Woodford v. Municipal Court

• Decision Date: 20 February 1974
• Citation: 112 Cal.Rptr. 773,37 Cal.App.3d 874
• Court: California Court of Appeals Court of Appeals
• Parties: Robert WOODFORD et al., Plaintiffs and Appellants, v. MUNICIPAL COURT, SAN DIEGO JUDICIAL DISTRICT, et al., Defendants and Respondents. Civ. 12829.

Page 773

112 Cal.Rptr. 773

37 Cal.App.3d 874

Robert WOODFORD et al., Plaintiffs and Appellants, v. MUNICIPAL COURT, SAN DIEGO JUDICIAL DISTRICT, et al., Defendants and Respondents.

Civ. 12829.

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

Feb. 20, 1974.

Gostin & Katz, Inc. and Louis S. Katz, San Diego, for plaintiffs and appellants.

John W. Witt, City Atty., Stuart H. Swett, Chief Crim. Deputy and Harold A. Bromfield, Deputy City Atty., for defendants and respondents.

AULT, Associate Justice.

Petitioners appeal from the superior court's judgment of dismissal entered after a demurrer to their first amended petition for a writ of prohibition/mandamus and/or declaratory relief was sustained without leave to amend. ¹

PETITION

The first amended petition alleged the following facts. Petitioners own, operate and manage the Guild Theater, the Academy Theater and the Fine Arts Theater in San Diego. On December 9, 1971 San Diego police, pursuant to a warrant, seized from the Guild Theater a copy of the motion picture film, 'Mona, the Virgin Nymph' ('Mona'). Because of showing the film, petitioners have been charged in the municipal court with exhibiting an obscene film in violation of Penal Code section 311.2, a misdemeanor, in case numbers M--107920 through M--107922.

It is further alleged petitioners pleaded not guilty, then filed motions to suppress evidence pursuant to Penal Code section 1538.5, nonstatutory motions to dismiss based upon nonobscenity of the film, and a motion to bar further prosecution on the ground of collateral estoppel (see Pen.Code § 1538.5(n)). After a hearing on March 7, 1972, a municipal court judge denied all motions. The cases are now at issue and set for trial in the municipal court, with trial temporarily stayed by order of the superior court.

On the issue of collateral estoppel, the petition alleges the judge made the following findings: substantially the same film as involved here was admitted in evidence in the Palo Alto-Mountain View Municipal Court trial of People v. Rocci Borelli; in that case the only contested issue was the obscenity Vel non of 'Mona', scienter being admitted; on March 31, 1971, after an eight-day jury trial, Borelli was acquitted; the plaintiff is the same in that case and this one, and the expert testimony undoubtedly will be the same, but the defendants are different.

Although 'Mona' has been adjudicated not obscene in two other counties, it is alleged the police threaten to seize additional copies of 'Mona' if petitioners show the film again in San Diego; such conduct will deprive petitioners of substantial property rights and will violate their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution. There is an actual controversy between the parties as to whether the film is obscene; respondents threaten to continue to harass petitioners; petitioners have no plain, speedy or adequate remedy at law.

In the prayer petitioners asked for a writ of prohibition to prohibit the municipal court from admitting the seized film into evidence in any criminal proceeding without a prior determination by the superior court concerning the issues of obscenity and collateral estoppel. Petitioners also asked the court to hold 'a full, evidentiary

hearing' and to declare the film to be not obscene.

RESPONSE AND RULING

In response to the amended petition, respondents filed points and authorities in opposition, a demurrer, and an answer.

On August 1, 1972 the superior court sustained the demurrer without leave to amend on four grounds: writ review of a section 1538.5 proceeding is not available in misdemeanor cases (see Pen.Code § 1538.5(i)); the facts alleged do not support the general allegation that there is no plain, speedy, adequate remedy at law; there are no facts showing the municipal court acted arbitrarily; there is no 'petition for declaratory relief' which can be used as a writ of review. The minutes state the ruling is without prejudice to petitioners' right to file a complaint for declaratory relief.

DISCUSSION

On appeal petitioners' contentions all relate to their claim the People are barred from prosecuting them for exhibiting 'Mona' because of Borelli's acquittal in Palo Alto where he was tried for showing substantially the same film. Where scienter is admitted in an obscenity prosecution, they maintain the sole issue is the characterization of the material. Since Borelli was acquitted, they contend the jury necessarily found the film not obscene, and argue that the People are barred or estopped from introducing contrary evidence in a later prosecution of a different defendant. They rely upon Bernhard v. Bank of America, 19 Cal.2d 807, 812--813, 122 P.2d 892, which held a plea of res adjudicata is valid if the identical issue was decided in a prior final judgment on the merits and the party against whom the plea is now asserted was a part to that adjudication; mutuality of estoppel is not required.

More in point is the criminal case of People v. Seltzer, 25 Cal.App.3d Supp. 52, 101 Cal.Rptr. 260, where the identical issue raised here by petitioners was made and rejected. The court pointed out the holding of Bernhard has not been given universal application (see citations and discussion at pp. 54--56 of 25 Cal.App.3d Supp., 101 Cal.Rptr. 260) and held the defense of collateral estoppel was not available to defendants where they had not been parties in or privy to the prior obscenity prosecution (p. 57 of 25 Cal.App.3d Supp., 101 Cal.Rptr. 260). At page 56 of 25 Cal.App.3d Supp., 101 Cal.Rptr. at page 263, the court stated:

'In the enforcement of laws against obscenity, multiple and successive prosecutions of different defendants based upon the sale or exhibition of the same book or film will naturally occur. If the People are successful in one or a dozen or more of such prosecutions, they cannot use those convictions against other defendants who sell or exhibit the same material. If one defendant succeeds in obtaining an adjudication of nonobscenity, the public policy of this state should not be to preclude the People...