In re Panchot

TOBRINER, J. Petitioner Larry D. Panchot seeks a writ of habeas corpus against his unlawful detention and restraint of his liberty by the Municipal Court of the City and County of San Francisco, and by the Sheriff of the City and County of San Francisco.1 The municipal court, after a trial by jury, [107]convicted petitioner of a violation of Penal Code section 311.2 (distributing and/or possessing with intent to distribute obscene matter)2 and sentenced him to pay a fine of $332 or to serve 30 days in the county jail. [See fn. 4] Petitioner has exhausted his appellate remedies3 and now seeks relief by writ of habeas corpus4 in this court.

The substantive activity condemned in this case consisted of selling four packets of photographs depicting nude females posing singly. In these crude photographs, the subjects assume various poses which emphasize various parts of the body. None of the poses, however, depicts any form of sexual activity.5

[108]The validity of petitioner’s conviction must rest upon a proper judicial application of the legislative definition of the word “obscene” as used in section 311.2. The Legislature has defined “obscene” to mean: “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. ’ ’ (Pen. Code, § 311, subd. (a).) Because any restriction on the dissemination of graphic depictions such as the ones before us must not conflict with the prohibitions of the First Amendment to the United States Constitution, this court must apply section 311 in the light ■ of recent United States Supreme Court deeisons dealing with “obscenity.” (People v. Noroff (1967) 67 Cal.2d 791 [63 Cal.Rptr. 575, 433 P.2d 479].)

We hold, under the authority of People v. Noroff, supra, 67 Cal.2d 791, that the materials sold in the present case are not obscene. Noroff involved a “nudist magazine” wherein nude male and female adults appeared in poses very similar in substance to those of the photographs in the instant case. After a careful scrutiny of the “obscenity” decisions of the United States Supreme Court, we held that the representation of the nude human form in a nonsexual context does not violate Penal Code section 311 et seq. As we said in Nor-off-. “Given the materials to which the Supreme Court has accorded constitutional protection, we cannot withhold such protection here.”6 (People v. Noroff, supra, 67 Cal.2d 791, 796.)