Burke v. Superior Court CA1/3 filed
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Filed 4/5/11 Burke v. Superior Court CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION THREE EILEEN BURKE, Petitioner, v. A129122 THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, (San Francisco County Super. Ct. No. 2412118) Respondent. After a hearing, respondent Superior Court of San Francisco County issued an order holding petitioner Eileen Burke in contempt for violating the court s written order limiting her opening statement in a criminal case in which she represented the defendant. Burke was fined $1,000, and the matter was referred to the State Bar of California for further investigation. In her petition for writ relief,1 Burke raises various challenges to the contempt finding. We conclude Burke s contentions are not meritorious, and accordingly, deny the petition for writ relief. FACTUAL BACKGROUND A. Trial Proceeding Petitioner Eileen Burke, a criminal defense attorney, successfully represented a defendant in a criminal case in San Francisco County Superior Court. The defendant had 1 It is only by extraordinary writ certiorari or habeas corpus [citation] or prohibition [citation] that a contempt judgment may be reviewed. (Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 617.) 1 been charged with one count of attempted first degree murder of the complainant based on a March 23, 2009 incident at an intersection in San Francisco. About two weeks before trial, Burke disclosed the defense witness list of more than 20 people. The defense also disclosed a list of the specific past incidences of violence and threats by the complainant against defendant and others, the date of each incident, and the witnesses who would testify concerning each incident. The prosecutor objected to the late discovery. Over Burke s objection, the court granted the prosecutor s request for Evidence Code section 402 hearings to determine whether the testimony of the proposed defense witnesses should be presented to the jury on the issue of defendant s claim of self-defense. During the pretrial hearings, Burke made an offer of proof in which she sought to demonstrate an evidentiary basis on which to present the claim of self-defense to the jury. At the conclusion of the testimony of three defense witnesses, the court requested defense counsel to further clarify her offer of proof regarding the self-defense evidence to be presented to the jury. The court also asked both counsel to address the further issue of whether the defense should be prohibited from discussing the theory of self-defense during voir dire or in opening statement. After considering further written submissions and argument from counsel, the court found the defense had failed to make a sufficient showing to support an argument that the defendant was acting in self-defense at the time of the charged incident. Consequently, the court ruled it would foreclose the defendant from raising in voir dire or in opening statement, or cross-examination, any of the evidence that was included as part of the defense offer of proof. In response, Burke told the court it was inviting error right now. The court responded: Counsel, that may very well be. But I have not yet heard and you need to establish self-defense . . . by way of substantial evidence. . . . [¶] . . . [O]nce you establish it, and you may establish it through your client or through any other witness who was there at the time of the shooting, the alleged shooting, that there is self-defense. [¶] And at that point I will allow you the floodgates will open. And there will be not every one of those instances of conduct, but three or four of those, you pick 2 your best at that time. Or whatever you can show the Court is material and relevant. And then I ll allow that in. [¶] But, until I m convinced that [the defendant] was in imminent peril, then I m precluding you from getting to that issue. The court asked the prosecutor to prepare a written order embodying the court s ruling. The court s written order initially noted that after the hearings, it had determined that no substantial evidence supporting the self defense theory had yet been offered by the defendant, and the court had taken the offer of proof under submission. The court then made the following directives: IT IS HEREBY ORDERED that defense counsel and defense witnesses are precluded from and shall not present, offer, refer, discuss or suggest during voir dire, opening statement or witness examination anything related to any and all prior conduct in the form of opinion, evidence of reputation or specific instances of alleged violence and threats of violence by the complaining witness, . . . until defendant has established substantial evidence to support her self-defense theory. [¶] Defense counsel is not prohibited from raising the issue of self-defense during voir dire, opening statement or witness examination as long as said remarks and questions are confined to the incident alleged by the People on March 23, 2009 at the intersection of Cashmere Street and Dedman Court in San Francisco. [¶] If during trial, defense counsel believes defendant has made her burden of showing sufficient evidence, counsel may approach the court outside the presence of the jury for a determination. Should the court find that a sufficient showing has been met, appropriate specific instances of alleged violence, including threats, that comport with the rules of evidence and admissibility can be adduced and proffered to the jury. Burke did not make an opening statement at the beginning of trial, reserving time to give her statement at the start of the defense case. During his case in chief, the prosecutor presented the testimony of complaining witness s sister, who had been present at the attempted murder incident and when earlier threats were made and violent incidents had occurred. However, consistent with the court s pretrial order, Burke did not cross-examine the witness about any of the prior threats or violent incidents. 3 After the prosecution presented its case in chief, Burke gave her opening statement. She began by describing what [t]he evidence is going to show. After giving some background of the relationship among the complainant, her husband, and the defendant, Burke described the complainant s attempts to dissuade the defendant from seeing the complainant s husband, which included the following remarks: Ms. Burke: And even while pregnant, [the complainant] began, essentially, a campaign to terrorize [the defendant] and get her away from [the complainant s husband]. And with Miss M s help, she engaged in this campaign. And sometimes with others. [¶] . . . They terrorized [the defendant]. And it began with phone calls: You fucking bitch, I m going to kill you. How dare you sleep with my man, you whore. I ll kill your mother, your daughter Mr. Beckelman [Prosecutor]: Objection. Specific instances of conduct. Ms. Burke: These are threats on the phone call. The Court: Sustained. Ms. Burke: And this campaign lasted for months. And it wasn t just phone calls. Vandalism, attacks Mr. Beckelman: Objection. The Court: Sustained. Ms. Burke: I haven t talked about anything specific. The Court: Sustained. Ms. Burke: Shots at [the defendant]. Mr. Beckelman: Objection. The Court: Sustained. [¶] Ladies and gentlemen, disregard these remarks where the Court has sustained an objection by the People. Ms. Burke: And you will hear that [the defendant] never once went after [the complainant]. Never. Never threatened her. Never attacked her. Always tried to get away from her. . . . [¶] As these problems developed, [the defendant] sought help. She contacted her father-in-law. She contacted her mother-in-law. She said, Please help me. I m afraid. I m afraid of [the complainant] and what she might do to me. [¶] She asked 4 [the complainant s husband], Please stop her. Get ahold of her. I don t know what to do here. [¶] She was afraid to go to the police. [The complainant said,] I ll kill you if you make a police report. Mr. Beckelman: Specific instances. The Court: Sustained. [¶] All right. Ladies and Gentlemen, again the Court will instruct the jury to disregard Ms. Burke: Can we approach, please. The Court: any reference to any specific conduct in this matter. Carry on. Ms. Burke: Can we approach, please, at sidebar? The Court: There s been a ruling already, Ms. Burke. Ms. Burke: One of the things you will learn about this trial is that the Judge orders how evidence comes in. And that [the defendant] is going to testify. And as soon as [the defendant] testifies, then you can hear about everything that happened to her. And your are going to hear from [the defendant] The Court: Let me interject here. [¶] There will be assuming there is evidence that meets a pretrial order, certain evidence may be allowed, but not everything. I just want to make clear that specific types of evidence will be allowed in. [¶] With that, you may continue, Ms. Burke. Ms. Burke: You are going to hear from [the defendant] about how afraid she was. You are going to hear prior to March 23rd, many people tried to talk to [the complainant] about the problem she was having with [the defendant]. . . . And that there were meetings set up to try to talk to [the complainant]. Her brother assisted in setting up a meeting, a community leader . . . assisted in trying to set up a meeting to talk to her. [¶] And that nothing deterred her. She was going to handle this woman. And the more [the complainant s husband] and [the complainant] grew apart, the more [the complainant] blamed [the defendant], and she was going to get that bitch. [¶] That s the background. That s what brought us to March 23rd, 2009. Defense counsel continued her opening statement by recounting the defendant s version of the incident at the intersection. During that portion of her remarks, Burke 5 characterized the complainant as a bully, who drew pleasure from seeing the defendant tormented and in fear. At the conclusion of Burke s opening statement, the prosecutor noted for the record: I don t understand, during the opening argument by Defense Counsel, when there was a specific Court order, and I know and I said, Your Honor, I don t want to get into rancor, but . . . there s a Court order about making reference to specific issues of conduct which we had litigation over, and then despite that, I have to be in a position now of objecting to the Court on these matters which I thought were perfectly clear. In response, Burke stated: I didn t reference any specific instances of conduct or witnesses who were there. I didn t mention any single date. [¶] But I clearly have indicated not only to the Court all along, but in opening statement, my client is going to testify. And her state of mind clearly is at issue and the reason for her fear is at issue. [¶] And so in conjunction with the Court s order that I not reference anything specific, I still am allowed to describe why my client was in fear. And, obviously, we will get to more details as the trial proceeds. [¶] But it is absolutely improper to suggest that I can t tell the jury what I expect the evidence is going to show. [¶] And I never referenced one of the other witnesses. I never referenced any date or what specifically occurred. I merely said there was a campaign of terrorizing my client. [¶] Otherwise, what happens, Your Honor, is at the end of the case, Mr. Beckelman says, Who knew this was coming? Who knew we were going to hear any of this. [¶] So it s absolutely improper for the Defense not to be able, in opening, to tell what they expect to come even if it s in general terms which complies with the Court s order. [¶] So you just you cannot restrict the Defense when the testimony is going to come from the defendant. The court replied that defense counsel was wrong in that the court had issued a pretrial ruling that precluded defense counsel s opening remarks regarding specific instances of alleged violence and threats of violence by the complaining witness. The court understood counsel s enthusiasm, but [a]fter one objection, counsel should have known better, and there were four objections raised. The court then cited defense counsel for contempt for a direct violation of the pretrial order. 6 B. Contempt Proceeding After issuing an order to show cause, the court held a contempt hearing on the charge that Burke had committed a direct contempt on January 13, 2010 in the immediate view and presence of the court when she disobeyed the court s written order by her clear remarks in the opening statement. Several objections were lodged and [Burke] proceeded, in any event, to violate the pretrial order. [¶] That is the contempt that s being contemplated. In her defense, Burke argued she did not intentionally violate the written pretrial order because she did not make any references to specific instances of conduct in her opening statement. Burke contended she was being diligent about not going into specific instances of conduct by the complaining witness because she knew that the Court had ordered [her] not to get into specifics. She characterized her objectionable remarks as speaking of her client s state of mind and fear because of a campaign of terror, but she believed there was no specific instances of conduct. No dates, no places. It was a generalized statement about how [her client] felt, her state of mind. Burke always felt her client s state of mind was not part of the [written] order because the order was related to self-defense and the defendant s state of mind goes to specific intent and is an important element and defense for the charges of attempted murder. Burke was apologetic, and contended she was genuinely confused by the court s comments during the pretrial hearings, and the overbreadth of the written order compared to what the court had said at the pretrial hearings. Burke contended that as soon as the court clearly stated it was not going to have a sidebar conference, and the prosecutor s objections were sustained, she proceeded to another topic. Burke conceded, however, that as she gave her opening remarks, the initial objection really threw me for a loss because and I understand, now looking back at it . . . that I knew where I was going, but I didn t think the Court or the District Attorney did. She could sort of see now that it could have appeared to the Court that [she] was going to go into all those details, that [she] was specifically going to talk about those witnesses, that [she] was going to specifically talk about specific conduct on specific 7 dates and what had happened. So she thought that s really what happened and why [she] asked to approach after there was an initial objection. She thought that where [she] was going was misinterpreted, and that s why [she] tried to approach, though . . . at the time was not allowed. And that s why, she continued with her remarks by giving the next general description, thinking the Court and Counsel will see [she was] making general comments, [she was] not about to launch into specifics, [they will] understand that that s what [her] intent was here. According to Burke, her remarks and the sustained objections overlapped, and she showed surprise when she said she did not say anything specific, and she asked twice to approach the bench for clarification. She wanted clarification [because] she thought she would be able to explain to the jury that her client was in a certain state of mind, as background for what happened on March 23rd at the time of the shooting. The court found Burke guilty of direct contempt beyond a reasonable doubt as she willfully, deliberately, intentionally and in the immediate view and presence of the court, disobeyed a lawful order and the process of the court. Code of Civil Procedure section 1209(a)(5). The court found its written order was valid, clear, and unambiguous in that Burke was specifically told by the court before the issuance of the written ruling that she . . . [was] foreclosed from mentioning in opening statement the topic of the threats made by the complaining witness, and that the reference in the written order to defense witnesses included the defendant. The court also found Burke comprehended the extent of the written order and her claim of confusion was negated by her clear objections to the prohibitions imposed by the court at the pretrial hearings. The court acknowledged that an adjudication of contempt required a finding that Burke s conduct was willful in the sense that it was inexcusable. The court found Burke s explanation for her conduct neither credible nor persuasive. In so ruling, the court noted that its written order contained specific prohibitions, and that there was no showing the order could be read as authorizing Burke to discuss generally the complainant s prior misconduct. And, [t]o suggest that [Burke] made no specific references of conduct . . . to the jury is a failure to accept responsibility for what the court 8 perceives as remarks wholly calculated to undermine the court s authority. The court also rejected Burke s argument that her conduct was the unintended product of zealous advocacy. The court noted that before any evidence was admitted to support a claim of self-defense or any request to discuss the parameters of the written order, Burke intentionally referred to the complainant s campaign of terror, a derisive phrase created to have full rhetorical and prejudicial effect regarding the victim s misconduct which the jury would find hard to ignore. The court further noted that the first objection to Burke s opening remarks, did not give her pause; instead, she continued to tell the jury that the complaining witness made threats on the telephone, engaged in vandalism, shot at the defendant and threatened to kill her if she went to the police. [Citation.] Even after the jury was admonished to disregard these remarks, [Burke] discussed how no one would deter [the complainant] and how she was going to handle her problem with defendant. [Citation]. In keeping with her theme, [Burke later] characterized [the complainant] as a bully who drew pleasure from seeing the defendant tormented and in fear. [Citation.] The court found Burke had defied the written order after each evidentiary ruling of [the] court, noting that counsel had the imperative duty to respectfully yield to the rulings of the court, whether right or wrong [citations]. [Citations.] The court also rejected Burke s contention that her conduct was excusable because she had attempted to clarify the scope of the written order during her opening remarks. The court found Burke s requests for sidebar conferences were not distinct. One request interrupted the court while it was admonishing the jury during the opening statement; the other followed immediately after the court completed its admonition. When the court cited Burke for contempt during the trial, she did not mention her requests for sidebar conferences as an excuse for her conduct. Instead, her explanation at the time was that there were no specific instances of conduct or witnesses referenced; that she merely said there was a campaign of terrorizing [the defendant]; and that it [was] improper for the court to prevent references to the [defendant s] state of mind in her opening statement. 9 In support of its imposition of a $1,000 fine, the court considered the circumstances of the direct contempt, Burke s apology, and her scienter. [Burke] has practiced for fifteen years and tried more than fifty jury trials. [Citation.] [Burke] explained that the objection to her opening statement threw her for a loss and that she knew where [she] was going, but [she did not] think the court or the district attorney did. [Citation.] . . . [Burke,] a skilled trial lawyer, knew exactly what she was going to say. This is precisely why [her] conduct is inexcusable . . . . C. Writ Proceeding Burke filed this petition for writ relief, challenging the contempt order. We temporarily stayed enforcement of the fine, gave notice that, if appropriate, we might issue a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180), and requested the Attorney General to file an informal opposition to the petition. The Attorney General filed a letter brief, declin[ing] to take a position in this matter. We then issued an order permitting respondent to file an opposition. Respondent has not filed an opposition. We therefore now decide the matter based solely on the petition and supporting exhibits. DISCUSSION 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, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 115, fn. omitted (Hawk).) In this case, the court s order re contempt, which recite[s] facts pertinent to acts committed in the immediate view and presence of the court, establish[es] the jurisdiction of the court to issue the order [citation]. 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 [order]. The power to weigh the evidence rests with the trial court. [Citations.] 10 [Citation.] (Ibid.; see In re Marcus (2006) 138 Cal.App.4th 1009, 1015 (Marcus) [ [i]n writ proceedings to review an adjudication of contempt, our inquiry is whether there was any substantial evidence before the trial court to prove the elements of the contempt ].) A trial court has the power to punish an offending party for [d]isobedience of any lawful judgment, order, or process of the court. (Code Civ. Proc., § 1209, subd. (a)(5).) The elements of proof necessary to support punishment for contempt are: (1) a valid court order, (2) the alleged contemnor's knowledge of the order, and (3) noncompliance. [Citations.] (Marcus, supra, 138 Cal.App.4th at p. 1014.) Burke argues the contempt finding should be set aside because the scope and basis for the written order were far from clear. She contends the written order did not specify any particular acts that were subject to exclusion, referred only to unspecified testimony by defense witnesses who had testified at the pretrial hearings, and was not sufficiently clear and specific concerning its application to the potential testimony of the defendant who did not testify at the pretrial hearings. Additionally, Burke argues the court s comments at the pretrial hearing led her to believe the written order was meant to remedy a discovery violation that was not directed at the scope of defendant s testimony, and that the court s further comments that counsel was free to elicit evidence of selfdefense led her to interpret the written order as allowing her opening statement remarks regarding the complainant s prior misconduct. Burke also argues the written order was in excess of the court s jurisdiction to the extent the ruling was imposed as a sanction for a discovery violation, and sought to preclude the defendant from testifying in her own defense. We conclude Burke s arguments are unavailing. We reject Burke s argument that the written order could not form the basis for a contempt finding because it was broader in scope than the issues presented at the pretrial hearings, which were initially prompted by the prosecutor s objection to the late disclosure of defense witnesses. A court s authority to resolve pretrial issues raised by the parties is not delineated by the wishes of [the] litigants. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 785.) In addition to [his] inherent power to control judicial proceedings in order to insure the orderly administration of justice [citations] . . . 11 (Hawk, supra, 42 Cal.App.3d at pp. 126-127), a criminal court judge has the statutory duty . . . to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved. (Pen. Code, § 1044). Relevant to the matter here, once the court learned the nature of the proposed testimony of the defense witnesses, it had the discretion to issue an interim order prohibiting reference to any proposed evidence of the complainant s prior misconduct until later consideration of its admissibility during the trial, or until such time as there was a prima facie showing of self-defense. (3 Witkin, Cal. Evidence (4th ed. 2000), Presentation at Trial, § 369, p. 458; see People v. Spraic (1927) 87 Cal.App. 724, 729-730 (Spraic) [defendant s proposed evidence of victim s prior threats against him properly excluded because at the time of the offer of proof there was no prima facie showing of self-defense despite defense counsel s claim that he expected to show later by defendant s testimony that he acted in self-defense].) As explained by the court in Spraic, supra, 87 Cal. App. at p. 730: The order of proof rests largely in the discretion of the trial court . . . . [If] the proposed evidence of threats were [mentioned] and then defendant failed to supply the promised evidence [of self-defense at the time of the incident] it would be difficult for the jury to eradicate from their minds the evidence of such threats. Whether the court abused its discretion in issuing the written order in this case is not before us and we express no opinion on the matter. We also reject Burke s arguments that the written order was far from clear and the trial court s comments at the pretrial hearing lead her to misinterpret its written order that formed the basis for the contempt finding. A court s order must be sufficiently clear, specific, and unequivocal, so as to support a finding of contempt for its disobedience. (Plummer v. Superior Court (1942) 20 Cal.2d 158, 164; Marcus, supra, 138 Cal.App.4th at p. 1015 [ [a]ny ambiguity in a decree or order must be resolved in favor of an alleged contemnor ].) Regardless of the court s comments during the pretrial hearings, its written order met the specificity requirements necessary for an adjudication of contempt. It expressly directed that Burke shall not present, offer, refer, 12 discuss or suggest during . . .opening statement . . . anything related to any and all prior conduct in the form of opinion, evidence of reputation or specific instances of alleged violence or threats of violence by the complaining witness. . . . The written order is not rendered unclear because it did not exclude any specific acts or mention any specific testimony, as Burke suggests. The order prohibiting Burke from mentioning any and all prior conduct . . . by the complaining witness, was directed at the nature of the evidence and applied regardless of the witnesses who would proffer testimony on that issue. Additionally, the written order expressly allowed reference to the issue of self-defense as long as the opening statement remarks were confined to the incident alleged by the People on March 23, 2009 at the intersection . . . . Consequently, we see no basis to disturb the court s rejection of Burke s arguments that she was confused and did not understand that the written order was meant to cover [the defendant s] testimony regarding the complainant s prior misconduct. Finally, we see no merit to Burke s argument that the trial court erred in finding that she acted willfully as her conduct was inexcusable. She contends the record shows that her conduct was not willful but excusable because she was acting under a mistaken belief that her opening statement remarks were consistent with the court s written order. However, the trial court was free to reject Burke s excuse for failing to accede to the court s written order. Burke s reliance on our decision in In re Carrow (1974) 40 Cal.App.3d 924 (Carrow) is misplaced. In Carrow, we set aside a contempt finding because the trial court did not specifically find that defense counsel understood that his closing argument remarks had been proscribed by the court s earlier rulings. (Id. at p. 933.) Unlike the situation in Carrow, the trial court here specifically found that Burke understood the scope of the written order but knowingly intended to inform the jury of the complainant s prior misconduct, and she persisted in her opening statement remarks even after the court sustained the prosecutor s specific objections and the court s admonition to counsel that such remarks were barred by its prior ruling. In conclusion, we recognize that Burke, as a defense counsel, sought to fulfill her duty of zealously representing the defendant within the bounds of the law. Nevertheless, 13 as an appellate court, our inquiry is limited to whether there was any substantial evidence to prove the elements of the contempt. Whether the court should have issued the written order limiting opening statement remarks is not before us. In the absence of a showing that the order was invalid, Burke should have complied with the order of which she had knowledge. (Hawk, supra, 42 Cal.App.3d at p. 130 [defense counsel s failure to yield to court s rulings during trial supported contempt finding]; 3 Witkin, Cal. Evidence, supra, § 369, p. 458 [ [r]eference to objectionable matter covered by the judge s order may be sanctioned [by] adjudication of contempt ].) In seeking to reverse the finding of contempt, Burke has the burden of demonstrating there is no substantial evidence to support the finding of contempt. On this record, we are constrained to conclude she has failed to meet her burden. Accordingly, we must uphold the order re contempt. DISPOSITION The petition is denied. The stay issued by this court on July 29, 2010, shall automatically dissolve on the issuance of the remittitur. _________________________ McGuiness, P.J. We concur: _________________________ Siggins, J. _________________________ Jenkins, J. 14
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