Mowrer v. Superior Court

• Decision Date: 31 December 1969
• Citation: 3 Cal.App.3d 223,83 Cal.Rptr. 125
• Court: California Court of Appeals Court of Appeals
• Parties: Glen MOWRER, Jr., Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent. Civ. 35444.

Page 125

83 Cal.Rptr. 125

3 Cal.App.3d 223

Glen MOWRER, Jr., Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent.

Civ. 35444.

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

Dec. 31, 1969.

Hearing Denied Feb. 25, 1970.

Ball, Hunt, Hart & Brown, Beverly Hills, and Joseph A. Ball, Long Beach, and Cary A. Rosen, for petitioner.

John D. Maharg, County Counsel, Jean Louise Webster, and Lynard C. Hinojosa, Deputy's County Counsel, for respondent.

PER CURIAM.

Petitioner, a deputy public defender of the County of Los Angeles, seeks a writ of certiorari to review an order of the respondent court holding him in contempt.

It is the practice of the public defender's office in the County of Los Angeles to attempt to assign a deputy public defender working in felony trials as many original trial settings as possible in a single department of the respondent court. However, this is not always possible, and often an individual deputy will have matters set in departments of the court other than the one in which he is generally engaged. In addition, under the 'overflow system' ¹ in effect in the Central Criminal Division of respondent court, on the day fixed for trial of a particular case the matter may be transferred to another department of the court for trial if the department of original setting is trying another case or is for any reason unable to handle a particular case. The deputy public defender who tries a case is also expected to return to the department in which he tried the case for the probation and sentence hearing.

Between February and August 1969 petitioner was assigned trials originally set in approximately ten different departments of the Central Criminal Division of the respondent court. However, commencing in May 1969, most of his cases were set in Department 115 of the court.

On August 8, 1969, the following colloquy took place between petitioner and the judge presiding in Department 115: 'THE COURT: Mr. Mowrer, when you have matters on the calendar, will you kindly remain in the courtroom until we dispose of the calendar matters. MR. MOWRER: I had two witnesses I had to talk with. THE COURT: I don't care what you had outside, sir. MR. MOWRER: Well, I'm sorry, your Honor. There are other attorneys in the courtroom besides myself. I had to talk to witnesses. THE COURT: I'll put that in the form of an order for you, Mr. Mowrer, so there won't be any misunderstanding. I expect you to be here at 9:00 o'clock every morning, and I expect you to remain in this courtroom until such time as the calendar matters have been concluded and you have been excused by this Court. MR. MOWRER: I cannot be here every morning at 9:00 o'clock, your Honor, because I have other courts that have my cases on the calendar. THE COURT: Well, you get here first and get excused. MR. MOWRER: I don't see how you can order me to do that, your Honor.'

On August 21, 1966, petitioner appeared in Department 115 at 9:00 a.m. in a case entitled People v. Lois Jones. The matter was trailed and continued to August 22, 1969, at 9:00 a.m. That same day petitioner also had appearances set in Departments 102, 105 and 111 of the respondent court. Petitioner testified at his contempt hearing that on August 21, 1969, he argued a motion for new trial in Department 111, then went to Department 105 at 1:30 p.m. for a probation and sentence hearing and requested that it go over to 2:30 that afternoon, and then proceeded to Department 102 where he had a pretrial 1538.5 (Penal Code, § 1538.5) motion to argue. When he called Department 105 at 3:00 p.m. he was advised that his matter had been continued to 9:00 a.m. of the following morning (August 22). Petitioner testified that he left Department 102 'a little after 5:00 o'clock.'

On August 22, 1969, petitioner arrived at his office prior to 9:00 a.m. He testified that he knew it was the practice of the presiding judge in Department 105 to take the bench promptly at 9:00 a.m. and that it was usually the practice of the judge presiding in Department 115 to take the bench between 9:20 a.m. and 9:45 a.m. Accordingly, petitioner informed Deputy Public Defender McGarry, who was also appearing in Department 115 that morning, that he had to appear in Department 105 briefly and that he expected to be present in Department 115 before the judge in that department took the bench, but that if he was late, it would be because he was detained in Department 105. The record indicates that when Mr. Mowrer's first matter (Ornelas) was called by the judge in Department 115 on the morning of August 22, Mr. McGarry responded, 'He will be over a little while later, your Honor. Another appointment.' He did not advise the judge of Mr. Mowrer's whereabouts.

Petitioner testified he arrived in Department 105 shortly before 9:00 a.m. and attempted to call Department 115 but that he was unable to do so because the judge presiding in Department 105 took the bench before he had time to complete his call. Witnesses testified at the contempt hearing that the judge presiding in Department 105 on August 22 insisted that no telephone calls be made by attorneys in the courtroom while court was in session. At approximately 10:00 a.m. petitioner made a call to the Clerk of Department 115 and advised him that he was delayed in Department 105.

After petitioner concluded the probation and sentence hearing set in Department 105, he proceeded immediately to Department 115, where the following exchange took place between counsel and the court upon his arrival: 'THE COURT: Mr. Mowrer. MR. MOWRER: Yes, your Honor. THE COURT: Where were you at 9:00 a.m. this morning? MR. MOWRER: I was in Department 105, your Honor. THE COURT: Do you recall the order I made about a week ago that you should be present in this court at 9:00 a.m. until excused? MR. MOWRER: I recall at that time also telling the Court that I don't feel it was a proper order and wouldn't and couldn't comply with it if I had other matters in the court. In other words--THE COURT: In that case I order you to return to this courtroom at 1:45 this afternoon to show cause why the Court should not hold you in contempt for failing to be present in this court at 9:00 a.m. this morning.'

At his contempt hearing on August 27, 1969, petitioner testified that he had gone to Department 105 first because he believed that he could conclude his business in Department 105 before the judge in Department 115 took the bench and because he knew there would be at least two other deputy public defenders in Department 115 that morning to handle any 'unexpected business.'

On August 27, 1969, after an extensive contempt hearing which fully complied with the procedural requirements delineated in Arthur v. Superior Court, 62 Cal.2d 404, 42 Cal.Rptr. 441, 398 P.2d 777, for a so-called 'hybrid contempt' arising out of the alleged failure of an attorney, without valid excuse, to be present at the announced time for resumption of a criminal trial in which he was engaged, the petitioner was found in contempt by the respondent court. The order of the court was as follows: 'The contempt proceedings against Glen Mowrer, Jr., having come on regularly on an Order to Show Cause before this court on August 27, 1969, and the said Glen Mowrer appearing in person and being represented by counsel, Fred T. Kilbride, and evidence having been presented and argued and the matter having been submitted, and good cause appearing therefor, and it appearing that: One, a lawful order was given by the undersigned to said Glen Mowrer, Jr. as Deputy Public Defender assigned to handle criminal cases on the Court's calendar in Department 115 of the Superior Court of the County of Los Angeles to appear in Department 115 on each court day at 9:00 a.m. to represent defendants in matters assigned and to be assigned to the Public Defender in Department 115. Said order further requires Glen Mowrer, Jr. to remain in Department 115 each day until excused by the court. In addition, there were matters on the Court's calendar in Department 115 set for hearing and appearance on August 22, 1969 at 9:00 a.m. which had previously been assigned to the said Glen Mowrer, Jr. as Deputy Public Defender to represent the defendants therein. Two, the order was given on August 8, 1969 by the Court in Department 115. Three, the said Glen Mowrer, Jr. was present and heard and understood said order. Four, the said Glen Mowrer, Jr. did wilfully neglect and failed to so appear in Department 115 at 9:00 a.m. on August 22, 1969 without sufficient reason or excuse for such failure. Five, the said Glen Mowrer, Jr. had the ability to appear in Department 115 at 9:00 a.m. on August 22, 1969. And six, the failure of said Glen Mowrer, Jr. to appear at said time and place obstructed and delayed the Court's business with respect to the calendar matters assigned to the said Glen Mowrer, Jr., as well as a jury trial which was then in progress in Department 115. Accordingly, it is hereby, ordered adjudged and decreed that the said Glen Mowrer, Jr. is in contempt of this court in his failure to obey such order and in his failure to appear in this Department at 9:00 a.m. on August 22, 1969 to handle the matters which previously had been assigned to him and which were on the Court's calendar at that time and that said Glen Mowrer, Jr. is hereby fined the sum of fifty dollars payable forthwith. In default of payment of said fine, the said Glen Mowrer, Jr. shall be imprisoned in the County Jail for two days.'

Whether petitioner's acts constituted a contempt is jurisdictional, and in the absence of a recital of facts sufficient to constitute a contempt, the order adjudging the petitioner in contempt must be annulled. (In re Ciraolo, 70 Cal.2d 389, 74 Cal.Rptr. 865, 450 P.2d 241; Arthur v. Superior Court, 62 Cal.2d 404, 409, 42 Cal.Rptr. 441, 398 P.2d 777; Chula v. Superior Court, 57 Cal.2d 199, 203, 18 Cal.Rptr....