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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. David NOROFF et al., Defendants and Respondents.

Cr. 13056.

Decided: April 13, 1967

Roger Arnebergh, City Atty., Philip E. Grey, Asst. city Atty., and Michael T. Sauer, Deputy City Atty., for appellant. Gerald J. Levie, Los Angeles, and Herald Price Fahringer, Buffalo, N.Y., of counsel, for respondents.

These criminal proceedings were instituted by the filing of complaints in the Municipal Court for the Los Angeles Judicial District charging each of the defendants with the violation of section 311.2 of the Penal Code.1

The complaint against defendant Noroff alleges that on January 29, 1966, he “did wilfully and unlawfully and knowingly send and cause to be sent, bring and cause to be brought into this state for sale and distribution, and in this state prepare, publish, print, exhibit, distribute, offer to distribute, and have in his possession with intent to distribute and to exhibit and offer to distribute, obscene matter, to wit:  A MAGAZINE I N S INTERNATIONAL NUDIST SUN Vol. 1 No. 5.”   The complaint against defendant Mag's Incorporated alleges that it committed the same misdemeanor with respect to the same magazine on February 7, 1966.   Both complaints are substantially in the language of section 311.2 of the Penal Code.

Defendants filed demurrers to these complaints on the stated ground, among others, that “The Complaints fail to state a public offense in that the magazine therein, entitled International Nudist Sun, Vol. 1 No. 5, is protected by the free speech and press provisions of the First and Fourteenth Amendments to the United States Constitution and Article I, § 9 of the California Constitution.”   These demurrers were heard and overruled.

The minutes of the trial court show that when the cases were subsequently called for trial in another division of the court, a “Motion of defendants to dismiss on constitutional grounds [was] made in chambers out of presence of Jury.”   At the conclusion of the arguments, and after reviewing the magazine, the court ruled, to quote from the transcript, “as a matter of law that said magazine is not obscene within the Penal Code definition of obscenity,” and ordered each case dismissed.

The People appealed to the appellate department of the superior court on the grounds set forth in the settled statements:  “1) The trial court committed prejudicial and reversible error in dismissing the action before defendants had been placed in jeopardy on the ground stated, or on any other ground.   2) the magazine—INS International Nudist Sun, Vol. 1, No. 5—is obscene and is not constitutionally protected.   3) The right of the People to have a jury determination of the question of obscenity.”

The majority opinion of the appellate department held the defendants' motions to dismiss were properly granted upon the basis of the trial court's conclusion that the magazine in question “is within the ambit of constitutional protection, presumably meaning the First and Fourteenth Amendments of the federal Constitution and Article I, section 9, of the California Constitution.”

With further reference to the basis of the trial court's judgment, the majority opinion of the appellate department states as follows in a footnote:  “No specification as to the precise constitutional provisions invoked by either court or counsel appears in the record.   The trial judge in ruling upon the motions stated ‘the Court rules as a matter of law that said magazine is not obscene within the Penal Code definition of obscenity.’   The settled statement on page 2 reads in relevant part, ‘Judge Smith ruled that the magazine, INS International Nudist Sun, Vol. I, No. 5, was constitutionally protected and therefore not obscene within the definition of Penal Code 311(a).’   We shall treat the ruling to be that the magazine was constitutionally protected under the constitutional provisions cited above as interpreted by Roth v. U.S. (1957) 354 U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498] and subsequent related cases and Zeitlin v. Arnebergh (1963) 59 Cal.2d 901 [31 Cal.Rptr. 800, 383 P.2d 152].”

The magazine in question was accurately described as follows in the dissenting opinion of Judge Breitenbach:  “The magazine consists of thirty-two pages, including the covers, and contains sixty-two photographs, mostly in color, of eighty-three nude persons, twenty-seven of whom are men, and fifty-six of whom are women.

“On each of fourteen pages there appears a very small portion of the text of two articles.   One is entitled ‘Fundamental Philosophy’, and the other ‘Virtue of Nudism.’   Both articles consist of inane platitudes, utterly devoid of any real sense, and utterly without any social significance or importance whatever.  * * *

“The publication does not depict the normal family activities at a nudist colony or sun-bathing camp.   The emphasis throughout is upon the male, and more particularly, the female, genitalia, both shaved and unshaved.   It is not merely another ‘girlie’ or ‘nudist’ magazine.  * * * The settings themselves, some outdoors and crudely bucolic, and many others indoors and strangely artificial, are largely incompatible with the photographs which they background.

“The photographs depict men and women, both individually and together.   Some are holding hands, while others are holding each other, and still others are dallying and gamboling on the green.

‘These pictures were obviously posed to invite particular attention to the pubic hairs and the sexual organs for the deliberate purpose of arousing sexual passion.   Nearly all are seductively and suggestively posed in such a manner as to appeal solely to the prurient interest.   Emphasis throughout the magazine is upon the lewd and enticing positions and postures of the women, upon the fact that the pubic areas are both bare, and fully exposed, and upon the fact that the poses and the poseurs over-accentuate their pubic areas and their genitalia.   Several of the women are lying flat on their backs.   Some are lying on their backs with their arms and legs fully spread-eagled, obviously for the purpose of appealing to prurient interest.   Genitalia are prominently and flagrantly displayed.   Primary and secondary sex organs are patently and offensively exhibited.   Nothing is left to the imagination.  * * * Thus, for example, in several pictures the pubic hairs of the female mons Veneris appear to have been freshly shaved.”   To this description we add the further observation that the focal aim of the camera in the great majority of the instances is directed at the region of the genitalia, which, rather than being an incidental part of the picture, have been made the center of attention.

The appellate department certified the case to this court by an order stating:  “The constitutional issue is whether the magazine ‘INS International Nudist Sun, Vol, I, No. 5’ is obscene within the meaning of Penal Code, Section 311(a) and hence without the constitutional protection of the First and Fourteenth Amendments of the United States Constitution and of Article I, section 9 of the California Constitution, when the issue is presently by the prosecution upon the basis of the material itself without any other evidence whatsoever.”

As we viewed the case at the time we accepted certification, and as we view it now, the determinative question presented for our decision is as follows:

 Did the trial court err in deciding the issue as to the obscenity of the magazine here involved as a pure issue of law on defendants' pretrial motion to dismiss and solely on the basis of the court's examination of the magazine?

We hold that this question must be answered in the affirmative.   The ruling of the trial court erroneously deprived the People of their right to a jury trial on the issue of obscenity and of their further right to introduce competent evidence relevant to the issues tendered by the complaints and the defendants' pleas of not guilty.

In Zeitlin v. Arnebergh, 59 Cal.2d 901, 31 Cal.Rptr. 800, 383 P.2d 152, our Supreme Court made a thorough and extensive analysis of the then precedent decisions of the United States Supreme Court and of numerous other federal and state courts dealing with this subject matter.   On the basis of that analysis the court stated the tests to be applied in determining whether or not any given item of questioned material “lies outside the protective embrace of the First Amendment.”  (P. 918, 31 Cal.Rptr. p. 811, 383 P.2d p. 163)

In Zeitlin the court traced the legislative history of section 311 of our Penal Code and observed that the Legislature had “patterned its definition of obscenity upon that set forth in the American Law Institute's Model Penal Code (§ 207.10), portions of which had been approved as constitutionally permissible standards by the United States Supreme Court in Roth v. United States, supra (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.”  (P. 911, 31 Cal.Rptr. p. 807, 383 P.2d p. 159)

Our statutory definition thus sanctioned is as follows:

“ ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.”  (Pen.Code § 311, subd. (a).)

That the foregoing statutory definition is consistent with constitutional requirements is further indicated by the following language of Mr. Justice Brennan in A Book, etc. v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, 977, 16 L.Ed.2d 1, 5–6:

“We defined obscenity in Roth in the following terms:  ‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’  354 U.S., at 489, 77 S.Ct., at 1311 [1 L.Ed.2d, at 1509].   Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;  (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters;  and (c) the material is utterly without redeeming social value.”

 Recent decisions of the United States Supreme Court make it clear that although the reviewing courts are not bound by the finding of the trier of the facts that a given publication “lies outside the protective embrace” of the applicable constitutional provisions, nevertheless the trier of the facts should first determine all issues bearing upon the guilt of the defendant, including the issue as to the obscenity of the material viewed in the factual context of the case as developed by the evidence.  (A Book, etc. v. Attorney General, supra, 383 U.S. 413, 86 S.Ct. 975.)   In making its determination “the reviewing court must make an independent examination of the whole record.”   (Zeitlin v. Arnebergh, supra, 59 Cal.2d 901, 909, 31 Cal.Rptr. 800, 805, 383 P.2d 152, 157.)

“The question whether a particular book or magazine is within the protection of the First Amendment requires a delicate constitutional judgment.   This is not a judgment that can be made at a high level of abstraction.   An independent evaluation must be made of the facts of each case.”  (United States v. Luros, D.C., 243 F.Supp. 160, 166.)

 The impropriety of the action of the trial court in undertaking to decide the instant case on the basis of its examination of the magazine alone is made even clearer by more recent decisions of the United States Supreme Court.   As stated by Chief Justice Warren in his concurring opinion in Roth v. United States, 354 U.S. 476, 495, 77 S.Ct. 1304, 1314, 1 L.Ed.2d 1498:

“The line dividing the salacious or pornographic from literature or science is not straight and unwavering.   Present laws depend largely upon the effect that the materials may have upon those who receive them.   It is manifest that the same object may have a different impact, varying according to the part of the community it reached.   But there is more to these cases.   It is not the book that is on trial;  it is a person.   The conduct of the defendant is the central issue, not the obscenity of a book or picture.   The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character.   A wholly different result might be reached in a different setting.”  (Emphasis added.)

In Ginzburg v. United States, 383 U.S. 463,86 S.Ct. 942, 16 L.Ed.2d 31, the defendants were convicted of using the mails to distribute obscene literature.   In affirming the convictions the United States Supreme Court assumed, without deciding, that the publications, standing alone, might not be held obscene.   The court held, however, that the evidence relating to the merits of the publication, coupled with evidence as to the manner in which the material had been advertised and exploited, was sufficient to support the judgment.   The following are excerpts from the majority opinion:

“Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering—‘the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.’ ”  (86 S.Ct. p. 945, 16 L.Ed.2d p. 36)

“This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt.   The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient;  he looks for titillation, not for saving intellectual content.   Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work;  the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material.   And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality—whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes.   Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.   Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.”   (86 S.Ct. p. 947, 16 L.Ed.2d p. 38)

Essentially the same approach was adopted by our Supreme Court in In re Klor, 64 Cal.2d 816, 821, 51 Cal.Rptr. 903, 906, 415 P.2d 791, 794, wherein it was stated:  “[T]he central issue in a criminal obscenity trial pivots on the potentially punishable conduct of the defendant rather than upon the allegedly obscene nature of the material.  [Citation.]  No constitutionally punishable conduct appears in the case of an individual who prepares material for his own use or for such personal satisfaction as its creation affords him.”

These expressions find support in the Comments of the draftsmen of the American Law Institute's Model Penal Code Tentative Draft No. 6 that has been consistently cited by our highest state and federal courts and whose definition of obscenity was the pattern used by our Legislature in enacting our present penal statutes on the subject.  (Zeitlin v. Arnebergh, supra, 59 Cal.2d 901, 911, 31 Cal.Rptr. 800, 383 P.2d 152.)   Among the apposite postulates enunciated in these Comments are the following:

“ ‘[A]ppeal to prurient interest’ refers to qualities of the material itself;  the capacity to attract individuals eager for a forbidden look behind the curtain of privacy which our customs draw about sexual matters.   Psychiatrists and anthropologists see the ordinary person in our society as caught between normal sex drives and curiosity, on the one hand, and powerful social and legal prohibitions against overt sexual behavior.   The principal objective of [obscenity legislation] is to prevent commercial exploitation of this psycho-sexual tension.”  (Emphasis added.)  (P. 10)  “The gist of the offense we envisage, therefore, is a kind of ‘pandering’.”  (P. 14)

 In sum, although the ultimate constitutional fact in issue remains a question of law to be decided by the court, it will be a rare case, particularly when pictorial material is involved, when a trial court may properly undertake to determine this issue prior to trial by a mere examination of the material itself unaided by expert testimony or evidence relating to the conduct of defendant in connection with the material.   In Landau v. Fording, 245 A.C.A. 872, 876–877, 54 Cal.Rptr. 177, 180, the court disposed of the contention that “the trial court erred in admitting the testimony of the expert witnesses and in failing to base its conclusions solely on the viewing of the film” in the following language:

“In almost every field of the law, expert testimony is permitted on subjects concerning which the judge or administrator has no specialized competence.   So here, the lower court properly received evidence to assist in the determination of contemporary community standards as well as the artistic merit and social importance of the film.  [Citation.]”

In People v. Williamson, 207 Cal.App.2d 839, 846, 24 Cal.Rptr. 734, in sustaining the right of the People to introduce expert testimony relating to community standards, this court adopted the language of Mr. Justice Frankfurter in his concurring opinion in Smith v. People of State of California, 361 U.S. 147, at page 165, 80 S.Ct. 215, at page 225, 4 L.Ed.2d 205:  “It bears repetition that the determination of obscenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of ‘contemporary community standards.’ ”

In In re Harris, 56 Cal.2d 879, 880, 16 Cal.Rptr. 889, 366 P.2d 305, our Supreme Court unqualifiedly held that it was a denial of due process for the trial court not to allow a defendant to prove contemporary community standards by means of “expert testimony, comparable writings and pictures adjudged in Los Angeles County to be not obscene, and comparable writings and publications purchased in the community.”

 Although ordinarily it might be regarded as too elementary to deserve specific comment, in the context of the instant appeal it appears appropriate to endorse appellant's observation that in this state the right to a jury trial is vested in the People as well as in the defendant.  (Cal.Const., art. 1, § 7;  People v. Spender, 170 Cal.App.2d 145, 149, 338 P.2d 484, and cases cited.)   Further, as noted in the Comments to the American Law Institute's Model Penal Code Tentative Draft No. 6, page 47:  “Jury trial in this field [obscenity prosecutions] has the merit of requiring unanimous condemnation by this ample of the general population on issues which seem to be peculiarly within their competence:  what is the predominant appeal of the material to the ordinary adult, and what are the outer limits of custom in description or representation of sexual matters.”

 Respondents are mistaken in asserting that the People stipulated to a submission of the case on the basis of the magazine alone.   The record discloses that counsel entered into no such inappropriate stipulation.   Counsel for the People stated only that he had no objection to the trial court's looking at the magazine for the purpose of determining whether or not a triable issue was presented.   He argued the valid contention that an examination of the magazine would demonstrate immediately and unquestionably the existence of a triable issue as to its obscenity.   Manifestly he indicated no intention to waive the People's right to a jury trial or the right to produce all relevant evidence bearing upon the issues determinative of the guilt of the defendants.

The judgments of dismissal are reversed and the causes are remanded to the trial court for trial on the merits.


1.   Penal Code, section 311.2, reads:  “Every person who knowingly:  sends or causes to be sent, or brings or causes to be brought, into this State for sale or distribution, or in this State prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor.”

FLEMING, J., and McCOY, J. pro tem.* concur.