People v. Enskat

• Decision Date: 08 August 1973
• Docket Number: Cr. N
• Citation: 109 Cal.Rptr. 433,33 Cal.App.3d 900
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Werner Ernest ENSKAT, Defendant and Appellant. o. 22506.

Page 433

109 Cal.Rptr. 433

33 Cal.App.3d 900

The PEOPLE of the State of California, Plaintiff and Respondent, v. Werner Ernest ENSKAT, Defendant and Appellant.

Cr. No. 22506.

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

Aug. 8, 1973.

Hearing Denied Oct. 24, 1973.

Roger Arnebergh and Burt Pines, City Attys., David M. Schachter, Deputy City Atty., for plaintiff and respondent.

Fleishman, McDaniel, Brown & Weston by David M. Brown, Hollywood, for defendant and appellant.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Dirk L. Hudson, Deputy Dist. Attys. for amicus curiae.

COLE, Associate Justice. ^*

This is a pornography case, here on certification by the Appellate Department of the Superior Court of Los Angeles County on its own motion. When we accepted the case and ordered it transferred here, we did so primarily to decide whether the Municipal Court erred in instructing the jury that it could disregard expert testimony of community standards if it found that the conduct in question was so patently offensive as to violate any conceivable community standard.

That question and other issues previously presented in the appeal have now been overshadowed by a new contention that Penal Code Sections 311 and 311.2 are unenforceable ¹ as a result of decisions of the United States Supreme Court handed down on June 21, 1973. ² We proceed now to discuss that contention and deal subsequently in this opinion with the earlier raised issues.

Appellant Werner Enskat was convicted by a Municipal Court jury of violating Penal Code Section 311.2.

The conviction arose from his exhibition of what was alleged to be an obscene sound motion picture entitled, 'The Collection'. ³ The applicable part of section 311.2 provides, '. . . Every person who . . . possesses . . . with intent to . . . exhibit to others or who . . . exhibits to others, any obscene matter, is guilty of a misdemeanor . . .' Section 311 provides, so far as relevant here, '. . . 'Obscene matter' means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance . . .' This statutory definition derives from the language of the United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, as amplified in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. The extreme difficulty in defining obscenity and in applying the definition to particular fact situations and 'the somewhat tortured history of the (United States Supreme) Court's obscenity definitions' (Miller, --- U.S. at ---, 93 S.Ct. at 2612) need not be recounted here. It is amply discussed in Miller (--- U.S. at ---, 93 S.Ct. 2607); and in the dissent of Brennan, J., in Paris (--- U.S. at ---, 93 S.Ct. 2628 et seq.). Does California still have an Obscenity Statute?

Miller marks a new turn in obscenity prosecutions. Since it and its companion decisions were handed down, they have been popularly regarded as making it easier for convictions to be secured in obscenity cases. That is so because no member of the United States Supreme Court any longer supports the Memoirs definition of obscenity (Miller, supra, --- U.S. at ---, 93 S.Ct. 2607) and in particular, because that part of the definition which required obscene matter taken as a whole to be 'utterly without redeeming social importance' has been abandoned. In its place the Court has adopted a different standard: 'whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value'. (Miller, --- U.S. at ---, 93 S.Ct. at 2615)

We turn then to a discussion of the problem posed to us by Miller. Appellant argues vigorously that the Supreme Court's abandonment of the Memoirs' test, upon which the definition of obscene matter in section 311 is based, renders that statute and its application to appellant's case unenforceable. This argument requires us to examine closely into the Supreme Court's holding in Miller. That case, as the one at bench, involved sections 311 and 311.2. Specifically at issue in Miller were five unsolicited advertising brochures primarily consisting 'of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed' (Miller, --- U.S. ---, 93 S.Ct. at 2611). After pointing out that it has been 'categorically settled' that obscene matter is unprotected by the First Amendment, the Court stated that it acknowledged, however, '. . . the inherent dangers of undertaking to regulate any form of expression . . .' (Miller, --- U.S. at ---, 93 S.Ct. at 2614). Accordingly, the Court continued '. . . State statutes designed to regulate obscene materials must be carefully limited. (Citation omitted) As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. (Footnote omitted) A state of offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. Kois v. Wisconsin . . . 408 U.S. (229) at 230, 92 S.Ct. (2245) at 2246, 33 L.Ed.2d 312 (1972), quoting Roth v. United States, Supra, 354 U.S. at 489, 77 S.Ct. at 1311, (1 L.Ed.2d 1498) (1957), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the 'uttterly without redeeming social value' test of Memoirs . . .' (emphasis by the Supreme Court, Miller, --- U.S. ---, 93 S.Ct. at 2614--2615). The Court additionally declared that 'We also reject, as a constitutional standard, the ambiguous concept of 'social importance. " (Id. at ---, 93 S.Ct. at 2615).

Finally, the Court said,

'. . . We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under the second part (b) of the standard announced in this opinion, Supra:

'(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

'(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.'

Building on Miller's holding that the permissible scope of state statutes regulating obscene material is confined to works depicting or describing sexual conduct Specifically defined by the applicable state law as written or authoritatively construed, appellant now argues that sections 311 and 311.2 are facially vague and overbroad because they fail to specifically define proscribed depictions or representations of sexual conduct. He further argues that California appellate courts have not had the occasion to authoritatively construe those sections so as to limit their reach to specifically defined sexual conduct. Also, appellant asserts, the statutory element that the work be 'utterly without redeeming social importance' has been rejected by the Supreme Court as impermissible. The upshot of the argument is appellant's contention that he has been denied due process and that his case was submitted to the jury 'in the absence of viable legal standards'. He urges that 'the new and prospective standards' enunciated in Miller cannot be applied to this case. Relying on Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, he argues that if a statute is vague, the vice inherent in that vagueness cannot be cured in the very case under consideration by placing valid limits on the statute. His claim is that this would amount to a retrospective application comparable to Ex post facto legislation. Finally, appellant states that separation of powers principles would be violated were this court to judicially rewrite the statutes.

We summarize our holding as follows:

(1) The United States Supreme Court has not held section 311 and like state statutes unconstitutional but rather has left it to the states to see if their statutes measure up to the Miller requirements.

(2) Except for the requirement that obscene matter be 'utterly without redeeming social importance', section 311 has been previously construed substantially in accordance with the Miller requirements and the jury was so instructed.

(3) The courts are not at liberty to read out of section 311 the 'utterly without redeeming social importance' element of the offense proscribed by that section; that is a matter for the Legislature. However, there is no constitutional reason why the statute as written cannot continue to be applied pending any changes which the Legislature may wish to make in it.

We discuss briefly these propositions.

First, in Miller, the Supreme Court made it clear that section 311 and like statutes were not unconstitutional. ⁴ Additionally, in Kaplan, Supra, --- U.S. --- at ---, 93 S.Ct. 2680, 37 L.Ed.2d 492, the Court held that a book involved there was obscene and not protected by the First...