Cooper v. Superior Court In and For Los Angeles County

• Decision Date: 09 February 1961
• Citation: 359 P.2d 274,10 Cal.Rptr. 842,55 Cal.2d 291
• Court: California Supreme Court
• Parties: , 359 P.2d 274 Grant B. COOPER, Petitioner, v. SUPERIOR COURT of the State of Callfornia IN AND FOR the COUNTY OF LOS ANGELES, Respondent. L. A. 26173.

Page 842

10 Cal.Rptr. 842

55 Cal.2d 291, 359 P.2d 274

Grant B. COOPER, Petitioner, v. SUPERIOR COURT of the State of Callfornia IN AND FOR the COUNTY OF LOS ANGELES, Respondent.

L. A. 26173.

Supreme Court of California, In Bank.

Feb. 9, 1961.

Irving M. Walker, Los Angeles, Joseph A. Ball, Long Beach, and Herman F. Selvin, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondent.

SCHAUER, Justice.

In this certiorari proceeding Attorney Grant B. Cooper seeks annulment of an order of respondent superior court adjudging him guilty on two counts of direct contempt and fining him $250 on each count. The events leading to the subject commitments occurred during the second trial, before a jury, of the case of People v. Finch and Pappa, Los Angeles County Superior Court Number 220164. The charge was murder. On conviction, if the murder was found to be of the first degree, the punishment could be death. Petitioner, acting as attorney for defendant Finch, was twice adjudged in contempt for disobeying an order of the trial court to refrain from stating, in the presence of the jury, an objection to the making by the judge of comments on the comparative credibility of certain witnesses. The judge had, on his own initiative, recalled the jury from their deliberations for the purpose of reading a prepared statement embodying such comments. Copies of the statement had not been furnished to counsel nor had counsel been permitted to participate in its preparation. Petitioner contends that in the circumstances of the case the order that he refrain from stating his objection in the presence of the jury was not a 'lawful' order of the court (within the meaning of Code Civ.Proc., § 1209, subd. 5) and hence that it was not a contempt for him to disobey it. The contention is sound and the judgment should be annulled.

Finch and his co-defendant were, in October, 1959, indicted for the crimes of murder and conspiracy to commit the murder of Finch's wife. The record shows that in a first trial of the two defendants, after the jury had deliberated for a period of eight days, a mistrial was declared on March 3, 1960, for failure to reach a verdict.

The second trial of the murder case commenced on June 27, 1960, and on October 19, 1960, the jury retired and began deliberations which were continuing at the time of the incidents adjudged to constitute contempt. On November 1, 1960, petitioner on behalf of Finch moved in respondent court that the jury be recalled and polled. The motion was denied but the judge stated in open court that he would poll the jury on the following day.

On November 2, 1960, the jury on their own request were returned to the courtroom whereupon they asked the judge to answer a series of questions. The judge answered such questions and then informed the jurors that he could not see why they should not be able to arrive at a verdict. Upon the conclusion of the judge's remarks petitioner moved the court to declare a mistrial upon the ground that the court's remarks amounted to coercion of the jury and invaded their province. The judge denied the motion and also announced that in view of the questions asked by the jury he would not then poll them.

On November 3, 1960, petitioner again moved in respondent court that a mistrial be declared on the ground that the court's remarks of the previous day constituted oppression and coercion of the jury. The judge denied the motion. Whether any of such motions was well taken we need not determine in resolving the issue before us. The facts as related, however, are relevant parts of the background in which the tenability of the judgment must be ascertained.

On November 4, 1960, after the jury had deliberated for almost three weeks without reaching a verdict, petitioner and other counsel in the case were present in the courtroom at the direction of the judge. The judge, after stationing bailiffs directly behind the seats at the counsel table occupied by petitioner and other defense counsel, although bailiffs had not been so stationed at any other time during the trial, recalled the jury to the courtroom and the following occurred (in the presence of the jurors, the defendants, and counsel):

'The Court: * * * Ladies and gentlemen of the jury, under the law and under the Constitution of this state I am entitled to comment on the evidence in this case. I am going to make a few comments and tell you certain things that you may consider and, of course, anything I say is not binding on you, and you may disregard it if you want to. I will just point out various things. If you find that my observations are helpful in assisting you in arriving at a verdict, accept them; if they are not, reject them. Anything I tell you here, of course, is not evidence.

'To my mind the testimony given by the (prosecution) witness John Cody (who had testified, in effect, that he had been employed by the defendants in the murder case to kill Finch's wife) regarding the purpose for which he was employed by the defendants was more believable than the testimony of the two defendants on that subject.

'Mr. Cooper (petitioner herein): If your Honor please 'The Court: Now Mr. Cooper, I don't want a word out of either one of you.

'Mr. Cooper: If your Honor please, as a lawyer I have a right to address this court.

'The Court: You don't have a right to say a word when the jury is down here in the process of their deliberations, and I instruct you and Mr. Bringgold (counsel for defendant Pappa) to keep seated and wait until the jury is out to make your objections.

'Mr. Cooper: If your Honor please, I feel your Honor has no right to invade the province of the jury.

'The Court: Mr. Cooper, I hold you directly in contempt.

'Mr. Cooper: Very well, your Honor.

'The Court: I will dispose of the matter as soon as I have instructed this jury.

'Mr. Cooper: Very well, if your Honor please, it is your Honor's pre-rogative.

'The Court: It certainly is, and I an going to exercise it.'

The judge then resumed making his comments on the evidence ¹ and after he had finished such comments he again reminded the jurors that they were 'the exclusive judges of the credibility of the witnesses and of all questions of fact submitted to' them. He then gave additional instructions on the manner of reaching a verdict and asked the jury to again retire and deliberate. Before the jurors had left the courtroom, however, the following occurred:

'(The Court:) One thing more before you go, you should not in any way consider in your deliberations the fact that the Court felt it necessary to hold Mr. Cooper in contempt. That has nothing to do with the issues in this case, and it should not be considered by you at all. That is all.

'Mr. Cooper: Now, if your Honor please

'The Court: Just a minute, Mr. Cooper

'Mr. Cooper: I have a right to address the Court.

'The Court: You do not; while the jury is here you do not have any such right; your sit down.

'Mr. Cooper: If your Honor please, I feel your Honor has invaded the province of the jury.

'The Court: That is a matter of subsequent argument; I again hold you in contempt, Mr. Cooper. You sit down, and then I will let you say what you want to say. You have no business saying anything in the presence of this jury.'

The jury then left the courtroom and petitioner was allowed to present at length his objections to the comments of the court. Petitioner assigned such comments as prejudicial misconduct of the court and moved for a mistrial. The motion was denied.

A week later, after a mistrial had been declared for failure of the jury to reach a verdict, a hearing was held at which petitioner was sentenced to pay a fine of $250 on each of the two counts of contempt or to serve one day in jail for each $100 thereof. The commitment sets out the above quoted proceedings verbatim. A stay was granted pending review, and petitioner filed this application for certiorari.

As petitioner points out, there are no recitals in the commitment of either 'Disorderly, contemptuous, or insolent behavior' (Code Civ.Proc., § 1209, subd. 1) or 'boisterous conduct, or violent disturbance, tending to interrupt the due course of a trial' (Code Civ.Proc., § 1209, subd. 2). The jurisdictional foundation of the subject order of contempt must therefore be found in one or more acts of 'Disobedience of any lawful * * * order * * * of the court' (see Code Civ.Proc., § 1209, subd. 5; § 1211.) Petitioner's disregard of the judge's instruction to 'keep seated and wait until the jury is out to make your objections' without more would clearly amount to disobedience of an 'order * * * of the court.' This, petitioner impliedly concedes but, as noted above, he contends that the order was not a 'lawful' one, and hence that it was not a contempt for him to disobey it.

Petitioner argues that the subject order of contempt 'necessarily conflicts with' the holding of and the views expressed in Gallagher v. Municipal Court (1948), 31 Cal.2d 784, 192 P.2d 905, and several decisions discussed therein. Petitioner cites these cases for the proposition that 'it is not contempt for a lawyer to seek respectfully to make and press upon a trial court, even though the court does not desire to hear him at that time, some objection or other contention which he deems it necessary to make in the interests of his client. Such conduct on the lawyer's part is not a contempt because, as this Court and the District Courts of Appeal have held, it is not only the lawyer's right, it is his duty, at all times to protect and advance the interests of his client.' Petitioner's argument is that 'Since it is the lawyer's duty to make his objections and other points in his client's behalf, it must follow that he is entitled to a timely opportunity to make them. From this it necessarily follows that the judge is without power to foreclose that opportunity by any order or...