Filed 2/18/21 P. v. Cubit CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B292833
Plaintiff, (Los Angeles County
Super. Ct. No. LA086545)
v.
JARED CUBIT, Defendant;
THOMAS W. KIELTY, Objector
and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Gregory A. Dohi, Judge. Affirmed.
Thomas W. Kielty, in pro. per., for Objector and Appellant.
Frederick R. Bennett, Court Counsel, for the Superior
Court of Los Angeles County as Amicus Curiae on behalf of
Plaintiff.
_________________
A witness in a criminal trial complained defense counsel
Thomas W. Kielty was harassing him with frequent calls and text
messages. The court directed Kielty not to contact the witness.
Kielty text messaged the witness later the same day to ask a
question relating to his testimony. Following the conclusion of
the criminal case, the court imposed sanctions against Kielty
1
pursuant to Code of Civil Procedure section 177.5 in the amount
of $300 for violating its no-contact order. On appeal Kielty
contends the court erred in imposing sanctions because he did not
violate a lawful court order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Kielty represented Jared Cubit, a defendant charged by
information with robbery and three counts of assault with a
deadly weapon. A witness under subpoena in the case told Kielty
prior to trial, and testified for the People on direct examination,
that he had used his smart phone and social media account to
record the assaults and had showed his video recording to the
police. The witness also testified to the contents of the recording.
After the prosecutor completed her direct examination, she
informed the court, outside the presence of the jury, the witness
had complained to her the previous evening that he had felt
harassed by Kielty’s repeated efforts to contact him about the
case. The court advised the witness in open court he had no duty
to talk to either the prosecutor or defense counsel outside the
court proceedings. The witness responded he did not want to talk
to Kielty and “he [Kielty] knows why.” Directing his comments to
Kielty, the witness continued, “So, I don’t know what I can say
and not say. I don’t want to cuss, you know what I’m saying?
1
Statutory references are to this code.
2
But I just want to talk to you [Kielty] about your approach to me,
man.” Kielty said, “Yeah.” The court stated, “Okay, Mr. Kielty’s
right here. Mr. Kielty, you heard it from the man directly. He
doesn’t want you to speak with him.” Kielty responded, “He just
said he wants to tell me . . . .” The witness interjected, “All I
want to talk to you about is how you have been treating me, man.
How you have been texting me and calling me. I don’t want to
talk about the case with you.” Turning to Kielty, the court
stated, “So, there you go. So, Mr. Kielty, [the witness] made his
feelings very clear. He has a right not to be contacted any
further, so please do not communicate with him any further.
We’re done.” The witness asked the court, “He understands
now?” The court responded, “He’s got the message. Okay.
Thank you.”
On cross-examination the witness testified he had tried to
send a copy of his video recording to the police as an email
attachment, as the case detective had requested, but the file was
too large to send. He ultimately deleted the video after police
2
told him they did not need it.
After completing his testimony for the day, the witness
asked the court whether he had any obligation to return to court.
The court responded, “You might get a call in the future from one
side or the other, so hang tight. But you’re free to go today.” The
witness asked, “So I’m supposed to talk to whoever calls me?”
The court replied, “Up to you, entirely up to you. . . . As any
witness does, you have the right to say, ‘I don’t want to talk to
2
Other video recordings of the incident were introduced into
evidence.
3
you,’ but if they’re saying you got to come back to court, then you
got to come back to court.”
3
Later that day Kielty sent the witness a text message.
The witness became irate about the contact and reported it to the
prosecutor, who, in turn, reported it to the court. Kielty
explained to the court he had simply wanted the name of the
social media account the witness had used to record the incident.
“[R]ather than having [the witness] come back into court for
something of that nature, I thought it made more sense just to
send him a particular message. I don’t consider a text message to
be harassing, and I did not ask to speak to him. I just asked him
for the name of the [account] so we could see if we could possibly
retrieve the video.”
The court stated, “My order, I thought, was very clear and
I’ll ask for it at some point to be transcribed. It was, Mr. Kielty,
for you to have no contact with [the witness] at all. . . . I’m going
to take a look at the transcript. I know you’re trying to do your
job, but so am I, and I made orders and if they have been
violated, I will take it seriously and will consider something in
the nature of contempt proceedings.”
Kielty responded, “Your honor directed me not to talk to
him. I don’t think your honor ever said not to contact him. It
would be a silly order to make because it was clear if he needed to
be called back to court, he could be called back to court. . . .” The
3
The text message, which Kielty read into the record, stated,
“Can you tell us the name you used on the Instagram account so
we can try to retrieve the video from Instagram? Thanks. I
apologize for the disrespect you mentioned yesterday. I’m just
trying to do my job. Thanks, Tom Kielty.”
4
court told Kielty it would review the transcript and address the
possibility of sanctions at a future hearing.
Later in the trial, following a separate colloquy between the
court and Kielty over Kielty’s attempt to introduce evidence the
court believed it had previously excluded, the trial court angrily
criticized Kielty for “skirting my orders” and mentioned its
earlier no-contact order as an example. Kielty disagreed that he
had tried to flout the court’s orders. “In terms of the no
contact . . . , what I took away from that is, you know, do not try
to speak to him directly or on the phone. It never occurred to me
that it would be improper in the exercise of my role and the
guardian of my client’s constitutional rights to subpoena
witnesses, call them into court, present evidence, present a
defense, that I would be unable to contact a witness to ask them a
question or ask them to come into court via text message or
email. I don’t consider that to be a blatant violation of your
honor’s order. It certainly doesn’t rise to the level of contempt.”
On August 28, 2018 several months after the criminal trial
4
had concluded, the court held a noticed hearing to determine
whether to sanction Kielty pursuant to section 177.5 for violating
its no-contact order. Kielty argued there had been no lawful
4
The jury acquitted Cubit on all charges. Kielty moved
pursuant to section 170.1, subdivision (a)(6), to disqualify the
trial judge from presiding over Cubit’s probation violation
hearing, which trailed the criminal case. The court struck the
statement of disqualification for cause pursuant to section 170.4,
subdivision (b), on the ground it was facially deficient. Kielty
filed a petition for writ of mandate in this court pursuant to
section 170.3, subdivision (d), challenging that order. On May 23,
2018 we denied the petition. (Cubit v. Superior Court, B290124.)
5
order per se, only a request, as evidenced by the court’s use of the
word, “Please.” At best, Kielty argued, the court’s language was
ambiguous, and Kielty’s conduct fell far short of a knowing
violation of a court order. Moreover, he argued, any no-contact
order infringed his obligation to his client to zealously defend him
and his client’s due process rights to a defense. Unimpressed
with Kielty’s suggestion the court’s language was a request
rather than order and unpersuaded by his other arguments, the
court imposed sanctions against Kielty in the amount of $300
pursuant to section 177.5.
5
Kielty filed a timely notice of appeal.
5
The order issuing sanctions is an appealable order.
(See § 904.1, subd. (b); People v. Singh (2015) 234 Cal.App.4th
1319, 1332, fn. 13 [“[c]ounsel has the remedy of appeal for
erroneously imposed sanctions”].) Kielty filed his notice of appeal
on August 31, 2018 on the Judicial Council’s optional form for
appeals in felony cases.
On October 18, 2018 the Administrative Presiding Justice
of the Second District issued orders denying Kielty’s motion to
designate his appeal as a criminal appeal and, as a consequence,
to waive fees in this court based on the indigency of his client in
the superior court case. In the course of those orders the
Administrative Presiding Justice indicated the appeal should be
styled Kielty v. Superior Court of Los Angeles County. For
purposes of this opinion, however, we have captioned the case to
retain the names of the plaintiff and defendant in the underlying
case, as directed by the California Style Manual (Cal. Style
Manual (4th ed. 2000) § 6:41, pp. 241-242) and as done in other
appellate cases. (E.g., People v. Hundal (2008) 168 Cal.App.4th
965, 969 [defendant’s appeal from judgment of conviction and
deputy district attorney’s separate appeal from sanctions award
captioned the same, but given different case number]; see People
6
DISCUSSION
1. Governing Law and Standard of Review
Section 177.5 provides in part, “A judicial officer shall have
the power to impose reasonable money sanctions, not to exceed
fifteen hundred dollars ($1,500), notwithstanding any other
provision of law, payable to the court, for any violation of a lawful
court order by a person, done without good cause or substantial
justification.” Applicable to both criminal and civil proceedings,
section 177.5 is intended to “punish and deter violations of lawful
court orders [citation], and to compensate the judicial system for
the cost of unnecessary hearings.” (People v. Landers (2019)
31 Cal.App.5th, 288, 303; accord, People v. Hooper (2019)
40 Cal.App.5th 685, 695.)
Section 177.5 “does not require that the offending act be
‘willful,’ but only that it be committed without good cause or
substantial justification” (People v. Muhammad (2003)
108 Cal.App.4th 313, 324; accord, People v. Tabb (1991)
228 Cal.App.3d 1300, 1311), that is, “without a valid excuse.”
(People v. Kareem A. (2020) 46 Cal.App.5th 58, 78; accord, In re
Woodham (2001) 95 Cal.App.4th 438, 446; Seykora v. Superior
Court (1991) 232 Cal.App.3d 1075, 1081; Tabb, at p. 1311.)
We review an order imposing sanctions pursuant to
section 177.5 for abuse of discretion. (People v. Hooper, supra,
40 Cal.App.5th at p. 692; People v. Ward (2009) 173 Cal.App.4th
v. Muhammad (2003) 108 Cal.App.4th 313, 320 [“the trial court is
not and cannot be a party in a direct appeal from a case it has
tried”].) As in those cases, we treat the superior court’s
respondent’s brief as a brief amicus curiae. (Hundal, at p. 969;
Muhammad, at p. 320.) We do not, however, reconsider the
Administrative Presiding Justice’s order regarding fee waiver.
7
1518, 1527.) “‘“A trial court’s exercise of discretion will not be
disturbed unless the record establishes it exceeded the bounds of
reason or contravened the uncontradicted evidence [citation],
failed to follow proper procedure in reaching its decision
[citation], or applied the wrong legal standard to the
determination [citation].” [Citation.] A discretionary ruling will
not be reversed merely because of a difference of opinion between
the appellate tribunal and the trial judge.’” (People v. Landers,
supra, 31 Cal.App.5th at pp. 303-304; accord, Hooper, at p. 692.)
2. The Court Did Not Abuse Its Discretion in Imposing
Sanctions for Kielty’s Violation of Its No-contact Order
Kielty argues the court’s language, “[P]lease do not
communicate with [the witness] any further” was merely a
request, not an order. If the court had intended to order Kielty
not to contact the witness, it would have used the term “order”
and would not have prefaced its comments with “please.” Any
ambiguity on this point was clarified, Kielty argues, when the
court told the witness at the conclusion of his testimony he
“might get a call in the future from one side or the other so hang
tight,” language suggesting Kielty could contact the witness.
Neither of these arguments is persuasive.
At the threshold, a trial court’s use of the word “please”
does not transform a court order into a request. As the trial court
observed in rejecting the same argument at the sanctions
hearing, the emphasis in such a circumstance is on the “don’t,”
not on the “please.” Nor is the court’s failure to use the words, “I
order you,” dispositive. When, as here, the court directs a party
on the record to act or refrain from acting, the court’s directive is
an order. (See, e.g., People v. Ward, supra, 173 Cal.App.4th at
p. 1523 [where trial court admonished defense counsel not to
8
raise prosecutorial misconduct in closing argument and defense
counsel did so anyway, defense counsel violated lawful court
order justifying sanctions pursuant to section 177.5].)
Kielty’s reliance on the purported ambiguity created by the
court’s comments to the witness at the conclusion of the witness’s
testimony is also misplaced. At most the court’s comments
suggested the defense could compel the witness to return.
Nothing in the court’s statements indicated Kielty could contact
the witness with substantive inquiries about his testimony
without leave of court.
Kielty’s contention section 177.5 sanctions were improper
because the order was unlawful is also without merit. The court’s
power to make such orders is derived from section 128,
subdivision (a)(5), “[t]o 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 pertaining thereto.” (See People v. Ward, supra,
173 Cal.App.4th at p. 1528.) If Kielty believed, as he now asserts,
the order infringed his ability to provide a defense, Kielty could
have raised his objections to the trial court and sought leave of
court to make his inquiry. He never gave the court the chance to
address those concerns. Instead, he simply contacted the witness
directly, believing that his inquiry was sufficiently innocuous as
to not rise to the level of harassment. While Kielty’s assessment,
no doubt sincere, may well have been reasonable, his actions—
6
disregarding the court’s order—were not.
6
Kielty’s suggestion the order violated his client’s
constitutional rights is also without merit. The court’s order did
not prevent Kielty from calling the witness back to court or
obtaining the court’s permission to make the limited inquiry.
9
Finally, Kielty spends much of his lengthy appellate brief
describing numerous rulings and trial events that he insists
reflect a trial judge “aligned with the prosecutor and biased
against him.” We do not address the rulings Kielty cites to
bolster this argument other than to note many of them were the
subject of his petition for a writ of mandate pursuant to
section 170.3, subdivision (d), which we denied. Our limited task
on appeal is simply to determine whether Kielty violated a lawful
court order and, if so, whether the court abused its discretion in
finding that violation, even if not willful, to be without a valid
excuse. As to the first question, the undisputed evidence
established Kielty violated a court order. As to the second, no
abuse of discretion occurred. (See People v. Landers, supra,
31 Cal.App.5th at p. 304, fn. 9 [“[t]he idea that a mere difference
of opinion between the appellate and trial courts will not justify
reversal of a sanctions order under . . . section 177.5 reflects the
practical reality that sanctions determinations often involve
‘“fact-intensive, close calls”’”].)
DISPOSITION
The court’s order imposing $300 in sanctions is affirmed.
No costs are awarded.
PERLUSS, P. J.
We concur:
*
FEUER, J McCORMICK, J.
*
Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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