Sex-Show Sentences Disallowed : Court: State justices say a jury trial is appropriate to contest charges of permitting lewd acts and prostitution in violation of a court order.

The state Supreme Court ruled Thursday that sex-show operators and others are entitled to a jury trial to contest charges of permitting lewd acts and prostitution in violation of a court order.

The justices struck down the six-month jail terms and $62,000 in fines facing James and Artie Mitchell of San Francisco in a contempt proceeding brought without a jury under the state Red Light Abatement Law.

The court, in a lead opinion by Justice David N. Eagleson, noted that even though the sentences were imposed for contempt, their severity matched that for violations of many criminal misdemeanors. “The California Constitution guarantees the defendant the right to trial by jury in such a proceeding,” Eagleson wrote.

The decision marked the second time the case has come before the state high court--and the justices Thursday reached substantially the same result as in a previous January, 1987, ruling under then-Chief Justice Rose Elizabeth Bird.

Shortly after Bird and two other justices defeated in the fall, 1986, election left office, the new and more conservative court voted quickly to reconsider the theater case and five other recently issued rulings by the old court. In five other cases, however, Bird court decisions were rejected or significantly modified.

Significant Ruling

The decision was hailed by an attorney for the Mitchells as a significant expansion of the right to a jury trial. “Historically, the jury has been a fundamental protection of the citizen against overzealous prosecutors and pliant judges,” said Thomas Steel of San Francisco. “In a case like this, where emotions often run high, a jury is especially important. It keeps the average citizen in the process of decision-making.”

Amitai Schwartz, who represented the Bar Assn. of San Francisco in urging the justices to uphold the jury-trial right, said: “It’s good to see the California Constitution is alive and well. . . . There’s been no retreat.”

State Deputy Atty. Gen. Laurence Sullivan expressed disappointment with the ruling but declined to speculate on its potential effect. “We felt we had a reasonable argument against a jury trial here,” Sullivan said. “But obviously the court disagreed. We accept that.”

In Thursday’s action, the court set down other restrictive guidelines for contempt proceedings under the venerable abatement act, a law that allows officials to proceed against businesses that offer lewd performances and prostitution.

The justices ruled that violators of injunctions in such cases may be charged with only one count of contempt for every day prohibited acts occur--rather than being charged with one count per act. Permitting a $1,000 fine for each lewd act would be “totally out of proportion,” the court observed.

And while as an alternative, violators may be held liable for contempt without a jury trial under a separate, more lenient law--one with a maximum five days in jail and $1,000 fine--the accused must be notified at the outset under which law prosecutors intend to proceed, the court said.

The ruling resulted from a nine-year legal battle between authorities and the Mitchell brothers, proprietors of a well-known film and live adult-theater business that has operated for more than 20 years here.

In 1980, San Francisco prosecutors filed a public-nuisance action against the Mitchells and theater manager Vincent Stanich under the abatement law. A court injunction was issued barring the men from allowing acts of “lewdness or prostitution” at the theater.

In 1982, police visiting the premises over a four-day period charged that performers permitted patrons to engage in oral copulation and other acts off stage in return for tips. On stage, police said, performers engaged in several lewd acts with other performers.

After a hearing without a jury, Superior Court Judge Frank W. Shaw found that the three men had violated the injunction. Under provisions of the abatement law, the two Mitchells were each fined $62,000--$1,000 for each of 62 lewd acts. Stanich was fined $6,200--$100 for each act. All three were sentenced to the maximum six months in jail but the sentences were stayed pending appeal.

In Thursday’s decision, the court noted that the state Constitution guaranteed trial by jury for all alleged misdemeanors as well as felonies. By clear implication, the justices said, such protection was intended to extend to other proceedings where jail terms and fines were as severe as that for some misdemeanors.

The court rejected the theater operators’ contention that there was insufficient evidence of lewd acts or prostitution occurring in violation of the injunction.

The justices found, however, that there was not enough proof that Stanich, the manager, had been able to prevent the acts that took place. While the Mitchell brothers could be retried, Stanich may not, the court said.

All six court members who participated in the case agreed that the contempt judgments must be invalidated. Justice Joyce L. Kennard, the newest member of the court, did not participate.

Justice Stanley Mosk, in a concurring opinion, said he did not believe prosecutors should be allowed to proceed under the more lenient contempt statute in order to prevent defendants from receiving a jury trial.

In another decision Thursday, the court reaffirmed its previously imposed ban on testimony induced by hypnosis--but ruled that in some instances, witnesses may still testify about their recollections before they were hypnotized.

The court, ruling in a 1979 San Mateo County murder case, reversed the defendant’s conviction because post-hypnotic testimony identifying him as the killer was erroneously allowed. But on retrial, the witness will be permitted to testify about events that she recalled and related before hypnosis, the justices said.

A 1985 state law sharply restricts the use of pre-hypnosis testimony to cases where statements have been preserved in writing or tape and subsequent hypnosis was performed by licensed experts. But the law, the court said, applies only to pre-hypnotic evidence taken after the law was passed.