PEOPLE v. NISSINOFF

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence NISSINOFF et al., Defendants and Appellants.

Cr. 13281.

Decided: December 19, 1974

George T. Davis, San Francisco, for defendants and appellants. D. Lowell Jensen, Dist. Atty., Dennis M. Sullivan, Deputy Dist. Atty., Oakland, for plaintiff and respondent.

Defendants were convicted in an Alameda County municipal court of three counts of violation of Penal Code section 311.2. That statute, as relevant here, provides:

‘(a) 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 possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor. . . .’

‘Obscene matter,’ as the term is used in section 311.2, is defined by Penal Code section 311 in this manner:

‘(a) ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance. . . .'1

On defendants' appeal to the appellate department of the superior court their judgments of conviction were affirmed. Thereafter, on their petition for certiorari, the United States Supreme Court, 414 U.S. 1122, 94 S.Ct. 857, 38 L.Ed.2d 748 ordered that the cause be ‘remanded to the Appellate Department of the Superior Court of California, County of Alameda, for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973).’

On the remand the superior court reversed, concluding that sections 311 and 311.2 were unconstitutional, in that they ‘are not consistent with the guidelines established in Miller v. California and the scope of regulation is not limited to the depiction of sexual conduct specifically defined.’

Thereafter, on motion of the People and pursuant to rule 63, California Rules of Court, the superior court certified the case to this court, such certification appearing necessary ‘to secure uniformity of decision add/or to settle important questions of law.’

The definition of obscenity found in section 311 is derived from language of the United States Supreme Court found in Roth v. United States (1956) 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Memoirs v. Massachusetts (1965) 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. Under the test of those cases no constitutional fault was to be found with sections 311 and 311.2.

Bur Miller and its companion cases repudiated the requirement of Roth and Memoirs that the allegedly obscene matter be ‘utterly without redeeming social importance.’ In place of that test the court substituted a requisite that the questioned matter, taken as a whole, ‘not have serious literary, artistic, political, or scientific value.’ (Emphasis added; Miller, 413 U.S. p. 24, 93 S.Ct. p. 2615. It was in respect of this more recent standard that the superior court found the statutes ‘not consistent with the guidelines established in Miller v. California.’

Miller also stated that in order that obscenity statutes have constitutional validity, the proscribed matter ‘must be specifically defined by the applicable state law, as written or authoritatively construed.’ (Emphasis added; Miller, 413 U.S. p. 24, 93 S.Ct. p. 2615.) The second flaw found in the statutes by the superior court was lack of the specificity deemed required by Miller.

We direct our inquiry to whether sections 311 and 311.2 are in constitutional compliance in the manner now required by the notion's high court.

Initially we note that the People rely in part on People v. Enskat (1973) 33 Cal.App.3d 900, 109 Cal.Rptr. 433,2 decided by California's Court of Appeal for the Second District. That court found full constitutional compliance in the enactment of the statutes at issue. On the other hand, defendants rely heavily on an as yet unpublished opinion (Miranda v. Hicks; 1974) of the United States District Court for the Central District of California, which has reached a conclusion favorable to them. But each of these cases is eclipsed by the higher authority which we now proceed to discuss.

We first consider the debated question whether the continued inclusion in section 311's definition of the words of Roth and Memoirs, ‘utterly without redeeming social importance,’ and the absence therefrom of Miller's more recent requirement of no ‘serious literary, artistic, political, or scientific value,’ is constitutionally fatal.

The states are at liberty to impose more stringent standards for obscenity prosecutions than are constitutionally required. In one of Miller's companion cases, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 53–54, 93 S.C.t. 2628, 2633, 37 L.Ed.2d 446, it is said: ‘It should be clear from the outset that we do not undertake to tell the States what they must do, but rather to define the area in which they may chart their own course in dealing with obscene material.’ Winters v. New York (1947) 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840, holds that it is plainly within the power of the states to broaden the range of permissible conduct before punishable acts of obscenity are reached; the constitutional concern is only that the Legislature ‘does not transgress the boundaries fixed by the Constitution for freedom of expression.’ The basic rule is succinctly stated in 5 A.L.R.3d 1158, 1189, in this manner: ‘[A] state may permit greater freedom of speech and press than the Fourteenth Amendment would require, although it may not permit less.’

‘Social values' are those which are of significant concern to our society. By any test, ‘literary, artistic, political, [and] scientific value [s],’ are social values. Patently, if California's stricter requirement for prosecution—that the questioned matter be ‘utterly without redeeming social value’ (emphasis added)—is met, then the lesser constitutional standard of lack of any ‘serious literary, artistic, political, or scientific value’ (emphasis added) must necessarily appear. To borrow a phrase from the criminal law, Miller's presently applicable standard must be deemed ‘lesser than and included within’ the requirement of section 311, and the previous requisites of Roth and Memoirs. Or as tersely stated by a well-known maxim of jurisprudence: ‘The greater contains the less.’ (Civ.Code, § 3536.)

We conclude, as did the Court of Appeal in Enskat (33 Cal.App.3d pp. 910–912, 109 Cal.Rptr. 433), that section 311's requirement that the proscribed matter be ‘utterly without redeeming social importance’ meets the test of Miller.

We now consider whether sections 311 and 311.2 meet Miller's requirement that the proscribed conduct ‘must be specifically defined by the applicable state law, as written or authoritatively construed’ (emphasis added).

Miller's call for ‘specificity’ poses no novel statutory requirement. It simply expresses a concept essential to the validity of all criminal statutes. The rule was expressed in United States v. Harriss (1953) 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, in this manner: ‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’.' And it was stated in Keeler v. Superior Court (1970) 2 Cal.3d 619, 633, 87 Cal.Rptr. 481, 490, 470 P.2d 617, 626, as follows: ‘The first essential of due process is fair warning of the act which is made punishable as a crime. ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.’'

Applying this rule to earlier ‘obscenity’ statutes of California which were far less specific than those here in question, it was declared in Roth, 354 U.S. 476, 491–492, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498 that: ‘Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘. . . [T]he Constitution does not require impossible standards'; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices . . ..’ United States v. Petrillo, 332 U.S. 1, 7–8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘. . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . .. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense . . ..’ [Citations.] [¶] In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.' (Fns. omitted.) This language of Roth, insofar as we have been able to determine, has never been questioned.

In Mishkin v. New York (1965) 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56, the court was again called upon to determine whether an obscenity statute was sufficiently specific. The statute there at issue, as relevant, provided: ‘A person who . . . has in his possession with intent to sell, lend, distribute . . . any obscene . . . book . . . Is guilty of a misdemeanor.’ (Again the statute fell short of the specificity of those of the instant case.) The court held (p. 506, 86 S.Ct. p. 962): ‘The contention that the term ‘obscene’ is also impermissibly vague fails under our holding in Roth.'

Likewise, it is commonly held, as suggested by Miller, that the essential ‘specificity’ may appear from the language of the statute, or from its authoritative judicial construction, or both. Long before Miller, the United States Supreme Court in Bandini Co. v. Superior Court (1931) 284 U.S. 8, 18, 52 S.Ct. 103, 107, 76 L.Ed. 136, pointed out that a statute should not be found ‘invalid upon its face, merely by reason of uncertainty,’ if its construction by the state's highest court furnishes the necessary certainty. ‘The statute,’ the court said, ‘is to be read with the construction placed upon it by the state court.’ (And see 1 Witkin, Cal.Crimes, § 25, pp. 28–29.)

Debatably at least, the statutes under consideration, in the light of Miller and other recent United States Supreme Court cases, may on their face have some constitutional shortcomings. Some might accept the argument that they penalize mere preparation or possession of obscene material, or that they operate against use of such matter in the privacy of one's home, or that they proscribe a ‘shameful’ interest in nudity or ‘excretion’ alone, or that they relate to something less than the ‘hard core pornography,’ traffic in which may be forbidden.

But sections 311 and 311.2 have been ‘authoritatively construed’ by California's Supreme Court not to apply in such situations.. Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 914, 31 Cal.Rptr. 800, 383 P.2d 152, cert. den. 375 U.S. 957, 84 S.Ct. 445, 11 L.Ed.2d 315, makes clear that they are applicable to ‘hard core’ matter alone. People v. Luros (1971) 4 Cal.3d 84, 92, 92 Cal.Rptr. 833, 838, 480 P.2d 633, 638, cert. den. 404 U.S. 824, 92 S.Ct. 51, 30 L.Ed.2d 52, holds that they do not regulate ‘private possession of obscenity,’ and that they do not ‘reach into the privacy of one's own home.’ Nor, according to In re Klor (1966) 64 Cal.2d 816, 819–821, 51 Cal.Rptr. 903, 906, 415 P.2d 791, 794, does the mere ‘preparation’ of obscene material, or its production for ‘the personal enjoyment of the creator,’ violate sections 311 and 311.2. The court held in People v. Noroff (1967) 67 Cal.2d 791, 797, 63 Cal.Rptr. 575, 579, 433 P.2d 479, 483, cert. den. 390 U.S. 1012, 88 S.Ct. 1261, 20 L.Ed.2d 161, ‘that the representation of the nude human form in a nonsexual context is not obscene,’ this is so, it was said ‘no matter how ugly or repulsive the presentation.’ And that obscenity may exist only in the context of some sort of sexual activity is made clear by In re Panchot (1968) 70 Cal.2d 105 108–109, 73 Cal.Rptr. 689, 448 P.2d 385, and In re Giannini (1968) 69 Cal.2d 563, 573, 72 Cal.Rptr. 655, 446 P.2d 535 (cert. den. 395 U.S. 910, 89 S.Ct. 1743, 23 L.Ed.2d 223; overruled on unrelated ground, Crownover v. Musick (1973) 9 Cal.3d 405, 431, 107 Cal.Rptr. 681, 509 P.2d 497). This judicial construction, coupled with the language of the statutes, restricts the proscribed conduct and matter to that which the United States Supreme Court has held may be constitutionally banned. And it ‘conveys sufficiently definite warning as to the proscribed conduct.’

We reject the argument that Miller's demand for specificity requires a detailed statutory enumeration and description of all of the types of sexual activity sought to be proscribed as obscene. Roth, as we have indicated (354 U.S. p. 491, 77 S.Ct. 1304) holds that such detail is not required, even in an obscenity statute. As said in Reid & Sibell v. Gilmore & Edwards Co., 134 Cal.App.2d 60, 70, 285 P.2d 364, 371: “To make a statute sufficiently certain to comply with constitutional requirements it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited.” And Miller (413 U.S. p. 28, 93 S.Ct. p. 2617) concludes that obscenity statutes may be upheld, despite ‘the inability to define regulated [obscene] materials with ultimate, god-like precision . . ..’

We accordingly conclude that the language of sections 311 and 311.2, as construed by the state's Supreme Court, specifically defines the type of obscene material and activity proscribed thereby.

For the reasons stated, we hold the Penal Code sections 311 and 311.2, considered in the light of Miller and its companion cases, meet all pertinent requirements of the federal Constitution.

The judgments of the municipal court are affirmed.

FOOTNOTES

1.  The full text of section 311 follows:‘As used in this chapter:(a) ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.(1) The predominant appeal to prurient interest of the matter is judged with reference to average adults unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition, that it is designed for clearly defined deviant sexual groups, in which case the predominant appeal of the matter shall be judged with reference to its intended recipient group.(2) In prosecutions under this chapter, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance.(b) ‘Matter’ means any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.(c) ‘Person’ means any individual, partnership, firm, association, corporation, or other legal entity.(d) ‘Distribute’ means to transfer possession of, whether with or without consideration.(e) ‘Knowingly’ means being aware of the character of the matter or live conduct.(f) ‘Exhibit’ means to show.(g) ‘Obscene live conduct’ means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming, where, taken as a whole, the predominant appeal of such conduct to the average person, applying contemporary standards is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is conduct which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is conduct which taken as a whole is utterly without redeeming social importance.(1) The predominant appeal to prurient interest of the conduct is judged with reference to average adults unless it appears from the nature of the conduct or the circumstances of its production, presentation or exhibition, that it is designed for clearly defined deviant sexual groups, in which case the predominant appeal of the conduct shall be judged with reference to its intended recipient group.(2) In prosecutions under this chapter, where circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the conduct and can justify the conclusion that the conduct is utterly without redeeming social importance.'

2.  A hearing was denied by the Supreme Court of California, and certiorari was thereafter denied by the United States Supreme Court in 418 U.S. 937, 94 S.Ct. 3225, 41 L.Ed.2d 1172.

ELKINGTON, Associate Justice.

MOLINARI, P. J., and SIMS, J., concur.