Bloom v. Municipal Court

CourtUnited States State Supreme Court (California)
Writing for the CourtCLARK; WRIGHT; TOBRINER; MOSK
Parties, 545 P.2d 229 Noel C. BLOOM, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR the INGLEWOOD JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent. L.A. 30258.
Decision Date06 February 1976

Page 317

127 Cal.Rptr. 317
16 Cal.3d 71, 545 P.2d 229
Noel C. BLOOM, Plaintiff and Appellant,
v.
The MUNICIPAL COURT FOR the INGLEWOOD JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent;
The PEOPLE, Real Party in Interest and Respondent.
L.A. 30258.
Supreme Court of California,
In Bank.
Feb. 6, 1976.

[16 Cal.3d 73]

Page 318

[545 P.2d 230] Fleishman, McDaniel, Brown & Weston, David M. Brown and John H. Weston, Los Angeles, for plaintiff and appellant.

No appearance for defendant and respondent.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Dirk L. Hudson, Deputy Dist. Attys., for real party in interest and respondent.

CLARK, Justice.

Plaintiff Bloom appeals from a judgment of the Los Angeles Superior Court denying his petition for writ of prohibition to restrain the Inglewood Municipal Court from proceeding on a complaint charging him in the statutory language with violation of section 311.2, subdivision (a), of the Penal Code. 1 We affirm the judgment.

16 Cal.3d 74

I

We first consider a question of appellate jurisdiction raised by the Court of Appeal on its own motion. 2

The Court of Appeal held that a superior court judgment denying a writ of prohibition to restrain a municipal court prosecution is not appealable, and that the only remedy is a petition in the Court of Appeal for an original writ of prohibition. Treating plaintiff's appeal as a petition for writ of prohibition on which an alternative writ had been issued, the Court of Appeal heard and determined the matter on the merits and denied the peremptory writ. We ordered a hearing and transferred the cause to this court on our own motion.

Prior to revision of the Constitution in 1966, appeals from rulings by the superior

Page 319

[545 P.2d 231] courts on petitions for writs of prohibition were expressly included within the appellate jurisdiction of the Courts of Appeal. 'The District Courts of Appeal shall have appellate jurisdiction on appeal from the superior courts . . . in proceedings of . . . prohibition . . ..' (Cal.Const., art. VI, § 4b.) 3 When the judicial article was revised, 'detailed references to instances of appellate jurisdiction,' except for this court's appellate jurisdiction in death penalty cases, were deleted as 'unnecessary.' (Cal.Const.Rev.Comm., Proposed Rev. of Cal.Const. (Feb. 1966) p. 91.)

Although no longer spelling it out in so many words, article VI still clearly provides that Courts of Appeal have jurisdiction over appeals from superior court judgments in prohibition proceedings. Section 11 provides in part that 'courts of appeal have appellate jurisdiction when [16 Cal.3d 75] superior courts have original jurisdiction.' Section 10 provides in part that superior courts 'have original jurisdiction in proceedings for extraordinary relief in the nature of . . . prohibition.' There is not the slightest indication in the comments of either the Constitution Revision Commission or the Judicial Council that revision of article VI was intended or expected to affect the appellate jurisdiction of the Courts of Appeal in this regard. (Cal.Const.Rev.Comm., Proposed Rev. of Cal.Const. (Feb. 1966) pp. 90--91; Judicial Council of Cal., 1967 Rep. to Governor and Legislature, pp. 76--77.)

Analogy to habeas corpus procedure is not persuasive. An order by a superior court denying a writ of habeas corpus can be challenged only by filing a new petition in a higher court, but that rule is statutory. (Pen.Code, § 1506; People v. Griggs (1967) 67 Cal.2d 314, 317, 61 Cal.Rptr. 641, 431 P.2d 225; Loustalot v. Superior Court (1947) 30 Cal.2d 905, 913, 186 P.2d 673.) In contrast, the Code of Civil Procedure makes the statutes pertinent to appeals applicable to writs of prohibition. Section 1110 provides that 'The provisions of Part 2 of this Code relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this Title, apply to the proceedings mentioned in this Title.' Prohibition is a proceeding mentioned in chapter 3 of the title. (See 5 Witkin, Cal.Procedure (2d ed.) Extraordinary Writs, § 178, p. 3938, citing Mellinger v. Municipal Court (1968) 265 Cal.App.2d 843, 845, 71 Cal.Rptr. 535.)

In conclusion, a superior court judgment denying a writ of prohibition to restrain a municipal court prosecution is within the appellate jurisdiction of the Courts of Appeal.

II

We now consider the merits of plaintiff's appeal.

Plaintiff contends California's statutory definition of obscenity (Pen.Code, § 311) is unconstitutionally vague in light of the recent restatement of the constitutional standard in Miller v. California (1973) 413 U.S. 15, 93 . s.Ct. 2607, 37 L.Ed.2d 419. Plaintiff argues section 311 fails to satisfy Miller's requirement that material proscribed as obscene be 'specifically defined

Page 320

[545 P.2d 232] by the applicable state law, as written or authoritatively construed.' (413 U.S. at p. 24, 93 S.Ct. at p. 2615.) We hold section 311 sufficiently specific 'as . . . authoritatively construed.'

[16 Cal.3d 76] In Roth v. United States (1957) 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, the court articulated the following test of obscenity: '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' In the course of rejecting the claim that obscene materials are protected by the First Amendment, the court in Roth observed that 'implicit in the history of the First Amendment is the rejection of obscenity as Utterly without redeeming social importance.' (354 U.S. at p. 484, 77 S.Ct. at 1309, italics added.) This observation was incorporated into the definition of obscenity by a plurality of the court in Memoirs v. Massachusetts (1966) 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1. 'Under (the Roth) definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; And (c) the material is utterly without redeeming social value.' (Italics added.)

The element added by the Memoirs plurality was repudiated by the majority of the court in Miller v. California. 'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, 383 U.S., at 419, 86 S.Ct., at 977; that concept has never commanded the adherence of more than three Justices at one time.' (413 U.S. at pp. 24--25, 93 S.Ct. at p. 2615; citation and fn. omitted.) 'While Roth presumed 'obscenity' to be 'utterly without redeeming social importance,' Memoirs required that to prove obscenity it must be affirmatively established that the material is 'utterly without redeeming social value.' Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was 'utterly without redeeming social value'--a burden virtually impossible to discharge under our criminal standards of proof.' (413 U.S. at p. 22, 93 S.Ct. at 2613.)

[16 Cal.3d 77] California's statutory definition of obscenity is based on the Memoirs plurality test. 'Obscene matter' is defined in section 311 as 'matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is a prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is Utterly without redeeming social importance.' (Italics added.)

Plaintiff may not complain of the fact that California by statute continues to impose a greater burden on the People in an obscenity prosecution than is constitutionally required. In Hamling v. United States (1974) 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, the court rejected the contention that revision of the Memoirs test in Miller meant a pre-Miller federal obscenity statute was unconstitutionally vague. '(O)ur opinion in Miller plainly indicates that we rejected the Memoirs 'social value' formulation, not because it was so vague as to deprive criminal defendants of adequate

Page 321

[545 P.2d 233] notice, but instead because it represented a departure from the definition of obscenity in Roth, and because in calling on the prosecution to 'prove a negative,' it imposed a '(prosecutorial) burden virtually impossible to discharge' and which was not constitutionally required. Miller v. California, 413 U.S., at 22, 93 S.Ct. 2607, at 2613. Since Miller permits the imposition of a lesser burden on the prosecution in this phase of the proof of obscenity than did Memoirs, and since the jury convicted these petitioners on the basis of an instruction concededly based on the Memoirs test, petitioners derive no benefit from the revision of that test in Miller.' (418 U.S. at pp. 116--117, 94 S.Ct. at p. 2907.)

However, plaintiff's vagueness argument is based primarily on part (b) of the Miller test--the requirement that material proscribed as obscene depict or describe, in a patently offensive manner, sexual conduct 'specifically defined by the applicable state law, as written or authoritatively...

To continue reading

Request your trial
54 practice notes
  • People v. Kuhns, Cr. 14439
    • United States
    • California Court of Appeals
    • September 8, 1976
    ...of the statutes under which they were convicted (Pen.Code, § 311 1 and § 311.2, subd. (a) 2; Page 729 see Bloom v. Municipal Court (1976) 16 Cal.3d 71, 127 [61 Cal.App.3d 744] Cal.Rptr. 317, 545 P.2d 229), seek to press alleged errors to reverse their convictions. We hold that there is no m......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • June 1, 1976
    ...500; accord, Hamling v. United States (1974) 418 U.S. 87, 114, 94 S.Ct. 2887, 41 L.Ed.2d 590.) Indeed, in Bloom v. Municipal Court (1976) 16 Cal.3d 71, 81, 127 Cal.Rptr. 317, 545 P.2d 229, we have construed our own obscenity statute (Pen.Code, § 311, subd. (a) ('obscene matter')) as referri......
  • Pryor v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 7, 1979
    ...test is its appeal to contemporary community standards. That appeal is the vaguest part of the test (see Bloom v. Municipal Court (1976) 16 Cal.3d 71, 89-90, 127 Cal.Rptr. 317, 545 P.2d 229 (Tobriner, J., dis.)), and, standing alone, does not provide a sufficient standard to judge the crimi......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • March 4, 1976
    ...7; accord, Hamling v. United States (1974) 418 U.S. 87, 114, 94 S.Ct. 2887, 41 L.Ed.2d 590.) Indeed, in Bloom v. Minicipal Court (1975) 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229, we have construed our own obscenity statute (Pen.Code, § 311, subd. (a) ['obscene matter']) as referring to ......
  • Request a trial to view additional results
54 cases
  • People v. Kuhns, Cr. 14439
    • United States
    • California Court of Appeals
    • September 8, 1976
    ...of the statutes under which they were convicted (Pen.Code, § 311 1 and § 311.2, subd. (a) 2; Page 729 see Bloom v. Municipal Court (1976) 16 Cal.3d 71, 127 [61 Cal.App.3d 744] Cal.Rptr. 317, 545 P.2d 229), seek to press alleged errors to reverse their convictions. We hold that there is no m......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • June 1, 1976
    ...500; accord, Hamling v. United States (1974) 418 U.S. 87, 114, 94 S.Ct. 2887, 41 L.Ed.2d 590.) Indeed, in Bloom v. Municipal Court (1976) 16 Cal.3d 71, 81, 127 Cal.Rptr. 317, 545 P.2d 229, we have construed our own obscenity statute (Pen.Code, § 311, subd. (a) ('obscene matter')) as referri......
  • Pryor v. Municipal Court
    • United States
    • United States State Supreme Court (California)
    • September 7, 1979
    ...test is its appeal to contemporary community standards. That appeal is the vaguest part of the test (see Bloom v. Municipal Court (1976) 16 Cal.3d 71, 89-90, 127 Cal.Rptr. 317, 545 P.2d 229 (Tobriner, J., dis.)), and, standing alone, does not provide a sufficient standard to judge the crimi......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • March 4, 1976
    ...7; accord, Hamling v. United States (1974) 418 U.S. 87, 114, 94 S.Ct. 2887, 41 L.Ed.2d 590.) Indeed, in Bloom v. Minicipal Court (1975) 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229, we have construed our own obscenity statute (Pen.Code, § 311, subd. (a) ['obscene matter']) as referring to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT