In Re Garcia

California Court of Appeal Sep 24, 1974 No. Crim. 12673Published

Before: Rattigan

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Holding. A contempt order based on a witness's failure to appear pursuant to an agreement with the district attorney is invalid if the original subpoena failed to state that such failure to appear would be punishable as contempt, as required by Penal Code section 1331.5.

Issues

Whether a witness can be held in contempt for failing to appear pursuant to an agreement with the district attorney when the subpoena did not contain the statutory warning required by Penal Code section 1331.5.

Disposition. Annulled

Quotations verified verbatim against the opinion

“The subpoena served upon petitioner did not “so state”: i.e., it did not state that her failure to appear, pursuant to an “agreement” with the district attorney, would be “punished [or punishable] as a contempt.””

“The subpoena fails to state what the statute mandates and for that reason cannot be used as the basis of a contempt proceeding.”

Opinion

RATTIGAN, J.

Having failed to appear pursuant to a subpoena issued by the People, as a prosecution witness in the criminal trial of People v. Luna and Lobato (Contra Costa County Superior Court No. 16480), petitioner was held in contempt of court and ordered to serve five days in jail. She has filed this petition for habeas corpus.

Petitioner was served with a subpoena on November 20, 1973.

As issued and served, it required her to appear at the Luna trial on November 21. The serving officer told her to call Deputy District Attorney Rapoport, relative to the exact time and place at which she should appear in response to the subpoena. When she called Rapoport on November 21, he told her that the Luna trial had been continued until the following week, and that he would “contact” her relative to the exact time and place at which she was to appear. According to the evidence herein, she agreed, to this.

The promised “contact” by Deputy District Attorney Rapoport occurred at 9 p.m. on December 2, when he had Officer Monge (of the

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San Pablo Police Department) go to petitioner’s residence to tell her that she was required to appear on the following morning (December 3, 1973) pursuant to the subpoena served upon her on November 20. Following an exchange of unpleasantries with Officer Monge on the night of December 2, petitioner apparently failed to appear on December 3.

According to these events as they occurred, it is apparent that the People rely upon Penal Code section 1331.5 as the basis of the trial court’s having held petitioner in contempt. Section 1331.5 provides: “Any person who is subpoenaed to appear at a session of court, or at the trial of an issue therein, may, in lieu of appearance at the time specified in the subpoena, agree with the party at whose request the subpoena was issued [the district attorney here], to appear at another time or upon such notice as may be agreed upon.

Any failure to appear pursuant to such agreement may be punished as a contempt, and a subpoena shall so state.

In Re Garcia

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RATTIGAN, J.

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