*1 Dist., July 1974.] Nо. 34674. First Div. One. [Civ. Petitioner, SILVA,
EDWARD THE MUNICIPAL COURT FOR THE OAKLAND-PIEDMONT COUNTY, JUDICIAL DISTRICT OF ALAMEDA Respondent; PEOPLE, Party THE Real in Interest.
Counsel Stokes, Matthews, A. Richard Clayton L. & Hodge, Zweig, Joseph Hodge Remcho, Marson, Stokes, C. McKenzie, Charles Earl G. Joseph & Petitioner. E. Sheehan for and Peter Hinkel Deborah Amici Curiae on behalf L. Gordon Albert Coleman and Thomas F. Petitioner. Winkler, Assistant General, Chief R. Jack Attorney J. Younger,
Evelle Generаl, W. O’Brien, General, Attorney Assistant Edward P. Attorney General, for Re- Svetcov, Attorneys Sanford Deputy Collins and Eric Interest. and for Real Party spondent
Opinion — California’s concerns ELKINGTON, in mandate J. This proceeding every which person: provides Code section Penal dissolute lewd or in or who engages solicits anyone engаge “Who conduct in any or in public place open public exposed view,” of a guilty misdemeanor. Silva,
Edward stands petitioner, charged respondent Municipal Court for the District, Oakland-Piedmont soliciting Judicial another with in such engage lewd and dissolute conduct. We writ issued an alternative of mandate the cоurt directing to sustain Silva’s demurrer to the complaint alternative, or in the to show cause it had so. The court has why not done chosen alternative.
Three are for our questions consideration. presented First: Are the words “lewd or dissolute conduct” unconstitutionally vague in their meaning?
Second: the Does statute cоntravene the First Amendment’s guarantee of freedom of speech? absent,
Third: If constitutional fault is is to be the given what meaning “citizens, enforcement, words “lewd or dissolute conduct” that in order law judges can jurors determine what is lawful?” we
Preliminarily note that it is now settled that the language statute: “. . . solicits anyone to in . engagе . . .lewd or dissolute conduct in any public “public refers to place,” solicitations of lewd or dissolute con duct regardless of where the solicited acts are to be (Italics performed.” added.) (People v. (1968) Mesa 746, 265 751 Cal.App.2d Cal.Rptr. [71 594]; and see People Dudley v. (1967) 955, 250 Cal.App.2d 957- Supp. 958 557].) Cal.Rptr. [58
I. We are guided оur resolution of the first issue the decision of California’s Court entitled In re (1968) Giannini Cal.2d 69 563 655, 446 P.2d Cal.Rptr. on other grounds 535] [overruled Crownover v. Musick (1973) 405, (107 681, 9 Cal.3d 431 509 Cal.Rptr. 497)]: P.2d 571, There the 4): court said fn. as did (p. the interpret, “[W]e below, trial court the terms ‘lewd’ and ‘dissolute’ Penal Code section [of 647, (a)] subdivision as identical to ‘obscene’ . . . .” So interpreted, held, court “no vagueness objection tenable.” [to statute] Giannini, In supra, re concerned the aof nightclub topless performance dancer, but the court’s of the statute’s reasonably, interpretation language and must obviously, apply generally. elsewhere,
We find no in this state or and our attention has authority been none, “obscenity” drawn to which holds that the terms “obscene”
737 statutes, unconstitutionally Nor as used in criminal are or uncertain. vague such as to those contention made here of words. uncertainty, Giannini, must, do, re supra, the clear of In Under we authority 647, conclude that Penal Code section is not unconsti- in its tutionally vague meaning. We to the second of issues us.
II. advert the three before has that There been reiteration frequent unchallenged judicial Kaplan (See First Amendment does not v. obscenity. protect California 2680, (1973) 115, 492, 496-497, L.Ed.2d 118-119 93 S.Ct. 2684]; 476, 1498, Roth v. (1956) United States 354 485 U.S. Giannini, 567; 1304]; day 1507, 77 S.Ct. In re Cal.2d A 69 Superior (1961) Court 362 P.2d 55 Cal.2d Cal.Rptr. 799 [13 47]; 585].) In re Price We (1970) Cal.App.3d Cal.Rptr. “as the further obsеrve that states have greater rights proscribe mode of from the commission moves expression printed page (Cali statutes, acts that . . .” violate valid themselves penal LaRue (1972) 117 [34 fornia
390]; People v. Drolet Cal.Rptr. Cal.App.3d said, obvious, And it is of obscene prevention expressing *5 to acts does not in or frеedom any “hinder the market of ideas way Sarong Gals (People distribute ex Hicks v. information and rel. opinion.” (1972) 46, 414].) Cal.App.3d [103 Cal.Rptr.
But it for that the authority argued foregoing inappropriate, act, statute, here the it of an pro insofar as solicitation obscene proscribes speech” hibits and “the certаin words.” of “pure speaking the As we have does out, the First Amendment not pointed prevent criminal, an act. Such state from be the of obscene declaring to commission conduct, act an obscene itself in may “manifest pictorial representa- ...” description or conduct. tion of in the written or oral оf 115, added; 413 U.S. (Italics Kaplan California, and (in this rule the solicitation Under itself) an conduct of of act will be deemed obscene reasonably obscene therefore and at least a written obscene or oral of description to engage solicitation any First Amendment beyond Certainly protection. the act, understood, a of include an obscene must description conduct. proposed criminal, to be has declared we observe that the often Legislature
Further Pen. otherwise, (e.g., of criminal acts by the solicitation “pure speech,” Code, 266h, 275, 311.5, 653f; Code, 11353; & Mil. Health Saf. § §§ Code, acts, noncriminal, 1673), & of but Vet. in themselves reason- § 303a, Code, to be deemed interest Pen. ably (e.g., contrary public §§ 646; Code, a as we can 12301). Elec. Such insofar legislative practice, § determine, attacked, has never at least on constitutional successfully, been grounds. contention,
A related made without of relevant is that authority, support Amendment, here at but statute issue is not violative of the First only Third, Fourth, also “of the Ninth and Fourteenth Amendments in that it right States Constitution” “intrudes privacy upon without any governmental compelling purpose.”
The contention is answered by following utterance of the United States Chaplinsky Court in Hampshire v. New (1942) 315 U.S. 1031, 1035, 571-572 L.Ed. 62 S.Ct. “There are certain 766]: well-dеfined limited of narrowly prevention classes speech, punishment which thought never been any to raise Constitutional problem. obscene, These include the lewd and has ... It been well observed that such utterances are no essential part any exposition ideas, and are of such social value as slight to truth thаt benefit step that be derived from them is clearly outweighed the social interest in order and (Italics added.) morality.” This was pronouncement currently J., restated C. in Miller v. by Burger, 20- 93 S.Ct. 2613]. Yet another related is that argument somehow constitutional impropriety statute, must be found in the since it private solicitation of prevents cоnsenting conduct between adults. The argument misses point the solicitations are or at least necessarily, made both ordinarily, willing and unwilling When mode dissemination recipients. *6 it a
“carries with significant of of danger offending sensibilities unwilling a state has a recipients” interest in such dissemination. legitimate preventing California, (See 15, 427, v. supra, 419, Miller 413 U.S. L.Ed.2d 18-19 [37 2607, 2612], this, 93 S.Ct. collected.) and see the authorities there For reasons, other the instant also argument invalid. perhaps III. "We the third consider now issue for our consideration. presented out,
As “lewd of words or dissolute conduct” Penal Code pointed 647, (a), must be section subdivision of “obscene” given con- meaning duct. Our then is tо determine and state the nature of the obscene purpose conduct the statute. by proscribed and its “obscenity,” the word vague, not
Although unconstitutionally definition. “obscene,” of easy have never been form susceptible adjective 1498, States, L.Ed.2d 491-492 in Roth v. United U.S. [1 It is said that these 1510-1511, decisions have recognized “Many 77 S.Ct. 1304]: hоwever, Court, has con statutes are not This terms of obscenity precise. is not itself offensive to requirements held lack of sistently precision due . Constitution does not require impossible ‘. . process. [T]he standards’; ‘conveys sufficiently that the all that is language required common as to the conduct when measured definite warning proscribed Petrillo, 332 U.S. . . United v. .’ States understanding practices. for judging standard words, These according proper 7-8. applied discussed, the conduct warning pro already give adequate obscenity, distinct for juries ‘. . boundaries sufficiently judges scribed and mark . cases in marginal to administer the law. . . . That there fairly a which it is the side оf line on particular which difficult to determine ambiguous too to hold the language fact situation falls is no sufficient reason Hamling States v. (See . . also to define criminal offense. .’” L.Ed.2d 94 S.Ct. Miller v. 2887]; 418 U.S. 15, 27-28, fn. 10 L.Ed.2d 433].) California, supra, Penal Code The lewd or dissolute or obscene conduct alluded to in motivated section concerns related or sexually California, supra, 413 U.S. (See whether normal or Miller perverted. States, 476, 488- 419, 431]; supra, L.Ed.2d Roth v. United 1498, 1509-1510].) 489 [1 concerning concept
Almost without
latter
cases
day
exception,
“communi-
have dealt with
graphic,
pictorial,
performing
Here,
been
cation,”
as has
it
Amendment rights.
touches
First
upon
and solicitation
out,
alone
we are concerned with obscene conduct
pointed
any
exposition
of such
“no essential part
[which constitutes]
(See
ideas,”
significance.
and which therefore has no First Amendment
428-
pp.
U.S. at fn. pp. as ‘material which deals with sex in a manner ‘obscene material’ appealing States, interest,’ 354 487 Roth United prurient 1304, 1310, (1957), but the Roth definition does 1 L.Ed.2d 427] not reflect the of ‘obscene’ used in traditionally as meaning precise caenum, obscaenus, to, Derived from the Latin ob. English language. plus filth, Dictionary ‘obscene’ is defined in the Webster’s New International ed., 1969) . . . b: grossly 3d as ‘la: to the senses (Unabridged, disgusting of what is . . . notions generally repugnant accepted appropriate 2: some ideal or offensive or revolting countering violating prinсiple.’ definition, ‘of- (1933 ed.) The Oxford a similar English Dictionary gives senses, refinement; filthy, fensive to the or to taste or disgusting, repulsive, ” foul, abominable, loathsome.’ But, nevertheless, true definition of obscene or interpre- definition, of tation such will from and from time to vary place time. In v. United States Cir. 208 F.2d (9th 1953) 145 Besig on other v. Freeman Cir. [questionеd (9th 1962) grounds Lundgren F.2d the Court of for 114], the Ninth Circuit concluded that Appeals the term “obscene” is not to fit the normal of “designed concept morality nor of the different society’s dregs, concepts morality throughout world, future, nor for all time but is to fit the past designed normal American in which . ..” we live. concept age the most
Perhaps widely at quoted judicial definition attempt with which we are concerned concept Learned Hand in Judge 119, 121, States 209 F. where it (S.D.N.Y. 1913) Kennerley definition, said: “If there be no abstract I such as have should suggested, not the word ‘obscene’ be allowed to indicate the critical present point between candor and shame which the compromise community think, arrived here and now? I ... Nor is it an objection, [II] that such an to the words of the statute a interpretation gives varying from time to time. Such words as these do not embalm the meaning morals of an while that some precise age place; they presuppose will taste, things аlways shocking vague subject- matter is left to the notions about what gradual general development is decent....”
To the
effect
(1940)
same
see Parmelee v. United States
113 F. 2d
203],
4200 Copies
United States v.
International Journal
[72 App.D.C.
(E.D.Wash. 1955)
v. Miller
155 Misc.
(1935)
F.Supp.
People
N.Y.S.
Commonwealth v. Baer
584],
Pa.Super.
A.2d
741 to define our supra, offеrs further aid to attempt Miller v. at (413 L.Ed.2d court tells us 25 p. p. obscene conduct. The [37 what a state 431]): is . . . to few give “It plain examples possible standard announced under . . . the statute could define for regulation or supra: (a) this offensive Patently descriptions representations opinion, simulated, (b) acts, Patently actual or sexual normal or ultimate perverted, masturbation, func excretory or offensive descriptions representation tions, and lewd exhibition of genitals.” California, supra, 413 U.S. (Miller v.
The United Court States Supreme States, supra, 354 U.S. 419, 431]; v. United 24 L.Ed.2d Roth [37 (In re Gian Court 1498, 1509]) and this state’s L.Ed.2d 489 [1 nini, 563, 577-580), existence supra, Cal.2d have declared 69 community “contеmporary to is to be determined according for found it The nation’s court has decency. high permissible standards” terms” more the states to define those standards “in geographic precise v. 418 U.S. L.Ed.2d (Jenkins Georgia has determined California’s statewide “relevant com 2750]), Giannini, In re to be without 577-580) (see munity” concept supra, pp. . “constitutional errors” L.Ed.2d (Miller California, supra, p. p And, while out that a is entitled to draw on his own 435]). “juror pointing in the of the views of the average community knowledge person from which he for determination” comes vicinage making required States, L.Ed.2d 613]), (Hamling Giannini, In held that on the issue re (see that court has testimony expert 614]), while nоt 574-575), p. necessary (p. supra, pp. of the trial court. v. United “wide discretion” (Hamling permissible States, supra, p. conduct covered obscene this a definition of the
From all of we reach conduct of sexual (a). It is that sort Penal Code section to “generally accepted offensive” which is “grossly “patеntly repugnant” con- statewide decent according notions of what appropriate” found conduct include will ordinarily standards. It community temporary those under foul, loathsome” abominable filthy, [or] “disgusting, repulsive, standards. indicated, regulate physical
Since, we states have greater power behavior, same conduct than depictions descriptions suppress conduct. obscene solicitation of physical may obviously regulate they Code section fault in nor other Penal neither constitutional Finding *9 or in the Silva with a violation of charging complaint statute, we conclude that the court overruled respondent municipal properly Silva’s demurrer.
It becomes to consider unnecessary related contentions made additional the real by interest, in People, in the return to the alternative writ. party
The for a denied, writ of petition mandate is and the here- peremptory tofore issued alternative writ is dischargеd.
Molinari, J.,P. concurred.
SIMS, J. I concurin the judgment.
Since the statute refers to solicitation to in lewd or dis- public engage solute conduct there is some as to the or nature ambiguity public private conduct, of the solicitation, subject which will render the solici- tation unlawful. I would resolve this the statute ambiguity uphold by it, in limiting cases solicitation to to a solicitation made private in a or in a public place, to the a or manner place open public, place where the solicitation is audible to the a lewd or dis- engage public, solute act law, i.e., which is an infamous crime nature prohibited by against Code, (Pen. 286), lewd 288), or lascivious acts (§ children sex against § 288a), (§ offenses, however, and similar perversion reserving, question of whether such conduct when conducted in between proscribed private adults consenting be the state. Included in the may by properly prohibited definition of would be a prohibited solicitation solicitation public engage in lewd or dissolute in the sense of obscene conduct as defined in §§314, (see 318.6) also majority 318.5 and when the solici- opinion tation is to in such conduct in a to the engage public open place, place (§ (a)). view subd. As limited public, so exposed the statute so was the demurrer overruled. upheld, properly
In my verbal acts as so limited are not entitled opinion prohibited of the First Amendment because are related protection they directly commission criminal conduct which is More- properly prohibited. over, defined, as so do not effect on they chilling legitimate courting or other of free aspects speech.
Petitioner’s for a Court was application hearing Tobriner, J., Mosk, J., denied 1974. were of the September that the should be opinion application granted.