76 Cal. Rptr. 382 | Cal. App. Dep’t Super. Ct. | 1969
The most recent appellate cases involving pornography establish certain rules which govern our decision in this case. To constitute obscenity under the rules established by the United States Supreme Court and the even more stringent requirements of our State Supreme Court
Applying these rules to the case at bench, the trial court’s decision dismissing the action was erroneous and must be reversed with instructions to receive expert testimony on the proper community standard, to-wit, that of a statewide community.
We do not follow the appellant’s suggestion that we now view the films and make our own determination as to their obscenity. While an appellate court must reach an independent decision as to the obscenity of the material, “Since
The trial court properly received expert testimony. Unfortunately, this case having been heard before Giannini was decided, both counsel and the court mistook the proper standard to be applied. Defendants, and apparently the court, felt that the community involved was the Strip area and Santa Monica Boulevard while the People argued it should be the county as a whole. The Supreme Court has now told us the proper area is the entire state. The People, as well as a defendant, are entitled to require the use of this standard. Otherwise the state standard is quickly reduced to that of the most libertine neighborhood.
Although defendants’ cross-appeal was not aggressively argued, either orally or in the briefs, two matters should be noted in connection with said cross-appeal which is from the trial court’s order “denying the defendants’ motions to quash the arrest and search warrants made pursuant to § 1538.5 of the California Penal Code.” First, in such a motion, the trial and appellate courts are concerned only with probable cause, not with the final determination as to the character of the material. Second, if the affidavits reveal probable cause to believe the material to be obscene, the issuing judge does not have to personally view the entire material nor take evidence as to contemporary community standards before issuing the warrant. (Aday v. Superior Court (1961) 55 Cal.2d 789, 798 [13 Cal.Rptr. 415, 362 P.2d 47]; People v. Hill
Vasey, J., and Wong, J., concurred.
Zeitlin v. Arnebergh (1963) 59 Cal.2d 901 [31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707]; People v. Noroff (1967) 67 Cal.2d 791 [63 Cal. Rptr. 575, 433 P.2d 479]; and see People v. Rosakos (1968) 268 Cal.App.2d 497 [74 Cal.Rptr. 34].
This case was not certified for publication.