People v. Luros

• Decision Date: 18 February 1971
• Docket Number: Cr. 13153
• Citation: 480 P.2d 633,92 Cal.Rptr. 833,4 Cal.3d 84
• Court: California Supreme Court
• Parties: , 480 P.2d 633 The PEOPLE, Plaintiff and Appellant, v. Milton LUROS et al., Defendants and Respondents.

Page 833

92 Cal.Rptr. 833

4 Cal.3d 84, 480 P.2d 633

The PEOPLE, Plaintiff and Appellant, v. Milton LUROS et al., Defendants and Respondents.

Cr. 13153.

Supreme Court of California In Bank.

Feb. 18, 1971.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Evelle J. Younger, Harry Wood, Robert J. Lord and William E. McGinley, Deputy Dist. Attys., for plaintiff and appellant.

Stanley Fleishman, Hollywood, and Gerald J. Levie, Los Angeles, for defendants and respondents.

Paul N. Halvonik, Charles C. Marson, San Francisco, Jerome B. Falk, Jr., Coleman A. Blease, Sacramento, A. L. Wirin, Fred Okrand, Los Angeles, and Lawrence R. Sperber, Beverly Hills, as amici curiae on behalf of defendants and respondents.

SULLIVAN, Justice.

Defendants, Milton Luros, Reuben Sturman, World Wide News and London Press, Inc., were indicted in June 1966 by the Grand Jury of Los Angeles County for conspiring to violate section 311.2 of the Penal Code ¹ by wilfully preparing, publishing, printing and distributing four obscene books. ² Defendants moved, pursuant to section 995, to have the indictment set aside. The trial court first denied the motion, but, after reconsideration, reversed its decision and set aside the indictment on the ground that the prosecution had failed to introduce any competent evidence of contemporary community standards by which the grand jury might be guided in determining whether there was probable cause to believe that defendants' books were obscene. The People appeal from the order setting aside the indictment.

At the grand jury proceedings in June 1966 the prosecutor introduced copies of the four allegedly obscene books, 'Seed of the Beast,' 'Queer Daddy,' 'The Experimenters,' and 'Just for Kicks.' He also introduced a fifth book, 'Sex Life of a Cop,' concerning which there had been established in other proceedings probable cause for the belief that it was obscene. ³ The grand jury read and presumably compared the four allegedly obscene books with 'Sex Life of a Cop' to determine whether or not there was probable cause to believe the four books obscene. In introducing 'Sex Life of a Cop,' the prosecution relied on our holding in Aday v. Superior Court (1961) 55 Cal.2d 789, 798, 13 Cal.Rptr. 415, 362 P.2d 47, that there was probable cause to believe such book obscene. The lower federal courts held the book to be in fact obscene. (United States v. West Coast News Company (6th Cir. 1966) 357 F.2d 855, 857, 858.) However, after the instant indictment was filed but before the trial court ruled on defendants' motion to set aside the indictment, the United States Supreme Court held that 'Sex Life of a Cop' was not obscene. (Aday v United States (1967) 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309.)

No evidence of contemporary community standards other than 'Sex Life of a Cop' was introduced before the grand jury. After reading all five books, and considering evidence of defendants' involvement in the publication and distribution of the four books charged as obscene, the grand jury returned the instant indictment. In setting the indictment aside, the trial court recognized that its ruling was in conflict with the holdings in Aday v. Superior Court, Supra, 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. We conclude that those cases were correctly decided and have continued and undiminished vitality.

In Aday v. Superior Court, Supra, 55 Cal.2d 789, 13 Cal.Rptr. 199, 362 P.2d 47 we reviewed the validity of a search warrant which authorized seizure of two named books alleged to be obscene, as well as a wide variety of other books, records and objects. Although we there determined that the warrant was in certain respects unconstitutionally broad, we concluded that it was not invalid as a whole and we upheld that part of it which authorized the seizure of the named books constituting the principal basis of the charge of obscenity. (Id. at pp. 796--798, 13 Cal.Rptr. 199, 362 P.2d 47.) The magistrate had read portions of the two named books before issuing the warrant, but had not received evidence as to contemporary community standards. We examined the books and held that there was probable cause to believe them obscene. After referring to the rule for determining obscene material announced in the Roth case (Roth v. United States (1957) 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498), we said: 'It should be emphasized that in applying these principles here we are concerned only with probable cause, not with the final determination as to the character of the named books or the guilt of petitioners. An examination of the two books convinces us there was probable cause for believing that they are obscene. Their text is such that an average person, applying contemporary community standards, could reasonably believe that their dominant theme appeals to a lascivious, shameful, and morbid interest in sex and that they are totally lacking in redeeming value, literary or otherwise. In view of their contents it was not necessary for (the magistrate) to * * *receive evidence as to contemporary community standards in order to determine the issue of probable cause.' (Aday v. Superior Court, Supra, 55 Cal.2d at p. 798, 13 Cal.Rptr. at p. 205, 362 P.2d at p. 53.)

We went on to say: 'Where, as here, the seizure occurs under a warrant, an ex parte determination of the issue of obscenity, so far as probable cause is concerned, has taken place before issuance of the warrant, and immediately after the seizure a determination of the issue to that extent can be obtained in adversary proceedings by controverting the warrant under sections 1539 and 1540 of the Penal Code. In the event the owner is unsuccessful in that proceeding, a final determination as to obscenity will be had in the criminal action which will ordinarily follow within a reasonable time, or other remedies such as mandamus will be available to secure return of the property.' (Aday v. Superior Court, Supra, 55 Cal.2d at p. 799, 13 Cal.Rptr. at p. 421, 362 P.2d at p. 53.)

Our holding in Aday v. Superior Court, Supra, was followed three years later by the Court of Appeal in People v. Aday, Supra, 226 Cal.App.2d 520, 38 Cal.Rptr. 199. In that case, as in the case at bench, the defendant challenged an indictment because no evidence of contemporary community standards had been submitted to the grand jury. ⁴ The court there carefully set out both the standards and the procedures governing grand jury determination on the issue of whether there exists probable cause to believe material obscene: "The standard for judging obscenity adequate to withstand the charge of constitutional infirmity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.' (In re Harris, 56 Cal.2d 879, 880, 16 Cal.Rptr. 889, 366 P.2d 305; Roth v. United States Supra, 354 U.S. 476, at p. 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498, 1509; Aday v. Superior Court, Supra, 55 Cal.2d at p. 798, 13 Cal.Rptr. 199, 362 P.2d 47.) Accordingly, it is a denial of due process for a trial court not to allow a defendant to prove contemporary community standards at his trial. (In re Harris, Supra, 56 Cal.2d at p. 880, 16 Cal.Rptr. 889, 366 P.2d 305.) It is not necessary, however, that evidence of contemporary community standards be received on the issue of probable cause. (See Aday v. Superior Court, Supra, 55 Cal.2d at pp. 798--799, 13 Cal.Rptr. 199, 362 P.2d 47.) A determination of obscenity may therefore be made by a grand jury, insofar as the issue of probable cause is concerned, without the necessity of receiving evidence as to such standards.' (226 Cal.App.2d at p. 531, 38 Cal.Rptr. at p. 206.) We denied a petition for a hearing.

In the nine and a half years since our decision in Aday v. Superior Court and the six and a half years since our denial of a hearing in People v. Aday, we have not overruled, disapproved or in any way qualified the rules as to the determination of probable cause in obscenity cases. ⁵ The Aday cases retain their full vitality as precedents on this question and we conclude, to use our former language, that it is 'not necessary * * * to * * * receive evidence as to contemporary community standards in order to determine the issue of probable cause.' (55 Cal.2d at p. 798, 13 Cal.Rptr. at p. 421, 362 P.2d at p. 53.) The failure to introduce evidence of contemporary community standards before the grand jury did not render the instant indictment defective.

Defendants contend, however, that even if an indictment is proper where no evidence of contemporary community standards is presented to the grand jury, the present indictment is invalid because 'Sex Life of a Cop' was introduced as an example of obscenity under contemporary community standards. They argue that since the United States Supreme Court later held that 'Sex Life of a Cop' was Not obscene (Aday v. United States, Supra, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309), the grand jury in this case was permitted and advised to use an erroneous example of contemporary community standards in determining the obscenity of the challenged book. However, the grand jury did not determine that the challenged books were in fact obscene, but only that there was probable cause to believe them obscene. While the United States Supreme Court subsequently held that 'Sex Life of a Cop' is not, in fact, obscene, there is still, as we held in Aday v. Superior Court, Supra, 55 Cal.2d 789, 798, 13 Cal.Rptr. 415 362 P.2d 47, probable cause to believe the book obscene. 'Sex Life of a Cop' might have been an erroneous example of contemporary community standards if the grand jury had heard testimony that the book Was obscene by those standards. But in this case the grand jury was not...