Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS, petition for writ of certiorari, Fresno Co. S.Ct. No. 0584360
Kenneth K. Taniguchi, Public Defender, and Douglas S. Feinberg, Defense Attorney, for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
OPINION
Before Wiseman, Acting P.J., Dawson, J. and Hill, J.
HISTORY
On February 13, 2008, petitioner pled guilty to one count of contempt and the remaining nine counts were dismissed without prejudice. The court stayed execution of a five-day sentence on condition he “[c]omply with current support order” of $35 per month. A continuance was granted to August 6, 2008.
On August 6, 2008, petitioner failed to appear. A bench warrant issued.
On February 13, 2009, petitioner was arrested. Petitioner remained in custody until the hearing on February 18, 2009.
At the beginning of the hearing on February 18, 2009, the court informed petitioner that the first part of the hearing was a contempt proceeding for the failure to appear on August 6, 2008. After petitioner presented his defense, the court found him in contempt. The only verbal factual findings made by the court regarding the contempt consisted of the following:
“… The court finds a willful failure to appear on August 6, 2008… [¶]…[¶]
“… The court will give, impose five days for the failure to appear, give him credit for five days served.…”
The court made written findings as follows: “RESP FOUND GUILTY OF THE 8/6/08 FTA. SENT: 5 DAYS FCJ, 5 DAYS CFTS & RELEASED FCJ ON THIS CHARGE ONLY.”
DISCUSSION
A direct contempt can be committed by the failure to appear for a scheduled hearing. (Lyons v. Superior Court (1955) 43 Cal.2d 755, 758.)
A contempt order must include findings of fact or it is jurisdictionally defective and must be annulled. (In re Bloom (1986) 185 Cal.App.3d 409, 412-413.) Nor may the trial court after annulment revive or reinstate the charge of contempt. (Ibid.)
“When a contempt is committed in the immediate view and presence of the court … it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he or she be punished as therein prescribed.” (Code Civ. Proc., § 1211, subd. (a).)
“(2) Order Must Recite Facts. It is enough that the order states the facts with sufficient particularity, avoiding bare conclusions. And, ‘although it may be better practice for the trial court to set forth the exact words used, we do not believe it is mandatory that that court do so.’ [Citations.]
“An order that fails to recite in so many words that the contemptuous conduct occurred ‘in the immediate view and presence of the court’ is not invalid if the underlying facts recited in the order make this circumstance clear….” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 177.)
“Both Littlefield and Boysaw establish a practical and relatively bright line rule for written contempt orders premised on a violation in the presence of the judge of a previous order: a written direct contempt order which is based on the violation of a prior order must describe the prior order. ” (In re Ringgold (2006) 142 Cal.App.4th 1001, 1014.)
The oral and written factual findings of a contempt adjudication may be considered together in determining whether adequate factual findings have been made. (Cf. Ross v. Superior Court (1977) 19 Cal.3d 899, 904-905, fn. 4.)
In this case the oral and written findings of the court quoted above are conclusional and consist in essence of legal findings. The trial court did not describe the order requiring petitioner to appear on August 6, 2008, did not describe what transpired on August 6, 2008, and did not state that “that the contemptuous conduct occurred ‘in the immediate view and presence of the court.’” (7 Witkin, Cal. Procedure, supra, Trial, § 177.)
DISPOSITION
The oral and written contempt orders rendered on February 18, 2009, in Fresno County Superior Court action No. 0584360 are annulled.