¶1-I dissent. Petitioner attacks collaterally a final judgment convicting him of violating the obscenity statute, but has failed to meet his burden of establishing that he was not convicted of possession of obscene matter with intent to distribute it.
¶2Petitioner was convicted under an instruction to the jury that it should convict if it found that he had either prepared obscene material, or possessed it with the intent to distribute it. Nothing in the majority opinion appears to question the correctness or constitutional validity of the possession with intent to distribute portion of the instruction. However, the trial court’s construction of the statute as reflected in the alternate ground of preparation without intent to distribute is held to be erroneous and, so the majority opinion states, ‘ ‘ would render the statute unconstitutional. ’ ’
¶3It cannot be determined whether petitioner was convicted of preparation alone, or of possession with intent to distribute, or was found guilty on both grounds. If this case were before us on appeal or other direct attack, such ambiguity might well warrant or require reversal of the judgment. Such was the holding of the United States Supreme Court in Robinson v. California (1962) 370 U.S. 660 [82 S.Ct. 1417, 8 L.Ed.2d 758], a direct attack on appeal from a conviction under two alternate jury instructions, one of which was held constitutionally permissible and the other to be invalid as a violation of the Eighth and the Fourteenth Amendments. (See also In re Bell (1942) 19 Cal.2d 488, 500 [122 P.2d 22].)
¶4This matter is here on habeas corpus, however. As emphasized and explained in detail in In re Bell, a habeas corpus proceeding “ is in the nature of a collateral attack, and a judgment that is collaterally attacked carries with it a presumption of regularity,” citing Johnson v. Zerbst (1938) 304 U.S. 458, 468 [58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357], (P. 500 of 19 Cal.2d.) In Bellpetitioners had been found “guilty as charged” under a complaint charging violation of any one “and/or” any other provisions of an ordinance, only one provision of which (prohibiting picketing by acts of violence) was *824held by this court to be valid. In rejecting their efforts to secure release on habeas corpus, the opinion declares (p. 501) that in such a proceeding the presumption of regularity is not conclusive, “but places upon petitioners the burden of proving that their convictions were based not upon the constitutional but upon the unconstitutional provisions of the ordinance. [Citation.] Unless they can sustain this burden they must be considered as having been convicted of violating the valid provision relating to acts of violence, and the judgment must be upheld. ... [P. 504.] If . . . it cannot be determined from the charge and conviction whether or not petitioner was tried and convicted for violating the valid part, the court must examine the evidence, not to test whether it is sufficient to support a verdict, but to determine whether petitioner was tried and convicted for violating the invalid part alone, in which case the conviction must fall, or whether he was tried and convicted for violating the valid part as well, in which ease the conviction must stand. The petitioner has the burden of proving that he was not tried and convicted for violating the valid part of the statute.
¶5“Petitioners in the present case have failed to sustain the burden of proving that they were not tried and convicted for acts of violence since the transcripts of testimony at their trials reveal evidence of such acts. . . . [P. 505.] Because petitioners have failed to sustain the burden of proving that they were not convicted of the one valid provision of the ordinance prohibiting acts of violence, the writ heretofore issued is discharged and the petitioners are remanded. ...” (Italics added.)
¶6The rules so enunciated and applied in Bellwere recently reaffirmed and given like application by this court in In re Carlson (1966) ante, p. 70 [48 Cal.Rptr. 875, 410 P.2d 319]. Carlson had been convicted of violation of section 11721 of the Health and Safety Code, a statute which some years later (in Robinson v. California, supra(1962) 370 U.S. 660) was held valid in prohibiting the use of narcotics but unconstitutional insofar as it purported to constitute the status of narcotics addiction a crime. Carlson thereupon sought release on habeas corpus, but as noted in the opinion (ante, at p. 73) failed to produce a record showing whether he had been charged with use and addiction, or solely addiction. Citing and relying upon Bell, we denied relief. In so doing, the opinion notes (ante, at p. 73) that the writ should not issue if petitioner ⅛ 4 4 conviction had, as a sufficient ground, something *825other than the illicit portion of the statute. [Citing Bell.] . . . [Ante, at p. 75.] The presumption of regularity which attached to a judgment collaterally attacked [citations, including Bell] places upon a petitioner the burden of proving that his conviction was based not upon the constitutional but upon the unconstitutional provisions of the statute under which he was convicted. [Citing Bell.] In attempting to sustain this burden he is not confined to the evidence presented at trial but may have resort to ‘ any necessary additional evidence bearing on the infringement’ of his rights. [Citing Bell.] Petitioner has failed to present evidence sufficient to sustain this burden, and his petition must therefore be denied.” (Italics added.)
¶7Thus both Carlson and Bellemphasize and follow the rule that the petitioner’s burden is sustained only by affirmatively proving that he was not convicted of the valid portion of the statute or instruction.
¶8In the present case, as in Carlson and Bell, petitioner has failed to sustain the burden of proving that he was not convicted under the valid portion of the jury instruction, i.e., of possession of obscene material with intent to distribute it, since the transcript of testimony at his trial reveals evidence which would support a conviction under that portion. It was shown that petitioner was a $50,000 a year commercial producer of films and pictures, and was in the mail order business of selling films of nude women. The charges involved here came to the attention of the police upon the complaint of one of the models photographed by petitioner in the films upon which his conviction was based. She testified that during the filming in his apartment it appeared to her, as an experienced model, that he was photographing her private parts; that the pictures of her were being taken in a manner substantially beyond customary limits of candor; that when she objected petitioner asserted that the special lens he was using would exclude that portion of her anatomy from the pictures; that she did not believe him and upon completion of the filming stated she would not sign a release of the film for use until she had been given an opportunity to examine the pictures; he assured her that she would be given that opportunity, but repeated demands were to no avail; in a conversation with the model inyolved in the second film the latter indicated to the witness that she too had received the same assurances by petitioner during the filming of her body and that she suspected that he had not told her the truth concerning the camera he was using. As a result; the two models went to the police. The *826trial court and jury witnessed both films, which clearly demonstrated that petitioner had lied to his models and that he did in fact photograph their private parts. The above related evidence considered in the light of petitioner’s profession would plainly support a conclusion by the jury that he produced and possessed these films with intention to distribute and exhibit them. It follows that petitioner has failed to discharge his burden on this collateral attack on the judgment of conviction, and that the writ of habeas corpus which he seeks should be denied.