Watson v. Block

• Decision Date: 13 December 1996
• Docket Number: No. 94-56346,94-56346
• Citation: 102 F.3d 433
• Parties: 96 Cal. Daily Op. Serv. 9011, 96 Daily Journal D.A.R. 14,930 Penelope WATSON, Petitioner-Appellant, v. Sherman BLOCK, Sheriff; Daniel E. Lungren, Attorney General for the State of California; Hon. William R. Pounders, Judge of the Superior Court of the State of California for the County of Los Angeles, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 433

102 F.3d 433

96 Cal. Daily Op. Serv. 9011, 96 Daily Journal

D.A.R. 14,930

Penelope WATSON, Petitioner-Appellant, v. Sherman BLOCK, Sheriff; Daniel E. Lungren, Attorney General for the State of California; Hon. William R. Pounders Judge of the Superior Court of the State of California for the County of Los Angeles, Respondents-Appellees.

No. 94-56346.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 11, 1995.

Decided Dec. 13, 1996.

Garrett J. Zelen, Los Angeles, CA, for petitioner-appellant.

Frederick R. Bennett, Assistant County Counsel, Los Angeles, CA, for respondents-appellees.

Appeal from the United States District Court for the Central District of California, D.C. No. CV-94-6012-RAG; Richard A. Gadbois, District Judge, Presiding.

Before: BROWNING, NORRIS and REINHARDT, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Attorney Penelope Watson appeals the denial of her habeas petition claiming that her due process rights were violated when she was held in summary contempt. We reverse.

Ms. Watson represented William Mora in a multi-defendant special circumstances murder trial that began on March 28, 1994, in Los Angeles Superior Court, Judge William R. Pounders presiding. On April 7, an attorney for one of Mora's codefendants repeatedly raised in open court the issue of the punishment the defendants would be eligible for should they be convicted. Calling counsel to the bench, Judge Pounders stated categorically that possible punishment "is not a subject open to discussion. It should not be explored." Ms. Watson remained at the defense table during this side bar; her cocounsel, Joseph Albert Gutierrez, was present on behalf of their client Mora. ¹

On April 20, the attorney for a different codefendant again raised the issue of punishment. In response, Judge Pounders stated in open court:

[T]he subject of sentencing of [the codefendant] is not part of the conversation. But more than that, it is prejudicial under [Cal.Code of Evidence, section] 352. It's not a subject the jury is entitled to discuss.

This is not a death penalty case, so penalties are not something to discuss, and a penalty given to a juvenile involved in the same activity is something that would only serve to confuse.

On April 21, Ms. Watson's cocounsel Mr. Gutierrez asked a series of seven questions in which he stated that the defendants were "looking at life in prison." At side bar, which Ms. Watson did not attend, Judge Pounders told her cocounsel Mr. Gutierrez,

You had an ulterior motive in bringing out the amount of time [the witness] spent [in prison], and I think it's to show the contrast between what he got and what your clients may be facing.... I'm saying that's the last time I want to hear anything about a sentence.... You've covered it. Do not cover it again.... I can only believe that you're doing it to persuade the jury about how serious the charges are and that's not something they're permitted to discuss, and you know that and we've already talked about it.

Although Ms. Watson was in the courtroom at the time of Mr. Gutierrez's examination and the bench conference it triggered, she remained at counsel table rather than going to the bench. Following the side bar, Mr. Gutierrez apologized in open court:

MR. GUTIERREZ: Judge, I would just like the record to reflect that I apologize to this court for asking the question as to or informing this witness through my question that he served six months in jail and three years probation. It was my understanding that we couldn't go into the fact that he was convicted of 245, but I thought that it would be appropriate to bring out the time that he was sentenced and the probation that he had, and I obviously defied the Court Order, and I misunderstood the Court and I apologize.

In accepting this apology, Judge Pounders stated in open court:

It's simply that punishment is not an issue for this jury to decide, and the more that counsel want to harp on this issue of punishment, the more inappropriate it becomes.

On June 21, while questioning her client on redirect examination, Ms. Watson asked "You've been in custody for four years?" After a question regarding the conditions of the incarceration, Ms. Watson asked, "And during that four years, you were facing the death penalty until just the day before we started." Judge Pounders sustained an objection and stated "We've already talked about this at side bar. Follow the court's admonitions." Immediately after this admonition to "follow the court's admonitions," Ms. Watson's next question of her client was, "You're facing life without the possibility of parole?"

Another side bar followed immediately. Judge Pounders asked Ms. Watson why he should not hold her in contempt for covering potential penalties after he had "at least twice ordered counsel not to cover [it]." She explained that she was attempting to elicit from her client testimony that she thought was relevant. The complete colloquy was as follows:

THE COURT: I would like to know why I should not hold you in contempt of court for having covered something that I've at least twice ordered counsel not to cover, which is the potential penalty faced by these defendants since it is not an issue for a jury determination.

MS. WATSON: I think it goes to his state of mind as to why he would take this risk at this point in revealing that he was the person who called 911....

THE COURT: Is there any reason why you didn't want to raise this at side bar without the presence of the jury, recognizing that I have at least twice admonished counsel not to cover it? And especially your cocounsel Mr. Gutierrez, when he's gone into it, I admonished him not to do it further. Is there any reason why we couldn't discuss this before you brought it up?

MS. WATSON: No. I wasn't at side bar with any of that involving Mr. Gutierrez, and I honestly thought it's the most relevant thing in the world to why he would say he called 911.

THE COURT: You're in violation of a court order. You do not think that's relevant to anything?

MS. WATSON: I didn't think it was.

At that point, Judge Pounders found Ms. Watson in contempt for violating section 1209(a)(5) of the California Code of Civil Procedure. ² Judge Pounders stated:

I do find you in contempt of court. A very clear violation of contempt of court in the direct hearing and presence of the court, and the appropriate punishment will have to be determined at the conclusion of this trial since I can't incarcerate you during the trial.

I want everyone to understand when I issue an order, I plan to follow it up, and if you have any doubt about that, you're taking your own risk.

The next day, Judge Pounders issued a written order of contempt, finding that "the questions asked by contemnor ... in the presence of the jury had as [their] sole purpose improperly advising the jury of the potential penalty for the defendants in violation of the court Order" and that the "contemnor was aware of the Order." Order of Contempt, dated June 22, 1994, at 8. The order imposed a two-day jail sentence to be served after trial.

On July 8, two days after Mora's case was submitted to the jury, Judge Pounders gave Ms. Watson a further opportunity to explain her conduct. She again explained that she believed her conduct was justified because the testimony she was attempting to elicit was relevant. According to her counsel:

Miss Watson is not trying to say what she did was correct, but I want to show you what happened by way of implication of the thought process that was going on with her at the time.

Yes, Mr. Gutierrez [discussed penalties] and there was an apology.... Miss Watson certainly was aware of that happening.

What was being gone into at that moment by Miss Watson in her mind was a completely different type of issue. Not an issue of the penalty, not trying to get into the idea of getting before the jury what the possible punishment could be for the sympathy or prejudice value that it could have, but rather to understand why someone who potentially could face this-this terrible penalty would come forward with a 911 call ... and it had to do with the motive and what was going on, the state of mind of the witness, meaning the defendant at that time in regard to the 911 call....

... [S]he believed there was a totally different set of circumstances that was not covered by the court's previous rulings or admonitions.

...

... Miss Watson was not in any way trying to be contemptuous of the court, ignoring of the court or disobeying of the court. In her mind, ... she saw a totally different justification for bringing this forward, and she was not attempting in any way to try and get around the court's order or to disregard the court's order.

Judge Pounders found this explanation unconvincing, believing instead that Ms. Watson was trying to make the point to the jury that the murder victim, a gang member, was not worth a life sentence for her client. Judge Pounders stated:

Now, assuming, but I don't b[u]y the idea that she did not know I had issued an order before saying don't go into this, [the admonitions on June 21 were] a sufficient signal to anyone of reasonable intelligence, and I know her to be beyond that ... to know that I've said don't do something. If she doesn't know what it is I've said don't do, the point is to go to side bar [for clarification].

She didn't do that. She goes right into the next point, and again a leading question ... she says, "You're facing life without possibility of parole" ...

...

The only conclusion I can draw from that is her idea was it's more important to me as an attorney to see that this information goes to the jury.... I think she has permanently prejudiced this jury in favor of her client ... They know the penalty he's facing ... and they know that the person that was killed isn't worth that penalty, and so they are not going to find him guilty of the major charge.

...

... [G]enerally peop...