IN RE: the Matter of Susan HOLMES

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Court of Appeal, Second District, Division 3, California.

IN RE: the Matter of Susan HOLMES, Petitioner Herein and Citee Below. Susan HOLMES, Petitioner, v. SUPERIOR COURT OF the State of California For the COUNTY OF SANTA BARBARA, Respondent, The COUNTY OF SANTA BARBARA, Real Party In Interest.

Civ. 65082.

Decided: September 21, 1982

Edwin S. Saul, Encino, for petitioner. Kenneth L. Nelson, County Counsel, and John M. Cohan, Deputy County Counsel, San Rafael, for respondent.


After a hearing by the court, attorney Susan Holmes (petitioner) was found in contempt of court for assisting her husband Gerald in attempting to avoid service of a subpoena.   She was sentenced to eight hours in custody and a $500 fine.   She seeks review of the contempt proceedings below by way of her petition for writ of habeas corpus or, in the alternative, for a writ of certiorari.

Petitioner attacks the proceedings below on several grounds.   The principal ground of attack questions whether a person who knowingly acts to assist another person in evading service of process is acting unlawfully, and thereby in a manner which is within the acts or omissions constituting contempt set forth in Code of Civil Procedure section 1209, subdivision (8).1  We conclude that such actions are unlawful and that petitioner's other assertions of error below are without merit.   Accordingly, we affirm the trial court's order of contempt and the sentence imposed thereon.

Facts 2

Jeffrey Ingram, an associate in the law firm of McGahan and Engel in Ventura, contacted Gerald in April or the summer of 1981 regarding Gerald's testifying as an expert in the trial of Mizuki v. Black and Decker, Inc. (“Mizuki trial”).   Subsequent to the deposition of Gerald by opposing counsel, a trial date was assigned for October 1981.   On or approximately September 15 or 18, Ingram made numerous telephone calls to Gerald's home and petitioner's law office while leaving messages, but receiving no reply.   He subsequently learned that Gerald was not in the state but that he worked at Magic Mountain.   He attempted to call Gerald at Magic Mountain but received no reply from Gerald or petitioner.

Ingram's employer, James McGahan, advised Ingram that he had made contact with Gerald and that Ingram was to inform Gerald of the travel and lodging arrangements for his testimony.   On Tuesday, October 6, Ingram called Gerald.   Gerald indicated that he would not be available to testify that week and denied making any arrangements with McGahan.   Gerald said that he had conflicting appointments.   After Ingram explained the urgency of Gerald's testimony, Gerald said, “[t]hat's tough” or something similar.

Ingram then mentioned the possibility of a subpoena and the fact that Gerald's employer might like that better.   When he asked if Gerald would mind the subpoena, Gerald replied “[l]ike hell I would.”   It was obvious to Ingram that Gerald did not wish to testify.

Ingram then arranged for an attorney service to serve a subpoena for Gerald's appearance in court October 8 at 10 a.m.   Gerald never appeared on that date pursuant to the subpoena.

Acting on the instructions of Ingram, process server Walter Speth went to the Holmes' residence in Camarillo on October 6, at about 5:15 p.m. to serve Gerald.   He saw a man in the driveway, identified in court as Gerald, and said “[h]i Jerry.”   Gerald replied, “I'm not Jerry.”   During this conversation, petitioner and a child were in the car in the driveway.   Speth indicated that a person with normal hearing could have heard the conversation from within the car since the car door was open.

At Gerald's suggestion, Speth tried the doorbell to see if anyone was home.   There was no response, so Speth left the driveway.   The car drove off, and returned a half hour later with only petitioner and the child inside.

Later, Speth rang the bell several times.   Petitioner came to the door to ask what he wanted.   He said that he had a check for Gerald;  petitioner said that he was not feeling well.   She wanted to know what the check was for and information about the papers, but he said that he was unable to discuss it with her.   At Speth's request, she went back in the house to see if Gerald would come out.   When she returned, she said Gerald was asleep, and she did not wish to disturb him because he was not feeling well.   She asked if he could give her the papers and check.   Speth thinks that he finally told her that it was a subpoena.3  She asked if he would give it to her since he had made such a diligent effort.   She told him that he would have to come back in the morning and advised Speth to leave since the neighbors were getting nervous.

At about 10 p.m., the sheriffs arrived.   Speth went home.

Fevolde, the owner of the attorney service for whom Speth worked, and Speth were at Holmes' residence at 4 a.m. on October 7.   Petitioner came out a little after daybreak and wiped the windows of a Chevy Blazer, which was parked in the driveway.   She was dressed very casually, returned to the house, and came back out to the car about 10 to 15 minutes later.   She backed out of the driveway, drove around the corner of the house and stopped.   Fevolde saw Gerald run behind the house, hop a fence, and go through trees or bushes, and get into the car petitioner was driving.

Speth and Fevolde blocked the Chevy Blazer with their vehicle.   Fevolde got out of the car, ran over, placed the subpoena with a witness fee check on the windshield, and said in a very loud voice, “Gerald Holmes, you have been served.”

Petitioner then put the car in reverse and drove around Speth's vehicle.   The papers blew off the car.   Later, petitioner got out of the vehicle and said, walking towards her residence “[y]ou served the wrong person ․”  Gerald then gunned the car and went through a red light.

Patty Jo McGahan, McGahan's daughter-in-law and a secretary at his law firm, received a telephone call on October 7, at about 11 a.m., from a person identifying herself as Susan Holmes.   The caller told Patty that she had been harassed by two men asking for Gerald and that she had called the police.   She said that the man had put a paper on her windshield that morning and that the firm might want to cancel the check since it had blown off her window.   She further said that the man in the vehicle was not her husband and that service had not been effected.   She told Patty that she was an attorney and would call the clerk's office in Santa Maria, report what had happened and indicate that Gerald had not been served.

The Contempt Proceedings Below

On October 7, 1981,4 the Mizuki trial was in progress in the Santa Barbara Superior Court, Santa Maria branch.   McGahan, attorney for plaintiff Mizuki, told the trial court that he was having a problem with his expert witness, Gerald.   McGahan requested a continuance or a mistrial, representing to the court that on October 5, 1981, Gerald had unequivocally said that he could and would be available to testify on Thursday, October 8.   McGahan then represented to the court that he asked his associate to prepare a subpoena for Gerald and related the events of October 6 and 7, outlined above, particularly the interference of petitioner in the attempted service of a subpoena on Gerald.   McGahan represented to the court that Gerald had been served.   The court denied McGahan's request for a continuance or a mistrial and decided to continue with jury selection.

On October 8, the court phoned and ordered petitioner to be present at 10 a.m.   Neither Gerald nor petitioner were in court at 10 a.m.   McGahan, Ingram, the two process servers, and Patty all testified on this date confirming in more detail the representations that McGahan had made to the court regarding the incidents with Gerald and petitioner.   The court issued a bench warrant for Gerald and stated that the Ventura Sheriff had been unable to serve the order on petitioner that she appear by 10 a.m.

The court set a hearing for October 30 on an order to show cause why petitioner should not be held in contempt of court for “interference with the court's orderly business and aiding her husband to evade service of process which has substantially caused delay in [the Mizuki] trial.”   The court noted that it appeared petitioner called and said she would be in court at 1:30 p.m.   At 1:40 p.m., petitioner called and said that she would be in court at about 2 p.m.   Finally, the court released the jury until November 17, 1981.

Petitioner appeared in court later that afternoon and stated that she was making a special appearance for her husband and that she was unaware anyone was looking for her.   She described her version of the alleged service of subpoena.   The court did not put her under oath but ordered her to come back October 30, “to show cause why she should not be held in contempt” and explained what had happened so far including the bench warrant for Gerald.   The court then stated “[i]f that is your husband, then I intend to hold hearings as to whether or not you should be held in contempt for your interference in helping a witness avoid process, you being an officer of the court, so that's the status of where we are at the present time․”

Later, the court asked the bailiff to serve an order on petitioner, “to be present on the 30th of October at 1:30 in the afternoon to show cause why you should not be held in contempt, and also a copy of an order to your husband to be here.”   The court also ordered the reporter to transcribe the proceedings, stating that testimony was taken in lieu of an affidavit and that it would send a copy of its transcript to the petitioner.   Based on petitioner's assertion that the person served was not her husband, the court said that it would allow a lineup but that petitioner must produce it.

Petitioner's attorney filed an answer to allegations re contempt on October 28, 1981.   The answer concedes that petitioner was an attorney and that Gerald was at all times acting under petitioner's direction as an attorney.

The hearing on the order to show cause re contempt as to Gerald and petitioner commenced on November 6, 1981.   Edward Pinhey, counsel for both petitioner and Gerald, objected to McGahan's participation in the proceedings.   Pinhey argued that he and his clients did not know which acts were contemptuous, and that the documents served were inadequate.   Pinhey further made a motion in limine to exclude petitioner's statements to the court on October 8, 1981, because she had not been advised of the contempt prior to her statements.   The county counsel stated that he could make an offer of proof that she was warned, before she stepped into the courtroom on October 8, that the court was considering contempt.   After the court decided that it would exclude petitioner's statements absent a showing that she was informed that the court was considering a contempt citation, the county counsel made an offer of proof.   The offer of proof was that Pinhey was in court on October 8 and advised petitioner prior to entering the courtroom that she should have her toothbrush because these guys are after you, and that Pinhey and petitioner then withdrew for a more private conversation.   A similar offer of proof was made by McGahan.   Both the county counsel and McGahan were reluctant to call Pinhey as a witness and agreed that Pinhey could continue as counsel in the contempt proceedings.   However, the court stated that it would not permit Pinhey to do so.   In view of the offer of proof, Pinhey withdrew from the case, thinking that such withdrawal was mandatory.   Pinhey asked the court to sever the cases of Gerald and petitioner and said that he would continue as Gerald's attorney.   The court granted the motion to sever but would not relieve Pinhey at that time.

The hearing as to Gerald's alleged contempt then proceeded.   Subsequently, the court continued the hearing and directed Pinhey to represent petitioner for a setting at petitioner's contempt hearing.   Pinhey was still attorney of record for petitioner when he appeared in court on December 15, 1981.   A new attorney, Patison, appeared as counsel for petitioner but said that he would not be able to proceed at the conclusion of Gerald's hearing and asked for at least a two-week continuance from the conclusion of Gerald's case.   Pinhey was relieved by the court from representation of petitioner based on Patison's representation that he was now appearing for petitioner.   The court then proceeded to take testimony regarding Gerald's contempt citation, and the hearing was later continued for further testimony to December 29.

The proceedings in petitioner's contempt hearing were continued without objection by petitioner's counsel Patison and placed on the short cause calendar for January 4, 1982, at 10 a.m.

On January 6, 1982, the new counsel for petitioner, Shean & Normanly, filed a notice of motion to dismiss the contempt citation for lack of speedy trial.   The moving papers claimed that on January 4, 1982, petitioner appeared with counsel and objected to the proceedings on grounds of lack of speedy trial and asked for a dismissal of the contempt petition.   The court ruled that petitioner had waived her right to a speedy trial because all continuances were at the request of her counsel.

The hearing on petitioner's contempt citation was conducted on February 11, 1982.   This hearing was conducted by a third judge, not the judge who originally heard the Mizuki trial, and a different judge than the one who conducted the contempt proceedings as to Gerald.   The court denied a motion to discharge the matter and testimony was taken.   Petitioner did not present evidence.   After argument, the court found beyond a reasonable doubt that petitioner had violated section 1209, subdivision (8), of the Code of Civil Procedure and that she was in contempt and had “interfered unlawfully, ․ with the process of the proceedings of the court.”   The court continued the matter for sentencing.

Edwin S. Saul, yet another attorney for petitioner, filed a first amended motion to discharge the contempt.   The principal issue he raised was whether an unsuccessful attempt to avoid service of a subpoena is “unlawful” under Code of Civil Procedure section 1209, subdivision (8).   Saul also argued that attorney John Normanly was not petitioner's attorney of choice and did not handle the case in the way she would have wished.

Subsequently, on March 22, 1982, the court denied the motion to discharge the contempt and imposed the sentence previously indicated.

Petitioner's Contentions

Petitioner's contentions on appeal are numerous and are as follows:

1. The person for whom a subpoena is issued is not acting unlawfully if he or she seeks to evade the service of that subpoena, and a person who may assist that person or act in concert with them is similarly not acting in a manner which could be termed “unlawful.”

2. The transcript of the proceedings of October 7 and 8, 1981, did not furnish an adequate basis upon which a finding of contempt can be sustained, even if that transcript had been properly served upon the citee.

3. The conduct of the prosecution in representing to the court that petitioner's attorney would be a witness for the prosecution, which caused Mr. Pinhey to have to withdraw as petitioner's attorney, was conduct that violated petitioner's right to an attorney of her choice as guaranteed to her by the United States and California Constitutions.

4. Petitioner was denied due process by virtue of the trial court's permitting a disinterested party to participate in the proceedings in an unprecedented and unlawful manner.

5. Petitioner was denied her constitutional right to a speedy trial by the actions of the trial court.

6. There was a minimal delay in the proceedings so that conduct was not contemptuous.

7. Petitioner was denied due process based on the cumulative irregularities that permeated these proceedings to the point where she did not receive a fair trial.


IPetitioner's Acts in Assisting Her Husband To Evade Service of a Subpoena Is Subject to Contempt Proceedings Pursuant to Code of Civil Procedure Section 1209, Subdivision (8)

Petitioner's principal contention is that a person for whom a subpoena is issued is not acting unlawfully if he or she seeks to evade the service of that subpoena, and a person who may assist that person or act in concert with them is similarly not acting in a contemptuous manner under Code of Civil Procedure section 1209, subdivision (8).

We initially note that contempt judgments are final, conclusive, and not appealable.  (Code Civ. Proc., §§ 1222, 904.1.)   Therefore, courts have found that writ proceedings are appropriate vehicles for review of contempt orders.  (In re Coleman (1974) 12 Cal.3d 568, 572, fn. 2, 116 Cal.Rptr. 381, 526 P.2d 533;  Lister v. Superior Court (1979) 98 Cal.App.3d 64, 69, 159 Cal.Rptr. 280;  Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 115, fn. 3, 116 Cal.Rptr. 713.)

 “In reviewing an adjudication of contempt, ‘the sole question before us is one of jurisdiction of the trial court to render the judgment under review, and in such a case the review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court.’  [Citations.]  [In such cases, the Supreme Court has stated] ‘the responsibility of the reviewing court is merely to ascertain whether there was sufficient evidence before the trial court to sustain the judgment and order.   The power to weigh the evidence rests with the trial court.’   [Citations.]”  (In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201.)

 Substantial evidence supports the trial court's findings that petitioner, a member of the California Bar, knowingly and intentionally assisted her husband 5 in attempting to evade service of a subpoena that would have compelled him to testify as an expert witness in a civil case.   Petitioner does not contend that her actions did not cause interference with the process or proceedings of a court (see Lister v. Superior Court, supra, 98 Cal.App.3d 64, 159 Cal.Rptr. 280), although she does later contend any interference caused minimal and not substantial delay in the Mizuki trial.6

Petitioner does, however, claim that her conduct is not “unlawful” within the meaning of Code of Civil Procedure section 1209, subdivision (8).   Black's Law Dictionary (5th ed. 1979), page 1377, defines unlawful as “[t]hat which is contrary to, prohibited, or unauthorized by law.   That which is not lawful.   The acting contrary to, or in defiance of the law;  disobeying or disregarding the law.   While necessarily not implying the element of criminality, it is broad enough to include it.”

The Legislature has made it clear that disobedience to a subpoena may be punished as a contempt.  (Pen. Code, §§ 1331, 1331.5;  Code Civ. Proc., § 1991 et seq.)  Code of Civil Procedure section 1988 specifically deals with a witness concealing himself to prevent service of a subpoena upon him;  that section does not authorize the remedy of contempt but provides:  “If a witness is concealed in a building or vessel, so as to prevent the service of a subpoena upon him, any Court or Judge, or any officer issuing the subpoena, may, upon proof by affidavit of the concealment, and of the materiality of the witness, make an order that the Sheriff of the county serve the subpoena;  and the Sheriff must serve it accordingly, and for that purpose may break into the building or vessel where the witness is concealed.”

Nevertheless, our Supreme Court in People v. Carpenter (1902) 136 Cal. 391, 393, 68 P. 1027, found that a person who advised a witness, prior to trial, to conceal himself for the purpose of avoiding the service of a subpoena was guilty of Penal Code section 136, which at that time provided: “Every person who willfully prevents or dissuades any person who is or may become a witness, from attending upon any trial, proceeding, or inquiry, authorized by law, is guilty of a misdemeanor.”  (Deerings Pen. Code (1941), § 136, p. 35.)   Section 136 has since been repealed, but Penal Code section 136.1(a), provides in pertinent part:  “[E]very person who knowingly and maliciously prevents or dissuades or attempts to so prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law is guilty of a misdemeanor.”   The slight differences in language between the 1902 statute and the more recent one enacted in 1980 would not seemingly change the interpretation of the statute by our Supreme Court in Carpenter, supra.   Advising a person to conceal himself for the purpose of avoiding service of a subpoena is in violation of Penal Code section 136.1 and therefore is “unlawful.” 7

 Petitioner does not quarrel with the notion that present Penal Code section 136.1 makes it a crime to try to dissuade a witness from testifying.   However, she claims that there is nothing that would give rise to the inference that she sought to dissuade her husband from testifying at the Mizuki trial.   We disagree.   The trial court could find, and indeed did find, that petitioner and her husband were not on an early morning drive to see the sights of their neighborhood when she drove out of her driveway and he ran through the back yard, jumped a fence and scurried through some bushes to reach her vehicle.   We believe the trial court's finding that she was flagrantly assisting an attempt to avoid service of a subpoena is entirely merited by the facts included in the record.   A further inference is that the reason petitioner and Gerald were attempting to avoid service of the subpoena on Gerald was so that Gerald would not have to testify in the Mizuki trial;  this inference is rational, logical, and supported by substantial evidence.8

Because of our resolution of this issue, we need not decide whether the conduct is “unlawful” under other statutes, rules, or regulations.  (For example, the parties have argued the applicability of Penal Code sections 166, subdivision (5) 9 and 724.10 )

Although not an issue raised specifically by petitioner, we recognize that in most cases of “indirect contempt” (In re McKinney (1968) 70 Cal.2d 8, 10, fn. 2, 73 Cal.Rptr. 580, 447 P.2d 972), there is an actual court order that has been disobeyed, as well as knowledge of the order, ability to comply, and wilful disobedience.  (People v. Superior Court (Stein) (1965) 239 Cal.App.2d 99, 104, 48 Cal.Rptr. 445.)   However, there have been cases holding a person in contempt where the contemnor had actual notice of an order or acted in anticipation of the issuance of an order.  (Ex Parte Kellogg (1883) 64 Cal. 343, 30 P. 1030;  In re Sigesmund (1961) 193 Cal.App.2d 219, 223–224, 14 Cal.Rptr. 221;  Rosin v. Superior Court (1960) 181 Cal.App.2d 486, 5 Cal.Rptr. 421.)   The evidence shows petitioner had actual knowledge that process servers were trying to serve a subpoena on her husband.   That the order was not directed at her personally would not negate her culpability under Penal Code section 136.1.   Her conduct was therefore an “unlawful interference with the process or proceedings of a court ․”

 “[I]t has been said that the power of a judge in contempt proceedings is not designed to protect his own dignity and person, but rather to protect the rights of litigants and the public by insuring that the administration of justice shall not be thwarted or obstructed.”  (In re Bongfeldt (1971) 22 Cal.App.3d 465, 475, 99 Cal.Rptr. 428.)  “The enforcement of an order of contempt is for the maintenance of the dignity and authority of the court, and to preserve the peace and dignity of the People of the State of California.   [Citation.]”  (Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 358–359, 60 Cal.Rptr. 575.)   As the Supreme Court recently observed in Vannier v. Superior Court (August 26, 1982, L.A. 31418) 32 Cal.3d 163, –––, 185 Cal.Rptr. 427, 650 P.2d 302, “[a] judicial system with power to compel attendance of witnesses is essential to effective protection of the inalienable rights guaranteed by [article I, section 1, of the California Constitution].”  Petitioner's conduct was an attempt to thwart or obstruct the administration of justice.   The court properly found that the conduct amounted to contempt under section 1209, subdivision (8).


The Reporter's Transcript of October 7 and 8 Afforded Adequate Notice to Petitioner

Petitioner contends that the transcript does not furnish an adequate basis upon which a finding of contempt can be sustained.   Her argument centers on lack of notice, that is, that it would be impossible for an attorney seeking to represent petitioner to ascertain with particularity the exact acts which were alleged to be contemptuous.11

 The “facts constituting the contempt” (Code Civ. Proc., § 1211) are clearly set forth in the pages of the reporter's transcript, a copy of which was sent to petitioner.   Any person, especially an attorney, could see that the acts with which the court was concerned involved petitioner's attempt to assist her husband in evading a subpoena.12  That is precisely the notice required when a contempt is not committed in the immediate view and presence of the court.   While it may have been informative to cite petitioner to the specific code section which was allegedly violated, we find no language in section 1211 of the Code of Civil Procedure which requires it.


Petitioner Was Not Deprived of Her Right to an Attorney of Her Choice

Petitioner contends that Pinhey's withdrawal from the case deprived her of her Sixth Amendment right to the attorney of her choice and would not have occurred had there not been an offer of proof regarding Pinhey's proposed testimony regarding petitioner's knowledge of the court's intention to hold a contempt hearing.   The record belies the claim.

 Pinhey may well have been petitioner's first choice of attorneys.   However, when the court severed the actions of petitioner and her husband and then continued the matter, petitioner did not object to the replacement of Pinhey on December 15, 1981.   We do not find a reference to this issue until after the finding of contempt when a subsequent attorney, Edwin S. Saul, filed a first amended motion to discharge the contempt.   Where petitioner, an attorney herself, continues to be represented by retained counsel without objection to the change in counsel, we find no violation of her rights under the Sixth Amendment.


McGahan's Participation Was Not Prejudicial to Petitioner

 Petitioner contends that the presence of McGahan and his participation in some of the contempt proceedings denied her due process of law.   Assuming arguendo that such contention is reviewable in these proceedings (Moffat v. Moffat (1980) 27 Cal.3d 645, 656, 165 Cal.Rptr. 877, 612 P.2d 967), and that it was error for the trial court to allow such participation by the attorney for plaintiff in the underlying case, petitioner has shown no prejudice by his participation.   In the absence thereof, and we find beyond a reasonable doubt that there was none, we will not disturb the trial court's decision allowing such participation.


Assuming Arguendo that Petitioner Was Entitled to Speedy Trial Rights, She Has Not Shown Either a Denial of the Right to Speedy Trial or Prejudice Because of any Denial

 Petitioner seems to contend that any delay of her trial after November 6, 1981, deprived her of a right to a speedy trial.   Even assuming arguendo that the speedy trial mandates of Penal Code section 1382 apply to contempt proceedings, any such right will be deemed waived if not asserted in timely fashion.  (Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 347, 178 Cal.Rptr. 801, 636 P.2d 1139.)   One who seeks to assert that right must both object to the date set and thereafter file a timely motion to dismiss.  (People v. Wilson (1963) 60 Cal.2d 139, 146, 32 Cal.Rptr. 44, 383 P.2d 452.)   In addition, after trial, petitioner must show that the error was a prejudicial one in order to secure a reversal thereon.   (People v. Wilson, supra, 60 Cal.2d at p. 152, 32 Cal.Rptr. 44, 383 P.2d 452.)   If there was any objection at all on the grounds of speedy trial, it was not made until January 4, 1982.   Furthermore, petitioner's previous counsel had not objected to that date when it was set on December 15, 1980.   And, even if the subsequent motion to dismiss on January 6 was appropriate, petitioner has failed to show any prejudice from the purported lack of a speedy trial.


Petitioner Received a Fair Trial

Petitioner's final contention is that she was denied due process based on the cumulative number of irregularities which allegedly permeated the proceedings to the point where she did not receive a fair trial.

The first alleged irregularity is that petitioner and her husband had to exercise their right under Code of Civil Procedure section 170.6 in order to have a different judge than the one who heard the proceedings of October 7 and 8 decide the contempt issue.   Petitioner did in fact get a different judge, and we see no merit in this contention.

 A second alleged irregularity, seemingly thrown in as an afterthought with virtually no discussion, is that Code of Civil Procedure section 1209, subdivision (8), is unconstitutional on its face and as herein applied, because the section fails to clearly and definitively provide notice of the acts which are proscribed.   Petitioner has failed to show where this issue was raised below.   Furthermore, as stated in Cantillon v. Superior Court (1957) 150 Cal.App.2d 184, 188, 309 P.2d 890:  “Section 1209 of the Code of Civil Procedure, except subdivision 8 thereof, defines with some particularity various types of acts or omissions which constitute contempts of the authority of the court.   However, subdivision 8, by its terms, embraces any other acts not otherwise described which result in the unlawful interference with the process or proceedings of a court.   Manifestly, a specific enumeration of every act or omission which may unlawfully interfere with the proceedings of the court is impractical, if not impossible, and the clear purpose of the foregoing subdivision to include within the definition of contempt, acts or omissions not previously specified but which in fact result in an unlawful interference with the proceedings of the court.”   We believe that the language, while encompassing a variety of acts, is sufficiently specific to withstand scrutiny.


The judgment of contempt is sustained.   The petition for writ of habeas corpus,13 is denied and the order to show cause is discharged.14


1.   Subdivision (8) of Code of Civil Procedure section 1209 provides as follows:  “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: ․ 8. Any other unlawful interference with the process or proceedings of a court; ․”  (Emphasis added.)

2.   The facts relate to the testimony of witnesses at petitioner's contempt hearing on February 11, 1982.

3.   In his previous testimony, Speth did not state that he told her it was a subpoena.

4.   Petitioner received a copy of the reporter's transcript of the Mizuki trial proceeding of October 7 and 8, 1981, as part of the notice of her contempt hearing.

5.   In the answer to allegations re contempt, the parties admitted petitioner is an attorney and Gerald was at all times acting under “the attorney's” direction.

6.   The conduct of petitioner and her husband did cause substantial disruption of the Mizuki trial.   Much time was spent by the trial court and counsel regarding the prospective nonappearance by the expert witness, thereby delaying trial proceedings.   In addition, petitioner appeared late on the date she was purportedly coming to quash the service of subpoena on her husband.   Those hours can also be considered as delays in the proceedings.

7.   Broderick v. Genesee Circuit Judge (1900) 125 Mich. 274, 84 N.W. 129, relied upon by appellant for the proposition that one who conceals himself from service of a subpoena is not guilty of contempt under a Michigan statute similar to Code of Civil Procedure section 1209, subdivision (8), also states that the person detaining a witness or inducing a witness “to absent himself from the jurisdiction of the court” would be guilty of a crime similar to Penal Code section 136.1 (Id., 84 N.W. at p. 130.)  (See also Falloon v. Superior Court (1926) 79 Cal.App. 149, 156, 248 P. 1057, quoting from In re Rice (C.C.M.D. Ala. 1910) 181 F. 217.)

8.   The Supreme Court in Carpenter, supra, 136 Cal. 391, 68 P. 1027, does not make clear whether the predecessor of Penal Code section 136.1 distinguishes between those who help already recalcitrant witnesses and those who dissuade witnesses who are otherwise willing to receive a subpoena and testify.   Neither has the Supreme Court subsequently re-examined whether the Legislature intended the act found a misdemeanor in Carpenter to be within the proscription of Penal Code section 136.1, subdivision (a).   While the continued vitality of that part of the decision in Carpenter may be questioned, we are bound by it.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

9.   Penal Code section 166, subdivision 5, provides:  “Every person guilty of any contempt of Court, of either of the following kinds, is guilty of a misdemeanor:  ․ 5. Resistance willfully offered by any person to the lawful order or process of any Court;  ․”

10.   Penal Code section 724 provides:  “The officer must certify to the Court from which the process issued the names of the persons resisting, and their aiders and abettors, to the end that they may be proceeded against for their contempt of Court.”

11.   Petitioner in the proceeding does not now address the issue of whether the transcript constituted an adequate affidavit or statement of fact as required under Code of Civil Procedure sections 1211 and 1211.5.  (See In re Morelli (1970) 11 Cal.App.3d 819, 91 Cal.Rptr. 72.)

12.   In the transcript received by petitioner, the court stated “I order now that an order to show cause issue from this court to Susan Holmes to show cause on October 30th, 1981, why she should not be held in contempt of court for interference with the court's orderly business and aiding her husband to evade service of process which has substantially caused delay in this trial.”  (Emphasis added.)

13.   In our order of May 11, 1982, we treated the petition for writ of certiorari/habeas corpus as a petition for writ of habeas corpus.

14.   Hawk v. Superior Court, supra, 42 Cal.App.3d at page 134, 116 Cal.Rptr. 713.

LUI, Associate Justice.

KLEIN, P.J., and DANIELSON, J., concur.