JAMES LLOYD MITCHELL et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
Crim. No. 24790
Supreme Court of California
Dec. 28, 1989
February 1, 1990
49 Cal.3d 1230
Joseph Caliore, Dennis Roberts, Robert L. Thorp, Michael Kennedy, Thomas Steel and Emily Graham for Petitioners.
Ephraim Margolin and Amitai Schwartz as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
John K. Van de Kamp, Attorney General, Daniel J. Kremer and Steve White, Chief Assistant Attorneys General, William D. Stein and John H. Sugiyama, Assistant Attorneys General, Clifford K. Thompson, Dane R. Gillette, Aileen Bunney and Christopher J. Wei, Deputy Attorneys General, Arlo Smith, District Attorney, and Bernard Walter, Deputy District Attorney, for Real Party in Interest.
EAGLESON, J.----The Red Light Abatement Law (hereafter RLAL) (
Petitioners seek review of the judgment of contempt entered pursuant to section 11229, which imposed on them substantial fines and six-month jail terms. The principal question presented by their petition for writ of certiorari is whether persons charged with contempt under section 11229 are entitled to a jury trial under the California or United States Constitutions. Petitioners further assert that the acts underlying the contempt charges were neither lewd nor acts of prostitution, and that the numerous acts detailed by the trial court, which occurred over a period of four days, may not each be punished as individual contempts, but constitute at most one contempt violation per day.2
We shall conclude that because a defendant in a contempt proceeding under section 11229 faces a potential sentence of six months’ imprisonment and a $1,000 fine per violation-a sentence equivalent to that of many misdemeanors---the California Constitution guarantees the defendant the right to trial by jury in such a proceeding. Accordingly, the judgments against petitioners must be annulled.
For purposes of retrial we further hold that insofar as an injunction authorized under the RLAL is an injunction to abate a nuisance, namely, the maintaining of premises where prostitution and lewdness occur, persons who violate such an injunction may properly be charged under section 11229 with only one count of contempt for each separate day they permit the prohibited nuisance to continue.
We shall also conclude that no statutory obstacles preclude the People from exercising discretion to proceed against a person who has violated a
I. Facts
Petitioners James Mitchell and Artie Mitchell were the proprietors of a San Francisco business offering filmed and live “adult” entertainment. Petitioner Vincent Stanich was the manager of the establishment.
In 1980, the San Francisco District Attorney filed a public nuisance action against petitioners’ establishment under the RLAL.3 An injunction issued in that action in January 19814 directed to James Mitchell, Artie Mitchell, other named individuals and entities, and their agents, servants, employees and representatives. It enjoined the parties from “[a]llowing the occurrence, continuance or reoccurrence of acts of lewdness or prostitution upon the premises” of the Mitchells’ theater.
In 1982, contempt proceedings were initiated pursuant to declarations by five police inspectors and an assistant district attorney charging petitioners
Petitioner Vincent Stanich was not named in the order to show cause, but one “Alex Denton” was. Both the order granting the preliminary injunction and the order to show cause were served on Stanich, who appeared in the contempt proceeding. He asserted that no “Alex Denton” existed, and that although the prosecution may have intended to name Denton as manager of the Mitchells’ business and served him in the belief he was Denton‘s successor, he (Stanich) was not a named defendant, and no person designated as a “manager” had been named as a defendant. On that basis Stanich claimed the trial court lacked jurisdiction over him in the contempt proceeding.
After a seven-day evidentiary hearing, the court found petitioners in contempt of the preliminary injunction. The contempt judgment describes the general nature of the conduct which the court concluded violated the injunction: “The conduct complained of can be put into two categories: off-stage conduct, where performers permitted (if not encouraged) patrons to fondle genitals, breasts and buttocks, to engage in digital intercourse and oral copulation in return for tips; and secondly, on-stage conduct, where performers masturbated, inserted dildos in their vaginas, and engaged in oral copulation with other performers.” The court found that defendants had knowledge of the injunction and the ability to comply with it, but had instituted only cosmetic changes in the operation of the business in response to the injunction. The court concluded that the conduct was lewd conduct within the meaning of subdivisions (a) and (b) of section 647,5 and as such violated the injunction.
The court also expressly concluded that the onstage conduct was not a theatrical performance. It adopted the reasoning of People ex rel. Hicks v. Sarong Gals (1972) 27 Cal.App.3d 46 [103 Cal.Rptr. 414], that an exhibition calculated to arouse sexual desires and release inhibitions rather than to express emotion and dramatic feeling was simply commercialized lewdness. Therefore, the court held, the conduct was lewd as that term is utilized in section 647, subdivision (a), and was not “expression” protected by the First Amendment. (Cf. Barrows v. Municipal Court (1970) 1 Cal.3d 821 [83 Cal.Rptr. 819, 464 P.2d 483].) The court also found, however, that
The judgment recited in detail the evidence on which the court based its finding of multiple lewd acts. Each lewd act between a performer and a patron was considered a separate contempt. The individual contemptuous acts identified by the court totalled 61, but the judgment mistakenly recited the total as 62. Petitioners James Mitchell and Artie Mitchell were each fined $62,000 ($1,000 for each of the 62 individual contemptuous acts). A fine of $6,200 was imposed on petitioner Stanich ($100 for each contempt). Additionally, all three were sentenced to six months in the county jail for each of the 62 acts, said terms to be served concurrently.
After ordering this sentence, the trial court purported to pronounce an alternative order and sentence, to become effective “if the Court of Appeal should find that the defendants should have been sentenced under section 1218 of the Code of Civil Procedure rather than section 11229 of the Penal Code. . . .” (
II. The Relevant Contempt Statutes
At the outset, we briefly review California‘s various statutory contempt provisions and the ways in which they interrelate and differ.
In 1872 the Legislature created two general classifications of contempt, both of which exist today in slightly amended form.
For a finding of contempt under
It has long been established that the Code of Civil Procedure contempt statute triggers neither a state constitutional nor statutory right to a jury trial. (See
The other major classification of contempt codified in 1872 is found in section 166, which covers some of the same conduct included in
For a finding of contempt under section 166, the contemner “is guilty of a misdemeanor” and may be punished by a fine of not more than $1,000, and/or confinement in the county jail for not more than six months. (§ 19.)7
In contrast to those prosecuted for contempt under the Code of Civil Procedure, persons prosecuted for contempt under section 166, which by its express terms is a misdemeanor, have a state constitutional and statutory right to a jury trial. (Mills v. Municipal Court (1973) 10 Cal.3d 288, 298, fn. 8 [110 Cal.Rptr. 329, 515 P.2d 273] [“our state Constitution guarantees every defendant faced with misdemeanor or felony charges a right to trial by jury” (italics in original)]; Tracy v. Municipal Court (1978) 22 Cal.3d 760, 766 [150 Cal.Rptr. 785, 587 P.2d 227], and cases cited [“A person charged
In addition to these original statutory forms of contempt, in 1913 the Legislature created a separate classification of contempt-violation of a court-ordered injunction issued under the RLAL. (Stats. 1913, ch. 17, pp. 20-22, codified in 1953 as
Whether there is a right to trial by jury under section 11229 of the RLAL has not previously been determined. We turn next to petitioners’ claim that such right is established by the jury trial guarantee of our state Constitution. (
III. State Constitutional Right to Jury Trial for Contempts Under the RLAL (§ 11229)
Because a defendant in a contempt proceeding under section 11229 faces a potential sentence of six months’ imprisonment and a $1,000 fine-a sentence equivalent to that of many misdemeanors-we conclude that the California Constitution guarantees the defendant the right to a jury trial in such a proceeding. Conduct made so punishable under section 11229 is the functional equivalent of a misdemeanor, notwithstanding the apparent legislative intent that it be designated as a civil contempt. Our state Constitution guarantees a right to trial by jury in all criminal prosecutions for offenses above the grade of infraction. (Mills v. Municipal Court, supra, 10 Cal.3d 288, 298, fn. 8; § 19c [“An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury.“].)
There is a fundamental difference between the reach of the federal and state constitutional guaranties of the right to a jury trial. As interpreted by the United States Supreme Court, the Sixth Amendment to the United States Constitution requires a jury trial for all “serious” crimes, including punitive8 contempts. A term of imprisonment, in and of itself, will render
In contrast to the federal jury trial guaranty, which draws a distinction between “serious” and “petty” criminal offenses and requires a jury trial only for those offenses which fall into the “serious” category, the right to trial by jury embodied in the California Constitution extends to so-called “petty” as well as to “serious” criminal offenses, i.e., to all misdemeanors as well as to all felonies. Under the California Constitution, only infractions not punishable by imprisonment (§ 19c) are not within the jury trial guaranty. (Mills v. Municipal Court, supra, 10 Cal.3d at p. 298, & fn. 8.)
The Mills court‘s unanimous construction of article I, section 16, of the California Constitution reflects the clear intent of the drafters that the right to jury trial be preserved for any defendant who might be imprisoned for a criminal offense. The constitutional history demonstrating this intent also makes it clear beyond cavil that the “serious-petty offense” distinction adopted by the United States Supreme Court for purposes of the Sixth Amendment right to jury trial was in substance rejected when the 1879 Constitution was adopted.
The scope and content of the current state constitutional jury trial provision were debated extensively at the 1879 California Constitutional Conven-
state or public. Although it could be expected that the judgment would encourage petitioners to comply with the injunction in the future, because the punishment arose from past acts and could not be modified by future behavior, the primary purpose was punitive, rather than remedial. (Hicks v. Feiock (1988) 485 U.S. 624, 631-635 [99 L.Ed.2d 721, 731-733, 108 S.Ct. 1423] [discussing distinction between punitive and remedial sanctions]; People v. Lombardo (1975) 50 Cal.App.3d 849, 852-854 [123 Cal.Rptr. 755].)
Of all the provisions of the Declaration of Rights considered at the 1879 Constitutional Convention, section 7, pertaining to the right to jury trial, was the most vigorously debated. Proposals that would have allowed conviction by less than a unanimous jury, or that distinguished between types of criminal offenses based on the severity of punishment, were strongly denounced. In particular, the delegates disagreed with the notion that the right to jury trial should depend on the legislative characterization of an offense as a felony or misdemeanor, recognizing the potential for abuse inherent in a constitutional provision that made the right to trial by jury turn on the label given the offense by the Legislature.10
In short, the drafters expressed their intent that the right to trial by jury be preserved for any defendant who might stand to lose his liberty by a sentence of imprisonment, however short, be it in state prison or county jail, and regardless of whether the Legislature has labeled the offense a “misdemeanor” or “felony.” They believed that the length of imprisonment to which an ordinary misdemeanant was subject was sufficiently severe so that any person charged with such an offense should be guaranteed the same right to a jury trial as those who faced more serious charges.
At the same time, however, nothing in the debates leading to the adoption of the 1879 Constitution suggests that the proponents of the state constitutional jury trial provision contemplated that the right to trial by jury would not apply in a proceeding which carried a punishment indistinguishable from that imposed on a misdemeanant, even if the Legislature denominated the proceeding as one for contempt. At the time the 1879 Constitution was adopted, section 166-the current misdemeanor contempt provision-was also already in existence, demonstrating a recognition that when the state seeks to punish a contempt of court with a substantial sentence comparable to a misdemeanor sentence, the contempt should be treated as a misdemeanor and the alleged contemner afforded a jury trial. Given the existence in 1879 of our contemporary misdemeanor contempt provision, it cannot be persuasively maintained that when our state constitutional jury-trial provision was adopted, there was an implicit understanding that the nature of a contempt charge itself would render a trial by jury inappropriate.
Accordingly, in view of the clear intent of the drafters of the California Constitution to afford the right to jury trial in all misdemeanor, as well as all felony proceedings, we conclude that because a proceeding under section 11229 of the RLAL carries a maximum penalty comparable to a misdemeanor, the right to a jury trial afforded by article I, section 16 of our state Constitution applies to such a proceeding. Because defendants were not accorded a jury trial, the judgment of contempt under section 11229 must be annulled. Therefore we need not resolve petitioners’ further claims that they were entitled to a trial by jury under the Sixth Amendment to the United States Constitution, and that principles of equal protection (
It seems probable that the cumulative contempt sentence which the trial court imposed in this case under section 11229----six-months’ imprisonment and a substantial $62,000 fine-would trigger a right to a jury trial under current federal precedents.
IV. Number of Separate Contempts Chargeable Under Section 11229 of the RLAL
Petitioners argue that imposition of judgment for 62 individual acts of contempt was improper. They assert that the contempts found by the trial court were part of a continuous course of conduct that may not be punished more than once. They rely, in part, on section 654, which provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”
For purposes of retrial, we conclude that insofar as an injunction authorized under the RLAL is an injunction to abate a nuisance, namely, the maintaining of premises where prostitution and lewdness occur, persons who violate an injunction under the RLAL may properly be charged with
At the outset we observe that section 654 is applicable to punishment for contempt. (In re Farr (1976) 64 Cal.App.3d 605, 613 [134 Cal.Rptr. 595].) However, before its impact may be determined, the court must ascertain how many separate contemptuous acts have occurred. The first question to be answered is not whether each of the acts of lewdness or prostitution by petitioners’ employees is separately punishable, but how many contemptuous acts were committed by defendants in “allowing the occurrence, continuance or recurrence” of lewd acts at the theater subsequent to issuance of the injunction.
Section 11225, the initial provision of the RLAL, reads in relevant part: “Every building or place used for the purpose of illegal gambling . . ., lewdness, assignation, or prostitution . . . is a nuisance which shall be enjoined, abated and prevented, whether it is a public or private nuisance.” (Italics added.) Although the People claim that an injunction under the RLAL is aimed at the individual acts of lewd conduct or prostitution which occur on the designated premises, and therefore that each lewd act constitutes a separate violation of the injunction, prior cases which have specifically discussed the nature of an action under the RLAL conclude otherwise.12
Indeed, in this court‘s most recent decision under the RLAL--People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal.3d 328, 334 [188 Cal.Rptr. 740, 656 P.2d 1170]--we specifically emphasized that “‘[A]n action under the [Red Light Abatement Law] is not one for the abatement of prostitution . . . but one for the abatement of a public nuisance committed or maintained by the habitual practicing in a building or in or on any premises of acts of prostitution . . . .‘” (Italics added and omitted.)
Although the RLAL does not itself specify how a court should compute the number of violations the contemner commits when he continues to
A number of this court‘s prior decisions under the RLAL reveal how the statute has been construed. In Board of Supervisors v. Simpson (1951) 36 Cal.2d 671, 674 [227 P.2d 14], for example, the court, in the course of a decision holding that the district attorney rather than the city attorney was the proper official to prosecute actions under the RLAL, explained that the RLAL “is penal in nature. . . . While actions to abate nuisances are considered civil in nature [citations] the abatement of houses of prostitution is in aid of and auxiliary to the enforcement of the criminal law. Such places are declared public nuisances. [Citation.] Each and every day a public nuisance is maintained is a separate offense and is a misdemeanor which it is the duty of the district attorney to prosecute by continuous prosecutions. (
While the quoted language from Simpson is dictum, it is indicative of the court‘s view that, as with other nuisances, continued violations of the RLAL would subject the violator to an additional penalty for each day that the violator permitted the nuisance to continue.
Other cases, although not directly addressing the issue, demonstrate that this is how the statute has traditionally been applied. For example, in Selowsky v. Superior Court (1919) 180 Cal. 404 [181 P. 652]-one of the earliest reported cases addressing a judgment of contempt under the RLAL-the affidavit initiating the contempt proceedings enumerated numerous acts of prostitution and solicitations to prostitution, but the defendant was charged with and found guilty of only one count of contempt for using “the premises for the purposes of lewdness, assignation and prostitution on or about” the specified day. (Id. at pp. 407-409.)
Similarly, in Maita v. Whitmore, supra, 508 F.2d 143, a decision rejecting a federal jury trial challenge raised by a defendant who had been found guilty of four counts of contempt under section 11229 but who had been sentenced to only six months in jail, the Ninth Circuit made clear that the four counts of contempt arose from “specific violations of the injunction occurring on each of four different days.” (Id., at p. 144.)
The People cite Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 620-622 [204 Cal.Rptr. 786], in support of their argument that each lewd act may constitute a separate contempt in a section 11229 prosecution. Their reliance is misplaced. The Reliable Enterprises court did not analyze the question of the number of contempts within the context of the RLAL at all, and simply viewed the injunction there at issue as one that forbade specific lewd acts, rather than one which enjoined the maintenance of a nuisance. Perhaps because the defendants in that case failed to refer to the applicable RLAL authorities, the Reliable Enterprises court did not cite or discuss either the provisions of section 373a, or the above-referenced passage from this court‘s decision in Simpson.
Accordingly, we conclude that the conduct with which petitioners were charged under section 11229 of the RLAL cannot support more than four separate contempt findings-reflecting the status of the premises as a nuisance on each of the four days on which petitioners permitted lewd acts to occur in the theater in violation of the injunction.13
Finally, because these four contemptuous acts are divisible temporally, and the Legislature has indicated an intent that punishment be authorized for each day that a nuisance of this type continues, on retrial section 654 would not preclude imposition of punishment for each of the four contempts. (See People v. Beamon (1973) 8 Cal.3d 625, 639 [105 Cal.Rptr. 681, 504 P.2d 905].)
Code of Civil Procedure Section 1209 Et Seq.
As already noted, the trial court purported to pronounce an alternative order and sentence under
Because the effect of this “alternative” order and sentence was not discussed in the initial briefs, we requested supplemental briefing on the point.
Petitioners assert that section 11229 is the exclusive statute by which the People may prosecute violations of an injunction issued under the RLAL, and that the People may not proceed under
The People in turn respond that “[t]here is no question that a contempt under the Red Light Abatement Act may be prosecuted under both the specific contempt provision in Penal Code section 11229 as well as the general contempt provisions in the Code of Civil Procedure.” They further assert that, “a contempt action for violation of the Red Light Abatement order is identical to any other contempt action except for the penalty.”
We conclude that no statutory obstacles preclude the People from exercising traditional prosecutorial discretion to proceed against a person who has allegedly violated a RLAL injunction under the less-serious general contempt provisions of the Code of Civil Procedure, which do not require a jury trial.
The cases proffered by petitioners--People v. Gilbert, supra, 1 Cal.3d 475, and People v. Jenkins, supra, 28 Cal.3d 494--merely stand for the proposition that when the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears. (People v. Woods (1986) 177 Cal.App.3d 327, 333-334 [222 Cal.Rptr. 868].)14 Gilbert and Jenkins do not purport to limit the People‘s discretion to prosecute under a general statute that provides a sanction less severe than that called for under a specific statute.
Similarly, we reject petitioners’ alternative argument that provision of a one-month minimum sentence under section 11229 indicates legislative intent that section 11229 be the exclusive means of prosecuting violation of an injunction issued under the RLAL. Under this view the existence of a minimum sentence in a “specific” statute would preclude prosecutorial discretion to charge and seek sentencing under a lesser included, “general” statute prescribing a lesser penalty. Petitioners offer no evidence, however, that the Legislature intended to divest prosecutors of their commonly accepted charging authority in such situations. (See United States v. Batchelder (1979) 442 U.S. 114, 123-125 [60 L.Ed.2d 755, 764-766, 99 S.Ct. 2198] [prosecutor may elect to proceed under either of two statutes that proscribe the same conduct, but which prescribe different penalties]; Prosecutorial Discretion (Cont.Ed.Bar 1979) §§ 1.3, 1.16.) Thus, although we agree the Legislature clearly intended that a contemner who is sentenced to imprisonment under section 11229 receive a term of not less than one month in jail, we do not infer from this that the Legislature thereby intended to preclude prosecution and sentencing under the more lenient contempt-sentencing provisions of the Code of Civil Procedure.
We observe that in innumerable situations it has been recognized that a prosecutor generally has the discretion to charge a defendant with a “more general” lesser offense even when there is a “more specific” greater offense that might embrace the facts of the case. (See generally Prosecutorial Discretion, supra, § 1.16, at pp. 20-21.) Thus, for example, it has never been questioned that a prosecutor may charge a defendant with simple assault when the facts of which the prosecutor is aware would support an assault-with-a-deadly-weapon charge, or that a prosecutor may choose to charge a defendant with “straight” first degree murder even though the facts of the case could support a murder-with-special-circumstance charge. Although the Legislature presumably would have the power to specify that an individual who commits particular contemptuous conduct must be prosecuted under a particular statute or not at all, there would have to be a clear
Our holding in the case of In re Morris (1924) 194 Cal. 63 [227 P. 914], is instructive on this point. In rejecting the proposition that an act of contempt punishable under
We have concluded above that the prosecution may elect to proceed against a contemner in violation of a RLAL injunction under the less-serious general contempt provisions of section 1209. But because the penalties for RLAL contempts are substantially greater than those attaching to section 1209 contempts---thereby giving rise to a right to jury trial---we also conclude that due process requires the prosecution to afford the defendant fair notice of the nature of the penalties and proceedings he faces, by indicating, in the declarations filed initiating the contempt proceeding, the jurisdictional basis for the action.
Here, the prosecution proceeded exclusively under section 11225. Petitioners had a right to a jury trial from the very start of the proceedings, a right they sought to invoke and never waived. The Code of Civil Procedure contempt sections were never mentioned until after petitioners were found in contempt and the court recited its “alternative sentence and order.” Petitioners were subject to a six-month term of imprisonment, and were so sentenced. Because petitioners were erroneously denied a jury trial at the initiation of the section 11225 proceedings, the resulting trial to the
VI. Findings That Acts of Contempt Were Lewd and Constituted Acts of Prostitution
For guidance on retrial we address petitioners’ further claim that the evidence was insufficient, under the criteria enunciated in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636], to support findings that the various acts underlying the contempt judgment were lewd, or that the “performances” at the theater constituted acts of prostitution.
In Pryor, supra, 25 Cal.3d 238, we construed as synonymous the terms “lewd” and “dissolute” as they are used in section 647, subdivision (a), which prohibits “lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” (See ante, fn. 5.) We held that the conduct proscribed by that subdivision was that “which involves the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct. The statute prohibits such conduct only if it occurs in any public place or in any place open to the public or exposed to public view; it further prohibits the solicitation of such conduct to be performed in any public place or in any place open to the public or exposed to public view.” (25 Cal.3d at pp. 256-257.)
The record refutes petitioners’ suggestion that the trial court may have applied the wrong criteria in making its findings. The court discussed the criteria at length in the judgment of contempt, demonstrating its awareness and understanding of Pryor. Using that definition, the court found the numerous acts at issue to be lewd. The findings entered by the court
Petitioners further assert, however, that central to the Pryor test is a determination that the conduct at issue occur in a public place or a place open to the public or exposed to public view, and that there be an individual present who is likely to be offended by the conduct. Here, petitioners claim, the theater‘s advertising and lobby notices advised the public of the nature of the shows, and therefore ensured that no person entered the theater who would be offended. In addition, petitioners claim that because patrons paid a significant fee to attend shows which included live sex acts, such patrons expected to see-and would not be offended by-such acts. Finally, petitioners argue that in determining they were or should have been aware that persons who would be offended by the conduct might be present, the court erroneously concluded that a police officer could constitute an offended person.
We need not decide here whether, consistent with First Amendment principles, a police officer may be an “offended person” for purposes of determining whether particular conduct is lewd. Nor need we decide whether the posting of signs or warnings might ever suffice to establish, under Pryor, that defendants did not know or have reason to know of the “presence of persons who may be offended.”
The evidence supports both the court‘s conclusion that the signs posted here did not adequately warn patrons of the conduct that was found to be lewd, and the court‘s finding that petitioners knew or should have known of the presence of patrons other than police officers who might be offended. The signs warned patrons that conduct prohibited by section 647, subdivisions (a) and (b), was forbidden, announced a “no-tipping” rule, warned that the material “exhibited deals frankly and explicitly with sexual matters,” and requested those who might be offended not to patronize the theater. The trial court reasoned that these signs did not adequately advise patrons of the type of activity they would witness, noting that “not everyone who enters the [theater] would expect to be solicited or to participate or see other patrons engaged in oral copulation or digital intercourse, even though the majority may anticipate seeing some type of sexual activity.”
The court‘s conclusions that the warnings given here did not ensure that persons who might be offended would not be present, and that defendants
VII. Sufficiency of the Evidence of Petitioners’ Ability to Comply With the Injunction
The evidence is also sufficient to support the trial court‘s conclusion that petitioners James Mitchell and Artie Mitchell had the ability to comply with the injunction. Petitioners admitted their ownership and control of the theater operations, policies, and employees. The trial court found petitioners had the power to order the employees to “tone down their act to the level of non-lewd conduct,” but did not do so. Instead they merely placed “no-tipping” signs in two of the three theater rooms, placed the sign in the lobby advising prospective patrons of the explicit nature of the entertainment, and had the performers wear panties before mingling with patrons. The court found these actions to be token measures, rather than meaningful attempts to comply with the injunction.
The evidence does not, however, support a finding that petitioner Stanich had the ability to prevent occurrence of the lewd acts underlying violation of the injunction. The People‘s witnesses testified they observed Stanich at the theater, but there was no evidence that Stanich participated in decisions regarding the nature of the performances, or had authority over the employees. His role in the operation of the theater was simply not established by the evidence.
Nor does the judgment itself recite a basis for finding that Stanich had the ability to comply with the injunction. Although the judgment states that “defendants” had admitted ownership and control of “their” theater, its policies, and its employees, the reference is clearly to the Mitchells, not to Stanich. If directed to him, there is no evidence to support the recital inasmuch as Stanich did not admit ownership of the theater, control of policy, or authority over the employees, and was himself an employee.
In a contempt proceeding resulting in punitive sanctions (see ante, fn. 8), however, guilt must be established beyond a reasonable doubt. (E.g., Feiock, supra, 485 U.S. 624, 632, fn. 5 [99 L.Ed.2d 721, 732.]) A reviewing court will uphold a contempt judgment only if there is substantial evidence to sustain the jurisdiction of the trial court. (In re Coleman (1974) 12 Cal.3d 568, 572-574 [116 Cal.Rptr. 381, 526 P.2d 533].)
The judgment here does not reflect a finding by the trial court that Stanich individually had the ability to comply with the injunction, and the record allows only speculation on that issue.19 In the review of a contempt proceeding “the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused [citation], and no intendments or presumptions can be indulged in aid of their sufficiency. [Citation.] If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.” (Hotaling v. Superior Court (1923) 191 Cal. 501, 506 [217 P. 73, 29 A.L.R. 127], italics added.)
Even were we to read the court‘s statement that the “defendants” had the ability to comply with the injunction as being directed to Stanich as well as the Mitchells, in the absence of any evidence of Stanich‘s ownership interest in the theater, duties or authority, a conclusion that he had the ability to comply with the injunction could not be sustained. As to Stanich, therefore, the judgment must be annulled and retrial is barred. (Burks v. United States (1978) 437 U.S. 1 [57 L.Ed.2d 1, 98 S.Ct. 2141]; People v. Pierce (1979) 24 Cal.3d 199, 210 [155 Cal.Rptr. 657, 595 P.2d 91].)20
The judgment of contempt as it applies to petitioner Stanich is annulled, and the superior court is directed to dismiss the proceeding as to him.
The judgment of contempt is annulled as to petitioners James Mitchell and Artie Mitchell, and the matter remanded for further proceedings consistent with the views expressed herein.
Broussard, J., and Kaufman, J., concurred.
MOSK, J., Concurring.---I concur in the result of the majority opinion. However, I cannot agree with its criticism and evasion of a controlling decision of this court: Safer v. Superior Court (1975) 15 Cal.3d 230 [124 Cal.Rptr. 174, 540 P.2d 14] (hereafter Safer). Stare decisis requires a better fate for an authoritative opinion.
There is no question that a prosecutor may choose to charge a defendant under either Penal Code section 11229 or Code of Civil Procedure section 1209 “if the defendant were not thereby deprived of his right to trial by jury” (Safer, 15 Cal.3d at p. 241, fn. 22). That is typical prosecutorial discretion.
However, the prosecutor may not make that election for the purpose of depriving a defendant of his constitutional right to a jury trial. As this court declared in Safer, supra, 15 Cal.3d at page 241, “the attempted transformation of contempt proceedings brought under the Penal Code into a prosecution under the Code of Civil Procedure achieves a possible reduction of punishment only at the cost of a cherished protection,” i.e., the right to a jury trial. We concluded, “We hold that the district attorney does not have the power to force defendants to make such an exchange.” (Ibid., italics added.)
The majority cavalierly brush Safer aside as mere dictum, despite its holding. Theirs is a strategic editorial device: to avoid the impact of a controlling opinion, they pronounce it to be mere dictum and then ignore it
Other cases have reached a conclusion similar to that in Safer. For example, in People v. Shults (1978) 87 Cal.App.3d 101, 108, the court held that the striking of prior convictions, thus reducing the offense to be tried, “may not have the effect of depriving appellant of his right to a jury trial. . . .” In People v. Bowden (1978) 86 Cal.App.3d Supp. 1, 6, it was held that “a court cannot, for its convenience or even for some more worthy motive, deny a defendant a jury trial by the device of dismissing [one charge for another] based on the same facts. . . .”
Except for their treatment of the California constitutional right to a jury trial-a right more comprehensive than that provided in cases interpreting the federal Constitution-the majority reach the correct disposition of this case on its facts.
LUCAS, C. J., Concurring and Dissenting.---I concur in the judgment insofar as the majority holds the judgment of contempt under Penal Code section 11229 (the Red Light Abatement Law) must be annulled. (Maj. opn., ante, at p. 1244 & fn. 11.) Without belaboring the issues further, I note simply that I dissent from the majority‘s holding that on retrial, petitioners may be charged with only one count of contempt for each day on which they permitted multiple lewd acts to occur in violation of the injunction. Nor can I subscribe to the majority‘s analysis concerning the “alternative sentence.”
PANELLI, J., Concurring and Dissenting.---With the exception of the majority‘s analysis and conclusion on the “alternative order” issue, I concur in the judgment.
The majority holds imposition of sentence under
The petition of real party in interest for a rehearing was denied February 1, 1990. Panelli, J., was of the opinion that the petition should be granted.