Harris, In re

• Decision Date: 22 November 1961
• Docket Number: Cr. 6962
• Citation: 366 P.2d 305,16 Cal.Rptr. 889,56 Cal.2d 879
• Court: California Supreme Court
• Parties: , 366 P.2d 305 In re Albert J. HARRIS on Habeas Corpus.

Page 889

16 Cal.Rptr. 889

56 Cal.2d 879, 366 P.2d 305

In re Albert J. HARRIS on Habeas Corpus.

Cr. 6962.

Supreme Court of California, In Bank.

Nov. 22, 1961.

Hugh R. Manes, Brock & Fleishman and Stanley Fleishman, Hollywood, for petitioner.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., and Wm. E. Doran, Deputy City Atty., Los Angeles, for respondent.

McCOMB, Justice.

Petition for a writ of habeas corpus.

Petitioner's salesman was arrested, without a warrant, for selling obscene books in violation of section 311, subdivision 3, of the Penal Code.

Incident to the arrest, virtually all the 'books, magazines, writings, publications and papers' in petitioner's bookstore were seized. Petitioner was thereafter charged in two counts with selling two specific books in violation of section 311, subdivision 3, of the Penal Code.

At his trial all the material which had been seized was introduced into evidence for the purpose of showing 'intent or notice.'

Petitioner offered evidence that the books sold were not, according to contemporary community standards, obscene. The evidence consisted of expert testimony, comparable writings and pictures adjudged in Los Angeles County to be not obscene, and comparable writings and publications purchased in the community. All the offered evidence was excluded by the trial court. Petitioner contended before the trial court, and contends here, that he was thus denied due process of law.

This is the sole question necessary for us to determine: Was it a denial of due process for the trial court not to allow defendant to prove contemporary community standards?

Yes. The standard for judging obscenity adequate to withstand the charge of constitutional infirmity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. (Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Aday v. Superior Court, 55 Cal.2d 789, 797(5), 13 Cal.Rptr. 415, 362 [366 P.2d 306] P.2d 47; cf. Smith v. People of State of California, 361 U.S. 147, 165, 80 S.Ct. 215, 4 L.Ed.2d 205; Grove Press, Inc. v. Christenberry, D.C., 175 F.Supp. 488, 502; Lockhart and McClure, Censorship of Obscenity, 45 Minn.L.Rev. 5, 98; Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 348.)

Under the foregoing rule, the trial court's ruling denied petitioner due process of law.

In view of our conclusions, it is unnecessary to discuss other arguments made by counsel.

Petitioner is ordered discharged from custody.

GIBSON, C. J., and TRAYNOR, SCHAUER, PETERS, WHITE and DOOLING, JJ., concur.

TRAYNOR, Justice (concurring).

I concur, but deem it appropriate to consider an additional ground on which petitioner attacks the judgment against him.

Incident to the arrest of his codefendant, a salesman in petitioner's bookstore, between 75 and 90 percent of all the books, magazines, writings, publications, and papers in the bookstore were seized by the police. All of this material was introduced in evidence at petitioner's trial to prove 'intent or notice' with respect to the two books on which the charges of violating subdivision 3 of Penal Code, section 311 were based.

Petitioner contends that this evidence was seized in violation of the First and Fourth Amendments to the Constitution of the United States as made applicable to the states through the Due Process Clause of the Fourteenth Amendment and that under the recent decision of the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the trial court was constitutionally compelled to exclude this evidence at his trial. He concludes that since its use against him constituted a denial of due process, he may collaterally attack the judgment on habeas corpus. This question is squarely presented in this case, and if the constitutionality of the seizure may properly be considered on habeas corpus, it should be determined now for the guidance of the trial court in the event petitioner is retried. (See, In re Newbern, 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116; In re Dal Porte, 198 Cal. 216, 220, 244 P. 355; cf., Code Civ.Proc. § 53.)

When this court adopted the exclusionary rule we pointed out that 'It bears emphasis that in the absence of a holding by the United States Supreme Court that the due process clause requires exclusion of unconstitutionally obtained evidence, whatever rule we adopt, whether it excludes or admits the evidence, will be a judicially declared rule of evidence.' (People v. Cahan, 44 Cal.2d 434, 442, 282 P.2d 905, 910, 50 A.L.R.2d 513.) Moreover, as we then analyzed the relevant decisions of the United States Supreme Court, we concluded that Mr. Justice Black was correct in stating that 'the federal exclusionary rule is not a command of the Fourth Amendment but is a judicially created rule of evidence which Congress might negate.' (Concurring opinion in Wolf v. People of State of Colorado, 338 U.S. 25, 39-40, 69 S.Ct. 1359, 1367, 93 L.Ed. 1782; see People v. Cahan, supra, 44 Cal.2d 434, 439-440, 282 P.2d 905, 50 A.L.R.2d 513.) In Mapp v. Ohio, supra, 81 S.Ct. 1684, however, the United States Supreme Court overruled the Wolf case and held 'that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.' (81 S.Ct. at p. 1691.) It also pointed out that the federal exclusionary rule had been constitutionally compelled since its inception in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. (81 S.Ct. at pp. 1687-1688.) Thus, neither we, in reviewing state court convictions, nor the federal courts, in reviewing federal convictions, may refuse to entertain a collateral attack on a conviction secured by the use of unconstitutionally obtained evidence on the ground that such use constitutes no more than the violation of a rule of evidence. (See, In re Leyva, 136 Cal.App.2d 750, 289 P.2d 271.) On the other hand, the United States Supreme Court has not held that because such use in itself violates the Constitution, it may be reached on collateral attack, and in the Mapp case it pointed out that 'As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.' (Fn. 9, 81 S.Ct. at p. 1693.) Thus, we must look further to determine whether petitioner may challenge the constitutionality of the use of the evidence seized from his bookstore on habeas corpus.

In In re Dixon, 41 Cal.2d 756, 264 P.2d 513, we held that alleged denials of even constitutional rights in the admission of evidence could not be reached on habeas corpus when the issue had been presented to the trial court on conflicting evidence and no appeal had been taken or adequate excuse offered for failing to appeal. We stated: 'We must consider whether, regardless of the lack of a satisfactory excuse for the failure to appeal, we may properly pass upon petitioner's claims relating to forced confession and unlawful search and seizure. Petitioner argues that a failure to appeal will not prevent a resort to habeas corpus when, as here, fundamental constitutional rights are involved. His contentions, however, depend entirely on his version of what occurred, and, as we shall see, there was ample evidence from which the trial court could have found that there was no violation of his rights. It is, of course, an established rule that habeas corpus may not be used instead of an appeal to review determinations of fact made upon conflicting evidence after a fair trial. (Citations.) Likewise, the writ is not available to correct errors or irregularities relating to ascertainment of the facts when such errors could and should have been raised by appeal. (Citations.) The same principles should apply even though the alleged errors involving factual issues relate to an asserted denial of constitutional rights. (Citation.) It would obviously be improper to permit a collateral attack because of claimed errors in the determination of the facts after expiration of the time for appeal when evidence may have disappeared and witnesses may have become unavailable.' (41 Cal.2d at pp. 760-761, 264 P.2d at p. 515.)

In the present case, however, petitioner has exhausted his remedy by appeal (See, People v. Harris, 192 A.C.A. (Supp.) 103, 13 Cal.Rptr. 642), and he contends that the record establishes as a matter of law that the seizure of evidence from his bookstore was unconstitutional. ¹ Under these circumstances he asserts that the Dixon case itself indicates that habeas corpus is available, and he points out that under similar circumstances, habeas corpus would be available in a United States district court to challenge a state's use of an involuntary confession. (Rogers v. Richmond, 365 U.S 534, 81 S.Ct. 735, 5 L.Ed.2d 760; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948.)

If the violation of a petitioner's constitutional rights by the use of illegally seized evidence had any bearing on the issue of his guilt, there should be no doubt that habeas corpus would be available. Unlike the denial of the right to counsel, the knowing use of perjured testimony or suppression of evidence, the use of an involuntary confession, or as in this case, the denial of an opportunity to present a defense, the use of illegally seized evidence carries with it no risk of convicting an innocent person. The purpose of the exclusionary rule is not to prevent the conviction of the innocent, but to deter unconstitutional methods of law enforcement. (Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669; Walder v. United States, 347 U.S. 62, 64-65, 74 S.Ct. 354, 98 L.Ed. 503; Mapp v. Ohio, supra, 81 S.Ct. 1684, 1688; People v. Cahan, supra, 44 Cal.2d 434, 443, 445, 282 P.2d...