Karpf, In re, Cr. 17881

• Citation: 10 Cal.App.3d 355,88 Cal.Rptr. 895
• Decision Date: 07 August 1970
• Docket Number: Cr. 17881
• Court: California Court of Appeals
• Parties: In re Richard KARPF on Habeas Corpus.

Page 895

88 Cal.Rptr. 895

10 Cal.App.3d 355

In re Richard KARPF on Habeas Corpus.

Cr. 17881.

Court of Appeal, Second District, Division 5, California.

Aug. 7, 1970.

Hearing Denied Oct. 1, 1970.

Richard A. Karpf, in pro. per., and Margolis, McTernan, Smith, Scope & Herring and John T. McTernan, Los Angeles, for petitioner.

John D. Maharg, County Counsel, Harold S. Vites and Douglas C. Miller, Deputy County Counsels, for Respondent Municipal Court of the Los Angeles Judicial District.

AISO, Associate Justice.

By this application for a writ of habeas corpus, petitioner Richard Karpf seeks a review and an annulment of a judgment of the Municipal Court of the Los Angeles Judicial District (hereinafter 'municipal court') adjudging him in contempt and sentencing him forthwith to five days in the county jail.

The contempt proceeding below stems from a felony preliminary examination, People v. Yates, Los Angeles Municipal Court No. A--254089, in which petitioner was the defense counsel and which had commenced on January 13, 1970, in Division 43 of the municipal court before the Honorable Nancy B. Goodman. At 5 p.m., she indicated that the proceedings would be adjourned to 9 a.m. the following morning (January 14, 1970) and instructed the witnesses to return at that time without further order. Petitioner objected claiming that the adjournment violated section 861 of the Penal Code. His objection was overruled. Petitioner then informed the court that he had another preliminary examination scheduled for 1 p.m. the following day in Division 32 of the municipal court and that he would be held in contempt if he did not appear there. Judge Goodman then advised petitioner that his failure to be in Division 43 the following morning might result in his being held in contempt of Division 43.

Petitioner had trouble with his car the following morning. He had his secretary call the clerk of Division 43 about 8:45 a.m. to inform the court of his car trouble and of his expectation of reaching Division 43 around 10 a.m. Upon getting his car into running condition, petitioner passed by the Los Angeles County Courthouse, located on First Street extending from Hill Street to Grand Avenue with the municipal courts in that building (including Division 32) being located in the portion of the courthouse fronting upon Grand Avenue. Division 43 in which the unfinished preliminary examination in People v. Yates was pending was then located in the Hall of Justice, located at the corner of Broadway and Temple Streets, about a ten minute walk from the County Courthouse. ¹ As he passed the County Courthouse, petitioner decided to stop by Division 32 instead of proceeding directly to Division 43, in order to arrange a disposition of his preliminary hearing in People v. Carter, et al., Los Angeles Municipal Court No. A--254174, on the 1:30 p.m. calendar of Division 32 for that day.

Petitioner states that he parked in a red zone adjacent to the County Courthouse around 9:50 a.m. and reached Division 32 around 10 a.m. He was unable to make a satisfactory arrangement for reasons which we shall detail later. He left the courtroom of Division 32 sometimes between 10:15 and 10:30 a.m. He then proceeded to the lock-up room located on the seventh floor of the County Courthouse in order to speak to his clients in People v. Carter, et al.

Petitioner talked by telephone to his secretary, who took the call in the courtroom of Division 43, about 11:20 a.m., informing her that he would appear in Division 43 as soon as he could. He did not tell her of his then whereabouts. Upon being questioned by Judge Goodman, the secretary conveyed the foregoing information to her.

Judge Goodroom took the bench at approximately 11:27 a.m., and called People v. Yates for resumption of hearing. At that time, she noted that defendant Yates was present, but that her counsel, petitioner herein, was not present. Declaring that the hearing could not be resumed without counsel's presence, Judge Goodman dismissed the complaint and released the five civilian witnesses and an investigating officer who had been awaiting petitioner's arrival since 9 a.m. She declared petitioner to be in contempt of court and issued a bench warrant for his arrest.

Petitioner was arrested on the warrant in Division 32 about 1:30 p.m., and was brought to Division 43 in custody. This was his first appearance in Division 43 on January 14, 1970.

At around 4:05 p.m. of January 14, 1970, Judge Goodman conducted a hearing in re contempt. Petitioner was represented by counsel. The court orally informed petitioner and his counsel of the purpose of the hearing and offered petitioner an opportunity to explain his absence. Petitioner voluntarily took the witness stand and offered his explanation, but the court found it unsatisfactory, adjudicated him to be in contempt, and sentenced him forthwith to five days in the county jail. His requests for stay of execution and release upon his own recognizance were denied.

To avoid repetition, other details will be related as they become material to the point under discussion.

A previous writ of habeas corpus was granted by a judge of the superior court, but it was discharged upon return thereto and hearing in that court and petitioner was recommitted to the county jail on March 20, 1970, by the municipal court. Upon reading contemner's petition filed in this court on March 20, 1970, we issued an order to show cause why the writ should not issue directed to the municipal court, including an order to the sheriff to release petitioner on his own recognizance pending determination of the order to show cause, since this is an original proceeding in this court and not an appeal from the superior court. (See Gardner v. California (1969) 393 U.S. 367, 368, 89 S.Ct. 580, 581, 21 L.Ed.2d 601, 603, and authorities there cited.) Returns to the order to show cause have been filed by the municipal court and the sheriff. Oral argument of counsel on the order to show cause has been had, and supplemental briefs of respective counsel have been filed. We conclude that the writ should be denied for reasons set forth below.

It is the settled law of California that for pragmatic considerations in the administration of justice (Inniss v. Municipal Court (1965) 62 Cal.2d 487, 490, 42 Cal.Rptr. 594, 399 P.2d 50), the failure of an attorney to appear without excusable cause at the appointed date and hour set for the commencement or resumption of judicial proceedings in which he is a counsel constitutes a direct contempt of court (Chula v. Superior Court (1962) 57 Cal.2d 199, 203, 18 Cal.Rptr. 507, 368 P.2d 107; Lyons v. Superior Court (1955) 43 Cal.2d 755, 759, 278 P.2d 681, cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774; Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 361, 60 Cal.Rptr. 575, cert. denied, 393 U.S. 856, 89 S.Ct. 125, 21 L.Ed.2d 126,) or a hybrid contempt ² that may be summarily treated as if it were a direct contempt in the court's presence (Arthur v. Superior Court (1965) 62 Cal.2d 404, 408, 42 Cal.Rptr. 441, 398 P.2d 777). 'In such cases, due process requires notice and hearing lest the alleged contemner be convicted ex parte. (Citation.) Where counsel fails to appear, however, the offensive conduct, to wit, the absence, occurs in the presence of the court. Thus, when an absent attorney reappears in the courtroom, due process should be satified if the judge confronts him with the charge and offers him a reasonable opportunity to explain.' (Arthur v. Superior Court Supra, 62 Cal.2d 404, 408--409, 42 Cal.Rptr. 441, 444, 398 P.2d 777, 800.)

Where the absence or tardiness, with its ensuing interruption of the proceedings pending before the court, is occasioned by some cause not reasonably within the attorney's control, the duty of explanation and the burden of producing exculpatory facts are upon the defaulting attorney. (Lyons v. Superior Court (1955) Supra, 43 Cal.2d 755, 760, 278 P.2d 681; Vaughn v. Municipal Court (1967) Supra, 252 Cal.App.2d 348, 361, 60 Cal.Rptr. 575.) It is also established law that '(i)n the absence of arbitrariness on the part of the sentencing judge, and with a showing that a reasonable opportunity was afforded the attorney to explain the reasons for his absence, this court should not annul contempt proceedings against attorneys who fail to appear in court when properly ordered to do so.' (Arthur v. Superior Court (1965) Supra, 62 Cal.2d 404, 409, 42 Cal.Rptr. 441, 445, 398 P.2d 777, 781; accord Vaughn v. Municipal Court, Supra, 252 Cal.App.2d 348, 365, 60 Cal.Rptr. 575; and see Inniss v. Municipal Court (1965) Supra, 62 Cal.2d 487, 490, 42 Cal.Rptr. 594, 399 P.2d 50, and Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 229, 83 Cal.Rptr. 125.)

The scope of review upon an application for a writ of habeas corpus is identical to that by way of a writ of certiorari (writ of review) (Wilde v. Superior Court (1942) 53 Cal.App.2d 168, 176, 127 P.2d 560; In re Lake (1924) 65 Cal.App. 420, 423, 224 P. 126), namely, whether the act or omission charged against the alleged contemner confers jurisdiction to adjudicate the contempt and whether the jurisdictional act or omission is supported by the evidence. (See, Arthur v. Superior Court, Supra; In re Ciraolo (1969) 70 Cal.2d 389, 394, 74 Cal.Rptr. 865, 450 P.2d 241.)

In case of a direct contempt, all that is required is that an order be made reciting the facts constituting the contempt, adjudging the person guilty, and prescribing the punishment. (Code Civ.Proc. § 1211; In re Ciraolo, Supra, at p. 393, 74 Cal.Rptr. 865, 450 P.2d 241.) If the order states that the attorney 'was absent when ordered to appear, that he knew he was required to appear, that he had the ability to appear, and that he wilfully neglected to appear,' the responsibility of the reviewing court is merely to ascertain whether there was sufficient evidence before the trial court to support its order. (Arthur v....