Petition for a Writ of Certiorari — MAITA V. WHITMORE (No. 74-925)

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Subject Index

Page

I RG n sd) Ac VERSES © hie SA se Kao wed Newneks 1

RL ahhh ae bc aN Uses vaeh ONe sha nekee do kkecekales 2

EN MI ud cae Sk baN ng sae b Kes be a bed oe end wk 2

Constitutional provisions and statutes involved ............ 2

I re ee ee ee

Reasons for granting Me UE SATCU a chee taeh heeds dba 8

SEE Sica S-oy oh Ss aa Wah iCee web otk de Sde6 rebeke eho cs Kis 11

— — ee BEEP Ba RE EIGEN NDS RGU CY DBF LEIA EIEN 2 EOE

ERs 2 EOE Oe em

Table of Authsrities Cited

-_—_—- -—-——

Cases Pages

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

S.Ct. 1886 (1970) 2... cree ccc cre ccccccnrsceececcees 8

Bloom v. Hlinois, 391 U.S. 194, 20 L.Ed.2d 522, 88 S.Ct.

OE ods cece kavake hese eeebseeaeeehacekad bese keaawns 9

Cheff v. Schackenberg, 384 U.S. 374, 16 L.Ed.2d 629, 86

S.Ct. 1523 (1966) 2... .. ccc cece cece ccc eceeensecccs 9

Codispoti v. Pennsylvania, .... A: de , 41 L.Ed.2d 912,

o¢ SAA... ee Cee ern r Err ry Cre re ete 9,10

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

ee Sy gen VARGAS SURERR ER OES RARROE NEES ESS 8

In re Sandel (1966) 64 Cal.2d 412, 50 Cal.Rptr. 462 ..... 9

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

appeal dismissed 358 U.S. 139, 14 L.Ed.2d 226, 76 S.Ct.

re Serene rr yey eer er teeth a 9

People v. Morales (1967) 252 Cal.App.2d 537, 60 Cal.Rptr.

—) on errr er rrry rey Tr Cre tr ta Tan 9

Taylor v. Hayes, $........ US. ....., 41 L.Ed.2d 897, 94 S.Ct.

eek (WTA) co cnccuccccnnsccresesapsseessvsessssences 9,10

Statutes

Penal Code:

Gncthos G60 2... icc c cnc cccnccanscccecessscescansanns 4,8,9

Sections 11225, et seq. ....-.-- cece e eee reece ee eens 3,5

Goction 11226 ....ccccsscccccencesvesssccnccesscees 3

eciiate BINED 5 cc iccs wencdccetonstkeasoeseee an eeaes 3,5

Seetion 21ZBD ....-csccccncsensccnvasscescvacssoes 4,8, 10

28 US.C., Section 1257(3) 2.1... eee eee eee cere erences 2

Constitutions

First Amendment .........---eeeecee eee ceeeeeeeeerees 2

Sixth Amendment ......-..+--eee eee creer ees 2, 3,7, 8,9, 10, 11

Fourteenth Amendment ........-..++eeeeee eer rtteeee 2, 3,8, 11

aa

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1974

No.

Puiuip Joseph Marra, Petitioner,

vs.

Kart Wuitmore, Sheriff, Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The petitioner, Philip Joseph Maita, respectfully

prays that a Writ of Certiorari issue to review the

Opinion and Judgment of the United States Court of

Appeals for the Ninth Circuit, entered in this pro-

ceeding on December 9, 1974.

OPINIONS BELOW

Ninth Circuit: The Opinion of the United States

Court of Appeals for the Ninth Circuit (Maita v.

Pane en SN

fee bh ERA Hy SINS

%

%

x

4

x

33

4

a

2

Whitmore, No. 74-1498) in this case has not yet been

reported, and is set forth in Appendix A.

District Court: The Memorandum and Order of

the United States District Court for the Northern

District of California is reported at 365 F. Supp. 1331,

and is set forth in Appendix B.

JURISDICTION

The judgment of the United States Court of Ap-

peals for the Ninth Circuit was entered on December

9, 1974.

The jurisdiction of this Court is invoked under

28 U.S.C. Section 1257 (3).

QUESTION PRESENTED

Is a criminal defendant, charged with four counts

of contempt, each of which carries a statutory pen-

alty of six months in jail, in a state which permits

the trial judge to impose consecutive sentences, en-

titled to a jury trial under the Sixth and Fourteenth

Amendments to the United States Constitution ?

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 . . ee

ewe one

NOONE ALCL NEG EEE 8

”

Sixth Amendent: ‘Tn all criminal prosections,

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 .. .”

California Penal Code Section 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, assig-

nation or prostitution, are held or oceur, is a nui-

sance which shall be. enjoined, abated and

prevented, whether it is a public or private

nuisance. \

§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

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 en-

join 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. :

§11227. Whenever the existence of a nuisance

is shown in an action brought under this article

to the satisfaction of the court ur judge thereof,

tw ee

4 UR rocED atr Oa Uitowe

4

either by verified complaint or affidavit, the court

or judge shall allow a cemporary writ of injune-

tion to abate and prevent the continuance or re-

currence of such nuisance.

§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.

California Penal Code Section 669, as follows:

‘When any person is convicted of two or more

erimes, whether in the same proceeding or court

or in different proceedings or courts, and whether

by judgment rendered by the same judge or by

different judges, the second or other subsequent

judgment shall direct whether the terms of im-

prisonment or any of them to which he is sen-

tenced shall run concurrently, or whether the

imprisonment to which he is or has been sentenced

upon the second or other subsequent conviction

shall commence at the termination of the first

term of imprisonment to which he has_ been

sentenced, or at the termination of the second or

subsequent term of imprisonment to which he

has been sentenced, as the case may be. . . .”

STATEMENT OF FACTS

Between 1964 and 1972, petitioner Philip Joseph

Maita owned a bar in San Mateo, California. Tn ad-

dition to alcoholic beverages, the “Easy Street,” as

SE A Re

the premises were called, offered entertaimment to

its patrons.

On December 11, 1969, the District Attorney of

San Mateo County filed a civil complaint against pe-

titioner and the owner of the building in which the

Easy Street was located. The complaint alleged, pursu-

ant to Section 11225 of the California Penal Code,

that the entertainment presented on the premises

constituted 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 huniaay

27th (1970), issued its temporary injunction enjoin-

ing petitioner from presenting certain types of films

and other entertainment to adult patrons on his prem-

ises. Petitioner sought relief from this injunction

through the California courts without success.

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 cer-

tain 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.

Dosti

ee ee Tee es

6

Each of the four counts of contempt of court with

which petitioner was charged carried a maximum pen-

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

$1,000.00 fine. Under California law, the trial judge

had the power to impose consecutive sentences.

Petitioner appeared in San Mateo County Superior

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

jury; this request was denied.

Thereafter the Superior Court took testimony from

the People and from petitioner.

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

tioner in contempt of court on each of the four counts

charged. Petitioner was sentenced to six month 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 sentence

imposed on Count One. Petitioner was also ordered

to pay a fine of $1,000.00 on Count One and $500.00

on each of Counts Two, Three and Four, for a total

of $2,500.00.

Since a judgment of contempt is nct appealable

under California law, petitioner sough relief on

habeas corpus and certiorari from the Court of Ap-

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

fornia Supreme Court denied a hearing on June 15,

1972.

On June 6, 1972, petitioner filed a petition for writ

of habeas corpus in the United States District Court

POE TR Pel Oh

i

for the Northern District of California. At substan-

tially the same time, the Honorable William O. Doug-

las, 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.

Petitioner filed a petition for writ of certiorari to

the United States Supreme Court on September 1,

1972. The petition was denied on February 20, 1973

(Mr. Justice Douglas would have granted certiorari).

(No. 72-407).

Theieafter the habeas corpus petition was resubmit-

ted to the District Court. On November 12, 1973,

after a hearing, the District Court issued a memoran-

dum and order concluding, inter alia, that petitioner

had been deprived of his Sixth Amendment right to

trial by jury in the State Court. The District Court

therefore vacated the judgment and sentence of the

Superior Court.

Notice of appeal was timely filed and the District

Court stayed imposition of its order pending deter-

mination of the appeal.

On December 9, 1974, the Court of Appeals for the

Ninth Circuit reversed the order of the District Court,

holding that petitioner’s right to a jury trial had not

been abridged. The Court of Appeals stayed the issu-

ance of its mandate pending the filing of a petition

for writ of certiorari in the United States Supreme

Court.

ee Delle AN IT AISA At

tec RL AEA a

Batanaiin

RISC

8

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals conflicts with

the decisions of this Court on the Sixth Amendment

right to trial by jury.

The Sixth and Fourteenth Amendments to the

United States Constitution guarantee the right to a

jury trial in all criminal cases except when the offense

charged is a “petty” offense. Duncan v. Louisiana,

391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444.

In determining whether a State offense is “petty”,

the decisive factor is the maximum penalty authorized

by the legislature. Where a State defendant faces a

potential sentence of more than six months in jail, he

is entitled to a jury trial, regardless of the penalty

actually imposed. Baldwin v. New York, 399 U.S. 66,.

69, 26 L.Ed.2d 437, 90 S.Ct. 1886 (1970). In Duncan

v, Louisiana, 391 U.S. 145, 159-160, 20 L.Ed.2d 491,

502, $8 S.Ct. 1444, for example, the statutory maxi-

mum penalty was two years in jail. This Cowit neld

that a jury trial was required, despite the fact that

the sentence actually imposed was sixty days in jail

and a $50.00 fine.

In the present case the California Legislature ex-

pressly authorized a maximum penalty for petitioner,

upon conviction, of two years in jail and a $4,000.00

fine. He was charged with four separate violations of

California Penal Code Section 11229, each of which

provided for six months in jail and a $1,000.00 fine.

Under California law it is discretionary with the

court as to whether the sentences on multiple counts

shall run consecutively or concurrently. Penal Code

ANG TOI VMS. WIS ET,

9

Section 669; People v. Morales (1967) 252 Cal.App.2d

537, 60 Cal. Rptr. 671; In re Sandel (1966) 64 Cal.2d

412, 50 Cal.Rptr. 462; People v. Loeber (1958) 158

Cail. App.2d 730, 323 P.2d 126, appeal dismissed 358

U.S. 139, 14 L.Ed.2d 226, 76 S.Ct. 242.

Petitioner was in fact penalized on each of the four

counts charged; the court imposed concurrent sen-

tences as to the jail sentences and consecutive sen-

tences as to the fines (the judgment of the Superior

Court is set forth in Appendix C). The court gave

no inkling that it would impose concurrent, as op-

posed to consecutive, jail sentences until judgment

was pronounced.

The reliance of the Court of Appeals upon Taylor

v. Hayes, ........... is . Suan , 41 L.Ed.2d 897, 94 S.Ct.

Suis (1974) and Codispoti v. Pennsylvania, ........... U.S.

pales , 41 L.Ed.2d 912, 94 S.Ct. ....... was misplaced. In

both of these cases, the defendants were charged and

tried under contempt specifications that carried no

maximum statutory penalties. Taylor and Codispoti

were merely extensions of the well-established rule

that if no specific maximum penalties are authorized

by the legislature, the court must look to the severity

of the penalty actually imposed in order to determine

the seriousness of the offense for Sixth Amendment

purposes. Bloom v. Illinois, 391 U.S. 194, 20 L.Ed.2d

522, 88 8.Ct. 1477; Cleff v. Schackenberg, 384 U.S.

374, 16 L.Ed.2d 629, 86 S.Ct. 1523 (1966).

The California Legislature enacted a_ statutory

scheme which provided that petitioner could he im-

prisoned for two years for the charged violations of

pide FES PS AF

dette oe eM ls Sb WT

10

Penal Code Section 11229, This took the present case

out of the reach of Taylor v. Hayes, supra, and Codi-

spoti v. Pennsylvania, supra, and rendered the actual

jail sentence irrelevant insofar as it affected his right

to a jury trial.

Another crucial distinction between the present case

and Taylor v. Hayes, supra, and Codispoti v. Penn-

sylvania, supra, is that the latter involved “direct”

contempts committed on the record in the Court’s pres-

ence, while here the alleged contempts were “indi-

rect”. In the dissent to Codispoti v. Pennsylvania,

supra, concurred in by the Chief Justice, Justice

Stewart and Justice Rehnquist, Justice Blackman

pointed out that

“Where, as in Bloom, the criminal contempt

takes place outside the presence of the court,

there is little to distinguish the contempt, for pur-

poses of using a jury as the fact finder, from the

run-of-the-mill criminal offense.” (41 L.Ed.2d at

925).

Sound policy reasons underlie a differentiation he-

tween “direct” and “indirect” contempts. In the case

of direct contempts, the questionable usefulness of a

jury as the finder of fact, coupled with the right of

the court to deal with direct challenges to its authority

and dignity, may justify, consistent with the Sixth

Amendment, some curtailment of the right to a jury

trial. Where, however, as here, the allegedly contemp-

inous conduct occurs outside the court’s presence, and

involves factual determinations identical to those

called for in any criminal ease, the efficient administra-

tion of justice does not benefit from denial of trial

by jury.

11

The District Court recognized the potential for

abuse in a system which permits a prosecutor arbi-

trarily to divide a continuing course of conduct into

numerous petty offenses, then prosecute them all

under a single charging document. This subjects the

accused to a lengthy period of imprisonment, yet cur-

tails his right to a jury trial.

Nothing can alter the fact that as petitioner stood

before the San Mateo County Superior Court for

trial, he was facing a statutorily authorized penalty

of two years in jail and a $4,000.00 fine. At that

point he had a right to a jury trial. Denial of his

request constituted a violation of rights secured to him

by the Sixth and Fourteenth Amendments to the

United States Constitution.

CONCLUSION

For the reasons hereinabove stated, it is respect-

fully submitted that the petition for Writ of Certi-

orari be granted.

Dated, San Jose, California,

January 15, 1975.

DonaLp A, TENENBAUM,

ALLEN Rusy,

Attorneys for Petitioner.

(Appendices Follow)

Appendix A

United States Court of Appeals

for the Ninth Circuit

No. 74-1498

Philip Joseph Maita,

Petitioner-A ppellee, |

vs.

Karl Whitmore,

Respondent-Appellant.

[Filed Jan. 3, 1975]

ORDER STAYING ISSUANCE OF MANDATE

Upon application of Allen Ruby, counsel for the

Appellee, and good cause appearing, IT IS OR-

DERED that the issuance, under Rule 41 (a) of the

Federal Rules of Appellate Procedure, of the certi-

fied copy of the judgment of this Court in the above

cause be and hereby is stayed pending the filing, con-

sideration and disposition by the Supreme Court of

the United States of a petition for writ of certiorari

to be made by the Appellee herein, provided such peti-

tion is filed in the Clerk’s Office of the Supreme Court

of the United States on or before January 26, 1975.

In the event the petition for writ of certiorari is

granted, then this stay is to continue pending the final

ii

disposition of the case by the Supreme Court of the

United States.

/8/ Ben C. Duniway

Ben Cushing Duniway

United States Circuit Judge.

Jan. 3, 1975

Dated: San Francisco, Calif.

United States Court of Appeals

for the Ninth Circuit 7

No. 74-1498

Philip Joseph Maita, % Rar ees

, Petitioner-A ppellee,

vs. '

~ Earl Whitmore,

Respondent-Appellant.

[Filed Dee. 9, 1974]

On Appeal from the United States District Court

for the Northern District of California.

Before: Duntway and Trask, Cireuit Judges, and

SmiruH,* District, Judge.

OPINION

Duniway, Circuit Judge:

Sheriff Whitmore appeals from an order granting

Maita’s petition for a writ of habeas corpus. We

reverse. .

The sole question presented for decision is whether

Maita was entitled, under the Fourteenth and Sixth

Amendments, to a jury trial when he was charged in

California Superior Court with four separate crim-

*The Honorable Russell E. Smith, Chief Judge, United States

District Court for the District of Montana, sitting by designation.

=—s 3

iv

inal contempts. Each was punishable by a jail term

fixed by statute at ‘‘not less than one nor more than

six months” (Cal. Penal Code § 11229).' Maita could

have been sentenced to four consecutive six month

terms but was actually sertenced to a total of not

more than six months.

The California court had issued a temporary in-

junction enjoining Maita from doing certain things

prohibited by the California Redlight Abatement Act,

Cal. Penal Code §§ 11225-35. The validity of the in-

junction is not here in issue. Maita was later charged

with specific violations of the injunction occurring

on each of four different days. He demanded a jury

trial, which was denied, and he was tried by the court

and found to have committed each of the contempts

charged. His sentence for the first contempt was six

months in jail, with four months suspended.? For

each of the other three contempts, his sentence was

60: days in jail. All sentences, however, were concur-

rent, so that his total sentence was not more than

six months. Maita has exhausted his state remedies

as they relate to his right to a jury trial. The district

eourt held that Maita had been deprived of his con-

stitutional right to a jury trial. Maita v. Whitmore,

N.D. Cal., 1973, 365 F. Supp. 1331, at 1337-40. We

reverse.

4Section 11229 also provides for fines, which were imposed in

‘this ease. That .phase of the case, however, is not before us.

2Under the decision in Frank v. United States, 1969, 395 U.S.

147, 150, it would appear that this sentence is to he treated, as it

relates to the right to a jury trial, as a two month sentence, not

a six month sentence. We need not decide the question, because in

any event tlie total sentence did not exceed six months.

v

The answer to our question can be found in two

decisions cf the Supreme Court, handed down on

June 26, 1974; Taylor v. Hayes, ....... if aan , and

Codispodi v. Pennsylvania, ....... US. ........ Together,

these cases stand for the following propositions,

First: The rules as to whether an ordinary crim-

inal offense is “petty,” thus not requiring a jury trial,

or “serious,” thus requiring a jury trial, also apply

to charges of crin:inal contempt. Codispodi v. Penn-

sylvania, supra, ........ u. & a WW. (slip op. at 5);

Taylor v. Hayes, supra, ........ Um (slip op. at

6-7).

Second: “[C]rimes carrying more than six month

sentences are serious crimes and those carrying less

are petty crimes.” (Codispodi v. Pennsylvania, supra,

Re US. at —... (slip op. at 6); Taylor v. Hayes,

SUPT, oven Te OF... (slip op. at 6-7).)

Third: “[J]Judgment about the seriousness of the

crime is normally heavily influenced by the penalty

authorized by the legislature.” Codispodi v. Pennsyl-

vania, supra, ....... ip of (slip op. at 5). Indeed,

if the penalty authorized by the legislature exceeds

six months, there is a right to a jury trial, even

though the judge could impose a sentence of six

months or less. Baldwin v. New York, 1970, 399 U.S.

66, 68-9, and cases there cited.

Fourth: Where the legislature has not preseribed

a penalty, as is often the case when the charge is

criminal contempt, the actual sentence imposed deter-

mines whether the offense is “serious” or “petty.”

= aria spestiy

Codispodi v. Pennsylvania, supra, ....... i” Sites (slip

op. at 5-6); Taylor v. Hayes, supra, ....... De a...

(slip op. at 6-7). In such a case, when multiple con-

tempts are tried together, the imposition of con-

secutive sentences aggregating more than six months

makes the offenses “serious” and requires a jury trial.

Codispodi v. Pennsylvania, supra, ........ US. at .....

(slip op. at 10-11). On the other hand, where there

are convictions for several contempts but the aggre-

gate sentence does not exceed six months because the

sentences are concurrent, jury trial is not required.

Taylor v. Hayes, supra, ........ US. at (slip op. at

7). Moreover, it makes no difference that the trial

judge at first imposes consecutive sentences totalling

more than six months, if he afterward reduces them

to six month sentences to be served concurrently;

jury trial is not required. 7d. at ...... (slip op. at 7).

We are persuaded that Taylor v. Hayes, supra, gov-

erns the case at bar. The legislature has fixed the

maximum jail term at six months. This points strongly

to a holding that the offense is “petty.” Had but one

contempt been charged, no jury trial would have been

required. This is conceded. Maita argues that, be-

eause four offenses were charged, the maximum pen-

alty, as established by the legislature, is 24 months,

and that therefore the aggregate offense charged is

“serious.” He bases this argument on the judge’s

power to impose consecutive sentences.

We conclude that, where the judge has discretion to

impose more than six months by imposing consecutive

sentences, just as where he has discretion to impose

more than six months because there is no statutory

maximum, it is the judge’s exercise of his discre-

tion, not the mere fact that he has discretion, that

determines whether the offense is “petty.” This, we

think, is the teaching of Taylor v. Hayes, supra. In

the case at bar, the judge exercised his discretion to

impose not more than six months. We conclude that,

in principle, Taylor requires reversal.

The cases on which Maita relies do not require

affirmance. In United States v. Seale, 7 Cir., 1972,

461 F.2d 345, the legislature had not fixed a maximum

penalty for the offenses charged; on its facts, Seale

almost exactly parallels Crdispodi v. Pennsylvania,

supra. Language in Baldwin v. New York, supra,

which might he interpreted to mean that the mere

possibility, by virtue of the trial judge’s discretion

to impose consecutive sentences, of imprisonment

greater than six months entitles a defendant to jury

trial, must be read in light of the facts of that case.

There the possibility of “serious” punishment derived

from the one year maximum sentence prescribed by

the legislature for the single offense charged. In the

ease at har, the legislature has determined that a

single offense is “petty,” and the possibility of “seri-

ous” punishment derives from the trial judge’s dis-

eretion to impose consecutive sentences for multiple

offenses. On its facts Baldwin is not in eonflicet with

our holding that multiple charges of an otherwise

“nettv” offense do not heeome the equivalent of a

“serious” offense when the judge’s discretion to im-

pose consecutive sentences aggregating more than six

sates iate VL iit

So nt CP APR REALINT 2N tte

AP MIE EOE LL EDO AE TEL ALOE OEE EA ALE IOI OE Mh lc COPA ISDE OTT

eee

months is not exercised. We also reject the holding

in United States v. Potvin, 10 Cir., 1973, 481 F.2d

381, which was based on what we consider, in the .

light of Taylor v. Hayes, supra, to be an impermis-

sibly broad reading of Baldwin

The order appealed from is reversed.

Appendix B

In the United States District Court

for the Northern District of California

No. C-72-1203-OJC

Philip Joseph Maita, |

Petitioner, |

Vs. t

Earl Whitmore,

Respondent.

'

i

4

[Filed Nov. 12, 1974]

MEMORANDUM AND ORDER

Petitioner has filed a petition for writ of habeas

corpus which challenges the constitutionality of four

contempt convictions stemming from violations of a

temporary injunction issued by the Superior Court

of San Mateo County. Jurisdiction is based upon 28

U.S.C. § 2254 in order that the Court may consider

the federal constitutional issues raised.

There is no dispute as to the essential factual issues

of the case. Petitioner operated “The Easy Street,”

a night-club located in San Mateo, California. That

establishment presented both live and cinematic en-

tertainment and offered alcoholic beverages to its

customers served by nude and partially nude wait-

resses.

On December 11, 1969, the District Attorney of San

Mateo County, pursuant to Section 11226 of the Cali-

fornia Penal Code, filed a civil complaint alleging

that certain entertainment presented on the above-

mentioned premises was lewd and therefore consti-

tuted a public nuisance. The complaint requested in-

junctive relief to abate the alleged nuisance.

After a ten day hearing on the matter, the San

Mateo County Superior Court issued a temporary in-

junction on January 27, 1970 which enjoined peti-

tioner from presenting on The Easy Street premises

certain types of entertainment and engaging in cer-

tain modes of conduct that the court had determined

to be “lewd”. Petitioner challenged the injunction in

both the California Court of Appeal and the Cali-

fornia Supreme Court without success.

On September 14, 1971, the temporary injunction

was modified pursuant to a stipulation by the parties.

Said stipulation listed the conduct prohibited and re-

sulted in the hearing on the plea for abatement being

taken off calendar until deemed necessary by the

parties.

After a period of some four and one-half months,

petitioner was ordered to show cause why he should

not be held in contempt for willful violation of the

temporary injunction as modified by the September

14, 1971 stipulation.

The hearing on the order to show cause was held

on February 18 and March 2 and 3, 1972 and the

court, despite petitioner’s request for a jury trial,

determined that the conduct of the petitioner vio-

lated the terms set forth in the injunction. Petitioner

was convicted of four counts of contempt—one for

Me ease 05

xi

each of the days the proscribed conduct occurred

(January 21, 22, 23, 24, 1972)—and was ordered to

pay a fine of $1,000 and sentenced to six months in

the county jail on one of the counts and was fined

$500 and sentenced to sixty days in the county jail

on each of the remaining three counts. Four months

of the six month sentence were suspended and the

jail sentences on all counts were ordered to run con-

currently.

Petitioner again sought relief from the California

Court of Appeal and the California Supreme Court

and, his claim denied in those forums, petitioned the

United States Supreme Court for a writ of certiorari.

His petition having been rejected by the United

States Supreme Court, petitioner now secks federal

habeas corpus relief citing, as noted above, the con-

stitutional issues involved.

Petitioner has presented to the Court two basic

constitutional issues. The first, relating to the ques-

tion of prior restraints under the First Amendment.

goes to the substance of the conviction itself. The

second issue involves the procedural aspects leading

up to petitioner’s conviction—his right to a jury trial

when charged with four contempt citations.

PRIOR RESTRAINT ISSUE

The “Red Light Abatement Act,” California Penal

Code §§ 11225 et seq.. sets forth a civil procedure

designed to abate certain activities considered to be

public nuisances. TIneluded within the statute’s regu-

latory parameters are those buildings or places used

Re sn tt ea »

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sites neice IRAN abel Sw

ba oat Ae ds

——

Dresueiris

xl

for the purpose of “lewdness” or where acts of “lewd-

ness” are held or occur.

Petitioner alleges that he is attacking, not the Red:

Light Abatement Act itself, but the constitutionality

of the injunction issued pursuant to the Act’s pro-

ceedings' and the resultant contempt convictions.? The

injunction, petitioner argues, constitutes a prior re-

straint insofar as no judicial determination of the

First Amendment characteristics of the enjoined ac-

tivities was made, and the injunction thereby pro-

hibited protected as well as non-protected speech.

The prior restraint issue presented by petitioner is

therefore twofold: were adequate hearings provided

to petitioner, and if so, was the judicial determina-

tion that petitioner’s activities were not protected by

the First Amendment correct?

Adequacy of Hearing

Although the scope of the First Amendment as

applied to certain types of expression is often un-

certain, the Supreme Court has been quick to strike

1Section 11227 of the California Penal Code provides:

‘“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 nui-

sance.”’

2Section 11229 of the California Penal Code provides:

‘Any violation or disobedience of an injunction or order ex-

pressly 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, by imprisonment in the

county jail for not less than one nor more than six months, or

by both.”’

ee

see

down governmental attempts to limit speech before

it is uttered or before it is found to be offensive.

Niemotko v. Maryland, 340 U.S. 268, 273 (1951);

Near v. Minnesota, 283, U.S. 697, 713 (1930). Accord-

ingly, the necessity for a prompt adversary hearing

prior to the abatement of any type of speech has be-

come a cornerstone of First Amendment law. Carroll

v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam

Books, Ine. v. Sullivan, 372 U.S. 58, 66 (1962);

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440

(1957). The extent of judicial scrutiny of those stat-

utory schemes intended to curtail freedom of expres-

sion was sharply delineated by the Supreme Court

in the Bantam Books, Inc. case, supra. Justice Bren-

nan, speaking for the Court, stated that “[a]ny sys-

tem of prior restraints of expression comes to this

Court bearing a heavy presumption against its con-

stitutional validity [citations]. We have tolerated

such a system only where it operated under judicial

superintendence and assured an almost immediate

judicial determination of the restraint.” Bantam

Books, Ine. v. Sullivan, supra, at 70.

Tt is the quality of the above-mentioned “judicial

superintendence” that is presently under attack ; peti-

tioner alleges that no judicial officer has ever declared

the activities upon which the contempt convictions

were hased to he obscene and that he has been afforded

no opportunity to nrove that the conduct for which

he is heing punished is, in fact, protected sneech. Tn

sunvort of his contentions, petitioner stresses the re-

fusal of the court to consider the obscenity issue at

the contempt hearings.

wte Nyt

wR AS wat

ST

wie er

A eT eR eR wee Pe ee

il

xiv

Petitioner is very much in error when he alleges

that no hearings were held in order to determine the

obscenity of the conduct in question. Pursuant to

§ 11227 of the California Penal Code, petitioner was

allowed to full adversary hearing on the obscenity

issue.* The evidence clearly indicates that petitioner

took full advantage of the opportunity—he presented

twenty-one witnesses and numerous exhibits over a

two week span that concluded on January 8, 1970.

When the hearings were terminated, the trial judge

issued a memorandum decision incorporating the law

and the facts in support of its determination that

petitioner’s conduct was obscene. Petitioner challenged

the temporary injunction issued as © result of the

above-described hearing by seeking a writ of prohibi-

tion in the California Court of Appeal and, when

his petition was denied, sought without success a hear-

ing in the California Supreme Court.

Upon his failure to have the injunction overturned

by the appellate courts, petitioner voluntarily entered

into a stipulation whereby he agreed to abide by the

provisions of the temporary injunction as modified

and the District Attorney would remove the hearing

on the plea for abatement from the calendar.*

3At this hearing the court equated the ‘‘lewdness’’ term utilized

in the Red Light Abatement Act with obscenity and treated the

terms as synonymous.

4Due to this stipulation, petitioner prevented the final step of

the Red Light Abatement Act from reaching fruition. This final

step—a hearing to determine if the temporary injunction should

be permanent—could have resulted in an order of abatement and

a elosing of The Easy Street premises. California Penal Code

§ 11230.

Respondent argues that petitioner’s decision not to pursue a

hearing on the plea for abatement constitutes a failure to exhaust

xV

The hearings provided to petitioner more than ade-

quately meet the standards delineated by Bantam

Books, Inc. v. Sullivan, supra and Kingsley Books,

Inc. v. Brown, supra. Petitioner received prompt no-

tice, a specific complaint, an adversary hearing, and

an opportunity to contest the outcome of the hearing

in the appellate courts. That such a hearing suffi-

ciently meets constitutional standards is made clear

by the Supreme Court when it recently approved a

scheme involving civil injunctions that is very similar

to the Red Light Abatement Act. Paris Adult Theatre

I v. Slaton, ......... Da oom (1973).

Petitioner apparently believes that the First Amend-

ment entitles him to litigate the obscenity issue twice

—once at the time the temporary injunction is issued

and once at any subsequent contemnt hearing.’ As was

discussed above, petitituner’s nearing prior to the is-

suance of the temporary injunction was sufficient to

satisfy the constitutional provisions relating to free-

dom of expression. Once such a determination of

state remedies. The only issue before this Court is the validity of

the contempt convictions. A hearing on the plea for abatement.

after petitioner has allegedy violated the terms of the temporary

injunction, would have absolutely no effect on the contempt con-

victions. Consequently, such a hearing is not a ‘‘remedy’’ within

the meaning of 28 U.S.C. § 2254(b) and petitioner’s stipulation

cannot be equated with a failure to exhaust state remedies.

It should be noted, however, that petitioner cannot now complain

that he did not receive a hearing regarding the issuance of a per-

manent injunetion. The adequacy of hearing and determination of

obseenity issues discussed above relate only to the issuance of a

temporary injunction.

5At the hearing on the contempt citation, the Superior Court.

over petitioner’s vigorous objection, determined that the obscenity

question was irrelevant and refused to hear any evidence on the

issue. This refusal appears to be the basis of petitioner’s argument

that he was allowed no hearing on the constitutional issue involved.

cl me |

ath Real Sheet

xvi

obscenity is made and an injunction properly issued

the only consideration before the court in a contempt

proceeding is if petitioner in fact violated the terms

of the injunction. Cf. Walker v. Birmingham, 388

U.S. 307 (1967). Accordingly, the judge’s failure to

allow petitioner to litigate the obscenity issue at the

contempt trial did not deny petitioner a hearing on

that issue and does not constitute a prior restraint.

Determination of Obscenity

The injunction having been properly issued, the

remaining question relating to the First Amendment

involves the sufficiency of the issuing court’s deter-

mination that petitioner’s activities were obscene. Pe-

titioner clearly cannot be punished for dissemination

of speech that is constitutionally protected. Cf. Thorn-

hill v. Alabama, 310 U.S. 88 (1940). As noted above,

however, it is the determination of the court issuing

the temporary injunction, not the court hearing the

contempt proceedings, with which this Court is con-

cerned.

The test utilized by the court issuing the injunction

(hereinafter referred to as the trial court) is identical

to that set forth by the United States Supreme Court

in Roth v. United States, 354 U.S. 476 (1975). The

trial court defined obscene matter “as that which

taken as a whole, the predominant appeal of which

to the average person, applying contemporary stand-

ards, is to prurient interest, ... and is matter which

taken as a whole goes substantially beyond the cus-

tomary limits of candor in description or representa-

ee

tion of such matters; and is matter which taken as’

a whole is utterly without redeeming social impor-

tance or value.” (Emphasis in original memorandum

decision). ,

Applying the above-mentioned standards to the ac-

tivities at The Easy Street premises, the trial court

determined that those activities were obscene and

therefore not constitutionally protected. It is thus ap-

parent that the trial court utilized a test that is more

sttingent than required by the Constitution. Miller v.

California, ....... US. ........ (1973).

The Supreme Court has indicated that “. . . the

states have greater power to regulate nonverbal, phys-

ical conduct than to suppress depictions or descrip-

tions of the same behavior.” Miller v. California,

supra at 11. This wider degree of latitude in regu-

lating nonverbal, physical conduct has been expressed

in several different contexts by the Court. See, ¢.g.,

California v. LaRue, 409 U.S. 109 (1972): United

States v. O’Brien, 391 U.S. 367 (1968); Cor v. Lou-

isiana, 379 U.S. 536 (1965). Conduct including ele-

ments of both speech and nonspeech may be regulated

only if “the government interest is unrelated to the

suppression of free expression; and if the incidental

restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that

interest.” United States v. O’Brien, supra at 377.

The state’s interest in abating the type of conduct

with which petitioner was involved has heen judicially

recognized, Paris Adult Theatre T v. Slaton, supra

at 8-15, and petitioner makes no showing, and the

eee > oe een ee tae

See eT

eee

Court can perceive none, that the state’s action goes

beyond that necessary to promote the furtherance of

said interest. Accordingly, the trial court’s determi-

nation ‘that petitioner’s activities were not protected

by the First Amendment is in concert with established

judicial guidelines and should not be overturned.

It should be noted that petitioner also argues that

he is being punished for future conduct, as yet un-

ascertained, because of his past activities. The tempo-

rary injunction, however, carefully delineates the con-

duct that is to be proscribed and prohibits only the

continuance of activities that the trial court has de-

termined to be obscene. In fact, the Miller case supra,

suggests some “plain examples” of what type of con-

duct could be regulated as obscene that are identical

to those activities set forth in the temporary injune-

tion. Therefore, it is clear that the temporary injunc-

tion does not restrict some vague, unspecified future

conduct, but details explicitly those obscene acts that

are not to be repeated.

| RIGHT TO JURY TRIAL ISSUE

At his hearing on the contempt citations, peti-

tioner’s request that he be tried by a jury was denied.

Petitioner alleges that the Sixth Amendment, as ap-

plied to the states through the Fourteenth Amend-

ment, entitled him to have a jury trial on the con-

tempt issue.®

8Tt should be carefully noted that petitioner does not allege that »

he ‘is entitled to a jury trial at any proceeding other than the con-

tempt hearing, and the Court addresses the issue only in that con-

text.

xix

The constitutional perimeters of the right to jury

trial have been established with some degree of cer-

tainty. The Fourteenth Amendment guarantees a jury

trial in all criminal cases except when the offense in-

volved is considered to be “petty.” Duncan v. Lou-

isiana, 391 U.S. 145 (1968). Additionally, a criminal

contempt charge’ is a crime in every essential respect

and therefore only petty contempts may be tried with-

out a jury. Bloom v. Illinois, 391 U.S. 194 (1968).

Thus it is clear that petitioner would be entitled to a

jury trial if the contempt citations are to be consid-

ered serious.

The guidelines established by the Supreme Court

are somewhat less definitive in fleshing out the dis-

tinction between the serious and petty offense. It has

been somewhat categorically stated that no offense

ean be deemed petty where imprisonment for more

than six months is authorized. Baldwin v. New York,

399 U.S. 66 (1969). Six months has heen selected as

an objective criterion reflecting the seriousness with

which society regards an, particular offense, ¢f. Dis-

trict of Columbia v. Claw ns, 300 U.S. 617, 628

(1937). and thus an appropriate measure of the con-

stitutional necessity for a jury trial. It is the deter-

mination of this six month period that presents the

kev issue in the case at bar.

7Petitioner was clearly facing criminal contempt charges—he

was being punished for disobedience of a court order; the contempt

charges were not intended to be remedial in effect. Compare Chef

v, Schnackenberg, 384 U.S. 373 (1966) with Shillitani v. United

States, 384 U.S. 364 (1966).

ED Lae a ane we tine

oe

SR NBO DFAS Pe OA a IO i Rea RD,

xx

It is clear that, if a specific penalty is authorized,

that potential penalty is the factor that must be con-

sidered in determining the right to a jury trial. Frank

v. United States, 395 U.S. 147 (1969); Duncan v.

Louisiana, supra. Thus the penalty actually imposed

by the court—six months in the county jail on the

count (four months suspended) and sixty days in the

county jail on the remaining counts in the instant

case’—is not the relevant factor governing the

availability of a jury trial." In Duncan v. Louisiana,

for example, the defendant received only a sixty day

sentence and a $50 fine. However, since the maximum

penalty authorized was two years imprisonment, the

, offense could not be considered petty and the defend-

ant was entitled to a trial by jury.

The maximum penalty authorized for the offense

petitioner was convicted of is six months in jail. How-

ever, petitioner argues that the maximum authorized

penalty he faced at the contempt hearing was not

a mere six months, but two years—six months on each

of the four counts with which he was charged. Thus

the question the Court must decide is whether—when

charged with four counts of contempt—petitioner

should be permitted to aggregate the authorized sen-

tences in order to determine his right to a jury trial.

Although criminal contempt matters are generally

to be treated as regular criminal charges, there exist

8The fine imposed by the Court will be discussed infra.

®Tf no penalty is authorized, then the court should look to the

severity of the penalty actually imposed. Frank v. United States,

supra, Since § 11229 of the California Penal Code specifically au-

thorizes a maximum penalty of six months, the penalty actually

imposed by the court seems to be irrelevant.

Se Se ea Se

OEE

Peer

Qimiee Gita LPS

xxl

considerations in the contempt situation not applicable

to the more conventional criminal case. Bloom v. Illi-

nois, supra. The virtually limitless authority of a

court within the contempt framework was a major

factor behind the extension of the right to a jury to

the contempt trial. The Bloom court was very anxious

to interpose the jury between the defendant and what

the court termed “the arbitrary exercise of official

power.” Bloom v. Illinois, supra at 202.

It was this potential for judicial abuse that

prompted the Seventh Cirenit to adopt the aggrega-

tion rule in United States v. Seale, 461 F.2d 345 (7th

Cir. 1972). In that case the defendant was sentenced

to three months imprisonment for each of sixteen acts

of misconduct that oecurred during his trial. The

Seale court, cognizant of the need for some restric-

tions on the trial court’s summary contempt power,

aggregated the sentences and, since the total exceeded

six months, determined that the defendant was en-

titled to a jury trial. It should he noted that the ag-

eregation rule was adopted to a very limited extent;

only in summary contempt proceedings where a judge

waits until the termination of the proceedings to cite

for contempt would the sentences be combined. The

rationale behind this rule is sound—the court could

impese punishment greatly in excess of six months

for one “outrageously econtumacious” act by spreading

out the sentence among other. less serious offenses.

Tnited States v. Scale, supra at 355.

Atihwonech the Seale ease provides some insieht into

the relationship between contempt convictions and the

: eg RSet Ia a a toes Shee A TY

es

right to trial by jury, it is by no means determinative

of the issue presented by the case at bar. The Seale

court was careful to emphasize the summary nature

of the contempt involved and state that it did not

express an opinion in the case of an “indirect” con-

tempt for violation of a court injunction. United

States v. Seale, supra at 355, The Court additionally

pointed out that the indirect contempt situation is not

necessarily as susceptible to the same abuses as the

direct contempt power. This, to a certain extent, is

true. However, there exist similar difficulties in the

contempt situation where the court is punishing for

violation of its injunction that equal or surpass those

dangers inherent in the summary contempt proceed-

ings. Accordingly, this Court must examine the peti-

tioner’s contempt convictions against the background

of those cautions articulated in Bloom and Seale and

determine if there exists sufficient cause to cumulate

the authorized sentences in the case at bar.

Petitioner was charged with four counts of con-

tempt—i.c., violation of the temporary injunction on

each of four consecutive days (January 21, 22, 23, 24,

1972). The acts violating the injunction could best he

characterized as a continuing course of conduct; there

appears to be no real variation in petitioner’s conduct

on any of the four days in question. The decision to

cite petitioner on four counts is thus somewhat arbi-

trarv—petitioner was not cited for separate and dis-

tinct acts, hut merely for each of the days the pro-

seribed conduct happened to take place—since there

appears to be no legal significance connected with the

Oe Ra RER sat IR Ne oat

eee

mere passage of time. The issues presented in the case

at bar are therefore analogous to those in the Seale

case. The Court could divide petitioner’s conduct into

various periods and thus impose, separately, penalties

it could not otherwise assess without allowing a jury

trial. Thus, by compartmentalizing conduct that is

essentially continuous into blocks of time, a court

could mete out penalties far in excess of six months

and effectively avoid the necessity of a jury trial.

Although the aggregation of sentences issue has re-

ceived little attention from the courts, the “continu-

ing course of conduct” emphasis is hardly unique. The

First Cireuit has recognized that a witness commits

only a single offense when he continuously refuses

(upon First Amendment grounds) to answer ques-

tions relating to a “single subject” or a “single line

of inquiry.” Baker ». Eisenstadt, 456 F.2d 382 (1st

Cir. 1972). The court in Baker was “wary lest pros-

ecutors by their sheer ingenuity in conceiving and

stamina in asking multiple questions calling for

slightly different answers, be able to proliferate of-

fenses.” Baker v. Eisenstadt, supra at 390.

The Seventh Cireuit, interpreting the Seale deci-

sion, indicated that the aggregation rule would be

applicable in a situation where the contempt “oppres-

sively converts a single continuing offense into a series

of individual ones.” In re Chase, 468 F.2d 128, 135

(7th Cir. 1972). Although the court determined that

the defendant’s conduct was not a continuous offense,

its concern with the transparent proliferation of con-

tempts” is of significance to the case at bar.

a att 236 NT CAT HES He

xxiv

Petitioner is confronted with a dilemma identical

to that criticized in the above-mentioned cases. His

conduct having been fragmented into four segments,

petitioner’s potential imprisonment for a single course

of conduct has escalated into a total of twenty-four

months. It would appear that petitioner’s conduct can

be manipulated in such a manner as to artificially ex-

pand the number of contempt counts and thereby

avoid the necessity of a jury trial. It is such manipu-

lative potentialities that were specifically condemned

by Bloom, Baker, Seale, and Chase.

Tt should be noted that, in the case at bar, peti-

tioner was actually sentenced to only six months im-

prisonment on one count, two months imprisonment

on the other three counts to run concurrently with

the six month sentence, and four months of the six

month sentence were suspended. Petitioner thus, as a

practical matter, is confronted by only two months

actual jail time. However, as noted above, Frank v.

United States, supra makes clear that the maximum

authorized penalty is the determining factor. Peti-

tioner faced a maximum sentence of twenty-four

months when his contempt trial commenced. It was

at that time his right to a jury trial coaleseed—not

when sentence was actually imposed.

The Court wishes to stress that there exists no

evidence that the state court or any of the agencies

involved acted in an arbitrary manner or manipu-

lated the charges solely to deprive petitioner of his

jury trial. However, petitioner’s right to a trial by

jury cannot be gainsaid. The potential for abuse and

et RENE a AB LION. PF PaaS

xxXV

manipulation exists; petitioner’s constitutional right

cannot be predicated upon his ability to demonstrate

bad faith on the part of the court.

Since petitioner’s right to a jury trial existed at

the time the contempt trial began, the Court believes

that petitioner should be provided every opportunity

to exercise that right. Accordingly, the entire sentence

of the state court should be vacated and petitioner

allowed a new trial before a jury. That trial, however,

shall be limited solely to the issue of whether peti-

tioner was in violation of the temporary injunction:

petitioner will not be allowed another opportunity

to test the validity of said injunction.

Petitioner also alleges that he was entitled to a

jury trial because the fines ($1,000 on one count and

$500 on the remaining three counts for a total of

$2,500), when aggregated, amount to such a sum that

the offense could not be deemed petty. This issue, how-

ever, was not argued before any state court and thus

could not be considered by a federal court due to

petitioner’s failure to exhaust state remedies. 28

U.S.C. § 2254(b).

EDO RAL ee

ea NEAR BEF hire Peale eete Oe

Pe a nr en eee Pr ce

RO? TERR GN ie ABB REF OE Ee RM De

Appendix C

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

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

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

ing or exhibiting acts of lewdness constituting a nui-

sance upon the premises of Easy Street, 2322 South

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

tigularly described therein; and

oe

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 Fl

Camino Real, San Mateo, California and personally

served upon August Vennemever, 121 Entrada Court.

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

field. commanding the said Philip Joseph Maita and

August Vennemever, 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 anv

they mav have. why they and each of them should

not he adjndeed guilty of contempt of court and pun-

ished accordinely for wilfully disobeying and vio-

EN ATA NIE nasil,

NANO CREAT AP BALES Seo)

xx eee

lating 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 de-

scribed 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 hefore

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 Ven-

nemeyer 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:

1) The Temporary Injunction dated January 27,

1970, as thereafter modified pursuant to stipulation

of the parties set forth in the Order Modifying Pre-

;

xxix

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

disobedience or violation of said Injunction and is

not in contempt thereof and as to defendant August

Vennemeyer only the Order to Show Cause re Con-

tempt is discharged.

3) Defendant Philip J oseph Maita has at all times

since the granting of the Injunction, and the stipu-

lated 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 stipu-

lated 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

Fl Camino Real. City of San Mateo, County of San

Mateo, State of California. deliberately, wilfully and

contemptuously disobeyed, violated and failed to com-

ply with the Tnjunction and the stipulated modifiea-

tion thereof in the following particulars:

Rap tele Dee?

Liat Sat s sAG I Orval as

che 2 RRS eee WaT

“a

xxx

(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

not covered completely by material which could not

be seen through by the nearest spectator. Violated

subparagraph 2 of Paragraph 2 of the modified In-

junction by permitting, causing and exhibiting motion

pictures simulating the exhibition of acts of sexual

intercourse by, with and between human beings. Vio-

lated subparagraph 5 of Paragraph 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 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.”

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

the orivinal Temporary Tnjunction by permitting.

causing and exhibiting cocktail waitresses, the geni-

xxxi

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 In-

junction 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

oral-genital copulation. Violated subparagraph 8 of

Paragraph 2 of the modified Injunction by permitting,

causing, and exhibiting motion pictures exhibiting or

simulating sexual activity where the genitals of the

performers can then be seen.

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

the original Temporary Injunction by permitting,

causing and exhibiting cocktail waitresses the genitalia

and anuses and pubie 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 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

Injunction by permitting, causing and exhibiting

motion pictures simulating the exhibition of acts of

oral-genital copulation. Violated subparagraph 8 of

Paragraph 2 of the modified Injunction by permit-

ting, causing and exhibiting motion pictures ex-

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hibiting or 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 TInjune-

tion by the use of drawings or inanimate objects,

iat ¢ ee AOA 0 TE BAe ROOT

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 aered 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 Ad judged 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 te have occurred on

January 21, 1972, defendant Philip Joseph Maita ix

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 he incarcerated in the County Jail for

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

fine not paid and, further, that defendant Philip

Joseph Maita he 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) davs

is suspended upon condition that there be no further

violations by defendant Phili» Joseph Maita of the

Injunction herein.

ta ALAN SDE SE rd wc Rica HE

XXXiv

(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 econeurrently with the confinement im-

posed upon defendant for contempt occurring Janu-

ary 21, 1972.

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

contemptuous disohedience, 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, Mareh 13, 1972, and if the fine is not paid

in full within that time, defendant be inearcerated

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

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

that defendant Philip Tosenh Maita he confined in the

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

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XXXV

confinement to run concurrently with the confinement

imposed upon defendant for contempts occurring

January 21, 1972. é

(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 p.m.

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

in full within Ten (19) Days, defendant he inearcer-

ated 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 coneurrently with the con-

finement imposed upon defendant for contempts oc-

eurring 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’elock 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

terminate and defendant shall he ineareerated in the

County Jail as hereinbefore provided,

SRA NESE SS

DIE La Gite ow

Berwcce

XXXVi

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