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People v. Ward

May 20, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
EDWARD JAMES WARD, DEFENDANT;
JOOHAN SONG, OBJECTOR AND APPELLANT.



APPEAL from an order of the Superior Court of Los Angeles County, Patrick T. Madden, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. 7LG00460).

The opinion of the court was delivered by: Jackson, J.

CERTIFIED FOR PUBLICATION

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 ...


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