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HomeMy WebLinkAboutRES NO 11-80RESOLUTION NO.' 11-80 A RESOLUTION OF THE COUNCIL OF THE CITY OF BAKERSFIELD SUPPORTING STATE LEGISLATION TO AMEND THE LAWS RELATING TO PORNOGRAPHY AND THE ABATEMENT OF PORNOGRAPHIC MATTER. WHEREAS, the Council of the City of Bakersfield believes that pornography encourages, stimulates and promotes anti-social behavior; and WHEREAS, the Council of the City of Bakersfield is concerned about the manufacture, sale, distribution and exhibition of porno- graphic matter within the City; and WHEREAS, a large number of residents of the City of Bakers- field have voiced their opposition to pornography; and WHEREAS, existing California State law has made it difficult and often impossible for local jurisdictions to adequately control pornography; and WHEREAS, changes to the existing state law can provide a means to control the sale, distribution and exhibition of obscene matter in the City of Bakersfield; and ;'.=~'.~..~...~ WHEREAS, on January 30, 1980, the'City Council unanimously adopted a motion directing the City Attorney to contact the District Attorney's Office for the preparation of state legislation to amend the present laws relating to obscenity and pornography; and WHEREAS, the City Council has reviewed the proposed draft legislation, attached hereto as Exhibit A; and WHEREAS, as a result of the January 30, 1980, Council action, the proposed legislation has been sent as a legislative request from the Kern County District Attorney's Office to the Senate Legislative Counsel for review and consideration. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Bakersfield as follows: That the Council of the City of Bakersfield supports the proposed draft legislation, attached hereto as Exhibit A. That the Council of the City of Bakersfield urges all California State Senators and California StateAssemblymen to support the legislation that will accomplish 'the ends sought by the proposed draft legislation. o0o I HEREBY CERTIFY that the foregoing Resolution was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on the 13th day of February, 1980, by the follow- ing vote: Ay=c. COUNCILMr-N B~ TON CHRISTENSEN MEANS MILLER, PAYNE, RATTY, ~ APPRO~ED ~1'~ lSth day Fe r ry, 1980 the Proposed Sen'ate.Bill: An act to amend Sections 311, 311.8, 312, 312.1, 313, 313.3 and 11225, of , and to add Section 11225.1, to, the Penal Code, relating to harmful and obscene matter, obscene live conduct, abatement and declaratory relief. Suggested Legislative Counsel ' s Digest Existing law' ~ef~nes, for purposes of certain crimes, oDscene matter as.' matter, taken as a whole, the predominant appeal of which, to the average person, applying contemporary community standards, is to prurient interests, and is matter, which, taken as a whole,' goes beyond customary limits of candor in description or representation of such matter, and is matter which, taken as a whole,' is utterly without redeeming .social importance. Harmful matter is similarly defined with reference to minors and obscene live conduct is similarly defined with reference to live conduct. This bill would redefine such terms so that obscene matter means matter, taken as a whole, to the average person, applying contemporary community standards, appeals to prurient interests, and is matter which taken as a whole, depicts or describes sexual. conduct, defined, in a 'patently offensive way and is matter which, taken as a whole, lacks serious literary, artistic, political or scientific value. Harmful matter. would be similarly defined with reference to minors and obscene live conduct would be similarly defined with reference to live conduct. ' '. Existing law does not de_fine in specific terms that sexual ~conduct, which if depicted or described, is proscribed. This bill would spell out that sexual Cgnduct, which if depicted or described, is pr6scribed, and thus make it easier for the public to understand the statute. Under ~istin~ law, the community is undefine.q.. This bill would define the communit..y with reference to the venue of the Superior c6urt in which jurisdiction the unlawful exhibition or dis- tribution of obscene or harmful matter takes place or obscene live conduct occurs. Existing-law does not specify that the matter or conduct that is the subject of the trial or proceeding is to be considered as the primary and best evidence of its character. 'This.bill would specify that the primary and best evidence of the character of the matter or conduct is the specific matter or conduct Ex!st.inq :.l.~=.w....d, oes not provide a procedure enabling cities,-·towns or counties to abate the unlawful distribution or exhibition of matter that has been judicially determined to be obscene, or to abate the unlawful distribution or exhibition to minors of matter that has been Judicially determined to be harmful to minors. This bill would establish a procedure for abatement under the Red Light' Abatement Law, following prior judicial determination.by the Superior Court, of the exhibition and distribution of harmful matter minors of ;the exhibition and distribution of obscene matter, of the l)ossession of harmful matter for the purpose of distribution or exhibition to minors and possession of obscene matter for the purpose of distribution or exhibition to others. The prior judicial determination of the described unlawful activities and of the character of the matter,under existing Declaratory Relief proc&dures, would be a condition precedent to any abatement action. This bill specifies that local governmental entities shall not be liable for costs or damages sustained as a result of unsuccessful attempt to "aba~e. This-obill. imputes knowledge of the obscen r harmful character any material sold, distributed, exhibited, acquired or possessed with intent to sell, distribute, or exhibit, after the service of declaratory 3udgement upon such person, firm or corporation involved in the described unlawful activities. This bill would also prevent the .use against any witness, testifying in the Declaratory Relief and abatement proceedings, of his testimony in any subsequent action that may be brought against him, except for the purposes of impeachment. This bill would also specify that no reimbursement or appropriation is made to local aqen~ies for costs incurred by them pursuant to this act. 4 Th~ People of the Sta of California do enact ~ lows: SECTION 1. Section 311 of the Penal Code is amended to read: Section 311. Definitions As used in this chapter:. (a) "Obscene matter" means matter, which, taken as a whole, the p~edem~nan~-eppee~-~f-~bit~bto the average person, applying contemporary community standards, ~s appeals to prurient interest, ~=e=r-a-shame~M~ e~-me~b~-~e~es~-~-~e~yT-seMr-e~-eMe~e~e~; and is matter which taken as a whole ~ees-sMbs%a~%~a~y-beye~-e~s%ema~y-~m~%s-e~-ea~er ~m-~ese~p%ie~-e~-Eep~ese~%a~ie~-e~-s~eh-ma%~e~s~-a~-~s-ma%%e~-wh~eh ~akeR-as-~-whe~e-~s-~%%e~y-w~%hee%-~e~eem~-see~a~-~mpe~%a~ee~deDicts- or describes sexual conduct in a DatentlV offensive way and is matter which,taken as a whole', lacks serious literary, artistic~ political, or SCientific value. (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 ~roups, in which case the predominant appeal of the matter shall be J~dged with reference to its intended recipient group.' (2) fin prosecutions under this chapter, where circumstances ~ro~uction, 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 you can justify the conclusion that the matter ~s-e~e~y-w~heM~-~e~eem~n~-see~ei-~mpe~enee~. lacks (3) In determining whether the matter taken as a whole goes substantial'ty be~0nd customary limits of candor in description. or representation of such matters the fact the the defendant knew that the matter depicts persons under the age of '16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor which can be considered in making such a determination. (b) "Matter"' means any book, magazine, newspaper or other printed 'or ·written material or any picture, drawing, photograph, motlob pict. ure, ~ka~0tape~ or other pictorial representation or any statue or other figure, or any'recording, transcription or mechanical, chemical or ~k~ct'rical reproduction or any other articleS, equipment, machine, ~ mater.~ls. '. "" ' "' '(C; ....."Persona-means-any-±ndiv~duaiT-Psrtnersh±PT'{~rmT~'sssOciation, ~orpoTe~ien-or-e~her-~ege~-en~i~y. The fact that the matter referred to'in'this chapter or in Chapter 7.6 (commencing with Section 313) can be used in aid of legitimate scientific or educational purposes does not add serious literary, artistic, political or scientific value to the matter when not used in such setting. e""]'(d)' "Distribute" means ,to transfer pos.session of, whether with ~)r WithoUt .conSideration. · (e) "Knowingly" means being aware of th~ character of the matter or live conduct. ..... (g) "Obscene live conduct" means any physical human body activity, ~he~her performed or engaged in alone or with other persons, including b~·'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 community standards is tO p.rurient interest, i-~rr-~-shsT~Jr~rl--~r--morbi~ inL~est e~-eMe~e~&en, and is ~duct which taken as a w~_'e ~ees-eubs~an~a~iy ~e~eem~n~-see~a~-~mpeF%a~ee, depicts or describes sexual conduct in a patently offensive way and is matter which, taken as a whole, lacks serious literary, artistic, Dolitical, or scientific val_ui. '(h) "Person" means any individual, DartnershiD, firm, association, corporation, or other legal entity. f(~~"""Sexual conduct" as used in this chapter or ChaDter 7.6 (commenci.n~ with Seetion 313) means deDictions or descriDtions of actual or simulated sexual intercourse; oral coDulation; anal intercourse; oral anal coDulation; beStiality, sadism, masochism, or excretory {unctions in conjunction with sexual activity; masturbation; or lewd exhibition of the ~enitals, 'whether any of the above conduct is .depicted or described as bein~ performed alone or between members of the same or oDDosite sex or between humans and animals. Simulated s, exual activity means an exDlicit',deDiction or descriDtion or repre- sentation of cenital orcans, which deDiction o~ descriDtion ~ives the appearance of sexual conduct. "Prurient interest" means a shameful or morbid interest in nudity, sexual conduct or excretion. k~ "Community" as used in this chapter or Chapter 7.6 (commencing wit Section 313) means the geographical venue of the Superior Court Judicial district within which any charged violation of this chapter' or Chapter 7.6 (commencing with Section 313) occurred regardless of the court in which action under this chapter or ChaDter 7.6 (commencin~ with Section 313) is tried.. 7 (1) '~he predominant'appeal ~o prurient interest of the conduct is judged with reference to average adults unless it appears from ~he 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 condu&t shall be judged with reference to its intended recipient group. · (2) In prosecution 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 ~s-~e~y-w~hee~-~e~eem~n~-see~a~-~mpe~a~ee. lacks serious literary, artistic, political, or scientific value. (3) In determining whether the live conduct taken as a whole ~ees-sBbs~an~&a~y-~eyen~-ees~ema~y-~m&~s-e~-eanae~-&n-aeeeP~P~en eM-~ep~eeen~a~ee-e~-eeeh-me~e~e depicts or describes sexual conduct in a patently offensive way and is matter which, taken as a whole, lacks serious literary, artistic, political, or scientific value the fact that the defendant knew that the live conduct depicts persons u~der the age of 16 years .engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor which can be considered in making such a determination. · S~CTION 2. Section 3~ Section 311.8 Defense (8) Except as otherwise provided in Section 311' (c), 8 of the .Penal C6de is ~Dded to read. shall be a defense in any prosecut~an for a violation of this chapter that the act charged was committed in aid of legitimate scientific or educational purposes. S~CTION 3.' Section 31 f the Penal Code is amended to read: Section 312. Destruction of obscene material upon conviction Upon the conviction of the accused for any violation under this chapter or 'Chapter 7.6 (commencing with Section 313), 'the ccurt may, when the .conviction becomes final, order any matter or advertisement, in respect whereof the accuse~ stands convicted', and which remains in the possession or under the control of the district attorney or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control. .. 10 SECTION 4. ~ectiom 312.1 of the Penal Code is amended to read: Section 312.1 Expert witness testimony; admissibility of evidence In any.prosectuion for a violation of the provisions of this chapter or of Chapter 7.6 (Commencing with Section 313), neither the prosecution nor the defense shall be requiredto introduce expert witness testimony concerning the obscene or harmful'character of the matter or live conduct which is the subject of any such prosecution. Any, evidence which tends to establish contemporary community standards of appeal to prurient interest or of ~us~ma~y_limits_of_candor-in-~he~des~ription- eE_;ep;esem%atio~_Q~-~udity~-sex-or-excre=ion-or patent offensiveness, or which..bears upon the question of rcdceming social importan~-e~ serious ~iterary, ~rtistic, political, or scientific v~]ueo shall, subject to the provisions of the Evidence Code, be admissible when offered by either the prosecution or by the defense. The "matter" by itself shall be'the primary and best evidence of whether or not it is "obscene matter" as defined in this chapter or "harmful matter" as defined in Chapter 7.6 (Commencin~ with Section 313); similarly, the."live Conduct" by itself shall ~e the primary and best evidence of whether or not it is "obscene live conduct" as defined ~n this chapter. · SECTION 5. Section 313 the Penal Code ih-amendeto read: ¢ · Section 313. Definitions As used.in this chapter: (a) "Harmful matter" means matter' which tak. en as a whole, the p~edomi~a~-appea~-e~-wh~eh to the average person, applying contemporary community standards, is aDDeals tO prurient interest, ~rerr-~-shame- .~u~_o~LmQ;b~_~epes~-~-~B~yr-se~r-eP-e~e~e~en; and is matter 'which taken as a whole~ees-s~bs~a~~y-beyend-eus~om~rY-}~m~ts'oE' ~Q~T~,desep~p~i~_e~_peppese~a~e~-e~-sue~-Fab~ers; describes sexual conduct in a patently offensive'way; and is matter which taken-as a whole lacks serious literary, artisti'c, political or scientific value. (1) When it appears from the nature of the matter or the cir- cums~ances of its dissemination, distribution or exhibition that it is designed for clearly defined deviant sexual groups~ the predominant appeal of the matter shall be judged with reference to its intended recipient group. (2) In prosecutions under ~his chapter, where circumstances of production, presentation, sale, dissemination, distrkbutioh, 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 i,~-u=t-ter-l-~a~i~t-he~t--rc~~-eeei~b-imPe~e lacks serious literary, artistic, political or scientific value fer ~tinors. (b) "Matter".means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph , motion picture, videotaDe o~ other pictorial' representation'or any S~6atue' or other figure, or any recording, transcription, or mechanical, chemical, or electrical reproduction or any other'articles,;equipment, machines, or materials. (c) "Person" means any individual, partnership, firm, associa- tion, corporation! or other legal entity. (d) "Distribute" means to transfer possession of, whether with or without consideration. (e) (f) (g) ,~Knowingly" means being aware of the character of the matter. "Exhibit" means to show. .'~Minor" means any natural person under 18 years of age. SECTION 6. Section 31 Section 313~'3 Defense of the Penal code. is'am =ded to read: 'Except as otherwise provided in section 311 (c) of Chapter 7.5, itSshall be a defense in any prosecution for a violation of 'this chapter that the act charged was committed in aid of legitimate scientific or educational purposes. SECTION 7.'S~ct~f~n 11225 of 'the Penal Code is amended to read:- Section 11225. Place of illegal gambling, prostitution, etc., · . nuisance; injunction, abatement and prevention Every building or place used for the purpose of illegal gambling as defined by state law or local ordinance, lewdness, assignation,-cT ~rostitution,. or exhiDiting or distributing to another ,erson obscene matter, or possessing obscene matter for purposes of distribution or exhibition to another person, or exhibiting or. distributing to any minor harmful matter, or possessing harmful matter for purposes of distribution br exhibition to any minor, or exhibiting to another person obscene live conduct, and every building or place in or upon which acts of illegal gambling as defined by state'law or local ordinance, lewdness, assignation,a=.-.~r__~st_itution..-or 'eXhibiting or distributing e~another rson obscene matter, or possessing obscene matter for purposes of distribution or exhibition to another person, or exhibiting or distributing to any minor harmful matter, or possessing harmful matter .for ~urposes.of distribution or exhibition to any minor, or exhibiting to another person obscene live conduct, are helh or occur, is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance. Nothingin this section shall be construed to apply the definition of a nuisance to a private residence where illegal gambling is conducted on an intermittent basis and without the purpose of pro- ducing profit for the owner or occupier of the premises. · :" 15 SECTION 8. ~ct~A 11225.1 is added to the Penal Code, to read:~ Section 11225.1 (a) The terms "matter," "obscene matter." "harmful matter,'." "obscene live conduct," "exhibit," "distribute," "minor," "Derson," and "knowingly" are used in this chapter as defined in Part 1, .Title 9, Chapter 7.5 (commencing'with Section 311) and ChaDter 7.6 fcommencinG with Section'313) of the Penal Code. (1) "Exhibiting" means to exhibit by any direct' or indirect ~'~'~h6~d~ including but not limited to mechanical, electrical, ~'xectronic, video or optical methods, of any matter or 'conduct. '?'~')' "Distributing" means to distribute by any direct' or indirect method, inc.luding but not limited to 'mechanical, electrical, -electronic, video or optical methods, of any matter. ~b) The determination that the building or place is in .fact being ................... ~'sed for exhibiting or distributin~ to another Oerson' obscene matter, or possessin'~' obscene matter for purposes of distribution or exhibition to another"person; or exhibiting"or distributin~ to anV minor harmful ~'t~r', or"~6ssessing harmful matter for DurDoses of distribution or exhibition to any minor,' or is in fact a bu'ildin~ or Dlace in or upon which such acts are held or occur, shall first be ~udiciallv determined. pursuant to the procedures of Declaratory Relief, Part Title 14, Chapter 8, of the Code of Civil Procedure eommeno~ng with Section 1060, Code of Civil Procedure) and ~oined with anV action commenced under this chapter relating to t~e buildin~ or Dlace. (c) The determination that the buildinq or ~la'ce is in fact' being used for exhibiting to another-person 'obscene live conduct or is a building or place in or uDon which.acts of o_bscene l~ve. condUct are held or occur, may, but need not be. ~udicial~v, aetermin~d.Dursuant tO the Drocedures of Declaratory Relief, Part 2, Title 14, ChaDter 8 Of the Code of Civil Procedure (Commencinq with Section 1060, ~ode of Civil Procedure) and may, but need not be, ioined with any action commenced under this chapter relating to the buildinq or plac__e; however, the Declaratory Relief procedure is not a condition precedent any action brought under this chapter reqardin~ illeqal GamblinG, lewdness, assignation, prostitution, or obscene live conduct. ...... (d) Any action commenced or becomin~ final under this chapter or for declaratory relief under Part 2, Title 14, Chapter 8, .................. .~I. (Commencin~ with Section 1060) of the Code of Civil Procedure shall not preclude the District Attorney or'City Attorney from' commencing. and Drosecutin~ any '-- ~ction relatin~ to ~nv unlawful acti.~i~t~ - which takes place .... is held or occurs, ~t or in the buildin~ or place which is the subject matter of the action under this chapter or under Part 2, Title 14, Chapter 8 ..(Commencin~ W~th Section 1060) of the Code of Civil Procedure. ....... {e) Except as provided under Division 10, Chapter 2, frticle 3, Section 1235of the~E~idence~Code relatin~ to "Ihconsistent Statement," the testimony by any witness appearing in any such action under this ch-~ter of for Declaratory Relief under Par~ 2', ~Title 14, Chapter 8 '~CommencinG with Section 1060)' of the Code of Civil Procedure shall n'ot--be--'admissible as evidence a~ainst him, in any ~ther action or ]~r~)ceeding brought o'r pending againSty[be'aforementioned_witness under P~rt 1, Title 9, ChaPter 7.5 (Commencin~ with Section 311) or Chapter -}.·6"'~Commencin~ with Section 313) ~f the Penal Code~ ~f~- Every person, firm or corporation, whereever located, who sells, d~str~butes or exhibits. or acquires possessio~n"with intent to sell, d~str~b~o or ~xh~b~t ~ny o~ the mmttcr, or exhibits any obscene live conduct, described in Part 1, Title 9, Chapter 7.5 (Commencing with 'Section. 311) and Ch~lpter 7.6 ~Comm~nc~nO Q~h Section 313}, after 'the service upon~'h~m '62 a certified judgement or order of the celurt~i under Part 2, Title 14 Chapter 8 (Commencing with S~ction 1060A~\declaring such matter to be obscene or harmful or such live conduct to be Obscene, is chargeable with the knowledge that such matter is obscene or.harmful, or that such live conduct is obscene. .~,. (g)' In any action brought as provided in this chapterSfor Declaratory Relief (Part 2, Title 14, Chapter 8, Code of Civil Procedure), as herein provided, such officer of the county, city or town and any such county, city· or town shall not be required to file any undertaking before the commencement of any action or issuance of any order under ~his chapter, or for declaratory relief, or for any injunction under any provision of law, shall not be liable f~r costs, and shall not be liable. for damages sustained by reason of the commencement or prosecu- tion of any such action in cases where judgement is rendered in favor of the person, firm or corporation having any 'interest or ownership in the place, building, activity, or business sought to~be abated or enioined. SECTION 9 ', Notwithstanding Section 2231 of the Revenue and Taxation Code, there shall be no reimbursement Dursuant tO such section nor shall there be any appropriation made by this act because the LeGislature recognizes that during any legislative session a variety of changes to laws relatin~ to crimes may cause both increased and decreased costs to local aovernmenta.1 entities and school districts which in the aGGreGate do not result in significant identifiable cost changes.