Giannini, In re

• Citation: 72 Cal.Rptr. 655,69 Cal.2d 563,446 P.2d 535
• Decision Date: 14 November 1968
• Docket Number: Cr. 11446
• Court: United States State Supreme Court (California)
• Parties: , 446 P.2d 535 In re Albert J. GIANNINI et al., on Habeas Corpus.

Page 655

72 Cal.Rptr. 655

69 Cal.2d 563, 446 P.2d 535

In re Albert J. GIANNINI et al., on Habeas Corpus.

Cr. 11446.

Supreme Court of California In Bank.

Nov. 14, 1968.

Rehearing Denied Dec. 11, 1968.

Pelletreau, Gowen, Moses & Porlier and Kenneth Larson, San Pablo, for petitioners.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Michael J. Phelan, Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

Our ruling in this case rests on the simple proposition that a dance performed before an audience for entertainment cannot be held to violate the statutory prohibitions of indecent exposure and lewd or dissolute conduct in the absence of proof that the dance, tested in the context of contemporary community standards, appealed to the prurient interest of the audience and affronted standards of decency generally accepted in the community. We explain why we have concluded that both under principles of constitutional law and upon application of the criteria inherent in the involved statutes, conviction could stand only upon presentation of such proof. We likewise set forth our reasons for holding that the relevant community standard is that of the statewide community.

In 1965 a municipal court jury found petitioner Kelley Iser, a 'topless' dancer, and petitioner Albert Giannini, the manager of the nightclub in which she danced, guilty of violating Penal Code section 314, subdivision 1 (wilful and lewd exposure) and section 647, subdivision (a) (lewd or dissolute conduct). The appellate department of the superior court affirmed the convictions without opinion; petitioners applied unsuccessfully for transfer of the case to the Court of Appeal.

Giannini and Iser then brought this petition for habeas corpus, alleging that the sections of the Penal Code under which they were convicted are unconstitutionally vague and that the failure of the prosecution to introduce evidence of community standards as to the involved performance rendered the convictions unconstitutional.

1. The facts.

Petitioners were convicted of violation of section 314, subivision 1, and section 647, subdivision (a), of the Penal Code. In relevant part, these sections read as follows: ' § 314. Every person who wilfully and lewdly * * * 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby * * * is guilty of a misdemeanor.' ' § 647. Every person who commits any of the following acts shall be guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.'

In support of these charges, the prosecution produced two police officers who testified to the following facts. Petitioner Giannini managed the Lighthouse Inn, a nightclub in San Pablo, California; petitioner Iser performed the 'topless' dance featured at the Inn. Wearing tights and a transparent cape, Iser appeared on a spotlighted stage and performed various modern dances, including the 'Swim.' As part of the act, she removed the cape, exposing the upper portion of her body, and performed a dance called 'Walking the Dog' to the music of a song by the same name. 'Walking the Dog,' according to the officers, consisted of petitioner Iser 'wiggling around' for about 30 seconds on her hands and knees with her breasts exposed.

The officers testified that a large sign with the word 'Topless' stood outside the club. A small sign at the entrance indicated that minors were not allowed inside; an employee of the Lighthouse Inn checked identification at the doorway. The officers further testified that petitioner Iser's performance could not be seen from outside the club. The only other evidence introduced by the prosecution consisted of photographs depicting petitioner Iser dancing; in some of the pictures her breasts were exposed.

At the conclusion of the People's case, defense counsel moved that the jury be advised to return a verdict of 'not guilty' because the prosecution had failed to introduce any evidence as to a material aspect of its case, the contemporary standards of the community with respect to the type of dance at issue. Apparently concluding that the jurors represented the 'community' and thus by definition would apply 'community standards,' the trial court denied the request.

After denial of the motion, the defense called as witnesses the owners of two San Francisco nightclubs. They testified that for several years they had continuously employed 'topless' dancers who did the 'Swim' and other modern dances; that between 30 and 40 other San Francisco nightclubs employed 'topless' entertainers, and that 'topless nightclubs' engaged in business in Los Angeles, Santa Rosa, San Rafael, San Diego, Petaluma, Eureka, and Red Bluff. One of the owners further testified that this employees nightly performed the dance 'Walking the Dog'; the other testified that the small size of the dancing platforms in his club precluded the performance of that dance.

An attorney, also testifying for the defense, stated that during 'Walking the Dog' petitioner Iser wiggled her abdominal area and buttocks, that some interpreted this dance as having 'sexual connotations,' and that he had seen the same dance rendered on television by fully clothed performers. In addition, the defense introduced various materials generally available in the San Pablo community, such as Playboy magazine and art books, as evidence of contemporary community standards regarding bare-breasted women.

Among other instructions the trial judge charged the jury, quoting Penal Code, section 311, that: "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.'

We have seen that although defendants were found guilty of violation of the prohibition of indecent exposure in Penal Code, section 314, subdivision 1, and the prohibition of disorderly conduct in Penal Code, section 647, subdivision (a), the alleged offense occurred in the presentation of a dance before an audience. We shall point out that the performance of such a dance, like other forms of expression or communication prima facie enjoys protection under the First Amendment of the Constitution of the United States; it loses such protection upon a showing of its obscenity. To show such obscenity, however, the prosecution must introduce evidence that, applying contemporary community standards, the questioned dance appealed to the prurient interest of the audience and affronted the standards of decency accepted in the community.

In interpreting the terms 'lewd' and 'dissolute' as used in the statutes under which defendants were charged, the trial court held such words to be synonymous with 'obscene' as used in Penal Code, section 311 which defines obscenity. Once the First Amendment protection applies to the dance as a medium of expression, and once the court charges the jury in the terms of the obscenity statute, proof that the dance, in the context of contemporary standards, appealed to the prurient interest of the audience and exceeded the customary limits of candor became essential to conviction. The absence of that proof must therefore nullify the judgment.

2. The performance of a dance for an audience constitutes a method of expression that, in the absence of proof of obscenity, warrants the protection of the First Amendment.

Although the United States Supreme Court has not ruled on the precise question whether the performance of a dance is potentially a form of communication protected against state intrusion by the guarantees of the First and Fourteenth Amendments to the federal Constitution, the very definition of dance describes it as an expression of emotions or ideas. Thus, 'Dancing consists in the rhythmical movement of any or all parts of the body in accordance with some scheme of individual or concerted action which is expressive of emotions or ideas.' (7 Encyclopaedia Britannica (1945) pp. 13--14.) The Century Dictionary and Cyclopedia defines dance as follows: 'dance--A succession of more or less regularly ordered steps and movements of the body, commonly guided by rhythmical intervals of a musical accompaniment; any leaping or gliding movement with more or less regular steps and turnings, expressive of or designed to awaken some emotion. The dance is perhaps the earliest and most spontaneous mode of expressing emotion and dramatic feeling; it exists in a great variety of forms and is among some people connected with religious belief and practice, as among the Mohammedans and Hindus.' (2 The Century Dictionary and Cyclopedia (1914) p. 1450.)

The Supreme Court has held that analogous media of expression, such as motion pictures, come 'within the ambit of the constitutional guarantees of freedom of speech and of the press. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098.' (Jacobellis v. State of Ohio (1964) 378 U.S. 184, 187, 84 S.Ct. 1676, 1677, 12 L.Ed.2d 793 (judgment of the court per Brennan, J.); see also Flack v. Municipal Court, etc. (1967) 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192.) 'It cannot be doubted that motion pictures are a significant Medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging * * * to the subtle shaping of thought which characterizes all artistic expression. The inportance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform.' (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S....