# Appellants Brief — Miller v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 1973
- **Citation:** 413 U.S. 15

## Text

i
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

II
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 ....

10

16

ii
TOPICAL INDEX

Argument (cont'd) Page

IV
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

VI
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

%

iv
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) ..........

—

v
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 :

7

“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.

EE

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,

Si

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)

3
(May 4,
5.

Es

43

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.

(C) It is also important for this Court to reach a deci-
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.

Il
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 _

tt

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

ta

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:

i.

“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.

a

_

a

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.”

22

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

i.

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.”

IV
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

98

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).

v
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

i

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
VI
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”

oy

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.

(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.

(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

+
t

~

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.

ae

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:

é

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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0176%3A04. Public record. Not legal advice.