Killpatrick v. Superior Court

FOX, Acting P. J.

The petitions for certiorari in these cases grow out of contempt proceedings in the domestic relations department of the trial court where, in each proceeding, petitioner was adjudged in contempt of court and sentenced to jail for his asserted wilful failure to comply with a prior order of the court for the support of his former wife and children. None of the petitioners had counsel. In each case the prosecutor

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called the petitioner as a witness and both he and the judge proceeded to interrogate him. It appears that the trial court did not advise the petitioners of their constitutional rights and in particular that they had a constitutional right not to testify. It is apparent petitioners were unfamiliar with their legal rights and court procedure. It was necessary for one of them to testify through an interpreter.

The decisive question is: Did the failure of the trial court to inform petitioners that they need not testify amount to a violation of their constitutional rights ?

In

Ex parte Gould,

99 Cal. 360 [33 P. 1112, 37 Am.St.Rep. 57, 21 L.R.A. 751], the court stated the pertinent principles here applicable: “Article I, section 13 of the constitution of this state, declares that: ‘No person shall be compelled, in any criminal case, to be a witness against himself. ’ Section 1323 of the Penal Code provides that ‘a defendant in a criminal action or proceeding cannot be compelled to be a witness against himself.’

“Contempt of court is a public offense, and by section 166 of the Penal Code is expressly declared to constitute a misdemeanor ... It is none the less a criminal offense that the statute authorizes it to be punished by indictment, or information, as well as by the summary proceedings provided in sections 1209-1222 of the Code of Civil Procedure. By these provisions, the procedure for the investigation of the

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charge is analogous to the criminal procedure, and the judgment against the person guilty of the offense is visited with fine, or imprisonment or both—the essential elements of a judgment for a criminal offense. ‘ Contempt of court is a specific criminal offense. It is punished sometimes by indictment and sometimes in a summary proceeding, as it was in this ease. In either mode of trial, the adjudication against an offender is a conviction, and the commitment in consequence is execution.’ [Citation.] ‘Although the alleged misconduct of the defendants occurred in the progress of a civil action, the proceeding to punish them for such misconduct is no part of the process in the civil action, but is in the nature of a criminal prosecution. Its purpose is not to indemnify the plaintiff for any damages he may have sustained by reason of such misconduct, but to vindicate the dignity and authority of the court. It is a special proceeding, criminal in character, in which the state is the real plaintiff or prosecutor.’ [Citation.] In