Nierenberg v. Superior Court

Opinion

Petitioner, a deputy public defender, represented Jimmy Ray Harris, defendant in the trial of a criminal 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.”

' 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 contemner. 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.

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 , 68 A.L.R.3d 248 ]; 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 ]; People v. Fusaro, 18 Cal.App.3d 877 , 888 [ 96 Cal.Rptr. 368 ].) In those cases in which the

Thus there appears to be need of some kind of hearing in a direct contempt when adjudication is made after the final determination of the underlying proceeding. While it is settled that the court retains jurisdiction to act in a direct contempt if the adjudication is made within a reasonable time after trial (In re Foote, 76 Cal. 543 , 544 [ 18 P. 678 ]), the question confronting us is whether in the context of the commissioner’s power to act as a judge pro tempore in the original cause the contempt proceeding is included in the stipulation empowering the commissioner to act as a temporary judge. We say that it is not, because the contempt cause is distinct from the underlying principal case.

First, “the parties litigant” in the Harris prosecution were the People and defendant Harris, and at the outset of the trial the district attorney and the petitioner representing them entered into the stipulation that the commissioner could act therein as a temporary judge. Second, “cause” as used in section 21, article VI is defined as “the proceeding before the court.” (Sarracino v. Superior Court, 13 Cal.3d 1 , 10 [ 118 Cal.Rptr. 21 , 529 P.2d 53 ].) Thus the proceeding before the court in which the stipulation was entered into was the criminal prosecution of defendant Harris. Third, the contempt adjudication was a cause distinct from the underlying proceeding. This is reflected in the very nature of the direct contempt. “The parties litigant” are the petitioner and the court. No appeal lies from the contempt judgment. Had Harris been convicted and appealed from the judgment the cause reviewable by this court would not include the contempt proceeding against petitioner. (See Sarracino v. Superior Court, 13 Cal.3d 1 , 9-10 [ 118 Cal.Rptr. 21 , 529 P.2d 53 ].) It is only by extraordinary writ—certiorari or habeas corpus (In re Buckley, 10 Cal.3d 237 , 259 [ 110 Cal.Rptr. 121 , 514 P.2d 1201 , 68 A.L.R.3d 248 ]) or prohibition (Ketscher v. Superior Court, 9 Cal.App.3d 601 , 604 [ 88 Cal.Rptr. 357 ]—that a contempt judgment may be reviewed.

Although the contempt proceeding here was ancillary to the underlying criminal prosecution it was a cause distinct from the principal case. (Sarracino v. Superior Court, 13 Cal.3d 1 , 9-10 [ 118 Cal.Rptr. 21 , 529 P.2d 53 ]; In re Plotkin, 54 Cal.App.3d 1014 , 1016-1017 [ 127 Cal.Rptr. 190 ].) In Sarracino the court held that the commissioner’s power-as a temporary judge to render temporary support orders against petitioner did, not include the power to hold him in contempt for noncompliance with those orders. Although Sarracino and Plotkin involve indirect contempt we think the direct contempt proceeding in the context of the circuriistances of this case is no less a cause distinct from the Harris proceeding particularly in light of the fact that it was deferred by the court until after the final determination of Harris requiring a proceeding which includes “notice or hearing or the opportunity to speak.” (Taylor v. Hayes, 418 U.S. 488 , 497-498 [ 41 L.Ed.2d 897 , 907, 94 S.Ct. 2697 ]; In re Karagozian, 44 Cal.App.3d 516 , 523 [ 118 Cal.Rptr. 793 ].)

The contempt, a cause distinct from the underlying principal case, was heard after the final determination of that case at which time the power of the commissioner to act as a temporary judge under the stipulation therein had terminated thus a new stipulation was required before the commissioner could act as a judge pro tempore in the contempt proceeding, the “cause” then before the court. “The appointment of a temporary judge to hear a particular ‘cause’ carries with it the power to act until the final determination of that proceeding. (Anderson v. Bledsoe (1934) 139 Cal.App. 650 [ 34 P.2d 760 ] (temporary judge who tried case was thereby empowered to rule on motion to vacate his order granting new trial).) Such appointment does not, however, authorize the temporary judge to act in distinct proceedings, albeit ancillary to the same principal action, without being appointed and qualified for that purpose.” (Sarracino v. Superior Court, 13 Cal.3d 1 , 10 [ 118 Cal.Rptr. 21 , 529 P.2d 53 ].)

We conclude that the commissioner did not have the authority to act on April 7, 1976, and that the order of contempt then made is null and void. The order adjudging petitioner in contempt and ordering him to pay total fines of $150 is annulled.

Wood, P. J., and Hanson, J., concurred.