Opinion
Kenneth P. Scholtz, Beverly Hills, for defendant and appellant.
John K. Van de Kamp, Dist. Atty., Harry B. Sondheim, and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and respondent.
COLE, Presiding Judge.
Defendant was convicted of violating Penal Code section 311.6 which prohibits participation in "obscene live conduct to or before an assembly or audience consisting of at least one person or spectator in any public place or in any place exposed to public view, or in any place open to the public . . . ." The phrase "obscene live conduct" is defined in section 311, subdivision (g). The sole contention on this appeal by defendant is that section 311, subdivision (g) and section 311.6 are vague and uncertain in that they fail to specifically define the sexual conduct which may be prohibited thereby. We disagree, and affirm her conviction. Defendant acknowledges that the definition of obscene live conduct set forth in section 311, subdivision (g), exactly parallels that of "obscene matter" set forth in section 311, subdivision (a). Defendant further recognizes that in Bloom v. Municipal Court (1976) 16 Cal.3d 71, 81, 127 Cal.Rptr. 317, 322, 235, the Supreme Court stated "Having previously denied hearing in (People v.) Enskat (1973, 33 Cal.App.3d 900, 109 Cal.Rptr. 133), we now expressly approve that decision. Section 311 has been and is to be limited to patently offensive representations or descriptions of the specific 'hard core' sexual conduct given as examples in Miller (v. California (1973) 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419) I, i. e., 'ultimate sexual acts, normal or perverted, actual or simulated,' and 'masturbation, excretory functions, and lewd exhibitions of the genitals.' (413 U.S. at p. 25, 93 S.Ct. 2607 . . .) As so construed, the statute is not unconstitutionally vague." (See also, People v. Enskat, supra, at pp. 910, 912, 93 S.Ct. 2607.) Notwithstanding this history, defendant urges that no reported decisions have construed sections 311.6 and 311 subdivision (g) in the same manner that Bloom and Enskat construed section 311 subdivision (a) in its application to section 311.2 (which deals with obscene matter, just as section 311.6 deals with obscene live conduct). No reason occurs to us why there should be a difference in construction. Indeed, since conduct may be subject to greater restriction than mere "speech" or "words" (Crownover v. Musick (1973) 9 Cal.3d 405, 420, 107 Cal.Rptr. 681), there is an even stronger reason for upholding the constitutionality of subdivision (g) of section 311 than there is with respect to subdivision (a).
All further section references are to sections of the Penal Code.
Subdivision (g) is as follows:
Subdivision (a) is as follows:
We hold that for the reasons stated in Bloom and Enskat, section 311, subdivision (g) is not unconstitutionally vague.
There is no question that, given this holding, defendant's conduct falls within the prohibitions of subdivision (g), and she does not argue to the contrary.
The judgment is affirmed.
ALARCON and WENKE, JJ., concur.
" 'Obscene live conduct' means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, speaking, dancing, acting, simulating, or pantomiming, where, taken as a whole, the predominant appeal of such conduct to the average person, applying contemporary standards is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is conduct which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is conduct which taken as a whole is utterly without redeeming social importance.
"(1) The predominant appeal to prurient interest of the conduct is judged with reference to average adults unless it appears from the nature of the conduct or the circumstances of its production, presentation, or exhibition, that it is designed for clearly defined deviant sexual groups, in which case the predominant appeal of the conduct shall be judged with reference to its intended recipient group.
"(2) In prosecutions under this chapter, where circumstances of production, presentation, advertising, or exhibition indicate that live conduct is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the conduct and can justify the conclusion that the conduct is utterly without redeeming social importance."
" 'Obscene matter' means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.
"(1) The predominant appeal to prurient interest of the matter is judged with reference to average adults unless it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition, that it is designed for clearly defined deviant sexual groups, in which case the predominant appeal of the matter shall be judged with reference to its intended recipient group.
"(2) In prosecutions under this chapter, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance."