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

Floyd J. SILLIMAN, Richard E. Draper, Geoffrey Charles Graydon, Peter Guglielmo, Randolf Siino, and Theresa Janene Howland, Plaintiffs and Respondents, v. The MUNICIPAL COURT OF the MONTEREY PENINSULA JUDICIAL DISTRICT, Defendant and Appellant.


Decided: May 26, 1983

Richard E. Draper, San Francisco, pro se. Ralph R. Kuchler, County Counsel, LeRoy W. Blankenship, Deputy County Counsel, Salinas, for defendant and appellant.

Upon execution of a search warrant issued by the defendant Municipal Court of the Monterey Peninsula Judicial District (Municipal Court), contraband narcotics were seized.   As a consequence the above-named plaintiffs Graydon, Guglielmo, Siino and Howland were charged in the Municipal Court with narcotics offenses.   Their attorneys were the above-named plaintiffs Silliman and Draper (hereafter, in an effort to achieve clarity, the plaintiffs will collectively be referred to as the Attorneys and their clients).

In the Municipal Court the Attorneys and their clients moved under Penal Code section 1538.5 to suppress the seized evidence.   They subpoenaed as a witness to the hearing, the municipal court judge who had issued the search warrant, for “the purpose of ascertaining whether he had properly performed his official duties in the execution of the search warrants.”   The judge thereupon retained to represent him in the matter, private counsel who moved the Municipal Court to quash the subpoena.   Following an extended (two-day) hearing, the Municipal Court (by a different judge) quashed the subpoena, found bad faith on the part of the Attorneys and their clients in causing the subpoena to be issued and served, and adjudged that the Attorneys and their clients pay the subpoenaed judge $1,820 as and for his attorney's fees, for services rendered on the motion to quash.

The Municipal Court's judgment was followed by the Attorneys' and their clients' petition to the superior court for a writ of prohibition, commanding the Municipal Court to desist “from any further proceedings in the matter” of the attorney's fees.

At the ensuing hearing the Municipal Court contended that the award of such fees was supported by Code of Civil Procedure sections 1987.1 and 1987.2, and by the equitable principles and inherent judicial power upon which those statutes were based.   On the other hand, the Attorneys and their clients appear to have insisted that “bad faith,” or not, the law does not allow criminally charged defendants, or their attorneys, to be financially penalized under such circumstances.

Code of Civil Procedure section 1987.2, as relevant, provides that:

“In making an order pursuant to motion made [to quash a subpoena], the court may in its discretion award the amount of the reasonable expenses incurred in ․ opposing the motion, including reasonable attorneys' fees, if the court finds the motion was ․ opposed in bad faith․”  (Our emphasis.)

At the superior court hearing the parties were without a transcribed record (as are we) of the Municipal Court's two-day hearing.   But the above-noted “bad faith” finding of fact was before the superior court.   Apparently to avoid the delay attending preparation of the record, the parties entered into an oral stipulation.

The stipulation lacks certainty.   We think it may fairly be interpreted as follows.   Without the Attorneys' and their clients' admission of its truth the parties agreed, for the purpose of the prohibition proceeding and any review thereof, that the “bad faith” finding of fact was evidentially supported, but only as to the Attorneys' and their clients' opposition to the motion to quash.   And the term “bad faith” was apparently used in the sense that the Attorneys and their clients had no hope, or expectation, that they would prevail on the Municipal Court's motion to quash.

At the hearing's conclusion the superior court, impliedly determining that the subpoena had been properly quashed, entered its judgment declaring:  “IT IS ORDERED that peremptory writ shall issue from this court remanding proceedings to respondent [Municipal Court] and commanding respondent to set aside its decision dated October 23, 1980, imposing attorneys fees on petitioner and prohibiting said Municipal Court of Monterey County from enforcing, collecting, executing or levying in any manner whatsoever for any sums said to be due pursuant to such order.”

The Municipal Court has appealed from the judgment.

Our conclusion on the appeal is that the judgment should be affirmed.   Our reasons follow.

A threshold issue is whether relief by way of the extraordinary writ of prohibition was legally available to the Attorneys and their clients.

 The writ of prohibition or mandate may be issued in “all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law” (Code Civ.Proc., §§ 1103, 1105;  and see:  5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, §§ 35 et seq., pp. 3809 et seq.;   Fabricant v. Superior Court, 104 Cal.App.3d 905, 907, 163 Cal.Rptr. 894.)

 We are unable to say, as a matter of law, that the superior court erred in concluding that proceedings for the instant writ of prohibition were available to the Attorneys and their clients.

 Another preliminary issue concerns the appealability by the Municipal Court of the superior court's judgment granting the writ.

 Only a “party aggrieved” may appeal from a judgment.  (Code Civ.Proc., § 902.)   Manifestly the Municipal Court was not aggrieved;  the aggrieved party was the judge as to whom the order for attorney's fees was set aside.   We apply the rule that notices of appeal should be liberally construed in the interest of justice.   Doing so, we treat the appeal as taken by the judge, as was obviously intended.  (See:  In re Edgar M., 14 Cal.3d 727, 740, 122 Cal.Rptr. 574, 537 P.2d 406;  Beltram v. Appellate Department, 66 Cal.App.3d 711, 714, 136 Cal.Rptr. 211;  6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 334, 336, pp. 4311, 4313, and see supp. thereto.)

We turn now to the merits of the appeal.

At issue is the question whether the superior court erred in its implicit determination that the subpoena had been properly quashed, as provided by Code of Civil Procedure section 1987.1.

The Sixth Amendment provides that:  “In all criminal prosecutions, the accused shall enjoy the right ․ to have compulsory process for obtaining witnesses in his favor․”   And see Article I, section 15, California Constitution, of similar effect.

In respect of this right, the nation's high court has said:  “The right of an accused to have compulsory process for obtaining witnesses in his favor stands on no lesser footing than the other Sixth Amendment rights that we have previously held applicable to the States․   The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies.   Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.   This right is a fundamental element of due process of law.”  (Washington v. Texas, 388 U.S. 14, 18–19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019;  and see Gordon v. Justice Court, 12 Cal.3d 323, 329, 115 Cal.Rptr. 632, 525 P.2d 72;  People v. Sharp, 7 Cal.3d 448, 459, 103 Cal.Rptr. 233, 499 P.2d 489.)

This fundamental right of those criminally accused has often been judicially implemented by the calling of judges as witnesses.  (See authority collected, 97 C.J.S., Witnesses, § 16, p. 364 and § 105, p. 513.)   In California, judges, as here, have been called as witnesses in Penal Code section 1538.5 suppression proceedings.  (See, e.g., Theodor v. Superior Court, 8 Cal.3d 77, 104 Cal.Rptr. 226, 501 P.2d 234;  Grimes v. Superior Court, 120 Cal.App.3d 582, 174 Cal.Rptr. 623;  Kaylor v. Superior Court, 108 Cal.App.3d 451, 166 Cal.Rptr. 598;  People v. Sanchez, 24 Cal.App.3d 664, 101 Cal.Rptr. 193.)   The right has also been recognized by statute, under the doctrine expressio unius est exclusio alterius, providing that a judge presiding over a judicial proceeding is not a competent witness in any subsequent civil proceeding as to any statement or conduct occurring at a prior proceeding.   Evid.Code, § 703.5.)

 But nevertheless:  “The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use.”  (Washington v. Texas, supra, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019.)   Elaborating on this comment it has been said:  “The right to compulsory process is not absolute, and a state may require that a defendant requesting such process at state expense establish some colorable need for the person to be summoned, lest the right be abused by those who would make frivolous requests.”  (The emphasis is ours;  Hoskins v. Wainwright (5th Cir.) 440 F.2d 69, 71;  and see:  Passman v. Blackburn (5th Cir.) 652 F.2d 559, 566;  Ashley v. Wainwright (5th Cir.) 639 F.2d 258, 260.)   Such a “colorable need” for a judge's attendance as a witness must manifestly be established in opposition to a motion to quash.

And as said in Fabricant v. Superior Court, supra, 104 Cal.App.3d 905, 915, 163 Cal.Rptr. 894, “Power to quash subpoenas in criminal cases, where the witness could offer no relevant testimony, was established by case law before the 1976 amendments to the Code of Civil Procedure [§§ 1987.1 and 1987.2].”

 Here as noted, the Attorneys and their clients sought the judge's attendance “for the purpose of ascertaining whether he had properly performed his official duties.”   And they appear to agree that they had established no “colorable need” for his testimony, at least they make no contrary contention, nor have they presented a contrary record.   Under established law they were manifestly not entitled to prevail on the Municipal Court's motion to quash.   The Municipal Court properly granted the motion to quash the subpoena, and the superior court did not err in impliedly so holding.

Adverting now to the final and critical issue of the appeal, we find it to be stated as whether:  “The Municipal Court properly awarded attorneys' fees against defendants and their counsel.”

As noted, the Attorneys and their clients had no particular purpose in subpoenaing the judge;  they had simply hoped to find some fatal irregularity in the search warrant's issuance.   The “bad faith,” if it be such, was that of the attorneys, for their criminally charged clients were patently simply abiding by their advice.

 The instant issue may more properly be narrowed to whether an attorney who knowingly opposes a motion to quash a subpoena, caused by him to be issued and served in a criminal proceeding without expectation of success because of settled law, may be constitutionally ordered to pay the attorney's fees of the subpoenaed witness, incurred in successfully making the motion to quash.

 We observe initially that an attorney representing a criminally accused defendant must act “in the role of an active advocate in behalf of his client” (In re Smith, 3 Cal.3d 192, 197, 90 Cal.Rptr. 1, 474 P.2d 969), and must support his clients case “to the best of his ability” (Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493).  “A defendant who pleads not guilty manifests his desire to contest the issue by every means lawfully at his disposal, and it is the duty of his counsel to assist him in this endeavor by the preparation and presentation of his defense.”  (People v. McDowell, 69 Cal.2d 737, 746, 73 Cal.Rptr. 1, 447 P.2d 97, disapproved on other grounds in People v. Wetmore, 22 Cal.3d 318, 324, 327, fns. 5 and 7, 149 Cal.Rptr. 265, 583 P.2d 1308.)   He must “take all actions necessary” to protect and preserve his client's rights (People v. Pope, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859);  by anything less he has demonstrated constitutional inadequacy (idem.), and is subject to discipline therefor (Bus. & Prof.Code, § 6086.7, effective Jan. 1, 1983).

We deem it not to be irrational for “a reasonably competent attorney acting as a diligent conscientious advocate” (see People v. Pope, supra, at p. 424, 152 Cal.Rptr. 732, 590 P.2d 859), to argue that he should be permitted, by calling witnesses such as the judge of this case, to inquire as to matters possibly invalidating a search warrant upon whose validity his client's prosecution depends.

In the advocacy of his criminally accused client's rights, an attorney should have an incentive “to advance contentions requiring a change in the law.”  (Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199.)  “[C]ounsel serves both the court and his client by advocating changes in the law if argument can be made supporting change.”  (In re Smith, supra, 3 Cal.3d 192, 197, 90 Cal.Rptr. 1, 474 P.2d 969;  People v. Feggans, 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21.)   Many landmark decisions in our criminal law (e.g., Gideon, Mapp, Miranda, Pope, Cahan ), have been brought about by counsel who deigned to controvert settled legal principles.

 Nothing, in our opinion, is better calculated to discourage such enterprise in a criminal case, than the imposition of a subpoenaed witness' or one's adversary's attorney's fees in the event of failure.   As said in Fabricant v. Superior Court, supra, 104 Cal.App.3d 905, 915, 163 Cal.Rptr. 894, “the imposition of sanctions for an [unsuccessful] attempt to exercise this right [to subpoena witnesses] might tend unduly to chill the vigor of the defense which would be undertaken in behalf of criminal defendants.”   Such a chilling is obviously constitutionally unacceptable.

We note also, with approval, that Code of Civil Procedure sections 1987.1 and 1987.2 have been held inapplicable to criminal cases such as this.  (See Fabricant v. Superior Court, supra, 104 Cal.App.3d 905, 914–915, 163 Cal.Rptr. 894.)   And in any event the operation of such statutes, and the equitable principles or inherent judicial power upon which they are based, would be transcended by the constitutional authority we have pointed out.

And the Legislature has wisely foreseen the arising of cases such as this, where a judge may be in need of an attorney to represent him in matters relating to his official duties.  Government Code section 27647 provides for such representation by the county counsel or its district attorney equivalent without cost to him, in such cases.  (See also, Gov.Code, §§ 26524, 26529.)

 Moreover, it seems proper to here point out that trial courts, in their discretion, are permitted to determine motions to quash subpoenas on affidavits alone, thus to prevent the inordinate loss of time here complained of.  (See Code Civ.Proc., § 2009;  Beckett v. Kaynar Mfg. Co. Inc., 49 Cal.2d 695, 698, 321 P.2d 749;  Reifler v. Superior Court, 39 Cal.App.3d 479, 483, 114 Cal.Rptr. 356;  McLellan v. McLellan, 23 Cal.App.3d 343, 359, 100 Cal.Rptr. 258.)

The judgment is affirmed.

I respectfully dissent.

I agree that we should be careful not to stifle zealous advocacy, but disagree that that principle is advanced by the majority's decision.

The parties stipulated—hence respondents conceded —that the motion to quash was opposed in bad faith.   Such a stipulation is binding on the parties and on this court (Palmer v. City of Oakland (1978) 86 Cal.App.3d 39, 44, 150 Cal.Rptr. 41;  In re Marriage of Carter (1971) 19 Cal.App.3d 479, 488, 97 Cal.Rptr. 274), and may not be disregarded absent a showing of illegality or compelling contrary public policy.  (Estate of Burson (1975) 51 Cal.App.3d 300, 306, 124 Cal.Rptr. 105.)   And since the record discloses no sufficient reason for setting aside the stipulation, I think we are confronted with the simple question of the propriety of an award of attorney fees on the precise facts before us, which include admitted bad faith on the part of respondents.   Unlike the majority, I discern no constitutional impediment whatever to the awarding of such fees.

Assuming arguendo that this court has the powers to disregard the stipulation, I believe the only reasonable inference from the record is that the subpoena itself was not an attempt at zealous advocacy, but an intentional abuse of the legal process with no other purpose than harassment of the magistrate.   I also find no legislative intention that Code of Civil Procedure section 1987.2 ought never to be applied to criminal cases.*

The “chilling” effect (if any) of the instant award consists in fact in its possible salutary service as a deterrent against future abuse of the legal process.   For this court to set that award aside will in my opinion only encourage future like abuses.

I would reverse the superior court's order and judgment.


FOOTNOTE.   Compare also Code of Civil Procedure section 1285, which seems to me a separate basis for upholding the trial court's broad grant of power to award fees as a sanction against abusive trial tactics.

 ELKINGTON, Associate Justice.

RACANELLI, P.J., concurs.

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