# Petition for Writ of Certiorari — Kaplan v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 413 U.S. 115

## Text

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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0178%3A03. Public record. Not legal advice.