In Re Cowan

Petitioner Oscar Lee Cowan seeks extraordinary relief from orders of a judge of respondent Municipal Court of the County of Los Angeles finding him in contempt of court and sentencing him to 72 hours in the county jail. After review, we conclude that the court did not comply with the statutorily prescribed procedure mandated by Code of Civil *1283 Procedure section 1211. The order of contempt was, therefore, an act in excess of jurisdiction and void.

The incident which gave rise to the contempt order occurred on the second day of petitioner’s jury trial on charges that he drove a vehicle while under the influence of alcohol. At the end of the day, one of the jurors, Mr. Pinkett, left the courthouse and walked toward his bus stop. As he was waiting on a street corner for a traffic signal to change, he noticed petitioner at the same location. Petitioner said something which Mr. Pinkett did not hear and then said, “ ‘That’s right, we’re not supposed to speak.’ ” The signal changed and Mr. Pinkett hurried off to catch his bus.

The next morning Mr. Pinkett told fellow juror Mr. Troupe of the incident and asked whether he should inform the court of the incident. Mr. Troupe…

Concurring and Dissenting. —I concur in the majority’s result but not in their citation of one authority nor in their decision to publish.

This case, simply put, involves the failure of the trial court judge to initiate an indirect contempt proceeding with an affidavit setting forth the *1290 facts on which the contempt charge is based as required by Code of Civil Procedure section 1211.

I agree with the majority that the affidavit is mandatory under the language of Code of Civil Procedure section 1211. I do not agree with the majority’s reliance on the case of Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518 [ 247 Cal.Rptr. 378 , 754 P.2d 724 , 76 A.L.R.4th 951 ]. That case involved the disciplining of a judge who, among other things, found a party guilty of contempt based on unsworn testimony in chambers and without any affidavit. In our case, the trial judge had a hearing in open court with the witnesses to the alleged contempt present. While those witnesses were originally unsworn, the trial judge corrected this later by having said witnesses sworn and asking them under oath to affirm their earlier testimony, which both witnesses did. In fact, one of the…

WOODS (A.M.), P.J.

Petitioner Oscar Lee Cowan seeks extraordinary relief from orders of a judge of respondent Municipal Court of the County of Los Angeles finding him in contempt of court and sentencing him to 72 hours in the county jail. After review, we conclude that the court did not comply with the statutorily prescribed procedure mandated by Code of Civil Procedure section 1211. The order of contempt was, therefore, an act in excess of jurisdiction and void.

The incident which gave rise to the contempt order occurred on the second day of petitioner's jury trial on charges that he drove a vehicle while under the influence of alcohol. At the end of the day, one of the jurors, Mr. Pinkett, left the courthouse and walked toward his bus stop. As he was waiting on a street corner for a traffic signal to change, he noticed petitioner at the same location. Petitioner said something which Mr. Pinkett did not hear and then said, "`That's right, we're not supposed to speak.'" The signal changed and Mr. Pinkett hurried off to catch his bus.

The next morning Mr. Pinkett told fellow juror Mr. Troupe of the incident and asked whether he should inform the court of the incident.…