People v. Pinkus, Cr. A

• Decision Date: 26 October 1967
• Docket Number: Cr. A
• Court: California Superior Court
• Parties: 256 Cal.App.2d Supp. 941 PEOPLE of the State of California, Plaintiff and Respondent, v. William PINKUS et al., Defendants, William Pinkus, Defendant and Appellant. 7573, 7574. Appellate Department, Superior Court, Los Angeles County, California

Page 680

63 Cal.Rptr. 680

256 Cal.App.2d Supp. 941

PEOPLE of the State of California, Plaintiff and Respondent, v. William PINKUS et al., Defendants William Pinkus, Defendant and Appellant.

Cr. A 7573, 7574.

Appellate Department, Superior Court, Los Angeles County, California.

Oct. 26, 1967.

Atkins & Jacobson, Beverly Hills, for appellant.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City Atty., Michael T. Sauer, Deputy City Atty., for respondent.

MEMORANDUM OPINION AND JUDGMENT

AISO, Presiding Judge.

Defendant William Pinkus was found guilty by a jury of violating Penal Code § 311.2 ¹ on July 14, 1966, and on October 19 The counts, respectively, are: count I of the Amended Complaint in CR A 7573 (trial court No. 269648) which originally set forth a total of XIII counts, and renumbered count I of the Amended Complaint in CR A 7574 (trial court No. 270712, originally count II thereof and renumbered count I at time of trial) which originally set forth three separate counts. The two cases were consolidated for trial and appeal. This appeal concerns only the two counts enumerated above on which defendant Pinkus was convicted.

1966, in the City of Los Angeles. Pinkus appeals from the respective judgments of conviction pronounced upon the guilty verdicts entered upon two counts.

Count I of CR A 7573 involves an 8 mm. silent film received into evidence as Exhibit 2, marked 'J'. Renumbered count I of CR A 7574 involves the 8 mm. silent films received into evidence as Exhibit 13 (consisting of 113 such films). The 8 mm. film marked 'J' and two films from the 113, constituting Exhibit 13 identified as 'B-6' and 'B-8', were shown to the jury with accompanying stipulation that the two shown 'represent the worst, and that there are some that are milder; but certainly none are stronger' than the two shown.

We have viewed the films shown the jury in course of reviewing the entire record as enjoined by higher courts. (Jacobellis v. State of Ohio (1964) 378 U.S. 184, 188--189, 84 S.Ct. 1676, 12 L.Ed.2d 793, 798--799; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 909, 31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707.) Each of the three films viewed constitutes, in our opinion, 'hard-core pornography'. Significantly, defendant's counsel raised no issue in his brief as to these three films being obscene and he confirmed in oral argument that the omission was not inadvertent.

Grounds assigned for reversal of the judgments of conviction are: (1) the evidence is the product of illegal searches and seizures, (2) obscenity was not established in that the prosecution introduced no evidence of obscenity other than the films exhibited to the jury, and (3) the requirements of scienter defined by Penal Code § 311(e) ² were not met.

Facts relevant to these issues will be set forth as we consider each assignment seriatim.

EVIDENCE LEGALLY OBTAINED

There is no question as to any illegal search and seizure as to the film in CR A 7573 (Exhibit 2, marked 'J'). It was purchased by Officer Philip K. Roberts at the defendant's 'BOOKS.MAGAZINES.FILM' shop ³ (Rosslyn News Co.), 450 South Main Street, Los Angeles, on July 14, 1966, although defendant Pinkus was not there at the time.

The 113 films in CR A 7574 (Exhibit 13) were obtained by the police under the following circumstances on October 21, 1966: Officer Joseph B. Fingleton went to the defendant's store with warrants for the arrest of defendant Pinkus and one Ronald Kamin, each for a violation of Penal Code § 311.2. Kamin was tending the store at the time and was arrested. Defendant Pinkus was not there. A search of the store was made contemporaneously with Kamin's arrest. The films making up Exhibit 13 were found and seized at that time. Thirty-three (33) rolls of film (10 rolls of 'B-6', 10 rolls of 'B-7', 13 rolls of 'B-8') were found upstairs on a table in a 'back-room like' area. Seventy-nine (79) rolls of film (6 rolls of 'B-6', 2 rolls 'B-8', and other films of similar nature) were found on shelves open to public view underneath a glass counter.

The validity of the warrants of Arrest has not been attacked either in the trial court or upon this appeal. Defense counsel urges only that since there was time to obtain a Search warrant, the officers should have been armed with a Search warrant in addition to the Arrest warrants. He urges here that Flack v. Municipal Court (1967) 66 A.C. 1035, 59 Cal.Rptr. 872, 429 P.2d 192, decided subsequent to the trial of these cases here but pending appeal has somehow rendered the seizure of Exhibit 13, contemporaneous with the arrest pursuant to a warrant of Arrest, illegal. We do not understand the holding of Flack to be so broad. In Flack '(n)either search nor arrest warrants had previously been secured.' (Flack v. Municipal Court (1967), supra, 66 A.C. 1035, 1038, 59 Cal.Rptr. 872, 873, 429 P.2d 192, 193.) We do not feel that where officers make an arrest pursuant to a warrant issued for a violation of Penal Code § 311.2, there should be any exception from the general rule that instrumentalities for the commission of the crime or proof of guilt may be seized incidental to the arrest. (United States v. Rabinowitz (1950) 339 U.S. 56, 60--61, 70 S.Ct. 430, 94 L.Ed. 653, 657--658; Harris v. United States (1947) 331 U.S. 145, 151--153, 67 S.Ct. 1098, 91 L.Ed. 1399, 1405--1406; People v. Winston (1956) 46 Cal.2d 151, 162, 293 P.2d 40; and cf. Warden, Maryland Penitentiary v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; People v. Thayer (1965) 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108, sanctioning seizure of mere evidence establishing elements of the crime.)

Furthermore, there were circumstances present here that the films might well have disappeared from the premises at 450 South Main Street if not seized immediately. A defense witness, John Adams, who had worked as a clerk at the Rosslyn News Co. at 450 South Main Street during July, August, September and October of 1966, testified that he would take the inventory for the store at 450 from another shop, the 'Main Street News', located at 516 South Main Street where the inventory or stock was kept. And when the Rosslyn News at 450 South Main Street 'was closed,' he (Adams) would take the inventory on hand at 450 South Main Street back to the store at 516 South Main Street. The arrest of Kamin surely would have been a sufficient tip-off to strip the store at 450 Main Street of the obscene inventory. The Flack case itself recognized an exception to the general rule there stated in 'arrest situations involving a high probability that evidence may be lost, destroyed, or spirited away.' (Flack v. Municipal Court (1967) 66 A.C. 1035, 1045, ftn. 10, 59 Cal.Rptr. 872, 878, 429 P.2d 192, 198.)

We, therefore, hold that defendant's claim, that Exhibits 2 and 13 were obtained by illegal search and seizure, lacks merit.

EVIDENCE ADEQUATELY SUPPORTS FINDING OF OBSCENITY

The constitutional and statutory criteria and other pertinent considerations in adjudicating a silent motion picture obscene are set forth in Landau v. Fording (1966) 245 Cal.App.2d 820, 54 Cal.Rptr. 177, cert. granted, judgment affirmed 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317.

Defendant's contention that 'There was absolutely no evidence from which the jury could find the requisite elements of obscenity as enunciated in § 311(a) of the Penal Code; i.e. no Corpus deliciti was established' is difficult to reconcile with his position that he does not contest Exhibits 2 and 13 (two therefrom shown to the jury) being obscene. Citing United States v. Klaw (2d Cir., 1965) 350 F.2d 155, defendant contends that obscenity cannot be established without expert opinion testimony that the matter ⁴ in question meets the elements which must coalesce to render a film obscene. We do not agree. Klaw involved matters appealing Here these 'stag party' type films exhibited to the jury constitute evidence against themselves. Exhibit 2 is in color. The two films from Exhibit 13, exhibited to the jury, are in black and white. Each shamelessly depicts a young woman stripping absolutely naked; brazenly and shamelessly displaying breasts, genitalia, pubic hairs, and the anal area; and engaging in masturbation or motions and gyrations simulating a female in sex play and sexual intercourse. There is no story line, plot or social message, but only a dreary repetition of the shocking, morbid, and shameful acts described. None of the three films is so esoteric that expert opinion evidence is necessary to interpret it to the average juror. The determination of obscenity, therefore, by the jury upon the basis of viewing Exhibits 2 and 13 and guided by proper instructions by the court was proper. (Kahm v. United States (5th Cir. 1962) 300 F.2d 78, 84, cert. den. 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18; United States v. Davis (2d Cir., 1965), supra, 353 F.2d 614, 615, cert. den. 384 U.S. 953, 86 S.Ct. 1567, 16 L.Ed.2d 549; Womack v. United States (1961) 111 U.S.App.D.C. 8, 294 F.2d 204, 205; cf. People v. Moskovitz (1967) CR A 7293, tsfr. den. by Court of Appeal.)

only to deviants and not to the normal average person applying contemporary community standards. Where no such deviancy was involved, the same court ⁵ held to the contrary in a case where the matter consisted of 'party records.' (United States v. Davis (2d Cir., 1965) 353 F.2d 614, cert. denied 384 U.S. 953, 86 S.Ct. 1567, 16 L.Ed.2d 549.)

While expert opinion evidence is competent evidence in cases of this kind (In re Harris (1961) 56 Cal.2d 879, 16 Cal.Rptr. 889, 366 P.2d 305; Landau v. Fording (1966), supra, 245 Cal.App.2d 820, 54 Cal.Rptr. 177, certiorari granted, judgment affirmed 388 U.S. 456, 87 S.Ct. 2109, 18 L.Ed.2d 1317), there is no constitutional requirement that expert testimony must be adduced where the necessary elements can be established by other means of proof (Smith v. People of State of California (1959) 361 U.S. 147, 172--173, 80 S.Ct. 215, 4...