Price v. Price ( 1970 )

Opinion

WOOD, P. J.

In a petition filed in the superior court, sitting as a juvenile court, it was alleged, in paragraph I, that Price (referred to herein as the minor), who was 17 years of age on October 22, 1968, comes within the provisions of section 602 of the Welfare and Institutions Code, in that: on September 25, 1968, he did wilfully and unlawfully speak obscene words in a public place, thereby violating section 311.6 of the Penal Code. It was alleged further therein, in paragraph II, that on said September 25 the minor also violated section 415 of the Penal Code (disturbing the peace).

A referee of the juvenile court found that the allegations of paragraph I of the petition (re obscenity) were true; and that the minor comes within the provisions of said section 602 of the Juvenile Court Law. (It was also found that the allegations of paragraph II were not true.) The referee ordered the minor placed on probation and released to the custody of his mother, and that he remain on probation for six months. He appeals from the judgment (order).

On September 27, 1968, about 7:30 a.m., Officers Helms and Lawson received a radio call that a burglary suspect was at the John Muir High School at 5029 South Vermont Avenue in Los Angeles. About 10 minutes later they arrived at the school where they were met by school officials. The officers began an investigation, checked the school property, and arrested a juvenile who had been found by school authorities in the gymnasium where he had been during the night. The officers placed him (alleged burglar) in the rear of the police car which was parked on the school property about 20 to 30 feet from a gate on the 60th Street side of the property. While the officers were talking with school officials, on the subject of protecting some of the burglary evidence until other officers arrived, appellant Price came to the police car from the sidewalk on 60th Street. As he was approaching the car and passing Officer Lawson, he asked the officer for a cigarette. The officer replied that he did not have one and that Price looked quite young to be smoking a cigarette. Then Price started speaking with the arrested person (Hearndon) who was in the car. The officers asked Price to leave because he was interfering with their work. He said something to the effect that he did not have to leave. The officers again asked him to leave, and he walked about 20 feet from the police car. Then Price, in the presence of numerous students, boys and girls of the approximate ages of 12 and 13 years, and in the presence of one or two teachers and a security guard, said to the officers in a loud voice: “You fucking pigs can’t tell me to leave,” and “I know the fucking law backwards.” He called the officers “mother fuckers,” and as he was walking toward the gate he was getting louder and, in this louder voice, was continously using those same words, directed to the officers, and saying that he knew the law. When he arrived at the sidewalk on 60th Street, some persons who apparently had been with him before he went upon the school property said, “Come on Al, let’s go.” He said, “Fuck them. They can’t push me around.”

At that time, according to the estimate of one officer, 15 to 25 students, boys and girls, were in the immediate area; and, according to the other officer, 5 or 6 students, boys and girls, were walking on the school property.

Appellant Price did not testify. A witness called on his behalf was Bennie Hearndon who testified in substance that he (witness) was arrested on September 27, 1968, at the school; that while he was in the back of the police car, Price (appellant), whom he had known about two months, came to the car and spoke to him; at that time he (witness) did not hear Price use any obscene language, nor hear him use any words like those hereinabove mentioned.

Upon the record on appeal it is unquestioned that appellant, under the circumstances hereinabove related, said the words above referred to as having been said by him.

Appellant contends that the words used by him were not obscene. He argues to the effect that the words were a reaction to a situation which was distasteful to him and were merely expressions of disgust and anger.

Section 311.6 of the Penal Code provides: “Every person who knowingly sings or speaks any obscene song, ballad, or other words, in any public place is guilty of a misdemeanor.”

Section 311 of the Penal Code provides: “As used in this chapter [chapter 7.5]: (a) ‘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.”

Subdivision (b) of said section 311 provides: “ ‘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.”

It thus appears that the word “matter” appearing in subdivision (a) of section 311 is defined in subdivision (b) of that section as meaning various articles such as a book, picture, mechanical reproduction, etc. It is true, as indicated by appellant, that the definition, there given, does not state that the spoken word is matter. Of course, a spoken word is not to be classified as an article or tangible object.

An amendment of section 311 of the Penal Code in 1969 inserted the word “matter” after the word “Obscene,” thereby defining “Obscene matter” instead of defining (as before the amendment) the word “Obscene.” This recent amendment indicates an intention of the Legislature in its former version of section 311 to define the words “Obscene matter” instead of defining the word “Obscene.”

As hereinabove indicated there was no code definition of the word “obscene,” as used in said section 311.6, with reference to a spoken word. In any event, a proper interpretation of the word “obscene,” as used in section 311.6, may be found in the definition of “obscenity” as given in Roth v. United States (1957) 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304]. In that case it was said that the applicable standard for determining “obscenity” was “[Wjhether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” It was also said therein (p. 487 [1 L.Ed.2d at p. 1508]) that obscene material was “material which deals with sex in a manner appealing to prurient interest.”

Section 311.6 of the Penal Code provides in part (the part applicable here): “Every person who knowingly . . . speaks any obscene . . . words, in any public place is guilty of a misdemeanor.”

In the present case, Price (appellant) was in a public place. He had gone upon the public school grounds, from the sidewalk outside the grounds, and, before he used the words involved here, he was interfering with the work of public officers who had arrested and were holding in custody a burglary suspect. After the officers asked him to leave (go away from the police car where he was talking with the suspect), he began calling the officers the names above-mentioned, and he continued saying the words in a loud voice several times in the presence of numerous school boys and girls, of the approximate ages of 12 and 13 years, and in the presence of one or two teachers and a security guard. In every epithet, directed to the officers by appellant, some form of the sex word involved here was used. The word was used in various forms or parts of speech—as an adjective, verb, and noun. The tenor of each and all of the epithets was completely sexual. His continuous use of the sex word, involved here, in combination with the word “mother” was intended to be, and it was, a vulgar description of sexual intercourse with one’s mother. In so repeating and emphasizing, in a loud voice, this combination of words, and his repeatedly using and emphasizing the sex word in every statement made by him, he intended that the dominant theme of his words should be, and it was, an appeal to prurient interest. His purported description of the officers was wholly in sexually derogatory terms and its predominant and only appeal was to prurient interest. Of course, the whole and every part of his expressions were “utterly without redeeming social importance.”

Appellant asserts further that since there was no evidence as to the community standard regarding the use of the words involved herein, there was no proof of obscenity. He cites In re Giannini, 69 Cal. 2d 563 [72 Cal.Rptr. 655, 446 P.2d 535], That case is distinguishable factually from the present case. In Giannini the question as to obscenity pertained to a dance that was performed before an audience at a nightclub, and proof was required therein regarding the community standard as to whether the dancer’s conduct appealed to prurient interest. In the present case, only words were involved, and those words were not in any context, but were words that were various forms of a sex word. In Goldberg v. Regents of the University of California, 248 Cal.App.2d 867 [57 Cal.Rptr. 463], it was held that the loud, repeated public use of the word involved therein (which in general effect was the sex word involved here) clearly infringed on the minimum standard of propriety and the accepted norm of public behavior of both the academic community and the broader social community. In that case there had been a student demonstration or protest regarding an arrest of a person. The court therein stated further (p. 880) that “Plaintiffs’ contention that the words were used only in the context of their demonstration is not borne out by the record which indicates that the terms were used repeatedly, and often out of context, or when used in context given undue emphasis.” In view of the ruling therein that such use of the word in question infringed on the minimum standard of propriety of public behavior, it would seem there was no need of expert testimony in the present case regarding such community standard as to the use of the same word. In the present case, there was no context and nothing to decide regarding the meaning of the physical acts of appellant, as distinguished from his acts in speaking the words. Appellant’s contention regarding expert testimony as to the community standard is not sustainable.

Under the circumstances of this case, the sex words spoken by appellant were obscene within the meaning of section 311.6 of the Penal Code.

In Roth v. United States, supra, it was said (p. 485 [1 L.Ed.2d at p. 1507]) that “obscenity is not within the area of constitutionally protected speech or press.”

The findings of the referee are supported by the evidence.

The judgment (order) is affirmed.

Lillie, J., concurred.