Gould v. People

• Decision Date: 01 April 1976
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth GOULD et al., Plaintiffs and Appellants, v. PEOPLE of the State of California et al., Defendants and Respondents. Civ. 46133.

Page 743

128 Cal.Rptr. 743

56 Cal.App.3d 909

Kenneth GOULD et al., Plaintiffs and Appellants, v. PEOPLE of the State of California et al., Defendants and Respondents.

Civ. 46133.

Court of Appeal, Second District, Division 1, California.

April 1, 1976.

Burton Marks, Beverly Hills, and Alan H. Russell, Venice, for plaintiffs and appellants

John H. Larson, County Counsel, and John P. Farrell, Deputy County Counsel, Los Angeles, for defendants and respondents People of the State of California, Joseph P. Busch, Peter J. Pitchess, Alfred J. McCourtney and Joan Dempsey Klein.

Burt Pines, City Atty., and Ward G. McConnell, Chief-Appellate Div., Los Angeles, for defendants and respondents Burt Pines and Edward Davis.

THE CASE

HANSON, Associate Justice.

Plaintiffs-appellants Kenneth Gould, Lewis Kaufman and Maklo Corporation (hereinafter plaintiffs) brought an action in the form of a taxpayer's suit pursuant to Code of Civil Procedure section 526a to enjoin defendants-respondents from prosecuting certain obscenity cases brought against them under Penal Code section 311.2 and seeking to have defendants reimburse the city and county for moneys expended in prosecuting the cases.

The plaintiffs named as defendants in the complaint the People of the State of California and certain governmental officers in their official capacities, namely: Joseph P. Busch, ¹ District Attorney for the County of Los Angeles; Burt Pines, City Attorney for the City of Los Angeles; Edward Davis, Chief of Police for the City of Los Angeles; Peter J. Pitchess, Sheriff of the County of Los Angeles; Alfred J. McCourtney, ² Presiding Judge of the Superior Court of the County of Los Angeles; and Joan Dempsey Klein, ³ Presiding Judge of the Municipal Courts of the Los Angeles Judicial District.

Plaintiffs alleged that they were engaged in the business of printing written and pictorial matter and were charged with a felony, still pending in the superior court (case No. A 124 672), namely, the violation of Penal Code section 182 by conspiring to violate Penal Code section 311.2 (sale or distribution of obscene matter), ⁴ and that they were also charged with two misdemeanors under the obscenity statute in the municipal court (case Nos. 31, 432 067 and 31 432 625), and although the municipal court cases were dismissed in that court, the city attorney appealed the dismissals. Plaintiffs alleged that since on June 4, 1974, a three-judge federal court panel in the United States District Court, Central District of California, in the case of Miranda v. Hicks (1974) 388 F.Supp. 350, held the California Penal Code section 311.2 unconstitutional in violation of the First and Fourteenth Amendments to the United States Constitution, that the continued prosecution of the above referred to criminal cases constituted an illegal expenditure of public funds.

Plaintiffs in the instant action appeal from the lower court's granting of defendants' demurrer without leave to amend and dismissal of their complaint in October 1974.

ISSUES

The issues raised on appeal are (1) whether or not Penal Code section 311.2 is unconstitutional and void in that it violates the First Amendment of the United States Constitution and the equal protection clause of the Fourteenth Amendment; and (2) whether or not a taxpayer's action pursuant to Code of Civil Procedure section 526a can be maintained against the judges named as defendants.

DISCUSSION

Is Penal Code Section 311.2 (Hereinafter Section 311.2) Unconstitutional and Void in That It Violates the First Amendment of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment?

Section 311.2 enacted by the California Legislature in 1961, as amended by statutes 1968 and 1969 provides:

'(a) 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 possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor.

'(b) The provisions of this section with respect to the exhibition of, or the possession with intent to exhibit, any obscene matter shall not apply to a motion picture operator or projectionist who is employed by a person licensed by any city or county and who is acting within the scope of his employment, provided that such operator or projectionist has no financial interest in the place wherein he is so employed.'

Penal Code section 311 (hereinafter section 311) enacted in 1961, as amended in 1969 and 1970, defines 'obscene matter,' referred to in section 311.2, as 'matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to 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 presentation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.' ⁵

BACKGROUND

We trace the tortured odyssey of the California obscenity statute (§ 311, et seq.) through the California and federal court systems as it was buffeted by and withstood constitutional attack. The following key cases pertinent to the case at bench and their holdings are listed chronologically:

In June 1973 the United States Supreme Court handed down its opinion in Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (hereinafter Miller I). The case was one of a group of 'obscenitypornography' cases reviewed by the Court in its reexamination of cases involving what it referred to as 'the intractable obsenity problem.' Defendant Miller had been convicted of violation of section 311.2 after a jury trial in Orange County, California. The conviction was affirmed by the Appellate Department of the Superior Court. The defendant's conduct consisted of mailing unsolicited brochures advertising four books entitled 'Intercourse,' 'Man-Woman,' 'Sex Orgies Illustrated,' and 'An Illustrated History of Pornography,' and a film entitled 'Marital Intercourse.' While the brochures contained some descriptive printed material, primarily The High Court recognized that the States have a legitimate interest in prohibiting the dissemination or exhibition of obscene materials and set about to define the standards which must be used to identify obscene material without infringing on First Amendment rights. The Court said 413 U.S. at page 24, 93 S.Ct. at page 2615: '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, Kois v. Wisconsin, supra, 408 U.S. at 230, 92 S.Ct. (2245), at 2246, (33 L.Ed. 312), quoting Roth v. United States, supra, 354 U.S. at 489, 77 S.Ct. (1304), at 1311, (1 L.Ed.2d 1498); (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. . . ..' (Original italics.)

they consisted of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

The Miller I Court set forth 413 U.S. at page 25, 93 S.Ct. at page 2615 a few plain examples of what a state court could define for regulation under part (b) of the above standard as:

'(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

'(b) Patently offensive representations or descriptions of masturbations, excretary functions and lewd exhibition of the genitals.'

The Court capsulized its holding at pages 36--37, 93 S.Ct. at page 2622 by stating: 'In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above without a showing that the material is 'utterly without redeeming social value'; and (c) hold that obscenity is to be determined by applying 'contemporary community standards' . . ..' (Original italics.) The Court emphasized that it was not its function to impose regulatory schemes for the States as that was the legislative function of each State. It held that in order for an obscenity statute to have constitutional validity, the proscribed matter must be specifically defined by applicable state law, as written or authoritatively construed, and remanded the case back to the Orange County court from which it emanated for further proceedings not inconsistent with the First Amendment standards it established by the opinion.

In August 1973 the California Court of Appeal rendered its decision in People v. Enskat (1973) 33 Cal.App.3d 900, 109 Cal.Rptr. 433. Enskat was convicted by a municipal court jury of exhibiting an obscene motion picture entitled, 'The Collection,' in violation of section 311.2. On certification by the Appellate Department of the Superior Court, the Court of Appeal affirmed the judgment of conviction. The court, after a careful adnalysis of Miller I, concluded that Miller I eased the prosecutorial burden of proving obscenity and did not hold the California obscenity statute unconstitutional because it imposed a stricter standard, and that there was no constitutional reason why the statute as written could not be applied as construed by the California cases as prohibiting any 'hard core' pornography.

Enskat's petition for a hearing by the California Supreme Court was denied in October 1973 and certiorari was...