Filed 1/16/14 P. v. Dixon CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                            F064986
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. BF139208A)
                   v.

AL CAPONE DIXON et al.,                                                                  OPINION
         Defendants;

CLAYTON D. CAMPBELL,

         Objector and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Colette M.
Humphrey, Judge.
         Sam Van Eerden for Objector and Appellant.
         Lisa S. Green, District Attorney, John T. Mitchell, Deputy District Attorney, for
Plaintiff and Respondent.
         No appearance for Defendants.
                                                        -ooOoo-
         This is an appeal from an order in a criminal case sanctioning a defense attorney,
Clayton D. Campbell, who represented a defendant charged with carjacking and other
offenses. Campbell filed a civil lawsuit against the alleged carjacking victim on behalf of
his criminal defense client in order to take the alleged victim’s deposition. After
Campbell took the deposition, he dismissed the civil suit. When the deputy district
attorney learned that Campbell had taken the alleged victim’s deposition under these
circumstances, he sought sanctions against Campbell in the criminal case. The court
granted the request for sanctions and ordered Campbell to purchase a deposition
transcript to be provided to the alleged victim, to reimburse the alleged victim for any
expenses he incurred in appearing for the deposition, and to report himself to the
California State Bar.
       On appeal, Campbell contends that the trial court was without authority to order
sanctions. The court relied on “Marsy’s Law” (Cal. Const., art. I, § 28),* criminal
discovery statutes, and Code of Civil Procedure section 128, but Campbell argues that
none of these provisions granted the court authority to sanction him in this case.
       We conclude the trial court lacked statutory or constitutional authority to impose
sanctions and reverse the sanctions order.
                     FACTUAL AND PROCEDURAL HISTORIES
Underlying criminal case
       On January 27, 2011, Al Capone Dixon and another defendant were charged with
carjacking, robbery, possession of a stolen vehicle, and participating in a criminal street
gang.† The alleged carjacking victim was Bryon Albritton. At an evidentiary hearing,


       *In 2008, California voters approved Proposition 9, the Victims’ Bill of Rights Act
of 2008, also known as Marsy’s Law, which included both constitutional and statutory
amendments. (In re Vicks (2013) 56 Cal.4th 274, 278, 282.) In this decision, Marsy’s
Law will refer specifically to article I, section 28, of the California Constitution.
       †We   take judicial notice of the public docket in Kern County Superior Court
criminal case No. BF135404A/B, which is referred to by the deputy district attorney in
this case. (Evid. Code, § 452, subd. (d); People v. Felix (2008) 169 Cal.App.4th 607,
614, fn. 9.)



                                             2.
Albritton testified that he had been contacted by defense investigators. He spoke to the
investigators but then stopped the interview because there were gang members observing
and Albritton was concerned about his family’s safety.
       At some point, Albritton and his family relocated. The move was prompted by a
visit to his house by a person Albritton believed to be a gang member associated with the
defendants. Albritton was at home, but he did not answer the door. He contacted law
enforcement, and investigators from the district attorney’s office helped him relocate.
       Because of adverse pretrial rulings, the Kern County District Attorney dismissed
the criminal case and initiated a new case against the same defendants on November 3,
2011. Dixon was charged with the same four offenses from the previous case, plus
taking a vehicle without the owner’s consent. The refiled case is the criminal case
underlying this appeal.
       On January 20, 2012, at a readiness conference for the criminal trial, Defense
Attorney Campbell informed Deputy District Attorney Ken Russell that he had filed a
civil lawsuit against Albritton on behalf of his client Dixon. Campbell told Russell that
the only purpose of the lawsuit was to conduct an interview with Albritton. Campbell
said he had taken Albritton’s deposition, and he planned to use his deposition statements
as impeachment at trial. Russell expressed his doubt about whether Campbell’s conduct
was legal or ethical. Campbell responded that he had consulted with an attorney and he
intended to dismiss the civil lawsuit.
       On January 30, 2012, the scheduled trial date, Dixon and the prosecution reached
a plea agreement. Dixon entered a plea of no contest to the charge of gang participation
and the remaining four counts were dismissed. According to Russell, the settlement was
not related to Albritton’s deposition; rather, Dixon decided to accept a plea offer that had
been available for some time. Dixon received a four-year sentence.
Dixon v. Albritton




                                             3.
       On November 10, 2011, Campbell filed a complaint on Dixon’s behalf in Kern
County Superior Court. (Dixon v. Albritton (Super. Ct. Kern County, 2011, No. S-1500-
CV-275185).) The complaint asserted claims of breach of contract and fraud against
Albritton, alleging that, on December 5, 2010, Albritton and Dixon “contracted to
purchase a vehicle defendant [Albritton] stated belonged to him,” but “defendant
subsequently and fraudulently did not produce the vehicle’s ‘pink slip’ and slanderously
told law enforcement that plaintiff [Dixon] stole the vehicle.” The complaint alleged that
the parties negotiated the sale of Albritton’s Ford Explorer for $200, which Dixon paid.
       On November 15, 2011, Campbell filed an ex parte motion for an order shortening
time for service of a notice of deposition on Albritton. In a declaration in support of the
ex parte motion, Campbell stated that the complaint had been filed, but he had not yet
received the endorsed summons and complaint. He believed the summons and complaint
would be ready for pick up from the clerk’s office either November 16 or 17, 2011.
Campbell stated that he intended to serve Albritton as soon as he received the summons
and complaint, and he also wanted to serve the notice of deposition, which Campbell had
already scheduled for January 5, 2012.
       Campbell further declared that he believed Albritton was in a witness-protection
program, and Albritton “ha[d] previously exploited this protection to evade [Campbell’s]
attempts to lawfully contact him in another legal matter in a separate case.” Campbell
stated that he believed Albritton would be appearing in court on November 17, 2011, “at
a hearing in a criminal matter,” and Campbell wanted to serve him the summons,
complaint, and notice of deposition at that time. He asked the court to grant his ex parte
motion to serve the defendant with the notice of deposition at court on November 17,
2011, or a later date if the criminal hearing were continued.
       Campbell did not identify the other “legal matter in a separate case” as a criminal
case that involved the same subject matter as the civil complaint and in which his client
Dixon was accused of carjacking and Albritton was the alleged victim; nor did he explain


                                             4.
that the witness-protection program was related to that criminal case and Albritton’s fear
of gang members associated with Dixon.
       On the morning of November 17, 2011, in the Metropolitan Division of the Kern
County Superior Court, Judge David Lampe granted Campbell’s ex parte motion.
       According to Albritton, he received a notice of deposition on December 23, 2011,
and the deposition took place on January 5, 2012. Albritton believed that the district
attorney’s office had arranged the deposition and thought nothing of it. At the
deposition, however, he felt harassed and intimidated by the process. He was not
represented by a lawyer. The deposition lasted about three and a half hours. Albritton’s
wife missed work in order to drive him to the deposition.
       During the deposition, Campbell asked Albritton questions about his background
and his past, including whether he had used any other names or had been convicted of
any crimes. Campbell did not ask about a transaction in which Albritton allegedly sold
his car to Dixon for $200.
       The record does not show that Campbell ever served Albritton the summons and
complaint for the civil lawsuit. Campbell asked for a fee waiver, and this request was not
granted until December 9, 2011, after the date Campbell told the court he was going to
serve the summons, complaint, and notice of deposition. On December 14, 2011, the
court ordered Dixon and Campbell to show cause why sanctions should not be imposed
for failure to serve the complaint and file a proof of service within 60 days of filing the
complaint.
       On February 24, 2012, the court held a hearing on the order to show cause. An
attorney made a special appearance for Campbell and requested dismissal of the lawsuit.
The court dismissed Dixon v. Albritton, supra, S-1500-CV-275185, without prejudice.
Sanctions request
       On February 23, 2012, the People filed a request for sanctions against Campbell in
the criminal case. The People characterized Dixon’s conduct of filing a civil lawsuit and


                                              5.
obtaining a court order permitting Campbell to take the deposition of Albritton as a
violation of (1) the victim’s state constitutional rights under Marsy’s Law and (2) the
statutes regulating criminal discovery (Pen. Code, § 1054 et seq.).
       In their supporting points and authorities, the People asserted that Campbell did
not provide either Albritton or Deputy District Attorney Russell with notice of his ex
parte motion for an order shortening time for service of a notice of deposition, and this
failure to give notice violated California Rules of Court, rule 3.1203(a).‡ The People
further alleged that, on November 17, 2012 (the day he obtained the ex parte order
shortening time), Campbell appeared in the criminal case and requested a continuation of
the preliminary hearing, but he did not inform the court or Russell that he intended to
take Albritton’s deposition.
       In a supporting declaration, Albritton stated that he had testified at a preliminary
hearing. During questioning, defense counsel blurted out his address. This caused
Albritton concern because there were several gang members present in the courtroom.
Russell told Albritton after the hearing that all future contact would come through the
district attorney’s office. For this reason, when Albritton was served papers on
December 23, 2011, requiring him to attend a deposition on January 5, 2012, he assumed
he was being contacted through the district attorney’s office. Albritton saw the words
“Kern County Superior Court” across the top and believed this was an official order from
the court.
       Albritton further declared: “If I had known that I did not have to give a statement
to Al Dixon or his attorney Clayton Campbell, or have my deposition taken, I would have
refused to have my deposition taken. [¶] … I would like the Kern County District


       ‡This rule requires a party seeking an ex parte order to notify all parties no later
than 10:00 a.m. the court day before the ex parte appearance, absent a showing of
exceptional circumstances. Campbell was required to give notice to Albritton since he
was the defendant in the case.



                                              6.
Attorney’s office to pursue the enforcement of my constitutional rights under the
Victim’s Bill of Rights, known as Marsy’s [L]aw in any trial or appellate court with
jurisdiction over the case.”
       The People requested that the court order Campbell to provide two deposition
transcripts (one for the People and one for Albritton), reimburse Albritton for any
expenses related to the civil lawsuit, and self-report to the California State Bar.
       Campbell filed a response. He did not dispute the facts as set forth by the People.
He did not, for example, assert that he had a good-faith belief in the allegations made in
the civil complaint he filed on behalf of Dixon or claim that he served Albritton the
summons and complaint. Instead, Campbell argued that the trial court did not have
authority to order the sanctions requested. He argued that Code of Civil Procedure
section 177.5, which authorizes the court to sanction attorneys for violation of lawful
court orders, did not apply because Campbell did not violate any court order. Marsy’s
Law did not apply because (1) Dixon had a right to access the civil courts during the
pendency of the criminal proceedings, and (2) Albritton was not a “victim” under
Marsy’s Law.
       On March 20, 2012, the trial court held a hearing on the People’s request for
sanctions. Campbell’s attorney asked for clarification on “what code section we’re
proceeding under,” and the court stated they were proceeding under Code of Civil
Procedure section 128.7.§ The court continued the hearing to allow Campbell an
opportunity to address the procedures and applicability of section 128.7.


       §Code  of Civil Procedure section 128.7 requires an attorney to sign every
pleading, motion, or other similar paper, certifying, among other things, that the paper is
not being presented primarily for an improper purpose and that the factual allegations
have evidentiary support. (§ 128.7, subds. (a), (b)(1) & (3).) The statute includes a safe-
harbor provision that “requires the party seeking sanctions to serve on the opposing party,
without filing or presenting it to the court, a notice of motion specifically describing the
sanctionable conduct.” (Li v. Majestic Industry Hills, LLC (2009) 177 Cal.App.4th 585,


                                              7.
       On April 19, 2012, the trial court heard further argument on the sanctions request.
The People conceded that Code of Civil Procedure section 128.7 was not a basis for
imposing sanctions. The deputy district attorney reiterated that the People were seeking
redress under Marsy’s Law. He argued that Albritton had an absolute right under
Marsy’s Law not to give a deposition in the criminal case, and Campbell circumvented
that right by filing a civil case for the sole purpose of taking the victim’s deposition in the
underlying criminal case. He continued, “We believe it would send, not just an
unfortunate, but a disastrous, message if this sort of procedural violation was permitted to
continue [to] occur.”
       Campbell’s attorney argued there was no remedy or consequences for his conduct.
The trial court could not agree. The court explained:

       “I think that the court under C.C.P. 128 has authority to control the court
       and the proceedings and the attorneys that appear before the court. I don’t
       think that the California Constitution is there just to look at and not have
       any type of meaning or substance. And I believe the discovery statutes also
       serve a purpose, and I believe under any of those three sections the Court
       has authority to impose consequences for somebody who abuses the court
       process. And I will find that the filing of the civil action was an abuse of
       the court process, specifically to get around the discovery statutes in the
       criminal case, and I am going to impose some sanctions.”
       The court ordered Campbell to purchase a transcript and provide it to Albritton
through the district attorney’s office, to reimburse Albritton for any expenses incurred
because of the civil lawsuit,** and to self-report the California State Bar. Campbell’s

590-591.) Service of the motion begins a 21-day “‘safe harbor’” period during which the
offending document may be withdrawn or corrected without sanction. (Id. at p. 591.)
       **The  Code of Civil Procedure provides a statutory framework for the recovery of
cost items in a civil action. Had Albritton made an appearance in the civil action, he
would have become the “‘prevailing party’” in that action as a “defendant in whose favor
a dismissal [was] entered” (Code Civ. Proc., § 1032, subd. (a)(4)), thus entitling him to
an award of costs incurred by him in that action, including “one copy of depositions
taken by the party against whom costs are allowed, and travel expenses to attend
depositions.” (Code Civ. Proc., §§ 1032, subd. (b) & 1033.5, subd. (a)(1), (3).)



                                              8.
attorney again asked the court what statutes the trial court was relying on, and the court
responded, “California Constitution, Article [I, section] 28; Penal Code 1054(d),
1054.5(b), and C.C.P. 128.”
       The court continued: “Having said all of that, I would like to make a record,
because I think the California State Bar might look into this case, and that would be to
state that in my experience with Mr. Campbell, … he has always been above board and
acted with integrity, and I believe this is an aberration. This is not something I would
ever expect to see happen again, and I do not believe his reputation as an attorney should
be tainted by this one mistake.” The deputy district attorney concurred and stated, “In
my dealings with Mr. Campbell he has always been ethical, straightforward, and I think
this is an absolute aberration .…”
       Campbell filed a notice of appeal on May 4, 2012. The court’s sanctions order is
appealable under Code of Civil Procedure section 904.1, subdivision (b).
                                       DISCUSSION
       Campbell contends that (1) his conduct did not violate the statutes and
constitutional provision relied upon by the court as the grounds for its sanctions, and
(2) even assuming there was a violation, there is no legal basis for the sanctions the court
imposed. We address his latter contention first and begin with a brief discussion of the
limits on a trial court’s inherent authority and the source of its power to sanction
attorneys for misconduct.
       “It is a general rule that, outside of a contempt proceeding, trial courts lack
inherent power to impose a monetary sanction against an attorney for misconduct in
court.” (People v. Muhammad (2003) 108 Cal.App.4th 313, 316 (Muhammad).) Rather,
“[t]he authority to impose such a sanction must be found in a statute. This has been the
declared law in California for at least the past 25 [now 35] years.” (Ibid., citing Bauguess
v. Paine (1978) 22 Cal.3d 626 (Bauguess).)




                                              9.
       In Bauguess, supra, 22 Cal.3d at page 639, the California Supreme Court held that
trial courts may not order an attorney to pay an opposing party’s attorneys’ fees as a
sanction for misconduct except pursuant to statute. The court reasoned that imposing
monetary sanctions against attorneys without express statutory authority would pose
serious due process issues:

               “It would be both unnecessary and unwise to permit trial courts to
       use fee awards as sanctions apart from those situations authorized by
       statute. If an attorney’s conduct is disruptive of court processes or
       disrespectful of the court itself, there is ample power to punish the
       misconduct as contempt. Moreover, unlike the power advocated by
       respondent, a court’s inherent power to punish contempt has been tempered
       by legislative enactment to provide procedural safeguards. [Citations.]
       Among these safeguards is the opportunity, in cases where the contempt
       occurs out of the immediate view and presence of the court, to disqualify
       the judge .… Additionally, the Legislature has limited the penalty for civil
       contempt to five days in jail and a $500 fine.[††] [Citations.] Absent such
       safeguards, serious due process problems would result were trial courts to
       use their inherent power, in lieu of the contempt power, to punish
       misconduct by awarding attorney’s fees to an opposing party or counsel.”
       (Bauguess, supra, 22 Cal.3d at pp. 637-638.)
       In Muhammad, supra, 108 Cal.App.4th at page 316, the prosecutor improperly
exercised jury peremptory challenges in violation of Wheeler,‡‡ leading to a mistrial.
The trial court imposed a $1,500 sanction against the prosecutor. The court relied on
Code of Civil Procedure section 177.5, which grants courts the power to impose
monetary sanctions “for any violation of a lawful court order .…” The appellate court
reversed the sanction order because, although she had violated the Constitution, the
prosecutor had not violated a court order. (Muhammad, supra, at p. 313.) The
Muhammad court observed that the prosecutor’s conduct was “illegal and
unprofessional,” but without statutory authorization, the trial court could not sanction her.

       ††The fine is now limited to $1,000 payable to the court. (Code Civ. Proc.,
§ 1218, subd. (a).)
       ‡‡People   v. Wheeler (1978) 22 Cal.3d 258.



                                            10.
       In Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1701-1702 (Sheller), a
Texas attorney appearing pro hac vice for plaintiffs in a class action sent a flyer to
potential class members that contained a misrepresentation. The trial court ordered the
Texas attorney to reimburse the opposing party for attorneys’ fees as a condition of
retaining his pro hac vice status and formally reprimanded him. The Court of Appeal
reversed, concluding there was no authority for the trial court’s order. (Id. at p. 1709.)
The trial court could not rely on its inherent authority to order payment of attorneys’ fees
because “the power to impose such sanctions must be created by the Legislature with
appropriate safeguards.” (Id. at p. 1712.) The trial court’s inherent authority did not
extend to attorney disciplinary action because “[t]hat power is exclusively held by the
Supreme Court and the State Bar, acting as its administrative arm.” (Id. at p. 1710.)
       The Sheller court noted that trial courts are not “powerless to sanction attorneys
for improper conduct or to control the proceedings before them to prevent injustice.”
(Sheller, supra, 158 Cal.App.4th at p. 1710.) For example, “trial courts may conduct
contempt proceedings, dismiss sham actions, admonish counsel in open court, strike
sham pleadings, and report misconduct to the State Bar. [Citation.]” (Ibid.)
       It follows from these cases that the sanctions order against Campbell may be
upheld only if a statute or constitutional provision granted the trial court the power to
impose the sanctions.§§ The trial court relied on (1) Marsy’s Law, (2) Penal Code


       §§The   People argue that Bauguess is distinguishable because the court held only
that trial courts may not award attorneys’ fees as a sanction, but in this case, the trial
court did not award attorneys’ fees. We do not read Bauguess and its progeny so
narrowly. These cases recognize that serious due process concerns would arise if courts
had unregulated power to sanction attorneys for misconduct. Trial courts may not award
attorneys’ fees to an opposing party (Bauguess), order a monetary sanction payable to the
court (Muhammed), or order a reprimand of an attorney (Sheller) without statutory
authority. Likewise, a trial court may not require an attorney to reimburse a witness or
order an attorney to report him or herself to the State Bar unless a statute or constitutional
provision authorizes such a sanction.



                                             11.
sections 1054 and 1054.5, and (3) Code of Civil Procedure section 128. Our task is to
determine whether any of these provisions authorized the court to impose sanctions.
I.     Marsy’s Law
       Article I, section 28, subdivision (b), of the California Constitution enumerates 17
rights held by victims of crime. These include the following rights:

              “(1) To be treated with fairness and respect for his or her privacy
       and dignity, and to be free from intimidation, harassment, and abuse,
       throughout the criminal or juvenile justice process. [¶] … [¶]

              “(5) To refuse an interview, deposition, or discovery request by the
       defendant, the defendant’s attorney, or any other person acting on behalf of
       the defendant, and to set reasonable conditions on the conduct of any such
       interview to which the victim consents. [¶] … [¶]

             “(17) To be informed of the rights enumerated in paragraphs (1)
       through (16).”
       Marsy’s Law provides that the enumerated rights are “personally held and
enforceable rights” and may be enforced by the “victim, a lawful representative of the
victim, or the prosecuting attorney upon request of the victim” in any trial or appellate
court with jurisdiction over the case. (Cal. Const., art. I, § 28, subds. (a)(3) & (c)(1).) As
Campbell points out, however, the enforcement provision “does not create any cause of
action for compensation or damages against the State, any political subdivision of the
State, any officer, employee, or agent of the State or of any of its political subdivisions,
or any officer or employee of the court.” (Id., subd. (c)(2).)
       We agree with the trial court and the People that Marsy’s Law creates rights that
the victim or the prosecuting attorney can enforce in court. In this case, for example,
Albritton had the right to refuse to speak to Campbell or any defense investigator about
the criminal case and, had Albritton requested Russell’s help in the matter, Russell could
have sought enforcement of that right before the trial court. Marsy’s Law, however, does
not specifically provide for sanctions against attorneys as an enforcement mechanism.




                                             12.
       The People argue that the lack of an enforcement provision in Marsy’s Law did
not leave the trial court without authority to sanction Campbell because “California
courts have the inherent power to fashion remedies and procedures in order to enforce
statutory and constitutional rights. (Code Civ. Proc., § 187.)” We are not persuaded that
section 187 gave the trial court the authority to impose sanctions.
       Code of Civil Procedure section 187 provides:

       “When jurisdiction is, by the Constitution or this Code, or by any other
       statute, conferred on a Court or judicial officer, all the means necessary to
       carry it into effect are also given; and in the exercise of this jurisdiction, if
       the course of proceeding be not specifically pointed out by this Code or the
       statute, any suitable process or mode of proceeding may be adopted which
       may appear most conformable to the spirit of this Code.”
       In Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 155
(Clark), a toxic tort lawsuit brought by 32 plaintiffs went to trial against three defendants.
Plaintiffs’ counsel and witnesses violated a series of in limine and other pretrial orders
leading to a mistrial. One of the motions in limine that the plaintiffs violated had “a
provision that if [the] plaintiffs violated the order and a mistrial resulted, the court shall
‘impose a monetary sanction upon Plaintiffs’ counsel in an amount equaling the cost of
[the defendant’s] attorneys’ fees incurred from the date the trial commences to the date of
any mistrial.’” (Id. at pp. 159-160.) The court ordered plaintiffs’ counsel to pay the
defendants’ attorneys’ fees and costs. (Id. at pp. 161-162.) The Court of Appeal held
that the order awarding attorneys’ fees against the plaintiffs’ counsel was not within the
trial court’s inherent power and was not authorized by statute. In reaching this
conclusion, the court rejected the argument that Code of Civil Procedure section 187,
together with the motion in limine, authorized the trial court’s order. The court explained
that section 187 “cannot supply the type of statutory authorization required under
Bauguess. These generic statements of the court’s powers to formulate suitable
procedures … do not by their own terms authorize any specific form of attorney sanction,




                                              13.
much less impose the type of procedural safeguards that the Bauguess court found
essential.” (Clark, supra, at pp. 164-165.)
       Similarly, in this case, the trial court could not rely on Code of Civil Procedure
section 187 to supply statutory authorization for imposition of attorney sanctions for an
alleged violation of Marsy’s Law, which itself contains no provision for attorney
sanctions. (See also People v. 6344 Skyway, Paradise, California (1999) 71 Cal.App.4th
1026, 1035 [where forfeiture statutes did not authorize order requiring claimants to pay
storage costs on seized property not ordered forfeited, trial court could not rely on Code
Civ. Proc., § 187 and inherent powers to issue such an order against claimants].)
II.    Penal Code sections 1054 and 1054.5
       The trial court also cited Penal Code sections 1054, subdivision (d) and 1054.5,
subdivision (b), in ordering sanctions against Campbell.
       Penal Code section 1054 sets forth general principles governing discovery in
criminal proceedings. It provides that the criminal discovery statutes are to be
interpreted, among other things, “[t]o protect victims and witnesses from danger,
harassment, and undue delay of the proceedings.” (Pen. Code, § 1054, subd. (d).***)
This provision cannot be read to empower trial courts to sanction attorneys for discovery
violations. It does not address enforcement of criminal discovery statutes at all.
       Penal Code section 1054.5 does address enforcement. It provides, in relevant part:

       “(a) No order requiring discovery shall be made in criminal cases except as
       provided in this chapter. This chapter shall be the only means by which the

       ***In addition, Penal Code section 1054 instructs courts to interpret the criminal
discovery statutes to give effect to the following purposes: “(a) To promote the
ascertainment of truth in trials by requiring timely pretrial discovery”; “(b) To save court
time by requiring that discovery be conducted informally between and among the parties
before judicial enforcement is requested”; “(c) To save court time in trial and avoid the
necessity for frequent interruptions and postponements”; and “(e) To provide that no
discovery shall occur in criminal cases except as provided by this chapter, other express
statutory provisions, or as mandated by the Constitution of the United States.”



                                              14.
       defendant may compel the disclosure or production of information from
       prosecuting attorneys .…

       “(b) Before a party may seek court enforcement of any of the disclosures
       required by this chapter, the party shall make an informal request of
       opposing counsel for the desired materials and information. If within 15
       days the opposing counsel fails to provide the materials and information
       requested, the party may seek a court order. Upon a showing that a party
       has not complied with Section 1054.1 [requiring the prosecutor to disclose
       information to the defendant] or 1054.3 [requiring defense counsel to
       disclose information to the prosecution] and upon a showing that the
       moving party complied with the informal discovery procedure provided in
       this subdivision, a court may make any order necessary to enforce the
       provisions of this chapter, including, but not limited to, immediate
       disclosure, contempt proceedings, delaying or prohibiting the testimony of
       a witness or the presentation of real evidence, continuance of the matter, or
       any other lawful order. Further, the court may advise the jury of any failure
       or refusal to disclose and of any untimely disclosure.”
       Although Penal Code section 1054.5, subdivision (b), provides trial courts with
procedures for enforcing compliance with the criminal discovery statutes, the trial court
could not rely on this statute after Dixon entered his plea.
       In People v. Bowles (2011) 198 Cal.App.4th 318, 326 (Bowles), a criminal case,
the prosecution’s discovery violation came to light only after the jury reached a verdict.
As a remedy for the violation, the trial court granted the defendant a new trial, relying on
the language of Penal Code section 1054.5, subdivision (b), that it could enforce the
discovery provisions by “‘any other lawful order.’” (Ibid.) The People appealed, arguing
that the trial court erred by granting a new trial as a discovery sanction under Penal Code
section 1054.5 because sanctions under that statute were not available posttrial. The
reviewing court agreed, explaining: “Simply put, the purposes of the discovery statutes
cannot be furthered where, as here, a jury has already rendered its verdict on the
substantive charges against the defendant and the trial court has decided the remaining
prior conviction allegations. Rather, in this situation any violation of a defendant’s
pretrial right to discovery is appropriately addressed by available posttrial remedies such



                                             15.
as an appeal from the judgment [citation], a motion for new trial [citation], or a petition
for habeas corpus [citation].” (Bowles, supra, at p. 327.)
       Here, there was no jury trial, but the rationale of Bowles still applies. After the
parties reached a plea agreement and the trial court accepted Dixon’s no contest plea to
gang participation, the court could no longer rely on Penal Code section 1054.5 to
enforce any alleged discovery violation.†††
III.   Code of Civil Procedure section 128
       The trial court also relied on Code of Civil Procedure section 128 for its authority
to sanction Campbell.
       Code of Civil Procedure section 128 provides that every court “shall have the
power” among other things, “[t]o preserve and enforce order in its immediate presence”;
“[t]o compel obedience to its judgments, orders, and process, and to the orders of a judge
out of court, in an action or proceeding pending therein”; and “[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.”
(§ 128, subd. (a)(1), (4) & (5).)
       Code of Civil Procedure section 128, like section 187, does not grant trial courts
authority to sanction attorneys for misconduct. Its “generic statements of the court’s
powers to … command obedience to its orders do not by their own terms authorize any
specific form of attorney sanction .…” (Clark, supra, 165 Cal.App.4th at pp. 164-165
[neither Code Civ. Proc., § 128 nor § 187, authorized trial court to sanction attorney for
violation of pretrial orders]; see also Hernandez v. Vitamin Shoppe Industries, Inc. (2009)

       †††We   observe that, at the first hearing on the People’s request for sanctions, the
deputy district attorney apparently agreed with our conclusion. Although the People’s
request cited the criminal discovery statutes, the deputy district attorney told the court
that “it’s questionable” whether those provisions applied because Dixon had already been
sentenced. He continued, “[Section] 1054 pretty clearly envisions a situation where the
remedies are going to be trial remedies, trial provisions, evidentiary.”



                                              16.
174 Cal.App.4th 1441, 1452 [reversing order that attorney who improperly
communicated with represented class members pay defense counsel and class counsel’s
attorneys’ fees; “[Code Civ. Proc., §] 128 does not provide a court with the power to
impose such sanctions.”].)
IV.    Conclusion
       We have concluded that the trial court lacked authority to order the sanctions it
imposed against Campbell. As a result, we need not address Campbell’s first argument
that his conduct did not violate Marsy’s Law or the criminal discovery statutes. If, as
suggested by the record, Campbell filed a meritless lawsuit against Albritton in order to
take his deposition to prepare a defense for Campbell’s criminal defendant client and then
intentionally misled Albritton about the purpose of the deposition by failing to serve him
the summons and complaint, we do not condone such conduct. Although we have found
that the trial court was not authorized to sanction Campbell in the manner that it did, we
do not limit other remedies which may be pursued against him for such conduct.
                                     DISPOSITION
       The sanctions order against Campbell is reversed. The parties are to bear their
own costs on appeal.
                                                                _____________________
                                                                           Oakley, J.‡‡‡
WE CONCUR:


 _____________________
 Gomes, Acting P.J.


 _____________________
 Peña, J.


       ‡‡‡Judge  of the Superior Court of Madera County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                            17.
