Hawk v. Superior Court

Decision Date27 September 1974
Docket NumberCr. 11545
CourtCalifornia Court of Appeals Court of Appeals
PartiesRichard E. HAWK, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SOLAND, Respondent; PEOPLE of the State of California, Real Party in Interest. In re Richard E. Hawk on habeas corpus. Civ. 32716 and

Charles C. Marson, Joseph Remcho, Peter E. Sheehan, Deborah Hinkel, American Civil Liberties Union Foundation of Northern California, Inc., San Francvisco, for petitioner.

Evelle J. Younger, Atty. Gen., State of California, Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Arnold O. Overoye, Marjory Winston Parker, Deputy Attys. Gen., Sacramento, for respondent and real party in interest.

KANE, Associate Justice.

In these proceedings by way of habeas corpus and certiorari, petitioner, an attorney, seeks to annul orders of the Solano County Superior Court adjudging him in direct contempt and imposing sentences totaling 54 days in jail and fines totaling $3,200. 1

The conduct found to be contemptuous occurred in the immediate view and presence of the court between August 14, 1972, and November 10, 1972, during the period petitioner was representing a defendant in a criminal case wherein the defendant was charged with 25 counts of murder. 2

The power of the court to punish summarily for a direct contempt is contained in Code of Civil Procedure, section 1211, which provides: 'When a contempt is committed in the immediate view and presence of the court . . . it may be punished summarily; for which an order must be made, reciting the facts as occurring in such immediate view and presence, adjuding that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed.' 3 The orders, which recite facts pertinent to acts committed in the immediate view and presence of the court, establish the jurisdiction of the court to issue the order (In re Grossman (1972) 24 Cal.App.3d 624, 631, 101 Cal.Rptr. 176). Jurisdiction having been established, our responsibility on review of a contempt order "is merely to ascertain whether there was sufficient evidence before the trial court to sustain the judgment and order. The power to weigh the evidence rests with the trial court.' (Citations.)' (In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 127, 514 P.2d 1201, 1207.)

We have examined the record with respect to each instance of conduct found to be contemptuous in light of the principles enunciated in the Buckley case and have reached the following conclusions: 4

Contempt No. 1: Advising his client to disobey a lawful order of the court.

The judgment of contempt of court issued nunc pro tunc August 14, 1972, states that upon motion of the People an order was duly made directing that the defendant provide exemplars of his handwriting to the People, that contemnor acquired knowledge of the order by reason of the fact that the order was audibly pronounced in open court in the presence of the contemnor and his client, and that said contemnor 'wilfully stated to the Court that he had instructed and was instructing his client, JUAN VELLEJO CORONA, not to provide the handwriting exemplars therefore (sic) ordered by the Court, and the said JUAN VALLEJO CORONA did in fact refuse to provide the same;' 5

A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling (Code of Professional Responsibility of the American Bar Association (hereafter CPR of ABA), DR 7--106(A)). 6 Petitioner had been adjudged in contempt for advising his client to disobey a lawful order of the court on July 17, 1972, and, having been denied appellate relief, had served a 48-hour term of imprisonment (see fn. 4).

The order compelling the defendant to produce handwriting exemplars was a lawful order (Gilbert v. California (1967) 388 U.S. 263, 266--267, 87 S.Ct. 1951, 18 L.Ed.2d 1178; United States v. Mara (1973) 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99; People v. Hess (1970) 10 Cal.App.3d 1071, 1076--1077, 90 Cal.Rptr. 268; People v. Paine (1973) 33 Cal.App.3d 1048, 1049, 109 Cal.Rptr. 496; Witkin, Cal.Evidence (2d ed.) 1972 Supp. pp. 441--442). An attorney who advises his client to violate a lawful order of the court may be held in contempt (Ex parte Vance (1891) 88 Cal. 281, 282--283, 26 P. 118; McFarland v. Superior Court (1924) 194 Cal. 407, 423, 228 P. 1033). 7

A court has power to compel obedience to its orders (Code Civ.Proc. §§ 128, subd. 4, 177, subd. 2), and 'To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto;' (Code Civ.Proc. § 128, subd. 5). The order adjudging petitioner in contempt states that petitioner wilfully stated to the court that he had instructed and was instructing his client not to provide the handwriting exemplars ordered by the court. Petitioner's conduct in advising his client to violate a lawful order of the court constituted a violation of petitioner's duty to 'maintain the respect due to the courts of justice and judicial officers' (Bus. & Prof.Code, § 6068, subd. (b)), as well as an unlawful interference with the

proceedings of the court (Code Civ.Proc., § 1209, subd. 3, 8). Contempt No. 2: Misconduct during voir dire examination of the jurors.

The judgment of contempt of court entered nunc pro tunc September 15, 1972, states that 'during the examination of . . . a prospective juror . . . and after repeated admonishment by the Court not to attempt to influence prospective jurors by the interjection of personal opinions or prejudicial comments into the jury selection proceedings, RICHARD E. HAWK, attorney for the defendant and contemner herein, did ask the following question: 'Now, he (the prosecutor) made some reference to a psychologist being here, and this man sitting here, his name is Harvey Ross from Los Angeles. He is a psychologist. Do you have any objection to someone coming up from Los Angeles for a couple of days free of charge to Mr. Corona to help Mr. Corona select a jury because he believes Mr. Corona is innocent?"

The court found that the contemnor's references to the appearance of the psychologist at no cost to the defendant and to the psychologist's belief in the defendant's innocence constituted improper and prejudicial attempts to influence prospective jurors in violation of the professional ethics of contemnor as an attorney at law, and an improper interference with the administration of justice and the trial of the case.

It is unprofessional conduct for a lawyer knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury, to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury (Standard 7.5(b) of the American Bar Association Standards Relating to the Defense Function (hereafter ABA Standards-Defense Function)). 8

Petitioner contends, however, that 'no showing was made that there had been any prior order not to make The statement in question, or even any prior order cautioning Mr. Hawk about potentially improper comment.' 9 (Emphasis added.) Petitioner's contention cannot be sustained. The People have provided us with a copy of the court's minute order of September 13, 1972, entered two days before the contempt, which reveals that on that date in chambers the court admonished Mr. Hawk about certain voir dire of the prospective jurors and warned him of the possibility of contempt if he persisted along those lines. 10

An attorney should not assert his Personal belief in his client's innocence or the justice of his cause (1 Witkin, Cal.Procedure (2d ed.), Attorneys, § 239, p. 250). This rule has been codified (Rule DR 7--106(C)(4), CPR of ABA). Counsel who asserts the personal belief of Another in his client's innocence circumvents the rule.

A court has power to restrict examination that is designed for partisan advantage rather than for the elimination of an unqualified juror (People v. Crowe (1973) 8 Cal.3d 815, 828, 106 Cal.Rptr. 369, 506 P.2d 193; People v. Semone (1934) 140 Cal.App. 318, 326, 35 P.2d 379). Petitioner's persistence in interjecting prejudicial comments into the voir dire examination, after having been warned by the court to refrain from so doing, constituted a contempt of the authority of the court (Code Civ.Proc. § 1209, subd. 5). 11

Contempt No. 3: Misconduct during voir dire of the jury.

The judgment of contempt of court issued nunc pro tunc September 18, 1972, states that contemnor on numerous occasions, while examining prospective jurors, stated and insinuated in certain questions asked by him that the prosecution intended to introduce into evidence photographs of a gruesome or revolting nature depicting deceased human bodies or portions thereof, which photographs contemnor did further state and insinuate were not necessary to be introduced in evidence; that he, contemnor, would attempt to keep such photographs from being admitted into evidence; that the court had repeatedly admonished contemnor that such statements and insinuations were improper; yet on September 18, 1972, during the examination of a prospective juror, contemnor asked the following question: 'Now, understanding what our position is, do you see any reason in the world why you should look at all these gory photographs?'

The court found that the contemnor's reference to the necessity of such evidence and its character constituted improper and prejudicial...

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