166. (a) Except as provided in subdivisions (b), (c), and (d), a person guilty of any of the following contempts of court is guilty of a misdemeanor: (1) Disorderly, contemptuous, or insolent behavior committed during the sitting of a court of justice, in the immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority. (2) Behavior specified in paragraph (1) that is committed in the presence of a referee, while actually engaged in a trial or hearing, pursuant to the order of a court, or in the presence of any jury while actually sitting for the trial of a cause, or upon an inquest or other proceeding authorized by law. (3) A breach of the peace, noise, or other disturbance directly tending to interrupt the proceedings of the court. (4) Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by a court, including orders pending trial. (5) Resistance willfully offered by any person to the lawful order or process of a court. (6) The contumacious and unlawful refusal of a person to be sworn as a witness or, when so sworn, the like refusal to answer a material question. (7) The publication of a false or grossly inaccurate report of the proceedings of a court. (8) Presenting to a court having power to pass sentence upon a prisoner under conviction, or to a member of the court, an affidavit, testimony, or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon the prisoner, except as provided in this code. (9) Willful disobedience of the terms of an injunction that restrains the activities of a criminal street gang or any of its members, lawfully issued by a court, including an order pending trial. (b) (1) A person who is guilty of contempt of court under paragraph (4) of subdivision (a) by willfully contacting a victim by telephone or mail, or directly, and who has been previously convicted of a violation of Section 646.9 shall be punished by imprisonment in a county jail for not more than one year, by a fine of five thousand dollars ($5,000), or by both that fine and imprisonment. (2) For the purposes of sentencing under this subdivision, each contact shall constitute a separate violation of this subdivision. (3) The present incarceration of a person who makes contact with a victim in violation of paragraph (1) is not a defense to a violation of this subdivision. (c) (1) Notwithstanding paragraph (4) of subdivision (a), a willful and knowing violation of a protective order or stay-away court order described as follows shall constitute contempt of court, a misdemeanor, punishable by imprisonment in a county jail for not more than one year, by a fine of not more than one thousand dollars ($1,000), or by both that imprisonment and fine: (A) An order issued pursuant to Section 136.2. (B) An order issued pursuant to paragraph (2) of subdivision (a) of Section 1203.097. (C) An order issued as a condition of probation after a conviction in a criminal proceeding involving elder or dependent adult abuse, as defined in Section 368. (D) An order issued pursuant to Section 1201.3. (E) An order described in paragraph (3). (2) If a violation of paragraph (1) results in a physical injury, the person shall be imprisoned in a county jail for at least 48 hours, whether a fine or imprisonment is imposed, or the sentence is suspended. (3) Paragraphs (1) and (2) apply to the following court orders: (A) An order issued pursuant to Section 6320 or 6389 of the Family Code. (B) An order excluding one party from the family dwelling or from the dwelling of the other. (C) An order enjoining a party from specified behavior that the court determined was necessary to effectuate the orders described in paragraph (1). (4) A second or subsequent conviction for a violation of an order described in paragraph (1) occurring within seven years of a prior conviction for a violation of any of those orders and involving an act of violence or "a credible threat" of violence, as provided in subdivision (c) of Section 139, is punishable by imprisonment in a county jail not to exceed one year, or in the state prison for 16 months or two or three years. (5) The prosecuting agency of each county shall have the primary responsibility for the enforcement of the orders described in paragraph (1). (d) (1) A person who owns, possesses, purchases, or receives a firearm knowing he or she is prohibited from doing so by the provisions of a protective order as defined in Section 136.2 of this code, Section 6218 of the Family Code, or Section 527.6 or 527.8 of the Code of Civil Procedure, shall be punished under Section 29825. (2) A person subject to a protective order described in paragraph (1) shall not be prosecuted under this section for owning, possessing, purchasing, or receiving a firearm to the extent that firearm is granted an exemption pursuant to subdivision (h) of Section 6389 of the Family Code. (e) (1) If probation is granted upon conviction of a violation of subdivision (c), the court shall impose probation consistent with Section 1203.097. (2) If probation is granted upon conviction of a violation of subdivision (c), the conditions of probation may include, in lieu of a fine, one or both of the following requirements: (A) That the defendant make payments to a battered women's shelter, up to a maximum of one thousand dollars ($1,000). (B) That the defendant provide restitution to reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense. (3) For an order to pay a fine, make payments to a battered women' s shelter, or pay restitution as a condition of probation under this subdivision or subdivision (c), the court shall make a determination of the defendant's ability to pay. In no event shall an order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. (4) If the injury to a married person is caused in whole, or in part, by the criminal acts of his or her spouse in violation of subdivision (c), the community property shall not be used to discharge the liability of the offending spouse for restitution to the injured spouse required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents required by this subdivision, until all separate property of the offending spouse is exhausted. (5) A person violating an order described in subdivision (c) may be punished for any substantive offenses described under Section 136.1 or 646.9. A finding of contempt shall not be a bar to prosecution for a violation of Section 136.1 or 646.9. However, a person held in contempt for a violation of subdivision (c) shall be entitled to credit for any punishment imposed as a result of that violation against any sentence imposed upon conviction of an offense described in Section 136.1 or 646.9. A conviction or acquittal for a substantive offense under Section 136.1 or 646.9 shall be a bar to a subsequent punishment for contempt arising out of the same act. 166.5. (a) After arrest and before plea or trial or after conviction or plea of guilty and before sentence under paragraph (4) of subdivision (a) of Section 166, for willful disobedience of any order for child, spousal, or family support issued pursuant to Division 9 (commencing with Section 3500) of the Family Code or Section 17400 of the Family Code, the court may suspend proceedings or sentence therein if: (1) The defendant appears before the court and affirms his or her obligation to pay to the person having custody of the child, or the spouse, that sum per month as shall have been previously fixed by the court in order to provide for the minor child or the spouse. (2) The defendant provides a bond or other undertaking with sufficient sureties to the people of the State of California in a sum as the court may fix to secure the defendant's performance of his or her support obligations and that bond or undertaking is valid and binding for two years, or any lesser time that the court shall fix. (b) Upon the failure of the defendant to comply with the conditions imposed by the court in subdivision (a), the defendant may be ordered to appear before the court and show cause why further proceedings should not be had in the action or why sentence should not be imposed, whereupon the court may proceed with the action, or pass sentence, or for good cause shown may modify the order and take a new bond or undertaking and further suspend proceedings or sentence for a like period.
IN RE GIANNINI
CRIM. NO. 228.
COURT OF APPEAL OF CALIFORNIA, SECOND DISTRICT.
FEBRUARY 8, 1912. *167167
APPLICATION FOR DISCHARGE UPON WRIT OF HABEAS CORPUS.
THE FACTS ARE STATED IN THE OPINION OF THE COURT.
Flint, Gray Barker, H. B. McClure, H. T. Miller, and G. W. Zartman, for Petitioner.
Frank Lamberson, District Attorney, and James M. Burke, Deputy District Attorney, for Respondent.
Petitioner on the tenth day of June, 1911, entered a plea of guilty to the charge of unlawfully selling intoxicating liquor contrary to the provisions of an ordinance of Tulare county. The court thereupon adjudged that, as punishment for the offense committed, “the said defendant Francisco Giannini do pay a fine of seventy-five dollars, and in case said fine is not paid within one hour from the time of rendering judgment, that you, Francisco Giannini, defendant, be imprisoned in the county jail of the county of Tulare, state of California, until the fine be duly satisfied, in proportion of one day’s imprisonment for every dollar of the fine, or until lawful payment shall have been made of such proportion of said fine as shall not have been satisfied by imprisonment, at the rate above prescribed. And it is further ordered by this court, that the defendant Francisco Giannini be imprisoned in the county jail of the county of Tulare, state of California, for the term of ninety days, and this latter sentence is suspended during the good behavior of defendant Francisco *168168 Giannini, and any violation made by defendant in future, commitment will issue for this imprisonment. Done in open court this 10th day of June, 1911.” Thereafter, on the twenty-eighth day of November, 1911, the justice of the peace issued a commitment commanding the sheriff forthwith “to take, arrest and safely keep and imprison the within named Francisco Giannini in the county jail of said county of Tulare until said judgment shall have been satisfied as therein prescribed.” Petitioner was thereupon taken into custody upon said commitment, and he seeks a discharge from such custody by reason thereof. The return of the officer justifies the detention of petitioner based upon the commitment so issued.
The question presented upon this application is as to the validity of such commitment. Petitioner’s chief contention is that, under the provisions of section 1203, Penal Code, as amended April 6, 1911 (Stats. 1911, p. 689), the power of the court to suspend sentence, or to revoke probation and execute the original sentence, cannot extend beyond the period of time fixed by the court as the sentence, and that more than ninety days having elapsed between the date of the sentence and the issuance of the commitment herein, the court no longer possessed power to direct the commitment of petitioner. With the general proposition, that the power of the court to issue a commitment cannot extend beyond the time of the sentence fixed by the court, we do not agree. Section 1203, Penal Code, as so amended, provides: “The court, judge or justice thereof, may suspend the imposing, or the execution of sentence, and may direct that such suspension may continue for such period of time, not exceeding the maximum possible term of such sentence, and upon such terms and conditions as it shall determine, which terms and conditions may include, in the discretion of the court, the requirement of bonds for the appearance of the person released upon probation before the court, at any time that the court may require such appearance in the investigation of any alleged violation of said terms and conditions of probation, and such bonds may be at any time by the court exonerated without affecting any of the other terms or conditions of such probation; and in case of such suspension of imposition or execution of sentence, the court shall place such person on probation and under the *169169 charge and supervision of the probation officer of said court, during such suspension, or under the charge and supervision of the probation officer of the county in which such probationer is by the court permitted to reside.” The offense with which petitioner was charged being a misdemeanor as declared by the ordinance, the possible maximum term of sentence, assuming that section 19 of the Penal Code applies to the violation of an ordinance, is six months’ imprisonment. That, in our opinion, is the maximum possible term of sentence; that it is competent for a court to impose any sentence of imprisonment less than this maximum term, and, notwithstanding such fixation, to place the defendant upon probation for the full maximum term, and that when a defendant is placed on probation without limitation of time, the same extends to such maximum term of sentence and no longer. It follows, then, that if all other proceedings of the justice were regular, he possessed authority under the law to place petitioner upon probation for the full period of six months. Respondent’s contention, however, is that the court possessed no power under the statute to place a party upon probation, except in instances where the party is placed in the hands of a probation officer, and that the order of the court should so specify; in other words, that the mode prescribed by the statute is the measure of the power of the court. We think a proper construction of the statute is that absolute power of suspending sentence is given by this section, and that where a court acts under the statute, within the limits thereof, such order of suspension is not invalidated because the court omits a duty imposed by law upon it: namely, to place the party in charge of a probation officer. The functions of the probation officer are not to hold the defendant in custody, but to exercise a supervisory control over his conduct as an arm or instrument of the court. The legislative intent that no part of the sentence is included within the period of the probation officer’s surveillance is apparent when it is considered that upon revocation of the original order of suspension the law permits defendant’s commitment for the full term of the sentence as originally pronounced. The court having by its judgment suspended the execution of this sentence under the statute, and having jurisdiction so to do, the same became an *170170 operative judgment of court and so remains until revoked or modified by an order regularly made. This statute confers the power of revocation and modification upon the court for any cause which to the court is good and sufficient; but that a court should possess the power to issue a commitment for one whose sentence had theretofore been suspended, a revocation or modification of the order of suspension is an essential prerequisite. No intendments being in favor of the judgment of a justice, his authority to issue a commitment must affirmatively appear. The record does not disclose that any such modification or revocation was ever made by the justice in the case of petitioner, and the commitment was, therefore, in our opinion, issued without authority of law and the prisoner’s detention thereunder unlawful.
We think it unnecessary to distinguish the cases of In re Collins, 8 Cal.App. 367, [ ], andIn re Moore, 12 Cal.App. 161, [ ]. These cases, and those of the supreme court upon which they are based, were all constructions of section 1203 of the Penal Code prior to the amendment of 1911, before which date no power of suspension of sentence after judgment was given the court; hence, it followed that an attempt at suspension was void and the defendant was properly treated as an escape, or as one having consented to a delay in the issuance of the execution. Since the adoption of the amendment above cited, the power of a court to suspend sentence after judgment cannot be questioned.
We are not of opinion that section 1203, Penal Code, as now existing, interferes in any way with the functions and duties of the chief executive of the state. We think it competent for the legislature, and an exceedingly wise provision, to confer upon the courts this power of suspension of sentence to be exercised in proper instances, and that its enactment in no wise impairs the functions of a co-ordinate branch of the government.
Many other points are presented, but entertaining the views hereinbefore expressed, a discussion thereof is unnecessary.
No authority for the issuance of the commitment appearing, the same is invalid, and the prisoner is ordered discharged from custody.