PEOPLE v. GONZALEZ (1995)

In an effort to curtail criminal activity by the Blythe Street gang, the People of the State of California applied to the superior court for (and obtained) a preliminary injunction restraining certain activities.   About a month later, Jessie Gonzalez, a member of the Blythe Street gang, was served with a copy of the injunction.   A few weeks after that, a criminal complaint was filed charging Gonzalez with four counts of misdemeanor contempt based upon violations of the injunction.   At trial, the municipal court refused to rule on Gonzalez's attack on the validity of the preliminary injunction, concluding (correctly) that it had no jurisdiction to consider the validity of an order issued by the superior court.   Gonzalez was thereafter convicted as charged.   On appeal, the appellate department of the superior court affirmed Gonzalez's conviction, concluding (correctly) that it had no jurisdiction to address the validity of a preliminary injunction issued by another department of the superior court.

As we will explain, the jurisdictional impasse which blocks Gonzalez's right to meaningful judicial review compels the creation of an exception to the general rule that misdemeanors are tried in municipal court and leads us to conclude that where, as here, a misdemeanor contempt charge arises from an alleged violation of an injunction issued by the superior court, the superior court, to the exclusion of the municipal court, has jurisdiction over the misdemeanor contempt.

FACTS

The Preliminary Injunction

In a complaint filed on February 22, 1993, and later amended, the People (represented by the City Attorney of Los Angeles) filed a superior court action to obtain preliminary and permanent injunctions to abate a public nuisance.   (Civ.Code, §§ 3479 et seq., 3490 et seq.;  Code Civ.Proc., §§ 526, 731.)   The Blythe Street gang (a criminal street gang within the meaning of Pen.Code, § 186.22) and 500 Does were named as defendants.   Among other things, the complaint alleged gang members were regularly discharging firearms, carrying concealed weapons, using and selling illegal drugs, intimidating and assaulting others, trespassing upon private property, obstructing public streets, and so on.

At the same time the complaint was filed, the People applied for an order to show cause why a preliminary injunction should not issue and requested permission to serve the complaint and OSC on the gang by service upon five of its members.   In supporting declarations, gang experts from the Los Angeles Police Department provided background information about the Blythe Street gang, explaining that it has become progressively more violent in recent years and is currently terrorizing the immigrant population of the area, confident that its criminal activities will go largely unreported because the victims do not trust the police.   Other remediation efforts were tried (undercover surveillances, neighborhood watch programs, barricades, and so on), all to no avail.

The superior court issued an OSC and an order permitting service as requested, and a hearing was set for late March.   Before the hearing, the ACLU Foundation of Southern California appeared as amicus curiae and filed a memorandum of points and authorities to oppose issuance of a preliminary injunction.   According to the amicus brief, the requested injunction was overly broad and impermissibly infringed upon various constitutional rights of the gang members.

Service on five gang members was accomplished as ordered but no one appeared at the hearing on behalf of the gang or any of its members.   On April 7, the superior court (Hon. John H. Major) issued a preliminary injunction covering a designated map area, to be effective 24 hours “from receipt of written notice” of the injunction, restraining the Blythe Street gang and its members from (among other things) using or possessing any deadly weapon in any public place (with “deadly weapon” defined to include firearms, knives, baseball bats, metal pipes and rods, glass bottles and containers, razors, and so on);  from using or possessing flashlights, binoculars, police scanners, whistles, pagers, cellular phones and walkie-talkies;  from entering onto private property without the prior consent of the owner or other person in rightful possession;  from doing anything to obstruct the free flow of vehicular or pedestrian traffic;  and from doing a few dozen other things specified in the six-page order.

Gonzalez's Arrest

On May 11, a copy of the preliminary injunction was personally served on Jessie Gonzalez, an acknowledged member of the Blythe Street gang.   On May 28, Gonzalez (throwing beer bottles as he ran) fled from officers who were conducting a narcotics investigation in the area designated in the preliminary injunction.   Ultimately, Gonzalez was found hiding inside an apartment he had entered without consent.   Gonzalez was arrested.

The Municipal Court Proceedings

In a complaint filed on June 1 and later amended, Gonzalez was charged with four counts of misdemeanor contempt arising from his violation of the preliminary injunction (possessing a glass bottle, possessing a pager, entering private property without consent, and obstructing traffic).   Gonzalez demurred, contending the preliminary injunction was impermissibly vague, overly broad and otherwise defective.   The municipal court (Hon. Lloyd M. Nash) refused to rule on these issues, concluding that its review at that stage was limited to the sufficiency of the complaint and that the complaint merely alleged the lawful issuance of the preliminary injunction.

At trial, Gonzalez waived jury, stipulated that he was a member of the Blythe Street gang, that he had been served with a copy of the preliminary injunction, and that he had committed the acts charged against him, and renewed his claim that the preliminary injunction was impermissibly vague, overly broad and otherwise defective.   The trial court (Judge Nash) rejected these arguments, not on the merits but on the ground that it had no jurisdiction to rule on the validity of the injunction.   Gonzalez was found guilty as charged and was placed on summary probation on condition that he serve 90 days in county jail.

The Appellate Department Proceedings

Following his conviction, Gonzalez filed a petition for a writ of habeas corpus in the appellate department of the superior court.   The appellate department denied the petition with the notation that Gonzalez had “an adequate remedy via appeal.”   Gonzalez dutifully filed a notice of appeal from the municipal court judgment and, in his brief to the appellate department, contended the municipal court did have jurisdiction to rule on the validity of the preliminary injunction.   Later, the appellate department issued an order for further briefing in which it asked:  “Does the appellate department of the superior court have jurisdiction to review any portion of an injunction issued by another department of the superior court?  [¶] If the appellate department does not have such jurisdiction, what is the scope of review on [Gonzalez's] appeal?”

Ultimately, the appellate department filed an “opinion and judgment,” certified for publication, in which each of the three judges wrote separately.   One judge (Hon. Abby Soven) concluded that the appellate department had jurisdiction to consider the validity of the preliminary injunction because, unless it did so, Gonzalez “simply has nowhere else to go as a matter of right.”   Judge Soven then considered and rejected Gonzalez's claim that the injunction was invalid.   The other judges (Hon. Robert L. Roberson, Jr. and Hon. Barbara Jean Johnson), in separate opinions, concurred in the result (an affirmance) but disagreed with the finding of jurisdiction (thus transforming Judge Soven's views on the validity of the injunction into a dissent since a majority of the panel found it lacked jurisdiction to review an injunction issued by another department of the same court).

We ordered the matter transferred to us for the limited purpose of determining the jurisdictional issues.

DISCUSSION

The issue in this case is not whether Gonzalez may question the validity of the preliminary injunction but where, when and how he may do so.

I.

VIOLATIONS OF PRELIMINARY INJUNCTIONS

 Under existing law, violations of preliminary injunctions prohibiting public nuisances may be pursued by either of two distinct procedures—a contempt proceeding in superior court (Code Civ.Proc., § 1209, subd. (a)(5) [the disobedience of any lawful court order is a contempt of court] ) or a misdemeanor prosecution in municipal court (Pen.Code, § 166, subd. (a)(4) [the willful disobedience of a lawfully issued court order is a misdemeanor] ).

A.

Orders to Show Cause Re Contempt

In the typical case, preliminary injunctions are enforced by contempt proceedings initiated in the issuing court.  (Code Civ.Proc., § 1212.)   The plaintiff ¹ files an application for an order to show cause why the contemnor ought not to be held in contempt, supported by an affidavit with facts showing (a) the rendition of a valid order, (b) the defendant's actual knowledge of the order and (c) the defendant's willful disobedience of the order.  (Code Civ.Proc., § 1211;  Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784, 242 Cal.Rptr. 148.)   If the court is satisfied with the sufficiency of the affidavit, it will issue an OSC which sets the date and time for the hearing and which must be served upon the contemnor.  (Code Civ.Proc., § 1212;  Kroneberger v. Superior Court (1961) 196 Cal.App.2d 206, 209–210, 16 Cal.Rptr. 339.)

 Although this remedy is referred to as a “civil contempt proceeding,” it is criminal in nature because of the potential penalties—five days in county jail or a fine of up to $1,000 or both for each contempt.   (Code Civ.Proc., § 1218, subd. (a);  In re Witherspoon (1984) 162 Cal.App.3d 1000, 1001, 209 Cal.Rptr. 67.)   As a result, most of the constitutional protections available in a criminal case must be applied in civil contempt proceedings, including the presumption of innocence, the reasonable doubt burden of proof, the right to cross-examination, and the privilege against self-incrimination.  (Code Civ.Proc., § 1217;  Weil & Brown, Cal.Practice Guide:  Civil Procedure Before Trial (Rutter 1994) Provisional Remedies, §§ 9:718–9:720, pp. 9(II)–43–9(II)–44.)   In a civil contempt proceeding, however, the contemnor is not entitled to a jury trial (because a civil contempt is considered a “petty offense”).  (Pacific Tel. & Tel. Co. v. Superior Court (1968) 265 Cal.App.2d 370, 371–375, 72 Cal.Rptr. 177.)

 When this civil contempt procedure is used, the contemnor has the right to attack the validity of the underlying order in the court where the contempt is pending—either before trial, by demurrer on grounds of constitutional invalidity such as overbreadth Watsonville Canning & Frozen Food Co. v. Superior Court (1986) 178 Cal.App.3d 1242, 1245–1246, 224 Cal.Rptr. 303) or at trial, by way of defense (ibid.;   see also Weil & Brown, supra, Provisional Remedies, § 9:722, p. 9(II)–44).

 As noted above, when the superior court finds the contemnor guilty of civil contempt, the contemnor may be punished by a five-day jail sentence or a $1,000 fine or both for each separate act of contempt.   (Code Civ.Proc., § 1218, subd. (a);  Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1248, 265 Cal.Rptr. 144, 783 P.2d 731.)   Once convicted, however, the contemnor's only right of appellate review is by a petition for a writ of certiorari or, where appropriate, by habeas corpus—and there is no right to appeal.  (Code Civ.Proc., §§ 904.1, 1222;  Conn v. Superior Court, supra, 196 Cal.App.3d at p. 784, 242 Cal.Rptr. 148;  In re Holmes (1983) 145 Cal.App.3d 934, 941, 193 Cal.Rptr. 790;  In re Buckley (1973) 10 Cal.3d 237, 259, 110 Cal.Rptr. 121, 514 P.2d 1201;  Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 115, fn. 3, 116 Cal.Rptr. 713.) ²

B.

Misdemeanor Criminal Contempt Prosecutions

Enforcement of a preliminary injunction by means of criminal contempt proceedings differs substantially from the civil contempt process described above.

 For one thing, since a criminal contempt is a misdemeanor punishable by imprisonment in county jail for up to six months or by a fine of up to $1,000 or by both, it is generally prosecuted not in the superior court where the injunction was issued, but in the local municipal court where proceedings are initiated by the filing of a criminal complaint.  (Pen.Code, §§ 17, 166, subd. (a)(4), 949, 1462;  In re McKinney (1968) 70 Cal.2d 8, 13–14, 73 Cal.Rptr. 580, 447 P.2d 972;  see also People v. McAlister (1976) 54 Cal.App.3d 918, 927, 126 Cal.Rptr. 881;  People v. Mulholland (1940) 16 Cal.2d 62, 66, 104 P.2d 1045;  People v. Palomino (1940) 41 Cal.App.2d 155, 156, 106 P.2d 66;  In re Joiner (1960) 180 Cal.App.2d 250, 254–255, 4 Cal.Rptr. 667.)   For another, in criminal contempt proceedings, the defendant has all of the rights he would have in any criminal proceeding, including the right to trial by jury (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1240, 265 Cal.Rptr. 144, 783 P.2d 731) and, if convicted, the right to appeal to the appellate department of the superior court.  (Pen.Code, § 1466, subd. (a)(2).)

C.

As can be seen, the People could have prosecuted Gonzalez by either a superior court civil contempt proceeding or a misdemeanor complaint for criminal contempt.   It is the People's choice of the latter over the former that created the problems now before us.

II.

THE MUNICIPAL COURT HAS NO JURISDICTION TO CONSIDER THE VALIDITY OF AN ORDER ISSUED BY THE SUPERIOR COURT

 Although the municipal court had jurisdiction over Gonzalez's misdemeanor criminal case, it did not have jurisdiction to review the validity of the superior court's preliminary injunction.  (Cal. Const., art. VI, § 11;  Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742, 233 Cal.Rptr. 607 [jurisdiction to review or revise decisions of the superior courts is vested by our Constitution in the Supreme Court and Court of Appeal].) ³

 We reject Gonzalez's contention that the People “vested the municipal court with jurisdiction” to consider the validity of the injunction by filing misdemeanor contempt charges in the municipal court.   Subject matter jurisdiction is fixed by the California Constitution and it cannot be conferred by the consent of the parties, waiver or estoppel.  (2 Witkin, Cal.Procedure, supra, Jurisdiction, § 10, pp. 374–376, and cases there cited.)   For this reason, Gonzalez's reliance on People v. Lindemann (1992) 8 Cal.App.4th Supp. 7, 11 Cal.Rptr.2d 886, is misplaced.   In Lindemann, the municipal court dismissed a criminal contempt case on the ground of forum non conveniens (because the municipal court thought the People ought to enforce a family law order in the superior court where it was issued, not in the municipal court).  Lindemann holds that the municipal court has exclusive jurisdiction over the prosecution of a misdemeanor contempt arising from the violation of a superior court order—but it does not consider whether the municipal court would have jurisdiction to hear an attack on the validity of the superior court's order because no such attack was made in Lindemann.

III.

THE APPELLATE DEPARTMENT OF THE SUPERIOR COURT HAS NO JURISDICTION TO CONSIDER THE VALIDITY OF AN ORDER ISSUED BY ANOTHER SUPERIOR COURT DEPARTMENT

 Although the appellate department of the superior court had jurisdiction to hear Gonzalez's appeal from his misdemeanor conviction (Pen.Code, § 1466, subd. (a)(2)), it did not have jurisdiction to review the validity of the preliminary injunction issued by another department of the superior court.  (Cal. Const., art. VI, § 11;  Williams v. Superior Court (1939) 14 Cal.2d 656, 662, 96 P.2d 334;  Ford v. Superior Court, supra, 188 Cal.App.3d at p. 742, 233 Cal.Rptr. 607.)

In Williams, one superior court judge (sitting in department 34) issued an OSC directing a court reporter to explain her failure to comply with the judge's earlier order to prepare a transcript in conformance with the reporter's agreement with a litigant.   Before the date set for hearing on the OSC, another superior court judge (sitting in department 12) made an order purporting to declare void the original order issued by department 34 (the order based on the agreement with the litigant).   At that point, the litigant filed a petition for writ of certiorari and, ultimately, the case ended up before the Supreme Court.  (Williams v. Superior Court, supra, 14 Cal.2d at p. 658, 96 P.2d 334.)   This is what the Supreme Court had to say about the efforts of one superior court judge to review an order issued by another superior court judge:

“We are of the opinion that in making the ․ order the judge of department 12 exceeded his jurisdiction.   The state Constitution (art. VI, § 6) provides for but one superior court in each county ․;  it further provides that there may be as many sessions of said court at the same time as there are judges elected, appointed or assigned thereto, and that the judgments, orders and proceedings of any one session of the superior court held by any one or more of the judges thereof shall be equally effectual as though all the judges of said court presided at such session.   Accordingly, it has been held that jurisdiction is vested by the Constitution in the court and not in any particular judge or department thereof․  It follows, therefore, that where a proceeding has been duly assigned for hearing and determination to one department of the superior court by the presiding judge of said court in conformity with the rules thereof, and the proceeding so assigned has not been finally disposed of therein or legally removed therefrom, it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned․  In other words, while one department is exercising the jurisdiction vested by the Constitution in the superior court of that county, the other departments thereof are as distinct therefrom as other superior courts․  If such were not the law, conflicting adjudications of the same subject-matter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion․

“Here, ․ at the time the judge of department 12 made the order under review, the proceeding which had been duly assigned to department 34 for hearing and determination had not been finally disposed of therein.   The contempt proceeding invoked for the enforcement of the court's previous order was still pending, and during the pendency thereof the judge of department 12 made the order in question, the obvious purport of which was to nullify the proceedings which were then taking place in department 34.   This the judge of department 12 was without jurisdiction to do․  [T]he judge presiding in one department has the power to make and enforce all orders necessary for the disposition of the proceeding that has been assigned to his department, and no judge sitting in any other department can interfere with him in that exercise of such power.”  (Williams v. Superior Court, supra, 14 Cal.2d at pp. 662–663, 96 P.2d 334;  emphasis added.) ⁴

In Ford v. Superior Court, supra, 188 Cal.App.3d 737, 233 Cal.Rptr. 607, the plaintiff filed an action for injunctive and declaratory relief against a superior court judge and the clerk of the court to obtain orders restraining the judge and the clerk from acting in aid of execution of a judgment entered by another superior court judge in another case.   Demurrers were sustained without leave to amend and the plaintiff appealed.   Relying on Williams v. Superior Court, supra, 14 Cal.2d at pages 662–663, 96 P.2d 334, the Court of Appeal affirmed, holding that “[o]ne department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court.”  (Ford v. Superior Court, supra, 188 Cal.App.3d at p. 742, 233 Cal.Rptr. 607;  see also Elsea v. Saberi (1992) 4 Cal.App.4th 625, 631, 5 Cal.Rptr.2d 742.)

 In the case before us, the proceeding in which the preliminary injunction was granted was assigned for hearing and determination to Judge Major.   At the time Gonzalez's appeal was pending before the appellate department, the preliminary injunction remained in effect and subject to modification at any time (Welsch v. Goswick (1982) 130 Cal.App.3d 398, 404, 181 Cal.Rptr. 703) and was still pending in Judge Major's court (the record does not suggest the case had been finally disposed of by trial or that it was otherwise removed from Judge Major's court).⁵  Accordingly, it was beyond the jurisdiction of the appellate department to interfere with Judge Major's order—which, of course, it would be doing if it ruled the preliminary injunction was vague or overly broad or otherwise unenforceable against Gonzalez.   Aside from the fact that the Court of Appeal and the Supreme Court are the only courts vested with jurisdiction to review the validity of Judge Major's orders (Cal. Const., art. IV, § 11), the appellate department's conflicting adjudication of the same subject matter would, in the words of our Supreme Court, “bring about an anomalous situation and doubtless lead to much confusion.”  (Williams v. Superior Court, supra, 14 Cal.2d at pp. 662–663, 96 P.2d 334.)   In short, the appellate department would have been acting in excess of its jurisdiction if it had reviewed or otherwise considered the validity of the preliminary injunction issued by Judge Major.⁶

IV.

THERE IS NO RATIONAL BASIS FOR DEPRIVING A DEFENDANT CONVICTED OF CRIMINAL CONTEMPT OF HIS RIGHT TO AN APPEAL WHERE HE CAN ATTACK THE VALIDITY OF THE ORDER WHICH RESULTED IN HIS CONTEMPT CONVICTION

 The right to appeal is a creature of statute, not a constitutional right.  (Code Civ.Proc., § 904.1;  Pen.Code, §§ 1237, 1466;  Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 157, 8 Cal.Rptr. 107 [there “is no constitutional right to an appeal;  the appellate procedure is entirely statutory and subject to complete legislative control”];  9 Witkin, Cal.Procedure, supra, Appeal, § 2, p. 33.)   Here, the Legislature has conferred a right to appeal (Pen.Code, § 1466, subd. (a)(2)) but the jurisdictional quagmire discussed above makes that right meaningless.⁷  Not surprisingly, Gonzalez does not like this result.   The People, however, argue strenuously in support of the conclusions we have reached here—that neither the municipal court nor the appellate department has jurisdiction to review the validity of the injunction—but contend it is of no consequence that Gonzalez is deprived of his right to a meaningful appeal.   It is enough, according to the People, that he has a right to review by way of his right to petition the Court of Appeal and the Supreme Court for a writ of habeas corpus or a writ of certiorari.   We disagree.

The writ remedies, though they exist (In re Berry (1968) 68 Cal.2d 137, 140, 65 Cal.Rptr. 273, 436 P.2d 273;  In re Buckley, supra, 10 Cal.3d at p. 259, 110 Cal.Rptr. 121, 514 P.2d 1201;  Conn v. Superior Court, supra, 196 Cal.App.3d at p. 784, 242 Cal.Rptr. 148), are not an adequate substitute when an appeal is granted as a matter of right but, for reasons outside the control of the defendant, that right is made meaningless.⁸  To conclude otherwise would be to sanction a result which deprives Gonzalez of his equal protection rights under the state and federal Constitutions.

 Under the equal protection clause of the Fourteenth Amendment of the federal Constitution, persons under like circumstances must be given equal protection and security in (among other things) the enjoyment of personal and civil rights and the prevention and redress of wrongs.   The equality guaranteed by the equal protection clause is equality under the same conditions and among persons similarly situated.   What this means is that reasonable classifications may be made but they may not be arbitrary and must be based upon some difference in the classes having a substantial relation to a legitimate object.  (See generally 8 Witkin, Summary of Cal.Law (9th ed. 1988) Constitutional Law, § 591 et seq.)   Similar rights exist under the California Constitution (Cal. Const., art. I, § 7(a)) and where the question is whether equal protection is denied, the effect of both constitutions is the same.  (County of L.A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d 378, 389, 196 P.2d 773.)

In addition, section 16(a) of article IV of the California Constitution “requires that all laws of a general nature have a uniform operation.   This has been held generally to require a reasonable classification of persons upon whom the law is to operate.   The classification must be one that is founded upon some natural or intrinsic or constitutional distinction․  Likewise, those within the class, that is those persons similarly situated with respect to that law, must be subjected to equal burdens․”  (Dept. of Mental Hygiene v. McGilvery (1958) 50 Cal.2d 742, 754, 329 P.2d 689.)   For this reason, “[e]qual protection of the law is not afforded when a statute imposes a particular disability upon a class arbitrarily selected from a larger number of persons, all of whom stand in the same relation to the burden imposed, and between which class and the others no reasonable distinction or substantial difference can be found to warrant the inclusion of the one and the exclusion of the other.”  (Ibid.)

Section 1466 of the Penal Code gives every defendant convicted of a misdemeanor in municipal court the right to appeal to the appellate department of the superior court.   On its face, therefore, it operates uniformly—and it is only its application in this case that carves out a classification of convicted defendants upon whom it does not operate equally—those convicted of misdemeanor contempt based upon violations of an injunction issued by the superior court who, on appeal, seek to challenge the validity of the injunction.   Clearly, there is no rational basis (or any basis at all) for this classification.   Where a right to appeal is granted, that right must include the opportunity to obtain judicial review of all relevant issues, particularly those of constitutional dimension and those involving the legality of the underlying prosecution.   Had Gonzalez been convicted of an act prohibited by a newly enacted statute, the appellate department could have considered his attack upon the validity of that statute.   There is no rhyme or reason justifying his inability to do so when he stands convicted of an act prohibited by an injunction.

Here, the question is not whether the Legislature had the right to adopt a statute based upon an improper classification, but whether a city attorney has the right to restrict a convicted misdemeanant's appellate rights by the manner in which an injunction is enforced.   Clearly, a prosecuting attorney has no such right.   Here, as always, local enforcement efforts cannot proceed if they are inconsistent with state law.  (Cal. Const., art. XI, § 7 [cities and counties have constitutional authority to make and enforce within their limits “all local, police, sanitary, and other ordinances and regulations not in conflict with general laws”];  cf. Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290, 293–304, 219 Cal.Rptr. 467, 707 P.2d 840;  Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.)   Of course, the fact that a city attorney brings suit in the name of “the People” does not alter the fact that a city attorney may only act at the local level.  (Gov.Code, § 72193.) ⁹

V.

WHEN A MISDEMEANOR CONTEMPT IS BASED UPON A VIOLATION OF A PRELIMINARY INJUNCTION, THE SUPERIOR COURT HAS EXCLUSIVE JURISDICTION OVER THE MISDEMEANOR AND THE DEFENDANT, IF CONVICTED, HAS THE RIGHT TO APPEAL TO THE COURT OF APPEAL

 We see no rational basis for permitting a city attorney to pursue a remedy which, if successful, will necessarily deprive the defendant of a meaningful right to appeal.   On the other hand, a city attorney does have the right to obtain injunctive relief to abate a public nuisance.   To reconcile the rights of the People to be free from a public nuisance with the rights of a defendant in a criminal case to a meaningful appeal, we conclude that where, as here, a misdemeanor contempt charge arises from the violation of an injunction issued by the superior court, the superior court has exclusive jurisdiction over the misdemeanor contempt charge and the defendant, if convicted, has the right to appeal to the Court of Appeal.

A.

 In the words of our Supreme Court, “[a]uthority both venerable and recent supports the general rule that a superior court has no jurisdiction over misdemeanor offenses.”  (In re McKinney, supra, 70 Cal.2d at p. 13, 73 Cal.Rptr. 580, 447 P.2d 972;  emphasis added.)   The rule, however, is not absolute and where jurisdictional provisions clash with legislative requirements, an exception can be made.  (Ibid.)  For example, the statutory requirement that all offenses “connected together in their commission” must be joined (Pen.Code, § 954) gives the superior court jurisdiction over a misdemeanor when a defendant is charged with both a felony and a misdemeanor—notwithstanding the statutory grant to the municipal court of jurisdiction over misdemeanors.  (Kellett v. Superior Court (1966) 63 Cal.2d 822, 826–828, 48 Cal.Rptr. 366, 409 P.2d 206;  In re McKinney, supra, 70 Cal.2d at p. 13, 73 Cal.Rptr. 580, 447 P.2d 972.)

In McKinney, a witness was held in direct contempt when he refused to answer questions during a superior court trial.   He was sent to jail, there to remain until he agreed to answer.   He remained in jail throughout the trial and was then brought before the superior court, which found him guilty of misdemeanor contempt under Penal Code section 166, for refusing to answer when ordered.   The matter came before the Supreme Court on the witness's habeas corpus petition, where the Supreme Court confirmed the trial court's right to summarily imprison a direct contemnor for five days and its right to imprison a contemnor until he performs (In re McKinney, supra, 70 Cal.2d at p. 12, 73 Cal.Rptr. 580, 447 P.2d 972)—but rejected the superior court's claim that it could find the contemnor guilty of misdemeanor contempt under Penal Code section 166.  (Id. at pp. 13–14, 73 Cal.Rptr. 580, 447 P.2d 972.)   Although it can thus be said that McKinney holds that the superior court is without jurisdiction to punish a direct contemnor for misdemeanor criminal contempt, it is clear that it did so under the facts just described and not in the context of the jurisdictional quagmire present in the case before us.   For this reason (and because McKinney itself acknowledges the need for exceptions to resolve statutory jurisdictional clashes), we conclude the result we reach in this case is not inconsistent with McKinney.

Moreover, the seminal case on which McKinney relies for the “venerable” rule that a superior court has no jurisdiction over misdemeanor offenses (In re McKinney, supra, 70 Cal.2d at p. 13, 73 Cal.Rptr. 580, 447 P.2d 972) dates back to a time when Penal Code section 1462 provided that, in those counties where municipal courts had been established, the “municipal court shall have exclusive jurisdiction of all misdemeanors ” committed within the court's jurisdiction.  (In re Application of Luna (1927) 201 Cal. 405, 407, 257 P. 76;  emphasis added.)   As presently drafted, subdivision (a) of section 1462 of the Penal Code provides that municipal courts have jurisdiction over misdemeanors committed within their geographical boundaries “except those of which the juvenile court is given jurisdiction and those of which other courts are given exclusive jurisdiction.”  (Emphasis added.)   As a result, the statutory allocation of jurisdiction over misdemeanors is no longer absolute.¹⁰

B.

Just as the clash between sections 954 and 1462 of the Penal Code was resolved by a transfer of misdemeanor jurisdiction to the superior court, so too does the clash between Gonzalez's right to meaningful appellate review (Pen.Code, § 1466, subd. (a)(2);  Cal. Const., art. IV, § 16(a)) and the People's right to enforce the injunction (Pen.Code, § 166, subd. (a)(4)) resolve itself by a transfer of misdemeanor jurisdiction to the superior court.   Stated more fairly, this resolution by means of a transfer of misdemeanor jurisdiction, while imperfect, creates less mischief than the alternatives.

In a county the size of Los Angeles, it is more likely than not that trial of the misdemeanor contempt in superior court will not mean trial before the same judge who issued the preliminary injunction.   Trial to another judge presents a variation on the theme discussed above regarding the appellate department's inability to review Judge Major's order.  (Part III, ante.)   Here, however, the jurisdictional problem is not fatal—because the defendant will have an opportunity for meaningful review on appeal to the Court of Appeal.   On remand, therefore, the superior court judge to whom this case is assigned (assuming it will be someone other than Judge Major) must treat the injunction as valid and enforceable.¹¹  If convicted, however, Gonzalez will have a right to appeal to us and, on that appeal, to obtain full and complete review of the injunction.   Alternatively, Gonzalez can (although he does not have to) apply to Judge Major for modification of the injunction (since Gonzalez is now a defendant in that action, having been served after the injunction issued) or, in this case, petition before trial for review by way of habeas corpus or certiorari.   In short, he is in about the same position as a defendant prosecuted under a statute previously upheld at the intermediate appellate level—in which event the trial judge would be bound by the appellate ruling but the Court of Appeal would not.  (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Under this approach, therefore, we have preserved the right of the People to enforce the injunction by misdemeanor criminal contempt and obtain, upon conviction, a six-month jail sentence for each contempt.   At the same time, we have protected Gonzalez's right to meaningful appellate review.

We realize, however, that under this approach we are increasing the caseload of the already overburdened superior courts, although to what extent we do not know.   We do not know whether Gonzalez's case is one of a small number of criminal contempt prosecutions under this type of injunction or one of many.   We also do not know how many other types of injunctions will be affected by our decision in this case.   For example, if civil harassment injunctions (Code Civ.Proc., § 527.6) are now enforced by misdemeanor contempt proceedings in municipal court rather than civil contempt proceedings in superior court, no crystal ball is required to foresee the next case, in which the defendant claims a right to attack the harassment injunction and demands a transfer to superior court.

We have considered several alternatives and rejected each of them because they create more rather than fewer problems.   For at least two reasons, we cannot permit the People to file their misdemeanor contempt charges in municipal court and place the burden on the defendant to request a transfer if, and only if, he elects to attack the injunction.   First, this would compel the defendant to choose between his right to a speedy trial and his right to meaningful review of the injunction, a choice he cannot be compelled to make.  (Cf. People v. Escarcega (1986) 186 Cal.App.3d 379, 386, 230 Cal.Rptr. 638 [defendant cannot be made to choose between his right to representation and right to speedy trial].)   Second, this approach would require the expenditure of more time and public money, to no avail—because a failure to request a transfer would inevitably subject defense counsel to a charge of ineffective representation, the conclusion is unavoidable that a transfer would be sought in virtually every case.

We considered an approach which construed the city attorney's decision to obtain an injunction to abate a nuisance (as opposed to a straight criminal prosecution) as an election of remedies and a waiver of the right to pursue a contemnor in criminal court, restricting enforcement to civil contempt proceedings in superior court.   This approach is unacceptable for the simple reason that it eviscerates the People's ability to enforce the injunction by reducing the potential penalty from six months to five days.

We considered other approaches but rejected them all for one reason or another.   As a result, the fact that we are increasing the superior court's caseload is a troublesome but unavoidable side-effect of the problem presented in this case.

C.

We encourage the Legislature to examine the problem presented by this case.   As recognized by the recent enactment of the California Street Terrorism Enforcement and Prevention Act (Pen.Code, § 186.20 et seq.), members of violent criminal street gangs commit crimes and threaten and terrorize peaceful citizens, thus posing a clear and present danger to public order and safety.   The Legislature has not, however, condoned the use of general preliminary injunctions to criminalize conduct which is otherwise lawful (such as carrying pagers, climbing trees, possessing whistles, using vulgar language and similar conduct, all of which is prohibited by Judge Major's injunction).   Of course, the courts have not condoned such injunctions either, nor have they condemned them—perhaps because the problem which surfaced finally in this case prevented earlier judicial review of the underlying injunction.

Unless and until the Legislature acts, we believe there is no rational basis for providing a lesser degree of appellate review when someone is convicted of violating a judge-made law rather than a statute.   To the contrary, the opposite ought to be true.  (Cf. Harris v. City of Compton (1985) 172 Cal.App.3d 1, 16, 217 Cal.Rptr. 884 (conc. opn. of Hanson, J.) [“the Legislature and not the judiciary is the constitutionally mandated department of government charged with the responsibility of setting public policy which impacts so drastically on society ․ and ․ the Legislature is far better equipped than the courts to investigate and reconcile the myriad of competing interests”].)   We hold, therefore, that when a misdemeanor contempt charge arises from an alleged violation of an injunction issued by the superior court, the superior court has exclusive jurisdiction over the misdemeanor contempt and the defendant, if convicted, has the right to appeal to the Court of Appeal.¹²

DISPOSITION

The judgment is reversed and the cause is remanded to the appellate department with directions to issue an order directing the municipal court to vacate the judgment of conviction and transfer the misdemeanor charges against Gonzalez to the superior court for trial.

FOOTNOTES

1.   Although any party to a civil action may obtain a preliminary injunction (Code Civ.Proc., § 526, subd. (a)(3)), it is usually the plaintiff who seeks and obtains this remedy.

2.   In In re Buckley, supra, 10 Cal.3d at pages 258–259, 110 Cal.Rptr. 121, 514 P.2d 1201, and in Bell v. Hongisto (9th Cir.1974) 501 F.2d 346, our Supreme Court and the Ninth Circuit Court of Appeals both held (in direct contempt cases) that the availability of an appeal from a conviction of criminal contempt under Penal Code section 166 does not mean the absence of a right to appeal from a judgment of civil contempt denies the contemnor equal protection of the laws.

3.   Since the municipal court (which is a court of limited jurisdiction) has no jurisdiction to issue the type of preliminary injunction at issue in this case (St. James Church v. Superior Court (1955) 135 Cal.App.2d 352, 362, 287 P.2d 387), it follows a fortiori that it ought not to have jurisdiction to rule on the validity of an injunction issued by a superior court of general jurisdiction.   We emphasize, however, that this is a question of subject matter jurisdiction, not one of stare decisis (which does not apply to unpublished interlocutory trial court orders) (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937;  King v. Order of Travelers (1948) 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 763 et seq.) or of the “law of the case” doctrine (which applies only to a final decision of an appellate court in the same case) (Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049;  People v. Medina (1972) 6 Cal.3d 484, 491, fn. 7, 99 Cal.Rptr. 630, 492 P.2d 686;  9 Witkin, Cal.Procedure, supra, Appeal, §§ 737–738, pp. 705–708) or of collateral estoppel (which applies only to final judgments) (People v. Howard (1988) 44 Cal.3d 375, 411, 243 Cal.Rptr. 842, 749 P.2d 279).

4.   In the appellate department, Judge Soven (citing 2 Witkin, Cal.Procedure, supra, Courts, § 194, pp. 221–223) suggested that Williams “does not state an absolute rule․”  Mr. Witkin, however, states only that one superior court judge may, in a later stage of the case, make a ruling inconsistent with an earlier ruling by a different judge.   For example, the judge presiding at trial may exclude evidence on the ground that an amended complaint does not state facts sufficient to constitute a cause of action, notwithstanding that another judge previously overruled a demurrer on the same ground.  (Timm v. McCartney (1935) 9 Cal.App.2d 230, 232, 49 P.2d 315.)   Similarly, the fact that one judge has overruled a demurrer does not prevent another judge from later granting a motion for judgment on the pleadings.  (Wrightson v. Dougherty (1936) 5 Cal.2d 257, 265, 54 P.2d 13.)   In these and similar cases, the matter before the first judge has either been “finally disposed of” or “legally removed” to another department and the original judge is no longer “exercising the jurisdiction vested by the Constitution” in that judge.   (Williams v. Superior Court, supra, 14 Cal.2d at pp. 662–663, 96 P.2d 334.)As Mr. Witkin observes elsewhere, the legitimate transfer of a pending case from one superior court judge or department to another has nothing to do with the problem which arises “when a case has been assigned to one department and the judge of that department is proceeding to hear it.   He must of course be allowed to exercise an exclusive jurisdiction over that case until its determination, free from unwarranted interference by the judge of another department.”  (2 Witkin, Cal.Procedure, supra, Courts, § 191, pp. 217–218.)   According to Mr. Witkin, when distinct courts are involved (from different counties), the conflict affects “subject matter jurisdiction” but where “the conflict is merely between judges of different departments of the same court, it would seem that subject matter jurisdiction is not affected and that the objection is one of excess of jurisdiction on the part of the interfering judge.”  (Id. at p. 218.)   The bottom line is the same—an order made by a judge acting in excess of his jurisdiction is void to the same extent an order made by a judge acting without jurisdiction is void.

5.   The existence of a permanent (as opposed to a preliminary) injunction might solve some of the problems discussed in Williams v. Superior Court, supra, 14 Cal.2d at pages 662–663, 96 P.2d 334, but it would not solve all of them (such as inconsistent rulings) and it would still require an impermissible “review” by the appellate department of an order made by another superior court department.

6.   The appellate department is a department of the superior court just like every other department (Super.Ct.L.A.County Rules, rule 2.4) and the fact that the appellate department is a creature of statute (Code Civ.Proc., § 77) cannot diminish the Court of Appeal's appellate jurisdiction as fixed by the California Constitution in order to enlarge the superior court's jurisdiction.  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 191–192, 137 Cal.Rptr. 460, 561 P.2d 1148.)And, for the same reasons we rejected Gonzalez's suggestion that the People conferred jurisdiction on the municipal court by filing the criminal contempt charge in that court, so too do we reject his claim that the People conferred jurisdiction on the appellate department to consider Gonzalez's attack on the validity of the injunction.   Appellate jurisdiction is fixed by the California Constitution and cannot be conferred by the parties.

7.   Judgments of the appellate department are not appealable to the Court of Appeal, the Supreme Court or any other court.  (Code Civ.Proc., § 904.1, subd. (a);  Pen.Code, §§ 1237, 1238.)   Of course, a party to an appeal may ask the appellate department to certify the transfer of a case to the Court of Appeal, and the appellate department may do so on its own motion.  (Cal.Rules of Court, rule 63(a).)   But certification is not a matter of right (Cal.Rules of Court, rules 61–63) and the only right to an appeal by a party convicted of a misdemeanor in municipal court is to the appellate department of the superior court.

8.   The People contend (and one judge in the appellate department agreed) that Gonzalez could and should have moved for a modification of the preliminary injunction when it was served upon him or when the misdemeanor complaint was filed and, if unsuccessful, appealed from those orders or from the preliminary injunction itself.   While he had the right to seek modification, it is immaterial that he chose not to (or, more probably, did not know he had the right to do so).   As our Supreme Court explained in In re Berry, supra, 68 Cal.2d at pages 148–149, 65 Cal.Rptr. 273, 436 P.2d 273, “a person affected by an injunctive order has available to him two alternative methods by which he may challenge the validity of such order on the ground that it was issued without or in excess of jurisdiction.   He may consider it a more prudent course to comply with the order while seeking a judicial declaration as to its jurisdictional validity․  On the other hand, he may conclude that the exigencies of the situation or the magnitude of the rights involved render immediate action worth the cost of peril.   In the latter event, such a person, under California law, may disobey the order and raise his jurisdictional contentions when he is sought to be punished for such disobedience.   If he has correctly assessed his legal position, and it is therefore finally determined that the order was issued without or in excess of jurisdiction, his violation of such void order constitutes no punishable wrong․  If, however, the final judicial determination is otherwise he may be punished.”

9.   We cannot solve this problem by vesting jurisdiction in the appellate department by Court of Appeal fiat or by creating a right to appeal to the Court of Appeal on a limited issue (the validity of the injunction) or on any issue.   The former is prohibited by the California Constitution, and the right to do the latter is vested solely in the Legislature, which has complete control over the right to appeal.   (Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825;  In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638, 235 Cal.Rptr. 198.)   As will appear, however, there is something we can do.

10.   The only recent case citing Luna for its “venerable” rule does so in passing and without mention of the underlying statutory change.  (People v. Clark (1971) 17 Cal.App.3d 890, 895, 95 Cal.Rptr. 411.)

11.   We do not mean to preclude an assignment to Judge Major.

12.   The procedures necessary to implement this rule should be devised by the trial courts.   We note, however, that although a contempt prosecuted under subdivision (a)(4) of Penal Code section 166 has the “quality of a criminal offense” (In re McKinney, supra, 70 Cal.2d at pp. 13–14, 73 Cal.Rptr. 580, 447 P.2d 972), a contempt arising from the violation of an injunction is not a “public offense” within the meaning of Penal Code section 15 (a “public offense” is an “act committed or omitted in violation of a law forbidding or commanding it”) and thus need not be prosecuted by indictment or information (Pen.Code, § 682) and may proceed in superior court in the same general manner it would have proceeded in municipal court (Pen.Code, § 740).

MIRIAM A. VOGEL, Associate Justice.

ORTEGA, Acting P.J., and MASTERSON, J., concur.