Lyons v. Superior Court In and For Los Angeles County

Decision Date14 January 1955
Citation43 Cal.2d 755,278 P.2d 681
PartiesLowell LYONS, Petitioner, v. SUPERIOR COURT of State of California, IN AND FOR COUNTY of LOS ANGELES, Respondent. L. A. 23241.
CourtCalifornia Supreme Court

A. Brigham Rose, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, John B. Anson, David D. Mix and William E. Lamoreaux, Deputy County Counsel, Los Angeles, for respondent.

SCHAUER, Justice.

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 two o'clock everyone except petitioner was present and ready to resume the trial. Petitioner and 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 ex rel. Field 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 two 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 appeal 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 enterruption 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....

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