In re Karpf

—By thisapplication for a writ of habeas corpus, petitioner Richard Karpf seeks a review and an annulment of a judgment of the Municipal Court of the Los Angeles Judicial District (hereinafter “municipal court”) adjudging him in contempt and sentencing him forthwith to five days in the county jail.

The contempt proceeding below stems from a felony preliminary examination, People v. Yates, Los Angeles Municipal Court No. A-254089, in which petitioner was the defense counsel and which had commenced on January 13, 1970, in division 43 of the municipal court before the Honorable Nancy B. Goodman. At 5 p.m., she indicated that the proceedings would be adjourned to 9 a.m. the following morning (January 14, 1970) and instructed the witnesses to return at that time without further order. Petitioner objected claiming that the adjournment violated section 861 of the Penal Code. His objection was overruled. Petitioner then informed the court that he had another preliminary examination scheduled for 1 p.m. the following day in division 32 of the municipal court and that he would be held in contempt if he did not appear there. Judge Goodman then advised petitioner that his failure to be in division 43 the following morning might result in his being held in contempt of division 43.

Petitioner had trouble with his car the following morning. He had his secretary call the clerk of division 43 about 8:45 a.m. to inform the court of his car trouble and of his expectation of reaching division 43 around 10 a.m. Upon getting his car into running condition, petitioner passed by the Los Angeles County courthouse, located on First Street extending from Hill Street to Grand Avenue with the municipal courts in that building (including division 32) being located in the portion of the courthouse fronting upon Grand Avenue. Division 43 in which the unfinished preliminary examination in People v. Yates was pending was then located in the Hall of Justice, located at the corner of Broadway and Temple Streets, about a 10-minute walk from the county courthouse.^[1] As he passed the county courthouse, petitioner decided to stop by division 32 instead of proceeding directly to division 43, in order to arrange a disposition of his preliminary hearing in People v. Carter, et al., Los Angeles Municipal Court No. A-254174, on the 1:30 p.m. calendar of division 32 for that day.

Petitioner states that he parked in a red zone adjacent to the county courthouse around 9:50 a.m. and reached division 32 around 10 a.m. He was unable to make a satisfactory arrangement for reasons which we

It is the settled law of California that for pragmatic considerations in the administration of justice (Inniss v. Municipal Court (1965) 62 Cal.2d 487 , 490 [ 42 Cal.Rptr. 594 , 399 P.2d 50 ]), the failure of an attorney to appear without excusable cause at the appointed date and hour set for the commencement or resumption of judicial proceedings in which he is a counsel constitutes a direct contempt of court (Chula v. Superior Court (1962) 57 Cal.2d 199 , 203 [ 18 Cal.Rptr. 507 , 368 P.2d 107 , 97 A.L.R.2d 421 ]; Lyons v. Superior Court (1955) 43 Cal.2d 755 , 759 [ 278 P.2d 681 ], cert, denied 350 U.S. 876 [ 100 L.Ed. 774 , 76 S.Ct. 121 ]; Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348 , 361 [ 60 Cal.Rptr. 575 ], cert, denied 393 U.S. 856 [ 21 L.Ed.2d 126 , 89 S.Ct. 125 ]) or a hybrid contempt^[2] that may be summarily treated as if it were a direct contempt in the court’s presence (Arthur v. Superior Court (1965) 62 Cal.2d 404 , 408 [ 42 Cal.Rptr. 441 , 398 P.2d 777 ]). “In such cases, due process requires notice and hearing lest the alleged contemner be convicted ex parte. [Citation.] Where counsel fails to appear, however, the offensive conduct, to wit, the absence, occurs in the presence of the court. Thus, when an absent attorney reappears in the courtroom, due process should be satisfied if the judge confronts him with the charge and offers him a reasonable opportunity to explain.” (Arthur v. Superior Court, supra, 62 Cal.2d 404 , 408-409.)

Where the absence or tardiness, with its ensuing interruption of the proceedings pending before the court, is occasioned by some cause not reasonably within the attorney’s control, the duty of explanation and the burden of producing exculpatory facts are upon the defaulting attorney. (Lyons v. Superior Court, supra, 43 Cal.2d 755 , 760; Vaughn v. Municipal Court, supra, 252 Cal.App.2d 348 , 361.) It is also established law that “[i]n the absence of arbitrariness on the part of the sentencing judge, and with a showing that a reasonable opportunity was afforded the attorney to explain the reasons for his absence, this court should not annul contempt proceedings against attorneys who fail to appear in court when properly ordered to do so.” (Arthur v. Superior Court, supra, 62 Cal.2d

The word “session” does not have a single fixed and definite meaning, but is variously used in statutes and constitutions. It is at times “employed to indicate an actual sitting continued by adjournments in ordinary course from day to day, or over Sundays and holidays, but not interrupted by adjournment to a distant day.” (United States v. Dietrich (C.C. 1904) 126 F. 659 , 660; see, also, 79 C.J.S., Session or Sessions, pp. 1145-1147.) The meaning is to be ascertained by reference to the context in which it is used and the purpose of the statute in which the word is employed. We hold that the foregoing meaning is the sense in which “session” is used in section 861 of the Penal Code. Petitioner’s contention would render the word “session” synonymous with “day” also used in the same paragraph. If the Legislature meant “one day” by employing “one session,” it could have used the word “day” instead of “session.” When the Legislature has used the two different words, not identical in meaning, in the same paragraph, it is presumed that the Legislature knew the distinction in the meanings between the two and used the two words “session” and “day” intending them to have a different meaning and effect. (Cf. McCarthy v. Board of Fire Comrs. (1918) 37 Cal.App. 495 , 497 [ 174 P. 402 ]; People v. Campbell (1930) 110 Cal.App.Supp. 783 , 786 [ 291 P. 161 ].) The requirement of an affidavit is for a postponement. “[T]he word ‘postpone’ carries with it the idea of deferring the doing of something or the taking effect of something until a future or later time.

In this connection, it should be further noted that a claim of good faith under a mistake-of law does not excuse disobedience of an order of court otherwise constituting a contempt. (City of Vernon v. Superior Court (1952) 38 Cal.2d 509 , 518 [ 241 P.2d 243 ].) In this case, moreover, petitioner did not at the hearing in re contempt seek to justify his failure to appear in division 43 upon the ground that he was testing the validity of the order adjourning proceedings from 5 p.m. to 9 a.m. the following morning.

Contrary to petitioner’s contention, the evidence supports the finding that when petitioner advised the court that he had to be in division 32 at 1 p.m. on January 14, 1970, he was directed to appear in division 43 at 9 a.m. on January 14, 1970, and that his failure to appear might result in his being held in contempt. Petitioner understood the latter phrase to mean, “Well, if you don’t appear here in my court you are going to be in contempt.”* **^[4] It is true that the court did not specifically state to petitioner “9 a.m.” in those words. However, it is clear that the hour of 9 a.m. was the hour intended. This is not a case where it is necessary to fall back upon an order implied in its entirety, which in itself would have been adequate to sustain the contempt. (Lyons v. Superior Court, supra, 43 Cal. 2d 755 , 756-757, 759.)^[5]

Furthermore, in the hearing re contempt in the municipal court, petitioner admitted that such an order had been made and that proof thereof by reading the reporter’s transcript back to him was unnecessary. Admissions by an alleged contemner in open court constitute evidence to support a finding. (Gendron v. Burnham (1951) 146 Me. 387 , 404 [ 82 A.2d 773 , 784].) In some states, it has even been held that “[c]ontempts committed out of the presence of the court, if admitted by the contemner in open court, may also be punished summarily as a direct contempt.” (See, e.g., People v. Pomeroy (1950) 405 Ill. 175 , 180 [ 90 N.E.2d 102 , 104].)

The evidence shows that the court formally took the bench in the pending preliminary hearing (People v. Yates, Los Angeles Municipal Court No. A-254089) at 11:27 a.m. on January 14, 1970, then and there noted that defendant was present,^[7] but that her attorney (the petitioner

Petitioner further testified: “So I then left the Courthouse, after these matters, and again experienced difficulty with my car. By the time I got over here [11:55 a.m. or 12 o’clock], it was the recess hour and there was no sense in coming up to this courtroom.” Petitioner then alluded to the parking difficulties around the Hall of Justice. “The parking lots are full. I knew I’d never be able to park my car in time and get up to this courtroom. [1|] I then learned from my secretary, who met me here, that

The court then stated for the record, the following, inter alia: “[A]t 10:05 the Court spoke with the . . . Judge presiding in Division 32, and was advised that you were at that time present in that courtroom and that, apparently, for the purpose of making a motion.^[9] [H] At approximately 10:17 the Court was advised by the Clerk of Division 32 that you had concluded your business and had left Division 32 at 10:16 a.m.”^[10] As earlier noted, at approximately 11:20 a.m. petitioner’s secretary received a telephone call in the courtroom of division 43. She was summoned into chambers and was asked if the call was from petitioner, to which she replied that it was. Upon further inquiry, she said that petitioner had stated that he would come to division 43 as soon as he could. Petitioner acknowledges this telephonic conversation with his secretary and admits that he did not speak to the judge, bailiff, or clerk^[11] at that time and that he did not inform his secretary as to his then whereabouts.

In reply to a question put to him by his counsel, Mr. Sperber, petitioner stated, “I was going to get here as quickly as I could get the problem solved with the automobile.” The court then interjected: “Well, we weren’t advised of any further automobile trouble. [fl] Isn’t it a fact, Mr. Karpf, that after leaving Division 32 sometime shortly after 10:00 a.m. this morning, that you did not attempt to proceed directly here but that you proceeded to the lock-up in the Los Angeles County Courthouse?” Petitioner then represented that his clients were in Judge Olson’s court when he le'ft. It struck him that he should have spoken to them before leaving division 32, so he returned to division 32 to find them, but discovered that they were not there. “I then proceeded to the seventh floor lock-up so

The court found that the explanation was not acceptable, “it appearing to the Court that business either in another division in which he had no matter calendared at that time was engaging himself, and, further finding that it appears, from Mr. Karpf’s own statements, that he put that matter, in addition to the matter of seeing his clients—in fact, it appears in all matters that occupied him during the morning of January 14th, 1970— before the business of this court.”

“This court must accept the judge’s factual determination.” (Vaughn v. Municipal Court, supra, 252 Cal.App.2d 348 , 358.) As earlier noted, the issues of credibility (Arthur v. Superior Court, supra, 62 Cal.2d 404 , 410) and of weight to be given the explanation (In re Ciraolo, supra, 70 Cal.2d 389 , 394) are for the trial court to determine. Our responsibility is limited to determining whether there was substantial evidence to support the findings to sustain the trial court’s jurisdiction in re contempt. The findings made by the trial court are supported by substantial evidence. ;

There was patent inconsistency in petitioner’s protestations, on one hand, that he considered it a courtesy to the judge in division 32 to appear personally before him to inform him of his predicament and of his duty to inform his clients in People v. Carter et al. as to his whereabouts (to the extent of detouring while he had his car parked in a red zone and was already approximately one and one-half hours late, for the resumption

Petitioner contends that due process was violated in that he was not given adequate warning and time within which to adequately prepare his defense. The record in this case shows that petitioner and his counsel, Mr. Sperber, were specifically advised that a hearing why petitioner should not be held in contempt^[14] was being conducted and that unless petitioner came up with a proper excuse, he would be held in contempt. Petitioner was given the opportunity to explain. He voluntarily took the witness stand in his own behalf. In hindsight, it might have been better if the court after citing the petitioner had set the hearing itself for another day. However, neither petitioner, who is apparently an experienced^[15] criminal lawyer, nor his counsel, Mr. Sperber, asked for a continuance.^[16] The record itself shows Mr. Sperber stated that when he was contacted he was in the office of the Civil Liberties Union. Counsel Sperber is well known to the courts in this area as a thoroughly competent lawyer, particularly in the areas pertaining to a person’s individual constitutional rights. It is too late at this time to complain that a more propitious time should have been set for the hearing in re contempt. Petitioner’s own testimony reveals that he knew that he might be wanted as an accused contemner as early as the

For the reasons which we have stated above, the writ of habeas corpus is denied; the order to show cause is discharged.

Kaus, P. J., and Selber, J.,^[17] concurred.

Petitioner’s application for a hearing by the Supreme Court was denied October 1, 1970.