People v. Chapman, Cr. 9131

• Decision Date: 26 May 1971
• Docket Number: Cr. 9131
• Citation: 17 Cal.App.3d 865,95 Cal.Rptr. 242
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Paul CHAPMAN, Defendant and Appellant.

Page 242

95 Cal.Rptr. 242

17 Cal.App.3d 865

PEOPLE of the State of California, Plaintiff and Respondent, v. Paul CHAPMAN, Defendant and Appellant.

Cr. 9131.

Court of Appeal, First District, Division 2, California.

May 26, 1971.

Hearing Denied Aug. 13, 1971.

Stanley Fleishman, Robert Carter McDaniel, Hollywood, for defendant-appellant.

Evelle J. Younger, Atty. Gen., William D. Stein, Deputy Atty. Gen., San Francisco, for plaintiff-respondent.

SHOEMAKER, Presiding Justice.

The appellate department of the Superior Court of Alameda County has certified to this court on its own motion and we have accepted the instant case which involves a prosecution under Penal Code, section 311.2 (sale or distribution of obscene matter). The case reached the appellate department on appeal from the denial by the municipal court of a motion to suppress evidence seized under a search warrant, the motion being made pursuant to Penal Code, section 1538.5 et seq. The appellate department affirmed the order of the municipal court as to books and magazines Purchased by the officer from defendant and alleged to be obscene. The order was reversed as to the allegedly obscene books and magazines which were seized under a search warrant issued ex parte.

The facts are undisputed. On September 23, 1969, a search warrant authorizing the search of the Readmore Books Store in Fremont was issued by the Municipal Court for the Fremont-Newark-Union City Judicial District of the County of Alameda. The search warrant Described by name 30 magazines and paperback books alleged to be in the possession of Paul Chapman and on the premises of the Readmore Books Store at 129 Anza Street in Fremont. The warrant issued upon the affidavit of Leroy Pyle, a detective of the Fremont Police Department who had previously purchased some of the magazines and had looked at parts of the paperback books. The affidavit described the pictures and activity depicted in the material in graphic detail and concluded with the belief of the detective that the magazines and paperback books were obscene and appealed to prurient interest. The affidavit also alleged that the judge had seen the magazines '21' and 'His and Hers' and that he had read parts of the paperback book entitled 'The Unwilling Switchers' and was of the opinion the matter was obscene.

On September 23, 1969, pursuant to the authorization in the warrant, the Readmore Books Store was searched and the magazines and paperback books seized were listed on the return to the search warrant. A total of 47 magazines and 31 paperback books were taken. Some magazines not named in the search warrant were taken.

On September 23, 1969, a complaint issued in the Municipal Court of the Fremont-Newark-Union City Judicial District, County of Alameda, charging Paul Chapman in two counts with committing misdemeanors. Count one set forth a violation of section 311.2 of the Penal Code on September 19, 1969, in that he 'wilfully and knowingly offered to distribute and had in his possession with intent to distribute, and distributed obscene matter, to wit: two obscene magazines and an obscene paperback book.'

The second count alleged that on September 22, 1969, the defendant violated section 311.2 of the Penal Code in that he 'wilfully and knowingly offered to distribute and had in his possession with intent to distribute, and distributed obscene matter, to wit: an obscene magazine.'

On September 23, 1969, at the time of the seizure under the search warrant, defendant Paul Chapman was arrested pursuant to an arrest warrant and released on $1,000 bail.

On September 29, 1969, an amended complaint issued charging Chapman with additional counts of violating section 311.2 of the Penal Code, naming paperback books and magazines seized in the search.

On December 23, 1969, defendant Chapman made a motion to suppress evidence and for the restoration of property seized under the search warrant pursuant to sections 1538.5, 1539 and 1540 of the Penal Code.

On February 11, 1970, the municipal court ordered that the books seized by the police which were not listed on the warrant be returned to the defendant and denied the motion to suppress as to all the other books seized in the search warrant with the exception of 'Pimp: The Story of My Life,' which it found to be not obscene within the constitutional sense.

On February 20, 1970, defendant Chapman filed a notice of appeal to the appellate department of the superior court.

On July 15, 1970, the appellate department of the superior court entered the order with which we are concerned. In making said ruling, the department relied upon People v. deRenzy (1969) 275 Cal.App.2d 380, and explains its action by pointing to the holding in deRenzy (p. 386, 79 Cal.Rptr. 777, p. 780) where the court states that 'law enforcement officers, acting under authority of a search warrant, may seize at least one copy of an alleged obscene book, film or other material when necessary for use as evidence in a later adversary proceeding, without doing violence to the First or Fourth Amendment,' but in another portion of the opinion it is stated that 'We recognize that there may be circumstances where, by fortuity, obscene matter may be produced by the state without need of search or seizure or court process, e.g., Books offered for public sale. In such cases any seizure without prior adversary proceedings obviously would be constitutionally impermissible' (p. 384, 79 Cal.Rptr. p. 779; emphasis added) and that feeling governed by the latter statement it ruled as it did even though it considered the observation dicta.

The defendant's contentions before the appellate department were: (1) that Penal Code, section 311.2, was unconstitutional by reason of the United States Supreme Court's decision in Stanley v. Georgia (1969) 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, and (2) that a prior adversary hearing must be conducted before a search warrant may be issued for a seizure of books and magazines alleged to be obscene, when such publications are available for public sale.

As to the first contention, the appellate department ruled that the section attacked was constitutional and was not affected by Stanley v. Georgia, supra, a ruling that anticipated the holding of our Supreme Court in People v. Luros (1971) 4 Cal.3d 84, 92 Cal.Rptr. 833, 480 P.2d 633, wherein a like argument was held to be without merit.

As to the second contention, we likewise conclude that the Luros case disposes of it.

In Luros, the trial court had set aside an indictment under Penal Code, section 311.2, because the prosecution failed to present evidence to the grand jury of contemporary community standards. The trial court recognized that its ruling was in conflict with the holding of Aday v. Superior Court (1961) 55 Cal.2d 789, 798, 13 Cal.Rptr. 415, 362 P.2d 47, and People v. Aday (1964) 226 Cal.App.2d 520, 531--532, 38 Cal.Rptr. 199, but was of the view that those cases had been overruled by more recent decisions. However, our Supreme Court in Luros points out that the two Aday cases were correctly decided and are the law today. In Aday v. Superior Court, supra, the magistrate had issued a search warrant which authorized seizure of two named books alleged to be obscene; the magistrate had read portions of the two named books which had been purchased by a police officer before issuing the warrant, but had not received evidence as to contemporary community standards; the Supreme Court examined the books in light of the test for obscenity set forth in Roth v. United States (1957) 354 U.S. 476, 487--489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest," (Aday v. Superior Court, supra, 55 Cal.2d p. 798, 13 Cal.Rptr. p. 420, 362 P.2d p. 52) and came to the conclusion that there was probable cause to believe them obscene, and that it is 'not necessary * * * to * * * receive evidence as to contemporary community standards in order to determine the issue of probable cause.' (Aday v. Superior Court, supra, p. 798, 13 Cal.Rptr. p. 421, 362 P.2d p. 52.) The Supreme Court in Luros quotes from the Aday case as...