 256 (S.D.Cal. 1961) ......-- 26, 27

Milwaukee Publishing Co. v. Burleson, .

254 US.407 C1921): 668 22

Morgan v. Virginia, 328 U.S.373 ....-.--+-- 17, 18

Palko v. Connecticut, 302 U.S. 319 (1937) ...... 12

Pennekamp v. Florida, 328 U.S.331 .......--- 13

People v. Collins, 189 Cal.App.2d 575 (1961)... 30

People v. Stabile, 58 Misc.2d 905 2) wees 14

Pike v. Bruce Church, Inc., 90 S.Ct. 844(1970) .. 19 :

“s

TABLE OF AUTHORITIES CITED

Cases (cont’d) Page

Pointer v. Texas, 380 U.S. 400 (1965) ........ 29

Ramirez v. State, 430 P.2d 826 .............- 11

Redrup v. New York, 386 U.S. 767 .... 9, 10, 13, 14, 19

Robbins v. Shelby County Taxing District,

NE WO 6 oi is a iv bis be vse ies 21

Robert Arthur Management v. Tennessee,

MERI AE GSO CIIOT) © ices ccc ew eves 14

Rochin v. California, 342 U;S.165 ............ 15

Roth v. United States, 354 U.S. 476 (1957)...

oi aa een th deed Oe bs 3, 6, 9, 10, 11, 13, 14, 22,30

Screws v. United States, 325 U.S. 91 (1943) .... 2

Smith v. California, 361 U.S.147 ............ ee

Smith v. State, 268 N.Y.S.2d 873,

ES 26

Snyder v. Massachusetts, 291 U.S.97 .......... 15

South Carolina Highway Department v.

Barnwell Bros., 303 U.'S.177 ...........- 18

Southern Pacific Co. v. Arizona, 325 U.S. 761 .. 17,18

Speiser v. Randall, 357 U.S. 513 .............. 21

Stanley v. Georgia, 394 U.S.565 _............. 19

State v. Childs, 252 Ore. 91 (1968) ............ , 14

vii

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

State ex rel v. A Quantity of Copies of Books,

197 Kans. 306 66s ci bee eee os oe 14

State v. Hudson County News Company, 41

NY. 267 (1963) 2. 8 Ue 14

State v. Smith, 422 S.W.2d 50 (1967) .........- 14

Todd Estate, 17 Cal.2d 270(1941) ............ 31

United States v. Klaw, 350 F.2d 155

¢ 4 6, ) eeweeererrers reer eae 11

Ward v. Maryland, 79 U.S. (12 Wall.) 418 ...... 21

Wilke and Holzheiser, Inc. v. Department

of ABC, 65 Cal.2d 349 (1966) .........- 32

Witherspoon v. Illinois, 391 U.S. 510 (1969) .... 8

Wolf v. Colorado, 338 U.S.25 ........---- rk |

Zeitlin v. Arneberg, 59 Cal.2d 901 (1963) ...... 29

Zippo Manufacturing Co. v. Rogers Imports, Inc.,

lat taf 67O CB DAN.Y. 1963) © 068 55 26

Statutes (California)

Penal Code

Section S11... vecee cove 3, 4, 9, 11, 25, 26, 28, 31

Geeta PUD ous kin cacntrasd cei eees

ii albereienes 3, 4, 10, 11, 16, 19, 20, 21, 22, 26, 29

Government Code

Recties DONG ii 5 ak FRR A 31

Deets OES |. i 5 gixnc en Es Ce AROS 32

viii

TABLE OF AUTHORITIES CITED

Statutes (United States) Page

United States Constitution

Article I, Section 8, Clause 3............--

3, 6, 7, 16, 17, 18, 20, 21

Article 1, Section 8,Clause7 ...........- 22

Article 1, Section 9,Clause3. ...........- 4, 32

Article 1, Section 10, Clause 1 ............ 4,32

Amendment! ......... 3, 6, 7, 10, 11, 12, 14, 15,

20, 21, 23, 24, 26, 27, 28, 29

FT, Sate Ge Fa” ae PGE 24, 28

ei TN 88 5 GG o Kala coke os

3, 6, 7, 10, 11, 12, 13, 15, 18, 20, 24, 26, 29

estes SORE. 648.4 006 <2 4 0s 7, 22, 23, 24

RMR 7S eS. 7,22, 24

a OAR ass Ck a 7, 22, 24

Title 28, United States Code <

Rallies SOMIMEIE 2 1t 5G a milil corms 2

Text

ALR, Proposed Official Draft (May 4, 1962)

Section 251.4(4)(d); Tentative Draft No.

6 (May 6, 1957) at 45.1.0... eee ee ee eee 12

Barksdale, The Use of Survey Research Findings

as Legal Evidence, 31-33 (1957) .........- 27

Katz, Privacy and Pornography, 1969 Supreme

Court Review, 203, 206-207 ............ 19

45 Minnesota Law Review at 108-112 ........

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1970

NO. 1288

MARVIN MILLER,

Petitioner,

vs.

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

ON APPEAL FROM THE APPELLATE DEPARTMENT OF

THE SUPERIOR COURT OF THE COUNTY OF ORANGE,

STATE OF CALIFORNIA.

BRIEF FOR PETITIONER

OPINIONS BELOW

There were no reported opinions below. We are attach-

ing hereto as an appendix:

1. The decision of the Appellate Department of the

Superior Court of the State of California, County of Orange

(CT 212)*;

2. Notice of Denial of Appellant’s Petition for Certi-

fication to the Court of Appeal, Fourth Appellate District,

and the Denial of his Petition for Rehearing (CT 280).

JURISDICTION

This was a criminal prosecution wherein, during the

course of trial and on appeal, there was drawn a question

of the validity of the statutes of the State of California

as hereinafter noted, on the ground that they were repug-

nant to the United States constitutional laws. The affirma-

tion of the judgment of conviction by the Appellate Depart-

ment of the Superior Court constituted a decision in favor

of the validity of the statutes challenged.

The judgment of the Appellate Department of the

Superior Court was entered on October 12, 1970. The

timely Petition for Rehearing was denied on November 2,

1970. Notice of Appeal was filed on November 6, 1970.

Probable jurisdiction was noted by this Court on March 29,

1971.

The jurisdiction of the Supreme Court to review this

decision by direct appeal is conferred by Title 28, United

States Code, Section 1257(1)(2). Cases which support this

appeal are: Giaccio v. Pennsylvania, 382 U.S. 399, (1966);

Screws v. United States, 325 U.S. 91, (1943); Lanzetta v.

New Jersey, 306 U.S. 451, (1939); Connally v. General

Construction Co., 269 U.S. 385, (1926).

*(CT refers to Clerk’s Transcript.)

bine

QUESTIONS PRESENTED

1. The courts below have construed California Penal

Code Section 311.2 to allow the use of a “statewide” stand-

ard to establish the “‘contemporary community standards”

component of the Roth-Memoirs' test for obscenity, in a

‘prosecution for distributing allegedly obscene printed material.

The questions presented are: Whether under the First and

Fourteenth Amendments a “national standard” is a necessary

criterion for establishing “‘contemporary community standards.”

2. Whether under the Commerce Clause of the United

States Constitution, a “national standard” is necessary in

order to avoid unconscionable burdens on the free flow of

interstate commerce.

‘3. Whether the state prosecution under California

Penal Code Section 311.2 for “distribution,” where the dis-

tribution was in fact a “mailing” of the materials, constituted

a violation of the doctrine of federal pre-emption and was

thus in direct conflict with the Supremacy Clause of the

United States Constitution.

4. Whether the determination of the “customary

limits of candor” of a relevant community, for the purpose

of establishing obscenity, if based upon expert opinion

which is substantially derived from an unscientifically

designed survey which is not purged of economic and ideo-

logical bias, is violative of the First and Fourteenth Amend-

ments.

5. Whether the conviction of petitioner for violation

1 Roth v. United States, 354 U.S. 476. (1957); Memoirs v. Massachusetts,

383 U.S. 413 (1966).

“Sa

sll

of California Penal Code Section 311.2 was egregious error

because, as a matter of constitutional law, the materials were

not obscene.

6. Whether the state may convict petitioner under

the language of a statute which was amended after the offense

for which the petitioner was charged took place, and which

imposed a scienter definition which was easier for the prose-

cution to establish, without violating the constitutional pro-

hibition against ex post facto law.

STATUTES INVOLVED

Sections 311 and 311.2 of the California Penal Code

have been set forth in the appendix attached hereto.

STATEMENT OF THE CASE

Petitioner was convicted of causing to be mailed ob-

scene matter in violation of California Penal Code Section

311.2. The allegedly ebuceme matter consisted of five adver-

tising brochures fer vasiews books and a movie. Pictures on

the brochuses sane itp am way more explicit than compara-

tive material wiht wc: omnttsimed in books sold throughout

the state of Calliiieenite im oxgutattie book stores. Some of

the pictures om the tractuwrs were identical to those sold

in the state. (CT 175, 176.)

The prosecution's witness on the issue of redeeming

social value admitted that the materials at issue in this case

had “some content” and some usefulness (CT 176). The

petitioner’s witnesses both explicitly detailed the value of

the materials (CT 177).

oe "a

On the issue of contemporary community standards,

the prosecution put on only one “expert’’ witness, a police

officer, Shaidell, who was assigned to the Vice Division of

the Los Angeles Police Department. The officer made no

representation that his alleged expertise extended beyond

his ability to testify as to community standards in the state

of California (CT 172-175).

The officer had conducted a “survey” on people’s

reactions and viewpoints towards obscenity in the state of

California (CT 173). It is clear that even though Officer

Shaidell had been a vice officer, his greatest credibility as

an expert to speak out on “statewide” standards was based

upon the survey which he had conducted. The testimony

of Officer Shaidell was replete with admissions that point-

ed to the defectiveness of his survey (CT 173-175). The

officer was not sure his survey was even scientific (CT 174).

Moreover, it was abundantly clear that his method of gather-

ing a cross-section of people to survey was not objective

and was decidedly overweighted to show the attitude of

groups who would be more likely to have conservative views.

Neither did Officer Shaidell try to get a balanced socio-

economic representation in the survey (CT 174-175).

Thus, not only was there not a national standard ©

applied to measure “‘contemporary standards,” but even

the use of state standards was tainted in this case by the

fact that the prosecution’s only expert witness on this issue

was allowed to bootstrap himself into credibility by relying

on the results of a survey which could only muster a pathetic

semblance of objectivity.

In fact, the prosecution was never able to produce

unequivocal evidence from its own witnesses which would

support the conclusion that the materials involved here

were obscene (CT 174-177).

SUMMARY OF THE ARGUMENT

1. That part of the decision of Roth v. United States,

supra, requiring as a necessary component of the definition

of obscenity that the material go beyond “‘contemporary

community standards,”’ has been unmodified by subsequent

decisions of this Court. The majority of the states which

have attempted to decide whether the “community” referred

to in Roth required a “national” or a “‘statewide’’ standard,

have followed the lead of Justice Brennan’s decision in

Jacobellis v. Ohio, 378 U.S. 184, 192-193, and have con-

cluded that a “national’’ standard is necessary. The time

has passed since we can indulge the fantasy that, with regard

to precious First Amendment guarantees, this Court meant

that the word “community” was to be understood in its

most parochial sense. As a “preferred” right, the First Amend-

ment guarantee of freedom of expression must be protected

from erosion, by demanding that any state’s regulation of

obscenity be restricted to the least detrimental of reasonable

alternatives open to the state. In this case, both the state’s

interest in protecting the morals and general welfare of its

citizens, as well as the constitutional interest in promoting

freedom of expresson, can both be best served by adopting

a “national standard.”

2. Separate and apart from the dictates of the First

and Fourteenth Amendments is the question of the impact

of the Commerce Clause upon the question of which “stand-

ard” is the most appropriate. There can be no doubt that

4. -7-

the emanantions of the Commerce and Supremacy Clauses

are instrumental to the preservation of federal interests from

encroachments by the states. Where, as here, we are dealing

with printed materials that can be nationally distributed, it

is clear that any control of such material raises issues perti-

nent to the Commerce Clause. The sales of printed materials,

as well as the sheer volume of pamphlets, books, magazines,

: etc., which are in circulation throughout the country, indi-

cate that this is an area of sizable impact upon interstate

commerce. Were the individual states allowed to curtail

distribution, circulation or entry of printed materials into

or within their borders, through the imposition of “‘state

standards” for defining obscenity, then there would be an

unconscionable deleterious effect upon interstate commerce.

Thus, the effect of the Commerce Clause, acting independ-

ently of the First Amendment, requires the adoption of

the “national standard.”

3. The petitioner was convicted for the distribution

- of allegedly obscene materials, which was effectuated through

the mails. It is clear that Congress intended that all prosecu-

tions for the distribution of obscene materials through the

mails be controlled by federal law. 18 U.S.C. Sections 1461,

1462, 1465. Recent decisions of the Court have illustrated

the precision that is necessary in laws which seek to penal-

ize an individual for distribution of allegedly obscene

materials through the mails. Even obscene materials may,

under some circumstances, be permissibly transmitted

through the mails. In the light of a pre-emptive federal plan,

as exists in this context, the state of California should not

be permitted to erode the constitutional desire for uniform-

ity by the simple expedient of arguing that the state has the

power to control “distribution” and that nothing in the

state statute explicitly refers to “mailing.’’ The state is

clearly empowered to control the “distribution” of ob-

scene materials within its borders; however, “distribution”

is a portmanteau term which encompasses many possible

activities, e.g., mailing, shipping, handing out, etc. Here,

we are precisely concerned with an impermissible applica-

tion of “‘distribution’’ so that it can be used to regulate

“mailing.” When the federal government has passed legis-

lation which controls one method of distribution, then,

to that extent, the federal law pre-empts the state power

to adopt or enforce laws which seek to regulate that specific

method of distribution.

4. The California State Supreme Court, in the case

of In re Giannini, 69 Cal.2d 563 (1968), stated that the

prosecution was compelled to introduce “expert” testimony

as to what the customary limits of candor were for the state

of California. In this case, the expert, who was a Vice Div-

ision police officer, indisputedly gathered the greatest part

of his credibility and persuasiveness from a survey which

he had administered throughout the state. This Court has

before sounded a cautionary note when confronted by

survey results. Witherspoon v. Illinois, 391 U.S. 510, 517-

518 (1969). Here, the survey was pathetically inadequate,

administered by a police officer who revealed himself as

such to the people being questioned, and the large propor-

tion of the survey group consisted of members of fraternal

groups and other organizations which had requested the

officer speak on the problem of obscenity. There was

therefore a strong likelihood that these people would be

less tolerant than the community as a whole. In any case,

there is no way of knowing how much weight the jury gave

to Officer Shaidell’s credibility because of the authority of

the survey, and in such a case it is hard to say that the intro-

duction of his testimony was harmless error.

5. Based on the number of per curiam reversals by

this Court based on Redrup v. New York, 386 U.S. 767,

it is clear that the materials upon which petitioner’s convic-

tion rested were no worse than comparable materials which

this Court has, on numerous occasions, found protected.

Thus, in this case, we have a conviction based on non-obscene

material. Moreover, due to the defectiveness of the expert

witness in this case, it is clear that the prosecution did not

even establish the requisite elements necessary for the defi-

nition of obscenity as articulated in Roth-Memoirs, supra.

6. Petitioner was indicted and convicted under the

language of California Penal Code Section 311(e), which

was amended after the time that the offense charged took

place. The new language of the Penal Code altered the

“scienter” requirement so as to make it easier for the prose-

cution to establish its case. This application of the language

of the subsequently amended Penal Code was the imposition

of an ex post facto law and, hence, unconstitutional. Calder

v. Bull, 3 U.S. 386 (1798).

Whether In A Prosecution For The Distribution

Of Obscene Printed Materials, Pursuant To Calif-

ornia Penal Code Section 311.2, The Use Of A

Statewide Standard To Establish Contemporary

Community Standards Component Of The Roth-

Memoirs Test For Obscenity Is Violative Of The

First And Fourteenth Amendments.

In Roth v. United States, 354 U.S. 476, this Court

stated that material is obscene if, applying contemporary

community standards, the dominant theme of the materials,

taken as a whole, appeals to prurient interest. Jd. at 489.

Although a plurality opinion in Memoirs v. Massachu-

setts, 383 U.S. 413, 418, attempted to modify the Roth

test as follows:

“|. . Three elements must coalesce; it must

be established that (a) the dominant theme of

the material taken as a whole appeals to a prurient

interest in sex; (b) the material is patently offen-

sive because it affronts contemporary community

standards relating to the description or represen-

tation of sexual matter; and (c) the material is

utterly without redeeming social value.”

(see, also, Redrup v. New York, 386 U.S. 767, 770-771),

it is clear that the concept of contemporary community

standards is an essential component for the definition of

obscenity under either test.

In the case of Jn re Giannini, 69 Cal.2d 563, 574, the

kin

California Supreme Court interpreted the words ““custom-

ary limits of candor,” as used in Penal Code Section 311,

to require a showing that the material affronts contemporary

community standards of decency, i.e., the California court

equated the language of Penal Code Section 311 to the

requisite enunciated in Roth, supra, and reiterated in Mem-

oirs, supra.

Moreover, the Giannini court held that in order to

support a conviction, the prosecution must introduce

expert testimony upon the elements of “community stand-

ards.””?

Here, on the issue of contemporary community stand-

ards, the prosecution put on only one expert witness, a

police officer, Shaidell. The officer made no representation

that his alleged expertise extended beyond his ability to

testify as to the community standards in the state of Calif-

ornia (CT 172-175). It is petitioner’s contention on appeal

that the application of Penal Code Section 311 and Section

311.2 to permit a statewide standard rather than a national

standard to measure and establish whether printed material

affronts contemporary community standards of decency

is violative of the First and Fourteenth Amendments.

(A) Mr. Justice Harlan pointed out in Manual Enter-

prises v. Day, 370 U.S. 478, at 488, that a standard based

) angag 361 U.S. 147, 180 (J. Frankfurter, nanan

United og $0 F.2d 155 (24 Cir. 1966); House v. Commonweal.

210 VA. 121, 169 $.E.24 $72; v. Guild Theatre, Inc., 436 Penn. 191,

258 A.2d 858; Dunn y. State of Connors, 240 MD. 249, 213 A.2d 751;

Hudson v. United States, iepy 234 A.2d 903; Ramirez v. State, 430 P.2d

826; City of Phoenix v. Fine, 4 Arizona App. 303, 420 P.2d 26; In re Seven

tin i

on a particular local community would have “the intoler-

able consequence of denying some sections of the country

access to material, there deemed acceptable, which in

others might be considered offensive to prevailing com-

munity standards of decency.” Cf Butler v. Michigan,

352 US. 380.

That observation, as to the deleterious conse-

quences of employing any standard less than a national

standard, is the crucial starting point from which all

analysis must commence. Justice Harlan finds that in the

context of federal statutes the national standard is com-

pelled because of the unremitting dictates of the First

Amendment. However, in the context of state statutes,

less than a national standard is permissible, notwithstand-

ing the same deleterious effect stated, because the First

Amendment is made applicable to the states through the

Fourteenth Amendment and the word “liberty” in the

Fourteenth Amendment incorporates only as much of

the restraints contained in the particular amendment as

is essential to the concept of “ordered liberty.” Palko v.

Connecticut, 302 U.S. 319 (1937).

Justice Brennan has of course presented the

major defense for the proposition that the only relevant

community is the “national” community. Jacobellis v.

Ohio, 378 U.S. 184, 192-193.

Thus, at its simplest formulation, the dispute

comes down to whether the First Amendment demands

a rule of uniform application irrespective of state lines,

45 Minnesota Law Review at 108-112; ALR, Proposed Official Draft

1962) Section 251.4(4)(d); Tentative Draft No. 6 (May 6, 1957)

(May 4,

Pennekamp v. Florida, 328 U.S. 331, 335, or whether a

residual police power of the various states is to be the

predominating influence so long as it is exercised within

the perimeters circumscribed by the Due Process Clause

of the Fourteenth Amendment.

It is clear that under Roth, supra, and Memoirs,

supra, the classification of material as obscene, under

either test, is dispositive of the constitutional issue. That

classification is of course to be made by the original trier

of fact at the trial level. Now, to the extent that reviewing

courts are deferential to that original judgment, by adopt-

ing non-stringent standards of review, the courts will

encourage easy labeling and jury verdicts rather than

compelling a facing up to the difficult individual problems

of constitutional judgment involving every obscenity case.

Roth, supra, 354 U.S. at 497.

Thus, the majority opinion in Roth, supra, only

retains vitality and believability as long as this Court con-

tinues to scrupulously scrutinize lower court judgments in

obscenity prosecutions. Justice Brennan, in Jacobellis,

supra, 378 U.S. at 190, note 6, stated:

“Nor do we think our duty of constitutional

adjudication in this area can properly be relax-

ed by reliance on a ‘sufficient evidence’ stand-

ard of review. Even in judicial review of admin-

istrative agency determinations, questions of

‘constitutional fact’ have been held to require

de novo review. Ng Fung Ho v. White, 259

U.S. 276, 284-285; Crowell v. Benson, 285 U.S. |

22, 54-65.”

id.

It seems manifestly clear that this Court, when

making its de novo determination as to the obscenity vel

non of materials, employs a national standard as the cri-

terion for community standards. See Redrup v. New York,

supra, and the subsequent per curiam reversals based on

Redrup.

It makes little sense to allow lower courts to

arrive at a determination of obscenity based on “‘state-

wide”’ standards and then have this Court, upon the final

review, employ a different standard, i.e., a national stand-

ard.

(B) Moreover, the argument is not ultimately per-

suasive that this Court, when it articulated the First Amend-

ment definition of obscenity, Roth; supra, meant the word

“community” to refer to anything less than a national

community. See Jacobellis, supra, 378 U.S. at 192-193.

A canvassing of the decisions of various state

supreme courts indicates that many, on their own initiative,

without clear and unequivocal statements by a majority of

this Court, have felt obliged to adopt the “national stand-

ard” test.‘

4 Robert Arthur Management v. Tennessee, 414 S.W.24 638 (1967)

a Supreme Court] ; State v. Smith, 422 S.W.2d 50 (1967) [Mo. Su

; State v. Hudson County News , 41 N.Y. 247, 262-

(1963) [N.J. Court] ; Jn re Seven Magazines, supra, 268 A.2d 707,

709 (1 Court] ; State Ex Rel v. A ies

poole 19) kane 310 Kans. Supreme Court): People Ste .

Bins. 36 985 OSSD? [N-¥. Supreme }; State v. 3

. Guild Theatre Ine. et al. 436 Pa. 191, 201, n. 7 (1969) [Penn

Court indicates national standard Derg 5 Interstate Cir., Inc.

1967,

219 (1 (Ark. ie., city]; City

Supreme Court local standard,

of Youngstown v. DeLoreto, 251 N.E.24 491 (1969) [Ohio Court of Appeals

suggests state standard] .

Pa |

When this Court has recognized fundamental

rights in the Fourteenth Amendment without specific

reliance upon the Bill of Rights, the language of “com-

munity” (and analogous expressions) was clearly meant

to refer to a “national community.”* It seems therefore,

a fortiori, that where, as here, the Fourteenth Amendment

makes applicable the First Amendment to the states, which

is after all a “preferred right,” the term “community” must

also be understood to mean a national community.

sion which provides the greatest degree of adaptability and

utility to the emerging and progressive tendencies of our

society. It is clear that the trend in our society is toward

greater proliferation, both of data and of artistic and mar-

ginally artistic works. Moreover, the trend is also towards

greater access to data through retrieval systems and channels

of mass media, and wider and speedier dissemination of

printed, written and cinematic materials of all kinds.

The countenancing of a “state standard” by this

Court simply permits the least progressive sections of our

country to resist and impede change, and to prohibit other

members of the society—unfortunate enough to reside in

those regressive areas—the opportunity to avail themselves

of materials tolerated by the rest of the nation.

Thus, the adoption of a state standard by this

Court would have the unfortunate tendency of impeding

342 U.S. 165; Snyder v. Massachusetts, 291 U.S.

97; Melinaht » New ork, 324 U.S. 401, 417; Haley v. Ohio, 332 US. 5%6,

604; Wolf v. Colorado, 338 U.S. 25; Betts v. Brady. 316 U.S. 455; Griswold

v. Connecticut, 381 US. 479.

ihn

the desirable evolutionary tendency in our society towards

the permitting of greater access and utilization of the most

current thoughts and works produced in our country, or,

for that matter, in the world.

The Use Of A Statewide Standard In The Appli-

cation Of Penal Code Section 311.2 To A Prose-

cution For Distributing Purportedly Obscene

Printed Materials Was In Violation Of Article I,

Section 8, Of The United States Constitution.

Under Article I, Section 8, Clause 3, Congress was

granted the power “to regulate commerce . . . among

the several states... .”

Petitioner contends that the application of a state-

wide standard to determine community standards, in the

application of Penal Code Section 311.2, conflicts with the

free flow of commerce throughout the United States and,

therefore, this application by the State of California of Penal

Code Section 311.2 must be avoided because of its collision

with the Commerce Clause.

It is indisputable that the application of a statewide

standard by California in pursuance of Penal Code Section

311.2 has an impact on interstate commerce. Books, films,

magazines, etc., which are capable of transportation from

state to state, would have to be altered in order to con-

form to the “state” standard in order to avoid prosecu-

tion; alternatively, a wholesaler or distributor or exhibitor

would have to forebear dealing with certain books or films,

etc. This application of Penal Code Section 311.2 thus has _

a sufficient impact on the flow of commerce so as to bring

it within the purview of the Commerce Clause, even though

the application has an indirect effect.

“Although the Commerce Clause conferred

on the national government the power to regulate _

commerce, its possession of the power does not

exclude all state power of regulation. . . . In

the absence of conflicting legislation by Congress,

there is a residual power in the states to make laws

governing matters of local concern which neverthe-

less in some measure affect interstate commerce

or even to some extent regulate it . . . . But,

ever since Gibbon v. Ogden, 22 U.S. (9 Wheat.) 1

(1824), the states have not been deemed to have

authority to impede substantially the free flow of

commerce from state to state, or to regulate those

phases of the national commerce which, because

of the need of national uniformity, demand that

their regulation, if any, be prescribed by a single

authority.”

Southern Pacific Co. v. Arizona, 325 US.

761 (Emphasis added).

The states are not wholly precluded from exercising

their police power in matters of local concern, even though

they may thereby affect interstate commerce. Edwards v.

California, 314 U.S. 160, 172-173.

The precise degree of the permissible restriction on

state power cannot be fixed generally, or, indeed, not even

for one kind of state legislation, such as taxation or health

or safety. Morgan v. Virginia, 328 U.S. 373, 377. Generally,

the courts have been willing to uphold state regulations

designed for the protection of public health and welfare,

even though these regulations have some affect on inter-

state commerce. Of course, the burden must nevertheless

be found not to be unreasonable. Head v. New Mexicu

Board of Examiners, 374 U.S. 424.

Thus, state legislation is invalid if it unduly burdens

interstate commerce in matters where uniformity is neces-

sary—necessary in the constitutional sense and useful in

accomplishing a permitted purpose. Southern Pacific Co.

vy. Arizona, supra, 325 U.S. at 766-771; Morgan v. Virginia,

supra, 328 U.S. at 377; Cooley v. Board of Wardens, 12

Hod. 299, 319.

As a general proposition, it can be said that because

of the nature of the federal system and the emanations

from the Supremacy Clause (see M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316), even where Congress has not

acted, the Commerce Clause still prohibits the states,

through the exercise of their police power, to impose dir-

ectly or indirectly an “unreasonable burden”’ on interstate

commerce. Cooley v. Board of Wardens, supra; South Caro-

lina Highway Department v. Barnwell Bros., 303 U.S. 177,

184; Southern Pacific Co. v. Arizona, supra. Obviously,

the states may impose some burden on the flow of commerce.

The question is always whether in the individual instance the

burden imposed is so great as to be unreasonable. The court

must utilize the balancing of interests. It must balance, on

the one hand, the policies and benefits deriving from the

state regulation against the nature and extent of the burden

which that state regulation has upon interstate commerce.

The Supreme Court’s general rule for determining the valid-

ity of state laws affecting commerce is the following:

“Where the statute regulates even-handedly to

effectuate a legitimate local public interest, and

its effects on interstate commerce are only inci-

dental, it will be upheld unless the burden impos-

ed on such commerce is clearly excessive in rela-

tion to the putative local benefits .. . . Ifa

legitimate local purpose is found, then the ques-

tion becomes one of degree. And the extent of

the burden that will be tolerated will of course

depend upon the nature of the local interest

involved, and on whether it could be promoted

as well with a lesser impact on interstate activ-

ities.””

Pike v. Bruce Church, Inc., 90 S.Ct. 844,

847 (1970).

Clearly, in this instance, the state has a sufficient

interest in the protection of the morals of its citizens so

as to prohibit the distribution of obscene materials within

the state.© However, that interest could be just as well pro-

tected by the utilization of a national standard, rather than

a statewide standard, when applying Penal Code Section

6 In terms of the regulation of y, the state interests in sup-

neds nga tel ang > okt

311.2 in the prosecution of materials which can be or have

been disseminated widely throughout the United States,

i.e., films, books, magazines and other printed materials.

This utilization of a statewide standard imposes upon

the distributors of such materials the oppressive burden of

tailoring products to meet the vagaries of local censorship

and the particular sensibilities of the individual states. In

such a case, the local rule should be discarded because of

its adverse effect on the free flow of commerce.’ Bibb v.

Navajo Freight Lines, Inc., 359 U.S. 520.

Thus, even assuming arguendo that when viewed solely

from the perspective of the First and Fourteenth Amend-

ments the various states have broader power to regulate

speech than the federal government,’that regulatory power

to the states is not so broad when the Commerce Clause

comes into play. In such a case, a national standard is re-

quired because of the emanations of the Supremacy Clause

which operates as an instrument of federalism: Thus, al-

though in strictly First and Fourteenth Amendment context

the argument is entertainable that there are different stand-

ards appropriate for the federal government and the various

states, under the Commerce Clause and Supremacy Clause

that argument loses much vitality. In fact, any analysis

based upon the distribution of powers between the federal

government and state governments would then indicate that

the federal power must be pre-emptive, i.e., that a national

standard is necessary.

Clearly, the right of persons to exhibit and distribute

materials, ostensibly under the protection of the First Amend-

7 It is clear that some states do in fact adopt national standards while

other states adopt some lesser standards. See, supra, note 4.

ment, from state to state, free of unconscionable obstacles,

occupies a more protected position in our constitutional

system than does the movement of mere cattle, fruit, steel

and coal across state lines. We are dealing with a fundamen-

tal right protected by the First Amendment, and in this

situation the material takes on an even more sheltered and

favorable position under the Commerce Clause. Inhibition,

as well as prohibition against the exercise of precious First

Amendment rights, is a power denied the government.

Freedman v. Maryland, 380 U.S. 51; Garrison v. Louisiana,

379 U.S. 64; Speiser v. Randall, 357 U.S. 513.

Many times in the past, the Commerce Clause has been

utilized to enforce and vindicate private rights and personal

liberties in the face of state regulations, which either directly

or indirectly, on their face or through their application,

sought to violate those rights and liberties, e.g., freedom of

movement, freedom of association, etc. See Edwards v.

California, 314 U.S. 160; Robbins v. Shelby County Tax-

ing District, 120 U.S. 489; Ward v. Maryland, 79 U.S. (12

Wall.) 418; Crandall v. Nevada, 73 U.S. (6 Wall.) 35.

In effect, the application of Penal Code Section 311.2

in this manner adversely affects the liberty of the circu-

lation of materials protected under the First Amendment.

As Mr. Justice Hughes said in Lovell v. Griffin, 303 U.S.

444, 452:

“Liberty of circulation is as essential to that

freedom (First Amendment freedom of the

press] as liberty of publishing; indeed, without

the circulation, publication would be of little

value.”

iil

The State Prosecution Under California Penal

Code Section 311.2 For Mailing Obscene

Material Constituted Error Because Federal

Law Has Completely Pre-empted The Field.

The prosecution by the state for distributing alleged-

ly obscene materials (when, in fact, the distribution is a

“mailing’”’), under a state statute, is repugnant to the United

States Constitution, Article I, Section 8, Clause 7, under

which Congress pre-empted the regulatory field by enacting

the Federal Obscenity Law which specifically punishes the

mailing or advertising by mail of obscene materials. This

result is entirely consistent with Roth v. United States, 354

U.S. 476 (1957), in which the Court upheld the state’s

power to punish the keeping for sale of obscene material,

or even advertising such materials, since these were essen-

tially local activities and did not necessarily involve the

obstructing of the mails. Roth, supra, at 494-500.

Congressional power over the mails is practically

plenary. United States Constitution, Article I, Section 8,

Clause 7; Donaldson v. Reed Magazines, 333 U.S. 178 (1948);

Hinds v. Davidowitz, 312 U.S. 52 (1941); Milwaukee Publish-

ing Co. v. Burleson, 254 U.S. 407 (1921); In re Debs, 158

U.S. 564 (1895). Moreover, it is clear that Congress has

fully legislated in the field. 18 U.S.C. Sections 1461, 1462,

1465.

Under 18 U.S.C. Section 1461,

“Whoever knowingly uses the mails for the mail-

ing, carriage in the mails, or delivery of anything

declared by this section to be non-mailable, or

knowingly causes to be delivered by mail accord-

ing to the direction thereon, or at the place to

which it is to be delivered by the person to whom

it is addressed, or knowingly takes any such thing

from the mails for the purpose of circulating or

disposing thereof, or of aiding in the circulation

or disposition thereof... ”

is guilty of a crime.

Thus, the conclusion is inescapable that Congress has

intended to occupy completely this field of obscenity in

the context of mailing. A state obscenity law touching

the mailing of obscene matter is superseded regardless of

whether it merely purports to supplement federal law.

“When Congress has taken the particular subject

matter in hand coincidence is as ineffective as

opposition as state law is not to be declared a

help because it attempts to go farther than Con-

gress has seen fit to go.”

Charleston and Western Carolina Railroad

Co. v. Varnville Furniture Co., 237

U.S. 597, 604 (1917).

Moreover, in this context, the federal government has

an even more acute interest because of the involvement of

First Amendment rights. The federal government has an

overriding interest to protect the free flow of mails and

the free flow of communication from the blockage and

disruption which would arise if every state were permitted

to apply a variable standard to determine obscenity, i.e.,

a standard pegged, as here, to a statewide test of commun-

ity standards rather than nationwide standards.

The First Amendment guarantee of freedom of the

a.”

press and expression, of course, comprehends every sort

of publication which affords a vehicle of information

and opinion. This liberty is protected at every step in

the process of creation, publication and circulation, from

the writing and printing of the words until the material

reaches the hands of the ultimate reader.

It would be awkward, to say the least, to have mate-

rials traveling through the mails change their character

from obscene to non-obscene as they pass from one state

to another. In this area, it is thus clear that the govern-

ment must speak with one voice. This is only possible if

the federal government standard for obscenity is uniform-

ly applied in the context of the mailing of materials of

this purported character. See Commonwealth v. Gordon,

66 D.C. 101, 136 (Pennsylvania, 1949).

The Congress has spoken, and this must be consider-

ed the last word on the subject. Title 18, U.S.C., Sections

1461-1465, completely pre-empts the field with regard to

the punishment for the mailing of obscene materials. It

is of absolutely no avail to the states to say that they have

the inherent power to regulate distribution of obscene

materials, when it is clear that what they mean by distribu-

tion is “mailing.”

The Determination Of The Contemporary

Community Standards For The Purpose Of

Establishing Obscenity, If Based Upon An

Unscientific Survey, Is Violative Of First

And Fourteenth Amendments And The

Sixth Amendment To The United States

9s...

Constitution.

One of the necessary requisites for showing that mate-

rial is obscene is that it is patently offensive because it

affronts contemporary community standards relating to

the description of sexual matters. Memoirs v. Massachusetts,

supra. In California, this constitutional requisite would have

had to be embodied in the language of Penal Code Section

311, which refers to “customary limits of candor.” Giannini,

supra, 69 Cal.2d at 574. It is clear that failure to introduce

proof of contemporary community standards is reversible

error. Jn re Giannini, supra.

The prosecution offered the testimony of only one

witness to prove that the material was substantially beyond

the community standards. As will be shown, that “expert”

witness was totally unqualified; hence, as a matter of law,

the conviction must be overturned because there was insuffi-

cient evidence to establish a crucial element.

The prosecution put an Officer Shaidell on the stand

to give his expert opinion on the question of whether the

materials involved in the trial went beyond the customary

limits of candor in the community. To show that he was

familiar with the standards of the whole community, which

was absolutely necessary to qualify him to give his opinion

on this matter, the prosecution established that he had con-

ducted a state survey on the question of what the commun-

ity “felt” was beyond the customary limits of candor. (RT*,

Volume III, Section 1, pages 116-117.)

Petitioner contends that admitting the introduction of

Officer Shaidell’s opinion testimony as an expert, based on

*(RT refers to Reporter's Transcript.)

aie

this survey, was prejudicial and constituted reversible error.

It is clear that allowing the essential requisite that

the material be shown to be “substantially beyond the cus-

tomary limits of candor,” as stated in Penal Code Section

311 and applied in Penal Code Section 311.2, be proved

by the egregiously non-objective evidence would be viola-

tive of the First-and Fourteenth Amendments. The Calif-

ornia Supreme Court, in Jn re Giannini, supra, made clear

that “‘we must achieve so far as possible the application of

an objective, rather than subjective, determination of com-

munity standards.” 69 Cal.2d at 574-575.

Although it is clear that the proof of the community

standards must be objectively based, petitioner is not argu-

ing that the court must demand some absolute unrealistic

demonstration of objectivity that would make prosecution

and conviction impossible. However, the petitioner is main-

taining that where an expert is permitted to testify on com-

munity standards on the basis of a survey which is egregious-

ly and patently defective, and where that testimony is the

only prosecution evidence introduced to prove the requisite

that the material goes substantially behind the customary

limits of candor of the community, then, in effect, there

was no expert testimony and the First and Fourteenth

Amendments would require that the conviction be reversed.

Two basic requirements must be met before opinion

polls are to be given probative weight: (1) Necessity; and

(2) Trustworthiness. Smith v. State, 268 N.Y.S.2d 873,

49 Misc.2d 985 (1966); Zippo Manufacturing Co. v. Rogers

Imports, Inc., 216 F.Supp. 670 (S.D.N.Y. 1963). In Miles

Laboratory, Inc. v. Frolich, the court admitted a survey

after there was testimony by an independent expert that

a. a

the method of “testing and sampling and selecting and

training interviewers was as fair and reasonable as could

be devised,” 195 F.Supp. 256, 262 (S.D. Cal. 1961).

Cf, Barksdale, The Use of Survey Research Findings as

Legal Evidence, 31-33 (1957).

if, in order for the results of an opinion survey to

be probative, it is necessary to show that the methodology

used to construct and conduct the survey was scientifically

sound, then, a fortiori, the expertise of the purported

expert rendering an opinion based on the results of the

survey can also only be established by showing that valid-

ity of the survey. In the area of the First Amendment, the

state is constitutionally compelled to adopt regulations,

standards or methods which are the least intrusive and

the most narrowly circumscribed available for the accom-

plishment of its legitimate purpose. Butler v. Michigan,

supra, 325 U.S. 380.

By these standards, it is clear that the survey used in

this case to qualify Officer Shaidell was defective. By no

stretch of the imagination could Officer Shaidell be deem-

ed a valid expert, capable of rendering a valid and objective

opinion as to “community standards.” :

There are several grounds upon which the petitioner

argues that the survey used was defective:

(1) Officer Shaidell surveyed an unrepresentative

group of people in the state. He paid no attention to the

distribution of the people among the counties he surveyed

(RT, Volume III, Section II, pages 20-21); he did not pay

attention to the economic status of those surveyed (RT,

Volume III, Section II, page 13); he chose groups to inter-

view which were particularly middle of the road and

establishmentarian, e.g., church groups, PTA, Naval Reserve

units, fraternal organizations (RT, Volume III, Section II,

page 11); |

(2) The questions asked were not scientifically select-

ed to test for the information desired to be ascertained (RT,

Volume III, Section II, pages 12-15);

(3) In his questioning of subjects, he did not ask them

whether the material went “substantially” beyond the cus-

tomary limits of candor (the exclusion of that word alone,

which is contained in Penal Code Section 311, could have

significantly invalidated the relevance of that survey);

(4) The very fact that the survey was conducted by

a police officer who identified himself as such to the sub-

jects interviewed was arguably sufficient to distort and bias

the responses.

Thus, on these facts, it is apparent that Officer Shaidell’s

credentials, based upon that survey, are woefully defective.

Permitting a conviction based upon that testimony would

be constitutionally unconscionable.

It is clear that to allow any unqualified expert to come

into the court and establish that allegedly obscene material:

is beyond the “community standards” would not only have

a chilling effect on First Amendment rights but would also

raise serious Sixth Amendment problems. Normally, the

groups surveyed are not available for cross-examination by

the defendant; hence, without the safeguard of a valid survey,

the defendant, confronted by an expert who is in effect

giving expressions of standards and judgment of the com-

munity, is truly forced to contend with nameless and face-

less adversaries. This is a serious violation of the defend-

ant’s right of confrontation, secured by the Sixth Amend-

_29—

ment. Pointer v. Texas, 380 U.S. 400 (1965).

The Conviction Of Petitioner For Violation

Of Penal Code Section 311.2 Was Erroneous

Because, As A Matter Of Constitutional Fact,

The Materials Were Not Obscene.

The appellate court must, in the course of reviewing

the entire record, review the material adjudged obscene by

the lower court. Jacobellis v. Ohio, supra, 378 U.S. at 188-

189; Zeitlin v. Arneberg, 59 Cal.2d 901, 909 (1963).

Petitioner argues that, as a matter of law, the consti-

tutionally requisite elements of obscenity were not shown

to exist in this case. Thus, petitioner’s conviction below

violated the First and Fourteenth Amendments.

Three elements must coalesce before material can be

held obscene: (1) the dominant theme of the material

taken as a whole must appeal to a prurient interest in sex;

(2) the material must be patently offensive because it

affronts contemporary community standards relating to

the description or representation of sexual matters; and

(3) the material must be utterly without redeeming social

value. Memoirs v. Massachusetts, supra.

- It is clear that material cannot be proscribed unless

it is found to be utterly without redeeming social value.

This is so even though it is found to possess the requisite

prurient appeal and is also found to be patently offensive.

Each of the three federal constitutional tests is to be ap-

plied independently; social value can neither be weighed

against nor cancelled by its prurient appeal or patent

offensiveness. The material must be tolerated even if it

is possessed of only a modicum of social value. Memoirs,

supra; Jacobellis, supra; Roth v. United States, supra.

In this case, it is patently clear that the requisite

elements were not established. The prosecution witness

testifying as to prurient interest admitted that the mate-

rial had some beneficial use for normal people (RT, Vol-

ume IV, Section II, page 18). Moreover, the prosecution

witness testifying as to redeeming social value admitted

that the material had some usefulness (RT, Volume III,

Section I, pages 86-87).

The prosecution is bound by these statements of its

own witness. The prosecution, as a part of its case, pre-

sents exculpatory evidence; it is bound by that evidence,

and the defense is not required to introduce the same evi-

dence in order to be benefited by it. People v. Collins,

189 Cal.App.2d 575, 589, 591 (1961).

It is important to reiterate that it must be found that

the material is utterly without socially redeeming value.

That was not shown in this case. Moreover, all three ele-

ments must be shown. So that if any one fails, the matter

must be treated as constitutionally protected.

It was further shown that the prosecution did not

meet its burden to show that the material went beyond

the standards of the community, both because in this

instance the relevant community was the nation, and not

the state, Jn re Giannini, supra; Jacobellis, supra, and

because even if the state were the right community, Officer

Shaidell was not qualified to speak on community stand-

ards based on his defective survey.

Oye

Be, ee

The Conviction Of The Petitioner Under The

Amended Language Of Penal Code Section 311,

When The Amendment Was Subsequent To The

Offense, Was Constitutionally Defective In That

It Was The Application Of An Ex Post Facto

Law.

The act for which petitioner was indicted took place

prior to the amendment of Penal Code Section 31 1(e).

Under the language of the Penal Code in effect at the time

of the alleged offense, the relevant language was:

“Having knowledge that the matter is obscene.”

Petitioner was indicted and convicted under Penal Code

Section 311(e) when it read:

“Knowingly means being aware of the character

of the matter. . .”

The section was amended on June 25, 1969, Amended Stats.

1969, Chapter 249, Section 1, Page 598.

Under Government Code Section 9605:

“When a section or part of a statute is amended

.. . .(n) provisions are to be considered as having

been enacted at the time of the amendment.”

. There is a presumption that any essential change in the

phraseology of a statute indicates an intention on the part

of the legislature to change its meaning rather than to inter-

pret it. Todd Estate, 17 Cal.2d 270 (1941); Dalton v. Bald-

win, 64 Cal.App.2d 259 (1944); Coker v. Superior Court,

70 Cal.App.2d 199 (1945).

Here, the change in the language of the statute was

material, in that it made the standard for proving “knowledge”

less stringent. It is clear that the retroactive application

of the less stringent standard to the petitioner’s trial could

only have operated to penalize him.

When the elements of an offense are legislatively

changed, as here, and where the alleged offense took place

prior to the amendment, the defendant cannot be held to

the new standard. This is constitutionally barred by the

prohibition against ex post facto laws. This is true whether

the law is enacted by the federal government, Article I,

Section 9(3), or by the state government, Article I, Section

10(1); Calder v. Bull, supra, 3 U.S. 386 (1798); In re Estrada,

63 Cal.2d 749 (1965). See, also, Wilke and Holzheiser, Inc.

v. Department of ABC, 65 Cal.2d 349 (1966); California

Government Code Section 9608.

A defendant may be given the benefit by a retroactive

application of a change in the law, but it is fundamental

that he may not be penalized. In re Estrada, supra; In re

Kirk, 63 Cal.2d 761 (1965).

CONCLUSION

For the reasons stated, it is respectfully submitted

that the judgment of the court below should be reversed.

Respectfully submitted,

BURTON MARKS of

MARKS, SHERMAN, LONDON,

SCHWARTZ & LEVENBERG

- A Professional Corporation

Attorneys for Petitioner.

INDEX TO APPENDIX

Page

Minute Order Entered Oct. 12, WT AR eee 6s 1

Minute Order Entered Nov. 2,1970 ......---- 1

Notice of Appeal to the United States

Supreme Court and Application For

Stay Pending Appeal ....------+--++++- 2

California Penal Code

Section 311 ......-.-2-eeceeeereceeees 4

Section 311.2 ....-- Ose Cee ETS PEA 6

a ——

Appendix MINUTE ORDER han

In the Appellate Department of the Superior Court of

the State of California, in and for the County of Orange.

Court convened at 10:00 A.M., October 12, 1970,

present HON. HERLANDS, J.; HON. MURRAY, J.; HON.

THOMPSON, P.J.; H. J. Gallagher, Deputy Clerk; no Deputy

Sheriff; no Reporter, and the following proceedings were had:

AP 872 PEOPLE VS MILLER, Marvin

This matter having heretofore been under submission,

the Court now rules; the judgment is hereby affirmed and

the cause remanded to Municipal Court. ENTERED 10-12-70.

In the Appellate Department of the Superior Court of

the State of California, in and for the County of Orange.

Court convened at 10:00 A.M., November 2, 1970,

present HON. HERLANDS, J.; HON. MURRAY, J.; HON.

THOMPSON, P.J.; H. J. Gallagher, Deputy Clerk; no Deputy

Sheriff; no Reporter, and the following proceedings were had:

AP-872 PEOPLE VS MILLER, Marvin

Petition for rehearing and in the alternative, Petition

for certification to the Court of Appeal, Fourth Appellate

District having been received and considered, the Court now

Appendix 2.

rules: the Petitions and each of them are hereby denied.

ENTERED 11-2-70.

NOTICE OF APPEAL TO THE

UNITED STATES SUPREME COURT

AND APPLICATION FOR STAY PENDING APPEAL 4

In the Appellate Department of the Superior Court,

County of Orange, State of California.

No. AP-872 (Lower Court: OCMC, Harbor No.

M50760)

PEOPLE OF THE STATE OF CALIFORNIA, Respond-

ent, vs. MARVIN MILLER, Appellant.

Notice of appeal and application for stay pending appeal

to the United States Supreme Court is hereby given by Marvin

Miller, Petitioner and Appellant herein, from the Order of this

Court dated October 12, 1970, by which it affirmed the judg-

ment of the court below. On November 2, 1970, this Court

denied Petitioner/Appellant’s Petition for Rehearing and in

the Alternative, Petition for Certification to the Court of

Appeal, Fourth Appellate District.

This Appeal is taken inter alia on the following grounds,

without intent to enumerate all of his defenses, that Petition-

er/Appellant by his appeal and his Petition for Rehearing/Cer-

tification:

1. Challenged the constitutionality of the application

of a “statewide” standard in judging obscenity

under Penal Code § 311.2 under the First and

Appendix 3.

Fourteenth Amendments;

2. Challenged the constitutionality of the applica-

tion of an unscientific survey to qualify an expert

witness to testify as to the “community standards”

requirement in the legal definition of obscenity

pursuant to Penal Code § 311.2 in contravention

of the First and Fourteenth Amendments;

3. Challenged the prosecution under Penal Code

§ 311.2 for mailing obscene material as a contra-

vention of the doctrine of Federal Pre-emption

and the Supremacy Clause of the United States

Constitution.

4. Challenged his conviction under the amended

language of Penal Code § 311. as an application

of an ex post facto law;

5. Challenged his prosecution and conviction for

mailing obscene material in that under the Fifth

Amendment’s prohibition against double jeopardy

the state was collaterally estopped from claiming

that the material was obscene.

This appeal is being prosecuted pursuant to the author-

ity of Title 28 U.S.C. § 1257(2), and

That the Order of this Court, dated October 12, 1970,

and reading as follows: “Affirmed,” and the denial of

Appellant’s Petition for Rehearing/Certification constituted

a finding that Penal Code § 311.2 of the State of California

was constitutional on its face and as applied, and Appellant

hereby gives his Notice of Appeal from that finding.

Appendix

DATED: November 6, 1970.

MARKS, SHERMAN &

LONDON

BY: BURTON MARKS

Attorneys for Appellant

[PROOF OF SERVICE BY MAIL annexed, showing

service on the Respondent in said action, by placing a

true copy thereof enclosed in a sealed envelope with

postage thereon fully prepaid, in the United States mail

at Beverly Hills, California, addressed as follows:

CECIL HICKS, District Attorney

P. O. Box 808

Santa Ana, Calif.

MUNICIPAL COURT OF THE ORANGE

COUNTY JUDICIAL DISTRICT - HARBOR

567 West 18th Street

Costa Mesa, California 92626.

Executed on November 6, 1970, at Beverly Hills, California. ]

CALIFORNIA PENAL CODE

8311. Definitions

As used in this chapter:

(a) ‘Obscene matter” means matter, taken as a whole,

the predominant appeal of which to the average person, apply-

ing 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

Appendix 5.

without redeeming social importance.

(1) The predominant appeal to prurient interest of

the matter is judged with reference to average adults unless

it appears from the nature of the matter or the circumstances

of its dissemination, distribution or exhibition, that it is de-

signed 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 circum-

stances of production, presentation, sale, dissemination, dis-

tribution, or publicity indicate that matter is being commer-

cially 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 importance.

(b) “Matter” means any book, magazine, newspaper

or other printed or written material or any picture, drawing,

photograph, motion picture, or other pictorial representation

or any statute or other figure, or any recording, transcription

or mechanical, chemical or electrical reproduction or any

other articles, equipment, machines or materials.

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.

(g) “Obscene live conduct” means any physical human

body activity, whether performed or engaged in alone or

with other persons, including but not limited to singing,

Appendix

speaking, dancing, acting, simulating, or pantomiming,

where, taken as a whole, the predominant appeal of such

conduct to the average person, applying contemporary stand-

ards, is to prurient interest, i.e., a shameful or morbid interest

in nudity, sex, or excretion; and is conduct which taken as

a whole goes substantially beyond customary limits of candor

in description or representation of such matters; and is con-

duct which taken as a whole is utterly without redeeming

social importance.

(1) The predominant appeal to prurient interest of

the conduct is judged with reference to average adults unless

it appears from the nature of the conduct or the circum-

stances of its production, presentation or exhibition, that it

is designed for clearly defined deviant sexual groups, in

which case the predominant appeal of the conduct shall be |

judged with reference to its intended recipient group.

(2) In prosecutions under this chapter, where circum-

stances of production, presentation, advertising, or exhibition

indicate that live conduct is being commercially exploited by

the defendant for the sake of its prurient appeal, such evi-

dence is probative with respect to the nature of the conduct

and can justify the conclusion that the conduct is utterly

without redeeming social importance.

6311.2 Sending or bringing into state for sale or distri-

bution; printing, exhibiting, distributing

+: * + or possessing within stat

(a) “Bvety 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 prepares, publishes,

prints, exhibits, distributes, or offers to distribute, or has

Appendix -

in his possession with intent to distribute or to exhibit or

offer to distribute, any obscene matter is guilty of a mis-

demeanor.

(b) The provisions of this section with respect to

the exhibition of, or the possession with intent to exhibit,

any obscene matter shall not apply to:

A motion picture machine operator acting within the

scope of his employment as an employee of any person

exhibiting motion pictures pursuant to a license or permit

issued by a city or county provided that such operator has

no financial interest in his place of employment, other than

wages.

STATE OF CALIFORNIA )

) ss.

County of Orange )

I, the undersigned, say: 1 am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, over the age of

eighteen years and not a party to the within action or proceeding; that

My business 322 Main Street, Huntington Beach, California 92648,

that on MAY/2), 1971, I served the within BRIEF FOR PETITIONER

(NO. 1288) on the following named parties by depositing the designated copies

thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in

the United States Post Office in the City of Huntington Beach, California,

addressed to said parties at the addresses as follows:

ATTORNEY GENERAL SOLICITOR GENERAL OF

STATE OF CALIFORNIA THE UNITED STATES

600 State Building Washington, D. C. 20543

Los Angeles, California 90012 (3 copies)

(3 copies)

DISTRICT ATTORNEY APPELLATE DEPT.

COUNTY OF ORANGE SUPERIOR COURT

700 Civic Center Drive West ORANGE COUNTY

Santa Ana, Calif. 92701 County Courthouse

(1 copy) Santa Ana, California

(1 copy)

MUNICIPAL COURT - HARBOR JUDICIAL DISTRICT

567 West 18th Street

Costa Mesa, California 92626 (1 copy)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on MAY}, 1971, at HUNTINGTON BEACH, CALIFORNIA.

PY 2 ae

D. A. Standefer

Dean-Standefer Co., 322 Main St., Huntington Beach, Calif.

(714) $36-7161-

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