Filed 8/8/12 Pori v. Super. Ct. CA1/1
TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
TIM A. PORI,
Petitioner,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY,
Respondent;
THE PEOPLE,
Real
Party in Interest.
A135181
(Alameda County
Super. Ct. No. 163657)
By the Court:
Tim
A. Pori (Pori) is a criminal defense attorney representing Andrew Wong in
County, 2009, No. 163657) (People v. Wong),
presently pending retrial in respondent, the Superior Court of
County.
title="">[2] By Order and Judgment of Contempt filed April
16, 2012, Pori was found in contempt of court (Code Civ. Proc., §§ 1211,
1218),
spend five days in the county jail and to pay a fine of $1,000. In addition, sanctions in the amount of
$1,500 were imposed. (§ 177.5.)
Pori
sought immediate relief from this court.
Contempt. As will be seen, although we
do not condone Pori’s conduct where he improvidently overscheduled himself and
then tried to pick and choose which cases he would try, the contempt judgment
is void due to technical procedural noncompliance, and the imposition of
sanctions pursuant to section 177.5 is not supported by the record. Accordingly, we will direct issuance of a
BACKGROUND
The
parties are familiar with the history of this case, so we do not recite it in
depth. Following the September 2011
mistrial of People v. Wong, a new
trial date of April 16, 2012 was set.
Pori believed a continuance would be granted in the Wong case if Pori
was otherwise in trial.
name="_ftnref5" title="">[5] On March 27, 2012, Pori received a
telephone call from Judge Goodman (who had presided over the first Wong trial)
inquiring whether Pori would be prepared to proceed with retrial on April 16,
2012. Pori explained he would not
because of another multi-defendant homicide trial in Solano County set to
commence on April 30, 2012. Judge
Goodman directed him to contact Judge Panetta and the district attorney to
inform them he would be filing a motion
to continue. After Pori left a
message with Judge Panetta’s chambers, he received a call from her clerk to
inform him Judge Panetta would deny any motion to continue.
Nonetheless,
on March 29, 2012, Pori filed a motion to continue People v. Wong, and alternatively, a motion to withdraw as
counsel. Both motions were heard and
denied on April 5, 2012.
name="_ftnref6" title="">[6] On that day, however, Pori was not present,
but was in trial on another case.
Attorney John Baumgardner appeared instead. Pori’s written motions were supported by his
declaration explaining the details of his trial schedule in several counties,
his efforts to manage his caseload, and a description of his decision to
prepare for the Solano County murder trial set for April 30, rather than to
prepare for People v. Wong, even
though the latter was set to commence first.
In
denying the motion to continue, and distinguishing cases cited in Pori’s
motion, Judge Panetta concluded, “I agree, this court agrees, that counsel for
defendant has a right to a reasonable opportunity to prepare for trial. But this Court believes Mr. Pori has had a
reasonable opportunity to prepare for trial.”
The court also noted Pori had 11 more days until the trial date of April
16, and that “[i]f Mr. Pori is not in trial on April 16 . . . he’s going out on
this case.”
On
April 16, 2012, the day set for trial, Pori appeared with attorney Daniel Russo
(Russo), “anticipating a contempt proceeding.”
Judge Panetta asked Pori if he was “ready to go to trial today,” and
Pori answered, “No . . . [f]or the reasons stated in my declaration [referring
to his motion to continue, denied April 5, 2012].” In addition, Russo offered a new declaration
from the case investigator, and an e-mail from the expert witness concerning
recently received discovery in the case.
Judge
Panetta found nothing in the declarations to warrant reconsideration of the
ruling on the motion to continue. She
then inquired what effort Pori had made to prepare People v. Wong since March 12, 2012 (the date when the Solano
County case was continued to April 30, 2012).
After some explanation from Russo about Pori’s schedule and why Pori had
been preparing the Solano County case, Judge Panetta stated, “I know what’s
going on here. He picked which cases he
thought should go out when. . . . It’s clear from what I read in these transcripts
that he submitted himself that this case was last priority. . . . [¶] What’s clear . . . is Mr. Pori took
it upon himself to decide which cases are going to go out when . . .
that’s this Court’s job, not Mr. Pori’s.”
Next,
Judge Panetta asked, “What if the Court were to send Mr. Pori to report to a
trial department today with the understanding that nothing would happen for
three weeks so he would have his three weeks”
Russo stated, “He is refusing,” explaining “he has the other trial that
he has to prepare for too.”
After
further discussion, Judge Panetta stated, “He’s clearly refusing the Court’s
reasonable accommodation to go out with a three week cushion. Is that correct . . . ” Attorney Russo responded, “Yes, Your Honor.”
Judge
Panetta then announced that she was “considering now a finding of contempt” and
she “will allow Mr. Pori additional time to be heard on that . . . since this
is sort of a hybrid—although it’s really a direct contempt since he’s refusing
to be sent to trial here in the direct and immediate presence of the
Court.” She apprised Pori of the
contempt penalties and noted, “in addition the Court may sanction Mr. Pori
. . . per Code of Civil Procedure section 177.5
. . . .”
Yet,
after summarizing her findings and conclusions regarding the procedural
background of the case, Judge Panetta declined to order him immediately to
trial, stating: “I’d like to say, Mr.
Pori, you’re going to Department 10 right now, they're available, Judge
Rolefson is waiting for the case for trial and we will build in that three
weeks you need, I'm not going to do that.”
She
explained, “I did previously give notice at the end of [the] April 5th hearing
that . . . counsel would be subject to contempt proceedings if he
failed to comply with the Court’s order to go to trial.” And, “because Mr. Pori is refusing to go to
trial and is unprepared today and because this is occurring in the court’s
immediate view and presence, this is a direct contempt of court. Again, on the chance it’s considered a hybrid
contempt, I want to make sure Mr. Pori has fully been heard about mitigating
circumstances other than what’s been put in his papers and already presented to
the Court.”
Pori
asked for no additional time to present witnesses. After he offered an apology, Judge Panetta
ruled, “I do find by proof beyond a reasonable doubt . . . that Mr. Pori has refused
without good cause or substantial justification to comply with a lawful court
order to be adequately prepared for trial on today’s date.” In addition, Judge Panetta ruled, “the Court
is imposing sanctions pursuant to Code of Civil Procedure section 177.5. That is in the amount of $1,500, and that is
imposed for Mr. Pori failing to be ready and prepared to go to trial on today’s
date as he has had more than a reasonable amount of time to prepare for trial
and he’s not exercised sufficient diligence in preparing for this trial.”
THE JUDGMENT OF CONTEMPT
Section
1209 prescribes the acts or omission which may constitute contempt. As potentially relevant here, subdivision (a)
provides:
“(1) Disorderly,
contemptuous, or insolent behavior toward the judge while holding the court,
tending to interrupt the due course of a trial or other judicial proceeding.
“[¶] . . . [¶
“(5) Disobedience of any lawful judgment, order, or process of
the court.
“[¶] . . . [¶]
“(9) Any other unlawful interference with the process or
proceedings of a court.
“[¶] . . . [¶]”
Section 1211, subdivision (a) provides: “When a contempt
is committed in the immediate view and presence of the court, or of the judge
at chambers, it may be punished summarily; for which an order must be made,
reciting the facts as occurring in such immediate view and presence, adjudging
that the person proceeded against is thereby guilty of a contempt, and that he
or she be punished as therein prescribed.
“When the contempt is not committed
in the immediate view and presence of the court, or of the judge at chambers,
an affidavit shall be presented to the court or judge of the facts constituting
the contempt, or a statement of the facts by the referees or arbitrators, or
other judicial officers.”
A contempt
committed in the immediate view and presence of the court is a direct
contempt. Others (requiring an order to
show cause supported by affidavit) are indirect contempts. Not infrequently, however, a direct contempt
may be committed in the court’s presence, but explained by matters occurring
outside the immediate view and presence of the Court. These contempts have traditionally been
described as hybrid contempts, still within the category of direct contempt. (Chula
v. Superior Court (1962) 57 Cal.2d 199, 203, 206–207 (Chula).) The classic example
of a hybrid contempt is that of the attorney ordered previously to appear on a
certain date and time who fails to appear, but offers an explanation based on
events occurring outside the immediate view and presence of the court.
“ ‘The
requirements of the order adjudicating contempt
have been given expression in numerous opinions. In Arthur v. Superior Court [(1965)] 62 Cal.2d [404,] 407, we
observed: “Section 1211 of the Code of
Civil Procedure establishes the procedure that is to be followed in adjudging
persons in contempt of court. Contempt
committed in the immediate view and presence of the court, known as direct
contempt, may be treated summarily. All
that is required is that an order be made reciting the facts, adjudging the
person guilty and prescribing the punishment.”
We have emphasized, however, that
such an order is valid only if it recites facts with sufficient particularity
to demonstrate on its face that petitioner’s conduct constituted a legal
contempt. [Citations.]’ (In re
Buckley (1973) 10 Cal.3d 237, 247 [Buckley].)” (In re
Littlefield (1993) 5 Cal.4th 122, 138 (Littlefield),
original italics.) These requirements
are jurisdictional. (
Wells (1946) 29 Cal.2d 200, 201 (Wells); In re Ringgold (2006) 142 Cal.App.4th 1001, 1011 (Ringgold).)
“ ‘ “[T]he
order must contain a statement of facts equivalent
to those which the law says must be incorporated in an affidavit for
constructive contempt and such facts must prove the contempt. Mere conclusions are not
sufficient.” ’ ” (Wells,
supra, 29 Cal.2d at pp. 201–202, quoting In re Battelle (1929) 207
Cal. 227, 256 [direct contempt finding against witness for refusing to answer
questions is invalid unless it contains “ ‘ “an express recital of
facts affirmatively showing not only the precise questions which he has
declined to answer[,] . . . but also affirmatively setting forth the
facts which show the materiality and pertinency of . . . [the]
evidence to the issue before the court . . .” ’ ”].) The Supreme Court has noted: “ ‘ “[A]n order which
assumes to punish summarily a direct contempt of court is void unless it shows
on its face facts sufficient to constitute a legal contempt. [Citations.]
Such facts must be stated with sufficient particularity to show, without
aid of speculation, that contempt actually occurred. [Citation.]”
([Chula, supra, 57 Cal.2d at p. 203], italics added.)’ (Boysaw v. Superior Court (2000) 23
Cal.4th 215, 222 (Boysaw).) In a similar vein, the Supreme Court has
emphasized that the recitation of facts constituting the contempt must be done
with ‘specificity’ in the written order.
(Ibid.; see Littlefield, supra, 5 Cal.4th at p.
129, fn. 6 . . . .) Further, the recital of facts requirement is
not satisfied by a judge’s conclusions as to the acts constituting the contempt
nor may the order be sustained by reference to extrinsic documents; albeit, a
transcript which places the conduct in context may be attached to the
order. (Littlefield, supra, at pp. 138–139 & fn. 10; Fine
v. Superior Court (2002) 97 Cal.App.4th 651, 666.) The order need not contain empty formalisms
such as the misconduct occurred in the presence of the court when the recitation
of facts in the order shows that is exactly what happened. ([Boysaw, supra, 23 Cal.4th at
pp. 220–221].)” (Ringgold,
supra, 142 Cal.App.4th at pp. 1012–1013.)
When
the contemptuous conduct arises from a prior court order, the contempt order
must precisely describe the prior order, both its terms and its date. (Littlefield,
warning to attorney that particular tone of voice objectionable].)
“Both
Littlefield and Boysaw establish a practical
and relatively bright line rule for written contempt orders premised on a
violation in the presence of the judge of a previous order: a written direct contempt order which is
based on the violation of a prior order must describe the prior order. The reference to the prior order must not be
an ‘empty formalism’ nor must the description of the prior order ‘exalt form
over substance.’ (Boysaw, supra,
23 Cal.4th at p. 220.) As with other
aspects of a written contempt order, the reference to the prior order
must: recite the facts (what the prior
order directed be done); be stated with sufficient particularity that there is
no need to refer to any extrinsic document in order to determine what was required
by the prior order (with the caveat that a transcript may be attached to the
order so as to put the contemptuous conduct in context); be described with
sufficient particularity to demonstrate on its face the ensuing contemptuous
conduct violated the prior order; and not consist of the judge’s conclusions
regarding the prior order. (See [Boysaw,]
supra, 23 Cal.4th at p. 220; [Littlefield,] supra, 5
Cal.4th at p. 138.)” (
1014.)
The
April 16, 2012 Order and Judgment of Contempt fails to meet these jurisdictional
requirements. Initially, it states Pori
“refused to be sent out to trial on the previously set trial date of April 16,
2012, because he was not prepared for trial.”
Later, it recites, “Contemner willfully failed to comply with the
court’s order to be prepared to go to trial on April 16, 2012,” and that he
“disobeyed a lawful order of the court to be prepared to be sent out to trial
on April 16, 2012.” Nowhere does the
contempt judgment state the date when the order was made or express the terms
of any such “order to be prepared for trial,” or to “be sent out to trial.”
The
judgment does state Pori was “notified” on March 27, 2012 the trial date would
not be continued, but such a notification is not an order to be prepared to go
to trial on that specific date. The
contempt judgment also recites "[o]n April 5, 2012, the court denied the
defendant’s motion to continue the trial date and maintained the trial date of
April 16, 2012.” An order denying a
motion to continue and maintaining a trial date is not an order to be prepared
to go to trial on a specific date.
The
transcripts of the April 5 and April 16 hearings, attached to the Order and
Judgment of Contempt, do not save it.
Pori was not present in court on April 5, 2012. Contrary to the April 16, 2012 statement by
Judge Panetta―”I did previously give notice at the end of the April 5th
hearing that . . . counsel would be subject contempt proceedings if
he failed to comply with the Court’s order to go to trial”―no such
warning appears in the April 5th transcript.
In any case, as we have explained, a contempt judgment which fails to
recite on its face the precise jurisdictional facts is void, regardless of the
transcript record. (Littlefield, supra, 5 Cal.4th at p. 138; Buckley, supra, 10 Cal.3d at pp. 246–247.)
The
contempt judgment also states:
“Contemner refused the court’s reasonable accommodation to be sent out
to trial with a three week ‘cushion’ to allow Contemner additional time to
prepare for trial.” But nowhere does the
order recite that Pori was ordered to go to trial with that accommodation and
he refused the order. Moreover, as we
have described above, at the hearing on April 16, 2012, the court expressly
declined to make such an order.
A
valid, written judgment of contempt is jurisdictional. A defective judgment of contempt is
void. We, therefore, reluctantly annul
the finding of contempt.
SECTION 177.5 SANCTIONS
Similarly,
we must set aside the section 177.5 sanctions order. Section 177.5 provides: “A judicial officer shall have the power to
impose reasonable money sanctions, not to exceed fifteen hundred dollars
($1,500), notwithstanding any other provision of law, payable to the court, for
any violation of a lawful court order by a person, done without good cause or
substantial justification. This power shall
not apply to advocacy of counsel before the court. For the purposes of this section, the term
‘person’ includes a witness, a party, a party’s attorney, or both.
“Sanctions
pursuant to this section shall not be imposed except on notice contained in a party’s
moving or responding papers; or on the court’s own motion, after notice and
opportunity to be heard. An order
imposing sanctions shall be in writing and shall recite in detail the conduct
or circumstances justifying the order.”
As
with the judgment of contempt, sanctions were imposed “for [Pori’s] failure to
comply with a lawful court order to be prepared to be sent out to trial on
April 16, 2012.” As we have explained,
no such order was made.
CONCLUSION AND DISPOSITION
The
judgment of contempt is void, and the imposition of sanctions pursuant to
section 177.5 is not supported by the record.
Pori may not be subjected to further proceedings for the same
conduct. (In re Baroldi (1987) 189 Cal.App.3d 101, 111, overruled in part
221..) We, therefore, need not and do
not consider Pori’s other challenges to the Order and Judgment of Contempt.
We
gave the parties notice that we might choose to act by issuing a peremptory
writ in the first instance. (
(1984) 36 Cal.3d 171, 177–180.) No
useful purpose would be served by issuance of an alternative writ and oral
argument.
Therefore,
let a peremptory writ of prohibition issue restraining respondent, the Superior
Court of Alameda County, from enforcing the April 16, 2012 Order and Judgment
of Contempt against Tim A. Pori. The
stay previously imposed shall remain in effect until the remittitur issues.
Before Marchiano, P.J., Margulies, J., and Dondero, J.
A mistrial was declared in the case in September 2011. Pori represented Wong during the first trial.
