LOS ANGELES – The City of Los Angeles rested its case against adult video producer Max Hardcore at 11:30 Wednesday morning, and Hardcore's attorney Jeffrey Douglas immediately moved for the dismissal of Count 2, charging violation of L.A. Code 311.5, on the basis that the prosecution had offered no evidence that Hardcore had broken that law.

City Attorney Michele Anderson had contended that a catalog of Hardcore videos, as well as a flyer for Golden Guzzlers 1, both of which had been enclosed with the copy of Max Extreme 4 that had been ordered by an undercover L.A. police officer, were obscene under the provisions of Sec. 311.5, which criminalizes any advertisement or promotional material which deems itself to be obscene. Anderson argued that the use of the term "hardcore" in the catalogs, and the term "Golden Guzzlers" on the flyer, were legally equivalent to describing the material as obscene.

After about a half-hour of spirited argument, however, the judge ruled that the plain wording of the statute required the word "obscene" to be used for the material to fall under the law, and therefore dismissed that charge.

The ruling took place after the jury of 12, with four alternates, finished watching the video at issue, Max Extreme 4, which had been started late Tuesday. On Wednesday, the video was restarted with the beginning of its second scene, featuring an outdoor coupling between Hardcore and Heaven Leigh. The other scenes featured the little-seen Lolita, and the tape ended with a pool-table anal doggie pounding of Julie Meadows.

While the debate on Sec. 311.5 was under way, a messenger hand-delivered to the court and counsel an affidavit from the bookkeeper for Extreme Associates, which had been ordered to produce records of sales in California for four Extreme titles that Douglas wanted to use as "comparables" to the allegedly obscene material in Max Extreme 4: Extreme Teen, Vols. 18, 19, 21 and 24.

The affidavit was signed by David Pentycofe, who described himself as a bookkeeper for Extreme Associates, Inc.

The affidavit reads, in pertinent part, "2. I am familiar with the books, records, book-keeping and accounting systems utilized by Extreme Associates, Inc. as well as with the manner in which such books and records are prepared and maintained in the usual course of its business.

"3. I am familiar with the subpoena duces tecum served on Extreme Associates, Inc. in this matter, and I was requested, in the course and scope of my employment with Extreme Associates, Inc. to review this subpoena and to determine if Extreme Associates, Inc. had a compilation of statistics or figures of 'sales in California for the following titles: Extreme Teen #18, Extreme Teen #19, Extreme Teen #21 and Extreme Teen #24.'

"4. I was also requested, in the course and scope of my employment with Extreme Associates, Inc. to determine if Extreme Associates, Inc. had a compilation showing the number of sales of the above entitled films to California distributors.

"5. I am certain that Extreme Associates, Inc. does not have, nor has it ever had, nor does it require, nor does it prepare or maintain in the usual course of its business either a compilation of California sales figures, or a compilation of sales to California distributors for the following titles: Extreme Teen #18, Extreme Teen #19, Extreme Teen #21 and Extreme Teen #24."

"That's bullshit," commented a former Extreme employee who saw the affidavit. "Of course they have those figures, and of course they need to prepare them in the course of their business."

Douglas, however, was prepared for the stonewalling on Extreme's part, and had earlier requested AVN publisher Paul Fishbein to arrange for a study to be performed where video stores in the Los Angeles were called and asked if they stocked any of the four Extreme Teen volumes, to see if the tapes were commonly available in the California market.

Fishbein, the defense's only witness, testified to the results of the study when court reconvened after lunch. He said that between 11 and 14 percent of the 231 stores contacted which stock adult videos in the Los Angeles area stocked at least one of the four titles.

It was necessary to establish the presence in the California marketplace of the Extreme Teen videos, as well as the general availability of Barely Legal 24 and Original Cherry Poppers 19, in order for Douglas to show the jury portions of those tapes as material comparable to that of his client's, in an attempt to help the jury evaluate the community standards of California; one of the "prongs" of the Miller standard for obscenity. If the jury finds that the material in Max Extreme 4 is substantially similar to, or less graphic than, the material in the comparable tapes, it should conclude that Max Extreme 4 is not obscene.

Douglas spent several minutes questioning Fishbein about his history in the adult video business and his familiarity with the various genres and different lines of videos available to the public; testimony which was interrupted several times by objections and the now-familiar "sidebar" arguments between the attorneys, refereed by Judge Michael Kellogg.

When it came her turn to cross-examine, Anderson spent several minutes questioning Fishbein on his knowledge of the so-called "Cambria list" and its role in adult video production. Fishbein testified that the list was a private communication between attorney Paul Cambria and one of his clients, that had been leaked to the public.

Anderson pressed the issue of whether the various acts referred to on the list were generally avoided by adult video companies. Fishbein replied that he didn't remember just what points were on the list, and that he couldn't read the minds of adult video producers to tell just what effect the items on the list may have had on them.

Anderson also questioned whether different versions of the six comparable titles might be available on the shelves of California video stores. Fishbein noted that some hardcore story-driven videos are produced in less-explicit cable and more graphic European versions, but that cable versions were not produced of most wall-to-wall videos.

Testimony concluded for the day at about 4:30 p.m., though unlike previous days, the afternoon session was observed by six Filmwest employees and several city prosecutors. Thursday's session will likely begin with arguments as to whether the comparable tapes can be shown to the jury, and if that is allowed, closing arguments and jury deliberations may begin as early as Thursday afternoon.