Mitchell v. Superior Court

*1236 Opinion

The Red Light Abatement Law (hereafter RLAL) (Pen. Code, § 111225 et seq.) 1 provides for injunctions to abate nuisances on premises where prostitution and lewdness occur. The trial court found petitioners in violation of an injunction issued under the RLAL. Section 11229 makes violation of such an injunction a contempt of court, and authorizes a maximum sentence of six months’ imprisonment and a $1,000 fine for each such violation.

Petitioners seek review of the judgment of contempt entered pursuant to section 11229, which imposed on them substantial fines and six-month jail terms. The principal question presented by their petition for writ of certiorari is whether persons charged with contempt under section 11229 are entitled to a jury trial under the California or United States Constitutions. Petitioners further assert that the acts underlying the contempt charges were neither lewd nor acts of prostitution, and that the numerous acts detailed by the trial court, which occurred over a period of four days, may not each be punished as individual contempts, but constitute at most one contempt j violation per day.

We shall conclude that because a defendant in a…

I concur in the judgment insofar as the majority holds the judgment of contempt under Penal Code section 11229 (the Red Light Abatement Law) must be annulled. (Maj. opn., ante,x at p. 1244 & fn. 11.) Without belaboring the issues further, I note simply that I dissent from the majority’s holding that on retrial, petitioners may be charged with only one count of contempt for each day on which they permitted multiple lewd acts to occur in violation of the injunction. Nor can L subscribe to the majority’s analysis concerning the “alternative sentence.”

I concur in the result of the majority opinion. However, I cannot agree with its criticism and evasion of a controlling decision of this court: Safer v. Superior Court (1975) 15 Cal.3d 230 [ 124 Cal.Rptr. 174 , 540 P.2d 14 ] (hereafter Safer). Stare decisis requires a better fate for an authoritative opinion.

There is no question that a prosecutor may choose to charge a defendant under either Penal Code section 11229 or Code of Civil Procedure section 1209 “if the defendant were thereby deprived of his right to trial by jury” {Safer, 15 Cal.3d at p. 241, fn. 22 ). That is typical prosecutorial discretion.

However, the prosecutor may not make that election for the purpose of depriving a defendant of his constitutional right to a jury trial. As this court declared in Safer, supra, 15 Cal.3d at page 241 , “the attempted transformation of contempt proceedings brought under the Penal Code into a prosecution under the Code of Civil Procedure achieves a possible reduction of punishment only at the cost of a cherished protection,” i.e., the right to a jury trial. We concluded, “We hold that the district attorney does not have the power to force defendants to make such an exchange.”…

With the exception of the majority’s and conclusion on the “alternative order” issue, I concur in the judgment.

The majority holds imposition of sentence under Code of Civil Procedure section 1209 et seq. violates due process because petitioners were neither charged nor tried under that section. (Maj. opn., ante, at pp. 1249-1253.) The majority cites no authority for this conclusion. However, it appears to me, that one who commits a Penal Code section 11229 contempt necessarily also commits a contempt under Code of Civil Procedure section 1209, subdivision (a) 5; the former is the violation of a specific court order, and the latter is the violation of “any” court order. Moreover, I fail to see how the seven-day court trial in this case would have been different had the *1259 parties been notified and proceeded from the start of this litigation under the Code of Civil Procedure; the same procedures, protections and standard of proof applied. Accordingly, I cannot imagine in what way petitioners’ due process rights might have been prejudiced in this case.

The petition of real party in interest for a rehearing was denied February 1, 1990. Panelli, J., was of the opinion that the…

John K. Van de Kamp, Attorney General, Daniel J. Kremer and Steve White, Chief Assistant Attorneys General, William D. Stein and John H. Sugiyama, Assistant Attorneys General, Clifford K. Thompson, Dane R. Gillette, Aileen Bunney and Christopher J. Wei, Deputy Attorneys General, Arlo Smith, District Attorney, and Bernard Walter, Deputy District Attorney, for Real Party in Interest.

OPINION

EAGLESON, J.

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

Petitioners seek review of the judgment of contempt entered pursuant to section 11229, which imposed on them substantial fines and six-month jail terms. The principal question presented by their petition for writ of certiorari is whether persons charged with contempt under section 11229 are entitled to a jury trial under the California or United…