People v. Aday

• Citation: 226 Cal.App.2d 520,38 Cal.Rptr. 199
• Decision Date: 21 April 1964
• Docket Number: Cr. 4101
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Sanford E. ADAY et al., Defendants and Respondents.

Page 199

38 Cal.Rptr. 199

226 Cal.App.2d 520

PEOPLE of the State of California, Plaintiff and Appellant, v. Sanford E. ADAY et al., Defendants and Respondents.

Cr. 4101.

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

April 21, 1964.

Rehearing Denied May 15, 1964.

Hearing Denied June 16, 1964.

Stanley Mosk, Atty. Gen., of the State of California, Albert W. Harris, Jr., Edward P. O'Brien, Deputy Attys. Gen., San Francisco, for appellant.

Herman W. Mintz, James Giller and David A. Himmelman, Oakland, for Louis Swift.

Stanley Fleishman, Hollywood, for respondents Sanford E. Aday, Wallace deOrtega Maxey and Jack A. Lindsay.

MOLINARI, Justice.

The People appeal from an order setting aside an indictment against defendant ¹ under section 995 of the Penal Code. The sole question presented is whether the trial court erred in dismissing the indictment on the ground that defendants were indicted without reasonable or probable cause. We are thus called upon to determine whether the evidence received by the grand jury was sufficient to establish reasonable cause to warrant the return of the indictment. Before doing so, however, it is necessary that we review the procedural background of the case insofar as it is relevant to our determination of the question before us.

An indictment was returned by the grand jury charging these defendants with a felony (violation of § 182, subd. 1, of the Pen.Code), ² to wit, conspiracy to violate subdivision 3 of [226 Cal.App.2d 525] section 311 of the Penal Code ³ in that said defendants 'did willfully, feloniously and knowingly conspire, combine, confederate and agree together, and with each other and with other persons wilfully and lewdly to write, compose, stereotype, print, publish, sell, distribute, keep for sale and exhibit obscene and indecent writings, papers and books, to wit, 'Sex Life of a Cop,' also known as '10:04 Sgt. Thorne,' 'Joy Killer' and 'Decisive Years." The indictment charged 11 overt acts. ⁴ In the proceedings before the grand jury a total of 143 exhibits were presented in evidence. In addition to two copies of 'Sex Life of a Cop,' copies of 'Decisive Years' and 'Joy Killer,' including a manuscript and negatives of the latter, the exhibits consisted of a variety of papers and records, certain photographs, and over 50 copies of other books.

A motion was made by defendants to set aside the indictment pursuant to Penal Code section 995. While this motion was pending, our State Supreme Court was called upon to determine a mandamus proceeding brought to compel the court below to return to petitioners property taken under an assertedly invalid search warrant. A writ was granted directing the superior court to return all seized property excepting two books entitled 'Sex Life of a Cop' and 'Joy Killer,' which had been specifically named in the affidavit for the warrant and in the warrant itself. (See Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47.) Thereafter, and upon written stipulation of the parties, filed in the proceedings, it was stipulated, in view of the decision in Aday v. Superior Court, supra, that 120 of the aforesaid 143 exhibits be 'deemed withdrawn from the evidence considered by the Court on defendants' motion to set aside the indictment pursuant to § 995 of the Penal Code, without prejudice to defendants' rights to claim the illegality and incompetency of any of the remaining exhibits presented to the Grand Jury. * * *' ⁵ The trial court subsequently made its order setting aside the indictment and it is from this order that the Prople appeal.

As a result of the aforementioned stipulation, the evidence considered by the trial judge in determining whether the evidence received by the grand jury was sufficient to justify a suspicion of a conspiracy consisted of the remaining 23 exhibits ⁶ and the testimony presented. Our function is like that of the trial court, i. e., to determine whether the members of the grand jury, acting as men of ordinary caution or prudence, could be led to believe and conscientiously entertain a reasonable suspicion that defendants were guilty of the offense charged. (People v. Negle, 25 Cal.2d 216, 222, 153 P.2d 344; Bompensiero v. Superior Court, 44 Cal.2d 178, 183-184, 281 P.2d 250; Lorenson v. Superior Court, 35 Cal.2d 49, 56-58, 216 P.2d 859.) While ordinarily in making this determination we would review all of the evidence presented to the grand jury, we shall likewise, in view of the stipulation, consider, in conjunction with the oral testimony, only the 23 exhibits aforesaid.

In view of the aforesaid stipulation, our inquiry, as was that of the trial judge, is directed solely to the books 'Sex Life of a Cop' and 'Joy Killer.' Accordingly, we must determine whether there was probable cause for believing that these books are obscene, that a general conspiracy existed to violate the provisions of section 311, subdivision 3, of the Penal Code, and that defendants were a part of that conspiracy. In making this determination, our concern is to ascertain if there is any competent evidence to support the indictment, guided by the fundamental principle announced in Bompensiero that an indictment will not be set aside if there is some rational ground for assuming the possibility that the offense charged has been committed and the accused is guilty of it. (Callan v. Superior Court, 204 Cal.App.2d 652, 662, 22 Cal.Rptr. 508.) It is not our function to inquire into the sufficiency of the evidence to sustain a conviction (Lorenson v. Superior Court, supra, 35 Cal.2d p. 55, 216 P.2d 859; People v. Oppenheimer, 209 Cal.App.2d 413, 421, 26 Cal.Rptr. 18); nor are we to substitute our judgment as to the weight of the evidence for that of the grand jury. (Lorenson v. Superior Court, supra, 35 Cal.2d p. 55, 216 P.2d 859.) It is convenient to point out here that an indictment may not be set aside merely because some incompetent evidence was received by the grand jury if there is otherwise substantial competent evidence to support the indictment. (Callan v. Superior Court, supra, 204 Cal.App.2d p. 662, 22 Cal.Rptr. 508; McFarland v. Superior Court, 88 Cal.App.2d 153, 158, 198 P.2d 318; Stern v. Superior Court, 78 Cal.App.2d 9, 17-18, 177 P.2d 308.) Accordingly, where sufficient competent evidence is introduced to support the indictment, it is not rendered void by the reception of some incompetent evidence. (Stern v. Superior Court, supra, 78 Cal.App.2d p. 18, 177 P.2d 308; People v. Freudenberg, 121 Cal.App.2d 564, 573, 263 P.2d 875.) However, where there is absolutely no competent evidence before the grand jury of the commission of the crime charged, or where there is a total absence of evidence supporting a necessary element of the crime charged, the indictment will be held invalid. (People v. Byars, 188 Cal.App.2d 794, 796, 10 Cal.Rptr. 677; People v. Olf, 195 Cal.App.2d 97, 102, 15 Cal.Rptr. 390; People v. Bartlett, 199 Cal.App.2d 173, 179, 18 Cal.Rptr. 480; Callan v. Superior Court, supra, 204 Cal.App.2d p. 662, 22 Cal.Rptr. 508; see Greenberg v. Superior Court, 19 Cal.2d 319, 322, 121 P.2d 713.)

Preliminary to any discussion of probable cause we must consider certain constitutional questions posed by defendants. Swift urges that section 311 is unconstitutional. He cites no case in support of his claim excepting Smith v. California, 361 U.S. 147, 80 S.C.t. 215, 4 L.Ed.2d 205. There is nothing in Smith which even remotely suggests that section 311 is unconstitutional. The plain holding of Smith is that a Los Angeles municipal ordinance which, without requiring scienter, makes it a criminal offense for any person to have in his possession an obsene or indecent writing or book in a place of business where books are sold or kept for sale is violative of the Federal Constitution. The majority opinion takes cognizance of section 311, and points out that the ordinance in question sought to eliminate scienter as permissible supplementary legislation to section 311, 'a state-wide obscenity statute which requires scienter.' (P. 149, of 361 U.S., p. 216 of 80 S.Ct., 4 L.Ed.2d 205, fn. 3.) It suffices to say, moreover, that section 311, as it read at the time of the offense charged in the instant case, was held to be constitutional in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.E.2d 1498.

The claim of unconstitutionality on the part of Aday, Maxey and Lindsay is based upon the assertion that the grand jury received incompetent evidence obtained through illegal search and seizure. This contention does not find support in the record. As hereinabove pointed out, 15 of the 23 exhibits presented to the grand jury were clearly not the result of any search or seizure. Exhibits 1 to 8, inclusive, were official documents produced by witnesses who were called to testify before the grand jury. Exhibits 9 and 10 consisted of the two books in question. As testified by Officer Lippold, they were purchased by him at two liquor stores in Hayward. They were identified by him at the grand jury hearing as the books so purchased and were admitted in evidence before that body. These books were then read to the grand jury by two deputy district attorneys. Exhibit 111 consists of a paper written by Maxey at the hearing. Exhibits 114, 115 and 132 consist of bills of lading and invoices produced by witnesses who testified at the subject grand jury proceedings. Exhibit 131 is a copy of 'Sex Life of a Cop,' which a witness, Theodore Vlahos, testified was sold by him at his liquor store in San Leandro, Alameda County. We are thus left with 8 exhibits, the origin of which does not appear in the record. These consist of photographs of Aday and Maxey (exs. 74 and 75); photographs of two buildings in Fresno (exs. 103, 104, 105, 106, and 107); and negatives of 'Section 1, Form 1' of the book 'Joy Killer' on a yellow mask (ex. 126). It is not urged by any of the defendants that these 8 exhibits were among those...