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■ People v. Ward , No. B212432

INTRODUCTION

            Appellant Joohan Song, a deputy public defender for the County of Los Angeles, challenges an order by the trial court (Judge Patrick T. Madden) imposing sanctions pursuant to Code of Civil Procedure section 177.5 (section 177.5).  He appealed to the appellate division of the superior court (Patti Jo McKay, Presiding Judge, Fumiko Hachiya Wasserman and Debre Katz Weintraub, Judges), which reversed the order and remanded the matter for further proceedings.  On a petition by appellant, we transferred the case to this court under rule 8.1002 of the California Rules of Court in order to settle an important question of law.  While we agree that the trial court had the power to impose sanctions under section 177.5, we reverse the order and remand the case for the trial court to state the reasons for the imposition of the sanctions as required by section 177.5.

FACTUAL AND PROCEDURAL BACKGROUND

A.  Proceedings in the Trial Court

            Appellant Mr. Song represented Edward Ward, who was charged with four misdemeanors.  On the first day of trial, the trial court explained its courtroom procedures and specifically stated, “I have a rule against speaking objections against both sides.”

            During trial, the prosecutor questioned Long Beach Police Officer Victor Vidriales regarding a prior incident of domestic violence.  The officer testified that he heard screaming inside.  When the door was opened, he saw defendant straddling a woman on the bed, holding her hair with one hand and holding his other hand up as if to strike her.  Officer Vidriales did not see defendant strike the woman, but it appeared as though she had been struck or injured.

            On cross-examination, Mr. Song established that Officer Vidriales never saw the defendant strike the victim.  On redirect examination, the prosecutor had Officer Vidriales reiterate his previous testimony, and then the following colloquy took place:

            “[Prosecutor]:  She had visible injury?

            “[Officer Vidriales]:  She did have injuries.  Exactly where the injuries were, I can’t recall exactly where they were at.

            “[Prosecutor]:  Any doubt in your mind that he had beaten her?

            “Mr. Song:  Objection; that’s asking for the officer’s opinion.  There’s no basis for all of this.  This is all hearsay—

            “The Court:  Hold on.  No speaking—

            “Mr. Song:  —prosecutorial misconduct.

            “The Court:  Sir, no speaking objections.

            “Mr. Song:  Very well.

            “The Court:  That’s the rule.  No foundation.”

            The prosecutor requested a sidebar, then stated:  “Case law, there’s an accusation of prosecutorial misconduct before the jury, the jury needs to be excused.  We need to have a hearing to hear whether or not there was any misconduct, and the judge needs to make a finding.”  The court excused the jury, and the following took place:

            “The Court:  Mr. Song, you made an accusation of prosecutorial misconduct.  Do you want to tell us what you think occurred?

            “Mr. Song:  No, not at this time, your honor.

            The Court:  Well, I’m going to admonish you please to not make such a claim, ever, in front of a jury.  If there’s something that you think has occurred, you have every right to bring it to the court’s attention, but it’s just not a good thing to do in front of a jury.  I don’t think it helps anybody.”

            The prosecutor requested the court sanction Mr. Song for his “unfounded” allegation of prosecutorial misconduct, calling it “misconduct” intended to inflame and prejudice the jury.  The trial court responded that since Mr. Song had withdrawn the objection, all the court could do was to make the determination that the objection was unfounded.  The court declined to decide the matter until the conclusion of the trial.

            The following day, the prosecutor requested that the trial court admonish the jury that the accusation of prosecutorial misconduct was unfounded and the jury was not to consider it.  Mr. Song responded that he did not believe the accusation was unfounded, and he was ready to explain why.  He explained that the prosecutor had committed misconduct by vouching, being leading and suggestive, and “back-dooring” Officer Vidriales’ conclusion.

            The trial court told Mr. Song:  “Well, you shouldn’t have done it in front of the jury.  That’s number one.  It should be done outside the presence of the jury.  She shouldn’t cite you for misconduct, you shouldn’t cite her for misconduct.  That’s a matter for the court and the parties—”  At this point, Mr. Song interrupted:  “There is case law to support—

            The trial court interjected:  “Yes.  I gave you a specific instruction at the beginning of the trial, no speaking objections, and if the accusation of prosecutorial misconduct isn’t that, I don’t know what is.  If you would object, you would say hearsay, you would say irrelevant, whatever your objection is.  That’s a nonspeaking objection.  The conclusion is that the prosecutor has engaged in conduct you deem to be prosecutorial misconduct, but you don’t say that in front of a jury, ever.  It’s not a matter for the jury to be aware of or to deal with.

            “If I found prosecutorial misconduct, I would probably dismiss the case, but that’s what I think the court’s remedy would be.  For the jury to hear that, it’s highly inappropriate, no matter what the circumstances are.  That’s my job to deal with conduct by counsel.  And I think it was misconduct by you, sir, to say it in front of the jury.  It’s highly prejudicial.”

            The trial court told counsel it would tell the jury it had made no finding of misconduct and admonish the jury to ignore it.  The court added:  “I don’t want to hear in front of this jury ‘prosecutorial misconduct.’”

            Later, as the prosecutor was cross-examining the defendant, Mr. Ward, she asked him whether he had told the police that he had not hit the victim or had hit her in self-defense.  The defendant testified he had not told the police those things.

            After the defendant finished testifying, and out of the presence of the jury, Mr. Song accused the prosecutor of misconduct by improperly questioning the defendant about what he told the police after his arrest.[1]  The prosecutor responded that the defendant had not invoked his right to remain silent but had made statements to the police.  Mr. Song requested a mistrial or a curative instruction.  The trial court denied his request.

            In his argument to the jury, Mr. Song stated:  “Now, the prosecutor, she has done certain things here in this case, and I would just like to point out, and it’s not necessarily a matter of personal—personalities or personal stuff, but I mean, as a prosecutor you’re in a special position in society in that you as jurors hold more esteem for prosecuting attorneys than other attorneys, so when a prosecuting attorney makes representations, they should play by the rules, and one of the rules is this: under the Constitution, under case law, Mr. Ward has a right to remain silent.  But she violated that by asking Mr. Ward a question.  She also violated that by writing on the chart right up there.  Something like this was no statement from Mr. Ward.  There was no—there was no statement from Mr. Ward regarding whether the victim was the aggressor.”

            At that point, the trial court interrupted and the following colloquy took place:

            “The Court:  Mr. Song, I’m going to ask you—

            “Mr. Song:  And that is prosecutorial misconduct.

            “The Court:  Mr. Song, I’m going to admonish you not to make that argument.  It is untrue.

            “Ladies and gentlemen, you’re to disregard that argument.  [¶]  Ladies and gentlemen, there is no evidence of any prosecutorial misconduct in this case.  [¶]  Mr. Song, get to . . . .

            “Mr. Song:  Ladies and gentlemen, we are here.  We should all play by the rules—

            “The Court:  Mr. Song, I’m going to admonish you again: do not make this argument.

            “Mr. Song:  But that’s precisely—I mean, this case—is all about what happened on January 25th.  It’s not about all this other stuff.  I mean, they’re bringing all this other stuff.  Let’s focus on what the real issue is.  The real issue is what happened January 25th.”

            After the jury began deliberations, the trial court told Mr. Song that he had violated the court’s order, and the court was going to hold a contempt hearing.  It explained:

            “The Court:  Mr. Song I asked you not to raise the issue of prosecutorial misconduct in front of the jury and you repeatedly did so.  You directly violated my ruling, too.

            “Mr. Song:  I believe—well, your Honor, I—I thought that . . . you’d want to hear that with regards to objections, but—

            “The Court:  You can’t argue prosecutorial misconduct to the jury.  You argue that to me.

            “Mr. Song:  Your Honor, there was—I did argue that.  I did ask for it.  It was—it’s grounds for a dismissal.  Denied that—didn’t allow for curative jury instructions.

            “The Court:  Mr. Song, it’s grounds for you to get in trouble, big trouble.  You directly violated my order, repeatedly, after I instructed you in front of the jury the first time not to bring up prosecutorial misconduct.  After I advised you yesterday, you did it again.  It’s very serious.

            “The Court:  I suggest you think about it.  I’m ordering you to come back here one week from today, March 9th, at 1:30 p.m., and we’re going to address it at that time as a possible contempt.  It’s serious.  You directly violated my order in front of the jury, repeatedly.

            “I would have an attorney with me.  Understood.

            “Mr. Song:  It’s understood.”

            The trial court later added that in addition to contempt, the court was considering a sanction under section 177.5.  The prosecutor filed points and authorities requesting a finding of contempt, a report to the State Bar and a $1,000 fine.

            At the hearing on the matter, the trial court indicated that its findings would be based on Mr. Song using the term “prosecutorial misconduct” in front of the jury, being told not to do so, then using it again during his argument.  Mr. Song’s counsel explained that deputy public defenders are trained to object on the ground of prosecutorial misconduct under certain circumstances in order to prevent the objection from being waived on appeal.  Mr. Song questioned how he could make such an objection if the trial court precluded him from doing so.  His counsel suggested that Mr. Song’s actions might be a reflection of the fact he was a relatively new and inexperienced lawyer.

            Mr. Song’s counsel added that Mr. Song erroneously objected on the ground of Griffin error when he meant to object on the ground of Doyle error.  Counsel acknowledged that neither ground was applicable but argued that Mr. Song should not be punished for making an incorrect objection; lawyers make the objections, and it is up to the trial court to determine whether they are correct or not.

            Mr. Song’s counsel also pointed out that section 177.5 contains an exception for advocacy.  He asserted that argument is advocacy, and therefore Mr. Song could not be sanctioned for statements made during argument.

            Mr. Song then apologized to the trial court for not following the court’s orders.  He also apologized to the prosecutor, explaining that he had not intend his objections to be personal attacks.

            The trial court accepted Mr. Song’s apology, admonished him and purged the contempt.  It imposed sanctions of $200 under section 177.5 for failing to obey a court order.[2]

■ Held:

Trial court order imposing sanctions pursuant to Code of Civil Procedure sec. 177.5 for failing to obey a court order is reversed where: 1) the order that defendant's attorney not say the words prosecutorial misconduct was lawful; 2) the imposition of sanctions did not interfere with defendant's attorneys fulfillment of his duty as an attorney, as his claims did not fall under the advocacy exception to the power to sanction; and 3) the order imposing sanctions did not state the conduct or circumstances justifying the order as required by section 177.5. The case is remanded so the trial court can enter a proper sanctions order.
People v. Ward -B212432-5/20/09 CA2/7
People v. Ward -B212432-5/20/09 CA2/7-PDF

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