section 311.2, the maximum fine and the maximum term of imprisonment increase in stated amounts with each unit of matter involved, up to very high ceilings.

Searches and Seizures

The former sections relating particularly to seizure and destruction of matter believed to be obscene were repealed. (Pen. C. secs. 312-314). Under these provisions a magistrate could destroy all matter he found to be obscene (saving one copy for the district attorney), even though there had not yet been a trial on the issue. Under the new law, there are no provisions relating to seizure. This subject will be governed by the general law. There is, however, an authorization for the court, after conviction, to order destruction of matter adjudged to be obscene which is in possession of the district attorney and to destroy such matter in its own possession (Pen. C, sec. 312).

Some Open Questions

Under the old law the Appellate Department of the Los Angeles Superior Court took the position that expert opinions on what is obscene and what are contemporary community standards are. not admissible (People v. Harris, supra). The new law does not expressly deal with admissibility of evidence, and there is no controlling decision from a higher court. A related question that can be raised is whether there is really one set of contemporary standards and whether the same "limits of candor" prevail for all media. Although Lady Chatterley's Lover has received judicial clearance as a book, presumably something like a nuclear explosion would occur if the book in its entirety were read on a network television program. A jury is probably reasonably acquainted with the standards that prevail in public speech and on television, but are book standards the same? As most people read scarcely any books at all (see, e.g., 56 News Notes of California Libraries, 18), it is suggested that the average jury is not really in a position, without expert aid, to judge the degree of candor prevailing in current fiction or to judge a factor such as literary merit. It would not appear that the new law precludes admission of expert testimony to any factor relevant to a determination of the question of obscenity.

Has the state pre-empted the field to the exclusion of counties and cities? Could a city, for example, make it an offense knowingly to possess obscene matter without intent

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to distribute it? Under the old law, the Appellate Department of the Los Angeles Superior Court concluded, two to one, that the state had not pre-empted the field (People v. Smith, 161 Cal.App.2d Supp. 860, 327 P.2d 636 (1958), rev'd: on other grounds, Smith v. California, 361 U.S. 147, 4 L.Ed.2d 205 (1959)). It is suggested that a stronger argument for preemption of the field by the new law can be made than could have been made for pre-emption of the field by the old law when the Smith case was decided. For one thing, the new law is more comprehensive than the old in terms of the acts covered, as described above. It would also appear that the California Supreme Court has since evidenced greater liberality in finding a pre-emption of the field by the state than was evidenced by its subordinate court in the Smith case (see Abbott v. City of Los Angeles, 53 Cal.2d 674, 349 P.2d 974 (1960)). Further, although the statute as enacted does not contain any express statement of intent to pre-empt or not to pre-empt the field, there is significant legislative history on the point. The bill repealing the old law and adding the new was at one stage amended to include an express statement of intention not to pre-empt the field (A.B. 1979, as amended in Senate June 13, 1961) but was later amended to delete this entire provision (A.B. 1979, as amended in Senate June 14, 1961). Amendments in the course of passage of a bill can be referred to as an aid to interpretation (see Consolidated Rock etc. Co. v. State of Cal., 57 Cal.App.2d 959, 135 P.2d 699 (1943)). This bill, incidentally, was amended. numerous times and in any other instance in which the new law does not seem clear on its face, it would be worth the time spent to check the history of the bill.

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Published in January, April, July and October. Subscription $2 per year, mailed sealed to any address. Published by PAN-GRAPHIC PRESS, 693 Mission Street, San Francisco 5, Calif., Tel. EXbrook 7-0773. Primarily concerned with books relating to socio-sexual themes, particularly fiction and non-fiction works on homosexuality and sex variation topics.

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