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The People v. Ronald Whitus

August 1, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RONALD WHITUS, DEFENDANT AND APPELLANT. DARRYL GENIS, OBJECTOR AND APPELLANT



The opinion of the court was delivered by: Crandall, Acting P. J.

CERTIFIED FOR PUBLICATION IN OFFICIAL REPORTS

DECISION ON APPEAL

I. Introduction and Summary

This appeal involves a $750 sanction issued by the trial court under Code of Civil Procedure section 177.5 against appellant Darryl Genis (Appellant), for failure to appear at several misdemeanor trial readiness conferences. He contends that sanctions against him are unwarranted because another attorney appeared on his behalf at these conferences, because there was no valid court order requiring him to appear at any of the conferences, and because the trial court is prejudiced against him.

Since Appellant neglected to lodge key transcripts as part of the appellate record, we do not know the full sequence of events leading to the issuance of sanctions. This alone is fatal to his appeal. Additionally, we conclude that the trial court did not abuse its discretion.

The trial judge was justifiably frustrated by Appellant's failure to appear personally at several readiness conferences, after having been ordered to do so, and after having been granted multiple continuances over a period of almost one year. The trial court's sanction order complies with the formal and substantive requirements of Code of Civil Procedure section 177.5: it is in writing, recites the circumstances of the offending conduct, and provides advance notice of potential sanctions, as well as an opportunity to be heard before sanctions were issued.

The court will also address Appellant's oral advocacy. The foundation of the rule of law is dependent upon lawyers treating judicial officers and each other with respect, dignity and courtesy. The need for civility and dignity is critically important, especially today, with the legal profession and the judicial branch of government under cynical attack from various quarters.

Consisting of repeated tirades and impertinence, and with a tone wholly condescending and accusatory, Appellant's conduct is a serious and significant departure from acceptable appellate practice, or for that matter, practice in any court of law. If left unaddressed, this sort of advocacy demeans the profession, lowers public respect, and conveys the impression that it is acceptable and effective.

We will not condone this behavior. Instead of issuing additional monetary sanctions, however, we will refer this opinion to the California State Bar for consideration of discipline. Although we do so reluctantly, the tone, tenor and content of Appellant's appellate argument demand an appropriate response.

II. Procedural History and Statement of Facts

On May 25, 2010, Ronald John Whitus was charged in a criminal complaint with driving, three days earlier, under the influence of alcohol or drugs. Whitus retained Appellant to represent him.

At a trial setting conference on June 28, 2010, Appellant entered a not guilty plea on behalf of Whitus and waived time for trial. Another trial setting conference was scheduled for July 28, 2010.

At the second trial setting conference on July 28, 2010, Appellant again waived time for trial and a third trial setting conference was scheduled for August 18, 2010.

At the third trial setting conference, on August 18, 2010, Appellant again waived time for trial, at which time a trial date of October 12, 2010, and a readiness conference date of October 7, 2010, were assigned.

On the date of the first trial October 12, 2010, Appellant personally appeared. Based upon a finding of good cause, the trial court continued the readiness conference and trial dates until February 3 and 7, 2011, respectively.

At the second readiness conference on February 3, 2011, Appellant personally appeared and moved to continue the trial. Based upon a finding of good cause, his oral motion to continue the trial was granted. A third readiness conference was set for April 7, 2011, and a third trial date of April 18, 2011 was selected.

At the third readiness conference on April 7, 2011, Appellant did not personally appear; instead, the appearance was handled by Attorney Midori Feldman. Due to Appellant's failure to appear, the trial court ordered him to be personally present at a fourth readiness conference scheduled for April 14, 2011. The April 18, 2011, trial date was confirmed.

At the fourth readiness conference on April 14, 2011, Appellant again did not personally appear. As before, Attorney Midori Feldman made the appearance. After noting that it had received an e-mail from Appellant regarding his non-appearance, the trial court ordered him to appear the following day.

At the fifth readiness conference on April 15, 2011, Appellant again did not personally appear. Instead, the appearance was handled by Attorney George O'Neill.

Although the case was resolved through Defendant Whitus' plea of no contest, the trial court put on the record its concerns about the manner in which the case had been handled by Appellant. An electronic copy of these proceedings was provided to Mr. O'Neill for transmission to Appellant.

On the scheduled trial date of April 18, 2011, in Appellant's presence, the Court set the matter for an Order to Show Cause ("OSC") hearing regarding sanctions against him.

On June 21, 2011, the trial court held an OSC hearing, after which it issued a sanction order against Appellant in the amount of $750. The trial court's written order provides, in pertinent part, as follows:

"Pursuant to the notice given on the court's own motion in open court on April 18, 2011, and after opportunity to be heard, the court finds that Attorney Darryl Genis has violated a lawful order, to wit: he failed to attend readiness conferences on April 7th, 14th, and 15th, 2011, for trial scheduled for April 18, 2011. (San Luis Obispo County Rule of Court 10.08(1).)

The court finds Mr. Genis to have been without good cause or substantial justification.

Mr. Genis is ordered to pay a monetary sanction in the amount of $750 to the above-entitled court to be delivered directly to the clerk of this department on or before 4:30 p.m. on July 21, 2011 pursuant to Code of Civil Procedure section 177.5."

After some wrangling in the trial court over the adequacy of the notice of appeal, ...


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