I dissent. I would affirm the order denying a writ of prohibition, for the reasons expressed by Mr. Justice Cobey in the opinion prepared by him for the Court of Appeal, Second District, Division Three (Barrows v. Municipal Court, 2 Civ. 33328, filed May 2, 1969, certified for nonpublication).
BURKE, J.I disagree with the majority that Penal Code section 647, subdivision (a), is inapplicable to live performances in a theater before an audience. The effect of that holding is to allow acts, however obscene, to be performed on the stage with complete immunity unless they are proscribed by other statutory provisions. It is inconceivable that the Legislature intended such a result. I also do not agree with the majority that Penal Code section 311.6 is inapplicable to such performances.
Petitioners Richard Bright and Alexandra Hay were charged with violating section 647, subdivision (a), and 311.6 for their conduct during performances of the play “The Beard.” Petitioners Robert Barrows, the producer of the play, and Robert Gist, the director, were charged with aiding and abetting them in committing the violations. Respondent overruled demurrers to the complaints and denied a motion to dismiss. Petitioners *832then sought prohibition in the superior court to restrain respondent from proceeding to trial. They appeal from the denial of the writ.
Penal Code section 647, subdivision (a), as it read at the time in question, provided that every person “Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view” shall be guilty of disorderly conduct, a misdemeanor. Nothing in the language of the section excludes such conduct merely because it occurs during a theatrical performance before an audience.
It is implicit in In re Giannini (1968) 69 Cal.2d 563 [72 Cal.Rptr. 655, 446 P.2d 535], that the quoted subdivision may be applied to live theatrical performances, and Dixon v. Municipal Court (1968) 267 Cal.App.2d 789 [73 Cal.Rptr. 587] head den., held that the subdivision applied to a live performance in a theater of the very play at issue here. Dixon stated that the asserted lewd act was a simulation of oral copulation, which was done in the course of a performance of “The Beard.” The court in Dixon specifically considered the requirement in Penal Code section 290 that persons convicted of violating section 647, subdivision (a), register as sex offenders, which requirement is relied upon by the majority in the instant case to support its conclusion that section 647, subdivision (a), is inapplicable to live theatrical performances. The court there (at p. 792) concluded and in my opinion properly so, that it was unnecessary to decide whether the applicability of section 290 could be challenged successfully by a performer if he were convicted of violating section 647, subdivision (a). That case, like the present one, was an appeal from an order disposing of a petition for a writ of prohibition to restrain the municipal court from prosecuting the petitioners.
Dixon further declared (at p. 792), “It cannot be reasonably believed that the Legislature intended to allow any and all acts which are patently obscene to be committed on stages, runways or other performing areas— but this would be the effect (except as to acts specifically made criminal under other statutes; for example, sodomy) of holding section 647, subdivision (a), inapplicable. It is more logical to withhold judgment on whether section 290 could apply to a theatrical performer than to hold all persons immune from obscene performances because registration may not be apposite to their cases.”
In 1969 the Legislature amended section 647 but did not change the quoted language of subdivision (a). (Stats. 1969, ch. 204, § 1; ch. 1319, § 2.) Where a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed *833that the Legislature is aware of the judicial construction and approves it. (People v. Hallner, 43 Cal.2d 715, 719 [277 P.2d 393].)
Penal Code section 311.6 provides: “Every person who knowingly sings or speaks any obscene song, ballad, or other words, in any public place is guilty of a misdemeanor.” As the basis for its conclusion that the section is inapplicable to live performances before an audience, the majority point to the provision in section 311, as it read at the time in question, that “As used in this chapter [which includes § 311.6] . . . ‘obscene’ ” has the definition there given, and the majority note that the definition there given employed the word “matter” and that the definition given for “matter” did not include the spoken word.1 Therefore, state the majority (ante, p. 830) the court is “faced with the impossible task of applying a statute (§ 311.6) which refers to the speaking of ‘obscene . . . words’ although the definition of the term ‘obscene’ (in § 311) cannot include the spoken word.”
The majority thus give no effect to section 311.6 and render it meaningless. This is contrary to the cardinal rule of statutory construction that a court must, where reasonably possible, harmonize statutes and construe them so as to give force and effect to all their provisions. (See, e.g., Burks v. Poppy Constr. Co., 57 Cal.2d 463, 470 [20 Cal.Rptr. 609, 370 P.2d 313]; Hough v. McCarthy, 54 Cal.2d 273, 279 [5 Cal.Rptr. 668, 353 P.2d 276]; cf. In re Bandmann, 51 Cal.2d 388, 393 [333 P.2d 339].)
In the light of that rule and a recent amendment to section 311, which the majority fail to consider, it is clear that the intent of the Legislature in enacting section 311 was to define the term “obscene matter”2 rather than the word “obscene” and that the word “obscene,” as used in section 311.6, when reasonably interpreted, has a meaning similar to that accorded to it by the United States Supreme Court in Roth v. United States, 354 U.S. 476 [1 L.Ed.2d 1498, 77 S.Ct. 1304], as elaborated in subsequent *834cases.3 The legislative intent regarding section 311 was clarified by the 1969 amendment thereto, which, among other things, added the word “matter" following the word “obscene.” The section as it now reads, provides, “As used in this chapter: (a) ‘Obscene matter’ means . . . .” (Italics added.) Although a number of cases have indicated that section 311 defines the word “obscene” (see, e.g.; In re Panchot (1968) 70 Cal.2d 105, 107 [73 Cal.Rptr. 689, 448 P.2d 385]; In re Giannini, supra, 69 Cal.2d 563, 571, fn. 4, 572-574; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 911, 920 [31 Cal.Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707]; see Dixon v. Municipal Court, supra, 267 Cal.App.2d 789, 791), these cases preceded the 1969 amendment to section 311, which clarified the law.
That the Legislature intended section 311.6 to apply to theatrical performances is also indicated by the legislative history of the section. The section, which was added in 1961 as part of an overall revision of the obscenity laws, was derived from former section 311 of the Penal Code, which was repealed in 1961 (Stats. 1961, ch. 2147, § 1, p. 4427). Former section 311 was enacted in 1872, at which time the section prohibited the singing of a lewd or obscene song not only “in any public place” but also “in any place where there are persons present to be annoyed thereby.” The prohibition referring to the spoken word was added in 1931 and a provision was inserted immunizing actors from prosecution under some but not all circumstances. (Stats. 1931, ch. 759, § 1, p. 1597.)4 This provision remained in the section until the section was repealed in 1961. (See Stats. 1949, ch. 1003, § 1, p. 1848; Stats. 1952, First Ex. Sess., ch. 23, § 4, *835p. 381.) The Legislature thus manifestly contemplated that former section 311 applied to actors under some circumstances, and nothing in the 1961 revision of the obscenity laws indicates a legislative intent to grant actors immunity from prosecution under section 311.6.5 Rather the failure to-include in section 311.6 the provision relating to actors indicates a legislative intent not to immunize from prosecution under any circumstances persons on the ground that they are actors. (See, generally, Baum, California’s New Law on Obscene Matter, 36 State Bar J. 625, 632-633.)
I would affirm the order denying the writ of prohibition.
McComb, J., and Sullivan, J., concurred.
The petition of the real party in interest and respondent for a rehearing was denied February 25, 1970. McComb, J., and Burke, J., were of the opinion that the petition should be granted.
Section 311, as it read at the time in question, provided: “As used in this chapter:
“(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
“(b) ‘Matter’ means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
The section was subsequently amended. (Stats. 1969, ch. 249, § 1.)
The terms “obscene matter” and “matter represented ... to be obscene” are employed in various sections in the chapter that contains section 311. (See Pen. Code. §§ 311.2, 311.5, and 311.7.)
The United States Supreme Court “defined obscenity in Roth in the following terms: ‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 U.S., at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” (Memoirs of a Woman of Pleasure v. Attorney General, 383 U.S. 413, 418 [16 L.Ed.2d 1, 5, 86 S.Ct. 975].) “Obscene,” as used in section 311.6, reasonably interpreted, has the foregoing meaning except that the words “live performance” should be substituted for the word “material.”
The provision read: “The provision of [the subdivision prohibiting the singing or speaking of obscene songs or words under specified circumstances] shall not apply to any person participating in violation thereof only as an actor, unless and until the proper court shall have passed upon the matter and found the actor to have violated the said subdivision . . ., except where after a complaint has been filed against the owner, manager, producer or director charging a violation of said subdivision . . ., and pending the determination thereof an actor or actress utters the particular word or words complained against or other word or words of the same or similar import, in connection with such performance, act, play, drama, exhibition or entertainment.” (Stats. 1931, ch. 759, § 1, p. 1597.)
That the phrase “or in any place where there are persons present to be annoyed thereby” was omitted from section 311.6 does not show a legislative intent to exclude conduct that occurs in a theater, since the prohibitions of that section apply where the conduct occurs “in any public place” and a theater clearly appears to be such a place.