In Re Schillaci

California Court of Appeal Oct 31, 1961 No. Crim. 7930Published

Before: Frampton

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Holding. The court held that Business and Professions Code section 600 is unconstitutional because it infringes upon the freedom of the press and constitutes an improper delegation of legislative power to an administrative agency without adequate standards. Consequently, the petitioner's conviction based on this statute is void, and he is entitled to be discharged from custody.

Issues

Is Business and Professions Code section 600 unconstitutional?
Does the statute violate the First Amendment right to freedom of the press?
Does the statute constitute an improper delegation of legislative power to an administrative agency?
Is habeas corpus the proper remedy for release from custody based on an unconstitutional statute?

Disposition. Petitioner ordered discharged from custody and bail exonerated.

Quotations verified verbatim against the opinion

“The prohibition of the distribution of printed advertisement infringes the right of freedom of the press.”

“We hold the section to be unconstitutional and therefore any proceedings based thereon are void.”

“The subject statute is devoid of any guide or standard.”

FRAMPTON, J. pro tem.

Petitioner seeks his release from custody upon the grounds that he is being unlawfully restrained after conviction and sentence upon a statute (Bus. & Prof. Code, § 600), which he asserts is unconstitutional.

The record of the trial court shows that petitioner was charged by indictment returned by the Grand Jury of Los Angeles County, July 23, 1958, with the crime of conspiracy to violate section 311, subdivisions 3 and 4 of the Penal Code, and section 600 of the Business and Professions Code

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that he was duly arraigned and entered his plea of guilty to the crime of conspiracy to violate section 600 of the Business and Professions Code.

On November 12, 1958, petitioner was sentenced to one year in the county jail. Such sentence was suspended and he was placed on probation for the period of three years, one of the conditions being that he pay a fine in the sum of $500 in the amounts and manner prescribed by the probation officer.

On October 3, 1961, petitioner was brought before the superior court on an order to show cause why probation should not be revoked. The court, after hearing the matter, found that the petitioner was in violation of the terms of his probation and modified its order theretofore made by sentencing petitioner to serve 21 days in the county jail. Petitioner then filed this petition for writ of habeas corpus seeking release from such imprisonment.

[594]

If petitioner stands convicted and imprisoned upon a statute which is unconstitutional, then he is entitled to his release and the writ of habeas corpus is the proper remedy.

(In re Winchester,

53 Cal.2d 528 [2 Cal.Rptr. 296, 348 P.2d 904] ;

In re Bell,

19 Cal.2d 488 [122 P.2d 22].)

Section 600 of the Business and Professions Code reads as follows: “It is unlawful for any person, firm, corporation or association, except boards of health or agencies approved by the State Department of Public Health, to post or otherwise exhibit or distribute in any manner whatsoever in any place, any advertising or other printed matter concerning venereal diseases, lost manhood, lost vitality, impotency, seminal emissions, self-abuse, varicocele, or excessive sexual indulgence and calling attention to any medicine, device, compound, treatment or preparation that may be used therefor.

In Re Schillaci

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