Porno, Inc. v. Municipal Court

• Decision Date: 27 June 1973
• Citation: 33 Cal.App.3d 122,108 Cal.Rptr. 797
• Court: California Court of Appeals Court of Appeals
• Parties: PORNO, INC., Plaintiff and Respondent, v. The MUNICIPAL COURT FOR THE LOS ANGELES JUDICIAL DISTRICT, OF LOS ANGELES COUNTY, Respondent and Appellant; The PEOPLE, Real Party in Interest and Appellant. Civ. 40715.

Page 797

108 Cal.Rptr. 797

33 Cal.App.3d 122

PORNO, INC., Plaintiff and Respondent, v. The MUNICIPAL COURT FOR THE LOS ANGELES JUDICIAL DISTRICT, OF LOS ANGELES COUNTY, Respondent and Appellant The PEOPLE, Real Party in Interest and Appellant.

Civ. 40715.

Court of Appeal, Second District, Division 4, California.

June 27, 1973.

John D. Maharg, County Counsel, and Harold S. Vites, Deputy County Counsel, Los Angeles, for respondent and appellant.

Roger Arnebergh, City Atty., and David Schacter, Deputy City Atty., for real party in interest and appellant.

Boss & Mason and Lawrence E. Mason, Los Angeles, Cal., for petitioner and respondent.

FILES, Presiding Justice.

This is an appeal from a judgment of the superior court requiring the municipal court to order the return of some motion picture projectors which had been seized pursuant to search warrants issued by that court. The case is here on a clerk's transcript only. The material facts are simple.

During March and April, 1972, Los Angeles police officers sought warrants authorizing search of two theatres operated by plaintiff. The affidavits of the officers described various films which were being exhibited in those theatres which were alleged to be obscene within the meaning of Penal Code section 311.2. ¹ A judge of the municipal court issued several warrants which directed the officers to seize both the films and the projectors in those theatres. Acting under the color of those warrants, officers seized films and a projector on four separate occasions. Motions for the return of the projectors were heard and denied by the judge who had issued the warrants.

Plaintiff then petitioned the superior court for a writ of mandate to compel the return of its projectors. ² The case was tried and a judgment entered in favor of plaintiff, from which an appeal was taken by the County Counsel, on behalf of the municipal court, and the Los Angeles City Attorney, on behalf of the real party in interest.

The judgment of the superior court declared that if a stay of execution were granted, plaintiff would suffer irreparable harm. A stay of 48 hours was allowed to petition the Court of Appeal for a writ of supersedeas (see Code Civ.Proc., § 1110b). Appellants' petition for supersedeas was denied without opinion by another division of this court. The writ of mandamus thereupon issued on May 4, 1972, and presumably the projectors have been returned to plaintiffs. The case, however, cannot be dismissed as moot. The fact that this case arose at all reflects a grievous misunderstanding of the law which calls for some statement here.

There is no issue in this court as to the seizure of the films. For the purpose of this discussion it may be assumed that the film was lawfully seized as contraband, possessed in violation of Penal Code section 311.2.

The record on appeal contains no detailed description of the projectors, since the evidence has not been brought up. We may assume, in favor of the judgment, that the evidence supported the plaintiff's allegation that these were of the type commonly used to project 16 millimeter film. The reels of film were not permanently attached to the machines. Any standard 16 millimeter film could be inserted or removed from these projectors in a matter of seconds.

The superior court made no formal findings of fact, but the court's 'order for peremptory writ of mandate' contains this:

'As it is nowhere contended that the projectors themselves were necessary or even proper evidence of the commission of the crime charged in the declarations for issuance of the search warrants, to-wit, a violation of section 311.2, California Penal Code, the sole purpose of the seizure must have been to 'stop' this illegal practice, i.e., either at this time or by repeated use of the same tactics to put the petitioner out of business.

'The Appellate Department of this court has consistently held that the use of a search warrant for this purpose in advance of an on-the-merits determination of guilt is improper. (People v. Rockford (1971) CR A 10678; People v. Rizzi (1969) CR A 8388; People v. Luros (1969) CR A8351.)'

On this appeal counsel for appellants cite the rule that evidence of crime is subject to seizure, citing People v. Thayer (1965) 63 Cal.2d 635, 47 Cal.Rptr. 780, 408 P.2d 108, and United States v. Wild (2 Cir. 1969) 422 F.2d 34. It is theoretically possible that in a prosecution under Penal Code section 311.2, the prosecutor might offer in evidence a film projector as corroboration of the officer's testimony that he saw the offending films projected on a screen. But while possible, it seems most unlikely that such an exhibit would be offered, and appellants have made no contention in the superior court or here that the projectors were seized for that purpose.

In the Thayer case, Supra, a physician and his assistant were convicted of submitting false claims to a county agent. Proof was made by the use of some of the defendants' office records which had been seized pursuant to a search warrant. Those records were necessary and proper evidence of the fact that the defendants had claimed payment for services never performed. The seizure was therefore held proper.

In the Wild case, supra, the defendants were convicted of a conspiracy to use the mails for the delivery of obscene matter (18 U.S.C. § 1461). As an incident to the arrest of the defendants in their respective apartments the government had seized the obscene photographs and slides, and also cameras, projectors and office supplies. At the trial slides, rubber stamps, customer orders and order forms were received in evidence. On the defendants' appeal from the judgment of conviction the court said (422 F.2d at p. 38):

'There can be no dispute that the materials taken and used at trial were subject to seizure. . . .

'The items not used in evidence at the trial have apparently been retained by the Government. Some of this material such as the slides and brochures, may be retained as contraband. Trupiano v. United States, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). However, other items--particularly the photographic equipment that was seized--should have been returned by the Government at least when appellants' counsel on appeal made an oral demand upon the Assistant United States Attorney after the convictions were obtained. While...