In Re Shelley

California Court of Appeal Nov 21, 1961 No. Crim. 7929Published

Before: Frampton

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Holding. The court held that the petitioner was not denied his constitutional right to counsel because the record demonstrated he had been given multiple opportunities to obtain representation and ultimately expressly waived that right.

Issues

Whether the petitioner was denied his constitutional right to be represented by counsel during a contempt hearing.
Whether the evidence was sufficient to support the petitioner's commitment for contempt.

Disposition. writ discharged; petitioner remanded to custody

Quotations verified verbatim against the opinion

“In the instant case the record discloses that petitioner being fully aware of his right to be represented by counsel, expressly waived it and under such circumstances no violation of petitioner’s constitutional right is shown.”

[200]

FRAMPTON, J. pro tem.

Petitioner seeks Ms release from custody after having been sentenced to the county jail for contempt of court. His commitment was the result of a hearing on an order to show cause ancillary to a divorce action filed by his wife. He claims he was denied his constitutional right to be represented by counsel at such hearing.

The petition herein was verified and filed by petitioner’s counsel. It alleges on information and belief that petitioner was present in the lower court without counsel on September 21, 1961, the time set for the hearing; that petitioner advised the court he had counsel but his counsel at the time was engaged in the trial of a matter in the federal court; that petitioner asked the lower court for a postponement of the hearing for a reasonable time so that he could be represented by counsel, but the court arbitrarily refused such request; that petitioner told the court he could not properly present his evidence without the presence and aid of his attorney. It further appears from the petition that “Petitioner alleges on information and belief that the said Minute Order confining petitioner is not supported by sufficient evidence, and that said committment [sic] of petitioner is without probable cause. It is necessary for petitioner to allege the above fact on information and belief due to the fact that no reporter was present at the hearing so that petitioner is unable to attack said order on the basis of recorded evidence of said hearing.”

The writ was issued September 27, 1961, returnable October 26,1961. Petitioner was released on bond pending the hearing. October 26, 1961, the cause rested on the petition which set forth a copy of the minute order of the lower court made September 21, 1961, and the return to the petition which included the commitment. All of these combined did not furnish a clear picture of what transpired in the court below. This court then requested counsel for both sides to submit affidavits clarifying the record as it then existed and continued the hearing on the petition to November 16, 1961.

On November 9, 1961, real party in interest served on petitioner’s attorney, by mail, the reply to the petition which was verified by the attorney for plaintiff below, who was present in court at all stages of the order to show cause proceedings, which reply set forth factually the occurrences leading up to petitioner’s incarceration. This reply was filed

In Re Shelley

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