PEOPLE v. LUCERO

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

The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, Jose Ronillo Abogado LUCERO, et al., Real Parties in Interest.

No. B029746.

Decided: February 17, 1988

John A. Vander Lans, City Prosecutor, Robert R. Recknagel, Asst. City Prosecutor, Gerry L. Ensley, Deputy City Prosecutor, for petitioner. No appearance for respondent. Fleishman, Fisher & Moest, Stanley Fleishman, Barry A. Fisher, Robert C. Moest and David Grosz, Los Angeles, for real parties in interest.

This petition for a writ of mandate involves the question of the amount of “use” necessary to make a theater an “adult motion picture theater” within the meaning of Chapter 21.51 of the Long Beach Municipal Code, a zoning ordinance which regulates the location of “adult entertainment businesses” in the City of Long Beach.1

In misdemeanor complaints, real parties in interest, Jose Ronillo Abogado Lucero, Walnut Properties, Inc. and Jimmie Johnson, were charged with numerous counts of unlawfully establishing an adult entertainment business within 500 feet of an area zoned for residential use, within 1,000 feet of a public school and within 1,000 feet of a church in violation of section 21.51.030 of the Long Beach Municipal Code.  (Long Beach Municipal Court cases M230180, M230181, M230182.)

In each count of the complaints it was specifically alleged that real parties in interest unlawfully exhibited a particular X-rated movie on a particular day at the Lakewood Theater, an adult motion picture theater, within the proscribed distances noted above.

Real parties in interest challenged the propriety of the misdemeanor complaints by way of demurrer.   Following the overruling by the trial court of their demurrers, real parties in interest petitioned the superior court for an order restraining the proceedings or compelling dismissal of the underlying prosecutions.

The trial court granted real parties in interest the relief sought determining “that, pursuant to controlling authority, the proceedings against petitioners under the allegations of the complaints filed in the respondent court subject the petitioners to a deprivation of rights secured by the first and fourteenth amendments to the United States Constitution and article I, section 2, of the California Constitution, ․”

A reading of the reporter's transcript of the hearing on the petition in the lower court indicates that the trial court granted the petition because the complaints failed to allege that the X-rated films exhibited met the preponderance standard established in Pringle v. City of Covina (1981) 115 Cal.App.3d 151, 171 Cal.Rptr. 251.

In Pringle, Division Three of this court had occasion to examine a City of Covina adult entertainment zoning ordinance which, like the ordinance under attack in this case, prohibited the location of adult motion picture theaters within proscribed areas.

Construing the Covina ordinance so as to preserve its constitutionality, the Pringle court held that “a preponderance of the films shown must have as their dominant theme the depiction of the ordinance's enumerated sexual activities in order for a theatre to be deemed an ‘adult motion picture theatre’ within the ambit of the zoning ordinance.”  (115 Cal.App.3d at p. 163, 171 Cal.Rptr. 251;  original italics.)

On September 4, 1987, pursuant to section 904.1, subdivision (a) of the Code of Civil Procedure, the People of the State of California petitioned this court for a writ of mandate to compel the Los Angeles Superior Court to vacate its August 5, 1987, Judgment For Issuance of Peremptory Writ of Mandate which ordered the Long Beach Municipal Court to sustain, with 30 days leave to amend, the demurrers of real parties in interest to the misdemeanor complaints.

On September 9, 1987, this court denied the People's petition for writ of mandate.

On November 18, 1987, this state's high court granted the People's petition for review, transferred the case back to us and directed us to issue an alternative writ.   On December 3, 1987, we complied with the Supreme Court's order.

CONTENTIONS

The People contend (1) that Walnut Properties, Inc. v. Ussery (Cal.App. Nos. B005781 and B006024 rev. den. June 24, 1986, and opn. ordered nonpub.) (hereafter Ussery ) is controlling in this case either as the law of the case or under the doctrine of collateral estoppel;  (2) that Pringle was incorrectly decided;  and (3) that the “single-instance” of use is the only constitutional standard consonant with common sense.

DISCUSSION

I

We reject as meritless the People's contention that Ussery is controlling in this case either as the law of the case or under the doctrine of collateral estoppel.

After Pringle was decided by Division Three of this court, Walnut Properties, Inc. filed an action for injunctive and declaratory relief against Charles B. Ussery, the Chief of Police for the City of Long Beach, and John A. Vander Lans, the Long Beach City Prosecutor, to prevent enforcement of the same Long Beach City ordinance under attack in this case as long as it did not operate the Lakewood Theater as an adult motion picture theater as that term is defined in Pringle.

In Ussery, the Lakewood Theater had two screens and exhibited general release, as well as adult, films;  however, the former always ran longer than the latter.   Because the “preponderance” of films displayed were general release films, judgment in favor of plaintiff was entered.

The People thereafter appealed, contending among other things, that Pringle was improperly decided and should not be followed.

In a published opinion, Division One of this court agreed and refused to follow Pringle.   The Ussery court reversed the judgment concluding that “a zoning ordinance which prohibits a single isolated showing of an adult motion picture in a theater not zoned as an adult motion picture theater does not violate First Amendment protections of free speech.”  [Formerly 178 Cal.App.3d 186, 195, 223 Cal.Rptr. 511.]   The court further concluded that equal protection was not violated by a zoning classification which regulated the exhibition of films by content—i.e., permitted exhibition of adult films in certain areas while prohibiting their exhibition in other areas.  [Formerly 178 Cal.App.3d 186, 196, 223 Cal.Rptr. 511.]

Although the People's petition for review was denied, the Supreme Court directed the reporter of decisions not to publish the Ussery opinion.

A. Law of the Case

 “The doctrine of ‘law of the case’ deals with the effect of the first appellate decision on the subsequent retrial or appeal:  The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 737, p. 705.)

The cases before us are criminal ones instituted well after Ussery, a civil case, became final.   Because the criminal cases presently before us and Ussery are not the “same case” the doctrine of law of the case does not apply.

B. Collateral Estoppel

 The determination of a question of law in a prior case will not be given collateral estoppel effect in a subsequent case between the same parties “either if injustice would result or if the public interest requires that relitigation not be foreclosed.”  (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, 160 Cal.Rptr. 124, 603 P.2d 41.)   Both of these considerations are present in this case.

The determination of the amount of “use” required to render a theater an adult motion picture theater within the meaning of an adult business zoning ordinance is a question of law.

If Ussery were given collateral estoppel effect in this case, the single instance standard would apply to Lakewood Theater and the preponderance standard enunciated in Pringle which is the only published decision on this issue would apply to all other theaters.   Such a result would clearly be unjust and would disserve the public interest.   Accordingly, the doctrine of collateral estoppel has no application in this case.

II

 The People contend that Pringle was incorrectly decided.   We disagree.

We followed Pringle in City of Whittier v. Walnut Properties, Inc. (1983) 149 Cal.App.3d 633, 642–643, 197 Cal.Rptr. 127, and Division One of the Fourth Appellate District followed it in Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369, 181 Cal.Rptr. 1 and in Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 200 Cal.Rptr. 47.   We continue to follow Pringle today.

Moreover, we reject as meritless, the People's contention that a single showing of an adult film makes a theater an adult motion picture theater as that term is defined in the zoning ordinance.

In Tollis, Inc. v. San Bernardino County (9th Cir.1987) 827 F.2d 1329, the Ninth Circuit Court of Appeals held that such an interpretation of an adult business zoning ordinance was unconstitutional in the absence of evidence “that a single showing of an adult movie would have any harmful secondary effects on the community.”  (Id., at p. 1333.)

Citing Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, the Tollis court stated:

“The County has thus failed to show that the ordinance, as interpreted by the County to include any theater that shows an adult movie a single time, is sufficiently ‘ “narrowly tailored” to affect only that category of theatres shown to produce the unwanted secondary effects.’  Renton, 106 S.Ct. at 931.   Nor do we see how the County could make such a showing, since it is difficult to imagine that only a single showing ever, or only one in a year, would have any meaningful secondary effects.   We therefore affirm the district court's injunction against enforcing the ordinance as the County at present interprets it.”  (827 F.2d at p. 1333.)

III

In the present case, the trial court rightfully concluded that Ussery had no collateral estoppel effect and that it was bound by the Pringle decision.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, 20 Cal.Rptr. 321, 369 P.2d 937.)   The complaint did not allege, in accordance with the requirements of Pringle, that the preponderance of films exhibited and observed by patrons at the Lakewood Theater were “distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specific anatomical areas” (§ 21.51.020(A) of the Long Beach Municipal Code) as those terms are defined in section 21.51.020(B)(1–7) and (C)(1–2) of the Long Beach Municipal Code.

Accordingly, we conclude that the superior court's decision to issue a writ of mandate to direct the Long Beach Municipal Court to sustain the demurrers of real parties in interest to the misdemeanor complaints charging them with violating section 21.51.030 of the Long Beach Municipal Code was a correct one.

Petition for writ of mandate is denied.

APPENDIX

LONG BEACH MUNICIPAL CODE CHAPTER 21.51SECTION 21.51.010 PURPOSE.

The city council finds that adult entertainment businesses, because of their very nature, are recognized as having objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas.   Special locational regulation of these businesses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods.   The primary purpose of the regulation is to prevent the concentration or clustering of these businesses in any one area.   This chapter shall be deemed a reenactment of the preexisting ordinance on this subject matter.  (Ord. C–5487 § 1 (part), 1979:  prior code § 9120.17(a)).

SECTION 21.51.020 DEFINITIONS.

A. For purposes of this chapter, the adult entertainment businesses are defined as follows:

3

2. “Adult motion picture theater” means an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.

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B. For purposes of this chapter, “specified sexual activities” shall include the following:

1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct:  analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty;  or

2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence;  or

3. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejactulation;  or

4. Fondling or touching of nude human genitals, pubic region, buttocks or female breast;  or

5. Masochism, erotic or sexually oriented torture, beating or the infliction of pain;  or

6. Erotic or lewd touching, fondling or other contact with an animal by a human being;  or

7. Human excretion, urination, menstruation, vaginal or anal irrigation.

C. For purposes of this chapter, “specified anatomical areas” shall include the following:

1. Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola;  and

2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.  (Ord. C–5487 § 1 (part), 1979:  prior code § 9120.17(b)).

SECTION 21.51.030 LOCATION RESTRICTED.

A. In those land use districts where the adult entertainment businesses regulated by this chapter would otherwise be permitted uses, it shall be unlawful to establish any such adult entertainment business if the location is:

1. Within five hundred feet of any area zoned for residential use;

2. Within one thousand feet of any other adult entertainment business;  or

3. Within one thousand feet of any public or private school, park, playground, public building, church, any noncommercial establishment operated by a bona fide religious organization, or any establishment likely to be used by minors.

B. The establishment of any adult entertainment business shall include the opening of such a business as a new business, the relocation of the business, or the conversion of an existing business location to any adult entertainment business use.   (Ord. C–5487 § 1 (part), 1979:  prior code § 9120.17(c)).

SECTION 21.51.040 VARIANCE.

A. Any property owner or his authorized agent may apply for relief from the locational provisions of this chapter by applying for a standards variance as provided in this title.   To grant such a request the following additional findings must be made:

1. That the proposed use will not be contrary to the public interest or injurious to nearby properties and that the spirit and intent of this chapter will be observed;

2. That the proposed use will not enlarge or encourage the development of a skid row area;

3. That the establishment of an additional regulated use in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any program of urban renewal;  and

4. That all applicable regulations of the municipal code will be observed.

B. The procedure for this hearing shall be the same as that provided for a standards variance in this title.  (Ord. C–5487 § 1 (part), 1979:  prior code § 9120.17(d)).

FOOTNOTES

1.   Chapter 21.51 of the Long Beach Municipal Code is set forth in the appendix to this opinion.

McCLOSKY, Acting Presiding Justice.

GEORGE and ROTHMAN *, JJ., concur.