Barrows v. Municipal Court

Decision Date30 January 1970
Citation464 P.2d 483,83 Cal.Rptr. 819,1 Cal.3d 821
CourtCalifornia Supreme Court
Parties, 464 P.2d 483 Robert C. BARROWS et al., Plaintiffs and Appellants, v. The MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent; The PEOPLE, Real-Party in Interest and Respondent. L.A. 29672.

Stanley Fleishman and David M. Brown, Hollywood, for plaintiffs and appellants.

No appearance for defendant and respondent.

Roger Arnebergh, City Atty., Donald W. Mowat and Philip E. Grey, Asst. City Attys., and Michael T. Sauer, Deputy City Atty., for real party in interest and respondent.

MOSK, Justice.

Petitioners in this proceeding are Richard Bright and Alexandra Hay, who acted in a play entitled 'The Beard,' Robert Barrows, who produced the play, and Robert Gist, the director. Bright and Miss Hay were charged with violating sections 647, subdivision (a), and 311.6 of the Penal Code 1 for their performances of the play and Barrows and Gist were charged with wilfully and unlawfully aiding and abetting them in committing these violations. Approximately 40 separate charges were filed against petitioners 2 and they seek a writ of prohibition to restrain respondent court from proceeding to trial.

Petitioners contend primarily that the statutes under which they are charged were not intended to apply to a live theatrical performance before an audience and that the application of the provisions to such performance violates their constitutional rights to free speech, due process and equal protection of the laws, in violation of the First and Fourteenth Amendments to the United States Constitution and article I, sections 9, 11, 13 and 21 of the California Constitution. We conclude, for the reasons hereinafter set forth, that the first of petitioner's contentions is meritorious.

The play was first performed on January 24, 1968, in Los Angeles. Petitioners were arrested before the performance on January 25 and they were rearrested after the first two performances the next day. Arrests or citations followed after numerous performances thereafter. Petitioners applied to the United States District Court for an injunction but that court, after issuing a temporary restraining order, ultimately refused permanent relief on the ground that no special circumstances justified its intervention. 3 The trial court overruled demurrers to the complaints and denied a motion to dismiss, and petitioners then sought a writ of prohibition to restrain the court from proceeding to trial. They appeal from denial of the writ.

We begin with the premise that live plays performed in a theater before an audience are entitled to the same protection under the First Amendment as motion pictures (Burton v. Municipal Court (1968) 68 Cal.2d 684, 689, 68 Cal.Rptr. 721, 441 P.2d 281), magazines (Winters v. New York (1948) 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840), and newspapers (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 265--266, 84 S.Ct. 710, 11 L.Ed.2d 686). Long before the advent of printing and motion pictures the theater constituted 'a significant medium for the communication of ideas' which affected 'public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression.' (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098.) 4

An analysis of the background of section 647 and some related sections of the Penal Code is necessary to fully comprehend the issues before us. Section 647 is a statute designed to prohibit vagrancy. Prior to 1961, subdivision 5 of the section defined a vagrant as '(e)very lewd or dissolute person, or every person who loiters in or about public toilets in public parks.' The statute was characterized by a legislative committee as 'ridiculously outdated' and the committee recommended that a substantial revision of its provisions be undertaken. (See Report of Assembly Interim Com. on Criminal Procedure, vol. 2, Appendix to Journal of Assembly, Reg.Sess. 1961, pp. 9, 12 et seq.) The committee approved a revision proposed by Professor Arthur H. Sherry that a statute in substantially the form of section 647, subdivision (a), be adopted in lieu of the then existing section 647, subdivision (5). Professor Sherry, in a comment on the proposal, stated that it 'departs from the concept of status and deals directly with socially harmful lewd or dissolute conduct, that is, such conduct when it occurs in public view.' (See Vagrants, Rogues and Vagabonds--Old Concepts in Need of Revision, 48 Cal.L.Rev. 557, 569.) The committee report quoted this comment and expressed its full concurrence in the language of the section as proposed. (Report of Assembly Interim Com. on Criminal Procedure, op. cit., p. 13.)

In the same year section 647 was revised the Legislature amended section 290 of the Penal Code. That section requires a person who has been convicted of certain sexually related offenses or who has been adjudged to be a sexual psychopath to register with the chief of police in the city in which he temporarily or permanently resides. Each change of address of a registrant must be reported within 10 days, and failure to comply with the registration requirement is a misdemeanor. The section applies automatically when a person is convicted of one of the enumerated offenses and imposes a lifelong requirement of registration and re-registration absent a court order releasing the registrant from the penalties and disabilities of his conviction under section 1203.4 5 (People v. Taylor (1960) 178 Cal.App.2d 472, 477, 3 Cal.Rptr. 186) or the issuance of a certificate of rehabilitation under sec tions 4852.01 et seq. 6 (§ 290.5). The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely to commit similar offenses in the future. (Kelly v. Municipal Court (1958) 160 Cal.App.2d 38, 45, 324 P.2d 990.)

Among the persons who are required to register pursuant to section 290 are those who are convicted of rape, enticement of a female under 18 for purposes of prostitution (§ 266), incest (§ 285), sodomy (§ 286), lewd or lascivious acts upon the body of a child under 14 (§ 288), exposing one's person in a public place (§ 314) or loitering about any public toilet for the purpose of engaging in or soliciting a lewd or lascivious act (§ 647, subdivision (d)). Also required to register under section 290 are those convicted of violating subdivision (a) of section 647. Section 290 was amended in 1961 in the same chapter which contained the revision of section 647. (Stats. 1961, ch. 560, §§ 2, 3.) The amendment, insofar as relevant here, substituted persons convicted under section 647, subdivision (a), as subject to the registration provisions for those convicted under former section 647, subdivision (5).

Another event of significance in 1961 was the thorough revision of the statutes relating to obscenity. (Stats.1961, ch. 2147, § 5.) These provisions are now embodied in section 311 et seq. of the Penal Code. Section 311, subdivision (a), defines the term 'obscene' as meaning 'that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.' The obscenity statutes largely prohibit conduct relating to the dissemination of obscene material, and there is no requirement that persons convicted of violating the obscenity laws must register as sex offenders.

These two conclusions ineluctably emerge from the foregoing analysis: first, the basic purpose of section 647 is to punish the crime of vagrancy in its various overt aspects; second, nothing in the legislative history of the section indicates that it was intended to apply to activities, such as theatrical performances, which are prima facie within the ambit of First Amendment protection.

The requirement of section 290 that persons convicted under section 647, subdivision (a), must register as sex offenders supports this view. It would be irrational to impose upon an actor in a theatrical performance or its director a lifetime requirement of registration as a sexual offender because he may have performed or aided in the performance of an act, perhaps an obscene gesture, in a play. 7 It is an errant concept we cannot attribute to the Legislature that persons convicted of such an offense will require constant police surveillance in order to prevent them from committing similar crimes against society in the future. The mere recitation of the types of crimes encompassed within the registration provisions of section 290 demonstrates that activities which enjoy prima facie protection of the First Amendment were not intended to be included within its scope. That a statute which imposes the penalty of lifetime registration as a sexual offender upon those who participate in a play, merely by reason of acts committed therein, would have an inhibiting effect upon the exercise of First Amendment rights is too evident to require elaboration. 8

Finally, a serious equal protection problem would evolve if we were to interpret section 647, subdivision (a), as respondent urges. The amendment of the obscenity statutes, section 647 and section 290, occurred in the same year and to some extent in the same enactment. Thus, the Legislature should have contemplated the effect of these statutes upon one another; yet in amending section 290 it did not require persons convicted under the obscenity laws to register as sex...

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  • Crownover v. Musick
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