McCOMB, J. Petitioner, an attorney at law, seeks a writ of certiorari to review an order of respondent court punishing him for contempt of court.
Chronology
1. September 15, 1960, Ossie Hanson (hereinafter referred to as “defendant”) retained the law firm of Monroe & Chula to represent him in a criminal action charging him with three counts of violating sections 288 and 288a of the Penal Code.
2. September 30, 1960, and October 26, 1960, a preliminary hearing was held in the Municipal Court of the Anaheim-Fullerton Judicial District, and defendant was bound over to answer in the superior court.
3. January 31, 1961, defendant appeared in the Superior Court of Orange County with his counsel, James C. Monroe, and moved for a dismissal of all three counts. The court dismissed counts I and II, but denied the motion as to count III. A jury trial was waived.
4. Thereafter, following a court trial, defendant was found guilty of one count of violating section 288 of the Penal Code. Criminal proceedings were suspended and sexual psychopathy proceedings instituted, at which defendant was represented by petitioner.
5. March 17, 1961, defendant’s motion for a new trial was denied and the matter continued for hearing relative to the sexual psychopathy proceedings and pronouncement of sentence to March 31, 1961, at 9:15 a. m., in department 5, and petitioner and defendant were ordered to return at that time.
6. March 31, 1961, when the case of People v. Ossie Hanson was called at 9 :50 a. m.,1 petitioner did not appear in court. However, about 20 minutes later Mr. Mueller, an associate of petitioner, came into court and stated that petitioner had asked him to appear for him at the hearing.
7. April 7, 1961, an order to show cause in re contempt was issued and served upon petitioner, ordering him to appear before respondent court at 9:15 on April 14, 1961, to show cause why he should not be punished for contempt. There[202]after by stipulation the matter was continued until April 28, 1961, at 9:15 a. m.
8. April 28, 1961, after a hearing, at which petitioner and Mr. Mueller testified in petitioner’s behalf, respondent court stated: “It is the judgment of the Court that you are in contempt of court. It will be the sentence of this court that you be confined to the County Jail for four days.”
9. May 1, 1961, respondent court entered, nunc pro tunc as of April 28, 1961, the following order in the case of The People of the State of California, Plaintiff, vs. Ozzie Hanson, Defendant : “Judgment and Order in re Contempt. The contempt proceedings against George H. Chula herein, having come on regularly on an order to show cause before the undersigned April 28, 1961, and the said George H. Chula appearing in his own behalf, and evidence, oral and documentary having been presented and argued, and the matter having been submitted, and good cause appearing therefor, and it appearing that: 1. A lawful order was given to the said George H. Chula to return and appear in the same courtroom as the one in which the order was made, to wit: Department 5; 2. The order was given pursuant to a continuance of this case, in which the said George H. Chula was counsel for the defendant; 3. The order was given on March 17, 1961, and it was an order to return and appear at 9:15 a. m., March 31, 1961; 4. The said George H. Chula was present and heard and understood the order; 5. The said George H. Chula had the ability to appear at the ordered time and place; and 6. The said George H. Chula did wilfully neglect and fail to so appear without sufficient reason or excuse for such failure.
“It Is Hereby Ordered, Adjudged and Decreed that the said George H. Chula is in contempt of this Court in his failure to obey such order, and that Defendant be taken into custody of the Sheriff of the County of Orange, and be confined to the County Jail for a period of four (4) days;
“Be It Further Ordered that execution of this order be stayed for a period of ten (10) days from the date hereof, to wit: until May 9, 1961, or, if within such period of ten (10) days a petition for a writ to alter this order is filed in the Court of Appeal or the Supreme Court of this State, then until the granting or denial thereof becomes final.
“This order is to be entered nunc pro tune April 28, 1961.
“Dated: May 1, 1961.
John Shea
Judge of the Superior Court”
[20310]. May 2, 1961, the clerk entered the following minute order relative to the April 28, 1961, proceedings: “It is the judgment of this Court that counsel for defendant, George Chula, is in contempt of Court. Said George H. Chula ordered confined to the County Jail for a period of four (4) days. ’ ’
11. May 9, 1961, respondent court entered, nunc pro tunc as of April 28, 1961, an amended judgment and order in re contempt. The only difference between the order entered May 1, 1961, and the amended order was that in the latter the words “that the said George H. Chula be taken into custody of the Sheriff of the County of Orange” were substituted for the words “that Defendant be taken into custody of the Sheriff of the County of Orange,” and the expiration of the 10-day period for the stay of execution thereof appears as May 19, 1961, instead of May 9, 1961.
Questions: First. Was the order of May 1, 1961, adjudicating petitioner in contempt void for the reason that it did not state facts showing petitioner guilty of contempt?
No. The failure of an attorney, without valid excuse, to be present in court at the announced time for the sentencing of a client whom he is representing constitutes a contempt committed in the immediate view and presence of the court and hence a direct contempt which the court is empowered to punish summarily under section 1211 of the Code of Civil Procedure. (Cf. Lyons v. Superior Court, 43 Cal.2d 755, 759 [5] [278 P.2d 681].)
An order adjudging a person guilty of contempt in the immediate view and presence of the court must recite facts showing acts which constitute a contempt. (Code Civ. Proc., § 1211.) This is jurisdictional, and an order which assumes to punish summarily a direct contempt of court is void unless it shows on its face facts sufficient to constitute a legal contempt. (Raiden v. Superior Court, 34 Cal.2d 83, 86 [2] [206 P.2d 1081] ; In re Wells, 29 Cal.2d 200, 201 [2] [173 P.2d 811] ; Ex parte Hoar, 146 Cal. 132, 133 [79 P. 853].) Such facts must be stated with sufficient particularity to show, without the aid of speculation, that a contempt actually occurred. (Blake v. Municipal Court, 144 Cal.App.2d 131, 136 [7] [300 P.2d 755] [hearing denied by the Supreme Court].)
In the present case it is clear that the order of May 1, 1961, adjudicating petitioner in contempt meets the foregoing requirement, since facts are stated therein showing [204]that petitioner in the presence of the court committed a contempt.
There is no merit in petitioner’s contention that the order adjudicating him guilty of contempt did not state facts hut merely conclusions of law. A recital that petitioner “had the ability to appear” is a proper conclusion of ultimate fact conclusive on this court upon review. (Ex parte Levin, 191 Cal. 207, 208 [1] [215 P. 908] ; Ex parte Spencer, 83 Cal. 460, 462 [23 P. 395, 17 Am.St.Rep. 266] ; In re Carpenter, 36 Cal.App.2d 274, 276 [1] [97 P.2d 476] ; In re Wilson, 123 Cal.App. 601, 603 [2] [11 P.2d 652].)
In re McCausland, 130 Cal.App.2d 708 [279 P.2d 820], relied on by petitioner, is factually distinguishable from the present case. In such case the order was annulled because it consisted solely of a finding that the defendant there was guilty of “wilfully violating” an order. The court pointed out that there was no recital in the order that the petitioner had the ability to comply with it. In the present case there is such a recital in the order.
In re Cardella, 47 Cal.App.2d 329 [117 P.2d 908], also relied on by petitioner, was expressly disapproved in the later case of In re Hadley, 57 Cal.App.2d 700, 703 [135 P.2d 381], as being contrary to the great weight of authority.
Finally, In re Meyer, 131 Cal.App. 41 [20 P.2d 732], cited by petitioner, is factually distinguishable from the present case, for the reason that in the Meyer case the petitioner then before the court was discharged because he had not been served with the prior order of the court, and special findings showed his inability to comply with the court’s order between the date of service of the notice of the order and the date of the contempt hearing.
Second. Were petitioner’s acts contemptuous acts sufficient to give the court jurisdiction to punish him for contemptf
Yes. The sole function of the writ of certiorari in a contempt matter is to annul proceedings taken in excess of jurisdiction, and this court will consider the evidence only for the purpose of ascertaining whether there was any substantial evidence before the trial court to sustain its jurisdiction. (Times-Mirror Co. v. Superior Court, 15 Cal.2d 99, 115 [1] [98 P.2d 1029] ; Bridges v. Superior Court, 14 Cal.2d 464, 484 [8] et seq. [94 P.2d 983].)
The question whether the acts complained of can constitute a contempt is jurisdictional, however, and in the absence of evidence showing that an actual contempt of court [205]was committed, the order of commitment should he annulled. (Brunton v. Superior Court, 20 Cal.2d 202, 204 [1] [124 P.2d 831] ; Chula v. Superior Court, 109 Cal.App.2d 24, 26 [1] [240 P.2d 398] ; Wilde v. Superior Court, 53 Cal.App.2d 168, 178 [8] [127 P.2d 560].) Accordingly, we have examined the record for the purpose of determining whether petitioner’s acts were in fact contemptuous acts sufficient to give the court jurisdiction to punish him for contempt.
The evidence shows that when the matter was called at the March 17 hearing, neither petitioner nor defendant was present, and the court ordered a bench warrant issued for defendant’s arrest and an order issued for petitioner to show cause why he should not be punished for contempt for his failure to appear. Petitioner and defendant appeared about 10 a. m., at which time petitioner said that his calendar showed the hearing was set for 10 a. m. and that he and defendant had been waiting in his office.
A discussion then took place between petitioner and the trial judge regarding petitioner’s failure to appear at the scheduled time at a number of other hearings in the trial court. The court vacated the order for the bench warrant and the order to. show cause, and after argument it denied defendant’s motion for a new trial.
The probation department had not been notified of the hearing and had not prepared its report. The application for probation and pronouncement of judgment were therefore continued to March 31 at 9:15 a. m., a time set to suit petitioner’s convenience. The court admonished petitioner to be there at that time with defendant, stating: “Let’s remember it. 9:15 a. m. I will set the matter down at 9:15 a. m. on Friday, the 31st day of March, in this courtroom. Bach of you are ordered and directed to report here at that time.”
The court’s minute order of March 17, 1961, reads in part: “The hearing re: Application for probation and pronouncement of judgment is continued to March 31,1961 at 9:15 a. m. in Department 5. George Chula and the defendant ordered to return at that time.”
At the hearing on the. order to show cause there was evidence that after the March 17 hearing petitioner learned it would be necessary for him to be in the Indio Branch of the Superior Court of Riverside County on March 30 on a matter which supposedly would take two days; that the Indio matter was concluded on March 30 and petitioner so advised his office that evening; and that due to lack of transportation petitioner had spent the night at a friend’s home in Palm [206]Springs and did not return to Santa Ana until after 10 a. m. March 31.
The record also shows, however, that when the matter was called at 9:50 a. m. March 31, the court asked defendant where his counsel was, and defendant replied, “I stopped at his office and he said he’d be here at 9:15, but he isn’t here.”
Accordingly, since the record shows that the trial court ordered petitioner to appear personally at the March 31 hearing, and there was substantial evidence to support the court’s finding that petitioner had the ability to appear at the ordered time and place but nevertheless failed to appear, without sufficient reason or excuse for such failure, the trial court could justifiably hold him guilty of contempt on the basis of his acts as shown by the evidence.
Third. Did respondent court lack jurisdiction to amend the order of May 1, 1961, in the, manner in which it attempted to do so, and was the purported amended judgment and order in re contempt therefore void?
No. Where an order or judgment incorrectly records the completed judicial action of a court, the court can thereafter correct clerical errors by making an amendment to its order truly reflecting the court’s action. (Bastajian v. Brown, 19 Cal.2d 209, 214 [1] [120 P.2d 9] ; Carpenter v. Pacific Mut. Life Ins. Co., 14 Cal.2d 704, 707 [1] [96 P.2d 796] ; Waters v. Spratt, 166 Cal.App.2d 80, 85 [3] [332 P.2d 754] ; Culligan v. Leider, 65 Cal.App.2d 51, 56 et seq. [149 P.2d 894].)
The order of May 1, 1961, showed completed judicial action. However, there was a clerical error, in that it ordered “that Defendant be taken into custody of the Sheriff of the County of Orange,” while in truth and in fact the trial court had ordered that petitioner be taken into the custody of the Sheriff of the County of Orange. Therefore, it was proper for the court to correct its clerical error or misprision.
The original order2 correctly, except for the clerical error, reflected the court’s decision.
The trial court’s order is affirmed.
Schauer, J., and White, J., concurred.
At the subsequent contempt hearing the court stated it had delayed calling the matter because of the absence of petitioner.
Petitioner, in his application and points and authorities, continually refers to the clerk’s minute order of April 28, 1961, as the judgment [207]of the court finding him guilty of contempt. This is an error. Minute order entries of the clerk are not the orders themselves, hut are merely synopses of orders made by the court, and do not determine the extent of the judicial power of the court when a formal order has been signed and filed. (Rose v. Superior Court, 140 Cal.App. 418, 427 [3] et seq. [35 P.2d 605].)