Miranda v. Hicks

• Citation: 388 F. Supp. 350
• Decision Date: 30 September 1974
• Docket Number: Civ. No. 73-2775-F.
• Court: U.S. District Court — Central District of California
• Parties: Vincent MIRANDA, doing business as Walnut Properties, and Pussycat Theatre Hollywood, a California corporation, Plaintiffs, v. Cecil HICKS, District Attorney of the County of Orange, State of California, et al., Defendants.

388 F. Supp. 350

Vincent MIRANDA, doing business as Walnut Properties, and Pussycat Theatre Hollywood, a California corporation, Plaintiffs, v. Cecil HICKS, District Attorney of the County of Orange, State of California, et al., Defendants.

Civ. No. 73-2775-F.

United States District Court, C. D. California.

June 4, 1974.

Supplemental Memorandum Opinion September 30, 1974.

COPYRIGHT MATERIAL OMITTED

Fleishman, McDaniel, Brown & Weston by David M. Brown, Hollywood, Cal., for plaintiff.

Cecil Hicks, Dist. Atty., County of Orange, State of California, Michael R. Capizzi, Asst. Dist. Atty., Oretta D. Sears, by John D. Conley, Deputy Dist. Attys., Santa Ana, Cal., Cecil Hicks, Jr., Oretta Sears, Santa Ana, Cal., Kinkle, Rodiger, Graf, Dewberry & Spriggs by Robert P. Long and Holden & Bevins, Anaheim, Cal., by Ronald H. Bevins, City Atty., Buena Park, Cal., for defendants Dudley D. Gourley, Arthur Fontecchio, Richard Hafdahl and Daniel Harrison.

Before ELY, Circuit Judge, and EAST, and FERGUSON, District Judges.

MEMORANDUM OPINION

PER CURIAM.

The primary issue presented is whether the California obscenity statute as interpreted by the state courts of California meets the constitutional standards mandated by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). We hold that it does not.

The facts which give rise to the litigation are as follows:

1. On November 20, 1973, anticipating that the movie "Deep Throat" would be exhibited in the City of Buena Park, in Orange County, California, three members of the Buena Park Police Department traveled to nearby Los Angeles County and there viewed the film in its entirety.

2. On November 21, 1973, an affidavit and warrant were prepared describing the film, and arrangements made for a judge of a Municipal Court to view the film if it was brought to Buena Park.

3. At 12:30 p. m. on November 23, 1973, the officers, a deputy district attorney and the judge attended a showing of the film at plaintiff's theatre in Buena Park.

4. After viewing about 45 minutes of the film, they retired to the sidewalk in front of the theatre, where the judge was presented with the previously prepared documents.

5. A photographer hired by the theatre began photographing the judge and the officers while they reviewed the papers. One of the officers, acting on orders from the judge, stopped the photographer from taking any more pictures and seized the film in his camera.

6. The search warrant was issued, and the officers seized the movie and posters advertising it. In describing the property to be seized, the warrant also contained the following handwritten addition:

"Money contained in the ticket booth & specifically for a $20.00 bill Ser. # B08574869B."

All the cash in the box office was seized, an amount shown to be $305.00.

7. That afternoon the theatre obtained another copy of the film for exhibition. At 3:00 p. m., the same police officers again viewed the film, and left to get another warrant. The affidavit accompanying the second warrant was an identical copy of the first, but also contains the following handwritten notation:

"Your affiant further states that said film was seized on Nov. 23, 1973 at approx. 1:30 p. m. after being viewed by Judge _____ with the exception of certain portions being edited different than the first film seized.

Your affiant states that this copy of the film `Deep Throat' consists of (1) one additional act of sexual intercourse and numerous small changes at different portions of the film."

8. The same Municipal Court judge signed the second warrant without seeing the film again, and the officers returned to the theatre at 4:30 p. m. Another copy of "Deep Throat" was seized, along with some advertising posters.

9. The typed second warrant was also an identical copy of the first, but contained the following handwritten addition in describing the property to be seized: "Money contained in the ticket booth cash drawer." $159.00 in cash was seized from the box office.

10. The theatre obtained yet another copy of "Deep Throat." At 7:45 p. m. the same day, the same officers again returned to the theatre and viewed the film in its entirety. They then contacted the judge, who signed another search warrant at 9:00 p. m. The affidavit in support of the warrant was identical to the first and second, but contained the following handwritten notation:

"Your affiant states that said film was seized on Nov. 23, 1973 at approx. 1:30 p. m. and 4:35 p. m. after being viewed by the Honorable Judge ____ ____ who issued a search warrant.

Your affiant states that the film in question is the same film viewed by Judge ____ with the exception of certain portions of the film being edited differently than the film viewed by the Honorable Judge ____ ____.

Your affiant states that this copy of the film `Deep Throat' consists of (1) one additional act of sexual intercourse not shown in the copy viewed by Judge ____ and numerous small changes at different portions of the film."

11. The judge decided he wished to view the film again, and returned with the officers to the theatre at 9:15 p. m. He ordered the officers to execute the warrant, and a third copy of the film was seized.

12. The third warrant was identical to the first and second warrants, but also contained this handwritten notation, describing the property to be seized: "All monies on premises received, in cash drawers or safes at above location." The officers brought a locksmith to the theatre, who opened the business' safe. Money from the cash drawer and the safe totaling $4,082.33 was seized.

13. At 2:30 p. m. the following day, the same officers turned over all the seized items to the judge at his home, and advised him that they believed the movie was going to be shown again.

14. The officers went to the theatre and viewed the film. They returned to the judge's home with another of the identical affidavits, with the same handwritten notation. At 4:00 p. m. the judge signed a search warrant identical to the first three from the day before, with an additional handwritten entry describing the property to be seized: "All monies received, in cash drawers or safes."

15. The warrant was served, and another copy of "Deep Throat", some promotional posters and $197.18 in cash were seized.

16. The theatre ceased exhibition of the movie, closed until November 26, 1974, and thereafter began showing another film.

Plaintiffs in this action are the theatre owner, his property-holding company, and the theatre corporation itself. No criminal complaints are pending against any of them.

Defendants are the District Attorney of the County of Orange, a deputy district attorney, the Chief of Police of the City of Buena Park, and three officers of the Buena Park Police Department.

Plaintiffs filed this lawsuit, basing jurisdiction on 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983. In their complaint they seek the return of the motion picture prints seized by defendants, as well as their cash proceeds. In addition, plaintiffs also seek a declaratory judgment under 28 U.S.C. §§ 2201 and 2202 that California Penal Code §§ 311, 311.2 and 311.5¹ are unconstitutional.

Plaintiffs here have no prosecutions pending against them, and have made no allegations that any are threatened. However, it is clear that they do present a real and actual controversy, and do have standing to challenge the constitutionality of the California obscenity statute, since defendants have seized and continue to hold property of the plaintiffs, property which was seized solely because of alleged violations of the California obscenity statute. The Supreme Court has expressly held that a federal court's jurisdiction under 28 U. S.C. § 1343(3) and 42 U.S.C. § 1983 is not diminished by any distinction between personal and property rights. See Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).

The Obscenity Statute Abstention

The validity of the California obscenity statute (California Penal Code § 311, et seq.) was not determined by the Supreme Court in Miller v. California, supra. The Court, in determining a definition of obscenity which falls outside the protection of the First Amendment, permitted judicial construction of obscenity statutes so that even though the statute on its face violated Miller, it may fall within Miller by judicial construction. Obviously in Miller the Supreme Court did not have the benefit of such construction.

However, since Miller, the California courts have authoritatively construed the California statute with regard to Miller.

In People v. Enskat, 33 Cal.App.3d 900, 109 Cal.Rptr. 433 (1973), hearing denied by the California Supreme Court October 24, 1973, the California Court of Appeal determined that the California statute meets the test of Miller.

The defendants assert that Enskat is now the law in California. Auto Equity Sales Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937 (1962) makes it clear in California that the decision rendered by the California Court of Appeal, Second District, Division Five in Enskat is ". . . binding upon all the justice and municipal courts and upon all the superior courts of this state", id. at 455, 20 Cal. Rptr. at 324, 369 P.2d at 940. Likewise, although a denial of hearing by the California Supreme Court ". . . is not to be regarded as expressing approval of the propositions of law set forth in the opinion of the District Court of Appeal or as having the same authoritative effect as an earlier decision of the California Supreme Court, citations, it does not follow that such a denial is without significance to that Court's views," Di Genova v. State Board of Education, 57 Cal.2d 167, 178, 18 Cal.Rptr. 369, 375, 367 P.2d 865, 871 (1962). A denial of hearing ". . . stands, therefore, as a decision of a court of last resort in this state, until and unless disapproved by the California Supreme Court...