Woodford v. Municipal Court

Opinion

AULT, J.

Petitioners appeal from the superior court’s judgment of dismissal entered after a demurrer to their first amended petition for a writ of prohibition/mandamus and/or declaratory relief was sustained without leave to amend.

1

Petition

The first amended petition alleged the following facts. Petitioners own, operate and manage the Guild Theater, the Academy Theater and the Fine Arts Theater in San Diego. On December 9, 1971, San Diego police, pursuant to a warrant, seized from the Guild Theater a copy of the motion picture film, “Mona, the Virgin Nymph” (“Mona”). Because of showing the film, petitioners have been charged in the municipal court with exhibiting an obscene film in violation of Penal Code section 311.2, a misdemeanor, in case numbers M-107920 through M-107922.

It is further alleged petitioners pleaded not guilty, then filed motions to suppress evidence pursuant to Penal Code section 1538.5, nonstatutory motions to dismiss based upon nonobscenity of the film, and a motion to

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bar further prosecution on the ground of collateral estoppel (see Pen. Cbde, § 1538.5, subd. (n)). After a hearing on March 7, 1972, a municipal court judge denied all motions. The cases are now at issue and set for trial in the municipal court, with trial temporarily stayed by order of the superior court.

On the issue of collateral estoppel, the petition alleges the judge made the following findings: substantially the same film as involved here was admitted in evidence in the Palo Alto-Mountain View Municipal Cburt trial of People v. Rocci Borelli; in that case the only contested issue was the obscenity

vel non

of “Mona,” scienter being admitted; on March 31, 1971, after an eight-day jury trial, Borelli was acquitted; the plaintiff is the same in that case and this one, and the expert testimony undoubtedly will be the same, but the defendants are different.

Although “Mona” has been adjudicated not obscene in two other counties, it is alleged the police threaten to seize additional copies of “Mona” if petitioners show the film again in San Diego; such conduct will deprive petitioners of substantial property rights and will violate their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution. There is an actual controversy between the parties as to whether the film is obscene; respondents threaten to continue to harass petitioners; petitioners have no plain, speedy or adequate remedy at law.