Lyons v. Superior Court , 43 Cal. 2d 755 ( 1955 )

SCHAUER, J.

In this certiorari proceeding petitioner seeks annulment of an order of respondent superior court adjudging him guilty of a direct contempt of court and sentencing him to serve “five 24-hour days” in the county jail. We have concluded that, contrary to petitioner’s contention, the court correctly held petitioner’s acts to constitute a direct, rather than an indirect, contempt, and that the judgment should be affirmed.

The record shows that petitioner was sole counsel for defendant in a felony prosecution entitled People v. Pardini, Los Angeles County number 160665. Trial of the case before respondent court with a jury commenced on February 23, 1954. Petitioner was present at the trial on that day and on the morning of February 24. At noon on the 24th the court announced a recess until 2 p.m. of the same day. At the appointed hour of 2 o’clock everyone except petitioner was present and ready to resume the trial. Petitioner did not appear until 2:45 p.m., at which time the court forthwith orally ordered him to show cause why he should not be punished for contempt. He stated that “Actually, I have no excuse, because I was asleep ... I have had a very bad cold ... I had left word with the answering service in my office to call me at a quarter to 2:00. They said they did. Apparently I didn’t hear ... I didn’t get too much sleep last night.” The court thereupon declared “I don’t consider that an excuse. This is the second time in this identical case that you’ve done the same thing,” found petitioner in contempt, and sentenced him to serve “five 24-hour days” in the county jail. Execution of the sentence was stayed until termination of the criminal trial.

As grounds for annulment petitioner urges' there was no contempt, but that if any occurred it was indirect, that is, that it was not committed in the immediate view and presence of the court, and could therefore be punished only after affidavit, notice, and hearing, as provided for in sections 1211, 1212, and 1217 of the Code of Civil Procedure.

Section 1209 of the Code of Civil Procedure declares that “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

“1. . . . contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial ...

“3. Misbehavior in office, or other wilful neglect or violation of duty by an attorney, counsel . . . , or other person, appointed or elected to perform a judicial or ministerial service; . . .

“5. Disobedience of any lawful . . . order ... of the court; . . .

“8. Any other unlawful interference with the process or proceedings of a court ...”

Section 128 of the Code of Civil Procedure provides that “Every court shall have power: 1. To preserve and enforce order in its immediate presence; 2. To enforce order in the proceedings before it . . .; 3. To provide for the orderly conduct of proceedings before it ...; 5. To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto . . .”

The rules above quoted are in substance but restatements of principles which have been recognized and enforced since the dawn of modern jurisprudence. As stated in In re Terry (1888), 128 U.S. 289 [9 S.Ct. 77, 80, 32 L.Ed. 405], the power immediately to punish an offender for a direct contempt is, and from “almost immemorial antiquity” has been, accepted as an inherent power of courts upon the recognition and enforcement of which “depend the existence and authority of the tribunals established to protect the rights of the citizen, whether of life, liberty, or property, and whether assailed by the illegal acts of the government or by the lawlessness or violence of individuals. It has relation to the class of contempts which, being committed in the face of a court, imply a purpose to destroy or impair its authority, to obstruct the transaction of its business, or to insult or intimidate those charged with the duty of administering the law. Blackstone thus states the rule: ‘If the contempt be committed in the face of the court, the offender may be instantly, apprehended and imprisoned, at the discretion of the judges, without any further proof or examination . . .’ ” (See also Blodgett v. Superior Court (1930), 210 Cal. 1, 10 [290 P. 293, 72 A.L.R. 482] ; People v. Turner (1850), 1 Cal. 152, 153.)

The duty of an attorney punctually to present himself in court and diligently to continue with a trial he had undertaken and not to unduly delay it for any personal matter reasonably within his control is clear ■ likewise it is clear that when an attorney who is the sole counsel appearing for a defendant in a felony case absents himself from the trial, he interrupts and effectively blocks, for the period of his absence, all proceedings in that trial. The written “Commitment on Contempt” made by the court in the present case, after reciting the facts as to the pendency of the trial, the proceedings therein, petitioner’s failure to appear in the courtroom until the hour of 2:45 p.m. and his statement that he had been asleep, continues, “That said statement was not supported by any evidence or testimony and which statement the Court declined to believe. That on not less than ten prior occasions the said Lowell Lyons [petitioner] has either been substantially late or wholly failed to attend said Court in Department 43 at times when cases in which he was counsel of record were set for trial or other proceedings when his presence was necessary and that on October 28, 1953, said Lowell Lyons was adjudged guilty of contempt of court for failing to appear in said Court, in a trial in which he was counsel of record and which was set for trial at 9:30 a.m. until the hour of 9:55 a.m. and for which contempt said Lowell Lyons was sentenced to serve twenty-four hours in the County Jail of said County, which sentence was suspended, with an admonition against a repetition of such conduct.

“Therefore, it is ordered and adjudged That said Lowell Lyons is guilty of contempt of Court and sentenced to serve five days of twenty-four hours each in the County Jail of this County.” The factual elements of the commitment above set forth are not challenged.

The commitment order thus establishes that the court concluded that petitioner had had the ability to appear punctually at 2 o’clock and that his failure or neglect to appear was wilful, i.e., with “a purpose or willingness to commit the act, or make the omission.” (See Pen. Code, §§ 7 (subd. 1) and 21; Code Civ. Proc., §16; In re Trombley (1948), 31 Cal.2d 801, 807-809 [193 P.2d 734].) It follows that petitioner’s failure to be present in court at the announced hour for resumption of the trial in which he was engaged, thus interrupting the trial and interfering with the court proceedings, constituted contempt of court since, as petitioner himself stated, and as the court found, he had no valid excuse. (Cf. In re Mackay (1934), 140 Cal.App. 400 [35 P.2d 385] ; In re McHugh (1908), 152 Mich. 505 [116 N.W. 459]; 59 A.L.R. 1272-1273.) Although as hereinafter mentioned in relation to another aspect of the case it may be true that some weakness or illness contributed in a measure to petitioner’s failure to appear punctually, and that his misconduct was not a deliberately and maliciously planned dereliction of duty, nevertheless upon the record there appears to have been a remissness and failure in performance of duty on his part, coupled with ability to. perform, which the court was warranted in finding to constitute contempt.

We are likewise satisfied that petitioner’s conduct constituted “a contempt . . . committed in the immediate view and presence of the court”—i.e., a direct contempt— which the court is empowered to punish summarily under the provisions of section 1211 of the Code of Civil Procedure. It is clear that the trial and the attorney’s participation in it are in the court’s immediate view and presence and, obviously, petitioner’s obstruction of the trial by absenting himself from the court is just as directly within the view and presence and knowledge of the court as would be any other conduct by him during, and directly affecting, the trial. If, in truth, the absence with its ensuing interruption of the court proceedings is occasioned by some cause not reasonably within the attorney’s control, the duty of explanation is but part and parcel of his duty to be present, and the burden of producing the exculpatory facts to the court properly falls upon the attorney. The latter, not the judge, is the officer of the court who under those circumstances owes a duty of proceeding. The effect of a contrary holding would be to absolve the defaulting attorney from any burden of explanation of his absence, no matter how flagrant and often repeated, unless the judge takes the burden of filing a charge and instituting formal proceedings. This would make of the judge not a judicial officer carrying out the responsibilities of his office, but a complaining witness in an adversary proceeding. Such a rule, we think, would not only be contrary to long established law but would not best serve the administration of justice.

It has been directly held in this state that failure of a sheriff to produce in court the body of one in his custody (Ex parte Sternes (1888), 77 Cal. 156, 163 [19 P. 275, 11 Am.St.Rep. 251]), or failure of a parent to produce in court a minor child of which such parent has custody (In re Carr (1944), 65 Cal.App.2d 681, 685-686 [151 P.2d 164]), when properly ordered so to do, constitutes a direct contempt which may be summarily punished. On the point here material the court in the Sternes case said (p. 163 of 77 Cal.) : “The failure of Sternes to produce the body of Ah Pong, as the court found he had the power to do, before the court, in obedience to the writ, was a contempt committed in the face of the court, and no affidavit of the facts constituting the contempt was necessary to give the court knowledge thereof. ’ ’ In the Carr case the District Court of Appeal quoted from and followed the Sternes case. (See also In re Robb (1884), 64 Cal. 431 [1 P. 881]; 12 Am.Jur. 390-392.) Manifestly an attorney at law, under the circumstances shown here and in the absence of a showing to the contrary, may he inferred to have at least as much control in respect to presenting or absenting himself at court as can a sheriff or parent have in relation to producing or sequestering a third person. Likewise manifest, as has already been shown, is the duty of an attorney, lacking a valid excuse, to be present at all times during the trial of a case in which he is sole counsel for a party, and as an officer of the court he is bound to respect and comply with its pertinent and lawful orders given in open court in his presence.

It is vigorously urged that the severity of the sentence imposed upon petitioner in this ease gives weight to the contention that it is unwise to permit the judge before whom a contempt is committed to himself mete out the punishment. (See Offutt v. United States (1954), 348 U.S. 11 [75 S.Ct. 11, 99 L.Ed.^* -].) This contention, however, does not lead to the conclusion that the sentence in this case is void. The record shows that the following took place when petitioner finally appeared in the courtroom at 2:45 p.m.:

“The Court: The record will show, in this case, that the Court took a recess at 12 .-00 o ’clock p. m.; that everybody was here at the hour of 2:00 o’clock except defense counsel, Lowell Lyons, who has just appeared here at a quarter of 3:00.

“The Court at 2:35 issued a warrant for the apprehension of the said counsel, but counsel appeared before the warrant was served.

“The Court finds that cause exists for issuing the warrant, and that the defendant’s counsel should show cause why he should not be punished for contempt.

“Mr. Lyons: May I be heard at this time?

“The Court: Yes.

“Mr. Lyons: Yes. At this time, if your Honor pleases, I would like to point out that I did intend to be here at 2:00 o’clock. I was across the street in my office.

“Actually, I have no excuse, because I was asleep. I just awoke. I have had a very bad cold. I overslept an hour.

“I had left word with the answering service in my office to call me at a quarter to 2:00. They said they did. Apparently I didn’t hear, your Honor.

“I didn’t get too much sleep last night. Apparently I needed sleep. I overslept for that reason.

“I know of no other reason, your Honor. There was no cause preventing me from appearing other than the fact I was asleep in my office.

“Those are the facts. I have been there all the time. I just awoke, and I came over immediately.

“The Court: I don’t consider that an excuse.

“This is the second time in this identical case that you’ve done the same thing.

“Mr. Lyons: In this instance, your Honor, I wasn’t physically able to be here, that’s the reason. There wasn’t anything wilful about it.

“The Court: No reason why you shouldn’t be here.

“In the former- trial, we had exactly the same situation, and we took a recess in the afternoon, and after the recess you had entirely disappeared and couldn’t be found on the floor anywhere; and after waiting some time you finally showed up without offering any excuse.

“ People vs. Sirianni, that was on September 2, 1953, the case was on the trial calendar and you failed to show up at any time during that day. We discovered that you were trying a case in the Municipal Court.

1 ‘ There are a number of instances of your being late, failing to be present at a time when you should be present. And on October 27 of 1953, we had a case of People vs. Streeter which went over to October 28 at 9 :30. You were not present. An effort was made to locate you unsuccessfully. You finally showed up at 9 :55 at your place at counsel table and made no excuse or explanation. You were informed you were in contempt of court, and the Court at that time found you in contempt.

“This has been such a chronic, habitual situation, the Court finds that you are now in contempt.

“It is the judgment and sentence of this Court for said contempt you be imprisoned in the County Jail for five 24-hour days.”

As expressly stated in the commitment the court did not—and it was not bound to—believe petitioner’s unsworn statement that he failed to appear at the appointed hour for resumption of the trial because he had been asleep. Nevertheless, the very character and extent of petitioner’s derelictions as found in the commitment seem to indicate that perhaps his misconduct may have been contributed to by illness of some form. Whether such misconduct was on the one hand deliberately and maliciously calculated or, on the other hand was materially contributed to by illness or other mitigating condition, is a matter of substantial moment to the petitioner and to the court. As carefully pointed out by this court when it first gave consideration to the subject (People v. Turner (1850), supra, 1 Cal. 152, 153) and as has never been doubted, the power to adjudicate a direct contempt “is necessarily of an arbitrary nature, and should be used with great prudence and caution. A judge should bear in mind that he is engaged, not so much in vindicating his own character, as in promoting the respect due to the administration of the laws; and this consideration should induce him to receive as satisfactory any reasonable apology for an offender’s conduct.” Likewise, even where the finding of contempt appears essential to the proper conduct of the court’s business no class of offense occurs to us in which the court should more readily search out and give effect to mitigating circumstances than in cases of direct contempts. Whether grounds exist upon which execution of the punishment here imposed should be remitted in whole or in part is a question which can be inquired into by the trial court on a proper application by petitioner. (See City of Vernon v. Superior Court (1952), 38 Cal. 2d 509, 520 [241 P.2d 243]; City of Vernon v. Superior Court (1952), 39 Cal.2d 839, 843 [250 P.2d 241].)

For the reasons above stated, the judgment of contempt is affirmed.

Gibson, 0. J., Edmonds, J., and Spence, J., concurred.

* L.Ed. Adv.Opn.: Page 7.