People v. Lombardo, Cr. 27138

• Court: California Court of Appeals
• Citation: 50 Cal.App.3d 849,123 Cal.Rptr. 755
• Docket Number: Cr. 27138
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mario LOMBARDO, Defendant and Appellant.
• Decision Date: 05 August 1975

Page 755

123 Cal.Rptr. 755

50 Cal.App.3d 849

The PEOPLE, Plaintiff and Respondent, v. Mario LOMBARDO, Defendant and Appellant.

Cr. 27138.

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

Aug. 5, 1975.

Mario Lombardo in pro per.

Stanley M. Roden, Dist. Atty., County of Santa Barbara, and Patrick J. McKinley, Deputy Dist. Atty., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

After his plea of former jeopardy was rejected, Mario Lombardo was convicted in the Municipal Court of the Santa Barbara-Goleta Judicial District of a violation of section 166, Penal Code (willfully and unlawfully refusing to answer material questions after being sworn in the case of People v. Joszef Unszusz after having been given immunity). He was sentenced to six months in the county jail and fined $500 but fiven credit for time previously served and the amount of fine previously paid on a contempt order arising out of the same refusal to testify. On appeal to the appellate department of the Superior Court for Santa Barbara County the judgment was reversed and the trial court directed to dismiss the complaint. Thereafter the appeal was transferred to this court on certification pursuant to rules 61--69, California Rules on Appeal to determine the issue whether the double jeopardy clause of the Fifth Amendment of the United States Constitution bars a misemeanor contempt prosecution brought under section 166, Penal Code against a party who previously has been found to be in contempt (§ 1209, subds. 5, 9, Code Civ.Proc.) and sentenced to a definite jail term for the same act or omission--refusing to answer questions put to him pursuant to an immunity order.

On February 20, 1974, a felony complaint was filed in the municipal court charging Joszef Unszusz with receiving certain stolen paintings. Defendant herein agreed to appear voluntarily as a prosecution witness in the preliminary hearing; when the prosecutor asked him if Unszusz had brought six paintings to his home between December 1 and December 26, 1973, he refused to answer on the ground it might tend to incriminate him. Later that day the superior court made an order granting defendant immunity from prosecution arising from his conduct with Unszusz between December 1 and December 26, 1973, and directing him to appear and answer questions concerning the acts and conduct of Unszusz between December 1 and December 16, 1974. Defendant returned to the witness stand and was asked whether he knew Unszusz; he refused to answer on the ground it might tend to incriminate him. Thereafter on advice of the court to propound questions within the scope of the immunity order, the prosecutor asked if defendant was present at a meeting with one Bartlett and Unszusz between December 1 and December 26, 1973; defendant's counsel advised the court that defendant would refuse to answer; defendant also refused to reveal whether he had met with Unazusz between December 1 and December 26, 1973, had a conversation with Deputy Kirkman concerning these meetings or whether he had ever seen the five stolen paintings which were then in the courtroom. The court advised defendant that if he did not answer the questions he would be found in contempt, and suggested that he discuss it with his counsel who was present; counsel again advised the court defendant would decline to testify. After defendant's counsel declined to offer any mitigating evidence the court found defendant in contempt for refusing to answer questions put to him after having been ordered to do so; he was sentenced to five days in the county jail and fined $500 payable in 30 days.

The following day defendant was charged in the municipal court with a violation of section 166, Penal Code and entered pleas of not guilty and once in jeopardy, and waived his right to a jury trial. At trial the transcript of the preliminary hearing and other documentary evidence including the immunity order were admitted in evidence by stipulation. The prosecutor called as a witness the judge who presided at the preliminary hearing of Unszusz; he testified that defendant had been found in contempt for simply refusing to answer questions propounded to him after being directed by court order to do so. The plea of former jeopardy was denied and defendant was found guilty as charged.

It is clear from the record that the object of the contempt proceeding in this case was to vindicate the dignity or authority of the court and thus the proceeding was criminal in character. (Morelli v. Superior Court, 1 Cal.3d 328, 333, 82 Cal.Rptr. 375, 461 P.2d 655.) The transcript of the oral proceedings on the contempt hearing discloses that Judge Gowans intended to and did treat the contempt strictly as a criminal contempt and punished defendant for failing to obey a lawful order of the court; there is no suggestion in the record that defendant was sentenced to compel compliance with any court order, only to punish him for the completed act of refusal to obey. The clerk's transcript shows an Order Compelling Testimony entered March 4, 1974, signed by Honorable John T. Rickard, Judge of the Superior Court of Santa Barbara County whereby defendant was granted immunity and ordered to appear and answer questions regarding acts and conduct of Joszef Unszusz between December 1 and December 26, 1973; an order of March 4, 1974, signed by Honorable Arnold D. Gowans, Judge of the Municipal Court of the Santa Barbara-Goleta Judicial District finding defendant in contempt of court 'because he refuses to answer questions put to him as ordered by the Superior Court under the Order Compelling Testimony GRANTED and filed this date by Superior Court'; and contempt order of March 4, 1974, signed by Judge Gowans reciting 'Mario Lombardo did then and there refuse to answer questions put to him after being ordered to do so by me and Judge John T. Rickard of the Santa Barbara Superior Court for which conduct I did then and there, and do now, adjudge the said Mario Lombardo guilty of contempt of Court, and I hereby order him to spend 5 days in the County Jail and pay a fine of $500.00, payable within 30 days.' There is nothing coercive about the contempt proceedings or the contempt order as in a civil contempt. As contrasted with a criminal contempt a civil contempt 'has traditionally been viewed as non-punitive, for its purpose is only to compel compliance with a lawful order of the court; petitioner, key to his jail cell in pocket (citation) can secure his own release at any time by following the court order. . . . (Citations.) . . . he can only be confined so long as the underlying litigation remains alive.' (In re Lifschutz, 2 Cal.3d 415, 439, fn. 27, 85 Cal.Rptr. 829, 845, 467 P.2d 557, 73; In re Farr, 36 Cal.App.3d 577, 584, 111 Cal.Rptr. 649.) We hold that this particular contempt order was punitive in nature.

We also conclude that the contempt order invokes the jeopardy provision of the Fifth Amendment held applicable to the states through the Fourteenth Amendment of the United States Constitution (Benton v. Maryland (1969) 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707; Curry v. Superior Court, 2 Cal.3d 707, 716, 87 Cal.Rptr. 361, 470 P.2d 345), and the disposition of this case is controlled by the decision in Colombo v. New York (1972) 405 U.S. 9, 92 S.Ct. 756, 30 L.Ed.2d 762). We adopt the following portion of the Opinion of the Appellate Department of the Superior Court...