People v. Kalnoki

• Decision Date: 30 April 1992
• Citation: 9 Cal.Rptr.2d 827,7 Cal.App.4th Supp. 8
• Court: California Superior Court
• Parties: 7 Cal.App.4th Supp. 8 The PEOPLE, Plaintiff and Respondent, v. Andrew KALNOKI, Defendant and Appellant. Crim. A. 13381. Appellate Department, Superior Court, Yolo County, California

Page 827

9 Cal.Rptr.2d 827

7 Cal.App.4th Supp. 8

The PEOPLE, Plaintiff and Respondent, v. Andrew KALNOKI, Defendant and Appellant.

Crim. A. 13381.

Appellate Department, Superior Court, Yolo County, California.

April 30, 1992.

Andrew Kalnoki, defendant and appellant in pro. per.

David C. Henderson, Dist. Atty., and Elizabeth J. Eaton, Deputy Dist. Atty., for plaintiff and respondent.

ROACH, Presiding Judge.

Appellant was convicted by a jury of a violation of section 166, subdivision 2 of the Penal Code, a misdemeanor contempt. He bases his appeal on the construction of that section, arguing that the presiding judicial officer was a commissioner, and Penal Code section 166, subdivision 2 only applies to referees.

On February 8, 1991, while appearing before a commissioner presiding over the traffic division of the Yolo County Municipal Court to settle a proposed statement on appeal, appellant was arrested for contempt and charged with violating Penal Code section 166, subdivision 1. At trial the charge was amended to Penal Code section 166, subdivision 2 and 148, resisting arrest. After trial by jury, appellant was acquitted of the charge of resisting arrest and found guilty of contempt, Penal Code section 166, subdivision 2. In instructions to the jury the trial court told the jury that a commissioner and referee were synonymous for purposes of Penal Code section 166, subdivision 2.

Although appellant raises six issues on appeal, we need not decide those issues because the proper construction of Penal Code section 166, subdivision 2 is dispositive.

It is the policy of our state that contempt citations not be taken lightly, especially criminal contempts. An alleged contemnor in this state is entitled to the full panoply of substantive and due process rights in adjudicating even civil contempt. Contempt is a drastic power and should only be used when necessary. (In re Jackson (1985) 170 Cal.App.3d 773 .) In reviewing contempt citations the reviewing court must be meticulously careful to observe procedural and substantive safeguards. (Yates v. United States (9th Cir.1955) 227 F.2d 848.) Judgments of contempt are to be strictly construed in favor of the contemnor and review extends to the entire record. (McCann v. Municipal Court (1990) 221 Cal.App.3d 527, 536 ; In re Liu (1969) 273 Cal.App.2d 135 .) For all of these reasons, contempts are disfavored and many "fail to survive appellate review. The history of contempt litigation in California is replete with cases rejecting such findings. [Citations.]" (McCann, supra, 221 Cal.App.3d at p. 537, 270 Cal.Rptr. 640.) Although these cases deal with summary contempts, these rules cannot be ignored in cases involving criminal contempt under Penal Code section 166, subdivision 2. Penal Code section 166, subdivision 2 does not give the prosecutor or the bailiff carte blanche to ignore the contempt safeguards developed over the entire history of California law. Further, an attorney must be given some latitude to zealously advocate for his or her client.

All crimes charged must be construed strictly in favor of defendant. (Myers v. Superior Court (1920) 46 Cal.App. 206 .) A reading of the plain language of Penal Code section 166, subdivision 2 does not indicate that commissioner and referee are ... synonymous for purposes of a criminal conviction under the statute.

In general, judges should be "long of fuse and somewhat thick of skin." (DeGeorge v. Superior Court (1974) 40 Cal.App.3d 305, 312 [114 Cal.Rptr. 860].) Counsel must be given substantial freedom in representing their clients, and courts have held that failure of counsel to "sit down" when told, counsel slapping the table, and counsel's repeated request for ruling on objections do not constitute contemptuous behavior. (Matter of Contempt of Greenburg (9th Cir.1988) 849 F.2d 1251; Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 786 ; Cooper v. Superior Court (1961) 55 Cal.2d 291 [10 Cal.Rptr. 842, 359 P.2d 274]; [order to "sit down"]; Bennett v. Superior Court (1946) 73 Cal.App.2d 203, 225 [manner, attitude or tone of voice in making proper statements].) In this case, although a jury found appellant guilty, the record indicates it was upon instructions from the trial judge that commissioner and referee were synonymous for purposes of Penal Code section 166, subdivision 2.

The crime of contempt in front of a referee under Penal Code section 166, subdivision 2 does not include commissioner or any other judicial officer. We do not express an opinion whether civil contempt proceedings against appellant would have been timely or appropriate.

On appeal it is acknowledged that municipal court findings of law are not binding on the superior court's appellate department. "The issue here is one of statutory construction. Because the evidence is undisputed and the issue raises a question of law, our function is identical to that of the trial court. The trial court's legal conclusions are not binding on appeal." (People v. American Bankers Ins. Co. (1991) 233 Cal.App.3d 561, 564 .)

The reviewing court should analyze the statute according to its plain meaning. If the meaning is not plain then the court must ascertain the legislative intent, the evils to be remedied, the legislative history, public policy and the statutory scheme of which the statute is a part. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007 .) "It is a settled aim of statutory construction that significance should be attributed to every word and phrase of a statute, and a construction making some words surplusage should be avoided. [Citations.] It is an equally settled axiom that when the drafters of a statute have employed a term in one place and omitted it in another, it should not be inferred where it has been excluded." (Id. at p. 1010, 239 Cal.Rptr. 656.)

In this case the meaning of the statute is clear; "referee" does not mean "commissioner." In 1872 the offices of referee and commissioner were set up in separate statutes. The statute, Penal Code section 166, subdivision 2, would clearly have indicated commissioner was included if that was the result intended.

Black's Law Dictionary defines commissioners and referees quite differently, pointing out that referees "exercise judicial powers." ¹ However, contempts against subordinate officers are usually contempts of the appointing court which has the power to punish. (Marcus v. Workmen's Comp. (1973) 35 Cal.App.3d 598 .) "While court commissioners and referees have been authorized in some jurisdictions to punish disobedience of their orders as contempts, it has been held that, in the absence of express authority, such officers have no such power [citations]. ... [p]... The power to punish for contempt is not included within the statutory powers and duties of court commissioners.... (Id. at p. 603, 111 Cal.Rptr. 101.) (See also In re Horton (1991) 54 Cal.3d 82 , 813 P.2d 1335, review den. [distinguishes power of commissioner when acting as temporary judge by stipulation]; In re Mark L. (1983) 34 Cal.3d 171 [193 Cal.Rptr. 165, 666 P.2d 22] [distinguishes procedures used to give power to juvenile referee which do not apply to court commissioner]. Cf. In re Hart's Estate (1938) 11 Cal.2d 89 [party could not object on grounds that decision was made by a commissioner while acting as a referee].)

We must determine the meaning of the statute at the time of the enactment of Penal Code section 166, subdivision 2. Penal Code section 166 was enacted in 1872 when there were no infractions. Because this is a criminal statute it must be construed as favorably to the defendant as possible. (Keeler v. Superior Court (1970) 2 Cal.3d 619 [87 Cal.Rptr. 481, 470 P.2d 617].) "[T]he defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute." (Id. at p. 631, 87 Cal.Rptr. 481, 470 P.2d 617.) "In the case of a penal statute, it is the policy of this state to construe the statute as favorably to the defendant as its language and the circumstances of its application permit." (In re Nathaniel (1991) 228 Cal.App.3d 990, 1002 .)

In reading the plain language of the statute, and reviewing the history of that statute and of California's law of contempt, this court has found no authority holding that Penal Code section 166, subdivision 2 applies to commissioners, and has not been led to any by respondent. Penal Code section 166, subdivision 2 was enacted in 1872 and has never been amended. It was taken verbatim from the Field Code, section 201, which was also enacted in New York as New York Penal Law section 143. As late as 1935 the New York statute had not added the word commissioner. ² California Penal Code section 166 reads:

"Every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor: [p] 1. Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority; [p] 2. Behavior of the like character committed in the presence of any referee, while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law ...." (Italics added.)

It was, of course, the latter provision of which the appellant was convicted. The annotation to section 166 of the 1872 California Penal Code states in pertinent part:

"Note. The power to proceed against persons for contempt is incident to every judicial tribunal, derived from its very constitution, without any express statutory aid. [Citations.]" (Code Comrs. note fol. Ann.Pen.Code, § 166 (1st ed. 1872, Haymond & Burch, Comrs.--Annotators) p. 74.)

However, in 1872 there were no "infractions" or commissioners appointed...