Cohen v. Municipal Court of Los Angeles Judicial Dist.

• Decision Date: 10 May 1967
• Citation: 58 Cal.Rptr. 846,250 Cal.App.2d 861
• Court: California Court of Appeals Court of Appeals
• Parties: Solie COHEN, Petitioner and Appellant, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, Defendant and Respondent. Civ. 29558.

Page 846

58 Cal.Rptr. 846

250 Cal.App.2d 861

Solie COHEN, Petitioner and Appellant, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, Defendant and Respondent.

Civ. 29558.

Court of Appeal, Second District, Division 4, California.

May 10, 1967.

Rehearing Denied June 7, 1967.

Hearing Denied July 5, 1967.

Stanley Fleishman and Martha Goldin, Hollywood, for petitioner and appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Richard Kolostian, Deputy City Atty., for defendant and respondent.

FOX, ^* Associate Justice.

This is an appeal from an order denying an alternative writ of prohibition.

Petitioner was charged with violating section 311.2 of the Penal Code. ¹ The complaint charged, in pertinent part, that defendant 'did wilfully, unlawfully and knowingly in this state prepare and exhibit and offer to exhibit obscene matter.' The offense was charged in the language of the statute. The obscene matter was not identified in the complaint. Defendant filed a demurrer to the complaint. It was overruled. Defendant then petitioned for an alternative writ of prohibition. His petition was denied. Hence this appeal.

In seeking a reversal, petitioner, basically, makes three arguments: (1) That due process requires that the specific matter alleged to be obscene must be pleaded, (2) that Penal Code section 311.2 on its face and as applied in the complaint at Bench is void because it is too vague, ambiguous and uncertain to form the basis of a valid criminal charge and (3) that he will be unable to establish former jeopardy in the event of his later prosecution for the same offense.

It will be helpful to review, at the outset, the legislative enactments dealing with pleading in criminal cases. People v. Pierce, 14 Cal.2d 639, 645--646, 96 P.2d 784, serves that purpose admirably:

'There can be no doubt that the rules of pleading with reference to criminal charges have been liberalized by the amendments of 1927 and 1929 relating to pleading in criminal cases. ² In People v. Beesly, 119 Cal.App. 82, 6 P.2d 114, 970, (sic) the court said: 'The sufficiency of an indictment or information is not to be tested by the rules of the common law nor by the rules which existed prior to the amendments of 1927 and 1929 of our statutes relating to pleading in criminal cases. The true rule can be determined only by a consideration of all of the statutes affecting the subject as they exist since those amendments. The purpose of an indictment or information is to inform the accused of the charge which he must meet at the trial. At common law, where this information came solely from the indictment, much particularity was required. * * * As a part of the accusatory procedure, the law now provides that in every case the accused is entitled to a copy of the testimony given before the grand jury or the committing magistrate, as the case may be (secs. 870, 925, Pen.Code), and he is today better informed as to the case he must meet than was an accused under the detailed form of pleading required at common law. By section 959 of the Penal Code as amended in 1927 (Stats.1927, p. 1041), we have the statutory provision that an information is sufficient if it can be understood therefrom that it is entitled in a court having authority to receive it, that the defendant is named, or, if his name is not known and that fact is pleaded, he may be charged by a fictitious name, that the offense is one of which the court has jurisdiction, and that the offense was committed prior to the filing of the information. The former requirements of subdivisions 6 and 7 of section 959, that the act or omission charged must be clearly and distinctly set forth in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended and to enable the court to pronounce judgment upon conviction, were repealed by the 1927 amendment and are no longer a part of that section. * * * Section 952, ³ which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended, declares that it shall be sufficient if it be 'in any words sufficient to give the accused notice of the offense of which he is accused.' There, in a nutshell, is stated the principle of our present simplified form of pleading of a criminal offense--the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment or information is founded."

Since this criminal proceeding is in the municipal court it is important to see what effect the liberalizing amendments of 1927 and 1929 had upon the statutes that specifically deal with pleadings in criminal cases in that court. People v. Saffell, 74 Cal.App.2d Supp. 967, 168 P.2d 497, provides the answer. At pages 972 to 974, 168 P.2d at page 501, it stated:

'Section 1426 reads as follows: 'All proceedings and actions before a justice's or police court, or a municipal court, for a public offense of which such courts have jurisdiction, must be commenced by complaint under oath, setting forth the offense charged, with such particulars of time, place, person, and property as to enable the defendant to understand distinctly the character of the offense complained of, and to answer the complaint. In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft, it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.' In construing this section it is to be noted that prior to 1931 it contained only the present first sentence (except the words 'or a municipal court'), and that everything else now appearing in it was added by the amendment of 1931. The matter so added, except for the reference to a municipal court, was simply a copy of section 952, applicable in the superior courts, as that section had been amended in 1929, which amendment, following that of 1927, omitted the requirement that a pleading be direct and certain. These amendments of section 952 were made as part of a program for simplification and liberalization of the rules of pleading in criminal cases. (Citations.) No doubt the addition of the words of section 952 in its amended form to section 1426 was made for the same purpose, and it should be construed according to the fair import of its terms, to effectuate that purpose. (Pen.Code, § 4.) ⁴ * * *.

'Looking now at the new part of the section, we note the provision that the statement that the accused has committed a public offense 'may be in the words of the enactment describing the offense or declaring the matter to be a public offense' etc. When this same provision was put in section 952 it was undoubtedly intended to reverse a rule previously declared by the courts on this point. While recognizing the rule that in general it is sufficient to charge an offense in the language of the statute defining it (14 Cal.Jur. 49--50), the courts had also held that where the words used in the statute have no technical meaning, or where the particular facts or acts which constitute the offense are not specified, it is necessary to set forth the acts constituting the offense. (Citations.) Since the general rule of following the statutory definition was thus recognized except in the one class of cases, without any statutory provision to that effect, the purpose of enacting the rule into statute Without any exception (emphasis added by the court) must have been to abolish the exception and let the rule stand in complete generality, and section 952 is so construed. (Citations.) In People v. Steel (1939) 35 Cal.App.2d Supp. 748, 751, 92 P.2d 815, and People v. Smith (1939), 36 Cal.App.2d Supp. 748, 753, 92 P.2d 1039, it is held that under the provisions of section 1426 as they now stand a complaint in the words of the statute is sufficient, and in the Smith case it is further held that the provisions of section 1426 to that effect are valid. * * *'

Furthermore, section 968, ⁵ Penal Code, provides that in obscenity cases an accusatory pleading is sufficient when the fact of lewdness or obscenity is stated generally.

Petitioner argues that he must know the particular matter that is alleged to be obscene in order to enable him to prepare his defense. There is, of course, merit in this argument. But the machinery is at hand which will enable him to get the desired material, viz, pretrial discovery. (Powell v. Superior Court, 48 Cal.2d 704, 707--708, 312 P.2d 698; Vance v. Superior Court, 51 Cal.2d 92, 93, 330 P.2d 773; Tupper v. Superior Court, 51 Cal.2d 263, 265, 331 P.2d 977; Funk v. Superior Court, 52 Cal.2d 423, 424, 340 P.2d 593; People v. Renchie, 201 Cal.App.2d 1, 2, 19 Cal.Rptr. 734; People v. Wilson, 222 Cal.App.2d 616, 617, 35 Cal.Rptr. 280.) The purpose of permitting pretrial discovery is 'to promote the orderly ascertainment of the truth' (Jones v. Superior Court, 58 Cal.2d 56, 60, 22 Cal.Rptr. 879, 881, 372 P.2d 919, 96 A.L.R.2d 1213) and in pursuant of 'the fundamental principle that an accused is entitled to a fair trial.' (Cash v. Superior Court, 53 Cal.2d 72, 75, 346 P.2d 407, 408.) The rules of discovery in criminal cases in this state provide a defendant with full opportunity for due process. (See cases cited in Jones v. Superior Court, supra, 58 Cal.2d pp. 58--60, 22 Cal.Rptr. 879, 372 P.2d 919; see also Canon v. Justice Court, 61...