Mitchell v. Superior Court

Decision Date28 December 1989
Docket NumberS.F. 24790
Citation265 Cal.Rptr. 144,783 P.2d 731,49 Cal.3d 1230
CourtCalifornia Supreme Court
Parties, 783 P.2d 731 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.

Joseph Caliore, Dennis Roberts, Robert L. Thorp, Michael Kennedy, Thomas Steel and Emily Graham, San Francisco, for petitioners.

Ephraim Margolin and Amitai Schwartz, San Francisco, as amici curiae on behalf of petitioners.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Daniel J. Kremer and Steve White, Chief Asst. Attys. Gen., William D. Stein and John H. Sugiyama, Asst. Attys. Gen., Clifford K. Thompson, Dane R. Gillette, Aileen Bunney and Christopher J. Wei, Deputy Attys. Gen., Arlo Smith, Dist. Atty., and Bernard Walter, Deputy Dist. Atty., for real party in interest.

EAGLESON, Justice.

The Red Light Abatement Law (hereafter RLAL) (Pen.Code, § 11225 et seq.) 1 provides for injunctions to abate nuisances on premises where prostitution and lewdness occur. The trial court found petitioners in violation of an injunction issued under the RLAL. Section 11229 makes violation of such an injunction a contempt of court, and authorizes a maximum sentence of six months' imprisonment and a $1,000 fine for each such violation.

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 RLAL injunction under the less-serious general contempt provisions of Code of Civil Procedure section 1209 et seq. As will be shown, it has long been settled that the Code of Civil Procedure summary contempt statute triggers neither a state constitutional nor statutory right to a jury trial. However, because the penalties for contempts charged under the RLAL are substantially greater than those attaching to Code of Civil Procedure section 1209 contempts--thereby giving rise to a right to jury trial in the former but not the latter proceedings--due process requires that the prosecution afford the defendant fair notice of the nature of the penalties and proceedings he will face by indicating, in the declarations filed to initiate the contempt proceeding, the jurisdictional basis for the action.

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 1981 4 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 with violation of the injunction issued in the abatement action. In April 1982 the trial court issued an order to show cause to James Mitchell, Artie Mitchell and others.

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 conduct was obscene and thus, even were it to be considered a theatrical performance, it was not protected. (Id. at pp. 830-831, 83 Cal.Rptr. 819, 464 P.2d 483.) Finally, the court determined that the lewd conduct was done for compensation inasmuch as the theater patrons paid admission and, notwithstanding "no-tipping" signs, overtly offered tips to the performers in return for sexual favors. Thus, the court concluded the lewd acts were also acts of prostitution proscribed by section 647, subdivision (b).

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...." (Code Civ.Proc., § 1209 et seq.) Under the alternative order petitioners were each sentenced to five days in the county jail for each of the separate contemptuous acts; thirty-six of which terms were made consecutive, the remainder concurrent, for a total sentence of six months. The alternative order contained no monetary penalty.

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. Code of Civil Procedure section 1209 et seq. covers both "direct" and "indirect" contempts of court (id., §§ 1211, 1212), and is the basis for the garden-variety general contempt of court finding in this state. It lists as contempt, inter alia, the following conduct: "1. Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding; [p] 2. A breach of the peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding; ... [p] 4. Abuse of the process or proceedings of the court ...; [p] 5. Disobedience of any lawful judgment, order, or process of the court; ... [p] 8. Any...

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