Opinion
As Modified on Denial of Rehearing July 6, 1984.
Opinions on pages 1021-1050 omitted.
HEARINGS GRANTED
Hearing Granted Sept. 13, 1984.
[203 Cal.Rptr. 380]Michael Kennedy, P.C., Thomas Steel, Emily Graham, San Francisco, Michael Kennedy, P.C., Joseph Caliore, New York City, Robert Thorp, San Francisco, Dennis Roberts, P.C., Oakland, for plaintiffs and appellants.
John K. Van de Kamp, Atty. Gen., Daniel J. Kremer, Chief Asst. Atty. Gen., Crim. Div., Clifford K. Thompson, Christopher J. [203 Cal.Rptr. 381] Wei, Deputy Attys. Gen., Arlo E. Smith, Dist. Atty., Bernard Walter, Deputy Dist. Atty., San Francisco, for real party in interest.
HANING, Associate Justice.
In this certiorari proceeding, James and Artie Mitchell and Vincent Stanich seek review and reversal of a contempt judgment. Respondent court found each of the three guilty of 62 contempts arising out of the operation of the Mitchell Brothers O'Farrell Street Theater in San Francisco, and imposed jail terms and substantial fines. The parties agree that the number of separate contempt adjudications must in any event be reduced from 62 to 56. We conclude that as so modified the contempt judgment may be affirmed as to each of the Mitchells, but that as to Stanich the judgment must be reversed.
The Mitchells are the proprietors of the theater; Stanich is their theater manager. The nature of the entertainment offered led the district attorney to commence an action in respondent superior court under the Red Light Abatement Law (Pen.Code, § 11225 et seq.) and to obtain a preliminary injunction against, among other things, "[a]llowing the occurrence, continuance or recurr[e]nce of acts of lewdness or prostitution upon the premises...." When the district attorney subsequently alleged that the Mitchells and certain others had violated the preliminary injunction, respondent court issued an order to show cause and conducted a lengthy nonjury hearing.
Respondent court summarized its factual findings succinctly: "For the purposes of analysis, 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 of contempt elaborated on these findings. All of the findings are amply supported by the record.
Respondent court found each of the Mitchells and Stanich guilty of 62 separate acts of contempt. It imposed six-month jail terms for each act, to be served concurrently, and fines of $1,000 for each act on each of the Mitchells and of $100 for each act on Stanich. Execution of the sentences was stayed pending review. The Mitchells and Stanich petitioned for a writ of certiorari; we issued the writ.
Stanich
The proceedings against Stanich are vitiated by a simple but fundamental omission: He was named neither as a defendant in the complaint, nor in the order to show cause re contempt, nor in the affidavits in support of the order to show cause. While Stanich was personally served with the order to show cause, and did appear personally and by counsel at the contempt hearing, the omissions left respondent court powerless to proceed against him. (Cf. Arthur v. Superior Court (1965) 62 Cal.2d 404, 407-408, 42 Cal.Rptr. 441, 398 P.2d 777.) We reverse the contempt judgment insofar as it applies to Stanich.
The preliminary injunction
At oral argument petitioners urged us to consider, as a threshold issue, the validity of the underlying preliminary injunction. Of course, "[a] contempt adjudication cannot be upheld if the order violated was itself fatally defective" (5 Witkin, Cal.Procedure (2d ed. 1971) Enforcement of Judgment, § 164, p. 3525); hence, the validity of the underlying order is potentially in issue upon review of this kind of contempt adjudication. But in the circumstances of this case we conclude that the validity issue is not properly before us.
The preliminary injunction, ordered in December 1980, was directly appealable (Code Civ.Proc., § 904.1, subd. (f)). There is authority for the proposition that the defendants could at that point have elected not to attack the preliminary injunction directly but instead to have taken the risk that they might be cited for contempt and then (if the risk materialized) to attack the preliminary injunction collaterally in the contempt proceeding. (2 Witkin, Cal.Procedure (2d ed. 1970) Provisional Remedies, § 111, p. 1540.) The Mitchells and several other defendants chose to attack the preliminary injunction immediately and directly; they filed a timely notice of appeal on February 13, 1981. The appeal was assigned to Division Four of this court, which [203 Cal.Rptr. 382] denied appellants' petition for a writ of supersedeas. Normal appellate briefing, focused on the asserted invalidity of the preliminary injunction, was completed upon filing of appellant's reply brief on April 21, 1982.
The contempt proceedings which we now review were initiated by an order to show cause re contempt April 27, 1982, after the appeal was fully briefed. The contempt adjudication was entered on December 3, 1982, and the petition for writ of certiorari was filed on January 4, 1983. The petition attacked the contempt proceeding itself, on grounds relevant to the sufficiency of the evidence, the propriety of the procedures followed, and the nature of the conduct found to be contemptuous; consistent with the Mitchells' earlier election to pursue the validity issues directly, by appeal, the petition did not question the validity of the preliminary injunction. Opposition was received and we issued the writ of certiorari to bring up the record, specifying in the writ that any further written argument by any party be submitted on or before June 20, 1983. Oral argument was first set for July 5, 1983; at petitioners' request we continued oral argument to August 18 and then to October 4, 1983.
An earlier order to show cause had culminated in a finding that the defendants had not been guilty of contempt.
Eleven days before the twice-continued oral argument date, petitioners submitted an "Application for Permission to File Additional Memorandum," asserting that the memorandum "addresses important federal and state constitutional issues which were not adequately addressed in the prior briefs on this Petition. Petitioners believe that this memorandum will assist this Court in fully and fairly treating the basic underlying constitutional issues presented in the original Petition." But the "additional memorandum" itself went substantially beyond this bland description, undertaking for the first time in this certiorari proceeding directly to attack the validity of the preliminary injunction.
With this new application before us, and in course of preparation for oral argument, we determined that the pending appeal, expressly directed to the validity of the preliminary injunction, had not yet been decided. Appreciating the potential significance of the validity issue to the contempt proceedings, we ordered the writ of certiorari off calendar pending disposition of the appeal. A few days later we routinely granted defendants' application to file their "additional memorandum."
On October 31, 1983, counsel for petitioners herein substituted into the appeal as counsel for appellants and immediately moved in Division Four to consolidate the appeal with this certiorari proceeding and to submit additional appellate briefing along the lines of the "additional memorandum." Consolidation was denied but Division Four granted leave to submit additional briefing. Appellants then abruptly dismissed the appeal and filed a letter in this certiorari proceeding in which they stated that "[t]he preliminary injunction appeal has been dismissed in order to clear the way for a single and expeditious decision of the weighty constitutional issues presented by this contempt [sic] petition...." At oral argument counsel for petitioners sought to argue that the preliminary injunction is constitutionally invalid.
The petition for writ of certiorari does raise constitutional issues, which we shall discuss below. But prior to September 23, 1983, petitioners had given this court no indication that they intended to raise herein the validity issues which had been extensively briefed in the pending appeal: To that point, the petition for writ of certiorari had been submitted, briefed, and granted without reference to the validity issues, and the time specified for additional written briefing had long since passed. Petitioners had patently (and, in the interest of orderly resolution of disputes, preferably) elected to attack the preliminary injunction directly, by appeal. By ordering the certiorari proceeding off calendar pending disposition of the appeal, we sent what we believe was a clear message that the validity issues should be resolved, if at all, in the appeal where they had been directly addressed and long since fully briefed. By their subsequent tactics petitioners must be deemed to have disregarded our message, attempted to circumvent denial of their consolidation motion, and sought to rescind their initial election of appellate remedies. We cannot countenance so palpable a misuse of judicial resources. The [203 Cal.Rptr. 383] validity issues are not timely raised, and will not be considered, in this proceeding.
Cognizable contentions
Of the seven remaining contentions properly before us, the People concede two: It sufficiently appears (1) that in totaling its findings respondent court made an arithmetic error, stating that there were 62 acts of contempt when it had made express findings as to only 61 acts, and (2) that of the 61 express findings five were based on evidence contained in declarations which, the court had ruled, "will not be considered as evidence forming a basis for any contempt action." It follows that the Mitchells may be punished for, at most, 56 separate acts of contempt.
The Mitchells' remaining contentions are:
(1) That the Mitchells were entitled to, but denied, a jury trial of the contempt charges.
(2) That to arrive at multiple punishable acts of contempt respondent court improperly purported to divide an indivisible course of conduct.
(3) That none of the "performances" was in the relevant sense lewd.
(4) That none of the "performances" was obscene in the sense necessary to place it beyond the protection of the First Amendment.
(5) That none of the "performances" was an act of prostitution.
We conclude that none of these contentions has merit.
Jury trial
The Mitchells contend that the penalties imposed were criminal rather than civil and serious rather than petty, and therefore that under the federal Constitution they were entitled to the jury trial which they had requested but which was denied to them.
The People respond that the contempt proceeding was in essence civil and that neither the jail terms nor the fines may (in all the circumstances) be regarded as serious, and that on either ground jury trial was properly denied. Alternatively the People argue that should this court reject both of their grounds it can properly "reduce the fines to a non-serious level," and thus vitiate the jury demand, by modifying the contempt adjudication without remanding the proceeding to respondent court.
Historically, contempts could be punished without jury trial. (Cf. Green v. United States (1958) 356 U.S. 165, 183-185, 78 S.Ct. 632, 642-643, 2 L.Ed.2d 672.) Beginning in 1964, a series of United States Supreme Court opinions established a new rule, based in the federal Constitution but applicable in both state and federal courts: An alleged contemnor is entitled to jury trial of the contempt issue if the alleged contempt (1) is criminal rather than civil and (2) is serious rather than petty. (United States v. Barnett (1964) 376 U.S. 681, 694, fn. 12, 84 S.Ct. 984, 991, fn. 12, 12 L.Ed.2d 23; Cheff v. Schnackenberg (1966) 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629; Bloom v. Illinois (1968) 391 U.S. 194, 197-210, 88 S.Ct. 1477, 1479-486, 20 L.Ed.2d 522; Dyke v. Taylor Implement Co. (1968) 391 U.S. 216, 219-220; Frank v. United States (1969) 395 U.S. 147, 148-152, 89 S.Ct. 1503, 1504-507, 23 L.Ed.2d 162; Taylor v. Hayes (1974) 418 U.S. 488, 495-496, 94 S.Ct. 2697, 2701-702, 41 L.Ed.2d 897; Codispoti v. Pennsylvania (1974) 418 U.S. 506, 515-518, 94 S.Ct. 2687, 2692-694, 41 L.Ed.2d 912; Muniz v. Hoffman (1975) 422 U.S. 454, 475-477, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319; cf. Witkin, Cal.Crim.Procedure (1983 supp.) Trial, § 330B, pp. 441-443.) The rule is simple enough in the abstract but often difficult to apply. Here the parties differ sharply both as to whether the contempts were criminal and as to whether they were in the relevant sense serious.
1. Criminal or civil?
The parties appear to agree that the proper approach to the question whether the contempt is criminal or civil is that which one federal court has called the "sanction test": "To distinguish criminal from civil contempt it is necessary to determine the nature and purpose of the sanction sought and imposed. This is especially true where, as here, the contumacious act may be either criminal or civil. [Citations.] [p] Under the sanction test if the purpose of the relief is to compel the respondent to comply or to compensate the petitioner for the refusal, the contempt proceeding is civil in nature. If the purpose is to punish the [203 Cal.Rptr. 384] respondent and vindicate the court, the proceeding is criminal." (United States v. Asay (9th Cir.1980) 614 F.2d 655, 659; cf. Note (1950) 23 So.Cal.L.Rev. 592, 593; Shillitani v. United States (1966) 384 U.S. 364, 368-370, 86 S.Ct. 1531, 1534-535, 16 L.Ed.2d 622; cf. also Douglass v. First Nat. Rlty. Corp. (D.C.Cir.1976) 543 F.2d 894, 897-898; Latrobe Steel Co. v. United Steelworkers, etc. (3d Cir.1976) 545 F.2d 1336, 1344.)
We adopt the sanctions test. Under it we readily conclude that the contempt in this case must be classified as criminal. The sanctions respondent court imposed are expressly authorized by the Red Light Abatement Law itself: "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." (Pen.Code, § 11229.) These sanctions are plainly punitive. The Legislature itself uses the word "punishable" and speaks without qualification of "fine" and "imprisonment." The court attached to its order no qualification or other language to suggest either that the sanctions were conditional and could be avoided by compliance with the preliminary injunction (cf. also Douglass v. First Nat. Rlty. Corp., supra, 543 F.2d 894, 898) or that amounts of the fines were in any sense correlated with actual injury to the People.
The People attribute to the Red Light Abatement Law a purely civil, remedial purpose--to abate a public nuisance (cf., e.g., People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal.3d 328, 333, 188 Cal.Rptr. 740, 656 P.2d 1170; People ex rel. Sorenson v. Randolph (1979) 99 Cal.App.3d 183, 188-189, 160 Cal.Rptr. 69)--but patently fail to distinguish between the general purpose of the Law as a whole and the special purpose of section 11229, which plainly authorizes punishment for violation of court orders made in furtherance of the more general purpose.
2. Serious or petty?
The right to jury trial of certain alleged criminal contempts was predicated on the perception that "[c]riminal contempt is a crime in the ordinary sense" to which the constitutional right to jury trial, accorded criminal defendants generally, would apply. (Bloom v. Illinois, supra, 391 U.S. 194, 201-202, 88 S.Ct. 1477, 1481-482, 20 L.Ed.2d 522.) Pursuing the analogy further the United States Supreme Court, having recognized that petty crimes do not invoke a constitutional right to jury trial (cf. Duncan v. Louisiana (1968) 391 U.S. 145, 159, 391 U.S. 194, 88 S.Ct. 1444, 1452, 20 L.Ed.2d 491), concluded that the right to jury trial would not extend to petty contempts and that for this purpose the distinction between petty and serious contempts would be drawn in terms of penalty. (Dyke v. Taylor Implement Co., supra, 391 U.S. 216, 219-220, 88 S.Ct. 1472, 1474, 20 L.Ed.2d 538.)
With respect to imprisonment the United States Supreme Court has drawn a line at six months: If the Legislature has expressly authorized a maximum term of imprisonment greater than six months for a single contempt then the contempt is serious, and the contemnor is entitled to a jury trial, without reference to the length of the term ultimately imposed. But if the Legislature has specified a maximum term of six months or less, or has not set a maximum term, then the term actually ordered by the court will be examined: Where no maximum has been set, imprisonment for six months or less will indicate a petty contempt while a longer term will indicate a serious contempt. Where a maximum term of six months or less has been set, problems of definition will arise only when a court undertakes to punish multiple contempts. In either instance concurrent terms of not more than six months each will be regarded as "equivalent to a single sentence" which will meet the six-month test for petty contempt. (Taylor v. Hayes, supra, 418 U.S. 488, 495-496, 94 S.Ct. 2697, 2701-702, 41 L.Ed.2d 897; cf. Maita v. Whitmore (9th Cir.1974) 508 F.2d 143, 145-146.)
Here the concurrent six-month jail terms, considered alone, would appear to meet the test for petty contempt.
With respect to fines the United States Supreme Court has adopted a different approach. It has acknowledged the United States Code definition of petty offenses as those crimes "the penalty for which does not exceed imprisonment for a period of six months or a fine of not more than $500, or [203 Cal.Rptr. 385] both" (18 U.S.C. § 1(3)) but "accorded it no talismanic significance," at least with respect to fines: "[W]e cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. It is one thing to hold that deprivation of an individual's liberty beyond a six-month term should not be imposed without the protections of a jury trial, but it is quite another to suggest that, regardless of the circumstances, a jury is required where any fine greater than $500 is contemplated. From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor, imprisonment and fines are intrinsically different." (Muniz v. Hoffman, supra, 422 U.S. 454, 477, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319.) The court concluded that a $10,000 contempt fine (unaccompanied by imprisonment) levied against a large labor union was not of such magnitude as to invoke a right to jury trial. (Ibid.) Implicitly the question whether a given fine reflects a judgment that a given contempt is serious is to be approached ad hoc.
Lower federal courts have differed as to the impact of Muniz. (Compare Douglass v. First Nat. Rlty. Corp., supra, 543 F.2d 894, 901-902; U.S. v. Professional Air Traffic Controllers (1st Cir.1982) 678 F.2d 1, 4-5, and United States v. McAlister (10th Cir.1980) 630 F.2d 772, 774, with Girard v. Goins (8th Cir.1978) 575 F.2d 160, 164-165.)
Our own analysis satisfies us that the Muniz approach to fines extends to contempt proceedings involving individuals and should be applied to proceedings under the Red Light Abatement Law: In our view the Legislature's determination, reflected in Penal Code section 11229, that contempt of a Red Light Abatement Law injunction or order should be punishable by a fine as large as $1,000, does not constitute a legislative determination that such a contempt is a serious crime within the meaning of the constitutional guarantee of jury trial in serious criminal cases. We conclude, to the contrary, that a fine of $1,000 for each act of contempt, to be assessed (as in this case) against proprietors of an enterprise which is in essence commercial if illegal, should be deemed petty for purposes of jury-trial analysis. It follows that the Mitchells were not entitled to jury trials under the federal constitution.
In their petition the Mitchells argued that they were entitled to jury trial not only under the federal constitution but also on "independent grounds" provided by the California Constitution and judicial decisions: They relied in particular on Mills v. Municipal Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 and Safer v. Superior Court (1975) 15 Cal.3d 230, 124 Cal.Rptr. 174, 540 P.2d 14. The Mitchells did not renew this contention at oral argument. We are satisfied that while California courts recognize and apply the federal standards analyzed above they have repeatedly declared that there is no independent California right to jury trial in this kind of contempt proceeding. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 133 fn. 25, 116 Cal.Rptr. 713; In re Morelli (1970) 11 Cal.App.3d 819, 850, 91 Cal.Rptr. 72; Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 Cal.App.2d 370, 371-375, 72 Cal.Rptr. 177; cf. also International Molders etc. Union v. Superior Court (1977) 70 Cal.App.3d 395, 409, 138 Cal.App.3d 794.) Mills is distinguishable: It dealt with misdemeanors charged as such under the appropriate provisions of the Penal Code, and with the manner in which rights may be waived upon entry of a guilty plea to such charges. Safer adverts to the issue in dictum but expressly declines to analyze it.
Respondent court purported to sentence the Mitchells, alternatively, under both Penal Code section 11229 (as set forth above) and Code of Civil Procedure section 1218 (5 days in jail for each separate contempt, with 36 of the sentences to run consecutively for a total of 180 days in jail). Without passing upon the propriety of this alternative-sentencing procedure we note that had the Mitchells been so sentenced under Code of Civil Procedure section 1218 it would have been even clearer that they were not entitled to a jury trial, even if they had received 5 days for each separate contempt, for a total of 280 days.
Course of conduct
The Mitchells contend that respondent court found multiple acts of contempt "by separately counting each performer on [203 Cal.Rptr. 386] each date in each show in each interaction with a patron and each stage performance," and that this approach disregarded the fact that petitioners were engaged in a single indivisible course of conduct which could constitute no more than a single punishable contempt (or, at most, four contempts, one for each of the days on which the acts complained of were observed).
The Mitchells rely on Penal Code section 654, which has been held applicable to criminal contempts. (In re Farr (1976) 64 Cal.App.3d 605, 613, 134 Cal.Rptr. 595.) While Farr dealt with multiple prosecution, in practice section 654 has been deemed primarily a proscription against multiple punishment for single acts or omissions. In People v. Perez (1979) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, the Supreme Court concluded that the purpose of the section "is to insure that a defendant's punishment will be commensurate with his culpability. [Citation.].... [p] ... [I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.... [p] On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (23 Cal.3d at pp. 550-551, 153 Cal.Rptr. 40, 591 P.2d 63.)
Perez' analysis rationalizes the separate punishments imposed in this action. None of the individual acts was a means of accomplishing any other. The Mitchells' culpability increased with each new "act[ ] of lewdness or prostitution," performed in patently knowing and flagrant disregard of the preliminary injunction and with the undeniable knowledge and approval of the Mitchells. We reject the Mitchells' contention.
Lewdness
The Mitchells contend that in determining that the conduct in question had been lewd respondent court made "a number of legal errors": (1) By concluding that the absence of persons actually offended was irrelevant; (2) by relying on a decertified opinion for the proposition that a police officer may constitute an offended person; and (3) by misconstruing another opinion to support the proposition that the theater was necessarily a public place. The Mitchells argue that the conduct was not in the requisite sense lewd.
The preliminary injunction proscribed "acts of lewdness." Construed to meet constitutional standards of specificity, subdivision (a) of Penal Code section 647 (which criminalizes lewd conduct, and solicitation to engage in such conduct, in public places) prohibits "only the solicitation or commission of conduct in a public place or one open to the public or exposed to the public view, which involves the touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct." (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 244, 158 Cal.Rptr. 330, 599 P.2d 636.) All parties appear to agree that the Pryor definition is applicable in this Red Light Abatement Law context.
The Mitchells first argue that under Pryor there could not be lewdness in the requisite sense unless there is actually present a person who might be offended: The mere possibility that such a person is present will not suffice. The Mitchells' statement of the standard is correct, but so far as the record reflects this is the standard which respondent court applied.
[203 Cal.Rptr. 387]For the proposition that the person who is present and might be offended may be a police officer, respondent court cited a Court of Appeal opinion which had been decertified by the Supreme Court. The Mitchells correctly contend that, in general, a decertified opinion may not be cited (rule 977(a), Cal.Rules of Court), but of course the crux of the Mitchells' argument is that the proposition is untenable: "[T]o hold that an act is lewd because it shocks, offends, or disgusts a police officer or investigator specifically assigned to attend a performance would," the Mitchells contend, "be extending the scope of Penal Code § 647(a) far beyond its intended purpose."
The Mitchells themselves may have misunderstood the Pryor standard. The evidence is that the officer-witnesses were working undercover and would have appeared to defendants and "performers" to be ordinary persons with ordinary susceptibility to behavior of the kind described in Pryor. That the persons were in fact officers from the pornography detail would be no more relevant than the fact (if it were a fact) that the officers were not offended.
To meet the Pryor definition it was essential that the conduct in question have occurred "in a public place or one open to the public or exposed to public view." In People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 410, 166 Cal.Rptr. 519, a Court of Appeal found that a certain "dirty bookstore" was open to the public but suggested in passing that the bookstore's live "performers" might not be deemed to be performing in a public place or with a reasonable expectation that some of the customers were likely to be offended "if the public was alerted upon entry to such possibilities." (Ibid., fn. 4.) Respondent court referred to Adult World Bookstore; the Mitchells contend that respondent court improperly disregarded the opinion's qualification for situations in which the operator has alerted the public. Petitioners argue that "[i]t is virtually impossible for an unknowing arts patron to stumble unaware into any of the shows which are the focus of the instant case. The Mitchell Brothers have gone to great pains to advertise the nature of the performance...." It is clear that respondent court found to the contrary; there is sufficient evidence to support respondent court's conclusion.
Finally, the Mitchells argue in necessary effect that it may be concluded as a matter of law that the "performers" within the walls of the O'Farrell Street Theater had no reason to suppose that any paying customer--meaning everyone present other than employees of the establishment--would be offended by experiencing what he or she had paid to experience. This is in essence a reprise of the Mitchells' last previous argument, and the answer is the same: The record sufficiently shows that the Mitchells did not make full disclosure in their newspaper ads, outdoor signs, and lobby displays.
Obscenity
The Mitchells, implicitly relying on a theory that the "performances" were forms of expression protected by the First Amendment, contend that the First Amendment would extend to both "onstage" and "offstage" acts and that in any event respondent court failed to articulate or to apply "appropriate constitutional and statutory standards" in concluding that at least the "onstage" acts were obscene and thus not entitled to First Amendment protection.
Respondent court approached the obscenity issue with some care. Orthodox analysis proceeds in two steps: (1) Is there any form of communication such as to invoke First Amendment protections in the first place? (2) If (but only if) there is communication, does the communication forfeit First Amendment protections because it is obscene? Respondent court followed this line of analysis. First the court addressed the communication issue, with particular reference to the "theater exception" applied in Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 [203 Cal.Rptr. 388] P.2d 483, to the performance of a play, concluding "that the 'entertainment' in question was not a theatrical performance within the meaning of the Barrows exception." Alternatively respondent court expressly found that each instance of "onstage conduct" was obscene; implicitly the court concluded that offstage conduct would not be deemed communication in any event.
The record fully supports respondent court's explicit and implicit conclusions. (Cf. Pen.Code, § 311, subd. (g).) In any event the evidence of obscenity in this record is too vivid to admit of quibbling over the question whether there was "communication," onstage or off.
Prostitution
The Mitchells contend that in concluding in the alternative that certain of the acts in question constituted prostitution respondent court "utilized an unconstitutionally vague and legally incorrect definition of the crime of prostitution" and relied on an appellate opinion which has been vitiated by changes in the law.
The preliminary injunction proscribed "acts of...prostitution." Respondent court found it "clear beyond a reasonable doubt that the conduct both on and off the stage constituted acts of prostitution"; its finding was relevant both to the specific provision of the preliminary injunction and (in light of People v. Drolet (1973) 30 Cal.App.3d 207, 105 Cal.Rptr. 824) to the issue whether the acts in question were protected by the First Amendment.
The Mitchells first except to respondent court's definition of "prostitution." The definition appears to have been taken directly from Penal Code section 647, subdivision (b): " '[P]rostitution' includes any lewd act between persons for money or other consideration." The Mitchells argue that the statutory definition itself is overbroad but that in any event it must be held to incorporate the entire Pryor definition of lewdness in order to meet constitutional standards of specificity. The short answer is that all the elements the Mitchells propose are adequately shown in this record: touching of the kinds specified in Pryor, for a cash consideration, in a place open to the public and in the presence of persons who might be offended. Read as a whole respondent court's findings are sufficient as to all these elements.
The Mitchells' final contention is that the Drolet holding has been vitiated by subsequent relaxation of the rules relating to private conduct between consenting adults. Again there is a short answer: Drolet is not essential to respondent court's adequate and adequately-supported findings of prostitution.
Insofar as it applies to Vincent Stanich the judgment of contempt is reversed. Insofar as it applies to James Mitchell and Artie Mitchell the judgment is modified by reducing the number of separate acts of contempt adjudged therein from 62 to 56; as so modified the judgment is affirmed as to James Mitchell and Artie Mitchell.
LOW, P.J., and KING, J., concur.