Davis, In re, Cr. 11822

• Court: California Court of Appeals
• Writing for the Court: KAUS; SHINN, P.J., and FORD
• Citation: 242 Cal.App.2d 645,51 Cal.Rptr. 702
• Parties: In re Jeanne DAVIS and Harlan Clay Davis, on Habeas Corpus.
• Decision Date: 03 June 1966
• Docket Number: Cr. 11822

Page 702

51 Cal.Rptr. 702 242 Cal.App.2d 645 In re Jeanne DAVIS and Harlan Clay Davis, on Habeas Corpus. Cr. 11822. District Court of Appeal, Second District,
Division 3, California. June 3, 1966.
As Modified on Denial of Rehearing June 24, 1966.
Hearing Denied July 27, 1966.

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[242 Cal.App.2d 647] Stanley Fleishman, Hollywood, for petitioners.

Kurlander, Shettler & Solomon and Stephen Warren Solomon, Santa Monica, as amicus curiae on behalf of petitioners.

A. B. Keel, City Atty., Hawthorne, for respondent.

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Roger Arnebergh, City Atty. (Los Angeles); Philip E. Grey, Asst. City Atty., Allen U. Schwartz, Deputy City Atty., as amicus curiae on behalf of respondent.

KAUS, Justice.

Petitioners Jeanne Davis and Harlan Clay Davis, husband and wife, were each convicted in the municipal court of violating that portion of section 650 1/2 of the Penal Code which makes it a misdemeanor 'wilfully and wrongfully' to commit any act 'which openly outrages public decency,' provided that no other punishment for such act is prescribed by the Penal Code.

In the same trial Jeanne Davis was acquitted of a charge of violating section 314 (1) of the Penal Code; a charge of violating section 314(2) of the Penal Code against Harlan was dismissed in furtherance of justice. ¹ The judgments were then appealed to the appellate department of the superior court which affirmed by written opinion. At the request of petitioners and of the District Attorney of the County of Los Angeles ² a rehearing was granted. After rehearing the judgments were again affirmed. The appellate department, proceeding under California Rule of Court 63, certified the case to this court, petitioners having applied [242 Cal.App.2d 648] for such a certification. We denied transfer. (Cal. Rules of Court, rule 62(a).)

Mr. and Mrs. Davis then petitioned the Supreme Court for a writ of habeas corpus asserting that section 650 1/2 of the Penal Code was unconstitutional. That court entered an order directed to the Chief of Police of the City of Hawthorne, ordering him to show cause before this court why the relief prayed for should not be granted. In his return the respondent chief of police does not question the propriety of the writ as a means of testing the constitutionality of the statute.

The incident out of which the charges against petitioners grew occurred on June 26, 1964, at a bar operated by them. The facts are not in dispute. We quote from the trial judge's memorandum:

'On June 26, 1964, in the city of Hawthorne, County of Los Angeles, State of California, at a restaurant and bar called the Golden Nugget, the defendants held a fashion show, starting at about 7:30 p.m.

'About 150 people were in attendance. They all had been invited by Mr. Davis. Three girls modeled lingerie, baby dolls and swim suits.

'Mr. Davis then announced that it was time to model the topless bathing suit, and that if anyone would feel offended by the female form, to leave 'or forever hold your peace.'

'Mrs. Davis walked to a stage about one foot high and ten feet square. The spectators were standing around the stage. She was clad in a knee length leopard skin dress. She unfastened it and handed it to Mr. Davis. She was then clad solely in the bottom portion of a bikini, also leopard skin, supplemented by two slender leopard skin ribbons. Her breasts were bare * * *

'She remained that way between a half minute and a minute. She was facing the bar at first, then turned toward a policeman she knew was in attendance with a camera, then turned toward the bar. The policeman took the photographs constituting People's Exhibits 1 through 5, in evidence.

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'She did not shake or jump while modelling.

'Afterwards Mr. Davis asked the policeman if an arrest would be made. The policeman said none would be made at that time. Mr. Davis said that he knew six people who would sign a complaint and if no complaint were filed it would cost them $6,000,000.00 in publicity, because several national magazines were waiting for a complaint to be filed.

'Defendant's Exhibits A through D are magazines purchased in a liquor store in the city of Hawthorne. They were [242 Cal.App.2d 649] received in evidence, as defense counsel stated 'for the purpose of establishing contemporary standards in attempting to define the words 'lewdness' and 'indecent exposure'.'

'Character witnesses testified that the reputations of the defendants for morality and decency are good. The defendants did not testify.'

The magazines referred to are devoted in large part to photographs of nude women, wearing considerably less than Mrs. Davis did on the occasion in question.

The trial judge's memorandum, in which he explained the basis of his decision, also contains the following: 'In this count (Penal Code, section 650 1/2) the defendants are charged with outraging public decency.

'The word 'decency' is defined as 'freedom from obscenity or indecorum; modesty.' The word 'decorum' applies especially to that which is decent or becoming in manners or conduct; it frequently implies little more than the absence of all that is unseemly.'

This language, though not quite free from doubt, strongly implies that the trial court gave the broadest possible definition to the word 'decency,' equating it with 'decorum' and 'seemliness.' We mention this, not to indicate that such a construction is erroneous, but merely to show that it is one which is reasonably possible.

Before proceeding to discuss the merits of petitioners' claims, it seems proper--in spite of respondent's concession--to explain why we think that habeas corpus is an appropriate remedy. At first blush one might suppose that the principles expressed in In re Sterling, 63 Cal.2d 486, 47 Cal.Rptr. 205, 407 P.2d 5 preclude petitioners from attacking a final judgment in such a proceeding as this. A closer reading of Sterling, however, convinces us that the rule of that case is confined to situations where the asserted violation of constitutional rights has no bearing on the question of guilt. Sterling involved the use of allegedly illegally seized evidence. Such evidence, though inadmissible if obtained in violation of the Fourth Amendment, usually removes any lingering doubt that an innocent person has been convicted. The constitutional attack in the present case, on the other hand, goes to the very heart of the People's case against petitioners, that is to say, the validity of the statute ³ under which they were convicted. [242 Cal.App.2d 650] Sterling, therefore, is no obstacle to the review petitioners seek, for which there is otherwise ample precedent. (In re Jackson, 61 Cal.2d 500, 503, 39 Cal.Rptr. 220, 393 P.2d 420; In re Dixon, 41 Cal.2d 756, 762, 264 P.2d 513; In re Bell, 19 Cal.2d 488, 492--495, 122 P.2d 22.)

The main thrust of the attack on the portion of section 650 1/2 of the Penal Code involved here is the claim that the statute is unconstitutionally vague.

As has been pointed out by many writers, ⁴ the vagueness of a statute may lead to a judicial inability to enforce it, regardless of constitutional considerations. The Roman maxim 'ibi jus uncertum, ibi jus

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nullum' is considerably older than the Fourteenth Amendment. For obvious reasons, however, attacks on statutes on the basis of vagueness are generally made on constitutional grounds. The additional remedies--such as the present proceeding--afforded by reliance on the Constitution point up the wisdom of such a course.

The classic formulation of the test for unconstitutional vagueness is that of Justice Sutherland in Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322: 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'

It is, of course, not surprising that the practical application of this test in concrete cases has not always resulted in unanimous opinions. Thus in Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, the Supreme Court divided six to three on the constitutionality of the New York statute involved, and in our own state, to cite a fairly recent example, our Supreme Court was far from unanimous in holding that the term 'loiter' was suficiently definite. (In re Cregler, 56 Cal.2d 308, 14 Cal.Rptr. 289, 363 P.2d 305.) As one learned writer on the subject has observed: 'There is no sharp line [242 Cal.App.2d 651] between language which is certain and language which is uncertain. What is uncertain at one time may be certain at another. What is uncertain to one justice may be certain to another. What is uncertain to one justice in the civil liberties area may be certain to the same justice in the economic sphere.' ⁵

It goes without saying that 'All presumptions and intendments favor the validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity. Statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears.' (Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 484, 171 P.2d 21, 23, 166 A.L.R. 701.) Further, 'Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.' (People v. Hallner, 43 Cal.2d 715, 720, 277 P.2d 393, 396.) Also, 'It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed...