People v. Rosakos

WAPNEB, J. pro tem.

*

In the Municipal Court of the Los Angeles Judicial District, appellant was charged with multiple violations of Penal Code section 311.2 which proscribes the possession of obscene matter for distribution in this state.

1

The alleged obscene material consisted of eight photographs which were purchased from appellant by an undercover agent of the Los Angeles Police Department and are the basis of count VII, and a movie film seized following appellant’s arrest which is the basis of count I.

Appellant’s motion to suppress under Penal Code section 1538.5 was denied. Following the hearing upon this motion, appellant with leave of court withdrew his plea of not guilty and entered a plea of guilty to count I only. As to count VII appellant waived his right to a jury and it was stipulated that the cause be submitted upon the arrest report and the eight photographs. Appellant also waived confrontation of any additional witnesses and right to cross-examination of witnesses with regard to count VII. Appellant was convicted upon count VII and on May 3, 1968, was sentenced upon counts I and VII, the remaining counts being dismissed.

On appeal, the Appellate Department of the Superior Court for Los Angeles County reversed the judgment as to count I, holding that the film was illegally seized

(Flack

v.

Municipal Court,

66 Cal.2d 981 [59 Cal.Rptr. 872, 429 P.2d 192]), and affirmed the judgment on count VII.

We are concerned here with count VII only. As to that count it was determined upon appeal that the photographs were not obscene per se but that “the evidence, consisting of not only the exhibits but also the surrounding circumstances and conversations was sufficient.’’ The court found that count VII was based upon material purchased following a conversation with the appellant, and in its decision states: ‘ ‘ The pictures go far beyond the usual nude pictures of girls and appear to meet the Both tests of obscenity. However, they

[499]