Chula v. Superior Court In and For Orange County

• Decision Date: 10 January 1962
• Citation: 18 Cal.Rptr. 507,97 A.L.R.2d 421,57 Cal.2d 199,368 P.2d 107
• Court: California Supreme Court
• Parties: , 368 P.2d 107, 97 A.L.R.2d 421 George H. CHULA, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ORANGE, Respondent. L. A. 26430.

Page 507

18 Cal.Rptr. 507

57 Cal.2d 199, 368 P.2d 107, 97 A.L.R.2d 421

George H. CHULA, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ORANGE, Respondent.

L. A. 26430.

Supreme Court of California, In Bank.

Jan. 10, 1962.

[368 P.2d 108] [57 Cal.2d 200] George H. Chula, in pro. per.

A. L. Wirin, Ward Sullivan, Russell E. Parsons, Julius L. Samson, Los Angeles, Joan Martin, Walter Gordon, Richard Welch, Z. B. West, Santa Ana, P. Basil Lambros, Los Angeles and Taylor Peterson, San Bernardino, for petitioner.

Stephen K. Tamura, County Counsel, Adrian Kuyper, Clayton H. Parker and George F. Holden, Asst. County Counsel, Santa Ana, for respondent.

McCOMB, Justice.

Petitioner, an attorney at law, seeks a writ of certiorari to review an order of respondent court punishing him for contempt of court.

CHRONOLOGY

1. September 15, 1960, Ossie Hanson (hereinafter referred to as 'defendant') retained the law firm of Monroe & Chula to represent him in a criminal action charging him with three counts of violating sections 288 and 288a of the Penal Code.

2. September 30, 1960, and October 26, 1960, a preliminary hearing was held in the Municipal Court of the Anaheim-Fullerton Judicial District, and defendant was bound over to answer in the superior court.

3. January 31, 1961, defendant appeared in the Superior Court of Orange County with his counsel, James C. Monroe, and moved for a dismissal of all three counts. The court dismissed counts I and II, but denied the motion as to count III. A jury trial was waived.

4. Thereafter, following a court trial, defendant was found guilty of one count of violating section 288 of the Penal Code. Criminal proceedings were suspended and sexual psychopathy proceedings instituted, at which defendant was represented by petitioner.

5. March 17, 1961, defendant's motion for a new trial was denied and the matter continued for hearing relative to the sexual psychopathy proceedings and pronouncement of sentence to March 31, 1961, at 9:15 a. m., in Department 5, and petitioner and defendant were ordered to return at that time.

6. March 31, 1961, when the case of People v. Ossie Hanson was called at 9:50 a. m., ¹ petitioner did not appear in court. However, about 20 minutes later Mr. Mueller, an associate of petitioner, came into court and stated that petitioner had asked him to appear for him at the hearing.

7. April 7, 1961, an order to show cause in re contempt was issued and served upon petitioner, ordering him to appear before respondent court at 9:15 on April 14, 1961, to show cause why he should not be punished for contempt. Thereafter by stipulation the matter was continued until April 28, 1961, at 9:15 a. m.

8. April 28, 1961, after a hearing, at which petitioner and Mr. Mueller testified in petitioner's behalf, respondent court stated: 'It is the judgment of the Court that you are in contempt of court. It will be the sentence of this court that you be confined to the County Jail for four days.'

9. May 1, 1961, respondent court entered, nunc pro tunc as of April 28, 1961, the following order in the case of The People of the State of California, Plaintiff, vs. Ozzie Hanson, Defendant: 'JUDGMENT AND ORDER IN RE CONTEMPT. The contempt proceedings against George H. Chula herein, having come on regularly on an order to show cause before the undersigned April 28, 1961, and the said George H. Chula appearing in his own behalf, and evidence, oral and documentary having been presented and argued, and the matter having been submitted, and good cause appearing therefor, and it appearing that: 1. A lawful order was given to the said George H. Chula to return and appear in the same courtroom as the one in which the order was made, to wit: Department 5; 2. The order was given pursuant to a continuance of this case, in which the said George H. Chula was counsel for the defendant; 3. The order was given on March 17, 1961, and it was an order to return and appear at 9:15 a. m., March 31, 1961; 4. The said George H. Chula was present and heard and understood the order; 5. The said George H. Chula had the ability to appear at the ordered time and place; and 6. The said George H. Chula did wilfully neglect and fail to so appear without sufficient reason or excuse for such failure.

'IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the said George H. Chula is in contempt of this Court in his failure to obey such order, and that Defendant be taken into custody of the Sheriff of the County of Orange, and be confined to the County Jail for a period of four (4) days;

'BE IT FURTHER ORDERED that execution of this order be stayed for a period of ten (10) days from the date hereof, to wit: until May 9, 1961, or, if within such period of ten (10) days a petition for a writ to alter this order is filed in the Court of Appeal or the Supreme Court of this State, then until the granting or denial thereof becomes final.

'This order is to be entered nunc pro tunc April 28, 1961.

'Dated: May 1, 1961.

'John Shea

'Judge of the Superior Court'

10. May 2, 1961, the clerk entered the following minute order relative to the April 28, 1961, proceedings: 'It is the judgment of this Court that counsel for defendant, George Chula, is in contempt of Court. Said George H. Chula ordered confined to the County Jail for a period of four (4) days.'

11. May 9, 1961, respondent court entered, nunc pro tunc as of April 28, 1961, an amended judgment and order in re contempt. The only difference between the order entered May 1, 1961, and the amended order was that in the latter the words 'that the said George H. Chula be taken into custody of the Sheriff of the County of Orange' were substituted for the words 'that Defendant be taken into custody of the Sheriff of the County of Orange,' and the expiration of the 10-day period for the stay of execution thereof appears as May 19, 1961, instead of May 9, 1961.

Questions: First. Was the order of May 1, 1961, adjudicating petitioner in contempt void for the reason that it did not state facts showing petitioner guilty of contempt?

No. The failure of an attorney, without valid excuse, to be present in court at the announced time for the sentencing of a client whom he is representing constitutes a contempt committed in the immediate view and presence of the court and hence a direct contempt which the court is empowered to punish summarily under section 1211 of the Code of Civil Procedure. (Cf. Lyons v. Superior Court, 43 Cal.2d 755, 759(5), 278 P.2d 681.)

An order adjudging a person guilty of contempt in the immediate view and presence of the court must recite facts showing acts which constitute a contempt. (Code Civ.Proc., § 1211.) This is jurisdictional, and an order which assumes to punish summarily a direct contempt of court is void unless it shows on its face facts sufficient to constitute a legal contempt. (Raiden v. Superior Court, 34 Cal.2d 83, 86, 206 P.2d 1081(2); In re Wells, 29 Cal.2d 200, 201(2), 173 P.2d 811; Ex parte Hoar, 146 Cal. 132, 133, 79 P. 853.) Such facts must be stated with sufficient particularity to show, without the aid of speculation, that a contempt actually occurred. (Blake v. Municipal Court, 144 Cal.App.2d 131, 136(7), 300 P.2d 755 (hearing denied by the Supreme Court).)

In the present case it is clear that the order of May 1, 1961, adjudicating petitioner in contempt meets the foregoing requirement, since facts are stated therein showing that petitioner in the presence of the court committed a contempt.

There is no merit in petitioner's contention that the order adjudicating him guilty of contempt did not state facts but merely conclusions of law. A recital that petitioner 'had the ability to appear' is a proper conclusion of ultimate fact conclusive on this court upon review. (Ex parte Levin, 191 Cal. 207, 208(1), 215 P. 908; Ex parte Spencer, 83 Cal. 460, 462, 23 P. 395; In re Carpenter, 36 Cal.App.2d 274, 276(1), 97 P.2d 476; In re Wilson, 123 Cal.App. 601, 603(2), 11 P.2d 652.)

In re McCausland, 130 Cal.App.2d 708, 279 P.2d 820, relied on by petitioner, is factually distinguishable from the present case. In such case the order was annulled because it consisted solely of a finding that the defendant there was guilty of 'wilfully violating' an order. The court pointed out that there was not recital in the order that the petitioner had the ability to comply with it. In the present case there is such a recital in the order.

In re Cardella, 47 Cal.App.2d 329, 117 P.2d 908, also relied on by petitioner, was expressly disapproved in the later case of In re Hadley, 57 Cal.App.2d 700, 703, 135 P.2d 381, as being contrary to the great weight of authority.

Finally, In re Meyer, 131 Cal.App. 41, 20 P.2d 732, cited by petitioner, is factually distinguishable from the present case, for the reason that in the Meyer case the petitioner then before the court was discharged because he had not been served with the prior order of the court, and special findings showed his inability to comply with the court's order between the date of service of the notice of the order and the date of the contempt hearing.

Second. Were petitioner's acts contemptuous acts sufficient to give the court jurisdiction to punish him for contempt?

Yes. The sole function of the writ of certiorari in a contempt matter is to annul proceedings taken in excess of jurisdiction, and this court will consider the evidence only for the purpose of ascertaining whether there was any substantial evidence before the trial court to sustain its jurisdiction. (The Times-Mirror Co. v. Superior Court, 15 Cal.2d 99, 115(1), 98 P.2d 1029; Bridges v. Superior Court, 14 Cal.2d 464, 484(8) et seq., 94 P.2d 983.)

The question whether the acts complained of can constitute a contempt is jurisdictional, however, and in the absence of evidence showing that an actual contempt of court was committed, the order of commitment should be annulled. (Brunton v. Superior...