Monica Theater v. Municipal Court

• Decision Date: 23 June 1970
• Citation: 9 Cal.App.3d 1,88 Cal.Rptr. 71
• Court: California Court of Appeals Court of Appeals
• Parties: MONICA THEATER et al., Plaintiffs and Appellants. v. The MUNICIPAL COURT FOR the BEVERLY HILLS JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant; The PEOPLE, Real Party in Interest and Respondent. Civ. 33606.

Page 71

88 Cal.Rptr. 71

9 Cal.App.3d 1

MONICA THEATER et al., Plaintiffs and Appellants. v. The MUNICIPAL COURT FOR the BEVERLY HILLS JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant The PEOPLE, Real Party in Interest and Respondent.

Civ. 33606.

Court of Appeal, Second District, Division 5, California.

June 23, 1970.

As Modified on Denial of Rehearing July 8, 1970.

Hearing Denied Sept. 11, 1970.

[9 Cal.App.3d 4] Stanley Fleishman, Los Angeles, for plaintiffs and appellants.

Evelle J. Younger, Dist. Atty. of Los Angeles County, Harry Wood, Head, Appellate Division, and Robert Lederman, Deputy Dist. Atty., for real party in interest and respondent.

REPPY, Associate Justice.

At the outset we point out that this opinion deals strictly with a misdemeanor violation (Pen.Code, § 311.2--exhibiting obscene material) and with a judicial inquiry into grounds supportive of a warrant under which an allegedly obscene motion picture film was seized. A pretrial on-the-merits determination as to whether the subject material is or is not legally obscene is not involved.

On November 13, 1967, after a citizen had made a complaint to the police concerning allegedly obscene photographs in an exterior showcase advertising the film, 'Motel Confidential', being shown at the Monica Theater in West Hollywood, Officer Serio examined the photographs and a poster (hereinafter referred to collectively as the photographs) and viewed a performance of the film. Shortly thereafter Deputy District Attorney Hecht saw a showing of the picture. Over the next few days Officer Serio, with the assistance of Deputy District Attorney Hecht, prepared and executed an affidavit for a search and seizure warrant. On November 22, 1967, the affidavit was submitted to a judge of the municipal court in his capacity as a magistrate. The affidavit gave information concerning Officer Serio's experience as a vice officer, indicated his familiarity with the wording of Penal Code, section 311 and with decisions of the United States and California ¹ Supreme Courts on the subject The magistrate chose not to view the film. On the same day it was presented, upon scrutinizing the affidavit, the magistrate issued the seizure warrant. Officer Serio then went to the theater, seized the photographs and one copy of the film, arrested Seltzer, and served on him the notice to appear, thus instituting a criminal action (M--19271) in which Seltzer was the defendant. ²

of obscenity, gave a word depiction of the various episodes of the film in considerable detail, both [9 Cal.App.3d 5] as to sight and sound, expressed the opinion of Officer Serio that the film was obscene, advised that Deputy District Attorney Hecht concurred in this opinion, and made known to the magistrate that the opportunity existed for him to view the film (presumably by attending a showing of the picture at the theater which had one or two more nights to run). It was also indicated that a notice to appear was going to be issued which would be served upon Frank N. Seltzer, the president of Monica Theater, a corporation which operated the theater and exhibited the shows, at the time the film would be seized and he would be arrested for violation of section 311.2 of the Penal Code (knowingly exhibiting or having in possession with intent to exhibit, any obscene matter--a misdemeanor), in ordr to bring him before the municipal court at a set date and time.

Seltzer then filed in the criminal proceedings a document which he denominated 'Traverse of Grounds of Issuance of Search Warrant and Motion to Suppress Evidence and for the Restoration of Properties Seized Under Search Warrant,' supported by a declaration made by Stanley Fleishman, Seltzer's attorney, in which he specified a number of motion pictures, a magazine, a drawing and other material alleged by authorities to have been obscene but found not to have been obscene in court decisions and expressed his opinion that 'Motel Confidential' was not obscene but was protected free speech, and also supported by a declaration of Seltzer in which he identified himself as the party served with the notice to appear, stated that he controverted the grounds on which the warrant was issued, and made known his belief that the film and photographs were not obscene but were protected free speech.

Commencing on December 5, 1967, a 'probable cause' hearing was conducted by the magistrate issuing the warrant. As It, the Serio affidavit and the Fleishman and Seltzer declarations were received in evidence, Officer Serio and Deputy District Attorney Hecht were cross-examined, and the film 'Motel Confidential' and the photographs together with copies of various other magazines, photographs and portrayals, were received in evidence. The magistrate viewed the film 'Motel Confidential' and various comparison films, made available by Seltzer, several of which had been adjudged not obscene in court proceedings Although defendant's attorney asked the court to view the comparison films, and the court did so, he never offered them ³ and the court never received them as evidence.

but one of which, unadjudicated, was suggested by Seltzer to be obscene.

At the probable cause hearing, Seltzer contended: (1) that the warrant was invalidly issued because the magistrate had not conducted an adversary proceeding concerning its alleged obscenity, or had not, at least, viewed the film before issuing the warrant; (2) that the issuance of the search warrant was invalid in that the affidavit seeking it, on its face, was insufficient, in that the word depiction of the film was too cursory and the affidavit, in substance, became only the conclusional opinion of Officer Serio, and in that the officer had failed to establish his expertise in the field and had failed to evaluate the film under contemporary standards and customary limits of candor; (3) that the cross-examination of Officer Serio and the presentation of the film and the comparison film had demonstrated that Officer Serio had not accurately depicted the film in his affidavit and had been wrong in his opinion as to its obscenity, and that, rather, the film 'Motel Confidential' was of such a make-up that it did not provide probable cause for the issuance of the warrant. The magistrate found against Seltzer as to each of his contentions and held the warrant had been issued properly.

The date for the arraignment of Seltzer was set so that he could, and he did on January 4, 1968, file in the superior court a petition for writ of mandate. ⁴ The petition called attention to the circumstance that the magistrate had not viewed the film or the photographs or conducted a prior adversary proceeding concerning their alleged obscenity before issuing the warrant, and by attachment and reference it incorporated copies of Officer Serio's supporting affidavit, Fleishman's and Seltzer's opposing declaration and the reporter's transcript of the hearing before the magistrate. It alleged that the film and the photographs were not obscene but were protected free speech and that the issuance of the warrant solely in reliance upon the affidavit of Officer Serio and the refusal of the magistrate to order the suppression and restoration of the film and photographs after the hearing were (1) prior restraints upon freedom of speech in violation of the constitutional provisions relating to that subject matter, (2) denials of due process, and (3) contrary to the seizure provisions of the constitutions.

The superior court issued an alternative writ, and the petition was heard. On March 19, 1968, the superior court made its findings of fact, conclusions of law and judgment. The court found that the chronology of events was as above outlined, that Serio's affidavit contained a detailed summary of the contents of the film which the magistrate relied upon in issuing the warrant, that at the hearing the magistrate viewed the film, the photographs and the comparison films, that the film and photographs were probably obscene, and that the issuance of the warrant and the denial of suppression and restoration of the materials did not constitute either a prior restraint on communications, a denial of due process, or a violation of constitutional seizure provisions. The trial court noted that it had read the Serio affidavit and the entire transcript of the hearing before the magistrate. It then concluded that the Serio affidavit was sufficient to establish probable cause to believe that the film and the photographs were obscene material, that they were properly seized, that the magistrate was correct in his ruling that Seltzer was not entitled to restoration of the items, and that the alternative writ Seltzer then appealed from this judgment of the superior court.

should be discharged and the peremptory writ denied. It issued its judgment accordingly.

CONTENTIONS ON APPEAL

The contentions on appeal are as follows:

1. The issuance of the warrant for and the seizure of the motion picture film and the photographs without a prewarrant adversary proceeding or ex parte view of the material violated the free speech, due process, and seizure provisions of the Constitutions of the United States and California.

2. The issuance of the warrant and the seizure of the film and photographs, solely in reliance upon the affidavit of Officer Serio, which was allegedly conclusional and formulated under unconstitutional standards, was violative of all of said constitutional provisions.

3. The failure of the People, at the probable cause hearing before the magistrate, to adduce any evidence that the film goes behond customary limits of candor in the description of sex matters, appeals to the prurient interests of the average person, and is utterly without redeeming social importance, renders the continued holding of the film violative of said constitutional provisions. ⁵

4. The trial court erred in the mandate proceedings in failing to make findings on the points covered...