People v. Medler

177 Cal. App. 3d 927, 223 Cal. Rptr. 401, 1986 Cal. App. LEXIS 2608

Opinions

Opinion

ANDERSON, J.

*

This is an appeal from a judgment rendered after a jury trial at which defendant, Merican Lewis Medler (appellant herein), was found guilty of two counts of Penal Code¹ section 245, subdivision (a) (aggravated assault), and sections 236/237 (false imprisonment). The jury also found that appellant personally used a firearm in the commission of the above offenses in violation of section 12022.5.

Appellant was sentenced to a total of two years in state prison. The court sentenced him to the mitigated term of two years for the violations of section 245, subdivision (a), to be served concurrently. Appellant was sentenced to the midterm of two years for the violation of sections 236/237, to be served concurrently. The court struck the use of firearm enhancement on all three counts for the purpose of sentencing.

Angela Ray had been the girlfriend of appellant on and off for two or three years while she was in high school. She broke up with him because she was scared of him. On August 12, 1982, Angela was at home with her four-year-old brother and Teresia Foxx. At approximately 11:45 p.m., Angela answered a knock at the door recognizing the voice of Terry Atkins. As Angela opened the door appellant, who had sneaked up behind Atkins, ran into the house.

Appellant immediately grabbed Angela, picked her up, and threw her against a large television set where she hit her head and fell to the floor. He ordered her to get up and when she hesitated, he kicked her. While pointing a gun at Teresia, appellant told her that if she called the police he would shoot both Teresia and Angela.

Thereafter, appellant again grabbed Angela and forced her outside onto the patio, where she tripped and fell on a hose. Appellant threatened her life, forcing her to feel the gun in his pocket with her hand. Meanwhile, Terry Atkins called the police. Subsequently, appellant’s friends came in the backyard and warned him that the police were coming. Appellant poked the gun in Angela’s side, forced her inside and ran out the front door.

When the police arrived, appellant was lying down in the back seat of a car parked in front of Angela’s next door neighbor’s house. The officers found a loaded .22 caliber revolver underneath the front seat.

I

Appellant contends that he was denied the effective assistance of counsel because his attorney had been suspended from practice for nonpayment of State Bar dues. It is true that appellant’s counsel, Demea Washington, was suspended from the practice of law at the time of trial in February of 1983. However, appellant cites no authority, and we are aware of none, which requires automatic reversal for a conviction solely because counsel was on suspension for failure to pay his or her bar dues.

Appellant relies on City of Downey v. Johnson (1968) 263 Cal.App.2d 775 [69 Cal.Rptr. 830] and People ex rel. Dept. of Public Works v. Malone (1965) 232 Cal.App.2d 531 [42 Cal.Rptr. 888], for support. However, those cases are inapplicable to the case at bar. They hold that a judgment is void wherein a nonattorney, that is, a layman who is not a member of the California State Bar or any other bar, acts as an attorney. The United States Supreme Court has held that the Sixth Amendment right to the effective assistance of counsel is violated “when the accused is ‘represented’ by a layman masquerading as a qualified attorney; ...” (Harrison v. United States (D.C.Cir. 1967) 387 F.2d 203, 212.) In contrast, an attorney who has been suspended from membership to the State Bar remains an attorney at law, but is precluded from practicing law. (Lyons v. United States (9th Cir. 1963) 325 F.2d 370.)

In Johnson v. State (1979) 225 Kan. 458 [590 P.2d 1082], appellant argued that he was denied the effective assistance of counsel where his attorney was suspended for nonpayment of fees at the time of trial. The court distinguished this situation from one in which a layman masquerades as an attorney. The court emphasized that the payment itself has nothing to do with the legal ability of the attorney. The court held that in each instance we must examine the actual representation afforded the accused. Appellant therein did not challenge the adequacy of his attorney’s performance at trial. The court concluded that since it was undisputed that appellant’s representation by his counsel was adequate and effective, he was not denied his constitutional right to the effective assistance of counsel. (At p. 1087.)

Similarly, appellant herein does not assert that his attorney’s actual performance was deficient in any way. In fact, the record reveals that counsel put on an able defense by objecting to the use of evidence of other crimes, fully cross-examining the prosecution’s witnesses, opposing the late amendment of the information, and calling three witnesses.

Appellant’s counsel herein met the standards for adequate representation set forth in People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R. 4th 1] and People v. Fosselman (1983) 33 Cal.3d 572 [189 Cal.Rptr. 855, 659 P.2d 1144]. The court in Pope stated that the constitutional right to the adequate assistance of counsel suggests a focus on the quality of the representation provided the accused. In Pope, the court set out a two-step test to determine the adequacy of representation. The defendant has the burden of proving that: (1) his counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates; and (2) his counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense. Fosselman held that this second prong may be satisfied where the defendant shows simply that he was prejudiced by his attorney’s inadequate performance.

Appellant has failed to meet his burden of proving that his attorney did not act as a reasonably competent attorney. He has also failed to show that he was prejudiced in any way by his counsel’s representation. Appellant was not denied the effective assistance of counsel.

II

Appellant next contends that the court erred in not referring him to the California Youth Authority (CYA). The trial court properly concluded that it had no authority to order appellant committed to CYA in view of section 8 of Proposition 8.

Section 8 of Proposition 8, which added Welfare and Institutions Code section 1732.5 states: “Notwithstanding any other provision of law, no person convicted of murder, rape or any other serious fejony, as defined in Section 1192.7 of the Penal Code, committed when he or she was 18 years of age or older shall be committed to Youth Authority.” Section 1192.7, subdivision (c)(23), defines as a serious felony “any felony in which the defendant personally used a dangerous or deadly weapon; ...” The jury herein specifically found that appellant had used such a weapon in the assaults and false imprisonment.

This provision applies to the case before us since the crime was committed after June 9, 1982, the effective date of Proposition 8. (People v. Smith (1983) 34 Cal.3d 251 [193 Cal.Rptr. 692, 667 P.2d 149].)

Although the court struck the firearm finding for the purpose of sentencing, it had no authority to strike the jury’s finding so as to avoid the impact of Welfare and Institutions Code section 1732.5.

In People v. Tanner (1979) 24 Cal.3d 514 [156 Cal.Rptr. 450, 596 P.2d 328], a jury found that defendant had used a firearm in the commission of a robbery. Section 1203.06 prescribes a mandatory prison sentence for those who use a firearm in the commission of certain serious offenses. The court struck the use of the firearm allegation pursuant to section 1385 which provides judicial power to strike allegations which, if proven, would enhance punishment. Defendant was placed on probation for five years. The California Supreme Court held that in enacting section 1203.06 the Legislature did not intend that its mandatory language be subject to section 1385. Consequently, section 1203.06 could not be avoided by employing section 1385 to strike the findings of the jury.²

Therefore, the court herein could not avoid the mandatory language of Welfare and Institutions Code section 1732.5 by striking the firearm use allegation for purposes of sentencing. The court properly concluded that appellant was statutorily ineligible for a CYA commitment.

The judgment is affirmed.

Scott, J., concurred.

Assigned by the Chairperson of the Judicial Council.

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

2 Although the court held that it was error to strike the firearm use finding and send defendant to county jail instead of prison, the court held that it would be unfair to make defendant serve a second term, since he had already complied with his conditions of probation.