McCann v. Municipal Court

• Decision Date: 19 June 1990
• Docket Number: No. B043803,B043803
• Citation: 221 Cal.App.3d 527,270 Cal.Rptr. 640
• Parties: Douglas McCANN, Plaintiff and Appellant, v. MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 640

270 Cal.Rptr. 640

221 Cal.App.3d 527

Douglas McCANN, Plaintiff and Appellant, v. MUNICIPAL COURT FOR the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY, Defendant and Respondent.

No. B043803.

Court of Appeal, Second District, Division 3, California.

June 19, 1990.

Review Denied September 20, 1990.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Douglas McCann, Albert J. Menaster, Deputy Public Defenders, for petitioner and appellant.

Dennis M. Edgemon and Cotkin, Collins & Franscell, Santa Ana, for respondent.

POUNDERS, Associate Justice. ^*

Appellant, Deputy Public Defender Douglas McCann, was adjudged guilty of multiple acts of contempt in a criminal trial in Los Angeles Municipal Court. He was In this appeal, the contemnor faults the Order of Contempt because (1) he was merely aggressively arguing the issues, (2) trying to persuade the court to change its ruling does not impugn the integrity of the court, (3) he was never warned about his manner, (4) having a discussion with the court cannot amount to contempt for interrupting the court, (5) the written order increased the sentence previously imposed and resurrected grounds for the contempt, (6) he was entitled to a continuance to prepare a defense, (7) the court had already found him in contempt before the hearing, (8) the court's admission that the issue of contempt was in a "grey area" precluded a finding of contempt beyond a reasonable doubt, (9) he had a due process right to call witnesses during the contempt hearing, and (10) more than one contempt for a single course of conduct is barred by Penal Code section 654.

fined a total of $1,000, on November 16, 1988. He filed a Petition for Writ of Certiorari in the superior court, and the Judgment of Contempt was affirmed except as to acts for which imposition of an additional fine had been suspended. His Notice of Appeal from the judgment of the superior court was filed July 18, 1989.

We find these contentions to be without merit, conclude that each act was contemptuous on its face, and affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

This was the second trial of People v. Victor Hernandez Rodriguez, No. V285786, in the Municipal Court of the Los Angeles Judicial District. The defendant, represented by contemnor, was being tried for a total of 10 charges, including driving under the influence with bodily injury, driving with more than .10 percent alcohol in his blood, hit and run with injuries and property damage, joyriding, and driving without a license.

The genesis of the controversy appears to have arisen during the first trial, conducted with the same participants. During the second trial, contemnor asked Judge Emily A. Stevens whether she "felt different than the last trial, whether he was in fact conducting himself properly, behaving professionally."

The statements which led to the contempt citations occurred during counsel's argument to the jury. A preliminary event was the prosecutor's objection to contemnor's argument:

"MR. MC CANN: I asked him [Mr. Geiger, a news vendor who was an eyewitness to the driver leaving the car after the crash] when he was testifying here, 'Did at any time the police officers tell you they were sure it was him,' and I gave him the transcript and he read that. You'll have to go back and read that. He agreed they were sure it was him, even though he was only 75 percent sure. Then he was shown one photograph by Castorina [the investigating officer], clearly by Castorina, there's no one else that would show the photograph.

"MR. PULONE [the prosecutor]: Objection. Misstates Deputy Castorina's testimony. There has been no evidence that Deputy Castorina showed a photograph to Mr. Geiger.

"MR. MC CANN: Your Honor, that's argument.

"THE COURT: Ladies and Gentlemen, this is very important. Counsel in their arguments are telling you what their interpretation of the evidence is, and if Mr. McCann believes the evidence was one way and Mr. Pulone believes it another way, that's not relevant. They are merely arguing to you at this point. If you have any questions regarding what the evidence was because you have a failure of recollection[,] you may ask the reporter to read back the testimony."

A few moments later, contemnor returned to the same point:

"MR. MC CANN: ... He was shown one photograph. Later on Castorina was the only one who said he had contact with Geiger after the event. Castorina said there was a phone call but denied showing him a photograph. Because Castorina also showed Giddens one photograph.

"Remember the bit about subliminal lying--

"MR. PULONE: Objection. Misstates the evidence.

"THE COURT: Sustained.

"MR. PULONE: I would request that you admonish the jury.

"THE COURT: I have admonished the jury.

"MR. MC CANN: On the issue of 'a photo,' twice in the photographs he referred to the photograph as 'a photo.'

"MR. PULONE: Objection.

"THE COURT: On this issue, move on.

"MR. MC CANN: I will not move on. I will not move on until you haul me away. This is the most important issue of the case and you're not going to convict my client.

"THE COURT: Mr. McCann, you are to be in control.

"MR. MC CANN: I am totally in control, Your Honor.

"THE COURT: At this time you are not...."

(Emphasis added.)

The judge immediately excused the jury, advising the jurors to return at 1:30. Contemnor interjected:

"MR. MC CANN: My time estimate's much more.

"THE COURT: Just a minute, Mr. McCann.

"MR. MC CANN: My time estimate's much more. That's all.

"THE COURT: Just a minute, Mr. McCann.

"(The jurors left the courtroom.)

"THE COURT: Mr. McCann, I talked to you at length before we started.

"MR. MC CANN: You're not my mother.

"THE COURT: You are now in contempt.

"MR. MC CANN: Fine. That's fine.

"THE COURT: There is--

"MR. MC CANN: Your Honor, my time estimate is going to be much more than an hour. If you're going to try to convict my client, I'm going to react." (Emphasis added.)

THE CONTEMPT CITATION

The judgment of contempt and order of November 16, 1988, imposed a fine of $400 for each of the contempts recorded in paragraph sets one and two, and three and four below. A fine of $200 was imposed for the contempt described in paragraphs five and six below:

"1. On November 10, 1988, during the jury trial of People v. Victor Hernandez Rodriguez, Case No. V285786, wherein citee was acting as attorney for the defendant, and in the immediate view and presence of the Court, citee, in a loud, insolent, and disrespectful manner, stated to the Court as follows: 'I will not move on. I will not move on this issue until you haul me away. This is the most important issue of the case, and you're not going to convict my client.' The foregoing statement by citee was made during citee's closing argument in the immediate view and presence of the jury and an audience seated in the courtroom. As a result of citee's statement and subsequent conduct, the trial was interrupted and the jury was excused from the courtroom. (See Exhibit A, page 15, and page 16, line 1.)

"2. The foregoing statement by citee was contemptuous on its face, and it was, on its face, rude, disrespectful, insulting, offensive, and demeaning of the judicial process in the presence of jurors and others in the courtroom. Further, it directly impugned the integrity of the Court, and it interrupted the course of the proceeding then in progress.

"3. After the jury was excused from the courtroom and in the immediate view and presence of the Court, citee interrupted the Court and stated in a loud, insolent and disrespectful manner, 'You're not my mother.' (See Exhibit A, page 16, lines 14-16.)

"4. The foregoing statement by citee was contemptuous on its face, and it was, on its face, rude, disrespectful, insulting, offensive, and impaired and challenged the respect due the authority of the Court in the presence of others in the courtroom.

"5. Further, in the immediate view and presence of the Court and after citee was told that he would be held in contempt, citee interrupted the Court and stated in a loud, insolent and disrespectful manner, 'If you're going to try to convict my client, I'm going to react.' (See Exhibit A, page 16, lines 17-22.)

"6. The foregoing statement by citee was contemptuous on its face, and it was, on its face, rude, disrespectful, insulting, offensive and demeaning of the judicial process in the presence of others in the courtroom. Further, it directly impugned the integrity of the Court."

DISCUSSION

1. Scope of Appellate Review

Contempt is disobedience by action in opposition to the authority, justice or dignity of a court. (Reliable Enterprises, Inc. v. Superior Court (1984) 158 Cal.App.3d 604, 621, 204 Cal.Rptr. 786.) The sole question before a reviewing court is whether there is substantial evidence to sustain the jurisdiction of the trial court to render the judgment. (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1256, 265 Cal.Rptr. 144, 783 P.2d 731; In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201.)

An order adjudging a person guilty of contempt in the immediate view and presence of the court must recite facts which constitute a contempt. (Code Civ.Proc., § 1211; Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 357, 60 Cal.Rptr. 575; Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 115, 116 Cal.Rptr. 713.) The facts must be stated with sufficient particularity to demonstrate "on its face without the aid of speculation" that the conduct constituted a legal contempt. (In re Baroldi (1987) 189 Cal.App.3d 101, 110, 234 Cal.Rptr. 286; In re Buckley, supra, 10 Cal.3d at p. 247, 110 Cal.Rptr. 121, 514 P.2d 1201.) The evidence, the findings, and the judgment are all strictly construed in favor of the contemnor. (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256, 265 Cal.Rptr. 144, 783 P.2d 731.)

Review extends to the entire record. (In re Baroldi, supra, 189 Cal.App.3d at p. 108,...