People Ex Rel. Cooper v. Mitchell Brothers' Santa Ana Theater

Opinion

MORRIS, Acting P. J.

The Supreme Court of the United States on November 30, 1981, issued its judgment and mandate that the judgment of the Court of Appeal “in this cause is reversed,” and “that this cause is remanded to the Court of Appeal of California, Fourth Appellate District, for' further proceedings not inconsistent with the opinion of this Court.”

The opinion of the United States Supreme Court, reported at 454 U.S. 90 [70 L.Ed.2d 262, 102 S.Ct. 172], disapproved a portion of this court’s earlier opinion which held that the issue of obscenity

vel non

in a public nuisance abatement action must be proved beyond a reasonable

[939]

doubt,

(People

ex rel.

Gow

v.

Mitchell Brothers’ Santa Ana Theater

(1981) 114 Cal.App.3d 923, 935-937 [171 Cal.Rptr. 85].) The Supreme Court concluded that “while a State may require proof beyond reasonable doubt in ... [a civil] obscenity case, that choice is solely a matter of state law. The First and Fourteenth Amendments do not require such a standard.” (454 U.S., at pp. 93-94 [70 L.Ed.2d, at p. 267, 102 S.Ct., at p. 174].) Thus, on remand, the only issue before us is whether California law requires the application of the strictest standard of proof in this case even though such is not mandated by the federal Constitution.

1

We have reexamined our opinion and conclude that this state’s law does not so require.

Defendants here contend that state constitutional and statutory law both favor the use of a stricter standard of proof than is required by the federal Constitution. It is correctly noted that the California Supreme Court has determined that section 2 of article I of the state Constitution

2

is “[a]- protective provision more definitive and inclusive than the First Amendment.”