Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA079985, Gary J. Ferrari, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Lauren E. Dana, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Fredrick Wayne Kook appeals from a judgment of conviction entered after a jury found him guilty of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and possession of ammunition (§ 12316, subd. (b)(1)). The trial court found true the allegations defendant suffered two prior convictions of a serious or violent felony under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12). It sentenced defendant to concurrent terms of 25 years to life. A prior felony conviction alleged pursuant to section 667.5, subd. (b), was stricken.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that the trial court erred when it denied his motion for new trial based upon his counsel’s involuntary inactive status with the State Bar during a portion of the trial, and the trial court abused its discretion in refusing to strike a prior conviction. The People point out errors in the imposition of court security fees and parole revocation fine. We reject defendant’s contentions and correct the errors, affirming the judgment as so modified.
FACTS
A. Prosecution
Jeanne Lowery (Lowery) was formerly married to defendant. Lowery and defendant separated in January 2005, and Lowery and their son moved into a house in Long Beach, five houses down the street from the house they and defendant had previously lived in together. Shortly after Lowery and her son moved, defendant, with the help of a neighbor, Richard Kelley (Kelley), moved a large gray safe into Lowery’s garage; the safe contained defendant’s firearms from the other house. Defendant said he was moving the firearms to Lowery’s house because he did not want to be caught with them. Lowery did not have the combination for the safe.
In late May 2006, Lowery told defendant that she no longer wanted to be married to him. Shortly thereafter, the safe with the firearms was moved out of her garage and back to what was now defendant’s house.
On September 11, 2008, Lowery saw defendant repeatedly drive around the block and slow down by her house. At one point, she saw defendant in her yard walking aggressively towards her. She was afraid, ran inside the house and locked the door.
On September 16, 2008, Lowery called the Long Beach Police Department and spoke with Detective Peter Lackovic with the firearms unit. She informed him about the incident on September 11 and also told him that defendant had a large gray safe containing firearms in the corner of his garage. Department of Motor Vehicles records confirmed defendant’s address, and a background check on defendant revealed that he had a prior felony conviction and was not allowed to possess firearms. Detective Lackovic also discovered that defendant was currently in custody in county jail, having been released for one day on September 11, 2008, and then taken back into custody on September 12.
Detective Lackovic went to defendant’s residence with Lowery and observed the safe in the garage. He obtained a search warrant on September 17, 2008. On September 18, Detective Lackovic, along with Detectives Sean Irving and James Richardson, went to the residence. No one was home, but using a key that had been provided they discovered various items which indicated defendant was the only occupant of the residence.
When the officers went to the garage, they discovered the safe, which weighed over 1, 000 pounds. They were not able to open the safe initially, but after learning the combination lock was not working, they were able to open it by slightly turning the dial. Detective Lackovic contacted Heather Galloway (Galloway), a forensic specialist, to process the scene prior to the search. Inside the safe, there were a total of 23 different firearms, including handguns, rifles, shotguns, and an assault weapon, along with ammunition, gun magazines, canisters filled with ammunition, and a green tag apparently cut from a uniform with defendant’s last name on it. Every weapon appeared to be operational and in good condition.
Galloway found one latent print on one of the magazines and compared a photograph of the print with a fingerprint card for defendant. She found they matched.
B. Defense
Kelley, a friend of defendant, helped him move from his Long Beach house to a boat in Wilmington in July 2007. Defendant lived on the boat until he was arrested. Lowery was aware that defendant was living on a boat in Wilmington during 2008.
Kelley never saw defendant with a firearm. Kelley never helped defendant move a safe to Lowery’s house. From the period January 1 to September 11, 2008, Kelley saw Lowery on two occasions move items out of defendant’s former house. Kelley also observed that the locks on that house had been changed.
Defendant was in Los Angeles County jail from October 25, 2007 until September 11, 2008. When he was released on September 11, he provided an address in Wilmington. When defendant was rearrested on September 12, he gave the arresting officer the Long Beach address.
Darnell Carter (Carter), an expert in fingerprint analysis, compared defendant’s fingerprints with a photograph of the latent print taken from the Long Beach Police Department. Carter was of the opinion that the photograph of the latent print was not of good enough quality for a comparison to be made.
C. Rebuttal
In 2006, Cheryl Fenton, Lowery’s next door neighbor, observed defendant and Kelley move a safe from Lowery’s garage and into a trailer. They drove it down the street in the direction of defendant’s house.
Galloway spoke to Carter and informed him that there were negatives of the prints. It was standard procedure for experts to obtain copies of negatives if they desired. Galloway would never use a copy of a photograph of a latent print to make a comparison because such a copy would not be of good quality. She would only use the actual photograph, the latent print itself, or digital images.
DISCUSSION
A. Denial of Motion for New Trial
Defendant contends that he was denied his constitutional right to counsel due to the involuntary inactive status with the State Bar of his counsel during a portion of the trial, and the trial court erred in refusing to grant him a new trial on that basis. We disagree.
Defense counsel, Mark Williams (Williams), represented defendant beginning January 20, 2009, through the trial which started on March 18 and concluded on March 20, 2009. On Friday March 20, the jury began its deliberations. It rendered its verdict on Monday, March 23. During this time, Williams still represented defendant.
After the jury reached its verdict on March 23, the court continued the matter to April 16 for motions, a court trial on the prior conviction allegations, and sentencing. When Williams failed to appear, the matter was continued and eventually, on May 1, the Alternate Public Defender’s office was appointed and Williams was relieved. The trial court learned that on March 20, the State Bar ordered the involuntary inactive enrollment of Williams pursuant to Business and Professions Code section 6007, subdivision (c). The State Bar’s action was not related to his representation of defendant.
Business and Professions Code section 6007, subdivision (c), authorizes the State Bar to order involuntary enrollment on inactive status of an attorney whose conduct poses a substantial risk of harm to the attorney’s clients or to the public. (Conway v. State Bar (1989) 47 Cal.3d 1107, 1111.) Williams was placed on inactive status for a period of less than two months.
Defendant moved for a new trial on the ground that his attorney’s placement on inactive status deprived him of his constitutional right to counsel. On June 1, the trial court denied his motion.
The cases cited by defendant do not compel a finding that defendant was denied right to representation by a member of the State Bar. The fact of suspension from the State Bar or involuntary enrollment on inactive status, alone, does not generally establish a denial of the right to counsel or incompetency of counsel. (People v. Ngo (1996) 14 Cal.4th 30, 38; In re Johnson (1992) 1 Cal.4th 689, 696-698, 700, 702).
In Johnson, at the time defense counsel was retained, he had been suspended from the practice of law following a conviction of lewd acts on a child. While State Bar disciplinary proceedings related to defense counsel’s conviction were pending, counsel submitted his resignation to the State Bar. Despite his resignation, he continued to represent the defendant at a pretrial conference, at a court trial, and at sentencing. (In re Johnson, supra, 1 Cal.4th at p. 694.) The Supreme Court held that the fact that defendant’s attorney had been suspended from practice upon a conviction of committing a lewd act upon a child did not establish, as a matter of law, that defendant was denied the right to competent counsel, since such a suspension did not necessarily bear on an attorney’s professional competence. (Id. at pp. 699-700.) The Supreme Court did conclude that representation by a person who has resigned from the State Bar and irrevocably surrendered the right to practice law denies a defendant his right to counsel under article I, Section 15 of the California Constitution. (Id. at pp. 701-702.) Unlike the circumstances in Johnson, defense counsel’s status changed on the day the case was submitted to the jury for deliberation after argument by counsel. While it is true that defense counsel did appear on the following Monday when a verdict was reached, he did not participate in any subsequent matters concerning defendant, including post-trial motions, court trial on the prior violations, or sentencing. He never resigned from the State Bar but continued to be a lawyer, notwithstanding suspension or inactive enrollment. Thus Johnson does not mandate a finding defendant was denied his constitutional right to counsel.
In Ngo, the defendant entered a plea bargain under which he pleaded no contest to various charges in exchange for a 10-year prison sentence. On appeal, Ngo argued that he was denied his right to counsel because at the time of sentencing his attorney was on inactive status due to noncompliance with mandatory continuing legal education (MCLE) requirements. (People v. Ngo, supra, 14 Cal.4th at pp. 32-33.) The Supreme Court held that noncompliance with MCLE requirements does not, as such, establish incompetence. The court stated, “We need not and do not decide whether, under California law, an attorney’s suspension from practice per se is ‘irrelevant’ to the question whether the defendant has received the assistance of counsel; we merely hold that representation of a criminal defendant by an attorney who has been involuntarily enrolled on inactive status for MCLE noncompliance does not, in itself, amount to the denial of counsel.” (Id. at p. 38.) The court did, however, remand the case back to address defendant’s specific claims of ineffective assistance of counsel. (Ibid.)
In the instant case, there was no claim of ineffective assistance of counsel. In fact, during the hearing on the motion for new trial, the trial court indicated that there was nothing in the trial that “even came close to Mr. Kook being denied the right to counsel. I thought Mr. Williams was very capable and very competent, and I’m going to find that.” Counsel for defendant agreed with the trial court’s remarks. Thus, nothing in Ngo compels reversal.
In People v. Vigil (2008) 169 Cal.App.4th 8, 16 the court held that a defendant’s constitutional right to counsel was violated by his attorney’s mid-trial resignation from the State Bar with disciplinary charges pending, for the simple reason that counsel, after his resignation with charges pending, was no longer an attorney eligible to practice law. As discussed above, in the instant case, defense counsel did not resign from the State Bar. In fact, during argument on the new trial motion, the trial court specifically noted that counsel did not resign and continued to be a lawyer notwithstanding suspension or inactive enrollment.
In People v. Barillas (1996) 45 Cal.App.4th 1233, the court held that defendant was not denied his state constitutional right to counsel when his trial attorney was suspended from practice during the last three days of a six-day trial. Counsel did not receive notice of the suspension until after the jury had reached its verdict, and defendant was represented through the trial. The basis of counsel’s suspension was commingling of client funds with his own money, but that did not demonstrate incompetence to provide an adequate defense in a criminal proceeding. The court noted that a breach of professional ethical obligation does not necessarily indicate a lack of knowledge of the law. The court held that while the attorney’s violation of a professional duty rendered him unfit to practice law, the particular violation and subsequent suspension did not affect his professional competence insofar as representation of his client was concerned. (Id. at pp. 1238-1240.) While there is nothing in the record in the instant case as to when counsel for defendant received his notification from the State Bar as to his involuntary status, the trial court found that counsel provided a very capable defense.
Moreover, defendant was acquitted on one count of possession of an assault weapon (§ 12280, subd. (b)), indicating competent representation by defense counsel Williams.
In sum, defendant was not denied his constitutional right to the assistance of counsel under article I, section 15 of the California Constitution. His counsel did not resign from the State Bar, his counsel provided adequate representation, and he was not prejudiced by his counsel’s placement on involuntary inactive status during jury deliberations. (People v. Ngo, supra, 14 Cal.4th at p. 32; In re Johnson, supra, 1 Cal.4th at p. 701.) Thus, the trial court did not err in denying defendant’s new trial motion.
B. Refusal to Strike One of Defendant’s Prior Convictions
When a defendant is sentenced under the “Three Strikes” law (sections 667, subds. (b)-(i), 1170.12), the sentencing court retains the discretion under section 1385, subdivision (a), to strike the prior conviction on its own motion in the interests of justice. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 529-530.) Because a decision to strike or not to strike prior convictions lies within the discretion of the trial court, we cannot reverse that decision except for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.)
The abuse of discretion standard is a deferential one. (People v. Williams (1998) 17 Cal.4th 148, 162.) The question is whether the trial court’s action “‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (Ibid.) That is, whether the trial court’s action is one which would not have been taken by a reasonable judge (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 530-531) or the trial court has acted “in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Franco (1994) 24 Cal.App.4th 1528, 1542-1543.)
Additionally, “‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978; accord, People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
In deciding whether to dismiss prior convictions under section 1385, subdivision (a), the trial court must consider the defendant’s background, the nature of his current offense and other individualized considerations (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531; People v. Dent (1995) 38 Cal.App.4th 1726, 1731), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274; see People v. Jordan, supra, 42 Cal.3d at p. 318). It must determine whether, in light of the defendant’s present and past offenses, “and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, 17 Cal.4th at p. 161; accord, People v. Carmony, supra, 33 Cal.4th at p. 377.)
Defendant’s prior strike convictions were in 1982 for robbery. (§ 211.) Defendant requested that the court strike one of his prior “strike” convictions so he could be sentenced as a second “strike” offender. He argued that the strikes were very old, he was 60 years old at the time of his sentencing, the sentence could still have been significant, and the nature of his offenses, possession of firearms and ammunition, were not violent.
In sentencing defendant, the trial court first observed that defendant’s request to strike a prior “strike” would have “more efficacy” were it not for his other convictions. The observed that defendant “was convicted of the two counts of [section] 211 in 1982. There were, also, two counts of sex with a minor, three years on one, two years on another. [¶] In 1987 he is convicted of a [section] 243 or pled to a [section] 243.4, which is sexual battery. Then 2001 child molest. He received four years, and, then, while he commits this crime, he is on probation for another [section] 243.4, which is sexual battery. [¶] This crime is, in essence, committed while he is, in fact, on probation and it is interesting that he could have gone to prison or 25 years to life when he pled to the [section] 243.4. [¶] But for whatever reason somebody gave him a break at that time and, then, what? A year later he is convicted of this present offense. Every one of the crimes except, perhaps, for the robbery involves the abuse of woman [sic], the abuse of children. [¶] And the abuse of women, the abuse of females, and I agree with [plaintiff’s counsel]. He is a danger to society. He had an arsenal, a small county would love to have and he is an absolute, absolute danger to females and danger to children. [¶] And he absolutely deserves to be in prison for the rest of his life.”
The trial court clearly did not act “in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan, supra, 42 Cal.3d at p. 316.) In view of defendant’s recidivism and inability to conform his behavior to the requirements of the law, the trial court did not abuse its discretion in refusing to strike one of defendant’s prior convictions. (People v. Williams, supra, 17 Cal.4th at p. 161; see, e.g., People v. Carmony, supra, 33 Cal.4th at pp. 378-379.)
C. Security Fees and Parole Revocation Fine
The People submit that the trial court erred in not imposing two court security fees pursuant to section 1465.8, subdivision (a)(1), and a parole revocation fine pursuant to section 1202.45. Defendant acknowledges that this is correct.
Section 1465.8, subdivision (a)(1), provides that a $20 court security fee “shall be imposed on every conviction for a criminal offense....” The fine is to be imposed on every conviction for a criminal offense even if they occurred in just one case. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372 [trial court should have imposed a $20 court security fee for each of the four convictions for a total of $80].
In this case, the trial court imposed one $20 court security fee. Defendant was convicted on two different counts, one for possession of a firearm by a felon and one for possession of ammunition. The trial court should have imposed a $20 court security fee on each of the counts, for a total of $40.
The trial court imposed a restitution fine of $10,000 pursuant to section 1202.4, subdivision (b), but failed to impose the mandatory parole revocation restitution fine of $10,000 pursuant to section 1202.45. (People v. Hong (1998) 64 Cal.App.4th 1071, 1074-1075, 1084-1085.) This, too, was error.
DISPOSITION
The judgment is modified by increasing the $20 fee imposed pursuant to section 1465.8, subdivision (a)(1), to $40 and imposing the mandatory parole revocation fine of $10,000 pursuant to section 1202.45. As so modified, the judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J.ZELON, J.