People v. Kuhns

• Decision Date: 08 September 1976
• Docket Number: Cr. 14439
• Citation: 61 Cal.App.3d 735,132 Cal.Rptr. 725
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Earl KUHNS and Richard Castner, Defendants and Appellants.

Page 725

132 Cal.Rptr. 725

61 Cal.App.3d 735

PEOPLE of the State of California, Plaintiff and Respondent, v. Earl KUHNS and Richard Castner, Defendants and Appellants.

Cr. 14439.

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

Sept. 8, 1976.

Hearing Denied Nov. 5, 1976.

Arthur Wells, Jr., Wells & Chesney, Inc., Oakland, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Cloria F. DeHart, Alvin J. Knudson, Deputy Attys., Gen., San Francisco, for plaintiff and respondent.

SIMS, Associate Justice.

As a result of a certification, hereinafter detailed, the defendants, despite the establishment of the constitutionality of the statutes under which they were convicted (Pen.Code, § 311 ¹ and § 311.2, subd. (a) ²; see Bloom v. Municipal Court (1976) 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229), seek to press alleged errors to reverse their convictions. We hold that there is no merit to their claims of error in the following fields: (1) the manner in which the jurors who convicted them were selected; (2) the contention that the provisions of paragraph (2) of subdivision (a) of section 311, regarding evidence to establish that the matter is utterly without redeeming social importance, are unconstitutional and were improperly made the subject of an instruction, (3) alleged lack of proof and misdirection of the jury on the issue of Scienter, (4) alleged discrimination, which denies both the owner and the clerk equal protection of the law, (5) insufficiency of the evidence to establish that the material involved was obscene. We do find that there was insufficient evidence to convict the defendant clerk of two of the three charges of which he was found guilty.

History of the Case

On February 4 and 14, 1971, amended complaints were filed in the Municipal Court of the Santa Cruz County Judicial District, County of Santa Cruz, charging each appellant with a total of three counts of violation of Penal Code section 311.2 (distribution and exhibition of obscene matter). Appellants entered pleas of not guilty to the charges.

The charges resulted in two separate jury trials. The first trial which took place in May 1971 concerned the magazine 'Response, the Photo Magazine of Sex for Women.' The case bore the numbers CR 24014 and CR 24015 in the municipal court, and bore docket number 48 in the appellate department. As a result of the convictions in this trial, defendant Kuhns received a sentence of 90 days, one day suspended, and was fined $1,250. Defendant Castner was sentenced to 40 days and was fined $625.

The second trial took place in September and October 1971 and involved two books entitled 'Animal Lovers' and 'Sex and the Teenager.' The case bore the numbers CR 24034, CR 24035, CR 24142, and CR 24143 in the municipal court, and bore docket numbers 58, 59, 60 and 61 in the appellate department. As a result of these convictions, defendant Juhns was given 180 days, one day suspended, concurrent sentences and fined $1,250 on each count ($2,500 total). Defendant Castner was given 90 day concurrent sentences and fined $625 on each count ($1,250 total).

On November 9, 1972, the appellate department of the Santa Cruz County Superior Court simultaneously affirmed the judgments of conviction. Appellants remained on bail while they filed a petition for writ of certiorari before the United States Supreme Court. Following the decision in Miller v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, rehearing den. 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128, the petition for certiorari was granted, the judgment of the appellate department was vacated, and the matter was remanded to the appellate department for further consideration in light of Miller v. California, supra. (Kuhns v. California (1973) 413 U.S. 913, 93 S.Ct. 3060, 37 L.Ed.2d 1035.) Upon reconsideration, the appellate department of the Santa Cruz County Superior Court again affirmed the judgments. Once again appellants petitioned for writ of certiorari before the United States Supreme Court. That petition was denied on the ground that the decision which appellants sought to have reviewed was not by the highest state court in which a decision could be had as required by 28 United States Code section 1257. (Kuhns v. California (1974) 419 U.S. 1066, 95 S.Ct. 652, 42 L.Ed.2d 662.)

Upon remand to the appellate department, appellants moved for recall of the remittitur, relief from default, and to vacate the judgment. On June 3, 1975, an order was filed in the superior court by which these motions were granted. By the same order the cause was certified for transfer to the Court of Appeal pursuant to the provisions of Penal Code section 1471 and California Rules of Court, rules 62 and 63.

On July 7, 1975, this court granted a transfer of the instant case, determining that it involved the same issues then on appeal before the California Supreme Court in Bloom v. Municipal Court. Determination of those issues was deferred in anticipation of the filing of the opinion in Bloom by the court. (Bloom v. Municipal Court (1976) 16 Cal.3d 71, 127 Cal.Rptr. 317, 545 P.2d 229.) The Bloom opinion was adverse to several of the appellants' claims concerning the unconstitutional vagueness of Penal Code section 311.2.

Thereafter, appellants filed a supplemental brief on appeal. Appellants no longer argue several contentions made below. The cause has been submitted on that brief and respondent's reply.

Facts

On January 2, 1971, Lieutenant Charles Scherer of the Santa Cruz Police Department entered Frenchy's K & T Bookstore in the City of Santa Cruz and purchased a magazine entitled 'Response, the Photo Magazine of Sex for Women.' Petitioner Castner and petitioner Kuhns were both involved in the transaction, the former producing a copy of the magazine for Scherer, and the latter receiving the lieutenant's money. Kuhns was the owner of the store and Castner was a clerk.

The magazine contained pictures and text that portrayed graphically a broad range of heterosexual and homosexual conduct between adults, including depictions of sexual intercourse and oral sex. The magazine was the basis of the first count of violating Penal Code section 311.2 charged against appellants.

On January 7, 1971, a different Santa Cruz police officer entered Frenchy's K & T Bookstore and requested a book depicting sex between animals and people. Appellant Kuhns indicated an area of the store and the officer eventually obtained and purchased a book called 'Animal Lovers.' On February 4, 1971, another officer returned to the store and purchased a book entitled 'Sex and the Teenager, An Illustrated Study.' The two books contained photographs showing heterosexual and homosexual intercourse, oral copulation, and intercourse and sex acts with animals. These books were used for the second and third charge of violating Penal Code section 311.2.

I

At the outset of each action the defendants challenged the entire jury panel on the grounds that it excluded all those persons residing in the Judicial District who had been residents for less than one year. It was stipulated that the jury panel had been drawn in compliance with the provisions of section 198 of the Code of Civil Procedure as it then read ³ and thus did in fact exclude such persons. Defendants arguments that their constitutional rights to due process, a fair trial and equal protection of the law had been violated, were rejected and the challenges were overruled. In the action first tried the defendants made the further objection that the panel was drawn only from the list of registered voters, and unconstitutionally denied the defendants of a panel including all other eligible residents who had neglected to maintain their registration.

Their arguments were pressed in briefs filed with the appellate division of the superior court. Defendants now concede that meanwhile the issue, as it arose under section 198 as it read at the time of trial, has been resolved against them. In Adams v. Superior Court (1974) 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375, the majority opinion recites, 'The Jury Commissioner of San Diego County seeks writ of mandate compelling respondent superior court to set aside an order declaring Code of Civil Procedure section 198 unconstitutional and directing him to select petit jurors without regard to the section's one-year residency requirement. We conclude the requirement does not violate due process or the equal protection guarantees of the Fourteenth Amendment to the United States Constitution or article I, sections 11 and 21 of the California Constitution.' (12 Cal.3d at p. 58, 115 Cal.Rptr. at p. 249, 524 P.2d at p. 377, fn. omitted.)

Undaunted, defendants assert that the amendment of section 198 in 1975 (see fn. 3 above) was intended to reduce the residency requirement, and that it should be given retroactive effect, at least in those cases which are not final, where proper objection was interposed before the trial court. They suggest that it should be applied as a procedural change. (See People v. Bradford (1969) 70 Cal.2d 333, 343, 74 Cal.Rptr. 726, 450 P.2d 46, change in testimonial privilege, cert. den. 399 U.S. 911, 90 S.Ct. 2204, 26 L.Ed.2d 566; People v. Snipe (1972) 25 Cal.App.3d 742, 745--748, 102 Cal.Rptr. 6 (change in period in which death must ensue to warrant prosecution for homicide); and People v. Berumen (1969) 1 Cal.App.3d 471, 475, 81 Cal.Rptr. 757 (limitation of time of notice of motion to suppress).) The foregoing precedents are not controlling. Section 3 of the Code of Civil Procedure provides, 'No part of (this Code) is retroactive, unless expressly so declared.' (See also People ex rel. City of Bellflower v. Bellflower County Water Dist. (1966) 247 Cal.App.2d 344, 350--351, 55 Cal.Rptr. 584.)

There was no error in denying defendants' challenges to the jury panels.

II

A reading of Bloom v....