Mitchell v. Superior Court (People)

Decision Date02 January 1987
Docket NumberS.F. 24790
Citation43 Cal.3d 107,232 Cal.Rptr. 900
CourtCalifornia Supreme Court
Parties, 729 P.2d 212 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.

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

Ephraim Margolin as amicus curiae on behalf of petitioners.

John K. Van de Kamp, Atty. Gen., William D. Stein, Asst. Atty. Gen., Clifford K. Thompson, Ronald E. Niver and Christopher J. Wei, Deputy Attys. Gen., Arlo E. Smith, Dist. Atty., and Bernard Walter, Deputy Dist. Atty., for real party in interest.

GRODIN, Justice.

Petitioners seek review of a judgment of contempt entered pursuant to Penal Code section 11229, 1 a provision of the Red Light Abatement Law, imposing on them substantial fines and jail terms of six months. The principal question presented by their petition for writ of certiorari is whether persons charged with contempt under section 11229 are entitled under the Constitutions of the State of California or the United States to a trial by jury. 2

We shall conclude in parts I and II that because section 11229 provides punishment for a public offense, and subjects the contemner to punishment greater than that authorized under the general contempt provisions of Code of Civil Procedure section 1209 et seq., a person charged with contempt under section 11229 is entitled to a jury trial under article I, section 16 of the California Constitution. For this reason, petitioners' convictions must be set aside. In parts III and IV, we consider questions pertaining to retrial.

Petitioners James Mitchell and Artie Mitchell are the proprietors of a San Francisco theater offering filmed and live "adult" entertainment. Petitioner Vincent Stanich is the manager of their theater which is the object of an abatement action initiated in 1980 by the People under the Red Light Abatement Law. 3

The contempt proceedings were initiated in response to declarations by five police inspectors and an assistant district attorney charging petitioners with violation of a preliminary injunction issued in the abatement action. 4 The injunction, issued on January 27, 1981, was directed to James Mitchell, Artie Mitchell, other named individuals and entities, and their agents, servants, employees, and representatives. It restrained and enjoined them from "[a]llowing the occurrence, continuance or recurrence of acts of lewdness or prostitution upon the premises" of the theater. The order to show cause, issued on April 27, 1982, was directed to James Mitchell, Artie Mitchell, and Georgia Mitchell. It did not name petitioner Stanich. Both the order granting the preliminary injunction and the order to show cause named one Alex Denton among the defendants. These documents were served on Stanich who appeared in the proceeding. He asserted that no Alex Denton existed and that while plaintiffs may have intended to name Denton as manager of the theater and served Stanich in the belief he was Denton's successor, Stanich was not a named defendant, and no theater manager had been named as a defendant. On that basis he claimed that the trial court lacked jurisdiction over him in the contempt proceeding.

After a seven-day hearing at which evidence was taken, the court found petitioners to be 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 judgment recites that the court found that the defendants had knowledge of the injunction and the ability to comply with it, but instituted only cosmetic changes in the operation of the theater 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. 6

The court also concluded that the on-stage conduct that had occurred 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 latent 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 conduct within 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 considered a theatrical performance it was not protected. Finally the court found that the conduct was done for compensation inasmuch as the theater patrons paid admission and, notwithstanding "no-tipping" signs, offered tips to the performers so overtly that the defendants must have been aware of it. Thus, the lewd acts came within section 647, subdivision (b), which proscribes prostitution.

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. 7 The individual contemptuous acts identified by the court totalled 61, but the judgment mistakenly recited that the total was 62. A fine of $1,000 each for the 62 acts was imposed on defendants James Mitchell and Artie Mitchell. A fine of $100 was imposed on defendant Stanich for each act. Each of the three defendants was also sentenced to six months in the county jail for each of the sixty-two acts, the terms to be concurrent. An alternate sentence was pronounced, to be executed should the appellate court hold that the civil contempt provisions of section 1218 of the Code of Civil Procedure were applicable. In that event the jail term was to be 5 days for each contemptuous act, the terms for 36 of which were to be consecutive, the remainder concurrent, so that the term for each defendant would be 180 days in the county jail. Work furlough was forbidden, and costs were awarded to plaintiff pursuant to section 1032 of the Code of Civil Procedure.


Petitioners first contend that they were entitled to a jury trial by virtue of the Sixth Amendment to the federal Constitution. They rely on Bloom v. Illinois (1968) 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522, which rejected the prior "broad rule that all criminal contempts can be constitutionally tried without a jury" (391 U.S. at p. 197, 88 S.Ct. at p. 1479), in favor of the present rule, which "guarantees the right to jury trial in state court prosecutions for contempt just as it does for other crimes" (id., at p. 200, 88 S.Ct. at p. 1481), i.e., for criminal contempts subjected to "serious" rather than "petty" punishment. (Id., at p. 198, 88 S.Ct. at p. 1480.) They argue that contempt under section 11229 is a "criminal" contempt, and that the punishment imposed makes it a "serious" offense within the meaning of federal constitutional law.

As to the first part of their federal constitutional argument, petitioners are clearly correct: while the Supreme Court in Bloom did not define the term "criminal contempt" it is apparent from the court's opinion in that case, as well as from other opinions which are cited therein, that the term includes a contempt consisting of violation of an order of the court for which punishment is prescribed in the form of fine or imprisonment. (See Bloom v. Illinois, supra, 391 U.S. 194, 198, 88 S.Ct. 1477, 1480, 20 L.Ed.2d 522; 8 Cheff v. Schnackenberg (1966) 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629; United States v. Barnett (1964) 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23; Green v. United States (1958) 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672.) Such a contempt, the court observed, "is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes: 'These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech' [citation]. Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical--protection of the institutions of our government and enforcement of their mandates." (391 U.S. at p. 201, 88 S.Ct. at p. 1481, fn. omitted.) 9 By contrast, civil or remedial contempt involves "a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance." (McComb v. Jacksonville Paper Co. (1949) 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 [contempt judgment requiring contemners to purge themselves by paying damages in the form of unpaid wages as the sanction for their violation of an order enjoining them from paying less than minimum wages].) "Where a fine or imprisonment imposed on the contemner is 'intended to be remedial by coercing the defendant to do what he had refused to do' [citation], the remedy is one for civil contempt. [Citation.] Then 'the punishment is wholly remedial, serves only the purposes of the complainant,...

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