Opinion
S.F. 24790
1-2-1987
, 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. 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.
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.
Supreme Court of California,
In Bank.
Jan. 2, 1987.
Rehearing Granted March 26, 1987.
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. I.
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, and is not intended as a deterrent to offenses against the public.' [Citation.] One who is fined, unless by a day certain he produces the books, has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, 'carry the keys of their prison in their own pockets' [citation]. Fine and imprisonment are then employed not to vindicate the public interest but as coercive sanctions to compel the contemner to do what the law made it his duty to do." (Penfield Co. v. S.E.C. (1947) 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117.) If a fine is imposed, even in part, as punishment for prior conduct, the contempt is criminal in nature. (Nye v. United States, supra, 313 U.S. 33, 42-43, 61 S.Ct. 810, 812-813.)
By these standards the contempt punishable under section 11229 is quite clearly a criminal contempt for federal constitutional purposes. The function of the contempt proceeding under that section is not to provide the contemner with an opportunity to purge himself, nor to compensate for actual injury to the People, but to punish the contemner for past conduct. The punishment is designed to vindicate public, not private, rights. And, the severity of the authorized punishment is equivalent to that for misdemeanor offenses, rather than the relatively petty sanction imposed for other forms of "civil" contempt. 10
Whether the punishments prescribed under section 11229 are sufficiently severe to render the contempt under that section a "serious" offense for federal constitutional purposes is not so clear. Under the Sixth Amendment, when a jail term alone is imposed the right to jury trial exists only if the actual imprisonment exceeds six months. (Codispoti v. Pennsylvania (1974) 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912.) Where no term of imprisonment is imposed, even very large fines levied against an entity such as a labor union may be deemed "petty." (Muniz v. Hoffman (1975) 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319.) No clear standards emerge from the federal cases as to the line of demarcation in a case such as this, where the term of imprisonment does not exceed six months, but where in addition to the imprisonment a substantial fine is imposed. (Compare Muniz v. Hoffman, supra, 422 U.S. 454, 95 S.Ct. 2178 and Girard v. Goins (8th Cir.1978) 575 F.2d 160 with Douglass v. First National Realty Corp. (D.C.Cir.1976) 543 F.2d 894 and U.S. v. Professional Air Traffic Controllers (1st Cir.1982) 678 F.2d 1.)
We do not find it necessary to apply the federal line of demarcation in this case, however, since in our view petitioners were entitled to a jury trial by virtue of the California Constitution, article I, section 16. This is so because, as we shall explain, a section 11229 contempt is a "criminal" contempt for purposes of the California Constitution, as well as the federal, and because the nature of the punishment prescribed for a section 11229 contempt brings it within the scope of "crimes" for which our state Constitution requires trial by jury. II.
Unlike the federal Constitution, the California Constitution does not distinguish between misdemeanors and felonies, or between crimes punishable by less and those punishable by more than six months' imprisonment, but guarantees a right to trial by jury in all criminal prosecutions for offenses above the grade of infraction. (Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273; §§ 16, subd. 3, 19c.) That right exists not only as to criminal offenses for which a jury trial was available at common law when California was admitted to the union in 1850, or as to statutory offenses for which the right to jury trial then existed, but as to any criminal offense other than an infraction.
This court recognized the broad scope of the state constitutional jury trial right nearly a century ago in Ex parte Wong You Ting (1895) 106 Cal. 296, 299, 39 P. 627. Although we suggested that there may be a class of petty offenses for which the right did not exist, we held the offense under consideration not to be so petty as to avoid the jury trial requirement. Our opinion explained: "There are, no doubt, some cases which do not come within the constitutional guarantee that 'the right of trial by jury shall be secured to all and remain inviolate.' It has been held to refer generally to the right of trial by jury as it existed at common law and at the time the constitution was adopted.... It has also been sometimes said in a general way, when the point was not before the court, that it does not apply to a crime created by statute and which did not exist at common law; but this certainly cannot be taken as a correct general statement of the law.... In fact, the general rule at common law proper was that accusations of all crimes involving loss of liberty as a punishment were triable by a jury; but parliament (which is supreme) provided by various statutes that there should be summary trials by justices of the peace, without a jury, of certain petty offenses.... [I]t clearly appears that those summary proceedings under special statutes were marked innovations upon the common law." (106 Cal. at pp. 298-300, 39 P. 27, italics added.)
More recently we have affirmed that the right to jury trial under the California Constitution extends to all prosecutions for misdemeanors as well as felonies. In Mills v. Municipal Court, supra, 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273, speaking for a unanimous court Justice Tobriner stated: "Under the federal Constitution, the right to trial by jury is guaranteed only for 'non-petty' offenses, involving a potential punishment of more than six months' imprisonment. [Citation.] Thus, a defendant's federal constitutional 'jury trial' right does not extend to all misdemeanors, but only to those involving a potential of more than six months' incarceration.... [p] ... [I]n California our state Constitution guarantees every defendant faced with misdemeanor or felony charges a right to trial by jury." (10 Cal.3d at p. 298, fn. 8, 110 Cal.Rptr. 329, 515 P.2d 273, original italics.)
The Mills 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, and a determination that the Legislature not be permitted to deny defendants that right by the legislative characterization of the offense as misdemeanor or felony. The constitutional history which demonstrates this intent also makes it clear beyond dispute that the petty offense distinction adopted by the United States Supreme Court for purposes of the Sixth Amendment right to jury trial, one for which the dissent argues in this case, was rejected when the 1879 Constitution was adopted. 11
Of all the provisions of the Declaration of Rights considered at the 1878 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 an unanimous jury, or distinguished between types of criminal offenses based upon the severity of punishment were roundly denounced. 12 In particular the delegates voiced disagreement with the notion that the right to jury trial should depend upon the legislative characterization of the offense as a felony or misdemeanor, recognizing the potential for abuse inherent in a constitutional provision which made a right turn on the label given the offense by the Legislature. 13 Thus the drafters expressed their intent that the right to jury trial be preserved for any defendant who might lose his liberty by a sentence of imprisonment, however short, and regardless of whether the offense was labeled "misdemeanor" or "felony." Section 7 of article I, the predecessor to the present section 16, was drafted to fulfill this purpose. 14
The dissent implies that this history is irrelevant to the right to jury trial in contempt actions because no right to jury trial existed in contempt proceedings at the time the 1879 Constitution was adopted. It is correct that summary contempt proceedings were accepted features of the legal landscape when the Constitution of 1850 was adopted. (See Stats. 1850, ch. 33, § 13, p. 95.) Section 1209 et seq. of the Code of Civil Procedure were part of that code when it was enacted in 1872, and were in effect when the 1879 Constitution was adopted. And we agree that the drafters intended no change as to those proceedings. (See Bridges v. Superior Court (1939) 14 Cal.2d 464, 94 P.2d 983.) Then, as now, however, the contempts triable and punishable under the provisions of the Code of Civil Procedure were punishable by relatively small fines and by no more than five days imprisonment. A contempt prosecuted under section 11229, by contrast has a maximum term of imprisonment of six months, and a minimum jail term of one month. We cannot agree that because the Legislature has provided for punishment of violation of an order made in a Red Light Abatement Law proceeding as a "contempt," the Legislature may thereby deny the defendant his constitutional right to jury trial.
Acceptance of such a power in the Legislature would deny any recognition to the drafters' concern that liberty is as sweet to a man imprisoned for a misdemeanor as to one convicted of a felony, that any distinction between persons sentenced to prison and those sent to jail with respect to the right to jury trial is a distinction without a difference, and that if the characterization of the offense is left to the Legislature it "can make the lesser out of the greater if they see fit." (See fns. 12 & 13, ante.)
Nor is there any question but that the conduct made punishable by section 11229 is a criminal offense notwithstanding the apparent legislative intent that it be treated as a civil contempt. 15 This court's understanding of the meaning of criminal offense accords with that expressed by the Supreme Court in Bloom v. Illinois, supra, 391 U.S. 194, 198, 88 S.Ct. 1477, 1480, 20 L.Ed.2d 522. Nearly 100 years ago we rebuffed an attempt to avoid the jury trial requirement in Taylor v. Reynolds (1891) 92 Cal. 573, 28 P. 688, where a similar argument was made with respect to a municipal nuisance ordinance which provided for punishment with a fine or 30-day jail term. We rejected the People's claim that the offense was not intrinsically criminal and thus could be prosecuted summarily without a jury, stating: " '[W]here the act or omission sought to be punished by imprisonment under a municipal ordinance is in its nature not peculiarly an offense against the municipality, but rather against the public at large, and where it falls within the legal or common-law notion of a crime or misdemeanor, and especially where being of such a nature, it is embraced in the criminal code of the state, then the constitutional guaranties intended to secure the liberty of the citizen and the right to a trial by jury cannot be evaded by the nature of the powers vested in the municipal corporation or the nature of the jurisdiction conferred upon the municipal courts.' [p] This case clearly falls within the rule last declared, and the plaintiff is entitled to a trial by jury." Taylor at p. 576, 28 P. 688.
The dissent mistakenly interprets our opinion as concluding that a Red Light Abatement Law contempt is a criminal offense on the basis of the potential term of imprisonment. To the contrary, we conclude, as did the United States Supreme Court in Bloom, that all contempts in which punishment by fine or imprisonment is imposed for past violations of court orders are criminal offenses. The length of the potential period of imprisonment is relevant only to whether the right to jury trial attaches, not to whether the contempt is a criminal offense. The question we actually decide is whether the California Constitution, which does not require a jury trial for contempts punishable only with the five-day term authorized by Code of Civil Procedure section 1218, permits the Legislature to create new contempts for which a jail term of six months is provided without granting accused contemners the right to jury trial in those proceedings.
Although the contempt created by section 11229 is a criminal offense under both Bloom and Taylor v. Reynolds, and may be summarily tried and punished without a jury under Code of Civil Procedure section 1209 et seq., it does not follow that it is permissible to do so when the punishment is increased to six months. When the Constitution of 1879 was drafted and adopted the summary contempt proceedings authorized by the Code of Civil Procedure were already in place. We may infer from the omission of any reference to them in the debates at the constitutional convention and from the continuing practice after adoption of the 1879 Constitution that the drafters and electorate did not intend that the right to jury trial would apply to the existing contempt statutes. In this we agree with the dissent. Where we disagree with the dissent is in the assumption that the constitutional history is irrelevant in determining whether the drafters contemplated that any subsequently enacted legislation imposing much greater penalties on contemners could also be exempted from the right to jury trial. We find the constitutional history to be highly relevant to this question.
The drafters did not discuss contempt as such, but they did clearly express their concern that the right to jury trial should not turn on the label used by the Legislature to characterize a criminal offense. If the drafters intended that the Legislature be precluded from denying a defendant the right to jury trial by changing the designation of a felony offense to a misdemeanor, we can reasonably conclude that they did not intend to permit the Legislature to achieve the same result by creating a new category of criminal offenses under the designation "contempt." When prosecuted as a contempt pursuant to section 11229, with a potential punishment of six months imprisonment, therefore, a violation of a Red Light Abatement Law injunction is not a contempt for which the right to jury trial is excused. 16 The California Constitution guarantees that persons charged with contempts under section 11229 be given the right to jury trial. Accordingly, the judgments against petitioners must be annulled. III.
Petitioners claim that the evidence was insufficient to support the trial court's findings that the performances at the theater were "obscene" and constituted acts of "prostitution." In addition they claim that the evidence was insufficient, under the criteria enunciated in Pryor v. Municipal Court, supra, 25 Cal.3d 238, 256, 158 Cal.Rptr. 330, 599 P.2d 636, to support the findings that lewd acts occurred off-stage between petitioners' employees, or between employees and patrons. Although we have concluded that the judgments must be annulled because petitioners were denied their right to jury trial, this claim must also be addressed as retrial is barred if the evidence was insufficient to support the contempt findings. (See People v. Pierce (1979) 24 Cal.3d 199, 209-210, 155 Cal.Rptr. 657, 595 P.2d 91.)
In Pryor we construed section 647, subdivision (a), as proscribing: "conduct 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 ... if it occurs in any public place or in any place open to the public or exposed to public view," as well as 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 238, 256-257, 158 Cal.Rptr. 330, 599 P.2d 636.)
Defendants claim that the court may not have applied the proper criteria in concluding that the conduct of their employees was lewd, and that it erroneously concluded that a police officer could constitute an offended person in determining that they were aware or should have been aware that persons might be present to whom the conduct might be offensive. The record refutes defendant's suggestion that the trial court may have applied the wrong criteria in making its findings. The judge discussed the criteria at length in the judgment of contempt, demonstrating his awareness and understanding of Pryor.
We need not decide here whether, consistent with First Amendment principles, a person who adequately warns potential viewers of the nature of a sexually explicit performance, may be held to know of the "presence of persons who may be offended" when the person is a policeman who is aware of what he will see and that he will be offended, and who nonetheless views the performance with the expectation of being offended. In this case, it is true that the motivation of the police witnesses who viewed the performances was to collect evidence of lewd conduct and some clearly anticipated that they would be offended by the performances and off-stage conduct they were to view. However, the evidence supports the trial court's conclusion that the signs posted by defendants did not warn patrons of the conduct that was found to be lewd, and the finding that defendants knew or should have known of the presence of patrons other than policemen who might be offended. The trial court reasoned 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 record confirms that defendants advertised the general nature of the performances and warned patrons by signs posted in the theater that sexually explicit performances would be offered. Patrons were not warned thereby, however, that they would see on-stage acts of oral copulation, or would be solicited to engage in, or would see other patrons engaged in, sexual acts with the performers. The evidence is to the contrary. The signs warned patrons that conduct prohibited by sections 647, subdivisions (a) and (b), was forbidden, announced a "no-tipping" rule, and warned persons that the material "exhibited deals frankly and explicitly with sexual matters," asking that those who might be offended not patronize the theater. The court's conclusion that these warnings did not ensure that persons who might be offended would not be present and that defendants knew or should have known of the presence of persons who might be offended, is supported by the evidence. The weight to be given to the evidence is for the trial court to determine. The evidence is sufficient to support the court's finding that notwithstanding the advertisements and warnings, and the fact that all patrons paid $20 for the opportunity to view live sexual acts, some of the persons present might be offended by a personal solicitation to engage in those acts or by viewing other patrons so engaged. Thus, the record is sufficient to support the trial court's finding that multiple acts of lewdness occurred at 895 O'Farrell Street on March 5, 18, and 24, 1982, and on April 15, 1982.
The evidence is also sufficient to support the trial court's conclusion that petitioners James 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 that there was no doubt that petitioners had the option of ordering the employees to "tone down their act to the level of non-lewd conduct," but did not do so. Instead they placed "no-tipping" signs in two of the three theater rooms, placed the sign in the lobby advising would-be patrons of the explicit nature of the entertainment, and had the performers don panties before mingling with patrons. The court found these actions to be token cosmetic measures, rather than meaningful attempts to comply with the injunction.
Although the evidence is sufficient to support the contempt judgments as to petitioners Artie and James Mitchell, we conclude that it is not so as to petitioner Stanich. The evidence does not support a conclusion that he had the ability to prevent the occurrence of the lewd acts upon which the violations of the injunction are premised.
There was testimony by the People's witnesses that they had observed Stanich at the theater. There was no evidence, however, that he participated in any decisions regarding the nature of the performances, or had any authority over the employees whose actions were the basis for the claim that lewd acts and acts of prostitution were committed by the employees. His role in the operation of the theater was not established by the evidence.
The judgment itself does not recite a basis for finding that Stanich had the ability to comply with the injunction. While the judgment recites that the "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.
The People argue that Stanich's ability to comply with the injunction may be inferred from his admission in the declaration that accompanied the other defendants' response to the order to show cause that he was the manager of the theater, his admission therein that it had always been the policy of the theater to present sexually explicit performances, and the implication in the declaration that he set policy governing the behavior of the employees and policy governing tipping.
In a contempt proceeding, however, guilt must be established beyond a reasonable doubt. A reviewing court will sustain a contempt judgment 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.) Here the judgment does not reflect a finding by the trial court that Stanich individually had the ability to comply, and the record contains little more than a basis for speculation. 17 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, italics added.)
Even were we to read the court's statement that the "Defendants" had the ability to comply with the injunction as directed to Stanich as well as the Mitchells, in the absence of any evidence as to the duties and authority of Stanich, a conclusion that he had the ability to comply with the injunction could not be sustained. As to him, therefore, the judgment must be annulled and retrial is barred. (Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; People v. Pierce, supra, 24 Cal.3d 199, 210, 155 Cal.Rptr. 657, 595 P.2d 91.) 18 IV.
Finally, because the issue will rise again should there be a retrial of the charges against James and Artie Mitchell, we address their argument that the conduct which underlies the contempt charges may not be punished as multiple contempts.
Defendants base their claim that they may not properly be punished for multiple contemptuous acts on reasoning that the contempts found by the trial court were all part of a continuous course of conduct which may not be punished more than once. They rely, in part, on section 654 which provides that "[a]n 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 ...," but also argue that a single omission to act may not be broken down into multiple contempts.
Section 654 is applicable to punishment for contempt. (In re Farr (1976) 64 Cal.App.3d 605, 613, 134 Cal.Rptr. 595.) Before its impact may be determined, however, the court must ascertain how many separate contemptuous acts have occurred. As we have noted earlier, the question here is not whether each of the lewd or obscene acts by defendants' 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.
The Court of Appeal considered this question recently when presented with a contempt judgment in which multiple violations of an injunction issued under the Red Light Abatement Law had been based on individual lewd acts by patrons of a bookstore/arcade. In Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 204 Cal.Rptr. 786, the court did not recognize the relation of the injunction to the Red Light Abatement Law, and discussed the issue in terms of the principles applicable to contempts generally. It recited that a "contempt is a disobedience of court by acting in opposition to its authority, justice or dignity," and on that basis posed the question as "whether separate adjudications of contempt were based upon separate insults to the authority of the court, not whether the insults happened to occur on the same or different days." (158 Cal.App.3d at p. 621, 204 Cal.Rptr. 786.) Analogizing the conduct to that considered in cases in which the contempts consisted of separate affirmative acts in violation of an injunction, the court concluded that the failure of the defendants to prevent several lewd acts by patrons on the same day could be punished as separate contemptuous acts. The court also rejected a multiple punishment argument based on section 654, reasoning that because the lewd acts were committed by different persons they were not an indivisible course of conduct; none was necessary or incidental to the commission of any other; and that defendants had allowed the multiple acts. Therefore, the court held defendants were more culpable and deserving of greater punishment than those who permitted only a single lewd act to occur. (Id., at p. 626, 204 Cal.Rptr. 786.)
This reasoning is not persuasive when the injunction and its statutory purpose are considered in the context of the Red Light Abatement Law. The authority for the injunction was the authority to abate the nuisance, the use of the premises for lewd purposes. The harm to the public which the Red Light Abatement Law seeks to prevent is the nuisance. (See 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.) The acts of lewdness, prostitution, gambling, etc. which cause a building to be a nuisance are themselves punishable as distinct crimes. The Red Light Abatement Law does not purport to make the commission of those crimes the object of the contempt proceedings or injunctive relief authorized by the law. 19 The substance of the contempt is the maintenance of a public nuisance. As such, when prosecuted as a misdemeanor rather than a contempt it is treated as only one offense for each day the nuisance continues to exist. (§ 373a; Board of Supervisors v. Simpson (1951) 36 Cal.2d 671, 674-675, 227 P.2d 14.) The People put forward no justification for punishing the conduct proscribed by section 373a multiple times by treating each act or omission which causes the premises to be a nuisance as a separate contempt. Doing so permits arbitrary and excessive punishment whether for maintaining a nuisance or for disobeying an order to abate the nuisance. We do not attribute such intent to the Legislature, which has indicated in section 373a that only one offense occurs on each day the nuisance exists. We conclude therefore that the conduct with which defendants are charged 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 defendants permitted lewd acts to occur in the theater. 20
Because these four contemptuous acts are divisible temporally and the Legislature has indicated an intent that punishment be permitted for each day that a nuisance of this type continues, 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.) 21
The judgment of contempt is annulled as to petitioner Stanich with directions to the superior court to dismiss the proceeding as to him. The judgment of contempt is annulled as to petitioners James and Artie Mitchell.
BIRD, C.J., and MOSK, BROUSSARD and REYNOSO, JJ., concur.
BIRD, Chief Justice, concurring.
I write separately to underscore my concern about the fundamental right to a jury trial in our judicial system. In our society there is a growing impatience with the rule of law which has been directed not only at judges but also at the jury system. Such a double-edged sword poses a very real threat to the remarkable relationship between the judiciary and the institution of the jury. Should that relationship be destroyed, the rule of law itself would be in grave jeopardy.
In order to better understand the nature and seriousness of these dangers, consider for a moment how important the judicial system is to the strength of the social fabric that holds us together. If the courts are weakened, that living fabric and the entire society it interweaves are likewise weakened.
The courts hold a unique position among our democratic institutions. In a sense, they represent one of the last bastions of participatory democracy in our society. They stand as a symbol of the great strength of our constitutional form of government. Part of that strength derives from the diversity of views found in our heterogeneous nation. However, that strength cannot be drawn upon unless conflicting views are moderated and balanced and excesses checked.
As the central forum for the resolution of disputes arising from this diversity, our courts are asked to contain potentially violent conflicts and to peacefully defuse the tensions of competing emotions. The disputants enter a neutral arena, the courtroom, and articulate their grievances, in terms of fact and law, directly to a judge or a jury composed of their fellow citizens. In almost no other context within our governmental system does an individual have the opportunity to take a problem straight to the decision makers who represent the full force and power of that particular branch of government.
The results of this process are respected because our citizens have agreed on the fundamental fairness of the method by which those results are reached. Even though the parties may disagree with the final decision, they accept it and acknowledge its legitimacy. Through this process, our judges and juries contribute to the stability of the society and help to reinforce the shared values which give us our sense of community.
As befits the judiciary's respect for precedent and tradition, the development of our legal procedures and our system of justice has been an evolutionary one. As due process rules were applied evenly and uniformly in case after case, our citizens increasingly began to appreciate that the system was a fair and just one, bringing a measure of predictability and stability to an uncertain, sometimes unruly world.
It is important to note that in the judicial system, unlike the executive and legislative branches, the term "decision maker" is not reserved for reference only to elected or appointed officials. Rather, it applies with equal force to both judges and juries. All citizens, without regard to wealth, occupation, or other indicia of status, are eligible to serve as jurors, and during such service they are as much the representatives of the judiciary as are the judges themselves.
In large part, the jury is the backbone of the American system of justice. Our reliance on, and confidence in, the institution of the jury are unmatched by any other nation. A brief look at the history of the jury bears witness to the uniqueness of its development in the United States.
The use of juries composed of lay citizens is of Anglo-Saxon derivation, originating with the signing of the Magna Carta in 1215. The jury system flourished for a time in the 1800's and early 1900's in countries across the European continent, including even Czarist Russia. However, this proliferation proved to be short-lived. One by one, jury systems were eliminated or curtailed in many of these countries.
Hungary and Portugal abolished juries in 1919 and 1926, and Mussolini dismantled the Italian jury system in 1931. Juries were eliminated in Russia, its various satellite countries, and Yugoslavia immediately following the 1917 Communist revolution. In 1924, Germany reverted to a system in which juries were replaced by panels composed of both judges and citizens, and France returned to a similar hybrid system in 1943.
Only a few countries have maintained a jury system over a substantial period of time including, of course, Great Britain and its Commonwealth nations. Others in this select list include Austria, Belgium, Norway, Denmark, Greece, and a few cantons in Switzerland. Nowhere, however, is the reliance on juries as pronounced as it is in the United States. 1 Indeed, it has been estimated that more than 80 percent of all jury trials in the world are conducted in the United States. 2
Just what is it about the American jury system that makes it unique, and why is this system so essential to our courts' ability to safeguard the rule of law? In order to answer these questions, we need to go back and analyze why our nation's founders structured the jury system as they did. Fortunately, we have the services of a most able guide in this endeavor.
In 1831, a young Frenchman visited the United States to observe the progress America was making in its grand experiment with democracy. 3 Although Alexis de Tocqueville was only 25 years old at the time, he was trained as a lawyer and had served for 5 years as a magistrate at Versailles before being sent by his government to America.
Despite his relatively young age, de Tocqueville had already developed a keen appreciation for the relationships between law, society, and governmental institutions. He was particularly perceptive in his understanding of the role of the American jury system in validating the judicial branch, with its seemingly aristocratic trappings, as a truly democratic institution.
De Tocqueville saw lawyers and judges as America's aristocracy--a class of individuals bound together by their common legal training, specialized knowledge, and rigorous thought processes. He theorized that this group, with its predilection for rationality, order, and legal formalities, served as a necessary brake upon the sometimes headstrong impulses inherent in popular government. "When the American people are intoxicated by passion or carried away by the impetuosity of their ideas," he observed, "they are checked and stopped by the almost invisible influence of their legal counselors." (Democracy in America, supra, at p. 289.)
Turning his analytical gaze on the jury system in the United States, de Tocqueville perceived the critical counterbalance that juries provide to the power and persuasiveness of lawyers and judges. He was struck by the genius of the American concept of the jury--an institution of the people, imbued with their common sense, embodying the customs of the community, and valuing liberty and freedom.
Indeed, de Tocqueville viewed the institution of the jury as the very heart and soul of the American justice system, serving to give the judiciary legitimacy in the eyes of the people and serving to give the people a deep, personal appreciation of the central role of the courts in preserving the rule of law. "The jury, then," he remarked, "which seems to restrict the rights of the judiciary, does in reality consolidate its power; and in no country are the judges so powerful as where the people share their privileges." (Id., at p. 297.)
De Tocqueville was of the opinion that the jury system was every bit as important an element of the sovereignty of the American people as universal suffrage. As he put it, the institution of the jury "places the real direction of society in the hands of the governed ... and not in that of the government.... [It] raises the people itself ... to the bench of judges.... [and] consequently invests the people ... with the direction of society." (Id., at p. 293.)
De Tocqueville also astutely observed that juries, particularly civil juries, tend to temper the sometimes rigid procedural and substantive requirements of the law with the evolving customs, values, and common sense of the lay community at large. Thus, in the process of serving on juries, citizens are able to participate directly in the constant reshaping and refinement of both the laws and the attitudes of their government.
Perhaps what impressed de Tocqueville most about the jury system was the role which jury service plays in educating and enlightening those citizens selected as jurors and, through them, the citizenry as a whole. The jury system, de Tocqueville observed, "may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, ... and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties." (Id., at p. 296.)
De Tocqueville was firmly convinced that "the practical intelligence and political good sense of the Americans" were primarily the result of our long history of using the jury system. (Id., at p. 296.) A citizen learns about our judicial system by serving on a jury one day, and the next day he or she returns to the community to share that educational experience with others. In this manner, the benefits of the jury system are spread throughout the society and "the spirit of the judges," to use de Tocqueville's phrase, is communicated "to the minds of all the citizens." (Id., at p. 295.)
The lessons taught by this process are essentially those of fairness, equal treatment, and impartiality--the fundamental notions on which our democracy is based. De Tocqueville stated it well: "[The jury] imbues all classes with a respect for the thing judged and with the notion of right.... It teaches men to practice equity; every man learns to judge his neighbor as he would himself be judged.... [It] teaches every man," he concluded, "not to recoil before the responsibility of his own actions...." (Ibid.)
When viewed in this light, jury service can be seen as an educational process which builds a greater sense of community and fills our citizens with a spirit of personal involvement in and commitment to their society. It educates our citizens and at the same time strengthens the entire social fabric. "By obliging men to turn their attention to other affairs than their own," de Tocqueville observed, "[jury service] rubs off that private selfishness which is the rust of society." (Ibid.)
As de Tocqueville's lucid analysis demonstrates, since its inception the jury system has not been merely an appendage of our courts, but rather a vital part of the American judiciary and an essential element of its continued well-being. It is also one of the most tangible civic functions in our society, touching the lives of millions of Americans every year.
In California in 1983, for example, a state with 11.1 million registered voters, nearly 1.8 million persons are summoned each year for jury duty. From this group, over 225,000 citizens--almost a quarter of a million--will actually be selected to serve on juries. Thus, over a five-year period, more than a million Californians will be sworn for jury duty and asked to fairly and impartially apply their common sense and good judgment to the very difficult tasks of determining guilt or innocence in criminal matters and of weighing rights and remedies in civil cases. As these substantial numbers attest, the jury system directly affects our society in both a philosophical and a physical sense.
It is interesting to observe in passing that an empirical study of jurors undertaken a few years ago in Orange County tended to confirm the validity of de Tocqueville's theoretical analysis. One of the major findings of the study 4 was that jury service tends to significantly increase a person's satisfaction with, and confidence in, the justice system. The survey also showed that jury service has the effect of increasing a citizen's overall appreciation and understanding of the functions of government.
Thus, whether from the perspective of theory, history, or empirical analysis, the jury emerges as an indispensable component of the American system of justice. It is, in the words of Alexander Hamilton, a "valuable safeguard to liberty" and "the very palladium of free government." (Hamilton, The Federalist, No. 83 (Nat. Home Library Found. ed. 1937) pp. 542-543.) The institution of the jury serves as the primary link between the courts and the society which they serve. The jury system permits every citizen to participate in the judicial decision-making process, and it provides every citizen with an opportunity to see the rule of law in operation.
The impatience with the rule of law that I referred to earlier is dangerous precisely because it encourages people to turn a deaf ear and a blind eye to our nation's history and heritage at a time when instant answers are in vogue and memories are dulled by the speed and volume of current events. At such a time, emotional appeals and misinformation can be particularly persuasive.
Judges and juries are the almost inevitable targets of such arguments, since they are the governmental bodies most squarely entrusted with the responsibility of maintaining the rule of law. But however much this spirit of impatience may pose as a popular cause, it is at its core an antidemocratic movement. The best defense against it and against the concomitant criticisms of the jury system and the judiciary is a clear understanding of how those institutions developed. An examination of the democratic underpinnings of the jury system provides convincing proof that it is of inestimable value to our republic and that any proposals to change it ought to be subjected to the most rigorous scrutiny.
To hold that the right to a jury trial under article I, section 16 of the California Constitution does not attach when an individual is to be punished for contempt of court is to show an insensitivity to both precedent and history.
LUCAS, Justice, dissenting.
I respectfully dissent to parts I, II, and IV of the majority opinion. Evading analysis of whether a jury trial is constitutionally required under federal precedent, the majority turns instead to the state Constitution, holding that under article I, section 16, the right to a jury trial attaches to those contempts, characterized as "criminal," for which the authorized punishment is greater than five days' imprisonment. The majority's discovery of this heretofore unknown right is without precedent and is erroneous. Further, it will engender much confusion in the law of contempt. I.
The majority's analysis presents a classic case of "bootstrapping," which may be summarized as follows: all misdemeanors and felonies require a jury trial under the state Constitution; contempts punishable under the Red Light Abatement Law by six months' imprisonment are "criminal offenses" despite their characterization as civil contempts because of the duration of the potential term of imprisonment; therefore contempts tried under the Red Light Abatement Law require a jury trial under the state Constitution. There are several fallacies in this syllogism. The first is that the class of misdemeanors and felonies does not necessarily include all conduct which may be denominated a "criminal offense" (see, e.g., Pen.Code, §§ 16, 19c; Tracy v. Municipal Court (1978) 22 Cal.3d 760, 765, 150 Cal.Rptr. 785, 587 P.2d 227 [infractions are denominated crimes, but do not require a jury trial] ), nor all conduct which may be punished similarly to a criminal offense.
The more fundamental defect in the majority's analysis, however, is its failure to give no more than passing weight to the fact that there is no indication that the constitutional drafters intended that contempts, recognized as a different class of offenses, should be treated in the precise manner as misdemeanors and felonies. The authority presented by the majority only answers the question of whether a jury trial is required in cases of misdemeanor and felony charges, and is of no logical value or persuasive force in deciding whether a jury trial is required for contempts charged under the Red Light Abatement Law.
When the Legislature has wished to make conduct constituting contempt a misdemeanor, it has expressly done so. Penal Code section 166, enacted in 1872, provides in pertinent part: "Every person guilty of any contempt of Court, of either of the following kinds, is guilty of a misdemeanor: .... [p] 4. Willful disobedience of any process or order lawfully issued by any Court...." Subsequent cases have acknowledged that despite the prohibition found in Penal Code section 166, not all conduct constituting contempt need be charged as a misdemeanor.
In In re Morris (1924) 194 Cal. 63, 227 P. 914, we stated: "It is the plain intent of section 166 of the Penal Code, however, to give another and different aspect to the contempts there enumerated and to expressly attach to each of them the definite quality of a criminal offense.... Plainly the Legislature did not intend to take away from the court contemned the power to punish a violator of its orders, but intended rather to provide an additional remedy which should be in a sense cumulative...." (Id. at pp. 67, 69, 227 P. 914; see In re McKinney (1968) 70 Cal.2d 8, 13-14, 73 Cal.Rptr. 580, 447 P.2d 972.) 1 We reiterated this principle in In re San Francisco Chronicle (1934) 1 Cal.2d 630, 36 P.2d 369: "Under [Pen.Code, § 166], the act prohibited is both a contempt and a misdemeanor. The mere fact that the Legislature has seen fit to declare such a contempt also a misdemeanor in no way deprives the court of the power to punish such an act as a constructive contempt in a summary proceeding...." (Id. at p. 636, 36 P.2d 369.)
A contempt charged under the Red Light Abatement Law is neither a felony nor a misdemeanor, but an additional remedy promulgated to address a particularly insidious social problem for which the Legislature was justified in providing a more severe punishment than that imposed under the general contempt remedy found in Code of Civil Procedure section 1218. (Selowsky v. Superior Court (1919) 180 Cal. 404, 410-411, 181 P. 652.) The Legislature intended that these contempts be tried summarily, and not be treated as misdemeanors. (See ante, p. 909, fn. 15, of 232 Cal.Rptr., p. 221, fn. 15 of 729 P.2d.) Absent a constitutional infirmity, this legislative characterization of the contempt procedure and remedial provisions provided by the abatement law may not be challenged by this court. (See People v. Dillon (1983) 34 Cal.3d 441, 477-478, 194 Cal.Rptr. 390, 668 P.2d 697; In re Lynch (1972) 8 Cal.3d 410, 414, 105 Cal.Rptr. 217, 503 P.2d 921.) 2
The majority errs in applying precedent requiring the right to a jury trial in misdemeanor and felony cases to determine the scope of that right in cases of contempt. 3 In so doing, they obscure the long held distinction between contempts and felonies and misdemeanors. Rather, we must independently construe our state Constitution and its antecedents to ascertain whether the right to a jury trial attaches in cases of contempt charged under the Red Light Abatement Law. II.
It is well settled that the right to a jury trial as guaranteed by the California Constitution, "is the right as it existed at common law in 1850, when the Constitution was first adopted, 'and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.' " (C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 8, 151 Cal.Rptr. 323, 587 P.2d 1136, quoting People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 287, 231 P.2d 832; Koppikus v. State Capitol Commissioners (1860) 16 Cal. 248, 253-254.) To properly analyze the right to a jury trial under the California Constitution, we must therefore turn to the common law.
At common law it was well established that criminal contempts could be tried without a jury. (See generally, Borrie & Lowe, The Law of Contempt (1973) pp. 253-258 [hereafter cited as Borrie].) The first broadly recognized authority for this proposition was The King v. Almon (1765) 97 Eng.Rep. 94, 4 in which Justice Wilmot, rejecting the argument that summary adjudication was not applicable to contempts committed out of court, stated: "[T]he issuing of attachments ... for contempts out of Court, stands upon the same immemorial usage as supports the whole fabrick [sic ] of the common law.... [p] I have examined very carefully to see if I could find out any vestiges or traces of its introduction, but can find none. It is as ancient as any other part of the common law; there is no priority or posteriority to be discovered about it, and therefore cannot be said to invade the common law, but to act in an alliance and friendly conjunction with every other provision which the wisdom of our ancestors has established for the general good of society. And though I do not mean to compare and contrast attachments with trials by jury, yet truth compels me to say, that the mode of proceeding by attachment stands upon the very same foundation and basis as trials by jury do,--immemorial usage and practice; it is a constitutional remedy in particular cases, and the Judges, in those cases, are as much bound to give an activity to this part of the law as to any other part of it." (Id. at p. 99, italics added.) 5
The United States Supreme Court similarly has held that a jury trial is not required in all cases of contempt. Speaking generally about the right to a jury trial at common law, the court stated: "So-called petty offenses were tried without juries both in England and in the Colonies and have always been held to be exempt from the otherwise comprehensive language of the Sixth Amendment's jury trial provisions. There is no substantial evidence that the Framers intended to depart from this established common-law practice...." (Duncan v. Louisiana (1968) 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491.) In the same year as its Duncan decision, the court specifically concluded that contempt "of itself" is such a petty offense for which a jury trial is not required unless the authorized penalty makes it "serious." (Bloom, supra, 391 U.S. at pp. 197-198, 88 S.Ct. at pp. 1479-1480.) By the same token, I find no indication that the drafters of the California Constitution intended to depart from established "common-law practice" in cases of contempt.
Since the earliest days of California legal history, it has been established that courts may summarily punish for contempt. "Courts shall have the power to punish in a summary manner, by fine and imprisonment, or either, for contempts offered to them while in session, or to any process, writ, rule, or order of said Courts issued and made, or for disobeying any writ, process, or order thereof.... No fine shall exceed the sum of five hundred dollars, nor such imprisonment exceed the term of fifteen days for any one offence [sic ]." (Stats.1850, ch. 33, § 13, p. 95; see also, Stats.1851, ch. V, Title XIII, §§ 480-493, pp. 126-128.) That same year, this court explained that this section was merely "declaratory of the common law." (People v. Turner (1850) 1 Cal. 152, 155.)
In Ex parte Wong You Ting (1895) 106 Cal. 296, 39 P. 627, the issue was whether a defendant charged with practicing medicine without a certificate, punishable by a fine of $500 and imprisonment for one year, was entitled to a jury trial. The court stated: "There are, no doubt, some cases which do not come within the constitutional guarantee that 'the right of trial by jury shall be secured to all and remain inviolate.' It has been held to refer generally to the right of trial by jury as it existed at common law and at the time the constitution was adopted." (Id. at pp. 298-299, 39 P. 627.) Recognizing that at common law summary proceedings were provided for certain petty offenses (id. at p. 299, 39 P. 627), the court stated that because these proceedings existed "at the time of the separation of the American colonies from England, it is, perhaps, proper to say that the guaranties in the various state constitutions of the right of jury trial do not prohibit the legislature from providing for summary proceedings without a jury, in cases of such petty offenses...." (Id. at p. 300, 39 P. 627; see also People v. One 1941 Chevrolet Coupe, supra, 37 Cal.2d at p. 300, 231 P.2d 832.)
Acknowledging, however, the difficult task of assigning "to the proper side of the line" the constitutional right to a jury trial, the court concluded the defendant was entitled to a jury trial because the charged offense was "punishable by a fine of five hundred dollars and imprisonment for one year; it was not in any sense a minor or petty offense; and such a crime would have been triable at common law by a jury." ( Ex parte Wong You Ting, supra, 106 Cal. at p. 301, 39 P. 627, italics added.) The court's approach, nonetheless, made it clear that offenses properly defined as "petty" did not implicate the right to a jury.
We specifically faced the issue of whether a contempt proceeding could be constitutionally tried without a jury in Bridges v. Superior Court (1939) 14 Cal.2d 464, 94 P.2d 983 (revd. on other grounds, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192). 6 We held that no such right existed, stating "[i]t has been the universal practice in this state from its earliest history to try proceedings in contempt by the court without a jury.... 'The power of the court to punish summarily for contempt has existed from the earliest period of the common law and is not within the application of constitutional provisions guaranteeing a trial by jury, or providing against depriving persons of their liberty without due process of law. [Citations.]' " (Id. at p. 478, 94 P.2d 983.) Thus, throughout California's history, the common law uniformly has been interpreted as not providing for a jury trial for contempts characterized as "petty" at common law. Despite this uniformity in interpretation, the majority adopts an essentially revisionist view of history without affording any due weight to the extensive precedent.
The majority attempts to suggest, by way of reference to the debates at the time of the adoption of the Constitution, that the framers intended to depart from this established common law precedent defining the right to a jury trial in certain contempt proceedings. The cited material contains discussions concerning whether the right to a jury trial should depend upon the designation of the offense as a felony or a misdemeanor, the amount of time served or the place of imprisonment. There is also a discussion regarding the unanimity of jury verdicts in criminal cases. But, significantly, there is no mention in any of the authorities relied upon by my colleagues of a right to a jury trial in cases of contempt, an offense long-recognized as "sui generis." (In re Morris, supra, 194 Cal. 63, 66, 227 P. 914; see Cheff v. Schnackenberg (1966) 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629.)
In fact, the majority agrees that "summary contempt proceedings were accepted features of the legal landscape when the Constitution of 1850 was adopted," and concedes that the drafters of the 1879 Constitution did not intend to depart from this precedent. (Ante, p. 911 of 232 Cal.Rptr., p. 223 of 729 P.2d.) 7 Nonetheless, the majority concludes that a contempt prosecuted under the Red Light Abatement Law is not a contempt "for which the right to a jury trial is excused." (Ante, p. 910 of 232 Cal.Rptr., p. 222 of 729 P.2d.) Unfortunately, we are never told what criteria are used to determine when a jury trial is not required, and why common law principles regarding contempt should not be uniformly applied.
The majority focuses on the fact that the maximum punishment for contempt under the Code of Civil Procedure is five days' imprisonment, while contempts charged under the Red Light Abatement Law may be punished by up to six months' imprisonment. No assertion is made, however, that six months' incarceration without a jury trial would have been improper at common law. Rather, we are apparently to believe that the drafters did not intend to depart from common law practice for those contempts punishable by five days' imprisonment, but did intend to depart from this precedent in cases of contempt punishable by a term of six months. 8 In my view, this proposition is neither supported by authority nor logic.
There is no "talismanic significance" to the maximum five-day imprisonment authorized for contempts tried summarily under Code of Civil Procedure section 1218. This restriction on the courts' power to punish for contempt has never been perceived as a constitutional limitation beyond which a jury trial must be provided but has always been understood to be a legislative limitation on the courts' otherwise inherent authority to punish for contempt. (In re Shortridge (1893) 99 Cal. 526, 532, 34 P. 227; Moffat v. Moffat (1980) 27 Cal.3d 645, 654, 165 Cal.Rptr. 877, 612 P.2d 967.) As the Legislature may limit the power of the court to punish summarily for contempt, so too may the Legislature expand the authorized punishment, subject to the constitutional restraints discussed hereafter. (See Selowsky v. Superior Court, supra, 180 Cal. at p. 411, 181 P. 652.)
Nor is there any indication in the constitutional debates or in subsequent legal authority that the drafters of the 1879 Constitution intended a limited departure from the common law treatment of contempt. Such a proposition is the product of speculation which ultimately has no historical or legal basis. Rather, the contemporaneously enacted statutes and subsequent holdings of this court make it clear that the drafters intended no such departure. Absent authority to the contrary, I believe we are bound by the long established principle that the right to a jury trial under our state Constitution must be construed as that right existing at common law.
As noted previously, the right to a jury trial as guaranteed by the Sixth Amendment also derives from the right as it was understood and applied at common law. (Duncan v. Louisiana, supra, 391 U.S. at p. 160, 88 S.Ct. at p. 1453; United States v. Johnson (5th Cir.1983) 718 F.2d 1317, 1320; cf. Williams v. Florida (1970) 399 U.S. 78, 92-100, 90 S.Ct. 1893, 1901-1906, 26 L.Ed.2d 446.) In view of the fact that the right to a jury trial under both Constitutions derives from the same common law precedent, the conclusion is inescapable that the right to a jury trial under both documents should be construed in the same manner. Nonetheless, the majority completely ignores the federal precedent already interpreting the application of the common law.
By ignoring this established authority, the majority also avoids consideration of the well developed and considered line of federal precedent distinguishing between petty and serious offenses. Although my colleagues launch into an essentially sui generis analysis of the right to jury trial under the California Constitution, I believe that the correct approach would be to review and apply the federal statements in this area to the case at hand. In other words, I believe that there is no principled reason described in the majority opinion for its break with established authority.
The majority's novel approach will also create significant problems and confusion in the law of contempt. All that we know for certain is that contempts triable and punishable "by relatively small fines and no more than five days imprisonment" do not, and contempts punishable by six months' imprisonment do, require a jury trial. (Ante, pp. 909, 910 of 232 Cal.Rptr., pp. 221, 222 of 729 P.2d.) We may also be able to assume that contempts punishable by 15 days' imprisonment may be summarily tried and punished as this was the term originally authorized in 1850. (Stats.1850, ch. 33, § 13, p. 95.) Beyond this point, however, no guidance is forthcoming. Would imposition of the one-month minimum incarceration under the Red Light Abatement Law violate the jury trial guarantee? Would the imposition of four consecutive one-month terms?
Confusion abounds because the majority has failed to give any reasoned explanation why some contempts should be treated differently from others under its interpretation of the state Constitution. The only implication one can glean is that a contempt punishable by a term of imprisonment of five days is a "petty offense," while a contempt punishable by a six-month term is a "serious offense" requiring a jury trial. 9 Such a distinction, however, is specifically rejected by the majority when it casts aside the serious/petty line of demarcation found in the federal precedent (see ante, p. 906 of 232 Cal.Rptr., p. 218 of 729 P.2d). If there is a different "line of demarcation" under the California Constitution, the majority has failed to explain from where it comes and how it is to be applied.
Presumptively, the majority would look, as it should under settled principles, to the common law. In determining the line between serious and petty offenses, the United States Supreme Court, construing the common law, has found the most relevant criterion to be the severity of the maximum authorized penalty. (Baldwin v. New York (1970) 399 U.S. 66, 68, 90 S.Ct. 1886, 1887, 26 L.Ed.2d 437 [plur. opn. of White, J.]; see also Codispoti v. Pennsylvania (1974) 418 U.S. 506, 512, fn. 4, 94 S.Ct. 2687, 2691 fn. 4, 41 L.Ed.2d 912.) While not of "talismanic significance," the high court has consistently held that offenses punishable by a term of imprisonment not exceeding six months and a fine not exceeding $500, or both, are "petty" and do not require a jury trial. (Muniz v. Hoffman (1975) 422 U.S. 454, 476-477, 95 S.Ct. 2178, 2190-2191, 45 L.Ed.2d 319 [imposition of a $10,000 fine without a jury trial was not unconstitutional].)
Similarly, the high court has explained that contempts punishable by a combination of penalties may still be considered "petty." "[T]he maximum penalty authorized in petty offense cases is not simply six months' imprisonment and a $500 fine. A petty offender may be placed on probation for up to five years and, if the terms of probation are violated, he may then be imprisoned for six months." (Frank v. United States (1969) 395 U.S. 147, 151, 89 S.Ct. 1503, 1506, 23 L.Ed.2d 162 [defendant convicted of criminal contempt for violation of injunction; sentence suspended and three-year probation imposed]; see United States v. Troxler Hosiery Co., Inc. (4th Cir.1982) 681 F.2d 934, 937 [imposition of $80,000 fine without jury trial did not violate Sixth Amendment]; cf. United States v. Hamdan (9th Cir.1977) 552 F.2d 276, 280 [offenses punishable by penalty exceeding six months' imprisonment and $500 fine are "serious"]; but see id. at pp. 280-283 [dis. opn. by Wallace, J.].) Unless there is a principled way to distinguish the federal cases which have established the "line of demarcation" between serious and petty offenses existing at common law, I suggest the right to a jury trial under the California Constitution should be construed with reference to this same petty/serious distinction.
Undeniably, the characterization of offenses for which the authorized punishment includes a fine in addition to a maximum imprisonment of six months presents a difficult issue. Nonetheless, this is no reason to reject the entire concept that the right to a jury trial attaches only to "serious" contempts, while at the same time providing for a category of "petty contempts" in California not requiring a jury trial.
As a result of today's broad holding, the bench and bar are left without guidance or direction regarding the degree of fine and/or imprisonment imposed for contempt requiring a jury trial, or, if a jury trial is required in some cases and not others, now this distinction is to be drawn. In my view, the right to a jury trial in contempt proceedings under the California Constitution is no different from that right guaranteed by the federal Constitution and rooted in the common law. 10 III.
I also dissent to part IV of the majority opinion which concludes that defendants' conduct may not support more than four separate contempt findings. The majority properly states that before addressing defendants' contention that Penal Code section 654 precludes separate punishment for acts constituting a continuous course of conduct, we must first determine how many contemptuous acts took place. (Ante, p. 912 of 232 Cal.Rptr., pp. 224 of 729 P.2d.) The majority goes on to analyze the question, however, not in terms of whether defendants' conduct violated the terms of the injunction itself, the essential inquiry in a contempt proceeding, but whether defendants' "use of the premises" constituted the maintenance of a public nuisance. My colleagues conclude that defendants may be held in contempt for each day a nuisance was created by allowing the lewd acts to occur. In my view, each act of lewdness or prostitution allowed to occur on the premises constituted a violation of the injunction for which defendants could be held in contempt.
It is hornbook law that "[c]ontempt is a disobedience of court by acting in opposition to its authority, justice or dignity...." (Raskin v. Superior Court (1934) 138 Cal.App. 668, 670, 33 P.2d 35; see In re Buckley (1973) 10 Cal.3d 237, 247-248, 110 Cal.Rptr. 121, 514 P.2d 1201; see also Code Civ.Proc., § 1209, subd. (a)5.) In order to determine if one is guilty of contempt for violation of an injunction, the court must of course look to the words of the injunction itself. It is for this reason that "[t]o hold a person guilty of contempt for violating an injunction, the acts constituting the contempt must be clearly and specifically prohibited by the terms of the injunction.... The party bound by the injunction must be able to determine from its terms what he may and may not do...." (Brunton v. Superior Court (1942) 20 Cal.2d 202, 205, 124 P.2d 831; People v. Bestline Products, Inc. (1976) 61 Cal.App.3d 879, 908, 132 Cal.Rptr. 767.) Each separate act of disobedience to an injunction is a separate contempt (Donovan v. Superior Court (1952) 39 Cal.2d 848, 855, 250 P.2d 246; In re Stafford (1958) 160 Cal.App.2d 110, 113-114, 324 P.2d 967), for which the defendant may be punished separately (Hume v. Superior Court (1941) 17 Cal.2d 506, 515-516, 110 P.2d 669; Powers v. Superior Court (1967) 253 Cal.App.2d 617, 618, 61 Cal.Rptr. 433).
In the present case, defendants were enjoined from: "Allowing the occurrence, continuance or recurrence of acts of lewdness or prostitution upon the premises ... commonly known as the Mitchell Brothers Theater...." (Italics added.) Rather than enjoining a "nuisance" in some abstract sense, or even as defined in the Red Light Abatement Law (Pen.Code, § 11225), the injunction enjoined each "occurrence, continuance or recurrence" of prohibited conduct. The evidence produced at defendants' contempt hearing supported the trial court's judgment that 56 wilful violations of this order took place.
The majority contends that treating each separate violation of the injunction as a contempt "permits arbitrary and excessive punishment." (Ante, p. 913 of 232 Cal.Rptr., p. 225 of 729 P.2d.) To the contrary, punishment imposed on this basis comports with the contemner's culpability for his actual conduct, providing for separate adjudications of contempt for each separate insult to the court's authority, regardless of when or how often the insults occurred. (See Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 622, 204 Cal.Rptr. 786 [disapproved herein by the majority]; 8 Witkin, Cal. Procedure (3d ed. 1985) Enforcement of Judgment, § 351, pp. 303-304.) I submit that it is the majority's analysis that will yield arbitrary results. Under its approach, two acts violating an injunction committed at 11:57 p.m. on "day one" will be treated as one contempt, while the identical acts, one committed at 11:59 p.m. on "day one," and the other committed at 12:01 a.m. on "day two" will be treated as two contempts. Such an approach seems wholly indefensible to me. IV.
I believe the majority's reliance on the California Constitution to create a jury trial right different from that found under the federal Constitution is ill-conceived. In my view, analysis of whether defendants are entitled to a jury trial in contempt proceedings under the Red Light Abatement Law (Pen.Code, § 11229) should proceed with reference to established federal precedent. Moreover, I would find that each violation of the injunction issued was properly adjudicated a contempt of court for which defendants may be separately punished. 11
KIM, J., * concurs. --------------- 1 Unless otherwise indicated all statutory references are to the Penal Code. Section 11229: "Any violation or disobedience of an injunction or order expressly provided for by this article is punishable as a contempt of court by a fine of not less than two hundred dollars ($200) nor more than one thousand dollars ($1,000), by imprisonment in the county jail for not less than one nor more than six months, or by both." 2 We do not consider petitioners' claim that the injunction was itself invalid as an improper restraint on conduct protected by the First Amendment. That claim and their related assertion that if the Red Light Abatement Law applies to live theatrical performances it is to that extent unconstitutional, were made by petitioners James and Artie Mitchell in the appeal from the order granting the injunction, an appeal which they subsequently abandoned. We deem that abandonment a waiver of that claim. (Cf. In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513.) 3 The underlying action is authorized by sections 11225 and 11226. Section 11225 provides: "Every building or place used for the purpose of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, and every building or place in or upon which acts of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, are held or occur, is a nuisance which shall be enjoined, abated and prevented, and for which damages may be recovered, whether it is a public or private nuisance. [p]...." Section 11226 provides: "Whenever there is reason to believe that a nuisance as defined in this article is kept, maintained or is in existence in any county, the district attorney, in the name of the people of the State of California, must, or any citizen of the State resident within said county, in his own name may, maintain an action in equity to abate and prevent the nuisance and to perpetually enjoin the person conducting or maintaining it, and the owner, lessee or agent of the building, or place, in or upon which the nuisance exists, from directly or indirectly maintaining or permitting it. [p]...." 4 Section 11227: "Whenever the existence of a nuisance is shown in an action brought under this article to the satisfaction of the court or judge thereof, either by verified complaint or affidavit, the court or judge shall allow a temporary writ of injunction to abate and prevent the continuance or recurrence of such nuisance." 5 Section 647: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [p] (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view. [p] (b) Who solicits or who engages in any act of prostitution. As used in this subdivision, 'prostitution' includes any lewd act between persons for money or other consideration. [p]...." 6 The court adopted the construction of "lewd" adopted by this court in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636. As used in section 647, subdivision (a), a "lewd act" is one that is sexually motivated, and the trial court rule included specifically "the touching of genitals, buttocks or female breasts; 2) done for the purpose of sexual arousal, gratification, annoyance or offense; 3) in a place open to the public; 4) by a person who knows or should know of the possible presence of; 5) a person who may be offended by the conduct." 7 Although each lewd act was also found to be an act of prostitution, the court ruled that each constituted only one contemptuous act. 8 The court declined to make an exception from this category for contempts committed in the immediate presence of the court (391 U.S. at p. 210, 88 S.Ct. at p. 1486) and held that the right to jury trial exists even in those cases unless the punishment imposed was that proportionate to a petty offense for which that right did not exist for any crime. The statute which authorized federal courts to punish for contempt (18 U.S.C. § 401) did not designate the conduct criminal, but provided that a federal court "shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other as--[p] (3) Disobedience or resistance to its lawful ... order...." The court has long recognized that the congressional intent in creating statutory authority to punish for contempt was to restrict the patently arbitrary exercise of the contempt power by limiting the power to acts which obstructed the judicial process and thereby protect the constitutional rights of persons subject to that power. (See Nye v. United States (1941) 313 U.S. 33, 44-48, 61 S.Ct. 810, 813-816, 85 L.Ed. 1172, and cases cited therein.) Referring to that history in In re Michael (1945) 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30, the court said: "... the references to that Act's history in the Nye case, supra, reveal a Congressional intent to safeguard constitutional procedures by limiting courts, as Congress is limited in contempt cases, to 'the least possible power adequate to the end proposed.' [Citation.] The exercise by federal courts of any broader contempt power than this would permit too great inroads on the procedural safeguards of the Bill of Rights, since contempts are summary in their nature, and leave determination of guilt to a judge rather than a jury." 9 The holding that contempt is a crime to which the constitutional rights of criminal defendants attach was not simply a determination of whether Congress intended that contempt be considered a crime. The court posed and answered the question as one of constitutional dimension: "Given that criminal contempt is a crime in every fundamental respect, the question is whether it is a crime to which the jury trial provisions of the Constitution apply. We hold that it is, primarily because in terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court." (Bloom v. Illinois, supra, 391 U.S. 194, 201, 202, 88 S.Ct. 1477, 1481, 1482, 20 L.Ed.2d 522.) "If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases." (Id., at p. 208, 88 S.Ct. at p. 1485.) 10 Code of Civil Procedure section 1218 authorized a fine of up to $1,000, but a jail term of no more than five days for a section 1209 contempt. 11 The drafters of the California Constitution of both 1849 and 1879 intended that the protections of the Declaration of Rights have independent force. Those provisions of the Bill of Rights which acted as guarantees against invasions of personal rights by the federal government had not yet been incorporated into the Fourteenth Amendment's guarantees against such conduct by the states. The critical importance of the state Constitution and the Declaration of Rights was fully recognized by the delegates to these conventions. In the provision guaranteeing criminal defendants the right to jury trial the drafters manifested their intent that a right which is greater than the jury trial right of the Sixth Amendment be secured to California defendants, just as the drafters of the 1849 Constitution had done with respect to defendant's right to bail (see In re Underwood (1973) 9 Cal.3d 345, 349-350, 107 Cal.Rptr. 401, 508 P.2d 721), and to be free of cruel or unusual punishment (see People v. Anderson (1972) 6 Cal.3d 628, 634-637, 100 Cal.Rptr. 152, 493 P.2d 880). Indeed, the framers of our Declaration of Rights, understood the Bill of Rights appended to the federal Constitution to do no more than limit the exercise of those powers which the states had surrendered to the federal government. The delegates to the 1878 California Constitutional Convention believed that a state constitutional guarantee was essential to protect Californians against invasion of their liberties by the state. The importance of the state Constitution was emphasized repeatedly in a lengthy opening debate on the proposed Declaration of Rights when the wording of a provision giving recognition to the Constitution of the United States was under consideration. The understanding and intention of the delegates was summarized at the conclusion of that debate in the remarks of Representative J.B. Hall of the Second Congressional District: "[W]e are now engaged in the work of framing the charter of our liberties. We have before us the charter framed in eighteen hundred and forty-nine, by our predecessors, which is submitted to us by the people for revision. We are now engaged in the work of setting forth certain great rights with which the people have not parted; such as the right of trial by jury; such as the right to be tried by Grand Juries; the right to be brought publicly to confront the charges against us; the freedom of speech and of the press, and a number of other rights ... which it was thought in eighteen hundred and forty-nine, and it is thought in eighteen hundred and seventy-eight by this Convention, ought to be declared in this instrument in order that they may be the more certainly assured to us, because it is well known that the declarations of the Constitution of the United States operate merely as a limitation upon the powers of the Federal Union, and not upon the powers of the States, and hence the necessity of reengrafting them in this portion of our Constitution under the title of 'declaration of rights.' " (1 Debates and Proceedings, Cal. Const. Convention (1880) p. 240 [hereafter Debates].) 12 See, e.g., the remarks of Mr. Barbour: "We are establishing now a Bill of Rights, or, as some gentlemen have wrongfully called it, a 'declaration of rights.' I like the old form the best, as I like the old jury system the best. It was one of those rights that entered into and became one of the fundamental rights obtained at the time the charter was granted. Now we should meddle with this jury system with extreme caution and extreme care. "... "Now, I am willing, as I said the other day, that a line of demarkation shall be drawn clearly between civil cases and criminal cases. I hold to the very same proposition, that a little innovation, properly guarded, may be made with safety in the jury system in regard to civil cases. As far as criminal cases go I shall vote against any interference whatever. I shall contend for the system as it now stands in reference to criminal cases. Now, the gentlemen have argued a proposition here which is an absurdity, and which will throw this country into inextricable confusion in the proper construction of these various laws. There is an old provision carried along which is cognate to this jury right, that no citizen shall be deprived of life, liberty, or property without due process of law. That thing has been construed over and over again, that due process of law means by a jury--the common law jury--due process of law to deprive them at least of their liberty. Gentlemen have attempted to draw a line here between certain grades of crimes, applying one system of jury trials to one grade of offenses, and another system to another grade. The committee have drawn this line in their report, or attempted to--felonies and misdemeanors in the one case, and in the other case specifying the amount of punishment as the line of demarkation. Gentlemen should remember, and the committee should have remembered that this thing of felony, and this thing of misdemeanor, are matters entirely within legislative control. They can make the lesser out of the greater if they see fit. If a crime is now a misdemeanor, the Legislature can make it a felony. We know they have done so, and they may do it again." (1 Debates at p. 302.) 13 Mr. Barnes remarked: "It is the unanimous conclusion of twelve good citizens that brands a man as a criminal. But why has not the man who is liable to be fined five hundred dollars or sent to jail for six months, the same right to a trial by jury as the man who is to be sent to San Quentin. I do not see the distinction. It is a distinction without a difference...." (1 Debates at p. 295.) Even Mr. Howard, a proponent of abolishing the right to jury trial, expressed doubts about distinguishing between the rights of defendants in criminal trials based on the category of offense: "Again, in relation to the majority rule in cases of misdemeanor, I confess I have my doubts, because liberty appears as sweet to a man who has committed a misdemeanor as it is to a man who commits a higher offense." (Id., at p. 296.) Mr. Herrington: "There are a vast number of criminal actions that are less than felonies in magnitude, but equal in their disgraceful effects upon human character, and I submit that the rule that there shall be a unanimous verdict in all criminal cases should not be departed from.... It was argued ... that crimes of the character of misdemeanor were not of sufficient magnitude to require a verdict in all cases to be unanimous. In criminal cases, a man's liberty is just as dear to him when considered in connection with the County Jail as with reference to the State Prison. In either case he is deprived of his liberty, and it is equally disgraceful in the eye of the law and in the sight of humanity as when he is sent to the State Prison by the unanimous verdict of a jury. Their effects are oftentimes equally destructive of character and upon society.... There out [sic ] to be a unanimous verdict in all criminal cases." (3 Debates at p. 1174.) Mr. McCallum: "I submit that the proposition reported by the Committee of the Whole is grossly inconsistent in itself, in this: it makes a distinction between criminal cases.... It is making a distinction in crimes where there is no sufficient difference. It is a distinction against the humbler class of criminals.... When you propose to make a distinction of this kind, when you propose to say that one class of criminals may be convicted by a part of the jury, while another class shall have a unanimous jury, you are making a distinction that is beneath the dignity of a Constitution." (Id., at p. 1175.) In response to the suggestion of another delegate that the state prison/county jail distinction justified the difference, Mr. McCallum noted the potential for equally serious consequences when a misdemeanor was involved: "That is no answer to the objection of giving one class of crimes a different mode of trial from another. There are many cases, such as libel, where the punishment is greater than imprisonment. It may be twelve months, or it may be five thousand dollars, and yet be a case which don't blast a man's reputation in the slightest degree, and the verdict must be unanimous. But if it is for stealing forty-nine dollars and ninety-nine cents, involving the character of the man, nine out of twelve can find a verdict." (Ibid.). It was then proposed that the distinction between classes of defendants entitled to a jury trial should turn on the punishment provided for the offense. Mr. Smith again noted the power of the Legislature to label the offense: "When this matter was up before the Committee on Judiciary, it was declared that the words misdemeanor and felony were not distinct enough, as drawing the lines between the two classes of crime, because the statute could transpose the crimes if they saw fit." (Id., at p. 1176.) Mr. Barbour, echoed this recognition: "These are merely statutory crimes, and the distinction is left entirely with the Legislature. It may be that the punishment for a misdemeanor is greater than the punishment for felony, except that the party could not be sent to the State Prison. For instance, the crime of libel may be punished by a fine of five thousand dollars and imprisonment in the County Jail one year; and if the party is unable to pay the fine, he may be imprisoned seven or eight years, which is a greater punishment than is suffered for many felonies." (Ibid.) 14 The section then read: "The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases not amounting to felony, by the consent of both parties, expressed in open Court, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions, and cases of misdemeanor, the jury may consist of twelve, or of any number less than twelve upon which the parties may agree in open Court." 15 The Red Light Abatement Law enacted in 1953 codified existing legislation under which contempt sanctions for violating injunctive orders had been upheld as civil contempt proceedings. (See Selowsky v. Superior Court (1919) 180 Cal. 404, 181 P. 652.) The predecessor, 1913, version of the Red Light Abatement Law contained language substantially identical to that codified as section 11229, providing that a violation of an injunction or order "shall be punished as a contempt of court by a fine of not less than two hundred dollars or more than one thousand dollars, or by imprisonment in the county jail for not less than one month nor more than six months, or by both such fine and imprisonment." (Stats.1913, ch. 17, § 6, p. 21.) Established rules of statutory construction lead to a conclusion that since the language of section 11229 is the same as that of the prior law, the Legislature did not intend a change in the manner in which these contempts would be tried when the law was codified. The Legislature is presumed to have been aware of the prior construction of the law when it codified the law and to have intended that the same interpretation be placed upon it. (Penaat v. Terwilliger (1944) 23 Cal.2d 865, 871, 147 P.2d 552; State Commission in Lunacy v. Welch (1908) 154 Cal. 775, 777, 99 P. 181.) Petitioners note that violation of a court order under the law qualifies as a "crime or public offense" as defined in Penal Code section 15 ("[a] crime or public offense is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: 2. imprisonment; 3. fine; ..."). This is true also, however, of all contempts made punishable by section 166 which provides that contempt of court, as defined therein, and including "[w]illful disobedience of any ... order lawfully issued by any court;" is a misdemeanor. Thus, the Legislature apparently intended that violation of Red Light Abatement Law orders, like violation of other court orders, could be punished under either section 166 as a misdemeanor or section 11229 as a civil contempt. (§ 657; see In re Morris (1924) 194 Cal. 63, 67, 227 P. 914.) 16 This does not mean that greater punishment may not be imposed for violation of Red Light Abatement Law injunctions. Contempts consisting of violation of a court order may be charged as misdemeanors in California. (§ 166, subd. 4.) 17 The only evidence to which the People call our attention, other than the declaration, is the testimony of a security officer employed by the theater that he was under instructions to report illegal activity by the employees, that he reported to the night manager, who reported to Stanich, and that he had had opportunity to report directly to Stanich. The same witness testified that he saw Stanich in the theater each evening when the witness came to work and that Stanich had a business office on the second floor. The People also rely on testimony by the security officer that after he reported to Stanich regarding one woman's conduct, he did not see the woman in the employ of the theater again. That testimony was not, however, sufficient to support a conclusion that the employee was fired, or that, if so, she was fired on Stanich's authority. In fact, the witness testified that he had reported eight or ten women to Stanich for the same conduct, but there was no evidence that any of these women had been fired by Stanich. 18 This conclusion makes it unnecessary to consider Stanich's assertion that the failure to name him in the order to show cause, and to serve the order on him, constituted a jurisdictional defect in the proceedings. We note, however, that he had notice of the injunction, and at a time when the pleadings had been amended to name him, appeared and defended. Under analogous circumstances jurisdiction has been affirmed. (See Leonis v. Superior Court (1952) 38 Cal.2d 527, 531, 241 P.2d 253.) 19 As a general rule a court may not enjoin criminal conduct and thereby deny the defendant a jury trial by punishing the violation as a contempt. (See People v. Lim (1941) 18 Cal.2d 872, 880, 118 P.2d 472; Sullivan v. S.F. Gas & Electric Co. (1905) 148 Cal. 368, 83 P. 156.) Exceptions are recognized when the conduct is also a tort that is subject to an injunction. (Perrin v. Mountain View Mausoleum Assn. (1929) 206 Cal. 669, 275 P. 787.) Statutory authority exists to enjoin criminal activity as a nuisance, but this court has declined to extend authorization for such injunctions judicially. (See Nathan H. Schur, Inc. v. Santa Monica (1956) 47 Cal.2d 11, 17, 300 P.2d 831.) The statutory authority under which this injunction was issued did not authorize the court to enjoin criminal activity, a jurisdictional limitation on the court which the dissent fails to acknowledge. If the injunction were read to forbid criminal conduct as such, rather than enjoining the continued use of the premises for lewd purposes, the validity of the injunction would be doubtful. 20 To the extent that it is inconsistent with this conclusion, Reliable Enterprises, Inc. v. Superior Court, supra, 158 Cal.App.3d 604, 204 Cal.Rptr. 786, is disapproved. We note that our conclusion that only one contempt occurs each day the premises continue to be a nuisance is consistent with decisions holding that other types of contempt may not be escalated into multiple contemptuous acts for the purpose of increasing statutorily authorized penalties. Thus, in In re Keller (1975) 49 Cal.App.3d 663, 123 Cal.Rptr. 223, the Court of Appeal annulled a contempt judgment imposing separate penalties for the contemner's refusal to answer six questions put to him after he had declared that he would refuse to testify at all as a witness in a criminal proceeding. Persuaded by the reasoning of the United States Supreme Court in Yates v. United States (1957) 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95, the court concluded that multiple contempt findings for what amounted to a single contempt was in excess of the authority of the court. The court recognized that in Ex parte Stice (1886) 70 Cal. 51, 11 P. 459, this court had upheld the power of the prosecutor to again call as a witness a contemner who had previously refused to testify and had been punished for that act of contempt, and of the trial court to again impose punishment. This court acknowledged in Stice that a different situation would be presented if the contemner were called every day or every hour and separately punished for each refusal to be sworn. That, we stated "would be a great and unjustifiable abuse of power." (70 Cal. at p. 58, 11 P. 459.) 21 Because we have concluded both that the evidence was sufficient to support the findings that lewd acts were allowed to occur on the premises under abatement on each of the four days in issue, and that no more than one contempt occurred on each of those days, we need not consider defendants' argument that the evidence did not support findings that obscene acts and acts of prostitution were permitted to occur on those days. 1 See generally, Kalven & Zeisel, The American Jury (1971) (hereafter The American Jury ); Moore, The Jury: Tool of Kings, Palladium of Liberty (1973); Wright, The Bill of Rights in Britain and America: A Not Quite Full Circle (1981) 55 Tulane L.Rev. 291; Schlesinger, Comparative Criminal Procedure: A Plea for Utilizing Foreign Experience (1977) 26 Buffalo L.Rev. 361; Casper & Zeisel, Lay Judges in the German Criminal Courts (1972) 1 Journal of Legal Studies 135 (hereafter Lay Judges ). 2 The American Jury, supra, at page 13. 3 See generally, de Tocqueville, Democracy in America (Vintage ed. 1945) (hereafter Democracy in America ). 4 Professor Harvey P. Grody (Cal. State Univ., Fullerton), Final Report on Criminal Trial Jury Communications Feedback Project (1976). Similar results were reported by Pabst et al., in The Myth of the Unwilling Juror (1976) 60 Judicature 164. 1 We also cited in Morris to Penal Code section 657, which provides now as it did then, " 'A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt.' " (Id., 194 Cal. at p. 67, 227 P. 914.) 2 Taylor v. Reynolds (1891) 92 Cal. 573, 28 P. 688, cited by the majority, does not hold to the contrary. In Taylor, we were called upon to decide whether the adjudication of the violation of a municipal nuisance ordinance required a jury trial. The charter provision empowering the City of San Jose to prevent nuisances specifically stated that " 'any violation of any lawful order, regulation, or ordinance ... is hereby declared a misdemeanor, and all prosecution for the same shall be in the name of the state of California.' " (Id. at p. 574, 28 P. 688, italics added.) The People argued that the ordinance was not "intrinsically criminal," but a municipal police regulation for which the Legislature could, under recognized principles, authorize a summary trial without a jury. We noted, however, that the offense was specifically declared by statute to be a misdemeanor, and was not peculiarly an offense against the municipality. We concluded that the right to a jury trial for an offense falling within the notion of a crime or misdemeanor, could not be evaded simply because the law was promulgated by a municipality. (Id. at p. 576, 28 P. 688.) There was no suggestion in that case that all conduct "criminal in nature" requires a jury trial, that contempt is an offense falling within the notion of a misdemeanor at common law, or that if the enabling language had not denominated the specified violations as misdemeanors, the right to jury trial would attach. 3 Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273, cited by the majority, is distinguishable for this same reason. In Mills, we were faced with the issue of whether the principles enunciated in Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449, should be applied in misdemeanor cases. In the course of that decision, we stated in dictum that "our state Constitution guarantees every defendant faced with misdemeanor or felony charges a right to a trial by jury." (10 Cal.3d at p. 298, fn. 8, 110 Cal.Rptr. 329, 515 P.2d 273, second italics added.) The defendants in Mills were charged with misdemeanor drunk driving (Veh.Code, § 23102, subd. (a)), not contempt of court. 4 Justice Wilmot's opinion, by a procedural quirk, was never published as a judgment of the court. It has been cited and approved in subsequent cases, however, and recognized as the leading common law authority in this area for over 200 years. (Borrie, supra, at pp. 254-256.) 5 While subsequent scholarly criticism has challenged the principle that all criminal contempts could be tried summarily at common law (in Almon, the contempt was for libel on the court by a stranger to the proceedings), even those critics concede that summary punishment for certain contempts was permissible. (See discussion in Bloom v. Illinois (1968) 391 U.S. 194, 198-200, fn. 2, 88 S.Ct. 1477, 1480-1481, fn. 2, 20 L.Ed.2d 522; see also Green v. United States (1958) 356 U.S. 165, 185-186; fn. 18, 78 S.Ct. 632, 643-644, fn. 18, 2 L.Ed.2d 672; but see id. at pp. 204-205, 78 S.Ct. at pp. 654-655 [dis. opn.].) Blackstone, apparently relying on Almon, supra, was also of the view that summary punishment of contempt was permissible at common law. (4 Blackstone's Commentaries 286-288; see also Bloom, supra, 391 U.S. at pp. 198-200, fn. 2, 88 S.Ct. at pp. 1480-1481, fn. 2.) 6 The contempt proceeding in Bridges was instituted pursuant to Code of Civil Procedure section 1209 et seq. to punish the contemner for interference with the administration of justice by publication of a telegram sent to the Secretary of Labor. Under the majority's analysis herein, the imposition of a penalty for the commission of a past act would render this contempt "criminal" in nature (ante, pp. 904-905 of 232 Cal.Rptr., pp. 216-217 of 729 P.2d), making it relevant to our discussion of the right to a jury trial in cases of criminal contempt. 7 Contrary to the majority's assertion (see, ante, p. 910 of 232 Cal.Rptr., p. 222 of 729 P.2d) that we find the constitutional history to be irrelevant in determining whether the drafters contemplated that subsequent legislation regarding contempts might also be exempted from the jury trial right, we find the history highly relevant. It is the drafters' failure to extend the right to contempts in the course of their wide ranging application of the right that we find significant. 8 I do not understand the majority to be arguing that the Legislature has improperly characterized as "contempt," conduct which may be only prosecuted as a felony or misdemeanor in an effort to evade the jury trial requirement. (See ante, pp. 913-914, fn. 19 of 232 Cal.Rptr., pp. 225-226, fn. 19 of 729 P.2d.) 9 The majority refers to the penalty authorized under Code of Civil Procedure section 1218, imprisonment for up to five days and a fine of up to $1,000, as a "relatively petty sanction imposed for ... 'civil' contempt." (Ante, p. 905 of 232 Cal.Rptr., p. 217 of 729 P.2d, italics added.) We are never told, however, why this contempt proceeding should be characterized as "civil," or what standards are being applied to classify the sanction imposed as "petty." 10 I fully agree with the Chief Justice's sentiments regarding the importance and fundamental nature of the right to a jury trial in our democratic society. I do not believe, however, that relevant precedent and history require that we extend that right in the manner suggested by the majority here. 11 I do concur in part III of the majority's opinion finding that there was insufficient evidence as to Stanich and that the judgment as to him must be annulled and retrial barred. * Hon. Frank Kim, Judge, San Joaquin, County Superior Court, assigned by the Chairperson of the Judicial Council.