simple case on the law because essentially what happened here is that when we look at the adjudications below which were the only ones before this court of patients by the trial court essentially fifty years of supreme court jurisprudence has been turned on its head and the trial court believed that he had the legal right to eliminate an essential element from the crime of criminal contempt and prosecute miss calends as a summary contempt nor without the necessity of proving that what she did in any of the instances actually  said before the trial even began was that if one of you lawyers in this case commits an act of contempt i'm going to apply the rule of pounders versus watson and that is the standard that i'm going to apply in other words he announced the head of time that every contempt if it occurred in the trial was going to be governed by the more and more and this is quoting from the bloom case that more and more the trials of contempt are looking more like regular criminal trials in other words it's a criminal prosecution and due process requires a hearing that allows for counsel it allows for witnesses to be produced examined and cross examined that's what a contempt hearing is all about you're not allowed to have a jury unless the prosecution is going to  for punishment greater than six months but other than having a jury it's looking more and more like a criminal trial summary contempt however is the rare exception that's the pounders case that's wilson that's the of the wilson case which controlled founders which in turn controls this case it becomes clear what are the kinds of agreed just factual circumstances that allow for summary contempt as opposed to egregious summary contempt why did her acts not fall with found the summer fun i think the best way to answer that is to look at the facts of those cases in which the supreme court of the united grounds that it would incriminate them they were given immunity and they still refused to testify that destroys the prosecution immediately one question what happened here i refused to answer  scenario where you have a case that a judge pounders described as as hanging in a precarious balance where you have one gang member who is accused of killing another gang member that if the jury were to know distinction you're trying to drown well i think there has to be some kind of obstruction or disruption amounting to some kind of obstruction of the orderly process which prevents the trial or threatens the very foundation of the trial from moving moving forward if we look at what happened here take the very first contempt that's before the court you have a forty five minute argued mistrial motion of the presence of the jury that in which was callous was invited to address the court and she out of the presence of the jury after having made a an objection which the court refused to deal with on the merits if i pulled the gun and started shooting it up even though there's no jury i would think that that isn't the rule but i think that out of the presence of the jury gives us some context for finding out whether that orderly procedure of the trial is being disrupted or not here we have effectively a sidebar or out of the presence of the jury argument invited by the court brought on by brought on by and  dismiss the jury at that point she had made a legitimate objection based on the failure of the witness to recollect from her statements and she was unable to get to the merits but contempt and that's that's the problem with summary contempt if you don't have a hearing or a process by which people can argue things such as the semantic language what his view was of the controlling law and the procedure seem tended to fall i think it would come as a great surprise to a judge warner where he now to be told that his explicit efforts to follow founders i think petitioner goes to great efforts to attempt to distance yourself from pounders versus watson and even again in this argument today we've heard comments such as the summary contemptuous disfavor of narrowly construed  and i don't disagree with any of those general propositions this is not something that any court wants to see happening on a daily basis to retain basis but it is something that the supreme court state trial judge is one that this case falls well with dan pounders and the many other cases cited in founders versus watson as an example where confirmations contact needs to be dealt contempt that can be dealt with in a separate proceeding before a separate fact finder versus conduct that needs to be dealt with in a summary fashion and i believe that the supreme court cases discussing this very issue talk about ongoing nature of the trial the courts need to control the proceedings during the trial itself and yes the families on the other cases talk about the disruptive nature of the conduct i think i arguably occurred in trial although there was a strong indication that what the judge was really concerned about where these insulting caricature is are growing that never affected the trial at all and the contempt for seeing itself doesn't happen until months and months i think with nine months after after the trial there there's obviously no effect on the prowl itself if there were presumably the judge would have felt the need the trial judge in that case would have felt the need to to to do something at the time here we have a long trial a trial that's going over a number of months and over a number of weeks i think that's the total time was just a little over a month repeatedly during this trial many instances of disruptive disobedience or confirmations conduct during the trial the trial judge is faced with  prospect he has to or he has hired to bring that trial to a fair conclusion for all the parties now if he simply ignores this conduct or does nothing about it or refers it to a different judge i don't see how  judge warner could have had any hope of controlling that trial and bringing it to a fair resolution within the the rules of conduct that he had set forth in other words we say  that the trial judge can insist that there are rules of decorum rules of evidence and so on and so forth the obey and we say that he can insist on and forcing those during the trial itself but when it comes right down to ok now can i am forced in with summary contempt petitioner saying well no he couldn't do that he had to just set it aside let the trial proceed i don't understand what women he's a trial judge would have in a case such as there to bring the trial to an orderly conclusion if somebody contempt is removed having said that that's perhaps even a step removed from where this court and where the federal courts find themselves under  the this is not an overview review and as the court knows the question is not with this court of considerateness callous comments or speaking objection or with this court of considered miscounts comments about where any of judge warner's rulings and on reasonable application of controlling supreme court precedents and again we submit across the board before contemptuous findings are all supported by the record and we simply apply controlling supreme court p preclusion of any mention of penalty or punishment he repeated that for the closing argument i can understand an order like that in the context of the pounders case were concerned about jury nullification why did i think the short answer question is that under california law that's a standard instruction that's given in every criminal trial i think the number is seventeen point four two of our pattern instruction inviting you know i guess for today's example would be the three strikes case where where perhaps the defense attorney wants to get out there the possibility that this was a three strikes case on the other hand another variety of the you know not referring to a punishment argument as the prosecutors you know let's get this animal off the street and you know some sort of serious crime so it cuts both ways it's a rule that's across the board just corner had reason to believe and  what california state law says you can't do it and under those circumstances where they just want to then have to you know call a halt to the proceedings take up court time out of out of the presence of the more than six months then it has to be a jury trial under the federal constitution there are california law is actually a somewhat more restrictive than them federal law and a death and the leading cases boys versus a food court which which is i'm not sure any further questions that we're prepared to submit it there appear to be no thank you thank you objection and it was clear to the jury because the key witness in the trial was a prison guard who was brought in the testify that this witness this defendant had masturbated in front of this female prison guard and when she wrote him up he threatened her life and that her as she believed the threat because she testified that he was in a cell that was limited to gang members only so she believed that the threat had credibility   prison and the jury rightfully hated this defendant and the judge and prosecutor ganged up on this particular lawyer who was ganged up on by her own client there were three mars than motions