Kimbler, In re

• Decision Date: 26 December 1979
• Citation: 161 Cal.Rptr. 53,100 Cal.App.3d 453
• Court: California Court of Appeals Court of Appeals
• Parties: In re Harry Presley KIMBLER, on Habeas Corpus. Harry Presley KIMBLER, Petitioner, v. MUNICIPAL COURT OF the LOS CERRITOS JUDICIAL DISTRICT, State of California, Respondent; The PEOPLE of the State of California, Real Party in Interest. Civ. 56911.

Page 53

161 Cal.Rptr. 53

100 Cal.App.3d 453

In re Harry Presley KIMBLER, on Habeas Corpus.

Harry Presley KIMBLER, Petitioner, v. MUNICIPAL COURT OF the LOS CERRITOS JUDICIAL DISTRICT, State of California, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

Civ. 56911.

Court of Appeal, Second District, Division 3, California.

Dec. 26, 1979.

Hearing Denied Feb. 20, 1980.

Brown, Weston & Sarno, David M. Brown and G. Randall Garrou, Beverly Hills, for petitioner.

No appearance by respondent.

John K. Van de Kamp, Dist. Atty. of Los Angeles County, Donald J. Kaplan, Dirk L. Hudson and George M. Palmer, Deputy Dist. Attys., for real party in interest.

POTTER, Acting Presiding Justice.

This petition for a writ of habeas corpus involves the constitutionality of the provisions exempting nonmanagerial employees without financial interest in their place of employment from criminal liability for exhibition of obscene matter (Pen. Code, § 311.2, subds. (c) and (d).) ¹ Petitioner contends that section 311.2, as applied, impermissibly discriminates against other nonmanagerial employees, such as bookstore clerks with no financial interest in the bookstore, who distribute such obscene matter, thereby denying them equal protection of the law. We disagree.

Section 311.2 provides in pertinent part:

"(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.

". . ..

"(c) 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.

"(d) Except as otherwise provided in subdivision (c), the provisions of subdivision (a) . . . with respect to the exhibition of, or the possession with intent to exhibit, any obscene matter shall not apply to any person 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 employed person has no financial interest in the place wherein he is so employed and has no control, directly or indirectly, over the exhibition of the obscene matter."

Petitioner, a clerk in an "adult" bookstore, sold an obscene film ² to an undercover police officer after answering the customer's questions concerning the content of the film. The municipal court judge rejected petitioner's alternative claims that: (1) subdivision (d) relieved bookstore clerks, such as himself, from criminal responsibility, or (2) if it did not, it denied him equal protection of the law. ³

Petitioner was convicted of the misdemeanor offense of selling an obscene film in violation of section 311.2, subdivision (a). Imposition of sentence was suspended and defendant was fined $630 and placed on summary probation for three years. Petitioner appealed, claiming that section 311.2 was unconstitutional as applied to him. The Appellate Department of the Los Angeles Superior Court affirmed his conviction, citing People v. Kuhns (1976) 61 Cal.App.3d 735, 132 Cal.Rptr. 725. Following our denial of petitioner's writ of habeas corpus, our Supreme Court issued an order to show cause, returnable before this court, why the relief prayed for should not be granted.

Discussion

In considering the contention that the limited scope of the exemption provisions of section 311.2 denies bookstore clerks, such as petitioner, equal protection of the law, ⁴ we must first determine the proper standard for reviewing the legislative classification.

"A requirement of strict judicial scrutiny is imposed when state action creates a 'suspect classification' or impinges on the exercise of a fundamental right, and the state must justify its action by showing the classification is necessary to further a compelling state interest. In other cases the traditional test is applicable, requiring only that the state show a rational relationship between the classification and some conceivable legitimate state purpose." (Adams v. Superior Court (1974) 12 Cal.3d 55, 60-61, 115 Cal.Rptr. 247, 251, 524 P.2d 375, 379.)

The appropriate standard here is the rational basis test since the statute creating both the liability and the exemptions relates only to obscene matter. While the courts of sister states have disagreed over the constitutionality of somewhat similar exemptions in their obscenity statutes, they have uniformly applied the rational basis test. (See e.g., State v. Johnson (La.1977) 343 So.2d 705, 708; Wheeler v. State (1977)281 Md. 593, 380 A.2d 1052, 1058; Com. v. Bono (Mass.App.1979) 384 N.E.2d 1260, 1262; People v. Illardo (1978) 97 Misc.2d 294, 411 N.Y.S.2d 142, 145; People v. Victoria (1978) 96 Misc.2d 926, 409 N.Y.S.2d 937, 938; State v. Burgun (1976) 49 Ohio App.2d 112, 359 N.E.2d 1018, 1019, 1026-1027; State v. J-R Distributors, Inc. (1973) 82 Wash.2d 584, 512 P.2d 1049, 1061; cf. People v. Milano (1979) 89 Cal.App.3d 153, 166, 152 Cal.Rptr. 318 (rational basis standard for exemption for news media from prosecution for disseminating gambling information).)

As was explained in Wheeler v. State, supra, 380 A.2d at page 1058, upon which petitioner relies, this kind of statute "involves neither a suspect class nor a fundamental right. Uncertain as other matters with regard to obscenity may be, the Supreme Court has categorically settled that obscene material is unprotected by the First Amendment. (Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419, Reh. denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). Thus, the reasonable basis test is applicable."

Under the rational basis standard:

"The Legislature is presumed to have acted constitutionally, and statutory classifications may be set aside only if no ground can be conceived to justify them, and they are wholly irrelevant to the achievement of the state's objective. (McDonald v. Board of Election (1969) 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (745-746) ; McGowan v. Maryland (1961) 366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (, 398-399).)" (Adams v. Superior Court, supra, 12 Cal.3d at p. 62, 115 Cal.Rptr. at p. 252, 524 P.2d at p. 380.)

"A legislative classification may satisfy the traditional equal protection test without being the most precise possible means of accomplishing its legislative propose. Only a reasonable relationship to that purpose is required." (Weber v. City Council (1973) 9 Cal.3d 950, 965, 109 Cal.Rptr. 553, 562, 513 P.2d 601, 610.)

Furthermore, "the burden of demonstrating the invalidity of a classification under this standard rests squarely upon The party who assails it." (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 17, 112 Cal.Rptr. 786, 798, 520 P.2d 10, 22.) (Emphasis in original.)

As the California Supreme Court explained in Estate of Horman (1971) 5 Cal.3d 62, 75, 95 Cal.Rptr. 433, 442, 485 P.2d 785, 794:

"There is no constitutional requirement of uniform treatment. . . . 'Wide discretion is vested in the Legislature in making the classification and every presumption is in favor of the validity of the statute; the decision of the Legislature as to what is a sufficient distinction to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary . . . . (Citations.) A distinction in legislation is not arbitrary if any set of facts reasonably can be conceived that would sustain it.' "

Similarly, the United States Supreme Court in Ohio Bureau of Employment Services v. Hodory (1977) 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513, recently reiterated the standard for examining a state classification under the rational basis test:

" 'This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Dandridge v. Williams, (397 U.S. 471,) 485 (,90 S.Ct. 1153, at 1162, 25 L.Ed.2d 491) ((1970)). Such action by a legislature is presumed to be valid.' (Massachusetts Board of Retirement v. Murgia, 427 U.S. 307) Id., at 314, 96 S.Ct. 2562, at 2567, 49 L.Ed.2d 520.)" (431 U.S. at p. 489, 97 S.Ct. at p. 1909.)

" 'If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality. " Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (, 31 S.Ct. 337, 55 L.Ed. 369.)' Dandridge v. Williams, 397 U.S. at 485 (, 90 S.Ct. 1153, at 1161.)" (431 U.S. at p. 491, 97 S.Ct. at p. 1909.)

Consistent with the application of this standard, California appellate courts have recognized the validity of the exemption classification in section 311.2 People v. Kuhns (1976) 61 Cal.App.3d 735, 760, 132 Cal.Rptr. 725, 739-740, upheld the validity of the distinction between exhibition and distribution against an equal protection challenged by a bookstore clerk, stating it was "a proper exercise of the Legislature's right to classify regulatory statutes." Moreover, prior to the passage of the provision exempting all nonmanagerial employees without financial interest who exhibit obscene matter (now § 311.2, subd. (d)), the appellate courts in People v. Haskin (1976) 55 Cal.App.3d 231, 240-241, 127 Cal.Rptr. 426, and Gould v. People (1976) 56 Cal.App.3d 909, 919-920, 128 Cal.Rptr. 743, upheld the validity of the motion picture projectionist's...