People v. Tierney

SALSMAN, J. Thomas S. Tierney, Maxine Tierney and Donald Dean Davidson were indicted by the Grand Jury of Santa Clara County, and charged with conspiracy (Pen. Code, § 182) to violate Penal Code section 484 (petty theft), Penal Code section 311.5 (creation of advertising matter represented or held out to be obscene), and Business -and Professions Code section 17500 (false and misleading advertising) . Respondents moved to set aside the indictment pursuant to Penal Code section 995. The trial court granted their motion. The People appeal.

The transcript of evidence presented to the grand jury shows that five residents of Santa Clara County received through the mail an unsolicited brochure called the “Lupe Ramirez” brochure. It came in an envelope bearing the [3]inscription “Special for executives.” The brochure offered for sale films, still photographs, playing cards and small illustrated comic books. Titles of some of the films were: “Two People And A Blanket’—(One man and one woman)”; “ ‘They Really Give Him A Workout’—(One man and two women)”; “‘No Holds Barred’—(Two women)”; “ ‘Lucky Dog’—(A woman and her dog) ”; “ ‘They Work Up A Sweat’—(Two men).” Prices stated for the films were $25 for 100 feet of 8mm black and white movies, $35 for color films; $15 for a set of 25 stills from the movies, $25 for color; $15 for a deck of French type playing cards, “52 different positions”; $15 for 20 illustrated comic books.

The Lupe Ramirez brochure was called to the attention of the Santa Clara County District Attorney. He asked each of five persons who had received it to order some of the material described and each did so. All but one received the material ordered. The material was before the grand jury. The films have been transmitted to this court as an exhibit and we have viewed them. They may properly be described as innocuous, and we do not understand that the district attorney contended otherwise before the grand jury, or that the Attorney General contends otherwise before us.

The organization that prepared and mailed the Lupe Ramirez brochure and sent out the material was Consolidated Productions, Incorporated, a corporation, doing business as X Sales. The respondents were the incorporators of the corporation.

Respondent Thomas Tierney was president of Consolidated Productions, Incorporated. Respondent Davidson was vice-president. Maxine Tierney, in addition to being one of the incorporators, did office work and helped mail brochures. According to the record Thomas Tierney “ran the whole thing.” Armand V. Garcia worked for the corporation, and appeared in some of the films. Tierney hired him. Later Garcia worked in the addressing department, where his duties were to mail out the Lupe Ramirez brochure, using telephone directories as his mailing lists. He worked under Tierney’s direction and was instructed by Tierney to avoid schools, churches, hospitals and government agencies. Mailing proceeded at a high rate—ten to twenty thousand brochures per day.