People v. Batey

• Citation: 183 Cal.App.3d 1281,228 Cal.Rptr. 787
• Parties: The PEOPLE, Plaintiff and Appellant, v. Betty Lou BATEY, Defendant and Respondent. D002900.
• Decision Date: 31 July 1986
• Court: California Court of Appeals

Page 787

228 Cal.Rptr. 787

183 Cal.App.3d 1281

The PEOPLE, Plaintiff and Appellant, v. Betty Lou BATEY, Defendant and Respondent.

D002900.

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

July 31, 1986.

Review Denied November 20, 1986.

[183 Cal.App.3d 1282] Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and Anthony Lovett, Deputy Dist. Attys., for plaintiff and appellant.

Michael P. Farris, Washington, D.C., and J. Michael Smith, San Diego, for defendant and respondent.

KREMER, Presiding Justice.

FACTUAL AND PROCEDURAL HISTORY ¹

On September 7, 1982, the San Diego County Superior Court awarded custody of then 11-year-old Brian to his father Frank with specified visitation rights to Brian's mother, Betty. In accordance with the court's order, Betty picked up Brian from his father for her first scheduled visit on September 17, 1982. She was to return Brian to Frank on September 19, 1982. She did not do so but instead removed Brian from California. Frank next saw Brian April 30, 1984, at a Denver, Colorado crisis center. On May 1, 1984, Brian was returned to California and lodged with a foster family awaiting resolution of the custody proceedings between his parents.

On June 21, 1984, Frank obtained an order to show cause for contempt in the domestic action. Count I charged Betty with 464 instances of willfully failing to return Brian to him in violation of the September 7, 1982, court order (one for each day the child was retained from September 20, 1982 to May 1, 1984). Count II alleged Betty made disparaging remarks about Frank in violation of the court's order. Count III charged Betty willfully prevented Brian from participating in therapy in violation of the court's order and count IV alleged Betty willfully removed Brian from California in violation of a court order.

On July 6, 1984, an information was filed charging Betty with two counts of child stealing in violation of Penal Code section 278.5, subdivision (a). Count one alleged "[o]n or about September 20, 1982, BETTY LOU BATEY did wilfully, unlawfully and in violation of a custody decree, retain a child after the expiration of a visitation period, with the intent to deprive the legal custodian of such child of the right to custody, in violation of Penal Code section 278.5(a)." Count two charged "[b]etween September 20, 1982, and April 23, 1984, BETTY LOU BATEY did wilfully, unlawfully, and in violation of a custody decree conceal a child from his legal custodian with the intent to deprive the other person of such right to custody, in violation of Penal Code section 278.5(a)."

On October 17, 1984, the family court consolidated the 464 "daily" contempt allegations into one count. Betty was found guilty of the consolidated charge and of counts III and IV. Count II was dismissed. The court imposed 5 days consecutive custody for each charge found true with credit for 16 days custody spent in Colorado. The court's minutes further state "The Court also fines the respondent $1,000. on each of the 3 counts making a total of $3,000.

Execution of the fine is stayed for a period of one year on the condition that the respondent comply with all court orders regarding visitation, custody, education of minor, therapy and disparaging remarks order." (Emphasis added.)

Betty entered pleas of not guilty, former conviction, and once in jeopardy to the felony child stealing allegations. On Betty's motion, the court found the contempt conviction for the consolidated count constituted former jeopardy and dismissed the information against her. The People appeal. We reverse.

DISCUSSION

"The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall 'be subject for the same offence to be twice put in jeopardy of life or limb.' " (Brown v. Ohio (1977) 432 U.S. 161, 164, 97 S.Ct. 2221, 2224, 53 L.Ed.2d 187.)

Being in jeopardy in the constitutional sense means risking the punitive consequences normally incident to proceedings which are essentially criminal. (Breed v. Jones (1975) 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346.) Being twice in jeopardy for the "same offense" ² requires that the elements of the compared offenses be the same and that the same evidence support proof of both. (People v. Lombardo (1975) 50 Cal.App.3d 849, 854, 123 Cal.Rptr. 755, Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707.)

The People do not question the presence of the latter two criteria but argue only that the contempt proceedings attending the domestic case here were civil rather than criminal. ³ We agree.

State and federal case law clearly distinguish criminal and civil contempts. "[W]here the object of the proceedings is to vindicate the dignity or authority of the court, they are regarded as criminal in character even though they arise from, or are ancillary to, a civil action. [Citation.]" (Morelli v. Superior Court (1969) 1 Cal.3d 328, 333, 82 Cal.Rptr. 375, 461 P.2d 655.) "... [C]ivil contempt, as contrasted with criminal contempt, has traditionally been viewed as non-punitive, for its purpose is only to compel compliance with a lawful order of the court; ..." (In re Lifschutz (1970) 2 Cal.3d 415, 439, fn. 27, 85 Cal.Rptr. 829, 467 P.2d 557.) Federal law is to the same effect. "Under the sanction test if the purpose of the relief is to compel the respondent to comply or compensate the petitioner for the refusal, the contempt proceeding is civil in nature. If the purpose is to punish the respondent and vindicate the court, the proceeding is criminal." (United States v. Asay (9th Cir.1980) 614 F.2d 655, 659.)

Respondent argues the contempt proceedings in the family court matter here were clearly aimed at vindicating the court and punishing past conduct rather than compelling compliance in the future or compensating a private litigant. Respondent points out Betty was sentenced to a flat fifteen days in custody, the maximum possible for three counts of contempt (Code Civ.Proc., § 1218), with no option given her to avoid the sanction through future conduct. Respondent concludes that under controlling law, these contempt proceedings were criminal.

However, respondent's reading focuses on only a portion of the court's disposition. Viewed as a whole, the court imposed no present custody at all and stayed payment of any fine for one year conditioned upon respondent's complying with various family Colombo v. New York (1972) 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762 and the cases it relies upon aid to resolve the question.

court orders. It is this entire disposition which we consider to determine whether the proceedings were essentially civil or criminal.

Colombo refused to testify before a New York Grand Jury, was found in contempt, sentenced to 30 days and fined $250. His subsequent offer to testify was refused and he served his sentence and paid the fine. He was then indicted " 'for his contumacious and unlawful refusal, after being duly sworn as a witness, to answer legal and proper interrogatories.' " (Colombo v. New York, supra, at p. 10, 92 S.Ct. at p. 756.) The trial court dismissed the indictment on double jeopardy grounds. An intermediate Court of Appeal reversed and the New York Court of Appeal affirmed the reversal on two grounds: there were, on these facts, two separate acts of contempt and Colombo's commitment was for civil rather than criminal contempt.

The Supreme Court vacated the judgment of the New York Court of Appeal stating

"The judgment of the New York trial court entered on December 15, 1965, was for 'criminal contempt,' petitioner was sentenced to a definite term in jail and ordered to pay a fine, and neither the prosecutor nor the trial court considered his offer to testify as sufficient to foreclose execution of the sentence. For purposes of the Double Jeopardy Clause, petitioner was confined and penalized for criminal contempt. Yates v. United States, 355 U.S. 66 [78 S.Ct. 128, 2 L.Ed.2d 95] (1957); see also Cheff v. Schnackenberg, 384 U.S. 373 [86 S.Ct. 1523, 16 L.Ed.2d 629] (1966); Shillitani v. United States, 384 U.S. 364 [86 S.Ct. 1531, 16 L.Ed.2d 622] (1966); Oriel v. Russell, 278 U.S. 358 [49 S.Ct. 173, 73 L.Ed. 419] (1929)." (Colombo v. New York, supra, at pp. 10-11, 92 S.Ct. at pp. 756-757.)

In Yates, the issue was whether the petitioner could be sentenced to prison after termination of the trial based on a contempt finding arising from her refusal to answer questions during the trial. The petitioner argued the prison sentences were imposed to coerce her into answering the questions instead of to punish her, were thus civil rather than criminal contempt, and she could not therefore be properly imprisoned after the trial. (Yates v. United States (1957) 355 U.S. 66, 71, 78 S.Ct. 128, 131, 2 L.Ed.2d 95.) When the District Court imposed the sentences, it stated if she answered the questions within 60 days, while it had authority to modify the sentence under rule 35 of the Federal Rules of Criminal Procedure, it would be inclined to accept her submission to the authority of the court. (The petitioner persisted in her refusal.) (Id. at p. 70, 78 S.Ct. at p. 131.)

The United States Supreme Court held the contempts were criminal, stating:

"We do not believe that the sentences under review in this case were imposed for the purpose of coercing answers to the 11 questions. Rather, the record clearly shows that the order was made to 'vindicate the authority of the court' by punishing petitioner's 'defiance' thereof. The sentencing judge did express the hope that petitioner would still 'purge herself to the extent that she bows to the authority of the court' by answering the questions either at the time of the sentencing or within 60 days thereafter. In doing so, however, he acted pursuant to the power of the court under Rule 35 of the Federal Rules of Criminal Procedure rather than under any theory of civil contempt. Indeed, in...