People v. AdlerAnnotate this Case
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN CARL ADLER et al., Defendants and Appellants
(Opinion by DeCristoforo, J., with Reckers, P. J., concurring. Separate dissenting opinion by Goldberg, J.) [25 Cal. App. 3d Supp. 25]
Stanley Fleishman, David M. Brown and John Weston for Defendants and Appellants.
John M. Price, District Attorney, and John W. Parker, Deputy District Attorney, for Plaintiff and Respondent.
Benjamin Carl Adler appeals from his misdemeanor convictions under Penal Code section 311.2 for the sale of two obscene [25 Cal. App. 3d Supp. 27] films, the possession of two other obscene motion picture films and the sale of an obscene book. Defendant William J. Rose appeals from his misdemeanor conviction of the same Penal Code section for sale of the same book. Another misdemeanor charge against defendant Rose for sale of obscene films (different from the Adler films) was dismissed upon motion of the People after the jury's inability to reach a general verdict although having rendered a special verdict that one of the films was not obscene; the court ordered the entry of a verdict of not guilty as to the defendant Benjamin Carl Adler on another charge of sale of obscene film after the jury was unable to arrive at a general verdict but did render a special verdict that the particular film in question (different from the first two Adler films) was not obscene. The defendants appeal from the judgments of conviction.
At the trial, it was shown that appellant Adler on October 14, 1967, sold two films to a district attorney's investigator; four days later, two other films were seized from the trunk of Alder's car, pursuant to a search warrant. On May 8, 1968, the book "Love Together" was purchased by a sheriff's detective from a sales clerk in the Fulton Book Store, owned by defendant Rose. On June 6, 1968, the same book "Love Together" was purchased by the chief deputy district attorney of Sacramento County, from a sales clerk in the K Street Book Store owned by appellant Adler. The prosecution further presented expert testimony that the films and book are obscene by statewide standards and the films and book were received into evidence, over objection. Appellants presented expert testimony that the items were not obscene, either by state or national attitudes. Each side fortified its contention by rebuttal and sur-rebuttal testimony.
Appellants contend: (1) The book "Love Together" is not obscene; (2) misinstruction to the jury on the element of social importance; (3) misinstruction to the jury of a statewide rather than nationwide community; (4) insufficiency of the proof and misinstruction on the element of scienter; (5) unlawful seizure of films because the warrant was general and overbroad, and the seizure was without a prior adversary hearing.
In order to consider the defendants' contentions, it is necessary to bring into its most current focus the general rules relative to obscenity as articulated by the United States Supreme Court. In Roth v. United States, (1957) 354 U.S. 476 [1 L. Ed. 2d 1498, 77 S. Ct. 1304], and its companion case of Alberts v. California convictions under federal obscenity statutes punishing the mailing of obscene, lewd, lascivious or filthy material, and convictions under the California statute proscribing the keeping for sale or advertising of material that is obscene or indecent were affirmed. Against the contention that such matters were protected as free speech [25 Cal. App. 3d Supp. 28] under the First Amendment to the United States Constitution, the court squarely determined that obscenity is not within the area of constitutionally protected speech or press.
Whether spawned or encouraged by the dissenting views expressed in Roth, subsequent judicial expression did lend growing support to the view that, at least because of its difficulty of definition and/or because of the lack of agreement as to what in fact is obscene, obscenity was not longer a valid subject for statutory prohibition. It would now appear that the high-water mark of the view that obscenity is "constitutionally protected" was Stanley v. Georgia (1969) 394 U.S. 557 [22 L. Ed. 2d 542, 89 S. Ct. 1243], which held that the mere private possession of obscene matter cannot constitutionally be made a crime. The "right to receive" obscene materials spoken of in Stanley was thereafter interpreted in the lower federal courts as providing constitutional protection to obscenity for its very content. (See for example Karalexis v. Byrne (W.D. Pa. 1969) 306 F. Supp. 1363, later overruled in Byrne v. Karalexis (1971) 401 U.S. 216 [27 L. Ed. 2d 792, 91 S. Ct. 777].)
These contentions were on May 3, 1971, squarely rejected by the United States Supreme Court in United States v. Reidel, 402 U.S. 351 [28 L. Ed. 2d 813, 91 S. Ct. 1410] and United States v. Thirty-Seven Photographs, 402 U.S. 363 [28 L. Ed. 2d 822, 91 S. Ct. 1400] both of which reassert that obscenity is not within the area of constitutionally protected speech or press and that Roth has not been overruled and does remain the law. The opinion of the court in Reidel, by Mr. Justice White points out that: "[respondent] Reidel ... stands squarely on a claimed First Amendment right to do business in obscenity and use the mails in the process. But Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today. Stanley did not overrule Roth and we decline to do so now." (402 U.S. 351 at p. 356 [28 L. Ed. 2d 813 at p. 818, 91 S. Ct. 1410 at p. 1413].) And the concurring opinion of Mr. Justice Harlan in Reidel is equally positive (402 U.S. at p. 358 [28 L.Ed.2d at p. 819, 91 S.Ct. at p. 1414]): "Either Roth means that government may proscribe obscenity as such rather than merely regulate it with reference to other state interests, or Roth means nothing at all. And Stanley, far from overruling Roth, did not even purport to limit that case to its facts: 'We hold that the First and fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding ....' 394 U.S. at 568." The "right to receive" discussed in Stanley is thus clarified to refer simply to the privacy of a man's thoughts rather than modes of commercial or other distribution. The area of obscenity then remains properly one for legislation reflecting the philosophies and the desires of the populace as reflected [25 Cal. App. 3d Supp. 29] by their elected representatives. Those differing philosophies, that obscenity should be prohibited, or that obscenity should merely be regulated to insulate the young (see for example the majority and dissenting opinions in People v. Luros, 4 Cal. 3d 84 [92 Cal. Rptr. 833, 480 P.2d 633], decided on Feb. 18, 1971, before United States v. Reidel, supra) are recognized as being reserved for the legislative expression of the states: "This may prove to be the desirable and eventual legislative course. But if it is, the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances. Roth and like cases pose no obstacle to such developments." (United States v. Reidel, supra, 402 U.S. at p. 357 [28 L.Ed.2d at p. 818, 91 S.Ct. at p. 1413].)
Penal Code section 311.2, as it read at the time of these offenses provided: "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, distributes, 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 misdemeanor." Against this statutory language we turn to a consideration of appellants' contentions.
They first urge that "The book 'Love Together' is not obscene and that Penal Code 311.2 as construed and applied to authorize the judgment of conviction rendered against the defendants herein based upon the sale of the said book violates the free speech and press, due process and equal protection provisions of the First and Fourteenth Amendments to the United States Constitution, violates the parallel provisions of the State Constitution and the rulings of the United States Supreme Court and other Federal and State Courts holding comparable books to be entitled to constitutional protection." In support of this contention, appellants urge that explicit description of sexual activity in a book is not synonymous with obscenity and that questions of taste are ultimately a matter for the public to decide for itself. Appellants then cite a number of cases holding other books, which they allege to be completely comparable to "Love Together," not obscene. Respondent counters with case citations as to still other publications which have been held obscene as that term is defined in Roth, supra, as well as its testimonial evidence of the obscenity of "Love Together."  Having reviewed the book, as this court must under Zeitlin v. Arnebergh (1963) 59 Cal. 2d 901 [31 Cal. Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707] and applying the three-pronged Roth test which was enacted into the definition of "Obscene," fn. 1 this court has no difficulty in stating that [25 Cal. App. 3d Supp. 30] the dominant theme of the book taken as a whole appeals to a prurient interest in nudity and sex. It is a vile and pointless recitation of continuously repeated heterosexual, homosexual and lesbian copulation and coupling -- oral, genital and anal -- all of orgiastic proportion, frequently involving more than two subjects, and early degenerating to sadism, torture and masochism. It is patently offensive and does affront contemporary community standards relating to the description or representation of such matters, and is material which is utterly without redeeming social value.
 Appellant's second contention is that "Penal Code Section 311.2 as construed and applied to authorize the judgments of conviction herein upon an uncontroverted record showing that the films involved herein are not utterly without redeeming social importance and upon the giving of instructions and the refusal to instruct as requested by appellants with respect to the element of social importance, violates the free speech, due process and equal protection provisions of the First and Fourteenth Amendments to the United States Constitution and the parallel State constitutional guarantees." The first part of this contention is that the prosecution failed to adduce any evidence that the films are utterly without redeeming social importance, whereas appellants did produce several witnesses who affirmatively testified that the films did have redeeming social importance, so that, appellants urge, the record is then uncontroverted that the films did have redeeming social importance and therefore cannot provide the basis for an obscenity prosecution. Respondents' answer is to point to their expert testimony that the films had no artistic merit, had no story, no relationship that changed, no dialogue, or communication, nor did they have psychological value. In this court's view the net effect of such testimony is that the material is utterly without redeeming social importance, and the failure to use those specific words does not diminish the evidentiary import of the words actually used as supportive of that conclusion. Additionally, appellant's argument overlooks the films themselves which were viewed by the jury and, by their verdict, were obviously without redeeming social importance to that jury. This court, having viewed the firms pursuant toZeitlin v. Arnebergh, supra, heartily concurs. The films are hard-core pornography and nothing more; they depict only sexual intercourse, oral copulation, masturbation and self-manipulation, for no purpose other than a depiction of the activity of the moment, whether it be individual, mutual by two persons of the same [25 Cal. App. 3d Supp. 31] or opposite sex, or group by more than two persons. The portrayals can appeal to nothing except a prurient interest in sex and nudity; they do substantially exceed customary or even reasonable limits of candor, and having no purpose other than explicit depiction of sexual activity, can have no conceivable redeeming social importance. It is thus unnecessary to reach a consideration of People v. Newton, 9 Cal. App. 3d Supp. 24 [88 Cal. Rptr. 343] which the People cite as holding that if prurient interest and limits of candor are established by the evidence, the burden of going forward with evidence that there is some redeeming social importance is placed upon the defense, and the appellants' violent disputation of Newton as having been wrongly decided in that the matter of redeeming social importance is an element of the offense itself which must be established positively by the People. The films themselves, being evidence in the case, in conjunction with the prosecution's testimony already adverted to, more than cover the People's burden of proof on the element of social importance.
Appellants further contend the jury was misdirected and misinstructed, by application of the concepts of the average person and contemporary standards to the element of social importance, appellants' urging that no such restrictions on that element ("utterly without redeeming social importance") were either contemplated by the Legislature in enacting the statute nor are such restrictions permissible under the federal Constitution, citing Roth, supra: "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guarantees ... [of the First Amendment]." (Italics added.)(354 U.S. at p. 484.) andZeitlin v. Arnebergh, supra: "By [implying] the terms 'utterly' the Legislature indicated its intention to give legal sanction to all material relating to sex except that which was totally devoid of social importance."(59 Cal.2d at p. 920.) Thus appellants contend that if the evidence shows that the matter has some social value, however, slight, the matter cannot constitutionally be found obscene even if the average man, applying contemporary standards, would conclude that the matter is utterly without redeeming social importance. The court refused to instruct the jury, as requested by appellants, that: "the question of whether the matter is utterly without redeeming social importance is not measured by what the average person believes to have social importance but whether in fact the matter is utterly without redeeming value." And: "All ideas, having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests." [25 Cal. App. 3d Supp. 32]
The relevant instructions as given to the jury in their entirety were as follows:
"As used in these instructions 'obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance. (Pen. Code, § 311, subd. (a).)
"That an average person, applying contemporary standards, would conclude that: ... (3) the material is utterly without redeeming social importance."
"The contemporary standard to which the law makes reference is set by what is, in fact, accepted and not by what some persons or groups of persons may believe the community as a whole ought to accept or refuse to accept.
"You are instructed that, for purposes of determining the obscenity of the material here in question, the relevant community is the entire State of California."
"The matter must be measured by its appeal to the average person. The average person is, of course, determined by a synthesis of the entire community, including persons of all sexes, religions, nationalities, creeds, ages, et cetera, but once the jury has determined the average person it must be remembered that the matter must be measured by such average person, and not by young persons or the susceptible.
"Putting this in still another manner: In determining who is an average person under the definition of obscenity which I have previously given to you, you are to consider society as a whole, young and old, educated and uneducated, the religious and the irreligous, men, women and children."
"The word 'redeeming' in the context herein refers not to a balancing of the alleged pruriency against the social importance of the material, but rather to the presence of matters of social importance in the content which will recover for the material its position as constitutionally protected utterance.
"To be of social importance the matter must be of value to society; thus a matter that is of no value to society is utterly without redeeming social importance." [25 Cal. App. 3d Supp. 33]
"Under the law, the word 'utterly' which appears in the definition has been defined in the law as follows: to an absolute or extreme degree; to the full extent; absolutely; altogether; entirely; fully; thoroughly; totally."
"In determining whether or not the matter has social importance you may consider among other things if it deals with the basic realities of life as the artist sees it; if it is a serious work of art; and if it honestly probes social values."
"A work designed to entertain or amuse is as much entitled to the protection of free speech as a scientific or educational work."
"A motion picture film or books have social importance if they have the capacity to broaden man's range of sympathies or consciousness, or to enable him to see, hear, or appreciate what he might otherwise have missed, or deepens his emotions, or makes life seem richer, more interesting or more comprehensible, or provides insights into man's relationship to the society in which he lives. A film or book may have social importance even if they appear worthless to the average person or to most people."
"Your own personal and social views on material such as that charged in the complaint may not be considered. Thus, whether you believe that the material is good or bad is of no concern; so, too, you may not consider whether in your opinion the material is moral or immoral; whether it is likely to be helpful or injurious to the public morals. Similarly, whether you like or dislike the material; whether it offends or shocks you, may not be considered by you. You may think the material is immoral, shocking or offensive, and yet you must acquit the defendant if it is not obscene as the Court has defined that term for you.
"You are instructed that Section 311.8 of the Penal Code provides that it shall be a defense, in any prosecution for violation of Section 311.2 of the Penal Code, that the act charged was committed in aid of legitimate, scientific, or educational purposes." (Pen. Code, § 311.8.)
Respondent contends that when considered in their entirety, the instructions mean that the personal standards of the jurors could not be used, that the standards of the community were to be used to determine if the material had the least value to any segment of society, and that the question was not whether the average man would conclude that the material had some value to him, but rather whether the average man would conclude that the material had some value to someone. Respondent further contends that the instruction actually given is more restrictive than required because the community standards concept need only be used to test the customary limits of candor portion of the three-pronged Roth test. (Mishkin v. New [25 Cal. App. 3d Supp. 34] York (1966) 383 U.S. 502 [16 L. Ed. 2d 56, 86 S. Ct. 958]; In re van Geldern (1971) 14 Cal. App. 3d 838 [92 Cal. Rptr. 592].) Finally, respondent concludes that the error, if any, was harmless beyond a reasonable doubt and therefore not reversible.
 There was no error of instruction. In their totality, the instructions given more than amply voiced the Roth and Zeitlin scope of protection to ideas having any redeeming social importance, so that the court did actually give, although not in the appellants' particularly chosen words, the direction that matters of any redeeming social importance, though unpopular or even personally distasteful, cannot be found obscene.
There then remains appellants objection to the "average person applying contemporary standards" as to redeeming social importance. Assuming arguendo that this concept applies to more than the "customary limits of candor" prong of Roth, the language read to the jury was that of the statute itself, and the court then fully amplified and explained that statutory language, and the constitutional limits thereon. (Cf. People v. Thomas (1945) 25 Cal. 2d 880, 895 [156 P.2d 7].) Implicit in the opinion inZeitlin v. Arnebergh, supra, involving this same statute, is the rejection of appellants' contention. There, while considering "average person" specifically relative to predominant appeal to prurient interest, the court observes: "Finally, we do not believe that the definition of 'obscene' material as that which 'to the average person ... predominant appeal ... is to prurient interest ...' (italics added) indicates that the ultimate determination of that question is always for the jury. These words fix a Standard which is to applied to the material; they do not designate the body which is to apply the standard. The statutory language does not inherently predicate a question for the jury; it merely frames a definition. As we hereinafter point out, the Legislature wrote the words 'average man' into the statute because a lesser standard would offend constitutional guarantees; the phrase does not serve to mark the respective spheres of the court and jury." (59 Cal.2d at p. 911.)
The court then discusses Roth and subsequent cases, recites how the Legislature, cognizant of the applicable constitutional guarantees, wrote a statute which in substance prohibited hard-core pornography as the only material "utterly" devoid of social importance and construes "redeeming" as not balancing pruriency against social importance. The court then puts itself to the task of applying those principles for the purpose of determining the question of fact mixed with determination of law ("constitutional fact"), the obscenity or not of "Tropic of Cancer."
 The instructions here given to the jury accurately reflect the [25 Cal. App. 3d Supp. 35] "standard which is to be applied to the material" (Zeitlin v. Arnebergh, supra), even though that same standard is ultimately applied by the court itself, and that is, not what any individual may want subjectively but whether the material could, objectively, have or be of some value to someone. There was no misdirection of the jury, and by its own independent review and evaluation of the films and book forming the basis of appellants' convictions, this court finds those materials to be utterly without redeeming social importance and unquestionably obscene. Had there been any error in instruction, it would have been harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L. Ed. 2d 705, 87 S. Ct. 824, A.L.R.3d 1065].)
 Appellant's third major contention is that "Penal Code Section 311.2 as construed and applied to authorize the judgments of conviction herein upon the basis of statewide rather than national community standards violates the free speech, due process, and equal protection provisions of the First and Fourteenth Amendments to the United States Constitution, and the parallel California state constitutional guarantees." This contention is based upon the court's instruction to the jury that for the purposes of determining contemporary community standards, the relevant community is the State of California.
Respondent is correct that In re Giannini (1968) 69 Cal. 2d 563 [72 Cal. Rptr. 655, 446 P.2d 535] is dispositive of this issue. There, in considering the contemporary standards test of judging obcenity under the statute herein question, the court expressly designated the State of California, although two members of that court disagreed and would even authorize the smaller, local, community rather than the entire state. The caveat as to Giannini reflected in Barrows v. Municipal Court (1970) 1 Cal. 3d 821 [83 Cal. Rptr. 819, 464 P.2d 483] is not pertinent because it deals with the vagrancy statute, Penal Code section 647. While Giannini was a prosecution for "topless" dancing, the court's discussion of the relevant "community" was in express consideration of the definition of "obscene" in Penal Code section 311, subdivision (a), the very statute here involved. Our Supreme Court expressly considered and evaluated the United States Supreme Court cases on obscenity, including Jacobellis v. Ohio (1964) 378 U.S. 184 [12 L. Ed. 2d 793, 84 S. Ct. 1676]. After first pointing out that the United States Supreme Court was evenly split on whether a "national community" is required in determining whether a work is obscene, and then observing that in the absence of guidance from that court the lower courts have divided so as to support at least three [25 Cal. App. 3d Supp. 36] standards: national, state, and "local" or citywide (69 Cal.2d at p. 578), Giannini then resolves the matter, for the reasons therein expressed, in favor of a statewide standard. The caveat (69 Cal.2d 579) that the case did not involve films or books simply recognized that such items would require reconciliation of the practical problems of producing evidence of a national standard with the possibility of some claimed deterence of expression. The reasons persuading the court to a statewide standard in Giannini have full application here. Further, the United States Supreme Court did in Roth cite with approval the trial court's instruction which clearly suggested only a local and not even statewide standard. fn. 2 Additionally, it can be suggested that there is no real "dilemma" in applying a statewide "community" standard to the "national" protection of the First Amendment. The test itself, "the average person applying contemporary community standards (Roth v. United States, supra) applies throughout the nation, but that nation is made up of varying communities which may well entertain varying views.
 Appellants fourth contention is that "Penal Code Section 311.2 as construed and applied to authorize the judgments of conviction for sale of the book 'Love Together' without proof that the appellants had knowledge of the contents or the alleged obscenity of the book and upon the giving of instructions and the refusal to instruct as requested by appellants with respect to the element of scienter, violates the free speech, due process, and equal protection provisions of the First and Fourteenth Amendments to [25 Cal. App. 3d Supp. 37] the United States Constitution and the parallel state constitutional guarantees." While the appellants did each testify that they had never read the particular book "Love Together" and they did not believe or have reason to believe that the book was obscene, and while scienter is an element of the offense and must be proven by the People, Smith v. California (1959) 361 U.S. 147 [4 L. Ed. 2d 205, 80 S. Ct. 251], as the United States Supreme Court did itself observe in Smith, "The circumstances may warrant the inference that he was aware of what a book contained, despite his denial." (361 U.S. at p. 154 [4 L.Ed.2d at p. 212].) The circumstances shown by the evidence in this case, that the appellants were owner-proprietors and not absentee owners, whose stores were clearly denominated and advertised as "adult" book stores, and who admitted that they dealt in adult books concerned primarly or exclusively with sex, is sufficient to sustain the conviction. The trial court correctly instructed that the knowledge which appellants must have could be established by circumstantial evidence. That it was so established to the jury is demonstrated by their verdict.
Appellants fifth and final contention is that "Penal Code Section 311.2 and Penal Code Section 1523-1542 as construed and applied to authorize the judgment of conviction herein based upon the seizure of films pursuant to a general and overbroad warrant and without a prior adversary hearing violates the free speech, search and seizure, due process, and equal protection provisions of the First, Fourth and Fourteenth Amendments to the United States Constitution and the parallel state constitutional guarantees."
 The two films constituting the basis of appellant Adler's conviction of the offense of possession for sale were seized pursuant to a search warrant which directed the seizure of "numerous films, both moving and still, portraying obscenity." It is this allegedly "overbroad" language in using merely the word "obscenity" which appellants attack. Respondent correctly points out that the procedures leading to the issuance of the warrant and surrounding its execution were more than adequate to avoid suppression of constitutionally protected publications. A municipal court judge viewed the two films which had been purchased from the appellant Adler, at which time he had taken them from the trunk of his car, which at that time was seen to contain other films similar in size and markings, at least one of which such other films had been described by the appellant at that time as depicting two women "eating each other." After the seizure, the appellant did have, and indeed did pursue, by way of suppression motion under 1538.5 of the Penal Code, the opportunity and remedy by which to litigate, in timely fashion, the issue of obscenity, thereby satisfying the [25 Cal. App. 3d Supp. 38] requirements of due process of law. (Aday v. Superior Court (1961) 55 Cal. 2d 789 [13 Cal. Rptr. 415, 362 P.2d 47]; Monica Theater v. Municipal Court (1970) 9 Cal. App. 3d 1 [88 Cal. Rptr. 71].) The prior adversary hearing advocated by appellant has been expressly rejected in Monica, supra.
The judgments therefore must be affirmed. No contrary result is compelled by either People v. Noroff (1967) 67 Cal. 2d 791 [63 Cal. Rptr. 575, 433 P.2d 479] or Redrup v. New York (1967) 386 U.S. 767 [18 L. Ed. 2d 515, 87 S. Ct. 1414].
All that was involved in Noroff, supra, was a nudist magazine which, while displaying the naked male or female including genitalia, did not depict sexual activity of any form. As to this, the United States Supreme Court: ".... has decided that the judiciary cannot engage in the task of placing legal fig leaves upon variegated presentations of the human figure. That court has told us that no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene." (67 Cal.2d at p. 797, italics added.) Noroff further concluded that the dominant theme of that magazine taken as a whole, did not appeal to a prurient interest in sex. The "pandering" discussion was rejected because it was advanced for the first time on appeal, whereas the original charge in the indictment had been the obscenity per se of the magazine. The sexual activity absent in Noroff is present in the instant appeals; indeed, the representations of the nude human forms herein are in nothing but a sexual context. The dominant theme of the materials herein, taken as a whole, appeal only to a prurient interest in sex, and have no redeeming social value.
Redrup v. New York, supra is simply of no value, in this or any other current obscenity proceeding. The very diversity of the rules recited therein prevents that opinion from standing for any clearly definable principle of obscenity law. To synthesize Redrup into the whole by engrafting the requisite of pandering onto the law of obscenity requires an almost labyrinthine process of implication and construction, since the Supreme Court has never said that in express terms. This (pandering) is too consequential a limitation upon the law of obscenity to be assumed without specific declaration. Certainly the fountainhead of the current law, Roth v. United States, supra, never contained that limitation, and none of the subsequent reaffirmations of Roth, through Stanley v. Georgia and Reidel and Thirty-Seven Photographs, supra, have announced the addition of the element of pandering to the conduct criminally actionable as obscenity. It can further be suggested that Reidel and Thirty-Seven Photographs have "returned" judicial thinking to the original path of Roth, [25 Cal. App. 3d Supp. 39] and whatever straying therefrom may have been engendered by Redrup, Stanley v. Georgia and Karalexis v. Byrne, supra, is now corrected. Whatever Redrup may have been intended to announce or exemplify, it should not authorize the construction of a new wall of limitation (pandering) upon obscenity law.
The judgments are affirmed.
RECKERS, P. J.
I concur in the opinion of Judge DeCristoforo and add the following: The three members of this court are in agreement that the material with which we are concerned is "hardcore pornography" if anything can be "hardcore pornography." But Judge Goldberg is disturbed to the point of dissent by the decision in Redrup v. New York, 386 U.S. 767 [18 L. Ed. 2d 515, 87 S. Ct. 1414] decided May 8, 1967. I am unable to read into Redrup a requirement that a statute proscribing the commercial distribution of pornographic material as the same is defined in Roth v. United States (1957) 354 U.S. 476 [1 L. Ed. 2d 1498, 77 S. Ct. 1304] cannot be valid unless it is directed toward the protection of juveniles or unwilling audiences or expressly prohibits "pandering" in the distribution of the material. It is true that Redrup recites the absence of such claims by the prosecution and also the absence of "pandering" as that term is used in Ginzburg v. United States (1966) 383 U.S. 463 [16 L. Ed. 2d 31, 86 S. Ct. 942] but it does not follow that the conviction of Redrup was reversed because of the absence of such elements.
Whether or not Redrup has been misconstrued or misapplied in later cases, the Supreme Court of California has taken the view that the Supreme Court of the United States has now drawn the line between constitutionally non-repressible pornography and constitutionally repressible pornography at a point which permits private use and assimilation of pornographic material, no matter what, and a point which forbids commercial distribution and dissemination of pornographic material which meets the Roth test. (People v. Luros (1971) 4 Cal. 3d 84 [92 Cal. Rptr. 833, 480 P.2d 633], referring to Stanley v. Georgia (1969) 394 U.S. 557 [22 L. Ed. 2d 542, 89 S. Ct. 1243].)
The last paragraph of the majority opinion in People v. Luros, supra at page 93 of 4 Cal.3d reads as follows: "Therefore we find that Stanley, as the United States Supreme Court expressly stated, does not impair Roth and the cases following it. States retain broad power to regulate obscenity and regulation of the public distribution of obscenity falls well within the broad scope of that power. Stanley does not require that an indictment charging public distribution of obscenity also charge that the obscene [25 Cal. App. 3d Supp. 40] matter was distributed to a child or unwilling audiences. We conclude that Stanley has no application to [this] case."
Mr. Justice Tobriner in his dissent in Luros mentioned the "special circumstances" referred to in Redrup so we may assume that the majority which decided Luros was conversant with all of the arguments which disturb our dissenting colleague in the present case.
Six weeks after the decision of Luros by the Supreme Court of California, the Supreme Court of the United States decided United States v. Reidel (May 3, 1971) 402 U.S. 351 [28 L. Ed. 2d 813, 91 S. Ct. 1410] and in that decision arrived at the conclusion that the restriction of sales to adults only and to willing purchasers did not require a holding that the material could not constitutionally be suppressed as hardcore pornography assuming it met the Roth test. This should lay the ghost of Redrup to rest, and attacks upon the California statute should be addressed to the Legislature rather than the courts.
At the time of the trial of the case on appeal, section 311 of the Penal Code defined various words used in chapter 7.5 which includes section 311.2. The defendants were charged either with "distributing obscene matter" or "possessing with intent to distribute" under the same section. It was established that the "distributions" involved or intended were sales.
Section 311, subdivision (a) defined "obscene matter" as set forth by Judge Goldberg in his dissent, but section 311, subdivision (d) defined the word "distribute" as follows: "(d) 'Distribute' means to transfer possession of, whether with or without consideration."
People v. Noroff, 67 Cal. 2d 791 [63 Cal. Rptr. 575, 433 P.2d 479], did not hold that "pandering" had to be established before material could be held to be repressible pornography. It merely held that in the case before the court the material could not qualify, under the decision in Roth, supra, as repressible pornography and that since there was no evidence of "pandering" which might permit a holding that the material was repressible, in spite of its innocuous character, it could not be repressed. Under the test set forth in Roth, it was therefore not repressible pornography. In the case before this court the material is repressible under the Roth test and it is completely irrelevant whether "pandering" is present or not present. The only thing necessary is "distribution" or "intent to distribute" and in this case since the distribution was "commercial" we need not concern ourselves about what we would be called upon to decide if the material here had not been sold by the defendants or held by them for sale. In other words, the statute with which we are dealing is valid as to [25 Cal. App. 3d Supp. 41] the defendants in this case under the circumstances with which we are here involved.
This principle of appellate review is set forth in a dissenting opinion by Mr. Justice Frankfurter in Staub v. Baxley (1958) 355 U.S. 313, 330-331 [2 L. Ed. 2d 302, 316, 78 S. Ct. 277] as follows: "Even though its action may result in the disadvantages and embarrassments of keeping open doubtful questions of constitutionality, this Court will consider only those very limited aspects of a statute that alone may affect the rights of a particular litigant before the Court. ... A statute may be found invalid in some of its parts but valid in others ... it may be valid at one time and not another ... it may be valid under one state of facts but not another ... it may be valid as to one class of persons and invalid as to others, ... It is because the exercise of the right to declare a law unconstitutional is 'the most important and delicate duty of this Court,' and because that right 'is not given to [the Court] ... as a body with revisory power over the action of Congress,' ... nor, it may be added, over the action of the forty-eight States, that this Court has from the beginning demanded of litigants that they show in precisely what way and to what extent incursions have been made into their federally protected rights and rules have been developed designed to narrow as closely as possible the issues presented by such claims."
I am therefore convinced that section 311.2 was valid as to the defendants in this case in that their conduct or intention with reference to the material in question was "distribution" of a commercial character. That is all that was required.
Justice Friedman recently wrote: "Judicial disagreements in obscenity cases should be characterized by extreme deference, because obscenity law is a constitutional jungle." Glancy v. County of Sacramento (Cal.App.) 94 Cal. Rptr. 864, 877. I appreciate his accuracy, admire his attitude, and adopt his statement. My dissent on the merits is, therefore, reluctant. fn. 1 [25 Cal. App. 3d Supp. 42]
The defendant Adler was convicted of three charges and the defendant Rose of one charge of violating Penal Code section 311.2. The complaints against Rose were filed on October 18, 1967, October 20, 1967, and June 7, 1968, Nos. 263660, 263687 and 3325M, respectively. The one against Rose was filed on June 10, 1968, No. 3372M. The trial began on December 26, 1968, and the verdicts were returned on January 29, 1969. (On another complaint against Adler, No. 3326M, the court directed a verdict of not guilty; and another complaint against Rose, 3373M, was dismissed by the prosecution.)
Two of Adler's convictions were based on the sale of obscene motion pictures. The third Adler conviction and the Rose conviction were based on the sale of an obscene book, "Love Together." This book and these films bring to mind Justice Stewart's reference to "hard-core pornography" in Jacobellis v. Ohio (1964) 378 U.S. 184, 179 [12 L. Ed. 2d 793, 803-804, 84 S.Ct. 1676]: "I shall not ... attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, ..."
The materials now before us are "hard-core pornography" if the term has any meaning. But the expression "hard-core pornography" is as elusive as "obscenity." (Jacobellis v. Ohio, supra, 378 U.S. at p. 201 [12 L.Ed.2d at pp. 805-806], Warren, C. J., dissenting.) For example, the New York Court of Appeals adopted it in People v. Richmond County News, Inc. (1961) 9 N.Y.2d 578 [216 N.Y.S.2d 369, 175 N.E.2d 681, 685], apparently applied it to sustain another conviction, and was reversed in Mishkin v. New York (1966) 383 U.S. 502 [16 L. Ed. 2d 56, 86 S. Ct. 958] (Kuh, Foolish Figleaves? (1967) 58, 78.) And in United States v. West Coast News Company (6th Cir. 1966) 357 F.2d 855, 858, the court reviewed a collection of trash similar to that confronting us and upheld the conviction saying: "We know hard-core pornography when we see it." In one of its three-line per curiam opinions that became commonplace in obscenity cases, the Supreme Court said simply, "reversed. (Redrup v. New York, 386 U.S. 767 (1967)," (1967) 388 U.S. 447 [18 L. Ed. 2d 1309, 87 S. Ct. 2095].) It may be that "hard-core pornography" is no [25 Cal. App. 3d Supp. 43] more than a "personal obscenity divining rod." (Kuh, supra, at pp. 63-64.) Nevertheless, I assume that the present materials fit the description, because if they do not, nothing does.
The fact that the materials distributed are hard-core pornography is not alone enough to sustain a conviction. As Redrup, supra, has been applied by the Supreme Court, before a conviction may be sustained there must be not only the distribution of obscene material but distribution under circumstances involving either (a) juveniles, or (b) obtrusion on an unwilling audience, or (c) pandering. The first two of these alternatives are not shown by the evidence before us. The last was irrelevant under Penal Code section 311.2 at the time of the offenses involved here. (People v. Noroff (1967) 67 Cal. 2d 791, 793 [63 Cal. Rptr. 575, 433 P.2d 479].) Since one of the three alternatives is required and none are available, the convictions must be reversed.
At the risk of being charged with supererogation, I shall try to explain this in a little detail: In 1967 Penal Code section 311.2 provided: "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, distributes, 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 misdemeanor."
"Obscene" was then defined by Penal Code section 311 as follows: "(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance."
In 1967, sections 331 and 311.2 said nothing about the mode of distribution, but in 1969, section 311 was recast and amended to provide in part in new subparagraph (a): "(2) In prosecutions under this chapter, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance."
This amendment is apparently based on Ginzburg v. United States (1966) 383 U.S. 463 [16 L. Ed. 2d 31, 86 S. Ct. 942], discussed infra, and seems designed to alter the law as stated in People v. Noroff, supra, particularly footnote 4 at page 793. The sufficiency of the amendment [25 Cal. App. 3d Supp. 44] to preserve more recent prosecutions from Redrup reversals is, of course, not involved here, and I neither express nor intimate any opinion on that problem. But accepting the amendment at its face value as a rule of evidence, rather than as an element of the crime, it has no application here, because the trial here was begun and concluded long before the amendment was adopted. At the time of the trial what was important under sections 311 and 311.2 was the fact of distribution; the circumstances of distribution were irrelevant.
Section 311 emanated from Roth v. United States (1957) 354 U.S. 476 [1 L. Ed. 2d 1498, 77 S. Ct. 1304], which defined obscenity as: "[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest[,]" id. at page 489 [1 L.Ed.2d at page 1509], and said: "[b]ut implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance[,]" id. at pages 484-485 [1 L.Ed.2d at page 1507]. Section 311 also anticipated the similar language in Memoirs v. Massachusetts (1966) 383 U.S. 413, 418 [16 L. Ed. 2d 1, 5-6, 86 S. Ct. 975]. In re Giannini (1968) 69 Cal. 2d 563, 573 [72 Cal. Rptr. 655, 446 P.2d 535].
Ginzburg v. United States (1966) 383 U.S. 463 [16 L. Ed. 2d 31, 86 S. Ct. 942], decided the same day as Memoirs, affirmed a federal conviction for mailing obscene material. The court assumed, but did not hold, that the materials could not themselves be adjudged obscene in the abstract. (Id. at p. 474 [16 L.Ed.2d at p. 40].) Instead it looked to the defendants' conduct in disseminating the materials; e.g., efforts to mail them from the hamlets of Intercourse and Blue Ball, Pennsylvania, and finally mailing them from Middlesex, New Jersey, id. at pages 467-468 [16 L.Ed.2d at pages 36-37]; the "leer of the sensualist" permeating the advertising, id. at page 468 [16 L.Ed.2d at page 37]; and the purveyors' sole emphasis on the sexually provocative aspects of the publications, which "fact may be decisive in the determination of obscenity." (Id. at p. 470 [16 L.Ed.2d at p. 38].) In a nutshell Ginzburg held that in determining obscenity one need not look only at the materials but may also look to "the setting in which the publications were presented as an aid ...." (Id. at p. 465 [16 L.Ed.2d at p. 35].) It did not hold that one was obliged to look to that setting, although it does say: "It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged." (Id. at p. 475 [16 L.Ed.2d at p. 41].)
Discussions since Ginzburg frequently refer to "pandering" because of the reference in the opinion to "the sordid business of pandering -- 'the business of purveying textual or graphic matter openly advertised to appeal [25 Cal. App. 3d Supp. 45] to the erotic interest of ... customers.'" (Id. at p. 467 [16 L.Ed.2d at p. 36].) Since, and perhaps because of, Stanley v. Georgia (1969) 394 U.S. 557, 564, 567 [22 L. Ed. 2d 542, 549, 550-551, 89 S. Ct. 1243], the more recent cases refer to "commercial distribution" or "public distribution." But the citation of Redrup, in Stanley, id. at page 567 [22 L.Ed.2d at pages 550-551], shows that "pandering" is still with us. Further, in the present context "pandering" and "commercial distribution" seem to be synonymous.
Redrup v. New York (1967) 386 U.S. 767 [18 L. Ed. 2d 515, 87 S. Ct. 1414], a per curiam opinion, reversed three state obscenity convictions, because "Whichever of these constitutional views [of the members of the Supreme Court] is brought to bear upon the cases before us, it is clear that the judgments cannot stand." (Id. at p. 771 [18 L.Ed.2d at p. 518].) The materials were not described, but the court pointedly noted that the cases did not involve the states' concern for juveniles, or prevention of obtrusive assaults on individuals unwilling to be exposed to dubious materials, and that "in none was there evidence of the sort of 'pandering' which the court found significant in Ginzburg v. United States, ..." (Id. at p. 769 [18 L.Ed.2d at p. 517].)
Redrup is so cryptic that in itself it defies analysis and but for its frequent iteration by the court would be useless as a precedent. The penetrating and comprehensive text published shortly after its announcement gives it but passing mention. (Kuh, Foolish Figleaves? (1967) 52, fn. 2, 121, fn. 6, 230, fn. 23.) It has been virtually ignored in the learned periodicals. But the one article on the case says: "Redrup may be the most important obscenity decision since the 1957 landmark of Roth v. United States. ... As of March, 1969, Redrup had been cited as controlling or as a key factor in the reversal of 35 state and federal obscenity convictions." (Teeter and Pember, The Retreat from Obscenity: Redrup v. New York (1969) 21 Hastings L.J. 175-176. See also State v. Hoyt (1970) 286 Minn. 92 [174 N.W.2d 700, 702, 711] (dissenting opinion); "reversed, Redrup v. New York ...." Hoyt v. Minnesota (1970) 399 U.S. 524 [26 L. Ed. 2d 782, 90 S. Ct. 2241].)
"By their fruits ye shall know them," is an admonition that is particularly applicable to Redrup in its California context. Schackman v. Arnebergh (C.D.Cal. 1966) 258 F. Supp. 983, appeal dismissed for lack of jurisdiction (1967) 387 U.S. 427 [18 L. Ed. 2d 865, 87 S. Ct. 1622], rehearing denied (1967) 389 U.S. 893 [19 L. Ed. 2d 204, 88 S. Ct. 16], was an unsuccessful effort to enjoin a pending prosecution under Penal Code section 311.2. The district court reviewed the evidence, motion pictures of naked women masturbating, in all its sordid details. One of these films, [25 Cal. App. 3d Supp. 46] D-15, was displayed to this court as an exemplar in Vengetechalliam v. Municipal Court, No. 194889, and it was, assuming the term has some meaning, "hard-core pornography." Nevertheless, when the conviction was finally reviewed by the Supreme Court on the merits, it was "reversed. Redrup v. New York, ..." Schackman v. California (1967) 388 U.S. 454 [18 L. Ed. 2d 1316, 87 S. Ct. 2107]. (On the connection between the two Schackman case see Hermann v. United States (D.C.App. 1969) 259 A.2d 347, 348.)
On the same day that Schackman was reversed, the court affirmed Landau v. Fording (1966) 245 Cal. App. 2d 820 [54 Cal. Rptr. 177]. (388 U.S. at p. 456 [18 L. Ed. 2d 1317, 87 S. Ct. 2109.) Landau involved a motion picture of men masturbating. Of course, it is inconceivable that the cases turned on some sort of distinction between auto eroticism in men and women. The difference between Schackman and Landua is that in Schackman pandering was not discussed although the films were shown in a peep-hole machine in an arcade; but in Landau the court found not only that the film was commercially exploited but also that the case met "the criteria recently set forth in Ginzburg v. United States, ..." (245 Cal.App.2d at p. 830.) In Schackman only three justices would have affirmed on the basis of Ginzburg.
What has apparently happened, therefore, is that what was permitted in Ginzburg has become a requirement under Redrup. If we assume that to sustain an obscenity conviction not only must the material meet the tests of content laid down in Roth and Memoirs, but also that the conduct of the disseminator must show one of the three elements of distribution stated in Redrup, then the different results in Schackman and Landau become comprehensible. Justice Otis dissenting in State v. Hoyt, supra, 174 N.W.2d at page 711, took this position, and he seems to have been correct. The injection of these elements reflects the application of the concept that has been called "variable obscenity," under which the same given materials may under some circumstances be made the basis of a prosecution and under other circumstances may not. This concept originated in Ginzburg (Kuh, Foolish Figleaves? (1967) at p. 76) and has since been expressly adopted (Ginsburg v. New York (1968) 390 U.S. 629, 635-636 and id. fn. 4 [20 L. Ed. 2d 195, 201-202, 88 S.Ct. 1274]).
The above analysis conforms to the results in United States v. Reidel (1971) 402 U.S. 351 [28 L. Ed. 2d 813, 91 S. Ct. 1410] and United States v. Thirty-Seven Photographs (1971) 402 U.S. 363 [28 L. Ed. 2d 822, 91 [25 Cal. App. 3d Supp. 47] S.Ct. 1400], decided on the third of May and involving materials intended for commercial distribution. Mere private possession of obscene materials has not been made a crime under the California statutes (In re Klor (1966) 64 Cal. 2d 816 [51 Cal. Rptr. 903, 415 P.2d 791]), nor could it be Stanley v. Georgia (1969) 394 U.S. 557 [22 L. Ed. 2d 542, 89 S.Ct. 1243]). But it does not follow that there is "a constitutional right in people like Reidel to distribute or sell obscene material." (United States v. Reidel, supra, 402 U.S. at p. 356 [28 L.Ed.2d at p. 817].)
Reidel was charged with violating the same statute as Ginzburg, i.e., using the mails for the delivery of obscene matter. Compare 383 U.S. at page 464, footnote 2 [16 L.Ed.2d at pages 34-35] and 402 U.S. at page 352 [28 L.Ed.2d at page 815, footnote 1]. He procured the dismissal of the indictment on the basis of Stanley, and the Supreme Court reversed. The court assumed the materials were obscene. (402 U.S. at p. 353 [28 L.Ed.2d at p. 816].) The circumstances of the distribution were, of course, not developed at this stage of the proceedings, but there is enough to suggest, at least, that what Landau v. Fording calls the Ginzburg criteria would be met. (Id. at p. 353, fn. 3 [28 L.Ed.2d at p. 816].) The viability of those criteria is illustrated in the separate concurrence of Justice Marshall: "such mail order distribution poses the danger that obscenity will be sent to children." (Id. at p. 361 [28 L.Ed.2d at p. 821].) Reidel is essentially similar to People v. Luros (1971) 4 Cal. 3d 84 [92 Cal. Rptr. 833, 480 P.2d 633] (proof of probable cause sufficient to indict).
United States v. Thirty-Seven Photographs apparently involves the same alleged pornographer involved in People v. Luros, supra. Luros sought to import the photographs. He stipulated that some or all of them "were intended to be incorporated in a hard cover edition of The Kama Sutra of Vatsyayana, a widely distributed book candidly describing a large number of sexual positions." (402 U.S. at p. 366 [28 L.Ed.2d at p. 828].) The court held, on the basis of Reidel, that they might be subject to forfeiture under the customs laws. Since the attack was solely on the constitutionality of the statute, it was not necessary to decide, nor did the court decide, that the photographs were obscene.
The court agreed on a judgment, but only four members concurred in Justice White's opinion that importation of obscenity intended solely for the private use of the importer might be forbidden. Justices Black and Douglas again dissented on the grounds that "the First Amendment denies Congress the power to act as censor ...." (402 U.S. at p. 379 [28 L.Ed.2d at p. 836].) Justice Stewart dissented on the basis of Stanley v. Georgia. (Id. at p. 379 [28 L.Ed.2d at p. 835].) Justice Marshall dissented on the ground that the proceeding was premature: "[T]he Government has ample opportunity to [25 Cal. App. 3d Supp. 48] protect its valid interests if and when commercial distribution should take place." (Id. at p. 361 [28 L.Ed.2d at p. 820].) And Justice Harlan concurred in the judgment because Luros had "stipulated that the materials were imported for commercial purposes," and, therefore, had no standing to raise the overbreadth of the statute as applied to materials for private use. (Id. at pp. 377-378 [28 L.Ed.2d at p. 835].)
Thus, as in the progeny of Redrup v. New York, Reidel and Thirty-Seven Photographs appeal to depend not merely on the obscenity of the materials but on the element of commercial distribution or, in Ginzburg terms, pandering. It should be noted that in both of his cases Luros apparently sought to minimize the pandering element by relying on arguments mentioning only the elements of distribution to minors or intrusion on the sensibilities of unwilling adults. (Cf. 4 Cal.3d at p. 90 and 402 U.S. at p. 375 [28 L.Ed.2d at p. 833]. But cf. Stanley v. Georgia (1969) 394 U.S. 557, 567 [22 L. Ed. 2d 542, 550-551, 89 S. Ct. 1243].)
There is ample evidence of pandering in the instant case, e.g., the "adult" bookstore and the advertising blurbs on the covers of "Love Together": "Not one word cut from this fiery tale of sexual excess in which perversion was the order of the day and normal sexuality something weird, square and almost unknown!" "Artists and models writhe together in frantic abandon in a world where anything goes." (Kuh, supra, at pp. 76, 78.)
But the evidence of pandering cannot be used to sustain the convictions here, because of People v. Noroff (1967) 67 Cal. 2d 791 [63 Cal. Rptr. 575, 433 P.2d 479], decided a few months after Landau was affirmed. There it was held that evidence of pandering did not sustain a prosecution under section 311.2. The section did not refer to pandering. "Insofar as dictum in Landau v. Fording ... suggests a contrary reading of the California statutes, it is hereby disapproved." (Id. at p. 793.) "Nothing in Klor [In re Klor (1966) 64 Cal. 2d 816 (51 Cal. Rptr. 903, 415 P.2d 791)], of course, suggested the adoption of a 'pandering' concept similar to that elaborated in Ginzburg in the context of the federal obscenity statute." (Id. fn. 4.) Since the California Supreme Court declined to include in the version of section 311.2 that is before us an alternative element that the United States Supreme Court indicates must be present if the other alternatives are not present, and they are not present, the convictions must be reversed.
Under Noroff former section 311.2 is overbroad, because it applies to any distribution and is not limited to pandering or commercial distribution, [25 Cal. App. 3d Supp. 49] or, in the language of Dombrowski v. Pfister (1965) 380 U.S. 479, 491, 492, 502 [14 L. Ed. 2d 22, 31-32, 37, 85 S. Ct. 1116], "hard-core conduct." This court cannot, because of Noroff, salvage the statute by giving it an acceptable narrowing construction limiting it to "the sort of 'hard-core' conduct that would obviously be prohibited under any construction." (Dombrowski v. Pfister, supra.) The interpretative technique suggested in Dombrowski was employed in In re Cox (1970) 3 Cal. 2d 205, 223, 224 [90 Cal. Rptr. 24, 474, P.2d 992], and in United States v. Thirty-Seven Photographs, supra, 402 U.S. at page 375 [28 L.Ed.2d at page 833, footnote 3]. But Noroff makes it unavailable to us here.
The reason the problem posed by Noroff has not been highlighted before this may be that since Redrup there has, apparently, been no reported decision sustaining a conviction under former Penal Code section 311.2 other than People v. Pinkus (1967) 256 Cal. App. 2d Supp. 941 [63 Cal. Rptr. 680]. Pinkus was overruled sub silentio by In re Giannini (1968) 69 Cal. 2d 563 [72 Cal. Rptr. 655, 446 P.2d 535]. Monica Theater v. Municipal Court (1970) 9 Cal. App. 3d 1, 21 [88 Cal. Rptr. 71] (dissenting opinion). Recently, however, a minority of the Advisory Board to the Joint Legislative Committee for Revision of the Penal Code have questioned the validity of a proposed statute which would make "trafficking in obscenity" a crime. This minority includes the District Attorney of Sacramento County. They said: "The language of the [proposed] section is not limited to commercial transactions or exhibitions and one might be guilty of such a crime if he shows such obscene material to a friend or friends within the confines of his own home. This comes very close to the mere possession situation discussed in Stanley v. Georgia." Joint Legislative Committee for Revision of the Penal Code, The Criminal Code (1971) Penal Code Revision Project Staff Draft, page 212. And the problems posed by limited circulation are discussed in The Supreme Court, 1970 Term (1971) 85 Harvard Law Review 3, 229, 235-237.
Another reason that the convictions should be reversed is that the jury was instructed: "For the purposes of determining the obscenity of the matter here in question, the relevant community is the entire State of California." This instruction was obviously derived from In re Giannini (1968) 69 Cal. 2d 563 [72 Cal. Rptr. 655, 446 P.2d 535]. Although there is no reference to any community in section 311, Giannini held that "the words 'customary limits of candor,' as used in section 311 of the Penal Code ... require a showing that the material so exceeds customary limits of candor as to affront contemporary community standards of decency." (Id. at p. 574.) It then held that the contemporary community standards must be established by evidence, and that "For the purposes of [25 Cal. App. 3d Supp. 50] determining the obscenity of the performed dance here in question, the relevant 'community' is the entire State of California." (Id at p. 577.)
Giannini was a prosecution for "topless dancing," i.e., indecent exposure and lewd conduct in public. Penal Code sections 314, subd. 2 and 647, subdivision (a). It was not a prosecution under section 311.2. Section 311, defining obscenity, was relevant only as an analogy for determining the meaning of the terms "lewd" and "dissolute" in sections 314 and 647, subdivision (a). (Id. at p. 567.) The court carefully pointed out that "the decision to stage a 'topless dance' rests solely on local considerations ...," but that when dealing with books and films, as in the instant case, different considerations are present. "Evaluation of 'speech' that is designed for nationwide dissemination, such as books or films, according to a nonnational community standard might well unduly deter expression in the first instance and thus run afoul of First Amendment guarantees. But we need not, in the instant case, reconcile this contention with the practical problems of producing evidence of national standards." (Id. at p. 579.)
In the case at hand we must make the reconciliation, because here we are involved with books and films. The reasoning of Justices Brennan and Goldberg in Jacobellis v. Ohio (1964) 378 U.S. 184 [12 L. Ed. 2d 793, 84 S. Ct. 1676] is compelling: "We do not see how any 'local' definitions of the 'community' could properly be employed in delineating the area of expression that is protected by the Federal Constitution. ... [A] standard based on a particular local community would have 'the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency.'" (Id. at p. 193 [12 L.Ed.2d at p. 801].)
This view should prevail as long as the Supreme Court adheres to the opinion that "The freedoms protected against federal encroachment by the First Amendment are entitled under the Fourteenth Amendment to the same protection from infringement by the States." (United Mine Workers v. Illinois (1967) 389 U.S. 217, 221, fn. 4 [19 L. Ed. 2d 426, 430, 88 S. Ct. 353].) Justice Harlan's opinion that there is a difference between the powers of the states and the United States, and that the Fourteenth Amendment confines the states "only insofar as such power is inconsistent with our concepts of 'ordered liberty'" Roth v. United States (1957) 354 U.S. 476, 501 [1 L. Ed. 2d 1498, 1516, 77 S. Ct. 1304], has not prevailed. It has won some adherents, but not enough. (Hoyt v. Minnesota (1970) 399 U.S. 524 [26 L. Ed. 2d 782, 90 S. Ct. 2241] (dissenting opinion).) [25 Cal. App. 3d Supp. 51]
Although there is fear that it may be impossible to prove a national standard (Jacobellis v. Ohio, supra, 378 U.S. at p. 200 [12 L.Ed.2d at p. 805] (Warren, C. J. and Clark, J. dissenting), In re Giannini, supra, 69 Cal.2d at p. 578), some jurisdictions seem able to find the evidence. To the names of such jurisdictions given in Giannini, id. at page 578, should be added that of the District of Columbia. Hermann v. United States (D.C.App. 1969) 259 A.2d 347, 348.
I would reverse the judgments with directions to dismiss.
FN 1. At the time here involved, Penal Code section 311, subdivision (a), provided: "'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to a prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which is utterly without redeeming social importance."
FN 2. "'... The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called wordlywise and sophisticated indifferent and unmoved. ...
"'The test in each ... is the effect of the book, picture or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards.
"'* * *
"'In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and in determining that conscience you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious -- men, women and children.'" (354 U.S. at p. 490 [1 L.Ed.2d at p. 1510].)
FN 1. I dissent somewhat more vigorously on two other propositions. The one is on the publication of these opinions. I do not believe that they meet the criteria for publication in California Rules of Court, rule 976. They do not establish a new rule or modify an existing rule. They do not criticize or even involve existing law, because the applicable statute has long since been amended significantly. And, I feel, they do not involve matters of public interest such as are described in footnote 2 to rule 976. The "constitutional jungle" cannot be reclaimed by this court. With three reviewing courts over us, we can do no more than go over old ground and contribute to rather than relieve the existing difficulties. I view these opinions only as aids to our own analysis and, hopefully, as guides to the parties. They are not and cannot be definitive, and so they should not be intruded on the profession by publication. The other proposition from which I dissent is the refusal of my brethren to certify the case to the Court of Appeal on our own motion pursuant to rule 63(a). If the case is important enough to require publication, it is important enough to be certified, rule 62(a), even though transfer of the case would remove these opinions from the Official Reports under rule 976(d).