Nierenberg v. Superior Court

• Decision Date: 29 June 1976
• Citation: 130 Cal.Rptr. 847,59 Cal.App.3d 611
• Court: California Court of Appeals Court of Appeals
• Parties: Alvin NIERENBERG, Deputy Public Defender, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent. Civ. 48407.

Page 847

130 Cal.Rptr. 847

59 Cal.App.3d 611

Alvin NIERENBERG, Deputy Public Defender, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent.

Civ. 48407.

Court of Appeal, Second District, Division 1, California.

June 29, 1976.

John M. Moore, Chief Deputy Public Defender and Harold E. Shabo, Deputy Public Defender, Los Angeles, for petitioner.

John H. Larson, County Counsel and John P. Farrell, Deputy County Counsel, for respondent.

LILLIE, Associate Justice.

Petitioner, a deputy public defender, represented Jimmy Ray Harris, defendant in the trial of a cirminal prosecution for violation of sections 459, 261.3 and 288a, Penal Code, before a commissioner sitting as judge pro tempore with a jury, commencing in March 1976. At the close of the People's case, and on March 26, the district attorney moved to discover certain material gathered by the defense in preparation for trial; the motion was granted and petitioner was ordered to turn over to the district attorney any statement made to the defense investigator by the victim, and any statements made to the investigator by defense witnesses but only if the witness is called to testify, and if the defense is unwilling to produce the statement, the witness will not be permitted to testify. On March 29 petitioner refused to comply with the court's order and was cited for contempt, the hearing to be had 'at the conclusion of the case here (Harris trial) when the jury is discharged.'

On March 30, after the defense called the victim to testify, the district attorney asked her on cross-examination if she had been interviewed by the defense investigator, and she answered in the affirmative. Subsequently petitioner moved to strike the testimony concerning the interview; a colloquy ensued; petitioner again sought to argue the motion before the jury; the court asked, 'Do you want to be held in contempt?' and petitioner replied, 'my client is being denied a fair trial--' whereupon the court said 'I'm citing you now for contempt,' to be heard 'at the end of the proceedings in this (Harris) case.'

On April 2 the jury acquitted defendant Harris. After the verdict was returned and the jury polled and discharged and defendant Harris was ordered released, the commissioner announced 'We will proceed now with the matter of the contempt.' Petitioner requested a continuance on the ground he was 'entitled to at least three day under the laws and statute,' his 'appellate department would like to review the proceedings' and he had only one 'copy of the contempt,' and he had not received the reporter's transcript. The commissioner continued petitioner's contempt hearing to April 7.

On April 7 at the very outset of the contempt hearing petitioner and his counsel expressly refused to stipulate that the commissioner could serve as a judge pro tempore or that the commissioner had the power to act as a judge at the hearing. ¹ However, the commissioner presided over the contempt hearing without a stipulation, and after hearing argument of counsel, purged the contempt relating to the statements of defense witnesses. For petitioner's refusal to disclose the statement of the victim, the commissioner adjudged him in contempt of court and ordered him to pay a fine of $50, and for petitioner's argument on the motion to strike the commissioner adjudged him in contempt of court and ordered him to pay a fine of $100.

On April 8, 1976, petitioner filed the within petition for writ of certiorari, whereupon this court ordered (1) a temporary stay of execution of the April 7 order pending determination of the petition, and (2) respondent court to show cause why the writ should not issue. Thereafter return and answer to order to show cause were filed by respondent court and the matter was orally argued. At the conclusion of oral argument counsel stipulated that in the event the writ issued, further hearing thereon is waived and the cause is submitted on all documents, papers and official records of respondent court including reporter's transcripts of all proceedings, on file herein. Writ of certiorari has issued and we have reviewed the records of respondent court in connection with the order of contempt.

In reviewing an adjudication of contempt, the sole question before this court is one of jurisdiction of the trial court to render the judgment under review. (In re Buckley, 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201.) Initially there is a serious jurisdictional question herein arising out of the power of the commissioner to adjudicate the contempt. While it is our view that the April 7 order of contempt is subject to challenge on other jurisdictional grounds, our disposition of the issue of the power of the commissioner to act in the matter herein compels our conclusion that said order is null and void.

The position advanced by respondent court in support of the order is that the commissioner acting as a judge pro tempore acts 'for the superior court,' and that in addition to inherent power the court has statutory power to summarily punish for direct contempt and control courtroom conduct of an attorney; that a direct contempt proceeding continued to the end of a trial is not a separate cause but an ancillary proceeding such as the hearing on motion to vacate order granting motion for new trial in Anderson v. Bledsoe, 139 Cal.App. 650, 34 P.2d 760; and that petitioner's acquiescence in the court's order that the contempt be heard at the conclusion of the criminal trial either constituted the deferment a continuation of the Harris criminal proceeding or created an 'implied or express stipulation' to the 'delayed hearing.'

Here the issue is a narrow one; it does not involve the power of the commissioner acting as a temporary judge to Cite for contempt an attorney appearing before him in the underlying proceeding or even the power of the temporary judge at that time or at the conclusion of the proceeding but before final determination thereof, to Adjudicate the contempt and punish the contemnor. Our concern is solely whether the commissioner has the power to adjudicate and punish for direct contempt after final determination of the underlying proceeding absent a stipulation conferring on him judicial powers. We conclude in this case that the acquittal of defendant Harris, discharge of the jury and order releasing Harris from custody marked the 'final determination' of that 'cause' in which 'the parties litigant' had stipulated to empower the commissioner to act as a judge pro tempore; and that after final determination of Harris, the stipulation no longer was effective to confer judicial power on the commissioner to adjudicate the contempt, then a cause distinct from the underlying criminal proceeding and one which required a stipulation of 'the parties litigant' thereto to vest the commissioner with the power to act as a temporary judge, which stipulation was expressly refused by petitioner.

The power of a court commissioner to act as a temporary judge emanates solely from stipulation by the parties to the proceeding. (Cal.Const., art. VI, § 21; Rooney v. Vermont Investment Corp., 10 Cal.3d 351, 360, 110 Cal.Rptr. 353, 515 P.2d 297; People v. Tijerina, 1 Cal.3d 41, 48--49, 81 Cal.Rptr. 264, 459 P.2d 680.) Section 21, article VI provides: 'On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.' Section 259a, subdivision 4, Code of Civil Procedure gives certain commissioners the power to 'act as judge pro tempore wnen otherwise qualified so to act . . ..' This statute does not enlarge the power granted in the constitution. (Rooney v. Vermont Investment Corp., 10 Cal.3d 351, 110 Cal.Rptr. 353, 515 P.2d 297.)

This case involves a direct contempt. Direct contempt is that committed in the immediate view and presence of the court or of the judge at chambers; all other contempts are indirect which by definition occur outside the presence of the court. (§ 1211, Code Civ.Proc.; In re McKinney, 70 Cal.2d 8, 10, fn. 2, 73 Cal.Rptr. 580, 447 P.2d 972; Arthur v. Superior Court, 62 Cal.2d 404, 407, 42 Cal.Rptr. 441, 398 P.2d 777; The People v. Turner, 1 Cal. 152, 155.) It has been long established that a court has inherent power to punish for contempt. (In re Buckley, 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201; In re Shortridge, 99 Cal. 526, 532, 34 P. 227.) While this power exists independent of statute (Raskin v. Superior Court, 138 Cal.App. 668, 669--670, 33 P.2d 35), it has been codified by the legislature which established the procedure to be followed in adjudging persons in contempt of court. (§ 1211, Code Civ.Proc.; Arthur v. Superior Court, 62 Cal.2d 404, 407, 42 Cal.Rptr. 441, 398 P.2d 777.) The fact that the court has summary power to adjudicate a direct contempt (§ 1211, Code Civ.Proc.; In re Hallinan, 71 Cal.2d 1179, 1180, 81 Cal.Rptr. 1, 459 P.2d 255) and all that is required is that an order be made reciting the facts adjudging the person guilty and prescribing the punishment (In re Ciraolo, 70 Cal.2d 389, 393--394, 74 Cal.Rptr. 865, 450 P.2d 241; Arthur v. Superior Court, 62 Cal.2d 404, 407, 42 Cal.Rptr. 441, 398 P.2d 777), does not establish that a direct contempt is not a distinct cause before the court. However, it has become a common practice to defer adjudication of contempt for courtroom misconduct to later in or at the conclusion of the trial "unless prompt punishment is imperative." (In re Grossman, 24 Cal.App.3d 624, 628--629, 101 Cal.Rptr. 176, 178; People v. Fusaro, 18 Cal.App.3d 877, 888, 96 Cal.Rptr. 368.) In those cases in which the 'final and decisive action is deferred until after the trial is concluded, the adjudication of contempt and sentencing without notice or hearing or the opportunity to speak in one's own behalf does not 'square with the Due Process...