Petition for Writ of Certiorari — Maita v. Superior Court of California

Constitutional provisions and statutes involved ............ 3

Statement of facts ...........cceeece cece cece neeeeneeees 5

Reasons for granting the petition as to question one ........ 8

Did the Superior Court deny petitioner his right to

trial by jury in violation of the Sixth Amendment to

the United States Constitution made applicable to the

States through the Fourteenth Amendment? ........ 8

APgQUMENt ...... cece cece cece eee eee eee eee e tena ceenees 8

As to question tWO ......... eee cece cece rennet tee etees 11

Do California Penal Code Sections 11225, 11226, 11227,

11228 and 11229, as interpreted by the California

courts, and as applied to petitioner, constitute a statu-

tory scheme for the prior restraint of material pre-

sumptively protected by First Amendment? ......... 11

AYQUMENE 2.0... cee cece ee eee eee renee e eee eee e ene eeees 11

ee i ik conse dndbbectbaeeebenddeetcredesceses® 13

Table of Authorities Cited

Cases Pages

Baldwin v. New York, 399 U.S. 66, 26 L.Ed.2d 437, 90 S.Ct.

18BE (1970) ....... cece cccccccccscsccveccnccccccners 8,10

Burstyn v. Wilson, 343 U.S. 495, 96 L.Ed. 1098, 72 S.Ct.

en epererrrrerrrrrerrrrrrrrerrr frrrirrrr 12

Chambers v. District of Columbia, 90 U.S.App. D.C. 153,

194 F.2d 336 (D.C. Cir. 1952) (right to counsel) ...... 10

Cheff v. Schnackenburg, 384 U.S. 373, 16 L.Ed.2d 629, 86

S.Ct. 152B (1966) ......... ccc cece cccncccccccevecees 8

Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88

S.Ct. 1444 (1968) ........ cece cece secre ecceeeee pibbur 9,10

ii TABLE OF AUTHORITIES Crrep

P.

Frank v. United States, 395 U.S. 147, 23 L.Ed.2d 162,

SD. F.0t. 1508 -(1969) icc ccc ciccccccsccccecc leet

S.Ct. 734 (1965) :GbWie Biba ehekenestkds doen 12

James v. Headley, 410 F.2d 325 (5 Cir. 1969) veseeneeenad 10

Memoirs v. Massachusetts, 383 U.S. 418, 16 L.Ed2d 1, 86

GAR. BUS (AGG8)oisici ciccises lees adic euid 12

Near v. Minnesota, 283 U.S. 697, 75 L.Ed. 1857, 51 S.Ct.

CP: CODER) oe saiiswedy sk du Wetioas ccd. biawiabs ever 12

People v. Loeber (1958) 158 Cal.App.2d 730, 323 P.2d 136,

appeal dismissed 358 U.S. 139, 3 L.Ed.2d 226, 79 S.Ct.

See” Tse OA SO SS. Ha x

Roth v. United States, 354 U.S. 476, 1 L.Ed2d 1498, 77

WO MIE Sacdceseccadeiusceudescidtcdiccsdccca fet 11, 12

State v. Koscot Interplanetary Inc. (1972) 330 N.Y.S.2d

WU S4dcuateubhereiaster kat cureckkecs aoe ee ee 10

State v. Owens (1969) 54 N.J. 153, 254 A2d97.......... 10

United States v. R. L. Polk & Co., 438 F.2d 377 (6 Cir.

UE wiih eBid iia palit eee a | 9,10

Williams v. Florida, 399 U.S. 78, 26 L.Ed.2d 446, 90 S.Ct.

NE SNE: <-eahcue wishes naka kdbb ae medeoeekouknacicins 9

Codes

California Penal Code:

NE Mn ubRass Soa Liubleed déselels kucseesoeeedn. 8

ea i ek i 2, 3, 5, 11, 12

EE inchs vaab ace wns bdabaee doweeciierl 2,3, 11

RETR pret a 2, 4, 5,11

SE ME 8 os oR oe cn hs nbd ceed e ckwe cn cea 2, 4,11

REI ek Se eee a eR LLSS 2 2,5, 9,11

Constitutions

United States Constitution :

Prue On Bog i se cen deadicdeddeccncie 3,12

PID So oss So de duiecibcceavwawecce 2,3, 9,11

Fourteenth Amendment ............................ 2,3,9

Statutes

Inu the Supreme Court

OF THE

Runited States

OcrToBER TERM, 1972

No.

Pui JoserH Marta, Petitioner,

Vs.

Superior Court OF THE STATE OF CALIFORNIA,

Respondent.

Tue PEOPLE OF THE STATE OF CALIFORNIA,

Real Party in Interest.

PETITION FOR WRIT OF CERTIORARI

to the Superior Court of the State of California,

in and for the County of San Mateo

Petitioner Philip Joseph Maita prays that a writ

of certiorari issue to review the judgment of the

Superior Court of the State of California in and for

the County of San Mateo.

OPINION BELOW

The Judgment and Order of the Superior Court

(People v. Maita and Vennemeyer, No. 149826) is

set forth in Appendix A.

——

2

The order of the Court of Appeal denying the

Petition for Writ of Habeas Corpus/Certiorari is set

forth in Appendix B.

The order of the California Supreme Court denying

Petition for Hearing of Habeas Corpus/Certiorari is

set forth in Appendix O.

JURISDICTION

The order of the California Supreme Court denying

petitioner’s Petition for Hearing was entered June

15, 1972.

The jurisdiction of this Court is invoked pursuant

to the provisions of 28 U.S.C. Section 1257(3).

QUESTIONS PRESENTED

ONE

Did the Superior Court deny petitioner his right to

trial by jury in violation of the Sixth Amendment

to the United States Constitution, made applicable to

the States through the Fourteenth Amendment?

Two

Do California Penal Code Sections 11225, 11226,

11227, 11228 and 11229, as interpreted by the Cali-

fornia courts, and as applied to petitioner, constitute

a statutory scheme for the prior restraint of material

presumptively protected by the First Amendment?

—

3

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

_ The First, Sixth and Fourteenth Amendments to

the Constitution of the United States, as follows:

First Amendment: “Congress shall make no

law ... abridging the freedom of speech. . .

Sixth Amendment: “In all criminal prosecu-

tions, the accused shall enjoy the right to a speedy .

and public trial, by an impartial jury. . .”

Fourteenth Amendment: “Nor shall any state

deprive any person of life, liberty or property

without due process of law. . .” : q

California Penal Code Sections 11225 et seq., as

follows:

§ 11225. 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, assigna-

tion or prostitution, are held or occur, is a nuisance

which shall be enjoined, abated and prevented,

whether it is a public or private nuisance. :

Nothing in this section shall be construed to

apply the definition of a nuisance to a private

residence where illegal gambling is conducted on

an intermittent basis and without the purpose of

producing profit for the owner or occupier of |

the premises. ;

§ 11226. 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

PERRET EAM OR TE

%

¢

Ree RET TS TO TOL Naa mS Mme FOMEIRS REN A? SEER APE ENN TR OT IS

4

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 per-

mitting it.

§ 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 injune-

tion to abate and prevent the continuance or re-

currence of such nuisance.

§ 11228. Actions brought under this article

have precedence over all actions, excepting crim-

inal proceedings, election contests and hearings

on injunctions, and in such actions evidence of

the general reputation of a place is admissible

for the purpose of proving the existence of a

nuisance. If the complaint is filed by a citizen,

it shall not be dismissed by the plaintiff or for

want of prosecution except upon a sworn state-

ment made by the complainant and his attorney,

setting forth the reasons why the action should be

dismissed, and the dismissal ordered by the court.

In case of failure to prosecute any such action

with reasonable diligence, may substitute any

other citizen consenting thereto for the plaintiff.

If the action is brought by a citizen and the court

finds there was no reasonable ground or cause

therefor, the costs shall be taxed against such

citizen,

5

§ 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.

STATEMENTS OF FACTS

Petitioner Philip Joseph Maita has for the past

eight years owned a bar in San Mateo, California. In

addition to alcoholic beverages, the “Kasy Street,” as

the premises are called, offers entertainment to its

patrons.

On December 11, 1969, the Distriet Attorney of San

Mateo County filed a civil complaint against peti-

tioner and the owner of the building in which the

Easy Street is located. The complaint alleged, pur-

suant to Section 11225 of the California Penal Code,

that the entertainment presented on the premises con-

stituted a public nuisance. The complaint prayed for

injunctive relief to abate the nuisance.

Pursuant to California Penal Code Section 11227,

the San Mateo County Superior Court on January

27, 1970, issued its temporary injunction enjoining

petitioner from presenting certain types of films and

other entertainment to adult patrons on his premises.

Petitioner sought relief from this injunction through

the California courts without success.

PT IOT EPL

On September 14, 1971, the temporary injunction

was modified pursuant to stipulation between peti-

tioner and the San Mateo County District Attorney.

The injunction as modified continued to enjoin certain

types of films and other entertainment.

On February 2, 1972, petitioner was served with an

order to show cause charging him with four counts

of contempt of court for violating the preliminary

injunction of January 27, 1970, as modified Septem-

ber 14, 1971. The order to show cause charged that

on each of four dates in January of 1972, petitioner

exhibited sexually explicit films and permitted nude

cocktail waitresses on his premises, all in violation of

the injunction.

Each of the four counts of contempt of court with

which petitioner was charged carried a maximum

penalty of six months in the county jail and/or a

$1,000 fine.

Petitioner appeared in San Mateo County Superior

Court on February 17, 1972. He requested a trial by

jury; this request was denied. Petitioner also moved

to quash the order to show cause, upon the ground

that the temporary injunction of January 27, 1970,

as modified September 14, 1971, was a prior restraint

on matter presumptively protected by the First

Amendment. This motion was denied.

Thereafter the Superior Court took testimony from

the People and from petitioner. The District Attor-

ney offered no proof that the films which constituted

one of the bases of the contempt citation were

obscene.

7

On March 3, 1972, the Superior Court held peti-

tioner in contempt of court on each of the four counts

charged. Petitioner was sentenced to six months in

the county jail on Count One, with four of the six

months suspended. He was sentenced to sixty days in

the county jail on each of the other three counts, with

these sentences to be served concurrent to the sen-

tence imposed on Count One. Petitioner was also

ordered to pay a fine of $1,000 on Count One, and

$500 on each of Counts Two, Three and Four, for a

total of $2,500.

Since a judgment of contempt is not appealable

under California law, petitioner sought relief on

habeas corpus and certiorari from the Court of

Appeal. This was denied on May 19, 1972. The Cali-

fornia Supreme Court denied a hearing on June 15,

1972.

Thereafter on June 26, 1972, the Honorable Wil-

liam O. Douglas, Associate Justice of the United

States Supreme Court, issued an order staying the

judgment of the San Mateo County Superior Court

pending the filing and adjudication of a petition for

writ of certiorari in the United States Supreme Court

(No. A-1324).

REASONS FOR GRANTING THE PETITION

AS TO QUESTION ONE

DID THE SUPERIOR COURT DENY PETITIONER HIS RIGHT To

TRIAL BY JURY IN VIOLATION OF THE SIXTH AMEND.

MENT TO THE UNITED STATES OONSTITUTION MADE

APPLICABLE TO THE STATES THROUGH THE FOUR

TEENTH AMENDMENT?

ARGUMENT

The trial court denied petitioner’s request for trial

by jury upon the ground that petitioner was charged

with a petty offense under Cheff v. Schnackenburg,

384 U.S. 373, 16 L.Ed.2d 629, 86 S.Ct. 1523 (1966)

and therefore was not entitled to trial by jury. (See

Appendix D).

In Baldwin v. New York, 399 U.S. 66, 69, 26 L.Ed.

2d 437, 90 S.Ct. 1886 (1970), this Court concluded

that “no offense can be deemed ‘petty’ for purposes

of the right to trial by jury where imprisonment for

more than six months is authorized.” Petitioner was

charged with four separate counts of contempt, cach

of which carried a possible penalty of imprisonment

for six months and a $1,000 fine.

Under California law, the Superior Court had the

right in its discretion to order that sentences on each

count be made to run consecutively. California Penal

Code Section 669; People v. Loeber (1958), 158 Cal.

App.2d 730, 323 P.2d 136, appeal dismissed 358 U.S.

139, 3 L.Ed.2d 226, 79 S.Ct. 242. Accordingly, at the

time the Superior Court denied petitioner’s request for

a jury trial, the maximum authorized penalty for the

charges against him was two years imprisonment and

a $4,000 fine.

This Court has cited the maximum authorized pen-

alty as the most relevant criterion for ascertaining

whether an offense is petty for purposes of the right

to trial by jury. Frank v. United States, 395 US.

147, 148, 23 L.Ed.2d 162, 165, 89 S.Ct. 1503 (1969).

An authorized penalty of two years’ imprisonment

was held to require a jury trial in Duncan v. Lowi-

siqana, 391 U.S. 145, 159-160, 20 L.Ed.2d 491, 502, 88

S.Ct. 1444 (1968). It is worth noting that here, as in

Duncan v. Louisiana, supra, the actual sentence im-

posed was sixty days in jail; here, however, petitioner

was also ordered to pay a $2,500 fine.

The significance of the fine is that “the Fourteenth

Amendment guarantees a right to trial by jury in all

criminal cases that—were they to be tried in a fed-

eral court—would come within the Sixth Amend-

ment’s guarantee,” Williams v. Florida, 399 U.S. 78,

86, 26 L.Ed.2d 446, 452, 90 S.Ct. 1893 (1970). In the

federal courts, an offense punishable with a fine of

$1,000.00, as authorized by California Penal Code

§11229, would not be considered a petty offense for

purposes of the right to trial by jury, even leaving

aside the fact that petitioner was charged with four

offenses carrying a possible fine of $1,000.00. U.S. v.

RL. Polk & Co., 438 F.2d 377 (6 Cir. 1971).

U.S. v. R.L. Polk & Co. was a recent federal case

involving a contempt citation against a corporation

with annual sales of approximately $50 million and

net worth of approximately $20 million. Trial by jury

was demanded by the defendant and denied by the

10

court. The District Court thereafter imposed a fine

of $35,000.00. The Court of Appeals reduced the fine

from $35,000.00 to $500.00, holding, upon authority of

Duncan v. Louisiana, supra, “that a fine upon a cor-

poration in excess of $500.00 no longer permits the

underlying offense to be characterized as petty.” U.S.

v. RL, Polk & Co., supra, 438 F.2d at 380. It is

hardly necessary to suggest that if a fine in excess of

$500.00 imposed upon a giant corporation is suffi-

ciently serious to require a jury trial, a fine of

$2500.00 imposed upon an individual defendant is at

least equally serious.

This Court has not yet passed upon the appli-

cability of Baldwin v. New York, supra, to cases

wherein a defendant is charged with multiple counts,

each of which is punishable by a maximum penalty

of six months’ imprisonment. Those State courts

which have dealt with the problem have adopted the

rule that where a jury trial is not granted upon mul-

tiple petty charges, the court in imposing sentence can

impose no greater sentence than that which would be

authorized for a single count. State v. Koscot Inter-

planetary Inc. (1972) 330 N.Y.S.2d 492; State v.

Owens (1969) 54 N.J. 153, 254 A.2d 97. There is

abundant authority for the proposition that the maxi-

mum penalties of multiple counts must be aggregated

to determine whether or not a defendant is on trial

for a petty or serious offense. Chambers v. District

of Columbia, 90 U.S.App. D.C. 153, 194 F.2d 336

(D.C. Cir. 1952) (right to counsel); James v. Head-

ley, 410 F.2d 325 (5 Cir. 1969).

11

To deny the right to trial by jury merely because

a carefully drawn charge does not contain any one

offense carrying more than six months’ imprisonment

would be to authorize prosecutors to seek extremely

serious penalties against defendants without their

being afforded fundamental Sixth Amendment pro-

tection. Petitioner was the victim of precisely such

a process. It poses important questions of federal con-

stitutional law, and warrants a hearing before this

Court.

AS TO QUESTION TWO

DO CALIFORNIA PENAL CODE SECTIONS 11225, 11226, 11227,

11228 AND 11229, AS INTERPRETED BY THE CALIFORNIA

COURTS, AND AS APPLIED TO PETITIONER, CONSTITUTE

In January of 1970 the People of the State of

California obtained an injunction, pursuant to Cali-

fornia Penal Code, which prohibited, iter alia,

“motion pictures . . . simulating the exhibition of

human genitalia,” and sexual activity. As modified in

September, 1971, the injunction continued to pro-

hibit motion pictures simulating acts of sexual con-

duct. See Appendix D.

It is clear that the prohibitions contained in the

injunction do not correspond to the constituent ele-

ments of obscenity. Roth v. United States, 354 U.S.

err oor inenegmanter

ew eee ee Sart per eeess

—

12

476, 489, 1 L.Ed2d 1498, 1509, 77 S.Ct. 1304;

Memoirs v. Massachusetts, 383 U.S. 413, 418, 16 L.Ed.

2d 1, 5, 86 S.Ct. 975 (1966). Since films which are

not obscene are protected by the First Amendment,

Burstyn v. Wilson, 343 U.S. 495, 502, 96 L.Ed. 1098,

1106, 72 S.Ct. 777 (1952), the effect of the injunction

was to enjoin petitioner from showing films presump-

tively entitled to First Amendment protection. (It

should be emphasized that the films which formed the

basis for the contempt citation were not obscene;

indeed, the trial court held that whether or not the

films were obscene was immaterial. See Appendix

D.)

By enjoining the dissemination of constitutionally

protected matter in the future because of alleged

violations in the past, California Penal Code Section

11225 et seq. constitute a prior restraint on free

expression. Near v. Minnesota, 283 U.S. 697, 75 L.Ed.

1357, 51 S.Ct. 625 (1931); Freedman v. Maryland,

380 U.S. 51, 13 L.Ed.2d 649, 85 S.Ct. 734 (1965). The

California statutes, with their reliance upon “public

nuisance” grounds, are remarkably similar to the

Minnesota statutes held unconstitutional in Near v.

Minnesota, supra.

Petitioner was convicted because he exhibited cer-

tain films. These films were not obscene, and no evi-

dence tending to prove that they might be obscene

was ever introduced. The California statutes authoriz-

ing this outrageous result should be held unconstitu-

tional.

—

13

CONCLUSION

For the reasons hereinabove stated, it is respect-

fully submitted that this petition for Writ of Certio-

rari be granted.

Dated, San Jose, California,

September 1, 1972.

DonaLp A. TENENBAUM,

Attorney for Petitioner.

(Appendices Follow)

eT DT Oe See ee.

ee ON eR, EN ey ee Ee Bes Po Ree eae.

Appendix A

In the Superior Court of the State of California

in and for the County of San Mateo

No. 149826

The People of the State of California, |

Plaintiff,

VS.

Philip Joseph Maita, August Vennemeyer,

Defendants. ;

[March 16, 1972]

JUDGMENT OF CONTEMPT AND ORDER

OF COMMITMENT

The People of the State of California to the Sheriff

of the County of San Mateo, State of California,

Greeting :

Whereas on January 27, 1970, a Temporary In-

junction was duly and regularly granted and issued

by the Honorable James T. O'Keefe, Judge of the

above entitled Court, enjoining and restraining

Philip Joseph Maita and August Vennemeyer, their

agents and assignees, and each of them, from conduct-

ing, maintaining, using, occupying, permitting, caus-

ing or exhibiting acts of lewdness constituting a nui-

PPE EE OI rs

eH,

ii

sance upon the premises of Easy Street, 2322 South

El Camino Real, San Mateo, California, as more par-

ticularly described therein; and

Whereas, the said Temporary Injunction was, upon

defendant of the parties as more particularly set forth

in the Order Modifying Preliminary Injunction made

and filed in the above action on September 14, 1971;

and

Whereas, a true and correct copy of the Temporary

Injunction was personally served upon Philip Joseph

Maita by M. L. Greenfield, Inspector in the Office of

the District Attorney, County of San Mateo, State of

California, on January 29, 1970 and a true and cor-

rect copy of the Temporary Injunction was person-

ally served upon August Vennemeyer by Inspector

M. L. Greenfield on January 27, 1970; and

Whereas, on February 2, 1972, certified copies of

Order to Show Cause Re Contempt issued by this

Court on February 2, 1972, and Declaration of

Charles G. De Mar in Support of Order to Show

Cause Re Contempt, including Exhibit “A” Thereto,

dated February 2, 1972, were personally served upon

Philip Joseph Maita, Easy Street, 2322 South El

Camino Real, San Mateo, California and personally

served upon August Vennemeyer, 121 Entrada Court,

San Francisco, California by Inspector M. L. Green-

field, commanding the said Philip Joseph Maita and

August Vennemeyer, and each of them, to appear

before the above entitled Court in Department 9

thereof on February 17, 1972, at the hour of 2

o’clock p.m. and then and there to show cause, if any

iii

they may have, why they and each of them should

not be adjudged guilty of contempt of court and pun-

ished accordingly for wilfully disobeying and violat-

ing the Temporary Injunction heretofore duly

granted and issued on January 27, 1970, as modified

by stipulated Order Modifying Preliminary Injunc-

tion, made and filed September 14, 1971, which

Injunction and the violations thereof by said defend-

ants, and each of them, are more particularly

deseribed in the Declaration of Charles G. De Mar in

Support of Order to Show Cause Re Contempt filed

herein; and

Whereas, at the time and place named in the said

Order to Show Cause Re Contempt namely on Feb-

ruary 17, 1972, and thereafter on February 18, 1972

and March 2, 1972 and March 3, 1972, in and before

Department 9 and Department 1 of the Superior

Court of the State of California, in and for the

County of San Mateo, Plaintiff The People of the

State of California and its counsel H. Kelly Ogle,

Deputy District Attorney, San Mateo County, and

defendant Philip Joseph Maita and his counsel Don-

ald A. Tenenbaum, Esq., and defendant August Venne-

meyer and his counsel James T. Davis, Esq., and each

of them, did appear and proceedings were had on the

disobedience and violations of said Injunction by

defendants, and each of them, as alleged; and

Whereas, oral and documentary evidence having

been introduced, all parties having rested and the

matter submitted to the Court for decision, The Court

Finds:

TRE etre eee

iv

1) The Temporary Injunction dated January 27,

1970, as thereafter modified pursuant to stipulation

of the parties set forth in the Order Modifying Pre-

liminary Injunction dated September 14, 1971, was

duly and regularly granted and made.

2) Defendant August Vennemeyer is one of the

owners of the real property premises known as Easy

Street, 2322 El Camino Real, San Mateo, California; is

a proper party to these proceedings by reason of that

fact, but has not knowingly or wilfully acted in dis-

obedience or violation of said Injunction and is not

in contempt thereof and as to defendant August Ven-

nemeyer only the Order to Show Cause re Contempt

is discharged.

3) Defendant Philip Joseph Maita has at all times

since the granting of the Injunction, and the stipulated

modification thereof, had and now has personal notice

and actual knowledge of each, every and all of the

terms thereof.

4) Defendant Philip Joseph Maita has at all times

since the granting of the Injunction, and the stipulated

modification thereof, had and now has the ability to

comply therewith and confinement in the County Jail

will in no way interfere with his ability to comply

with the Injunction as modified.

5) On January 21, 1972, January 22, 1972, Janu-

ary 23, 1972 and January 24, 1972, and each of said

dates, defendant Philip Joseph Maita at, in and about

his place of business called Easy Street, 2322 South

E] Camino Real, City of San Mateo, County of San

Mateo, State of California, deliberately, wilfully and

v

contemptuously disobeyed, violated and failed to com-

tion thereof in the following particulars:

(a) January 21, 1972: Violated Paragraph 1 of

the original Temporary Injunction by permitting,

causing and exhibiting cocktail waitresses, the geni-

talia and anuses and pubic hair areas of which were

fondling or manipulation of male or female genitalia.

Violated subparagraph 8 of Paragraph 2 of the modi-

fied Injunction by permitting, causing and exhibiting

motion pictures exhibiting or simulating sexual

activity where the genitals of the performers can then

be seen. Violated subparagraph 9 of Paragraph 2 of

the modified Injunction by permitting, causing and

exhibiting motion pictures exhibiting or simulating

the exhibition of male and female humans engaging

in activities prohibited by subparagraphs 2, 4, 5, 6

and 8 of paragraph 2 of the modified Injunction by

the use of drawings or inanimate objects, referring

specifically to the motion picture entitled “Snow White

and the Seven Dwarfs.”

Ee —

FE ens yr ern

. a= err ore

Sone energy

vi

(b) January 22, 1972: Violated Paragraph 1 of

talia and anuses and pubic hair areas of which were

not covered completely by material which could not

be seen through by the nearest spectator. Violated

subparagraph 2 of Paragraph 2 of the modified Injune-

tion by permitting, causing and exhibiting motion

pictures simulating the exhibition of acts of sexual

intercourse by, with and between human beings. Vio-

lated subparagraph 4 of Paragraph 2 of the modified

motion pictures simulating the exhibition of acts of

oral-genital copulation. Violated subparagraph 8 of

Paragraph 2 of the modified Injunction by permitting,

simulating sexual activity where the genitals of the

performers can then be seen.

(ce) January 23, 1972: Violated Paragraph 1 of

the original Temporary Injunction by sti

ing and exhibiti tail wait x ’ x

and anuses and pubic hair areas of which were not

covered completely by material which could not be

seen through by the nearest spectator. Violated sub

paragraph 2 of Paragraph 2 of the modified Injunc-

tion by permitting, causing and exhibiting motion

pictures simulating the exhibition of acts of sexual

intercourse by, with and between human beings. Vio-

lated subparagraph 4 of Paragraph 2 of the modified

Injunction by permitting, causing and exhibiting

motion pictures simulating the exhibition of acts of

vii

oral-genital copulation. Violated subparagraph 8 of

Paragraph 2 of the modified Injunction by permitting,

simulating sexual activity where the genitals of the

performers can then be seen.

(d) January 24, 1972: Violated Paragraph 1 of

the original Temporary Injunction by permitting,

causing and exhibiting cocktail waitresses, the geni-

talia and anuses and pubic hair areas of which were

not covered completely by material which could not

be seen through by the nearest spectator. Violated

subparagraph 4 of Paragraph 2 of the modified In-

junction by permitting, causing and exhibiting motion

pictures simulating the exhibition of acts of oral-

genital copulation. Violated subparagraph 5 of Para-

graph 2 of the modified Injunction by permitting,

causing and exhibiting motion pictures exhibiting or

simulating the exhibition of acts of rectal foreplay,

kissing, touching, caressing, fondling or manipulation

of male or female genitals. Violated subparagraph 6

of Paragraph 2 of the modified Injunction by per-

mitting, causing and exhibiting motion pictures ex-

hibiting or simulating the exhibition of female

masturbation. Violated subparagraph 8 of Paragraph

2 of the modified Injunction by permitting, causing

and exhibiting motion pictures exhibiting or simulat-

ing sexual activity where the genitals of the perform-

ers can then be seen. Violated subparagraph 9 of

Paragraph 2 of the modified Injunction by permitting,

causing and exhibiting motion pictures exhibiting or

simulating the exhibition of male and female humans

&

engaging in activities prohibited by subparagraphs 2,

4, 5, 6, and 8 of Paragraph 2 of the modified Injune-

tion by the use of drawings or inanimate objects,

referring specifically to the motion picture entitled

“Snow White and the Seven Dwarfs.”

6) In failing to comply with the Injunction and

the stipulated modification thereof as aforesaid, de-

fendant Philip Joseph Maita acted deliberately, wil-

fully and contemptuously and for the purpose of

increasing revenue at, in and about his place of

business called Easy Street.

It Is Therefore Ordered And Adjudged that defend-

ant Philip Joseph Maita is in contempt of court as

aforesaid and that he be punished therefor by fine

and imprisonment as follows:

(a) January 21,1972: For deliberate, wilful and

contemptuous disobedience, violations and failure to

comply with the Injunction and stipulated modifica-

tion thereof hereinbefore found to have occurred on

January 21, 1972, defendant Philip Joseph Maita is

sentenced to pay a fine in the sum of One Thousand

Dollars ($1,000.00) without penalty assessment within

ten (10) days, viz., no later than 5 o’clock p.m., March

13, 1972, and if the fine is not paid in full within that

time defendant be incarcerated in the County Jail for

One (1) Day for each Ten Dollars ($10.00) of the

fine not paid and, further, that defendant Philip

Joseph Maita be confined in the County Jail for the

period of Six (6) Months except, however, four (4)

months of that time or one hundred twenty (120) days

is suspended upon condition that there be no further

violations by defendant Philip Joseph Maita of the

Injunction herein.

(b) January 22,1972: For deliberate, wilful and

contemptuous disobedience, violations and failure to

comply with the Injunction and stipulated modifica-

tion thereof hereinbefore found to have occurred on

January 22, 1972, defendant Philip Joseph Maita is

sentenced to pay a fine in the sum of Five Hundred

Dollars ($500.00) without penalty assessment within

Ten (10) Days, viz., no later than 5 o’clock p.m., Mon-

day, March 13, 1972, and if the fine is not paid in

full within that time, defendant be incarcerated in the

County Jail for One (1) Day for each Ten Dollars

($10.00) of the fine not paid and, further, that de-

fendant Philip Joseph Maita be confined in the County

Jail for the period of Sixty (60) Days, said confine-

ment to run concurrently with the confinement im-

posed upon defendant for contempt occurring Janu-

ary 21, 1972.

(c) January 23,1972: For deliberate, wilful and

contemptuous disobedience, violations and failure to

comply with the Injunction and stipulated modifica-

tion thereof hereinbefore found to have occurred on

January 23, 1972, defendant Philip Joseph Maita is

sentenced to pay. a fine in the sum of Five Hundred

Dollars ($500.00) without penalty assessment within

Ten (10) Days, viz., no later than 5 o’clock p.m.

Monday, March 13, 1972, and if the fine is not paid

in full within that time, defendant be incarcerated

in the County Jail for One (1) Day for each Ten

Dollars ($10.00) of the fine not paid and, further,

Dninsionesnsnnicemsano neg

CES TANITA >

ad Da a Satake Be)

A erm pmprEeD

oT oe

that defendant Philip Joseph Maita be confined in the

County Jail for the period of Sixty (60) Days, said

confinement to run concurrently with the confinement

imposed upon defendant for contempts occurring

January 21, 1972.

(d) January 24,1972: For deliberate, wilful and

contemptuous disobedience, violations and failure to

comply with the Injunction and stipulated modifica-

tion thereof hereinbefore found to have occurred on

January 24, 1972, defendant Philip Joseph Maita is

sentenced to pay a fine in the sum of Five Hundred

Dollars ($500.00) without penalty assessment within

Ten (10) Days, viz. no later than 5 o’clock pm

Monday, March 13, 1972, and if the fine is not paid

in full within Ten (10) Days, defendant be incarce-

rated in the County Jail for One (1) Day for each

Ten Dollars ($10.00) of the fine not paid and, further,

that defendant Philip Joseph Maita be confined in

the County Jail for the period of Sixty (60) Days,

said confinement to run concurrently with the con-

finement imposed upon defendant for contempts oc-

curring January 21, 1972.

It Is Further Ordered that execution of the con-

finement imposed upon defendant Philip Joseph Maita

hereinbefore provided be stayed until 5 o’clock p.m,

Friday, March 10, 1972, solely to allow defendant

Philip Joseph Maita time to file his proposed Petition

for Writ of Certiorari before the Court of Appeal,

First Appellate District, State of California. In the

event defendant’s Petition for Writ of Certiorari is

not filed as aforesaid by that time, this stay shall

xi

terminate and defendant shall be incarcerated in the

County Jail as hereinbefore provided.

In the event defendant’s Petition for Writ of

Certiorari is filed as aforesaid within that time, this

stay shall continue so long as proceedings continue

in the Court of Appeal or until further order of this

Court or the Court of Appeal, whichever order shall

first occur.

It Is Further Ordered that defendant be admitted

to bail in the sum of Five Thousand Dollars ($5,000)

cash or surety upon the express conditions of the stay

of his confinement to the County Jail hereinabove

provided. This Stay Order shall not apply to defend-

ant’s payment of the Two Thousand Five Hundred

Dollars ($2,500.00) fine ordered herein which shall

be paid, in full, on or before 5 o’clock p.m. Monday,

March 13, 1972. This Stay Order shall not be con-

strued as affecting in any way the existing Injunction

and the stipulated modification thereof.

Dated: This 16th day of March, 1972

Louis B. Dematteis

Judge of The Superior Court

Appendix B

In The Court of Appeal

State of California

First Appellate District

Division Two

No. 31155

Philip Joseph Maita, :

Petitioner,

Vs.

Superior Court, County of San Mateo,

Respondent.

People of the State of California,

Real Party in Interest. }

[May 19, 1972]

By THE CouRT:

The petition for a writ of certiorari is denied.

Filed May 19, 1972,

Clifford Porter, Clerk.

Dated May 19, 1972

Taylor, P.J.

In the Court of Appeal

State of California

First Appellate District

Division Two

Crim. No. 10552

In re Philip Joseph Maita

on Habeas Corpus,

vs.

[May 19, 1972]

By THE Court:

The petition for a writ of habeas corpus is denied.

Filed May 19, 1972, :

Clifford C. Porter, Clerk.

Dated : May 19, 1972.

Taylor, P.J.

ENE ITE ART IN od emgD

,

Appendix C

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

June 15, 1972

Dear Sm: I have this day filed Order

Hearing Denied

In re: 1 Civ. No. 31155

Maita

On

Superior Court, San Mateo

Respectfully,

G. E. Bishel

Clerk

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

June 15, 1972

Dear Sm: I have this day filed Order

Hearing Denied

In re: 1 Crim. No. 10552

Maita

On

Habeas Corpus

Respectfully,

G. E. Bishel

Clerk

Appendix D

With respect to petitioner’s request for a jury trial,

the Superior Court ruled, after argument by counsel,

that “it seems to have established quite clearly, refer-

ring to the Schnackenberg case, that... a six months

sentence is short enough to be petty. The entire dis-

cussion of the case indicates that a penalty up to six

months is considered to be petty and that the defend-

ant is not entitled to a trial on that issue by jury.”

(Reporter’s Transcript, page 27)

When petitioner objected to the showing of the

films which form the basis for the contempt adjudi-

cation, upon the ground that they were not obscene

and hence were protected by the First Amendment

(RT 115), the District Attorney replied :

“JT think first and foremost the question of obscen-

ity is not before the Court in this proceeding, which

obviously is one of contempt for violating an injunc-

tion order of the Court. We are not concerned about

whether or not the films are obscene or pornographic.

The question hefore the Court is: Do they violate this

injunction? . . . I would simply repeat: It is not the

obscenity we are concerned with today .. .” (RT 116)

Petitioner’s motion was thereupon denied (RT 117).

It was never contended by the District Attorney,

nor was it in fact the case, that the films in question

here had ever been held to be obscene by the San

Mateo County Superior Court.

a

xvi

In The Superior Court Of The State Of California,

In And For The County Of San Mateo

No. 149826

The People of the State of California, |

Plaintiff,

vs.

Philip Joseph Maita and August

Vennemeyer,

Defendanis.

[Jan. 27, 1970]

TEMPORARY INJUNCTION PURSUANT TO

SECTION 11227 OF THE PENAL CODE

OF CALIFORNIA.

Upon the complaint of Keith C. Sorenson, District

Attorney of the County of San Mateo, together with

the accompanying affidavits and exhibits thereto, and

Having heard and considered the answer of the

defendants and all exhibits introduced thereby, and

Having read and considered the brief and memo-

randa of points and authorities submitted by the

parties herein;

IT IS THE JUDGMENT OF THIS COURT that

the grounds and premises and the building located

Zz

thereon as described in the complaint herein constitute

a nuisance as defined in the brief 11225 of the Penal

Code of California by virtue of acts of lewdness there

held and occurring.

IT IS ORDERED AND ADJUDGED that the

grounds and premises and the building located thereon

as described in the court case herein be and the same

hereby are, until further order of Court and dur-

ing the pendency of this action, enjoined as a place

to conduct, maintain or continue the acts of lewdness

constituting a nuisance complained of in this action

by the defendants, or any one of them, or by any

other person or persons.

IT IS FURTHER ORDERED AND AD-

JUDGED that the defendants, Philip Joseph Maita

and August Vennemeyer, and their agents and as-

signees, be and each of them hereby is, until further

order of this Court and during the pendency of this

action, enjoined and restrained from conducting,

maintaining, using, occupying or in any way per-

mitting the use or occupancy of said premises and

the buildings located thereon, to-wit: Easy Street Bar,

9322 South El Camino Real, San Mateo, California,

for the purpose of lewdness or as a disorderly house

as defined in Section 11225 of the Penal Code of Cali-

fornia, and more particularly the defendants, Philip

Joseph Maita and August Vennemeyer, and their |

agents and assignees, and each of them, are enjoined ;

and restrained from conducting, maintaining, using,

occupying, permitting, causing or exhibiting :

ee

ba ASRS SRO Te te

> OC Sage Sate

xviii

1] Cocktail waitresses the genitalia and anuses of

which and the pubic hair areas of which are not cov-

ered completely by material which cannot be seen

through by the nearest spectator ;

2} Dancers and live performers exhibiting geni-

talia and anuses and pubic hair areas which are not

completely covered by material which cannot be seen

through by the nearest spectator ;

3] Motion pictures or live performances exhibiting

or simulating the exhibition of human genitalia and

anuses and pubic hair areas which are not completely

covered by material which cannot be seen through by

the nearest spectator;

4] Motion pictures or live performances exhibiting

or simulating the exhibition of acts of sexual inter-

course by, with or between human beings;

5] Motion pictures or live performances exhibiting

or simulating the exhibition of acts of oral genital

copulation ;

6] Motion pictures or live performances exhibiting

or simulating the exhibition of acts of oral-breast

copulation ;

7] Motion pictures or live performances exhibiting

or simulating the exhibition of male or female mas-

turbation ;

8] Motion pictures or live performances exhibiting

or simulating the exhibition of female humans en-

gaging in auto eroticisms by the use of any inanimate

object.

Keith C. Sorenson,

District Attorney

By: Kelly Ogie, Deputy,

Hall of Justice and Records,

Redwood City, Ca. 94063.

369-1441; Ext. 2783.

Attorneys for County of San Mateo.

In The Superior Court Of The State Of California,

In And For The County Of San Mateo

No. 149826

The People of the State of California,

Plaintiff,

vs.

.

Philip Joseph Maita and August

Vennemeyer,

Defendants.

ORDER MODIFYING PRELIMINARY

INJUNCTION

Whereas, defendant Philip Joseph Maita by and

through his counsel, Donald A. Tenenbaum, Esq., has

heretofore filed his Notice of Motion for Modification

of Preliminary Injunction, said Notice being dated

July 21, 1971; and

xxi

Whereas, there is presently in effect in the above-

captioned matter a Preliminary Injunction made and

ordered by the Honorable James T. O'Keefe, dated

and filed January 27, 1970; and

Whereas, pursuant to stipulation of counsel for

both parties and order of this Court, the matter of

defendant’s motion has come on regularly to be heard

this 14th day of September, 1971, counsel appearing

for both parties; and

Whereas, pursuant to stipulation of counsel for

both parties, the within form of Order Modifying

Preliminary Injunction is presented to the Court for

hearing and consideration ; and

The Court having heard and considered arguments

of counsel for both parties; the stipulation of counsel

for both parties, and the pleadings and records of

these proceedings, IT IS ORDERED that pursuant

to stipulation of counsel for both parties and good

cause appearing therefor, the Preliminary Injunc-

tion dated January 27, 1970, presently in effect in

these proceedings be, and hereby is, modified as fol-

lows :

L. Paragraphs numbered 2] and 3] thereof, page

2, lines 23 through 29, inclusive, are deleted in their

entirety ;

2. Paragraphs numbered 4] through 8], pages 2

and 3, are amended, modified, renumbered, and sup-

as follows:

2] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

per nn rem a

sexual intercourse by, with or between human

beings ;

3] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

sexual intercourse by, with or between human be-

ings and animals (beastiality) ;

4] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

oral-genital copulation ;

5] Motion pictures or live performances ex-

hibiting or simulating the exhibition of acts of

rectal foreplay, kissing, touching, caressing, fond-

ling or manipulation of male or female genitalia.

6] Motion pictures or live performances ex-

hibiting or simulating the exhibition of male or

female masturbation ;

7] Motion pictures or live performances ex-

hibiting or simulating the exhibition of sodomy

or flagellation ;

8] Motion pictures or life performances ex-

hibiting or simulating sexual activity where the

genitals of the performers can then be seen;

8] Motion pictures or live performances ex-

hibiting or simulating the exhibition of male or

female humans engaging in auto-eroticisms or

any of the prohibited activities hereinabove de-

scribed by the use of any drawing, artificial de-

vice or inanimate object.

3. Except as hereinabove specifically provided, the

Preliminary Injunction presently in effect in these

proceedings dated January 27, 1970, is and shall con-

tinue to be in full force and effect and shall here-

———_aExx=xaxaggSaa_

xxiii

after be considered and construed with this Order

Modifying Preliminary Injunction as one instrument

enjoining and constraining defendants as provided

herein.

Dated: September 14, 1971.

/s/ J. A. Branson,

Judge of the Superior Court.