Virata v. Super. Ct.

Filed 8/19/09 Virata v. Super. Ct. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Attorney Jo Ann Virata, who represented a defendant at trial on criminal charges, was sanctioned by the judge for violating a court order when she presented evidence that the judge had excluded pursuant to Evidence Code section 352. The violation occurred about an hour after the judge had chastised Virata for disobeying another court order. At the defendants request, the judge appointed a new attorney for him on the ground that Virata had provided ineffective assistance of counsel, and then granted the defendants motion for a mistrial on the same ground.

By way of a petition for writ of mandate, Virata challenges the $1,000 sanction imposed against her for violating the court order. Among other things, she asserts that the statute upon which the judge relied to impose the sanction (Code Civ. Proc.,  177.5) is not applicable to criminal trials; that, in any event, she did not violate the judges in limine order; and that the sanction was predicated upon the courts animus against [her].

Having issued an alternative writ to review the order, we now reject Viratas claims of error. Thus, we shall deny her petition for writ of mandate.

FACTUAL AND PROCEDURAL BACKGROUND

Jo Ann Virata is an Assistant Public Defender for the County of Sacramento, who represented a defendant on charges he inflicted corporal injury on his cohabitant girlfriend, S.F., and physically abused her 15-year-old daughter, T.H. It was alleged that the defendant got into a heated argument with S.F., then grabbed S.F. by the throat and punched her twice in the head, and hit T.H. in the face when she tried to help her mother. The defendant claimed he acted in self-defense.

Superior Court Judge Roland Candee presided over the trial.

Anticipating the defendant would seek to bolster his defense by claiming S.F. was the aggressor in other violent incidents, the prosecutor moved in limine to exclude evidence that, ten years earlier, S.F. slapped her former husband.

Denying the motion, Judge Candee ruled Virata could question S.F. about the incident and could introduce other evidence about it if S.F. denies that she physically slapped her husband in 98 without him being physical with her first[.]

The prosecutor also moved in limine to exclude any reference to an incident in 2002 when S.F. struck the defendants daughter. The prosecutor argued this evidence should be excluded pursuant to Evidence Code section 352; otherwise, it would create a trial within the trial because the facts [of the incident] are certainly disputed, in that S.F. said she struck defendants daughter only in self-defense.[1]

Virata countered that the 2002 incident was admissible under Evidence Code section 1103 to show [S.F.s] propensity to violence, which would be relevant in this self-defense case, and would . . . corroborate our position that she was the aggressor in this particular incident involving [the defendant]. Virata also argued that the incident was relevant under Evidence Code section 1102, as tending to show S.F.s reputation for violence, and that its introduction would not cause a trial within a trial because it is not an uncorroborated incident where there were no witnesses.

Judge Candee ruled: The Court will order no questions to be asked about that 2002 incident. The Court is doing that under [an Evidence Code section] 352 analysis. [] It appears to the Court that this is nothing more than to take a he said, she said case on this one and turn it into a bunch of other he said, she said cases and is not going to be at all helpful to this jury and, in fact, its going to be absolutely counterhelpful. The Court goes and weighs the potential probative value against the confusion of the issues, the ambiguities that will be interjected in this case, and the delay in trying to, again, have a trial within a trial despite the defenses position that this is not. So the Court will order counsel not to question about the 2002 incident.

Nevertheless, while the defendant was testifying about his personal knowledge of S.F.s violent behavior, Virata elicited that the defendant witnessed S.F. hit his daughter in 2002.

The prosecutor immediately asked to approach the bench and, in a sidebar conference, objected that Viratas questions eliciting testimony about the 2002 incident had violated the courts in limine order. After jurors were excluded from the courtroom, the prosecutor noted he had earlier objected, on the ground of vagueness, when Virata first asked the defendant, Have you known [S.F.] to be violent? The court had allowed the question, albeit reframing it as whether the defendant had personally known S.F. to be violent. The defendant then testified that S.F. had never been violent toward him, but he answered [y]es when asked, Have you witnessed her being violent with other people? Virata asked, [w]ho? And the defendant replied, My daughter.

The prosecutor explained that he raised the vagueness objection because he saw where [Virata] was going, and the prosecutor had no faith in her following the Courts orders at all at this point.[2] The prosecutor pointed out that the defendant was present in court when the judge ordered there be no questions and answers about the 2002 incident involving the defendants daughter. Nevertheless, by asking the open-ended question whether the defendant had witnessed S.F. being violent with other people, Virata took him down that road and allowed the jury to hear the defendants answer that S.F. had been violent with his daughter--testimony that violated the courts in limine order.

Virata explained that she believed the courts in limine order prohibiting questioning about the 2002 incident was limited to S.F.s testimony, and that asking the defendant about the incident would not violate the order.

Judge Candee responded: It is not in any way, shape or form that the Court accepts the representation that somehow the defendant testifying nullifies or changes the in limine rulings . . . . [T]hey are binding, counsel are completely obliged to conform their conduct to the ruling that was there, to not ask questions that are improper and to not elicit responses that are improper.

After a recess, Judge Candee gave Virata another opportunity to explain her conduct. She said her understanding was the theory of admissibility that the Court ruled against was [Evidence Code sections] 1103 and 1102, reputation opinion and character evidence, and she believed she could ask the defendant about the 2002 incident because his knowledge of [S.F.s] character for violence is relevant to his state of mind.

Judge Candee responded: The Court does not accept Counsels approach here, as it has been throughout the trial, on constantly recharacterizing what the Court has done and what counsel has done. [] [The issue is not] whether you can say from your standpoint you had a good faith belief that [the evidence] is relevant, Counsel. The whole point in [Evidence Code section] 352 weighing is you weigh that relevance, that probative value against the prejudicial impact, the concern about misleading the jury, the time for a trial within a trial, all those elements. [] So for Counsel to come in and say now . . . , Judge, it is relevant, therefore I get it to come in, I get to bring it in, absolutely flies completely in the face of what the Court does when it goes through those in limine rulings.

The following day, Judge Candee informed the defendant of his right to request the appointment of another attorney pursuant to People v. Marsden (1970) 2 Cal.3d 118. During the hearing on the issue, the judge said his review of the reporters transcript he had requested led him to believe that Virata may have provided inadequate representation by (1) failing to adequately investigate the case, (2) making willful mischaracterizations from [her] to the Court over things to mislead the Court, and (3) engaging in misconduct, one example of which was her violation of the courts in limine order regarding the 2002 incident.

When the defendant requested new counsel, Judge Candee granted the request, removed Virata from the case, and appointed another attorney to represent defendant. After discussing the matter with defendant, newly appointed counsel made a mistrial motion, which was granted.

Judge Candee then gave notice to Virata that (1) a hearing would be held to determine whether to impose sanctions under Code of Civil Procedure section 177.5 for violation of a lawful court order without good cause or substantial justification, and (2) the conduct at issue was her violation of the courts in limine ruling, which specifically ordered counsel not to question about the 2002 incident. (Further section references are to the Code of Civil Procedure unless otherwise specified.)

At the sanctions hearing, Viratas attorney, Assistant Public Defender Leonard K. Tauman, began by arguing that section 177.5 does not apply to criminal proceedings outside the context of violation of orders relating to scheduling and calendaring. According to Tauman, the statute did not apply because, in criminal cases, generally, Courts order in limine rulings all the time, they are various, and in my experience they are violated with some . . . frequency. Violation of a court order on in limines is essentially commonplace.[3]

Pointing out that whether other attorneys violate in limine motions is no defense to Viratas misconduct in doing so, Judge Candee observed that if Tauman was concerned about the propriety of using section 177.5 to impose sanctions for Viratas violation of the in limine order, then contempt of court could apply. Judge Candee noted he had intentionally chosen not to treat this as contempt of court, so as to not expose Virata to the possible punishment of five days in jail authorized for such contempt.

Saying he had no quarrel with the Court that it took an avenue of [section] 177.5, Tauman requested a continuance to prepare and decide how to proceed from this point forward. Judge Candee granted the request.

When the hearing was reconvened a week later, Tauman argued among other things Viratas violation, if there was a violation, was a function of advocacy and, thus, was not covered by the statute, which explicitly does not apply to advocacy of counsel before the court. ( 177.5.) Tauman also argued the questioning at issue was a reasonable interpretation of the in limine order, and it would be unfair to sanction Virata as part of [the judge] venting frustration that she had challenged the authority of the Court in a way that the Court found disrespectful[.] In addition, Tauman argued section 177.5 is limited to recouping unnecessary costs, and there were no such costs created by whatever action the Court points to in Ms. Viratas asking that question.

Referring to his experience as a lawyer in the military when he frequently defended military personnel accused of wrongdoing, and his over 16 years presiding over criminal trials as a judge in Sacramento County, Judge Candee rejected the defense position that he was simply venting frustration on Virata. After addressing each of Taumans arguments on behalf of Virata, Judge Candee found that Virata knew exactly what she was doing when she elicited evidence about the 2002 incident contrary to the courts in limine order; rather than come back to the Court and ask the Court to reconsider [its order], Virata violated the order without good cause or substantial justification, after [having been] warned about the contemptuous nature of such conduct just previously in the same case[.] Noting that the obligation to defend ones client zealously within the bounds of the law is absolutely not a license to disobey court orders, Judge Candee ordered Virata to pay a sanction of $1,000.

DISCUSSION

I

Section 177.5 of the Code of Civil Procedure states: 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 partys attorney, or both. [] Sanctions pursuant to this section shall not be imposed except on notice contained in a partys moving or responding papers; or on the courts 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.

In a cursory one-paragraph argument that fails to acknowledge contrary precedent, Virata claims Code of Civil Procedure section 177.5 does not apply to criminal trials. She is wrong.

It has long been recognized that section 177.5 is fully applicable to both criminal and civil matters. (People v.Tabb (1991) 228 Cal.App.3d 1300, 1310 (hereafter Tabb); accord, People v. Ward (2009) 173 Cal.App.4th 1518; 1530-1531; see People v.Muhammad (2003) 108 Cal.App.4th 313.) As Tabb explained in detail, the plain language of section 177.5 and its location in the statutes; the broad wording of the section; the recognition that a court is equally harmed by the failure of a public entitys representative (such as a prosecutor or public defender) to comply with court orders as by any privately retained counsels failure to do so; and the fact that the payment of sanctions is made to the county in which the court is situated (rather than to any opposing party), all point to the conclusion that criminal as well as civil proceedings should be covered by this law. (Id. at pp. 1307-1309.) Tabb also observed that legislative history of the enactment of section 177.5 reveals the understanding that it applies to criminal proceedings (id. at p. 1309), as reflected by the fact the Legislature enacted the statute over objections from two public agency representatives in the field of criminal law [the California District Attorneys Association and the State Public Defenders Office]. (Id. at p. 1310.)

The evident purpose of section 177.5 is to punish and deter violations of lawful court orders, and to compensate the judicial system for the cost of unnecessary hearings. (In re Woodham, supra, 95 Cal.App.4th at pp. 443-444; see also Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 499).

We must affirm a section 177.5 sanction order unless the trial court abused its discretion, i.e., the order exceeds the bounds of reason, all of the circumstances before it being considered (Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 498; accord, In re Woodham, supra, 95 Cal.App.4th at p. 443; Tabb, supra, 228 Cal.App.3d at p. 1311.) It is petitioners burden to establish abuse of discretion. (Trailmobile, Inc. v. Superior Court (1989) 210 Cal.App.3d 1451, 1455.) A showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

II

There is no merit in Viratas contention that her conduct constituted advocacy and thus was not covered by section 177.5.

[A]dvocacy is the act o[f] pleading, arguing, supporting or recommending a particular position or idea. (People v. Ward, supra, 173 Cal.App.4th at p. 1529.) Thus, counsel may not be sanctioned for advocating his clients position as forcefully as possible. However, when counsels pleas, arguments and recommendations have been rejected by the court, i.e., counsel received an adverse ruling[,] . . . preserv[ing the matter] for appeal, counsels subsequent violation of the courts order is no longer advocacy . . . . (Id. at p. 1530; see also Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1071 [115 L.Ed.2d 888, 921] [An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal]; Zal v. Steppe (9th Cir. 1992) 968 F.2d 924, 928.)

Here, Virata engaged in legitimate advocacy when she argued, quite forcefully, that the 2002 incident was admissible evidence relevant in this self-defense case because it would corroborate our position that [S.F.] was the aggressor in this particular incident involving [the defendant]. On the other hand, once the trial court had exercised its discretion pursuant to Evidence Code section 352 and ordered counsel not to elicit evidence regarding the 2002 incident, advocacy on the issue was over absent a request to revisit the matter (which did not occur in this case).

In sum, Viratas violation of the courts in limine order was not advocacy; it was conduct for which a monetary sanction could be imposed, as authorized by section 177.5.

Virata protests that the trial courts order was not clear, the court gave her every reason to believe that her questions did not run afoul [of] any court order, and advocacy will be inhibited if counsel must be on constant guard that questions may be interpreted in a fashion that will give rise to sanctions. As we will explain in Part III, post, Viratas spin on the courts order rings hollow. The ruling was plain and clear, ordering her not to question about the 2002 incident. Requiring counsel to abide by an unambiguous order does not affect legitimate advocacy in any conceivable manner.

III

We are not persuaded by Viratas efforts to convince us that she did not violate the in limine order or that she had good cause and substantial justification for asking the questions at issue in the sanctions order.

According to Virata, by overruling the prosecutors objection when she asked the defendant whether he had known S.F. to be violent, the court, in the words of Viratas appellate counsel, plowed the road for [Viratas] succeeding questions, which the court found to justify sanctions.

We reject Viratas claim that the court gave [her] a green light [to ask about the 2002 incident], then cited her for going through a red. Overruling the prosecutors objection was consistent only with the courts earlier in limine ruling that Virata could elicit testimony regarding a 1998 event when S.F. slapped her former husband.

Virata disagrees, based on the way the court phrased the question that the defendant was permitted to answer: Have you personally yourself known [S.F.] to be violent[?] According to Virata, because the defendant had not personally witnessed the 1998 event, the court must have known Viratas line of questioning was directed at the 2002 incident and intended to allow it. Absolutely not. The question, as framed by the court, recognized that S.F.s purported act of violence in 1998 was relevant to the claim of self-defense only if it was personally known to the defendant, not in the sense he had to have personally observed the act of violence, but that he at least had to have personally heard about it and was afraid of her. (People v. Tafoya (2007) 42 Cal.4th 147, 165 [evidence that a person was dangerous is relevant to a claim of self-defense only if defendant knew of [the persons] reputation for dangerousness and was afraid of him]; People v. Humphrey (1996) 13 Cal.4th 1073, 1094 [a perception of imminent harm may be based on a defendants knowledge concerning the victim, including the victims reputation for violence].)

By no stretch of the imagination can the courts ruling on the prosecutors objection be construed as impliedly opening the door to introduce evidence of the 2002 incident that the court had explicitly and firmly excluded.

Because no reasonable attorney would have so construed the courts ruling on the objection, Virata did not have good cause and substantial justification for eliciting evidence of the 2002 incident in violation of the earlier in limine order.

Contrary to Viratas claim, the in limine order barring her from presenting evidence of the 2002 incident was not subject to confusion and misunderstanding. The order was plain, simple, and left no wiggle room; after explaining his reasons for excluding the evidence pursuant to Evidence Code section 352, Judge Candee order[ed] counsel not to question about the 2002 incident.

Virata asserts that she reasonably believed she nonetheless could inquire into the 2002 incident because it was relevant to the defendants state of mind and, therefore, she had no obligation to re-open the in limine rulings because the evidence was offered upon a different theory of admissibility. However, the courts order prohibiting evidence of the 2002 incident was based not on relevancy but on the courts exercise of discretion to exclude it because of . . . the ambiguities that will be interjected in this case, and the delay in trying to, again, have a trial within a trial, i.e., its introduction would necessitate undue consumption of time and pose an undue danger of confusing the issues and misleading the jury. (Evid. Code,  352.) Again, we observe, no reasonable attorney would have thought that inquiring about the 2002 incident would not violate the courts in limine order.

Substantial evidence supports Judge Candees finding that Virata knowingly and deliberately violated the in limine order, i.e., that, in the judges words, Virata knew exactly what she was doing and violated the order without good cause or substantial justification, after [having been] warned about the contemptuous nature of such conduct just previously in the same case[.]

Simply stated, if Virata believed Judge Candee was wrong when he exercised discretion under Evidence Code section 352 to exclude evidence of the 2002 incident, she was not entitled to violate the order. Her remedy was to file a writ petition and seek a stay of the proceeding, or to wait until the judgment and then appeal if her client was convicted.

IV

Virata next contends Judge Candee erred in finding her violation of the in limine order was particularly egregious in light of the Court having previously, in the same case, experienced Ms. Virata directly violating a different lawful Court order without any good cause or substantial justification resulting in the Court having to put on the record, outside the presence of the jury, a warning to Ms. Virata that the Court is seriously considering imposing sanctions on counsel, something that I havent done in the 16 and a half years that I have been a judge, to impose sanctions on counsel for directly disobeying the Courts ruling over matters.

Virata acknowledges that, prior to the conduct for which she was sanctioned, Judge Candee had twice admonished her for violating other orders of the court. However, the record shows he cited only one of those incidents as a basis for finding that the subsequent, sanctioned conduct was particularly egregious. Thus, we examine only the one earlier incident to which the judge referred.

Judge Candee ruled in limine that Virata could impeach S.F. with her admission that she had stolen a coin collection from the defendants safe. However, because it was disputed whether she took other items, Judge Candee cited Evidence Code section 352 and limited the impeachment evidence to the coin collection only. Before Judge Candees order, Virata had argued that, since the judge would allow evidence about the stolen coin collection, I dont see the harm in inquiring as to whether or not she took anything else out of the safe that she was not entitled to take. Thus, she protested the order and urged the court not to limit the evidence to the coin collection. Responding that he had ruled on the issue, Judge Candee moved on to another in limine motion.

During the Peoples case-in-chief, S.F. admitted that she had taken a coin collection from the defendants safe and had turned it over to law enforcement after she was accused of the theft. Later, while the defendant was on the stand and had testified he opened his safe and found it empty, Virata asked: And previous to [your] opening up the safe, was there anything in there? The prosecutor objected and the jury was asked to leave the courtroom. Expressing the view that Viratas question to the defendant was directly in contravention to [the in limine order], Judge Candee sustained the prosecutors objection and direct[ed] that there be no further inquiry over it.

When the jury returned, Virata asked the following questions, and the defendant gave the following answers: Q. . . . So . . . you had a coin collection? [] A. Yes. [] Q. And you had that coin collection in the safe? [] A. Thats correct. [] Q. And at some point you determined that it was not in the safe? [] A. Yes. [] Q. When you realized it wasnt in the safe, what did you do? At this point, the prosecutor made a relevance objection. Outside the presence of jurors, Judge Candee chastised Virata for doing what he had ordered [her] not to do, which was to inquire over it. When the judge said he considered that contemptuous behavior, Virata explained that she thought her inquiry about the coin collection was faithful with the in limine ruling. Reviewing the language of his ruling sustaining the prosecutors objection, Judge Candee reiterated that he had directed there be no further inquiry over it, by which he meant, this whole line of questioning. Thus, he concluded, by asking follow up questions about the coin collection, Virata violated that order sustaining the prosecutors objection (even though she did not violate the earlier in limine order). Judge Candee reconfirm[ed] his order and had the jury return to the courtroom. As Viratas questioning of the defendant continued, the prosecutor objected on the grounds of [l]eading and relevance to Viratas inquiry: But you never quite trusted [S.F.] after that? Judge Candee sustained the objection, and Virata responded: Your Honor, at this time we would request -- the Court and counsel [are] muzzling my client at this point. He is here because he has a story to tell. He wants the jury to consider what he has to say. Judge Candee directed Virata to ask her next question.

Virata argues that this alleged violation [of a court order] is bewildering. The courts in limine ruling permitted questioning about [S.F.s] theft of [the] coin collection, and [Viratas] questions were entirely appropriate.

Unlike Viratas later, knowing violation of the in limine order regarding the 2002 incident, we can understand why she believed that her inquiry about the coin collection did not violate the courts ruling on the prosecutors objection. It is true that Judge Candee direct[ed] that there be no further inquiry over it, which necessarily meant Viratas earlier, open-ended question was there anything in the safe before the defendant found it empty. However, reasonable counsel could have interpreted this as a direction to limit further inquiry to the coin collection, rather than to cut off questioning on the subject all together, thus leaving unanswered by the defendant whether his coin collection was taken from the safe. For this reason, the record does not support Judge Candees conclusion that Viratas follow-up questioning was contemptuous behavior.

However, the fact remains Judge Candee had told Virata that he was seriously considering imposing sanctions if she violated court orders, and he further expressed the view that he had absolutely no confidence now that [Virata] is following the Courts instructions.

Thus, Virata was on notice that Judge Candee was running a tight ship and that he would punish any further conduct by her that Judge Candee perceived to violate a court order. Yet, around one hour later, Virata knowingly violated the in limine order excluding any questioning about the 2002 incident involving defendants daughter. Under the circumstances, we cannot quarrel with Judge Candees description of the violation as particularly egregious in light of his earlier warning.

V

Virata contends that Judge Candee violated her right to due process, her right to confront the evidence against her, and her right to counsel, by failing to provide adequate notice of the circumstances the court intended to consider in deciding whether to impose sanctions, and in what amount. We disagree.

Section 177.5 provides that sanctions shall not be imposed except on notice contained in a partys moving or responding papers; or on the courts own motion, after notice and opportunity to be heard.

[T]he reason for the notice requirement is to advise the responding party that the imposition of sanctions is being considered, and to give the party an opportunity [to] prepare for the hearing. (Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 1081.) Adequate notice and an opportunity to be heard prior to the imposition of sanctions are [also] mandated . . . by the due process clauses of both the federal and state Constitutions. [Citations.] (Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 976.)

Judge Candees notice to Virata provided her with a detailed description of the conduct that he considered deserving of monetary sanctions: On September 4, 2008, the Deputy District Attorney moved to exclude evidence of a 2002 incident in which the victim was alleged to have struck the defendants daughter under Evidence Code section 352. You argued that the evidence was relevant to defendants claim of self-defense and admissible under Evidence Code sections 1103 and 1102. You also argued that admitting the evidence would not cause a trial within a trial. In support of this argument, you specifically mentioned that the incident was not only corroborated by the defendants daughter, but also by defendant himself. After hearing the arguments of counsel, the Court granted the Peoples motion to exclude the evidence under Evidence Code section 352. The Court specifically ordered counsel not to question about the 2002 incident. [] On September 9, 2008, you violated the Courts order to exclude this evidence and not to question about this incident. You asked defendant if he had ever witnessed the alleged victim being violent with other people and with whom she had been violent. Defendant answered that the victim had been violent towards his daughter, which is the incident as to which all evidence was excluded. When you were asked to explain your reasons for violating the Courts order, you did not deny that you intended to elicit this response from the defendant. Rather, you suggested that the Courts order did not apply if defendant testified. There was no such limitation on the Courts order.

This description adequately placed Virata on notice that the court was considering imposing sanctions based on her violation of the in limine order not to question about the 2002 incident.

Virata asserts, however, the notice was deficient because it did not alert her to other circumstances the court intended to consider in deciding whether to impose sanctions, and in what amount. She identifies those circumstances as, she had previously violated the orders of the court; she had her counsel argue that violations of in limine orders are essentially commonplace; and she failed to apologize to the court.

Virata cites no authority, and we have found none, that requires the court to give notice of every fact it might consider in deciding whether to impose sanctions and, if so, in what amount. Indeed, the court would have had to be clairvoyant in order to give notice of circumstances that did not arise until the sanctions hearing, i.e., that Viratas counsel would argue a sanction was not justified because violations of in limine orders are essentially commonplace, and that Virata would not apologize for her misconduct.

The notice given by Judge Candee satisfied the requirement of section 177.5, and Virata was provided the opportunity to present a defense against the imposition of sanctions. In fact, she arrived at the hearing represented by counsel, who presented a spirited, yet unsuccessful, defense.

VI

Saying that a series of events seemed to extremely agitate the trial court, Virata claims the sanctions in this case were not imposed as a consequence of the alleged violation of a court order; they were predicated upon the courts animus against counsel, and were thus an abuse of the courts discretion.

The record reveals that, on a number of occasions during the trial, Judge Candee directed Virata not to interrupt when he was explaining his rulings, not to persistently argue after a ruling was made, and not to mischaracterize the courts rulings.

Even Virata acknowledged that, in her words, I do tend to get a little excited and will interrupt the Court; I may have misspoken in addressing the court; and [I have] diarrhea of the mouth.

Judge Candee also criticized Virata for violating court orders.

When an attorney engages in improper behavior, such as ignoring the courts instructions or asking inappropriate questions, it is within a trial courts discretion to reprimand the attorney, even harshly, as the circumstances require. (People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; People v. Snow (2003) 30 Cal.4th 43, 78.) Thus, doing so does not demonstrate judicial bias. In fact, numerous and continuous rulings against a litigant, even [if] erroneous, form no ground for a charge of bias or prejudice. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 795-796; People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1231.) 

Contrary to Viratas suggestion on appeal, the fact Judge Candee informed the defendant that the judge felt Virata may not have been representing him effectively, and advised him of his right to obtain new appointed counsel (People v. Marsden, supra, 2 Cal.3d 118) did not demonstrate bias or personal animus. Indeed, a trial judge has the duty to protect a criminal defendants right to the effective assistance of counsel by taking appropriate action if the court concludes that counsel is not satisfying the defendants right to effective counsel. (See Holloway v. Arkansas (1978) 435 U.S. 475, 484 [55 L.Ed.2d 426, 434]; Glasser v. United States (1942) 315 U.S. 60, 71 [86 L.Ed. 680, 699].)

Virata perceives that the prosecutor also violated court orders but Judge Candee did not crack down on the prosecutor like he did on Virata--thus demonstrating bias against her. However, even if the prosecutor did err (a point that we do not decide), it cannot be said that he acted in a deliberate way, as Virata did when she violated the courts in limine order prohibiting any questioning regarding the incident in 2002. To the extent that Judge Candee did not react as strongly to any transgressions by the prosecutor, it does not demonstrate animus against Virata.

Having carefully reviewed the record, we conclude that Virata has failed to demonstrate that Judge Candee was biased against her or that the sanction order was motivated by personal animus, rather than being a legitimate and measured response to Viratas serious violation of the courts in limine order.

VII

In another challenge to the sanctions order, Virata contends Judge Candee abused his discretion by punishing her for the defense presented by her attorney at the sanctions hearing.

Explaining his decision to sanction Virata, Judge Candee began by saying he would go through and address the points that [her] Counsel [Tauman] made. First, he rejected Taumans claim that, in Judge Candees words, this is all just the Court venting frustration. Next, he responded to Taumans argument that the finding Virata provided ineffective assistance of counsel was unfounded. Judge Candee stated he had done legal research and consulted with numerous other judges before determining ineffective assistance of counsel had occurred. In any event, Judge Candee noted, he was not sanctioning [Virata] for ineffective assistance of counsel but for her willful violation of the in limine order. As to Taumans assertion that Viratas conduct was advocacy and thus not subject to section 177.5 sanctions, Judge Candee observed how tough it is to do a job as a defense counsel and how important it is for representation to be zealous within the bounds of the law; nevertheless, the judge said (quite correctly) that violating court orders is not advocacy. Later, Judge Candee rejected Taumans notion that Viratas violation of the in limine order should not be sanctioned because such violations are frequent and commonplace. Judge Candee also rejected Taumans position that section 177.5 sanctions are limited to recouping unnecessary costs, and there were no unnecessary costs created by whatever action the Court points to in Ms. Viratas asking that question [about whether the defendant was personally aware that S.F. had been violent toward others]; and found no merit in Taumans claim that the proceeding to sanction Virata was untimely. And Judge Candee went on to reject Taumans assertion that, in the judges words, somehow this is Mr. Kanes [the prosecutors] fault and he violated orders and that thats an excuse.

Virata takes the misguided position that Judge Candees pointed responses to her counsels arguments show that the judge punish[ed] Virata for those meritless arguments and increase[d] the fine because of the defense raised by counsel.

The fact that Judge Candee addressed each of the points raised by Viratas counsel (which is what a judge should do so a litigant and counsel will know that the judge did not ignore the litigants legal positions) cannot in any rational way be construed as punishing Virata for the arguments of her counsel rejected by the court.

As for the amount of the sanction, which was $500 less than that authorized by section 177.5, Judge Candee chose the amount based only on the violation, saying he was not looking to use anything [else] in figuring out the amount . . . beyond the absolute time when the violation occurred. There was no abuse of discretion.

VIII

Citing the instances during trial when Virata apologized to the court for her behavior, she argues Judge Candees reliance on her lack of an apology as a basis for the imposition of sanctions was wrong and an abuse of discretion. The argument misses the point.

Regardless of whether Virata apologized for her other conduct during the trial, the record supports Judge Candees finding that Virata never offer[ed] the slightest hint of an apology to the Court for her violation of the in limine order.

An apology may be a factor mitigating against the imposition of sanctions. (In re Buckley (1973) 10 Cal.3d 237, 257.) It follows that the lack of an apology where, as here, the record supports the finding that Virata deliberately violated the courts in limine order can constitute an aggravating factor calling for greater punishment. Thus, Judge Candee did not abuse his discretion in citing the lack of an apology as a factor justifying the imposition of sanctions in the amount of $1,000.

IX

Lastly, we reject Viratas contention that the imposition of $1000 sanctions exceeded the courts authority because section 177.5 is limited to compensatory sanctions and the trial court incurred no cost by the conduct that resulted in the imposition of sanctions. [T]he statutes scope was not intended to be limited to compensatory sanctions but instead was contemplated to authorize punitive sanctions as well. (In re Woodham, supra, 95 Cal.App.4th at p. 444.)

DISPOSITION

The petition for writ of mandate is denied.

The Clerk/Administrator of this court is directed to send a copy of this opinion to the State Bar of California. (Bus. & Prof. Code,  6086.7, subd. (a)(3).)

SCOTLAND , P. J.

We concur:

ROBIE , J.

CANTIL-SAKAUYE , J.

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[1] Evidence Code section 352 states the court may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

[2] The prosecutors reference to his lack of trust in Virata complying with court orders at this point apparently referred to the fact the court had earlier found that Virata violated a court order to cease questioning about a certain theft incident. The details of the earlier violation will be discussed more fully when we address Viratas claim that Judge Candee erred in concluding her violation of the in limine order was particularly egregious in light of the courts earlier finding that Virata had violated another court order.

[3] It is astonishing to us that an attorney would argue that a statute intended to deter the violation of court orders (In re Woodham (2001) 95 Cal.App.4th 438, 444) does not apply to in limine orders in criminal cases simply because, in that attorneys experience, such orders are commonly and frequently violated. If it is true that some attorneys routinely violate in limine orders in criminal cases, this is a reason to apply, not brush off, section 177.5.