## Facts

- Werner Ernest Enskat exhibited a sound motion picture titled “The Collection” at a Los Angeles theater.
- The People charged Enskat with exhibiting obscene matter in violation of California Penal Code § 311.2, using § 311’s then-existing definition of “obscene matter.”
- Police did not seize or introduce the film; instead, officers photographed portions of the film during exhibition.
- At trial, the prosecution proved the film’s content through the still photographs and witness testimony, rather than the film itself.
- A municipal court jury convicted Enskat; the conviction was later reviewed in appellate proceedings that raised (among other points) evidentiary, instructional, and constitutional challenges.

## Issues

1. Whether California Penal Code §§ 311 and 311.2 were unenforceable after the U.S. Supreme Court’s 1973 obscenity decisions, including Miller v. California, because the statutes did not, on their face, specifically define regulated sexual conduct.
2. Whether a motion picture is a “writing” for purposes of the California best evidence rule, requiring the film itself (absent a proper predicate) to prove its contents in an obscenity prosecution.
3. Whether it was error to instruct jurors they could disregard expert testimony on community standards if they found the material so patently offensive as to violate “any conceivable community standard.”

## Decision

- The court held Penal Code §§ 311 and 311.2 were not facially invalid after Miller and remained enforceable when authoritatively construed to reach only specifically defined sexual conduct within constitutional limits.
- The court held the best evidence rule applied because a motion picture is a “writing” under the Evidence Code; the prosecution could not prove the film’s contents solely through still photographs and testimony without establishing a foundation for secondary evidence.
- The court reversed the conviction because the improperly admitted secondary evidence was the only proof of the film’s content, making the error prejudicial.
- The court did not resolve the jury-instruction issue as a basis for disposition, given the reversal on evidentiary grounds and the intervening constitutional developments.

## Legal Principles

- After Miller, an obscenity statute need not be struck down solely because it does not expressly enumerate specific sexual conduct; it may remain valid if state courts can supply a narrowing, authoritative construction consistent with Miller’s requirement of specifically defined regulated conduct.
- In an obscenity prosecution where the contents of a film are the central issue, a motion picture is a “writing” under the Evidence Code, and the best evidence rule generally requires introduction of the film itself to prove its contents.
- Secondary evidence of a film’s contents (such as still photographs and testimony) is inadmissible to prove contents absent a legally sufficient predicate for nonproduction of the original; if such secondary evidence is the only proof of contents, erroneous admission is prejudicial.

## Conclusion

The court sustained the continued enforceability of California’s obscenity statutes after Miller through narrowing judicial construction, but reversed Enskat’s conviction because the prosecution relied exclusively on secondary evidence to prove the film’s contents without satisfying the best evidence rule.


People v. Enskat, 33 Cal. App. 3d 900 (Cal. Ct. App. 1973)