I dissent. I disagree with the majority that the prosecution was required to introduce expert testimony establishing contemporary community standards and that the relevant community in this case should be the entire State of California rather than the local community. No decision of the United States Supreme Court nor any statute cited by the majority compels the adoption of either rule. It is manifest that the majority’s new rules will impose a difficult or impos*581sible burden on local communities in combating obscenity. They will lead to a further lessening of local control over local affairs—a further removal of the power of self-government from the local citizenry and their duly elected and selected, responsible local officials—and inevitably, a deplorable lowering of standards in many local communities to conform to lower standards elsewhere.
Mr. Justice Potter Stewart, concurring in Jacobellis v. Ohio, 378 U.S. 184 [12 L.Ed.2d 793, 84 S.Ct. 1676] noted that hard-core pornography is hard to define but that “I know it when I see it. . . .” (P. 197 [12 L.Ed.2d p. 803].) And the same can be said of lewd or dissolute conduct. Here, the police officers of the small City of San Pablo thought they saw such conduct in petitioner Iser’s performance; they described it to the jury from the witness stand. The jury found petitioners guilty, and on appeal the judgment was affirmed. That should have ended the controversy.
The testimony of the police officers at petitioners ’ trial is in my opinion amply sufficient to support the conviction. The majority conclude otherwise on the basis of their newly adopted rule that the prosecution must introduce expert testimony establishing contemporary community standards. Why is such testimony required ? Because, assert the majority, ‘‘ To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror.” (Ante, p. 575.) “Moreover,” state the majority, “since we designate the State of California as the relevant ‘community’ for this case, we cannot realistically expect the trier of fact to understand intuitively how the community as a whole would react to allegedly obscene material.”1 (Ante, p. 576.) And further, declare the majority, expert testimony of community standards is indispensable to effective appellate review.
These reasons are not persuasive. I agree with decisions which have expressly or impliedly concluded that a jury, *582properly instructed, or trial judge, is fully capable of determining whether conduct or material appeals to prurient interest and offends contemporary community standards, without expert testimony on the subject, and that such testimony is not essential to appellate review. (Kahm v. United States, 300 F.2d 78, 84; People v. Pinkus, 256 Cal.App.2d Supp. 941, 946-947 [63 Cal.Rptr. 680] ; State v. Onorato, 3 Conn. Cir. 438 [216 A.2d 859, 860]; City of Chicago v. Kimmel, 3 Ill.2d 202 [201 N.E.2d 386, 388].) And, as we shall see, a state standard is wholly inappropriate for judging obscenity of a local public performance such as the one in question.
Surely this court’s laudable concern with the preservation of essential liberty of expression should not blind the court to the practicalities of what it is now requiring be done as a prerequisite to curtailing the spread of obscenity in California. As a result of the majority opinion, local entities of government in prosecuting what were formerly regarded as ordinary justice or municipal court lewd or dissolute conduct cases will now be faced with the difficult or impossible task of introducing expert testimony establishing a state standard. The majority state that “the ' community standard' of the entire State of California is an ascertainable, albeit ephemeral, phenomenon subject to evidentiary proof” ante, p. 576), but the majority fail to offer any enlightenment as to how the so-called state standard is to be ascertained.
Would the toleration by a few metropolitan areas of “topless” gyrations of the type here in question establish the state standard for the more than 9,000 other cities and communities in California ? If such isolated instances of unbridled license are to be the pacemakers for all communities in the state the result can only be a colossal and catastrophic lowering of standards throughout the state. Or if most California cities and communities do not permit such performances, does this establish the state standard ? Or would one strive to strike an average in determining the state standard ? If 100 communities have “topless” as against 9,000 that do not, then is 1/90th “topless” to be the state standard? Chief Justice Warren and Justice Clark have expressed the belief that there is no provable “national standard” (see Jacobellis v. Ohio, supra, 378 U.S. 184, 200 [12 L.Ed.2d 793, 805] [dissent]),2 *583and I similarly doubt that there is any provable state standard.
But even if there is such a standard, the same considerations that lead the majority to reject a national standard require the application of a local rather than state standard. The majority, in rejecting a national standard, state, “ [T]he law of obscenity represents simply the ' present critical point in the compromise between candor and shame at which the community may have arrived here and now.’ . . . Different areas of the country, both in attitude and practice, undoubtedly do reach different compromises between ' candor and shame, ’ and we can conjure no reason for ignoring so obvious a reality. Certainly, all would agree that standards of obscenity are not immutable; they change with the character of whatever community we use for a testing ground. ’ ’ (Ante, p. 578-579.) The majority further point out that the strongest argument against a non-national standard, namely that it would result in denying some sections of the country access to material, there deemed acceptable, that elsewhere might offend prevailing community standards, does not apply with any force here, since petitioner Iser’s dancing is “purely local in nature, a subject matter obviously not intended for nationwide dissemination.” (Ante, p. 579.) Patently, neither is her dancing intended for statewide viewing.
The majority also reject a national standard on the basis of the difficulty of obtaining qualified experts to testify regarding such a standard. A similar difficulty will exist in obtaining qualified experts to testify regarding a state standard.
It seems obvious that the imposition of such a burden in obscenity cases will result in increased permissiveness and a consequent downward trend of standards in this state. Also, as a result of the majority opinion, the high standards of many communities throughout this state will be forced downward to meet a lower level.
The only reasons advanced by the majority for concluding that a state standard is “more appropriate” are that it avoids administrative problems in determining the exact scope of a smaller community and that ' a strong policy favors uniformity in application of- the state criminal law. ...” (Ante, p. 580.) However, any such “administrative problem” is de minimis compared with the problem imposed by the majority upon local governmental entities of ascertaining *584a state standard and finding qualified experts to testify to it. In my opinion the controlling policy here should be to allow local communities the maximum control possible over local activities. If we deny this reasonable measure of local control, inevitably this court will have to bear its share of the weighty burden of having removed one of the last remaining barriers to the spread of obscenity into our residential communities.
I would discharge the order to show cause and deny the petition.
McComb, J., concurred.
Respondent’s petition for a rehearing was denied December 11, 1968. McComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.
Here the trial court in instructing the jury regarding obscenity stated in part that the “standards which you must apply . . . are the standards of the community, and the smallest community which you may consider is the State of California.” (Italics added.) Although in my view the italicized statement is erroneous, petitioners do not now complain of the error. In any event, the error was or could have been raised on appeal, and habeas corpus ordinarily cannot serve as a second appeal. (In re Waltreus, 62 Cal.2d 218, 225 [42 Cal.Rptr. 9, 397 P.2d 1001]; In re Winchester, 53 Cal.2d 528, 532 [2 Cal.Bptr. 296, 348 P.2d 904].)
In Jacobellis v. Ohio, supra, 378 U.S. 184, 192-194 [12 L.Bd.2d 793, 800-801], Justices Brennan and Goldberg concluded that a national standard should be applied, but the issue was not decided by a court majority.