People v. Luros

480 P.2d 633, 4 Cal. 3d 84, 92 Cal. Rptr. 833, 1971 Cal. LEXIS 301

• Court: California Supreme Court
• Decided: February 18, 1971
• Docket: Crim. 13153
• Status: Published

Opinions

Opinion

SULLIVAN, J.

Defendants, Milton Luros, Reuben Sturman, World Wide News and London Press, Inc., were indicted in June 1966 by the Grand Jury of Los Angeles County for conspiring to violate section 311.2 of the Penal Code¹ by wilfully preparing, publishing, printing and distributing four obscene books.² Defendants moved, pursuant to section 995, to have the indictment set aside. The trial court first denied the motion, but, after reconsideration, reversed its decision and set aside the indictment on the ground that the prosecution had failed to introduce any competent evidence of contemporary community standards by which the grand jury might be guided in determining whether there was probable cause to believe that defendants’ books were obscene. The People appeal from the order setting aside the indictment.

At the grand jury proceedings in June 1966 the prosecutor introduced copies of the four allegedly obscene books, “Seed of the Beast,” “Queer Daddy,” “The Experimenters,” and “Just for Kicks.” He also introduced a fifth book, “Sex Life of a Cop,” concerning which there had been established in other proceedings probable cause for the belief that it was obscene.³ The grand jury read and presumably compared the four allegedly obscene books with “Sex Life of a Cop” to determine whether or not there was probable cause to believe the four books obscene. In introducing “Sex Life of a Cop,” the prosecution relied on our holding in Aday v. Superior Court (1961) 55 Cal.2d 789, 798 [13 Cal.Rptr. 415, 362 P.2d 47], that there was probable cause to believe such book obscene. The lower federal courts held the book to be in fact obscene. (United States v. West Coast News Company (6th Cir. 1966) 357 F.2d 855, 857, 858.) However, after the instant indictment was filed but before the trial court ruled on defendants’ motion to set aside the indictment, the United States Supreme Court held that “Sex Life of a Cop” was not obscene. (Aday v. United States (1967) 388 U.S. 447 [18 L.Ed.2d 1309, 87 S.Ct. 2095].)

No evidence of contemporary community standards other than “Sex Life of a Cop” was introduced before the grand jury. After reading all five books, and considering evidence of defendants’ involvement in the publication and distribution of the four books charged as obscene, the grand jury returned the instant indictment. In setting the indictment aside, the trial court recognized that its ruling was in conflict with the holdings in Aday v. Superior Court, supra, 55 Cal.2d 789, 798 and People v. Aday (1964) 226 Cal.App.2d 520, 531-532 [38 Cal.Rptr. 199], but was of the view that those cases had been overruled by more recent decisions. We conclude that those cases were correctly decided and have continued and undiminished vitality.

In Aday v. Superior Court, supra, 55 Cal.2d 789, we reviewed the validity of a search warrant which authorized seizure of two named books alleged to be obscene, as well as a wide variety of other books, records and objects. Although we there determined that the warrant was in certain respects unconstitutionally broad, we concluded that it was not invalid as a whole and we upheld that part of it which authorized the seizure of the named books constituting the principal basis of the charge of obscenity. (Id. at pp. 796-798.) The magistrate had read portions of the two named books before issuing the warrant, but had not received evidence as to contemporary community standards. We examined the books and held that there was probable cause to believe them obscene. After referring to the rule for determining obscene material announced in the Roth case (Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304]), we said; “It should be emphasized that in applying these principles here we are concerned only with probable cause, not with the final determination as to the character of the named books or the guilt of petitioners. An examination of the two books convinces us there was probable cause for believing that they are obscene. Their text is such that an average person, applying contemporary community standards, could reasonably believe that their dominant theme appeals to a lascivious, shameful, and morbid interest in sex and that they are totally lacking in redeeming value, literary or otherwise. In view of their contents it was not necessary for [the magistrate] to . . . receive evidence as to contemporary community standards in order to determine the issue of probable cause.” (Aday v. Superior Court, supra, 55 Cal.2d at p. 798.)

We went on to say: “Where, as here, the seizure occurs under a warrant, an ex parte determination of the issue of obscenity, so far as probable cause is concerned, has taken place before issuance of the warrant, and immediately after the seizure a determination of the issue to that extent can be obtained in adversary proceedings by controverting the warrant under sections 1539 and 1540 of the Penal Code. In the event the owner is unsuccessful in that proceeding, a final determination as to obscenity will be had in the criminal action which will ordinarly follow within a reasonable time, or other remedies such as mandamus will be available to secure return of the property.” (Aday v. Superior Court, supra, 55 Cal.2d at p. 799.)

Our holding in Aday v. Superior Court, supra, was followed three years later by the Court of Appeal in People v. Aday, supra, 226 Cal.App.2d 520. In that case, as in the case at bench, the defendant challenged an indictment because no evidence of contemporary community standards had been submitted to the grand jury.⁴ The court there carefully set out both the standards and the procedures governing grand jury determination on the issue of whether there exists probable cause to believe material obscene: “ ‘The standard for judging obscenity adequate to withstand the charge of constitutional infirmity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.’ (In re Harris, 56 Cal.2d 879, 880 [16 Cal.Rptr. 889, 366 P.2d 305]; Roth v. United States, supra, 354 U.S. 476, at p. 489 [1 L.Ed.2d 1498, 1509, 77 S.Ct. 1304]; Aday v. Superior Court, supra, at p. 798.) Accordingly, it is a denial of due process for a trial court not to allow a defendant to prove contemporary community standards at his trial. (In re Harris, supra, at p. 880.) It is not necessary, however, that evidence of contemporary community standards be received on the issue of probable cause. (See Aday v. Superior Court, supra, at pp. 798-799.) A determination of obscenity may therefore be made by a grand jury, insofar as the issue of probable cause is concerned, without the necessity of receiving evidence as to such standards.” (226 Cal.App.2d at p. 531.) We denied a petition for a hearing.

In the nine and a half years since our decision in Aday v. Superior Court and the six and a half years since our denial of a hearing in People v. Aday, we have not overruled, disapproved or in any way qualified the rules as to the determination of probable cause in obscenity cases.⁵ The Aday cases retain their full vitality as precedents on this question and we conclude, to use our former language, that it is “not necessary ... to . . . receive evidence as to contemporary community standards in order to determine the issue of probable cause.” (55 Cal.2d at p. 798.) The failure to introduce evidence of contemporary community standards before the grand jury did not render the instant indictment defective.

Defendants contend, however, that even if an indictment is proper where no evidence of contemporary community standards is presented to the grand jury, the present indictment is invalid because “Sex Life of a Cop” was introduced as an example of obscenity under contemporary community standards. They argue that since the United States Supreme Court later held that “Sex Life of a Cop” was not obscene (Aday v. United States, supra, 388 U.S. 447), the grand jury in this case was permitted and advised to use an erroneous example of contemporary community standards in determining the obscenity of the challenged book. However, the grand jury did not determine that the challenged books were in fact obscene, but only that there was probable cause to believe them obscene. While the United States Supreme Court subsequently held that “Sex Life of a Cop” is not, in fact, obscene, there is still, as we held in Aday v. Superior Court, supra, 55 Cal.2d 789, 798, probable cause to believe the book obscene. “Sex Life of a Cop” might have been an erroneous example of contemporary community standards if the grand jury had heard testimony that the book was obscene by those standards. But in this case the grand jury was not misled because the testimony⁶ was only that the two Aday cases had held that there was probable cause to believe “Sex Life of a Cop” to be obscene. Such testimony was and remains perfectly accurate and proper. Under the circumstances, we cannot see how the reading of the fifth book dealt a fatal blow to the otherwise valid accusation.⁷

Finally, we reach defendants’ contention that the decision of the United States Supreme Court in Stanleys. Georgia (1969) 394-U.S. 557 [22 L.Ed.2d 542, 89 S.Ct. 1243] requires a dismissal of the instant indictment. We summarize defendants’ long and ingeniously concatenated argument: That Stanley held that the private possession of obscene matter cannot constitutionally be made a crime; that by its decision, the high court, “making significant changes in its concept of ‘obscenity’,” declared obscenity to be speech within the protection of the First Amendment; that no governmental regulation of speech within the First Amendment is valid unless there “is a clear showing that the burden placed upon exercise of freedom of speech is justified by a compelling state interest” which cannot be protected by means less burdensome to the exercise of First Amendment rights; that in Stanley, the court found only two compelling state interests which require regulation of obscenity—the state concern for minors and the state interest in preventing intrusions upon the sensibilities or privacy of an unwilling audience; that since under the holding in Stanley a person has a constitutional right to possess obscene material, it follows that any governmental limitation upon the sale or distribution of such material also contravenes First Amendment rights; and that accordingly, individuals “have the right to publish, prepare, print and sell such, material without governmental intervention, except in cases where the material is intended for minors or is distributed in such a manner as to intrude upon the sensibilities or privacy of the general public unwilling to be exposed to such material.”

Applying this interpretation to the case at bench, defendants urge that (a) since the indictment does not charge defendants with, and (b) the grand jury transcript is barren of any evidence establishing probable cause to believe that defendants participated in, distributing obscene material to minors or to unwilling persons in such a manner as to intrude upon their privacy or sensibilities,⁸ the indictment must be set aside.

We believe that defendants’ analysis of the Stanley rationale is incorrect, and that their contention based upon such analysis is without merit. In Stanley, officers investigating the defendant’s bookmaking activities, obtained a search warrant for his home and entered pursuant thereto. They found little evidence of bookmaking but while looking through a desk in an upstair’s bedroom found and seized reels of obscene films. The defendant was charged with and convicted of “knowingly having possession of . . . obscene matter” in violation of a Georgia statute. The Supreme Court of Georgia affirmed but the Supreme Court of the United States reversed holding that “the mere private possession of obscene matter cannot constitutionally be made a crime.” (394 U.S. at p. 559 [22 L.Ed.2d at p. 546].) Such a state statute, the court held, constituted a drastic invasion of a person’s right to receive information and his fundamental right to be free from “unwanted governmental intrusions into one’s privacy.” (394 U.S. at p. 564 [22 L.Ed.2d at p. 549].) It found no valid state interest⁹ in prohibiting the private possession of obscenity and therefore held the statute unconstitutional as an unwarranted intrusion on First Amendment rights.

At each step in its reasoning, however, the high court in Stanley was careful to distinguish the problem of commercial distribution of obscenity, involved in Roth v. United States, supra, 354 U.S. 476, and in the instant case, from the problem of private possession of obscene material, involved in Stanley. The court recognized that Roth and the cases which followed it had found state interests in dealing with the problem of obscenity sufficient to justify regulation of commercial distribution of obscene matter. The court concluded that no such state interest justified the state regulation of private possession of obscenity, but it distinguished Roth because “that case dealt with public distribution of obscene materials and such distribution is subject to different objections.” (394 U. S. at p. 567 [22 L.Ed.2d at p. 550].)

As. Stanley recognized, a court, in deciding the constitutionality of a state regulation of obscenity must balance the state interests advanced by such regulation against the constitutional rights affected by it. No legitimate state interest justified the drastic invasion of constitutional rights incident to regulation of private possession of obscenity; therefore, such regulation is unconstitutional. But the Supreme Court noted that public distribution of obscenity presents different dangers and is subject to different objections which support state regulation of such distribution. The essence of the court’s reasoning is found in the following language of the opinion: “Whatever may be the justifications for other statutes regulating obscenity, we do not think they reach into the privacy of one’s own home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” (Stanley v. Georgia, supra, 394 U.S. at p. 565 [22 L.Ed.2d at p. 549].) “Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” (Id. at p. 566 [22 L.Ed.2d at p. 550].)

Finally, as if to leave no doubt as to the extent of its holding, the high court concluded: “We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. (Fn. omitted.] Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.” (394 U.S. at p. 568 [22 L.Ed.2d at p. 551].)

We also find meritless defendants’ argument that the holding in Stanley necessitates the conclusion that a state may not constitutionally regulate commercial distribution of obscene material because such regulation makes more difficult the full exercise of the right to possess obscenity privately. The rights protected by the First and Fourteenth Amendments are not “absolutes” in the sense that where the constitutional protection exists it must prevail. (Konigsberg v. State Bar (1960) 366 U.S. 36, 49 [6 L.Ed.2d 105, 115, 81 S.Ct. 997]; Breard v. City of Alexandria (1951) 341 U.S. 622, 642 [95 L.Ed. 1233, 1248, 71 S.Ct. 920].) As was said in Breard: “Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have both full liberty of expression and an orderly life.” (Id.) As we have discussed above, in the context of public distribution of obscenity, the balance of interests upholds the constitutionality of state regulation, even though that regulation imposes some burdens upon the exercise of constitutional rights.

Therefore, we find that Stanley, as the United States Supreme court expressly stated, does not impair Roth and the cases following it. States retain broad power to regulate obscenity and regulation of the public distribution of obscenity falls well within the broad scope of that power. Stanley does not require that an indictment charging public distribution of obscenity also charge that the obscene matter was distributed to a child or unwilling audiences. We conclude that Stanley has no application to the instant case.

The order setting aside the indictment is reversed.

Wright, C. J., McComb, J., and Burke, J., concurred.

1 Hereafter, unless otherwise indicated, all section references are to the Penal Code.

2 At the time of the offense section 311.2 provided: “Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into the 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.” The recent amendment of the section is not relevant to the instant proceedings.

3 We explain the introduction of this evidence, infra.

4 In People v. Aday, supra, 226 Cal.App.2d 520, the defendants were charged by indictment with a violation of section 182, subdivision 1, namely, a conspiracy to violate section 311, subdivision 3, which then provided in pertinent part: “Every person who wilfully and lewdly. ... 3. Writes, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book ... is guilty of a misdemeanor.” (Id. at p. 525.) As previously pointed out (see text at fn. 2, ante) defendants in the instant case were charged by amended indictment with a violation of section 182, subdivision 1, namely, a conspiracy to violate section 311.2.

5 The concept of probable cause is approximately the same whether it is applied to determine the legality of a search warrant, or of an arrest without a warrant, or of a felony accusation. (Peopled. Stout (1967) 66 Cal.2d 184, 192-193 [57 Cal.Rptr. 152, 424 P.2d 704]; People v. Aday, supra, 226 Cal.App.2d 520, 532-533.)

6 At the beginning of the grand jury proceedings, the deputy district attorney introduced two copies of the book “Sex Life of a Cop” which had previously been introduced in the criminal action of People v. Haddad. Later on Sergeant McPhee testified that in connection with his testimony in the Haddad case, he had compared one of the copies with the book “Sex Life of .a Cop” involved in the Aday case in the Court of Appeal and found it to be the same book; that he had read the opinions of the Supreme Court and of the Court of Appeal in the Aday cases and noted that the courts in those cases held that there was probable cause for believing “Sex Life of a Cop” to be obscene.

7 IDefendants initially raised several additional challenges to the validity of the instant indictment before the trial court. Because of that court’s conclusions on the issues discussed above, it did not address itself to these supplemental points. Inasmuch as these contentions have been neither briefed nor argued before this court, we believe it would be inappropriate for us to pass on them at this time. On remand, the trial court will be able to address these arguments in the first instance.

8 We note that several lower federal court decisions appear to support defendants’ contention. (Karalexis v. Byrne (D.Mass. 1969) 306 F.Supp. 1363, probable jurisdiction noted (1970) 397 U.S. 985 [25 L.Ed.2d 394, 90 S.Ct. 1123]; restored to calendar for reargument (1970) 399 U.S. 922 [27 L.Ed.2d 184, 90 S.Ct. 2235]; United States v. Thirty-Seven Photographs (C.D. Cal. 1970) 309 F.Supp. 36, probable jurisdiction noted (1970) 400 U.S. 817 [27 L.Ed.2d 44, 91 S.Ct. 34]; United States v. Lethe (E.D.Cal. 1970) 312 F.Supp. 421; United States v. Reidel (C.D.Cal. 1970) unreported case, probable jurisdiction noted (1970) 400 U.S. 817 [27 L.Ed.2d 44, 91 S.Ct. 67]; Hayse v. Van Hoomissen (D.Ore. 1970) 321 F.Supp. 642; United States v. Dellapia (2d Cir. 1970) 433 F.2d 1252.) These decisions, of course, are not compelling authority for us (In re Whitehorn (1969) 1 Cal.3d 504, 511, fn. 2 [82 Cal.Rptr. 609, 462 P.2d 361]) and for the reasons stated hereafter, we disagree with any language in those cases which indicates that Stanley has impaired Roth v. United States, supra, 354 U.S. 476.

9 The court rejected as insufficient the asserted state interests in protecting the reader’s or viewer’s mind from the harmful effects which obscenity might have, and in protecting against the aberrant sexual behavior which it is claimed results from private possession and use of obscene matter.