Petition for Writ of Certiorari — Kaplan v. California

1, pea KH > "aera

~ OPY IN THE

reme Court of the United States

Supreme Covrt, {!. .

October Term, 1971 FILED

res vay 1 1972

Murray KAPLAN, i MICHAEL RODAK, JR..,

A Petitioner,

Pe WS.

PEOPLE OF THE STATE OF CALIFORNIA,

‘ Respondent.

Sn

se

STANLEY FLEISHMAN,

6922 Hollywood Boulevard,

Hollywood, Calif. 90028,

Attorney for Petitioner.

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

SUBJECT INDEX

Page

pair 1

1S ina eipiiaeecnrcicrenmeiepeoiemeses 2

) Peutions ESSE LEE LINE A, COT 3

Constitutional and Statutory Provisions Involved 6

Ghatememt nnn. n acne ene en nse eenne cree eneneenecenceteennns 6

How Federal Questions ‘Are Presented ..............-.-- 7

Reasons for Granting the Writ ..................--..--..--- 15

MMR ccs, act eS eS oa dshccitonaiabe 22

INDEX TO APPENDICES

Appendix A. Opinion and Judgment of the Ap-

pellate Department of the Superior Court of the

- State of California for the County of Los Ange-

B.. Memorandum Opinion and Judg-

ment of the Appellate Department Rendered

Prior to Rehearing, and Subsequently Replaced

_ by Opinion and Judgment (Appendix A) ...... 10

Fipenitix C. Order of Appellate Department Cor-

recting Judgment of Court -.................-.-.----.--.---- 16

‘Appendix D. Order of Appellate Department

_ Granting Petition for Rehearing -....................... 17

Appendix. E. Order of Appellate Department

= _ Certifying Cause to Court of Appeal -.............. 18

F. Order of Court of Appeal Denying

eee a een ee ee ee ee eee eee eee eee ee eee Hee eee ee See eee ene ewee eens

ee nee ee wee ee ee eee ee eee eee eee ee seme sen eee eee eene eee eeeeesen eee

ee

iL.

TABLE OF AUTHORITIES CITED

: Cases Page

Aday v. United States, 388 U.S. 447 ................ 16, 21

Avansino v. New York, 388 U.S. 446 .................. 16

Bloss v. Dykema, 398 U.S. 278 -....-.--.------0-0--00--. 21

Books, Inc. v. United States, 388 U.S. 449, rev. 358

F.20°935 °( 1 Clr, 1966) le 16, 21

Bouie v. City of Columbia, 378 U.S. 347 .............. 20

Central Magazine Sales, Ltd. v. United States, 389

U.S. 50 21

Childs v. Oregon, 401 U.S. 1006 .................... 16, 21

Cole v. Arkansas, 333 U.S. 196 Be TENNER 20

Corinth Publications, Inc. v. Semen: 388 US.

448 16

DeJonge v. Oregon, 299 U.S. 353 . 19

Friedman v. New York, 388 U.S. 441 ................... 16

Garner v. Louisiana, 368 U.S. 157 19

Ginzburg v. United States, 383 U.S. 463 _........... 13

Grant v. United States, 380 F.2d 748 (9 Cir. 1967)

Grove Press, Inc. v. Christenberry, 276 F. 2d

433 (2 Cir. 1960), affg. 175 F.Supp. 488 (D.C.

N.Y. 1959) 17

Grove Press, Inc. v. Gerstein, 378 U.S. 577 ........ 17

Haldeman v. United States, 340 F.2d 59 (10 Cir.

1965) 17

Hoyt v. Minnesota, 399 U.S. 524 8, 16

Jacobellis v. Ohio, 378 U.S. 184 2.9, 21

Luros v. United States, 389 F.2d 200 (8 Cir. 1968) 5

17,

iii.

y v. New York, 388 U.S. 440 ........................ 16

ONE EBON sk nec Dev eee eee ees 16

“Memoirs v. Massachusetts, 383 U.S. 413 .......... 13, 17

People v. Noroff, 67 Cal.2d 791, 433 P.2d 469, 63

_ Cal.Rptr. 575 (1967) 11

Potomac News Co. v. United States, 389 U.S, 47 .. 21

ee 22 Sopies of Books v. Kansas, 378 U.S. 205

a ae eT 16

Rabe v, Washington, 92 S.Ct, 993 ccc 20

Redrup v. New York, 386 U.S. 767 .......... 17, 21

Roth v. United States, 354 U.S. 487 .......... 15, 16, 17

Sheperd v. New York, 388 USS. 444 ...................... 16

‘Smith v. California, 361 U.S. 147 -....-cssccceeeeoee--- 3

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

: and Germain v. United States, 440 F.2d

~~ 1241 (8 Cir. 1971) 21

‘Stanley v. Georgia, 394 U.S. 557 22

‘Thompson v. City of Louisville, 362 U.S. 199 ...... 19

‘Thompson v. Utah, 170 U.S. 343 Ee ey 20

“Tralins v. Gerstein, 378 U.S. 576 .......... oy

‘United States v. Baranov, 418 F.2d 1051 (9 Cir.

- 1966) at

v ited States v. Dellapia, 433 F.2d 1252 (2 Cir.

EEE eC See 22

United States v. Vuitch, 402 Gs or or 18

3 States v. West Coast News Co., 357 F.2d

55 (6 Cir. 1966) .. So ceils

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

ker v. Ohio, 398 U.S. 434 2...

Rules Page

California Rules of Court, Rule 24(a) ...1............. 3

California Rules of Court, Rule 28(b) -................ 3

California Rules of Court, Rule 62 ....................... 3

California Rules of Court, Rule 63 ........................ ll

California Rules of Court, Rule 63(a). .............. 2, 14

California Rules of Court, Rule 63(3) -........... 2, 14

Statutes

California Penal Gode, Sac..33) oan, TE SR eB

California Penal Code, Sec. 311(a)(2) ..6, 10, 11, 14

California Penal Code, Sec. 311.2 ...... a, 4,.5,.6, 4

California Penal Code, Sec. 312.1 ............-. 10, 11, 13

California Penal Code, Sec. 1471 .. 3

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

United States Constitution, Art. I, Sec. 10 -........... 6

United States Constitution, First Amendment ..3, 4, 5

6.7, Bae, 15,19, 2

United States Constitution, Fourteenth Amendment

3, 43, 6, 7, §, 9, 15, 19, Zi, 2

IN THE

Suyrene Court of the United States

October Term, 1971

BN iis ints,

Murray KAPLAN,

Petitioner,

vs. 4

PEOPLE OF THE STATE OF CALIFORNIA,

Respondent.

Petition for 2 Writ of Certiorari to the Appellate De-

_ partment of the Superior Court of the State of

Calllornia for the County of Los Angeles

~ Petitioner, Murray Kaplan, prays that a writ of cer-

tiorari issue to review the judgment and opinion of the

Department of the Superior Court of the

State of California for the County of Los Angeles,

a in the above entitled case on February 7, 1972.

: The opinion of the Appellate iad of the Su-

peri Court of the State of California for the County

# Los Angeles is reported in 23 Cal.App.3d Supp.

9, 100 Cal.Rptr. 372. A copy of the opinion appears

in Appendix A hereto. The memorandum opinion and

judgment of the said Appellate Department of the Su-

Avi ebaneclagapraeps pind

_& Los Angeles, rendered prior to rehearing and subse-

e 7 fly replaced by the aforesaid opinion and judg-

ll

ment appearing in Appendix A hereto, was rendered

on October 27, 1971. The said opinion is not reported

and appears in Appendix B hereto. The order dated

November 3, 1971, correcting a clerical error in the

said judgment of October 27, 1971, is not reported. A

copy of the order appears in Appendix C hereto.

Jurisdiction.

The judgment of the Appellate Department of the

Superior Court of the State of California for the

County of Los Angeles (Appendix A) was entered

on February 7, 1972.

The initial judgment of the Appellate Department

of the Superior Court of the State of California for the

County of Los Angeles (Appendix B) was entered on

October 27, 1971, and the order correcting the said

judgment (Appendix C) was entered on November

3, 1971. Upon the filing of a due and timely petition

for rehearing, an order was made by the said Appel-

late Department granting the petition for rehearing.

The said order was entered on November 10, 1971,

and is attached hereto as Appendix D.

Upon rehearing, the Appellate Department rendered

its aforesaid judgment, entered on February 7, 1972,

which appears as Appendix A hereto. On the same

date the Appellate Department entered its order certify-

ing the cause to the Court of Appeal pursuant to Rule

63(a) and (3), California Rules of Court. A copy of

the said order certifying the cause to the Court of Ap

peal is attached hereto as Appendix E. On, February

17, 1972, the Court of Appeal of the State of Calt

fornia, Second Appellate District, Division Three, made

its order denying transfer of the cause. A copy of the

said order appears hereto as Appendix F. |

mat Tare

the aforesaid denial of transfer by the Court of

Appeal the Appellate Department of the Superior

Court of the State of California for the County of Los

“Angeles became the highest court of the State in which a

decision could be had.’ See, California Penal Code

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

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

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

Ry. Co.-v. Mullins, 271 W.S. 220, 222.

The jurisdiction of this Court is invoked under 28

US.C. §1257(3).

» 1. Whether the book “Suite 69” by I. Smithson is

entitled to the protections of the free speech and

‘press provisions of the First and Fourteenth Amend-

‘ments, and whether California Penal Code §§311 and

$11.2, as construed and applied to punish the sale of

‘said book by a retail book seller to an adult who re-

quested and purchased the said k, render the state

pens statutes unconstituti arbitrarily deprive

this petitioner of his liberty and property without due

focess of law, and abridge petitioner’s exercise of

freedoms of speech and press, all contrary to the

‘free speech and press and due process provisions of

pas Be

ment of conviction of petitioner without any evidence

in the record. in support of an essential element of the

offense, to wit, that the book was utterly without re

deeming social importance, and where the only uncon-

troverted evidence offered by petitioner established by

expert testimony that the book had social importance,

deprive petitioner of his liberty and property without

due process of law and abridge petitioner’s exercise of

freedoms of speech and press, contrary to the free

speech and press and due process provisions of the

First and Fourteenth Amendments.

3. Whether California Penal Code §§311 and 311.2,

as construed and applied to authorize the judgment

of conviction of petitioner herein upon the theory that

proof of “pandering” may serve as a substitute for

proof by the prosecution that the book is utterly without

redeeming social importance, arbitrarily and capricious-

ly deprive petitioner of his liberty and property without

due process of law, deny petitioner the equal protection

of the laws, and abridge petitioner’s exercise of free-

doms of speech and press, contrary to the free speech

and press, due process, and equal protection provisions

of the First and Fourteenth Amendments, when

(a) No charge of “pandering” was ever made

in the complaint; the case was never tried upon

such a theory; the jury was never instructed upon

such an issue; and the prosecution itself con-

ceded that the doctrine of “pandering” could not

be appropriately invoked to affirm the conviction

herein; ‘

(b) State statutes which became effective long

after the commission of the alleged offense were

retroactively applied by the state court to punish

oe

—5—

was not punishable under the laws of the

State at the time of the commission of the alleged

_ offense, and the highest court of the State had

__ judicially determined that evidence of such con-

_ duct could not be used to support a conviction

under the general obscenity statute; and

_ . (c¢) The evidence in the record is barren of any

__ proof of “pandering”, as that concept has been

_ imterpreted by decisions of the United States Su-

_ 4, Whether California Penal Code §311 and 311.2,

as construed and applied to authorize the judgment of

onviction herein, where the standard for judging. the

alleged obscenity of the book was based upon the

community standards of the State, and not upon the

2 of the Nation as a whole, deprive petitioner

‘of his liberty and property without due process of

law and abridge petitioner's exercise of freedoms of

‘speech and press, contrary to the free speech and press

and due process provisions of the first and Fourteenth

Amendments.

5. Whether California Penal Code §§311 and 311.2,

as construed and applied to authorize the judgment of

‘conviction of petitioner herein, where the sole evidence

‘jm the record establishes that petitioner, a retail book

‘seller, sold the book to an adult who requested the

and purchased it, ostensibly for his personal use,

and where the prosecution stipulated and conceded that

pe neither sold the material in his bookstore

te } minors nor thrust it upon the general public and

Phgaged in no “pandering” of the material, deprive

Metitioner of his liberty and property without due proc-

8 of law and abridge petitioner’s exercise of free-

jieilibaces

doms of speech and press, contrary to the free speech

and press and due process provisions of the First and

Fourteenth Amendments.

Constitutional and Statutory Provisions Involved,

The pertinent provisions of the First and Fourteenth

Amendments and Article I, Section 10, of the Con-

stitution of the United States and the provisions of

California Penal Code §§311 and 311.2 at the time

of the commission of the alleged offense, and the provi-

sions of California Penal Code §311(a)(2), which be-

came effective after the commission of the alleged of-

fense, appear in Appendix H hereto.

Statement.

On June 3, 1969, a three-count complaint was filed

against petitioner in the Municipal Court of the Los

Angeles Judicial District, County of Los Angeles, State

of California, charging violations of California Penal

Code §311.2, the state obscenity statute. The trial

under the said complaint commenced on January 12,

1971, in the said municipal court before the Honorable

David J. Aisenson, a judge of the said court, and a

jury. On February 4, 1971, the jury returned verdicts

of acquittal as to two of the counts and returned a ver-

dict of guilty solely with respect to the sale by petitioner

of a paperback book entitled “Suite 69” to a police

officer who had requested it [R.T. 54-55].?

cli

How Federal Questions Are Presented.

A. Prior to trial the petitioner demurred to the com-

slaint upon the ground, among other things, that the

California obscenity statute, California Penal Code

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

applied by the said complaint, deprived petitioner of

his rights of freedom of speech and press, due process

of law, and equal protection of the laws, in violation

of the First and Fourteenth Amendments. The de-

murrer having been overruled, the case proceeded to

trial as aforestated.

_ At the trial it was established that petitioner is the

‘owner of a bookstore located in the City of Los An-

geles, County of Los Angeles, State of California. A

‘police officer testified that he purchased the book from

petiti who was then working as a clerk in his

pookstore [R.T. 35-59]. It was stipulated by the

“prosecution that the petitioner neither disseminated the

“material to minors nor thrust it upon the general public

_{R.T. 8]. The police officer who purchased the book

stated that he had asked petitioner whether he had any

“good sexy books, and that petitioner had replied that all

his books were sexy [R.T. 53]. The police officer asked

“if petitioner had any good paperback books, and peti-

fioner replied that he was “reading one right now, and

called ‘Suite 69’ ”.

Aside from the testimony of the aforesaid police of-

"fiver, the only other testimony offered by the prosecu-

was by another vice officer who testified over ob-

on {R.T. 122-123, 124, 131] that the material in

ion appealed to a prurient interest in sex and ex-

| ded customary limits of candor [R.T. 136-139].

"The prosecution offered no testimony that the book was

ue ae

utterly without redeeming social importance. A motion

for judgment. of acquittal at the end of the prosecu-

tion’s case was denied [R.T. 249].

On behalf of petitioner, Franklin Laven, an attorney

[R.T. 286], testified’ that the book “Suite 69” does

not exceed contemporary limits of candor, does not ap-

peal to a prurient interest in sex, and has social im-

portance [R.T. 326, 337-339]. The court received in

evidence by way of judicial notice a book entitled

“Adam and Eve”, found to be constitutionally protected

by the Court in Hoyt v. Minnesota, 399 U.S. 524

[R.T. 190, 379-380] ;

At the close all the evidence, petitioner again

moved for judgment of acquittal, which again was de

nied [R.T. 485-489]. Following the return of the ver-

dict and the denial of petitioner's motion for a new

trial, petitioner was granted probation for a period of

three years, on condition that he spend thirty days in

the county jail and pay a fine of $1,000.

B. A due and timely appeal was prosecuted by peti-

tioner to the Appellate Department of the Superior

Court of the State of California for the County of Los

Angeles. The questions presented on appeal included

the following: (1) That the book “Suite 69” is. not

obscene and that the state obscenity statute, as con-

strued and applied, violated the free speech and press,

due process, and equal protection provisions of the

First and Fourteenth Amendments and the interpretive

decisions of the Court and the rulings of other federal

and state courts holding comparable books tobe entitled

to constitutional protection; (2) That the prosecution

had failed to present any evidence in support of an es-

sential element of the offense, to wit, that the book was

y without redeeming social importance, and that

‘the statute, as construed and applied to authorize

‘the judgment of conviction upon an uncontroverted

‘tecord showing that the book was not utterly without

tedeeming social importance, violated the free speech

and press, due process, and equal protection provisions

of the First and Fourteenth Amendments; (3) That the

statute, as construed and applied to authorize the judg-

‘ment of conviction based upon a state community stand-

ard, and not upon a national standard, violated the

‘free speech and press, due process, and equal protec-

tion provisions of the First and Fourteenth Amend-

‘ments; and, (4) That the statute, as construed and ap-

plied to authorize the judgment of conviction without

ee eins int fon ook: eppeaied tote

interest of the actual or intended audience, or

substantially beyond contemporary limits of can-

cane by community standards in the Nation as

aw violated the free speech and press, due proc-

8, and equal protection provisions of the First and

Fo th Amendments.

: On October 27, 1971, the Appellate Depart-

it of the Superior Court of the State of California

for the County of Los Angeles filed a memorandum

n and judgment, affirming the conviction ( Ap-

B). With respect to the issue as to the ap-

‘pre community standard, the court declined to

follow the ruling of the Court in Jacobellis v. Ohio, 378

184, The court held that “the arguments against

tion-wide standard outweigh those in favor’ and

t “the state-wide standard applied to all forms of

xd obscenity” (App. B., p. 11).

in respect to the issue of the failure of the prose-

Hor OG ciik ij as ale Ge

ih tile

>

sialic

terly without social importance, and the fact that peti-

tioner had presented uncontroverted expert evidence

that the book had social importance, the Appellate De-

partment asserted that the failure of proof was not fatal,

The reasoning of the court was that California had

enacted new legislation, California Penal Code §311-

(a) (2), effective November 10, 1969, some six months

after the commission of the alleged offense herein,

which provided that in obscenity prosecutions, where

the circumstances of production, purchase, sale, dis

semination, distribution or publicity indicated that

matter was “being commercially exploited by the de-

fendant for the sake of its prurient appeal”, such evi-

dence was probative with respect to the nature of the

matter and could “justify the conclusion that the mat-

ter is utterly without redeeming social importance”,

Based upon such statute and upon another recent stat-

ute, California Penal Code §312.1, which abolished the

requirement of expert testimony, the Appellate Depart-

ment concluded that the conversation between the

police officer and petitioner, and the advertisements

in the back of the book, amounted to “pandering”, and

since the jury now had the right to disregard expert

opinion, the jury was justified in finding that the prose-

cution had sustained its burden of proving that the ma-

terial was utterly lacking in social importance (App.

B., pp. 12-14). It should be noted at this point that

the complaint against petitioner never made any charge

of “pandering”; the case was never tried on a theory

of “pandering”; the jury was never instructed that it

could consider evidence of “pandering” in reaching a

verdict; and, indeed, the prosecution in its» brief on

rehearing conceded that the concept of pandering could

not be constitutionally applied to petitioner. The court

ial ha

9 rejected the contention that the book “Suite 69” is

‘obscene. Without indicating the distinction between

90k herein and comparable books found to be con-

onally protected by this Court, the Appellate De-

partment held that “Suite 69” was obscene and not en-

‘fitled to constitutional protection.

D. Following the rendition of the aforesaid judg-

‘ment of October 27, 1971, petitioner filed a due and

tim petition for rehearing or, in the alternative, for

‘certification of transfer ‘to the Court of Appeal, pur-

‘gant to Rule 63 of the California Rules of Court. It

‘was argued in the first place that the Appellate Depart-

ment had mistakenly relied upon statutes passed after

‘the commission of the alleged offense in order to jus-

tify the affirmance of the conviction upon the doctrine

of “pandering” as a substitute for evidence in the

that the book was utterly without redeeming

importance. The petitioner pointed out that

¢ a Penal Code §§311(a)(2) and 312.1 did not

‘become effective until November 10, 1969, and that

‘the commission of the offense as charged in the com-

t of June 3, 1969, allegedly occurred on May 14,

9, some six months before the passage of the said

‘statutes. Moreover, the Supreme Court of California

‘had held some two years before that the doctrine of

‘pandering could not be invoked where no such charge

‘was contained in the accusation and where the state

‘egislature had created no such crime. People v. Noroff,

“67 Cal.2d 791, 433 P.2d 469, 63 Cal.Rptr. 575

E 4 -

1 he charge of pandering had never appeared in the

sation in the case herein; that the case was never

sai en

not establish such “pandering”; and that the jury had

never been instructed upon any such theory. It was

urged that the court had failed to recognize that there

was a complete absence of proof in the record of an

essential element of the offense, to wit, that the book

was utterly without redeeming social importance. Peti-

tioner urged upon the court that its judgment deprived

petitioner of his liberty without due process of law and

unconstitutionally subjected him to an ex post facto

application of the laws.

Petitioner also urged upon the court that the book

herein involved was not different in the constitutional

sense from the books held to be constitutionally pro-

tected by this Court.

E. The aforesaid petition for rehearing was granted

by the Appellate Department on November 10, 1971

(Appendix D). In respondent’s brief on rehearing, it

was conceded that petitioner had not been prosecuted

under any theory of pandering; that instructions had

not been given to the jury on such issue; and that the

prosecution “did not argue this concept at trial and/or

on appeal” (Respondent’s Brief on Rehearing, p. 2).

The prosecution admitted that “the case herein will

have to be decided on the book per se, plus the evi-

dence pertaining to scienter” (Jbid., p. 3). In short,

the prosecution agreed that the court had misapplied

the California statutes enacted after the commission of

the alleged offense, but argued that the judgment

should be affirmed in any event.

On February 7, 1972, the Appellate Department,

following rehearing, filed its second opinion and judg-

ment and again affirmed petitioner’s conviction (Ap

pendix A). In most.gespects the court merely reiterated

sal A cies

or opinion. The Appellate Department held that

‘book “Suite 69° is obscene and not entitled to

titut protection; that the appropriate commu-

“nity standard is that of the State rather than the Nation

as a whole, even in a case involving a book intended

for nation-wide dissemination; that the question of

‘prurient appeal need not be measured by the book’s

“impact upon its actual and intended audience, even

‘though the prosecution ‘had stipulated that the peti-

tioner neither disseminated the book to minors nor

‘thrust it upon the general public; that the burden of

: rested initially with an accused in an ob-

‘senity prosecution on the issue of redeeming social

value; that although the only evidence in the record on

the issue of social value had been produced by peti-

tioner, nevertheless the statute enacted after the com-

“mission of the alleged offense (California Penal Code

($312.1) authorized the jury to disregard such testi-

‘Mony; and that the prosecution had sufficiently met its

‘burden on the clement of social value when evidence of

Ec ” appeared in the record. The court held

ilies the concept of pendering enunciated by this Court

in Ginzburg v. United States, 383 U.S. 463, and te-

iterated in Memoirs v. Massachusetts, 383 U.S. 413,

“must meer have been deemed to be the law in Cali-

fornia; that the statutes enacted after the commission

ofthe rent offense herein merely codified such pre-

‘xisting law; and that therefore the retroactive appli-

cation of the statutes did not deprive petitioner of his

liberty without due process of law nor his right to a

trial, did not subject him to any ex post. facto

lication of the laws nor subject petitioner to depri-

‘“Wation of his liberty on a charge never made and a

“theory never tried.

i a

F. On the same date as the rendition of the afore-

said judgment, the Appellate Department filed an order

certifying the cause to the Court of Appeal, pursuant

to Rule 63(a) and (3), California Rules of Court (Ap-

pendix E). The Appellate Department stated in its

certification that the transfer “appears necessary to set-

tle important questions of law”. The questions so pre-

sented were: (1) Is the proper community standard in

an obscenity prosecution for sale of a book that of the

State of California or a national standard?; (2) Is it

proper to place the burden of going forward with evi-

dence as to the redeeming social value of matter which

meets the tests of appeal to prurient interest and ex-

ceeding customary standards on the defendant?; (3) If

the answer to the previous question is in the affirmative,

what is the burden of the People in meeting defend-

ant’s evidence of redeeming social value?; (4) In Cali-

fornia may evidence of the circumstances of production,

presentation, sale, dissemination, distribution or pub-

licity constitute sufficient evidence of lack of redeeming

social value either under the case of A Book v. Attor-

ney General (Memoirs) [1966] 383 U.S. 413, 420

[16 L.Ed.2d 1, 6, 86 S.Ct. 975] or under Penal Code

Sec. 311(a)({2)?; and, (5) May Penal Code Sec. 311

(a)(2) be applied in a prosecution for sale or distri-

bution of obscene matter where the sale or distribution

occurred before the effective date of such provision?

On February 17, 1972, the Court of Appeal of the

State of California, Second Appellate District, Division

Three, made its order denying transfer of the cause

(Appendix F). x

. The book “Suite 69” is not obscene and is en-

to constitutional protection under the First and

th Amendments to the Constitution and the in-

ter decisions of this Court. The book contains

‘illustrations and its language plainly does not ex-

: bs | contemporary community standards and the limits

‘of tolerance which the community as a whole today

‘gives to writing about sex. and sex relations. The frank-

“ness with which sex and sex relations are dealt with at

the present time is evident in all media of public ex-

‘pression, in the kind of language used and subjects

‘discussed in every area of society, in theaters, films,

- books, advertisements, dress, and in many other ways

familiar to the community. The book does not appeal

‘to a shameful or morbid interest in sex and is not

“utterly without social importance. Moreover, the un-

‘controverted evidence in the record establishes that the

‘pook has social importance. Measured by the constitu-

‘tional standards for judging obscenity, as enunciated

‘and applied by this Court, the book is not obscene and

is entitled to the protection of the First Amendment.

Language equally explicit and, indeed, even more

‘candid than the language contained in the book herein

has been held to be entitled to constitutional protection

‘in decisions of this Court and the lower courts since

Roth and until the most recent term of the Court. Ex-

' plicit descriptions of sex relations in books, periodicals

‘and other media of communication are plainly toler-

“ated by the community generally.

In the light of the requirements of the First and Four-

nth Amendments and the interpretive decisions of

; Court with respect to books indistinguishable in

—i6—

content from the book here involved, it is submitted

that the judgment of conviction here, imposing fine and

imprisonment upon petitioner, cannot stand consistent

with the guarantees of the fundamental law. This Court

has emphasized again and again that “sex and obscen-

ity are not synonymous”. Roth v. United States, 354

U.S, at 487. Under any conceivable constitutional

standard for judging obscenity, the book herein is not

obscene and is entitled to constitutional protection. See,

Childs v. Oregon, 401 U.S. 1006 (“Lesbian Roonm-

mate”); Walker v. Ohio, 398. U.S. 434 (“Lurid Sin-

ner”, “Sin Crop”, “Sands of Shame”); Hoyt v. Minne-

sota, 399 U.S. 524 (“The Way of a Man With a

Maid”, “Adam and Eve”, “Business as Usual”, “Lady

Susan’s Cruel Lover”, “True Love Stories of Growing

Up”); Quantity of Copies of Books v. Kansas, 378

U.S. 205 (“Sin Hooked”, “Bayou Sinners”, “Lust

Hungry”, “Shame Shop”, “Fleshpot”, “Sinners Seance”,

“Passion Priestess”, “Penthouse Pagans”, “Shame Mar-

ket”, “Sin Warden”, “Flesh Avenger”); Aday v. United

States, 388 U.S. 447 (“Sex Life of a Cop”); Books,

Inc. v. United States, 388 U.S. 449 (“Lust Job”);

Corinth Publications, Inc. v. Wesberry, 388 U.S. 448

(“Sin Whisper”); Keney v. New York, 388 U.S. 440

(“Sin Servant”, “Lust School”, “Lust Web”); Mazes v.

Ohio, 388 U.S. 453 (“Orgy Club”); Friedman v. New

York, 388 U.S. 441 “Bondage Boarding School”, “Eng-

lish Spanking School”, “Bound and Spanked”, “Sweeter

Gwen”, “Traveling Saleslady Gets Spanked”, “Bound

to Please”, “Bizarre Summer Rivalry”, “Heatwave”,

“Escape Into Bondage”); Sheperd v. New York, 388

US. 444 (“Promenade Bondage”, “Spanking Nurses,”

“Spanking Sisters”, “Bondage”); Avansino v. New

York, 388 U.S. 446 (“Promenade Bondage, Vol. 4”);

cee, re

tup v. New York, 386 U.S. 767 (“Lust Pool”,

ame Agent”); Memoirs v. Massachusetts, 383 USS.

443. (“Fanny Hill”); Grove Press, Inc. v. Gerstein,

‘318 US. 577 (“Tropic of Cancer”); Tralins v. Ger-

“stel . 378 U.S. 576 (“Pleasure Was My Business”).

4 he 2100, Grove Press, Inc. v. Christenberry, 276 F.2d

433 (2 Cir. 1960), affg. 175 F.Supp. 488 (D.C.

MY. 1959) (“Lady Chatterley’s Lover”); Haldeman

+», United States, 340 F.2d 59 (10 Cir. 1965); Grant

-y, United States, 380 F.2d 748 (9 Cir. 1967); Luros

-y, United States, 389 F.2d 200 (8 Cir. 1968) (“Les-

oe an Sone’. “Two Women in Love”, “Pleasure

, “Lesbian Alley”, “The Three Way Apartment,”

“The Affairs of Gloria”).

4, 2. The record is barren of any evidence to estab-

‘fish that the book herein is utterly without redeeming

‘social importance. The only evidence in the record,

“uncontroverted, is that the book does have social im-

Dp . The conviction of petitioner, therefore, for a

‘Violation of the state obscenity statutes rests upon a

“tecord devoid of evidence to support petitioner’s al-

‘eged guilt and constitutes, ‘it is submitted, a plain

denial of due process.

- Where the “transcendent value of speech” is involved,

due process requires “that the State bear the burden of

. to show that the [accused] engaged in crim-

“inal speech”. Speiser v. Randall, 357 U.S. 513, 526.

‘Memoirs v. Massachusetts, 383 U.S. 415, this Court

phasized the importance of the “three federal consti-

criteria” for judging the alleged obscenity of

ma (383 U.S. at 419). With respect to the Roth

definition, the Court also stressed the following: “Un-

sr this definition, as elaborated in subsequent cases,

’ elements must coalesce: it must be established

~~} k—

that (a) the dominant theme of the material taken 4s

a whole appeals to a prurient interest in sex; (b) the

material is patently offensive because it affronts con.

temporary community standards relating to the descrip.

tion or representation of sexual matters; and (c) the

material is utterly without redeeming social value.”

(383 U.S. at 418) (Emphasis added ).

It follows from the aforesaid principles that an es-

sential element of the offense of obscenity demanded

by the Constitution is evidence that material involved is

utterly without redeeming social importance. It follows

also that the prosecution in all such cases is constitu-

tionally required to plead and prove all the essential

elements of the offense. It is contrary to law and the

Constitution to judicially improvise a presumption that

material which appeals to prurient interest and ex-

ceeds customary limits of candor is necessarily utterly

without redeeming social importance. Such an irrational

presumption violates due process and undermines the

presumption of innocence. In United States v. Vuitch,

402 U.S. 62, this Court held that under a law which

prohibited abortion unless “necessary for the preserva-

tion of the mother’s life or health”, the burden was on

the prosecution to plead and prove that abortion was

not necessary for such purposes.

Moreover, it is inadmissible, it is submitted, to per-

mit the prosecution to rely solely upon the material

itself with respect to the issue of socially redeeming im-

portance. It cannot be assumed that triers of the facts

are necessarily familiar with what has literary, , artis-

tic, historical, psychological, educational, entertaining,

or other social value and importance. To sanction con-

victions without evidence in support of every essential

element of the offense in an obscenity prosecution is to

ge ee er ae

ve Vit

the trier of facts to condemn as obscene ma-

al deemed subjectively to be without value to the par-

ar juror or judge.

The effect of the ruling of the Appellate Department

is to permit a judgment of conviction in an obscenity

prosecution without the slightest proof, directly or in-

directly, to establish an essential element of the offense,

to wit, the utter lack of social value of the material.

Conviction of a crime without any evidence in the

‘fecord to support the accused’s guilt not only con-

stitutes a denial of due process, but an abridgment of

the exercise of freedoms of speech and press protected

by the First and Fourteenth Amendments. Garner v.

Louisiana, 368 U.S. 157, 173-174; Thompson v. City

— 362 U.S. 199, 204-206.

3. The state court has upheld the void conviction

‘of petitioner here by devising a concept of “pandering”

which has no basis in fact or in law in the case herein,

and which results in the deprivation of petitioner’s con-

stitutional rights.

Se _ In the first place, it should be emphasized again that

“mo charge of “pandering” was ever made in the com-

- plaint; the case was never tried upon such a theory; the

jury was never instructed upon such an issue; and the

prosecution itself conceded before the Appellate De-

pe t that the doctrine of pandering could not

"be appropriately invoked to affirm the conviction here-

in. This Court has emphasized again and again that

“conviction upon a charge not made is the sheerest de-

of due process of law. DeJonge v. Oregon, 299

S. 353, 362. This Court has also held that conviction

a charge on which an accused was never tried is as

uch a violation of due process as it is to convict him

nila

upon a charge that was never made. Cole v. Arkansas,

333 U.S. 196, 201. At this very term of Court a judg-

ment of conviction was reversed where a statute, as -

construed and applied, failed to give the accused fair

notice that certain conduct was proscribed. Rabe y,

Washington, 92 §.Ct. 993,

Moreover, without conceding the validity of the state

statutes which became effective long after the commis-

sion of the alleged offense by the petitioner, it is plain

that the attempt to apply such statute to petitioner in

order to support the conviction here runs counter to

fundamental principles embodied in the Constitution.

It has long been held that a statute, on its face and as

construed and applied, comes within the constitutional

prohibition of ex post facto laws when, by its necessary

operation and “ ‘in its relation to the offense, or its con-

sequences, alters the situation of the accused, to his dis-

advantage’ ”. Thompson v. Utah, 170 U.S. 343. Indeed,

“an unforeseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely like an

ex post facto law, such as Art. I §10, of the Con-

stitution forbids”. Bouie v. City of Columbia, 378 US.

347, 353. What the court below has held is that peti-

tioner could be convicted on the basis of alleged con-

duct which concededly was not proscribed at the time

of the commission of the alleged offense, and which

the highest court of the State had held could not be

used to support a conviction under the general obscenity

statute. At the time of the commission of the alleged

offense, the petitioner here had “no reason even to sus-

pect that conduct clearly outside the scope of the statute

as written will be retroactively brought within’ it by an

act of judicial construction”. Bouie v. City of Columbia,

378 US. at 352.

a ae

ally, wholly apart from the fact that no charge

sanderinge” was ever made or tried before the

and the retrospective action of the court below

les fundamental principles of due process and

intees against ex post facto laws, there was no

proof of “pandering” in the case herein. Petitioner’s

“statement to the police officer at the time of purchase,

“that he had “sexy” books, and the advertisements in

‘the back of the book, taken separately or together,

“could hardly be deemed Sufficient to support a finding

of “pandering” as this Court has interpreted the con-

See, Redrup v. New York, 386 U.S. 767; Aday v.

United States, 388 U.S. 447, reversing sub nom. United

‘States y. West Coast News Co., 357 F.2d 855 (6 Cir.

] ); Books, Inc. v. United States, 388 U.S. 449,

| 358 F.2d 935 (1 Cir. 1966); Childs v.

On 401 U.S. 1006; Bloss v. Dykema, 398 US.

278; Walker v. Ohio, 398 U.S. 524; Central Magazine

. Ltd. v. United States, 389 U.S. 50; Potomac

Co. v. United States, 389 U.S. 47. See also,

United States v. Baranov, 418 F.2d 1051 (9 Cir. 1969);

oes and Germain vy. United States, 440 F.2d 1241

Cir. 1971); Luros v. United States, 389 F.2d 200

“(8 Cir. 1968).

4. The court below declined to follow the ruling of

“the Court i in Jacobellis v. Ohio, 378 U.S. 184. The Ap-

“Pellate Department held, in effect, that there is greater

“dat tude for state action under the word “liberty” under

“the Fourteenth Amendment than is allowed to Con-

fess by the language of the First Amendment. The

‘adoption of the community standards of a State, as

pposed to the standards of the Nation as a whole, can

nly result in deterring expression and undermining the

uarantees contained in the First Amendment, subsumed

—22— ,

into the due process clause of the Fourteenth Amend —

ment as a limitation upon state action. The constitu. —

tional limits of free expression in the Nation should not,

it is submitted, vary with state lines, a principle which —

is of transcendent importance to the security of the

Nation in this contemporary era.

5. The book herein involved was sold to an adult —

who tequested the book and purchased it ostensibly —

for his personal use. It was stipulated by the prosecu- :

tion that petitioner neither sold the material in his

bookstore to minors nor did he thrust it upon the gen-

eral public. The prosecution also conceded that no

pandering was involved in the case and, indeed, there

was no evidence with respect thereto. Thus, the State

herein showed no special circumstance that would

justify the prosecution of petitioner in the face of the

decision by this Court in Stanley v. Georgia, 394 US.

557, and petitioner's conduct was therefore protected,

it is submitted, by the provisions of the First and

Fourteenth Amendments. See, United States v. Dellapia,

433 F.2d 1252 (2 Cir. 1970).

Conclusion.

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Appel-

late Department of the Superior Court of the State of

California for the County of Los Angeles.

ORS

Respectfully submitted,

STANLEY FLEISHMAN,

Attorney for Petitioner.

SaM ROSENWEIN, te

.. Of Counsel.

APPENDIX A.

and Judgment of the Appellate Department of

Court of the State of California for

pellate Department of the Superior Court of the

of California for the County of Los Angeles.

ple of the State of California, Plaintiff and Re-

adent, vs. Murray Kaplan, Defendant and Appel-

nt, Superior Court No. CR A 10391 Municipal Court

f the Los Angeles Judicial District No. 337520.

ORANDUM OPINION AND JUDGMENT

by defendant from judgment of the Munic-

pal Court, David J. Aisenson, Judge.

ment affirmed.

Appellant—Stanley Fleishman, Inc., by David

‘For Respondent—Roger Arnebergh, City Attorney

'M ne Flier, Deputy City Attorney.

nt states twenty-one grounds for eo

of which are overlapping and some (e.g., V,

‘II, XX, and XXI) so vague and general as to

$s in pointing out specific grounds for reversal.

ink Sn‘dons dows i Gees whith we may ven

se as follows: (1) The book “Suite 69” is not

scene; (2) The prosecution failed to present any

ce that the book is utterly without redeeming so-

Sony whereas, defendant presented expert

stim ony that it did have some social importance; (3)

a iano anmetiin “community

/ Ree iia Gare unas tk coven As to com-

standard, appellant contends the only proper

er een

community is the nation. For this he relies upon Jaco.

bellis v. Ohio [1964] 378 U.S. 184 [12 L.Bd2

793; 84 S.Ct. 1676]. The case does not so hold. Only

two judges, Brennan and Goldberg, joined in the

Opinion requiring a national standard. Two others,

Chief Justice Warren and Justice Clark, expressly

repudiate the idea of a national standard and Justice

Harlan’s position that a state has greater latitude in de-

termining what may be banned on the score of obscen-

ity than is so with the Federal government seems mean.

ingless if the standard to be applied is a national one.

The other four justices expressed no opinion one way

or the other on the question of a national standard:

While the Supreme Court of California in In re Gian.

_nini [1968] 69 Cal.2d 563 [72 Cal.Rptr. 655, 466

P.2d 535], may have left the question open as to

books and motion pictures, its holding that the stand-

ard is the state has been applied to movies’ by the

Court of Appeal in Monica Theater v. Municipal

Court’ [1970] 9 Cal.App. 3d 1 [88 Cal.Rptr. 71] and

by this court in People v. Cimber [1969] Cr. A.8531.

As we feel that the arguments against a nationwide

standard outweigh those in favor, we adhere to our

prior ruling. We feel the state-wide standard applies to

all forms of alleged obscenity.

"However, Justice White appears to take a position similar to

that of Justice Harlan in the last of his dissenting

opinion in: A Book v. Attorney General,

*Jacobellis v. Ohio involved a motion picture and the appel-

lant herein apparently concedes that the standard should be the

same whether a book or a motion picture is involved.

*See fn. 4, 9 Cal.App. 3d p. 6, and dissenting, opinion of

Justice Aiso, p. 21. ‘

‘Hearing by Court of Appeal den. Nov. 4, 1969 and again

on Nov. 26, 1969.

_ Defendant also attacks the standard applied on the

ground that the appeal must be to the prurient interest

of its proposed audience, to-wit, consenting adults.

This contention is answered against his position in

People v. Luros [1971] 4 Cal.3d 84 [92 Cal.Rptr.

833, 480 P. 2d 633].

Appellant's second point is that the People intro-

duced no evidence to meet his expert’s opinion that

the book had social importance. The People counter

this by claiming that the jury was not required to

accept this opinion but could reject the expert's

testimony and hence defendant had not met his bur-

den under People v. Newton ([{1970] 9 Cal.App.3d

Supp. 24 [88 Cal.Rptr. 343]). The People misconceive

our holding in Newton.

All we held in that case was that once the People

had presented proof of appeal to prurient interest and

overstepping the customary limits of candor, the bur-

den of going forward with some evidence on the issue

of redeeming social value was on the defendant. The

teason for this rule is that where prurient interest is

predominant and the customary limits of candor are

exceeded, it is difficult to conceive wherein social value

might lie. Rather then require the People to start in this

yoid, the defendant must make the start by producing

eileen

ple know in what area they must proceed. But, as in

all cases where only the burden of going forward is

placed upon a party once he has done so by producing

some evidence, there can be no weighing process until

the party having the burden of persuasion has produced

something on his own behalf to be weighed. It is then

not enough for the party having the burden of per-

suasion to simply destroy his adversary’s evidence for

that would only again balance the scales, whereas, the

person having the burden of persuasion must tip them.

(People v. Holden [1972] Cr. A.10754.)

However, while it is true the People introduced no

expert’ evidence on this point, that does not settle

the issue. While reversing the state court’s holding that

“John Cleland’s Memoirs of a Woman of Pleasure” was

obscene, the Supreme Court of the United States said:

“It does not necessarily follow from this reversal

that a determination that Memoirs is obscene in

the constitutional sense would be improper under

all circumstances. On the premise, which we

have no occasion to assess, that Memoirs has the

requisite prurient appeal and is patently offen-

sive, but has only a minimum of social value, the

circumstances of production, sale, and publicity

are relevant in determining whether or not the

publication of distribution of the book is con

stitutionally protected. Evidence that the book was

commercially exploited for the sake of prurient

appeal, to the exclusion of all other values, might

justify the conclusion that the book was utterly

without redeeming social importance. It js not

that in such a setting the social value fest is te

laxed so as to dispense with the requirement that

a book be utterly devoid of social value, but

father that, as we elaborate in Ginzburg v. United

States, 383 US. 463, 470-473, 16 L.Ed.2d 31,

37-40, 86 S.Ct. 942, where the purveyor’s sole

_» emphasis is on the sexually provocative aspects

_ of his publications, a court could accept his evalua-

_ tion at its face value.”

' A Book v. Attorney General [1966] 383 USS.

413, 420 [16 L.Bd.2d 1, at p. 6, 86 S.Ct.

o 975].

: b this statement good ‘tee in California? Relying

‘upon People v. Noroff [1967] 67 Cal.2d 791 [63 Cal.

r. 575, 433 P.2d 479], and People v. Rosakos

[1968] 268 Cal. App.2d 497 [74 Cal.Rptr. 34], appel-

lant contends that it.is not. We do not feel these opin-

ons require such a holding. In both of these cases the

viewing court upon its own examination of the al-

‘Ieged obscene material held that as a matter of law

bial s contemporary community standards, the dom-

it theme of the material taken as a whole did not

appeal to prurient interest. Where the material is so

= to lack one of the elements of obscenity as set

r in Roth v. United States [1957] 354 U.S. 476

1 L.Ed.2d 1498, 77 S.Ct. 1304], each court held

at this element could not be supplied by pandering.

: . 2 seller’s statement certainly cannot make that

- whi ch is not obscene, obscene” (People v. Rosakos, p:

j 00). It is in this light that the court’s statement in

Noroff that “the State Legislature has created no such

‘Gime [pandering]” must be viewed [see fn. 3, 67 Cal.

Peas

4 supplying an element missing as a matter of

w is one thing. The problem of what type of evidence

ly be used to prove a required element in a doubt-

itll

ful case is another. Here, there is no contention that

the People. can prevail without carrying their burden

of persuasion on the issue of “no redeeming social

value.” The jury was adequately instructed on this re-

quirement (plaintiff's instructions 7, 7a and defend.

ant’s instructions 23 and 24). We feel that what A

Book is saying is only that evidence that the book was

commercially exploited for the sake of prurient appeal

to the exclusion of all other values may be deemed an

admission by the defendant that the book is devoid of

redeeming social value. Like any other admission by a

defendant, it may be received in evidence and may sup

port a finding to the same effect. It is to be remem-

bered that in In re Giannini (supra fn. 5) the Cali

fornia Supreme Court recognized that there was a dis

tinction between the type of evidence required to prove

the elements of “appeal to prurient interest” and “ex-

ceeding the customary limits of candor in the com-

munity” and that required on the issue of “redeeming

social value.”* Even if Noroff and Rosakos are deemed

authority for the proposition that pandering can never

be used on the question of appeal to prurient interest,

that fact does not preclude following A Book v. At

torney General on the issue of redeeming social value.

The California Legislature by adopting Penal Code

§ 311(a) (2), which reads as follows:

“In prosecutions under this chapter, where Cif-

cumstances of production, presentation, sale, dis-

semination, distribution, or publicity indicate that

matter is being commercially exploited by the de

fendant for the sake of its prurient appeal, such

evidence is probative with respect to the nature of

‘Expert testimony. was held necessary to establish the former

two elements but not the latter.

ascii

cscs ninean teeing soc Anooe

is utterly without redeeming social impor-

“simply made it clear that the rule announced by the

United States Supreme Court in A Book applies in

California. As there was, in our opinion, no holding

to the contrary in this state, the law is not ex post

facto as to sales made before its adoption.

“Tn light of the evidence ,of the circumstances sur-

rounding the sale (R.T. p. 53, line 27 to p. 55, line

20) and the advertising found following the end of

the “story” at p. 180 in the book itself, and remember-

Be a cightot the jury 10. disregard expert opinion if

the jurors find it to be unreasonable (Penal Code

§ 1127[b]), we feel the jury was amply justified in

this case in finding that the state had sustained its

burden of proving that the material was utterly lacking

in social importance. Making our own independent

examination of the record as required by Zeitlin v.

“Amebergh [1963] 59 Cal.2d 901 [31 Cal.Rptr. 800,

383 P.2d 152], we make the same finding.

” Relying on cases like People v. St. Martin [1970]

1 Cal.3d 524 [83 Cal.Rptr. 166, 463 P.2d 390],

‘appellant contends that as the jury was not instructed

me pandering that concept cannot be considered in

of their verdict. People v. St. Martin involved

a failure to instruct on a possible defense (involving

‘eduction of degree). No such omission is involved

‘Terein. As pointed out above, the jury was properly

‘structed as to the required element of obscenity that

e material be utterly without redeeming social value.

ey were also properly instructed on circumstantial

ence. Beyond this, we know of no requirement

—8—

that the trial court must sua sponte instruct on what

evidence may be considered to prove a particular issue.

We come now to the contention that the book “Suite

69” is not obscene. Part of appellant’s argument boils

down to a contention that no book can ever be con

sidered obscene. This cannot be true in California, for

if it were, cases life People v. Luros, supra, and People

v. Chapman [1971] 17 Cal.App.3d 865 [95 Cal.

Rptr. 242] would be meaningless. Hence, a line must

be drawn somewhere. Where a sufficient foundation

for. its introduction has been laid, comparable matter

held not obscene by the Supreme Court of the United

States or of this state may be helpful in drawing this

line; but, unless the comparable material equals or

exceeds the subject book on all three elements of ob

scenity, to-wit: appeal to prurient interest; excess over

accepted standards; and lack of evidence of redeeming

social importance, such comparable material does not

require a finding of non-obscenity as a matter of law.

Having examined the subject book in comparison with

defendant’s chief alleged comparable book “Adam and

Eve,” we feel there are sufficient distinctions so that

even if the latter is not obscene as a matter of law,

such fact does not requite such a finding as to the

subject book. |

The jury impliedly found the subject book went be

yond the permissible limits. Upon our independent re

view: we agree with the People’s experts. {Shite 69”

appeals to a prurient interest in sex and is beyond

the customary limits of candor within the State of Cali _

inssaliclan

‘We also find, as did the jury, that there is no

Dated Feb. 7, 1972.

Whyte

Presiding Judge

We concur:

KATZ

Judge

ZACK

Judge

CERTIFICATION FOR PUBLICATION

_ We certify that the foregoing opinion qualifies for

fblication in the official reports under California

Rules of Court, Rule 976(b) in that it establishes a

new rule of law and also involves issues of continuing

patie interest.

| - Dated Feb. 7, 1972.

Be Presiding Judge

bE KATZ

SRA,

Judge

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles.

People of the State of California, Plaintiff and Re

spondent, vs. Murray Kaplan, Defendant and Appel

lant. Superior Court No. CR. A 10391 Municipal

Court of the Los Angeles Judicial District No. 337520.

MEMORANDUM OPINION AND JUDGMENT

Appeal by defendant from-judgment of the Munici-

pal Court, David J. Aisenson, Judge.

Judgment affirmed.

For Appellant-—Stanley Fleishman, Inc., by David

M. Brown.

For Respondent—Roger Arnebergh, City Attorney

by Madeleine Flier, Deputy City Attorney.

Appellant states twenty-one grounds for appeal, many

of which are overlapping and some (¢.g., V, VI,

XVIII, XX, and XXI) so vague and general as to be

useless in pointing out specific grounds for reversal.

In his brief he gets down to three which we may

summarize as follows: (1) The book “Suite 69” is not

obscene; (2) The prosecution failed to present any

evidence that the book is utterly without redeeming

social importance, whereas, defendant presented expert

testimony that it did have some social importange; (3)

That the trial court applied the wrong “community

standard.”

We will discuss these issues in reverse. As to com-

_ standard, appellant contends the only proper

unity is the nation. For this he relies upon Jaco-

is v. Ohio [1964] 378-U.S. 184 [12 L.Ed.2d 793;

4 $.Ct. 1676]. The case does not so hold. Only two

Brennan and Goldberg, joined in the opinion

requiring a national standard. Two others, Chief Jus-

‘tice Warren and Justice Clark, expressly repudiate the

idea of a national standard and Justice Harlan’s position

that a state has greater latitude in determining what

may be banned on the score of obscenity than is so

with the Federal government seems meaningless if the

standard to be applied is a national one. The other

four justices expressed no opinion one way or the other

‘on the question ofa national standard.’ While the

Supreme Court of California in In re Giannini [1968]

69 Cal.2d 563 [72 Cal.Rptr. 655, 466 P.2d 535],

may have left the question open as to books and mo-

tion pictures, its holding that the standard is the state

has been applied to movies* by the Court of Appeal

‘in Monica Theater v. Municipal Court* [1970] 9 Cal.

‘App.3d 1 [88 Cal.Rptr. 71] and by this court in

People v. Cimber [1969] Cr.A. 8531.‘ As we feel

that the arguments against a nationwide standard out-

‘Weigh those in favor, we adhere to our prior ruling.

We feel the state-wide standard applies to all forms of

alleged obscenity.

in apparently

hethe Ce

se Ain 2 9 Cal.App.3d p. 6, and dissenting opinion of

p. 2

ing by Court of Appeal de. Nov. 4, 1969 and again

oe ae

. Defendant’s second attack on the. standard applied,

to-wit, that the appeal must be to the prurient interes

of its proposed audience, to-wit, consenting adults, is

answered against his position in People v. Luros

[1971] (4 Cal.3d 84; 92 Cal. Rptr. 833) 480 P24

633.

Appellant's second point is that the People intro

duced no evidence to meet his expert’s opinion that

the book had social importance. While it is true the

People introduced no expert evidence on this point,

that does not settle the issue. While reversing the state

court’s holding that “John Cleland’s Memoirs of a

Woman of Pleasure” was obscene, the Supreme Court

of the United States said:

“It does not necessarily follow from this reversal

that a determination that Memoirs is obscene in

the constitutional sense would be improper under

all circumstances. On the premise, which we have

no occasion to assess, that Memoirs has the req

uisite prurient appeal and is patently offensive,

but has only a minimum of social value, the cit-

cumstances of production, sale, and publicity are

-felevant in determining whether or not the publi-

cation or distribution of the book is constitutional-

ly protected. Evidence that the book was com

mercially exploited for the sake of prurient appeal,

‘to the exclusion of all other values, might justi-

fy the conclusion that the book was utterly with

out redeeming social importance. It is not’ that

in such a setting the social value test is rtlaxed

~ so as to dispense with the requirement that a book

_ be utterly devoid of social value, but rather that,

mii.

ys we elaborate in Ginzburg v. United States,

3 US. 463, 470-473, 16 L.Ed.2d 31, 37-40,

) S.Ct. 942, where the purveyor’s sole emphasis

on the sexually provocative aspects of his pub-

Tications, a court could accept his evaluation at

its face value.”

A Book v. Attorney General [1966] 383

US. 413, 420 [16 L.Ed.2d 1, at p. 6, 86

S.Ct. 975]. ie

The California State Ligiitinits has now adopted a

ny position in Penal Code §311(a)(2) which

reads ds as follows:

“In prosecutions under this chapter, where cir-

. ‘cumstances of production, presentation, sale, dis-

ie “semination, distribution, or publicity indicate that

matter is being commercially exploited by the de-

e neva 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 impor-

a tance.”

Leper bas sho abosed the requirenent of

t testimony (Penal Code §312.1). In light of the

evider of the circumstances surrounding the sale

: Reporter's Transcript p. 53, line 27 to p. 55, line 20)

TT clscthsing Seiad Sotiacing thc cud of to

4 "to at p. 180 in the book itself, and remembering

e: ht of the jury to disregard expert opinion if the

f0 rors find it to be unreasonable (Penal Code 1127

we feel the jury was amply justified in this case

nding that the state had sustained its burden of

ing that the material was utterly lacking in social

—14— .

importance. Making our own independent examinatiq

of the record as required by Zeitlin v. Arnebergh

[1963] 59 Cal.2d 901 [31 Cal.Rptr. 800, 383 Pi

152, we make the same finding.

We come now to the contention that the book “Suit

69” is not obscene. Part of appellant’s argument boik

down to a contention that no book can ever be cop

sidered obscene. This cannot be true in California, for

if it were, cases like People v. Luros, supra, and People

v. Chapman [1971] 17 Cal.App.3d 865 [....Cal- Rpt,

---] would be meaningless. Hence, a line must bk

drawn somewhere where a sufficient foundation for its

introduction has been laid, comparable matter held not

obscene by the Supreme Court of the United States or

of this state may be helpful in drawing this line; but,

unless the comparable material equals or exceeds the

subject book on all three-elements of obscenity, to wit

appeal to prurient interest; excess over accepted stand-

ards; and lack of evidence of redeeming social impor

tance, such comparable material does require a finding

of non-obscenity as a matter of law. Having examined

the subject book in comparison with defendant's chiet

alleged comparable book “Adam and Eve,” we feel

there are sufficient distinctions so that even if the latter

is not obscene as a matter of law, such fact does not

require such a finding as to the subject book.

The jury impliedly found the subject book went be-

yond the permissible limits. Upon our independent re-

view we agree with the People’s experts. “Suite 69”

appeals to a prurient interest in sex and is beyond

—1|5—

limits of candor within the State of Cali-

> find; as did-the jury, that there is no

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles.

People of the State of California, Plaintiff and Re.

spondent, vs. Murray Kaplan, Defendant and Appel.

lant. Superior Court No. CR. A. 10391 Municipal

Court of the Los Angeles Judicial District No. 337520,

ORDER CORRECTING JUDGMENT OF

COURT

It appearing that by clerical error the judgment of

this court in the above-entitled case, rendered October

27, 1971, omitted the word “not” from line 3, page 5,

IT IS NOW ORDERED that said judgment of this

court be amended nunc pro tunc as of October 27,

1971, so that line 3, page 5 of said judgment shall

read:

“redeeming social importance, such comparable ma-

terial does not require a”

Dated Nov. 3, 1971.

BY THE COURT.

WHYTE

Presiding Judge

WONG

Judge

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles.

_ People of the State of California, Plaintiff and Re-

: vs. Murray Kaplan, Defendant and Appel-

lant. ‘Superior Court No. CR. A 10391 Municipal

Court of the Los Angeles Jugicial District No. 337520.

ORDER GRANTING PETITION

FOR REHEARING

- Appellant’ petition for rehearing having been fully

01 the same is hereby granted. The cause is

reset. on this court’s calendar for December 30, 1971

at 9:30 a.m. for the sole purpose of further considering

the question whether Penal Code §311(a)(2) and

312.1 may constitutionally be applied in a case where

the offense occurred before the effective date of said

a and the trial was held after said effective date.

~ Briefs limited to this sole issue may be filed by the

ig as follows:

' Appellant’s opening brief by November 26, 1971;

~ Respondent’s brief by December 7, 1971;

~ Appellant’s reply brief by December 14, 1971.

~ Dated: Nov. 10, 1971.

BY THE COURT.

WHYTE

Presiding Judge

WONG

Judge

ZACK

Judge

ne a

APPENDIX E.

Order of Appellate Department Certifying

Cause to Court of Appeal.

Appellate Department of the Superior Court of the

State of California for the County of Los Angeles.

People of the State of California, Plaintiff and Re

spondent, vs. Murray Kaplan, Defendant and Appel.

lant. Superior Court No. CR A 10391 Municipal

Court of the Los Angeles Judicial District No. 337520.

ORDER CERTIFYING CAUSE TO

COURT OF APPEAL

Pursuant to Rule 63(a) and (c), California Rules of

/ Court, upon this court’s own motion, we certify that

the transfer of the above-entitled cause to the Court

of Appeal appears necessary to settle important ques

tions of law. .

‘The questions so presented are:

(1) Is the proper community icles dusk

obscenity prosecution for sale of a book that of

the State of California or a national standard?

$71 he) Is it proper to place the burden of. going

forward with evidence as to the redeeming social

value of matter which meets the tests of appeal

to prurient interest and exceeding customary stand-

ards on the defendant?

(3) If the answer to the previous question is in

the affirmative, what is the burden of the Peo

ple in meeting defendant’s evidence of —

social value?

(4) In California may evidence of fs circum-

stances of production, presentation, sale, dissemine

tion, distribution or publicity. constitute sufficient

_ evidence of lack of redeeming social value either

under the case of A Book v. Attorney General

jist (Memoirs) [1966] 383 U.S. 413, 420 [16 L.Ed.

Wi, 6, 86 S.Ct. 975] or under Penal Code Sec.

#8 “dla iduead

(5) May Penal Code Sec. 311(a)(2) be applied

ieee ir thie tc eendthaaion cat ots

| mane mater where the sale or distribution oc

__ surred before the effective date of such provision?

Pd cer opinion, « copy t which ia attached hereto

ye question (1) that the community was the

State of California. Questions (2), (4) and (5) we

tmswered in the affirmative. As to question (3), we

Ii it whe ‘ct ‘sufficient foc the People to thertly Ger

tome the defendant's evidence but that they must then

produce affirmative evidence of lack of redeeming 0-

dal value.

Feb. 7, 1972.

BY THE agua Or

WHYTE

Presiding Judge

Judge

ZACK

Judge

APPENDIX F.

Order of Court of Appeal Denying Transfer.

In the Court of Appeal of the State of California,

Second Appellate District, Division Three.

People of the State of California, Plaintiff and Re.

spondent, v. Murray Kaplan, Defendant and Appellant.

2d Crim. No. 21346 Sup. Ct. No. CR A 10391. Munic-

ipal ‘Court of the Los Angeles Judicial District No.

337520.

ORDER

The record on transfer in the above entitled cause

having been filed in this court on February 8, 1972,

pursuant to certification made by the Appellate Depart

ment of the Superior Court of Los Angeles County,

and this court having considered the matter of whether

such cause should be transferred to this court for hear-

NOW, THEREFORE, IT IS HEREBY ORDERED

that such transfer be and it hereby is denied.

Filed: Feb. 17, 1972.

FORD, P. J.

SCHWEITZER, J.

ALLPORT, J.

caine

ae APPENDIX G.

_ In the Supreme Court of the State of California in

Bank. Criminal No. 16214. ~ |

_ Inre Kaplan on Habeas Corpus.

Filed: April 12, 1972. :

Fe » Petition for writ of habeas corpus DENIED.

Mosk, J., is of the opinion that the respondent

should be ordered to show cause why the relief prayed

for should not be granted.

[Seal]

ea/8. 8. BISHEL, Clerk of the Supreme Court of the

ings «tue copy ofan order of this Court, as shown

by the records of my office.

_ Witness my: hand and the seal of the Court this 12th

day of April A.D. 1972.

/s/ By R. C. Matteoli

Deputy Clerk

/s/ Wright

- Chief Justice

ens 9 aoe

APPENDIX H.

Constitutional and Statutory Provisions Involved,

1. The pertinent provisions of the First Amen¢.

ment to the United States Constitution are:

“Congress shall make no law . . . abridging

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

2. The pertinent provisions of the Fourteenth

Amendment to the United States Constitution are:

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

liberty, or property, without due process of law,

3. The pertinent provisions of Article I, Section

10, of the United States Constitution are:

“No State shall . . . pass any . . . ex post facto

laws, ...”

4. California Penal Code §311, at the time of th

commission of the alleged offense, provided as follows:

5 Otc’ mca

(a) ‘Obscene’ lat to the average person,

applying contemporary standards, the predominant

appeal of the matter, taken as a whole, is to pr-

rient interest, i.c., a shameful or morbid interes!

in nudity, sex, or excretion, which goes substan

tially beyond customary limits of candor in de

scription or representation of such matters and is

matter which is utterly without redeeming soci

importance.

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

paper, or other printed or written material or any

picture, drawing, photograph, motion: picture, ©

other pictorial representation or any statue o

other figure, or any recording, transcription 0

mechanical, chemical or electrical reproduction

wie S: ,

any other articles, equipment, machines or ma-

terials.

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

firm, association, corporation, or other legal en-

tity.

(d) ‘Distribute’ means to transfer possession of,

whether with or without consideration.

(e) ‘Knowingly’ means having knowledge that the

matter is obscene. (Added Stats. 1961, c.2147,

p. 4427, §5).” ‘

5. The pertinent provisions of California Penal

Code §311.2, at the time of the commission of the al-

leged offense, provided as follows:

“(a) Every person who knowingly: sends or

causes to be sent, or brings or causes to be brought

into this state for sale or distribution, or in this

state prepares, publishes, prints, exhibits, distrib-

utes, or offers to distribute, or has in his possession

with intent to distribute or to exhibit or offer to

distribute, any obscene matter is guilty of a mis-

demeanor. * * *”

6. California Penal Code §311(a)(2), which be

came effective after the commission of the alleged of-

fense, provides as follows:

“In prosecutions under this chapter, where cir-

_ cumstances of production, presentation, sale, dis-

_ semination, distribution, or publicity indicate that

matter is being commercially exploited by the de-

- fendant for the sake of its prurient appeal, such

_ evidence is probative with respect to the nature

__ of the matter and can justify the conclusion that

the matter is utterly without redeeming social im-

portance.”