Opinion
E071009
11-08-2019
THE PEOPLE, Plaintiff and Respondent, v. DAVID BRIAN COOPER, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1700451) OPINION APPEAL from the Superior Court of Riverside County. Randall Donald White, Judge. (Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn A. Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant David Brian Cooper was served with a criminal protective order (CPO) in a domestic violence case, which contained a provision that he surrender any firearms in his possession. It was discovered by the Department of Justice Bureau of Firearms that defendant had failed to surrender his firearms and a search of his house was conducted. He was found in possession of three rifles with characteristics making them assault weapons, four rifles, parts to other firearms and ammunition. He was convicted of eight misdemeanor counts of possession of a firearm, and one felony count of possession of ammunition by a person prohibited due to a court order.
On appeal, defendant claims (1) the trial court erred by permitting the People to prove that he received the CPO by admitting testimony regarding statements in the minute order from the date the CPO was issued; (2) the trial court should have granted his motion for new trial on the grounds of ineffective assistance of counsel; and (3) the cumulative impact of the errors warrants reversal of the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was charged in an amended information with three counts of possession of banned assault weapons (Pen. Code, § 30605, subd. (a); counts 1-3); two counts of felony attempting to receive an assault rifle following the issuance of a protective order (§ 29825, subd. (a); counts 4 & 5); possession of ammunition following the issuance of a protective order (§ 30305, subd. (a); count 6) and eight misdemeanor counts of possession of a firearm by a person prohibited due to a court order (§ 29825, subd. (b); counts 7-14). Defendant was found guilty after a jury trial of counts 6 through 14, and not guilty of counts 4 and 5. The jury could not reach a verdict on counts 1 through 3 and they were dismissed by the People.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant filed a motion for new trial. The motion was denied by the trial court. Defendant was sentenced to three years of probation under various terms and conditions.
B. FACTUAL HISTORY
1. PEOPLE'S CASE-IN-CHIEF
On February 1, 2017, Special Agents Thomas Pellegrini and Jacob Svoboda were employed by the California Department of Justice, Bureau of Firearms. Agents Pellegrini and Svoboda, and four other agents, went to defendant's house based on information that he had not complied with the CPO that had been issued on September 7, 2016, in a domestic violence case. The CPO required him to surrender his firearms for the three years the CPO was in effect. Defendant had not complied with the CPO as of February 1, 2017.
When they arrived, Agent Svoboda explained to defendant they had information he had guns in the house that he needed to surrender. Defendant first told Agent Svoboda that his firearms were being stored at his ex-girlfriend's house in the desert. Defendant appeared to be confused as to why they wanted to know about his firearms. Agent Svoboda explained that when a protective order is issued in California, all guns must be surrendered. Defendant asked, "What is the order, I'm not allowed to have guns?" Agent Svoboda answered that once a protective order was issued that his firearms had to be surrendered. Defendant denied that he was served with an order restricting his possession of firearms. Agent Pellegrini said that his records showed that defendant was present in court and served with the order. Defendant stated, "Yes. The—the bailiff at the courtroom [¶] . . . [¶] said, 'Do you have any guns at home?' and I said, 'No, I don't' and he left." Defendant said he heard nothing about the CPO. Defendant also asked if the order was from "Jackson Lucky" who was the trial judge present on September 7.
Agent Pellegrini was wearing a video camera / recording device during the interaction and arrest; the video was played for the jury. --------
Defendant finally admitted that he had made guns and they were in his house. Defendant agreed to surrender the guns. Three guns, which qualified as assault weapons were found. They did not have "bullet buttons," which would have made them legal to possess. Four long rifles were also found. Two handguns were found. Five parts to guns were recovered. Ammunition totaling 1,500 rounds was found. The ammunition was multi-caliber. Defendant told Agent Pelligrini he had shot one of the guns just a couple days before they arrived. Defendant was arrested for violating the CPO and for having assault weapons.
Agent Svoboda had reviewed the two-page CPO. It was issued on September 7, 2016, and expired on September 7, 2019. It provided that defendant was to have no negative contact with Alexis B. On the CPO, a box was checked, which notated that defendant had been personally served in court with the CPO and that no further service was required. The CPO included the following language in bold on the first page: "must not own, possess, buy or try to buy, receive or try to receive, or otherwise obtain a firearm or ammunition. The defendant must surrender to local law enforcement, or sell to or store with a licensed gun dealer any firearm owned by the defendant or subject to his or her immediate possession or control within 24 hours after service of this order and must file a receipt with the court showing compliance with this order within 48 hours of receiving this order." The second page also included the following language: "NOTICE REGARDING FIREARMS. Any person subject to a protective order is prohibited from owning, possessing, purchasing or attempting to purchase, receiving or attempting to receive, or otherwise obtaining a firearm. Such conduct is subject to a $1,000 fine and imprisonment. The person subject to these orders must relinquish any firearms (by surrendering the firearm to local law enforcement, or by selling or storing it with a licensed gun dealer) and not own or possess any firearms during the period of the protective order. (Pen. Code , § 136.2(d).)"
Riverside County District Attorney's Office Senior Investigator Michael Riley was an expert in weapons operation, maintenance, identification and investigation. Assault weapons were defined by specific features that the gun had, and not based on any name or brand. A "bullet button" could be attached to a firearm prior to 2016 in order to keep the firearm from being classified as an assault weapon. Three of the weapons found in defendant's possession qualified as assault weapons based on their features.
Investigator Riley reviewed the minute order from the hearing on September 7, 2016, when the CPO was ordered. The minutes stated defendant had been served with the CPO; he was personally present at the hearing and no additional proof of service was required; and that " 'Firearms prohibiting notification forms' " were provided to defendant. Investigator Riley was not present in court when defendant was served and had not reviewed a transcript of the proceeding. However, he had been previously assigned to a domestic violence courtroom and seen the procedure for serving the defendant with the CPO. He believed there was a court reporter present during the proceedings and the trial court normally advised the person about the provisions in the CPO.
2. DEFENSE CASE
Defendant testified on his own behalf. Defendant had no recollection of receiving the CPO, nor any paperwork on firearms. He was told by the trial judge at the hearing regarding the domestic violence case involving Alexis that he was not to have any negative contact with her. The trial judge said nothing about guns. He was handed a piece of paper by the bailiff but he did not look at it. It could have been the CPO. He put it in the backseat of his truck and never looked at it. The bailiff asked defendant if he had a gun. Defendant told him he did not have a gun and defendant left the courtroom. He thought the bailiff meant on his person. Defendant stated he was not represented by an attorney at the hearing.
When the agents arrived at his house on the day he was arrested, he was taking a lot of pain medication. The agents never showed him the CPO. He built the firearms because they were cheaper. When he bought the kits to make some of the guns, he was never told how to keep them from being considered assault weapons. He did not know they were illegal assault rifles. Although there was a bullet button on one of the parts in his possession, he claimed he had no idea how it got on the portion of the gun. Later in his testimony, defendant recalled that the bullet button had been included in one of the kits and he put it on.
DISCUSSION
A. ADMISSION OF MINUTE ORDER
Defendant contends the trial court erred by allowing the People to prove that he received the CPO by relying on the minutes from the hearing on September 7, because it constituted inadmissible hearsay. The admission of testimony regarding the minute order was prejudicial because the jury "most likely" found the minute order evidence decisive in proving defendant's guilt. The People contend defendant waived any claim that the minute order constituted hearsay by failing to object on this ground in the lower court, and that the minute order was not hearsay because it was admissible pursuant to Evidence Code section 1280, a theory defendant claims the People did not raise in the trial court.
1. ADDITIONAL FACTUAL BACKGROUND
Prior to trial, the parties discussed that the CPO was put in place in domestic violence case No. RIM1607553. Defendant argued that if the domestic violence case was going to be discussed, he was entitled to have evidence admitted that it was eventually dismissed. The People argued the relevant evidence was that the CPO was issued and he was not allowed to possess firearms. The fact that the domestic violence case was eventually dismissed was not relevant. The trial court excluded any reference to the dismissal of case No. RIM1607553.
During redirect of Agent Svoboda, the prosecutor asked Svoboda if he had reviewed the minutes from the court proceeding in which defendant was served with the CPO to determine if he was present and served with the order. Defense counsel objected as hearsay. The trial court sustained the objection. The prosecutor asked the trial court to take judicial notice of the minutes from September 7, 2016. This included the language that defendant was present in court; he was personally served with the CPO; and the CPO included a firearm restriction. The trial court was willing to take judicial notice; defense counsel again asked that for completeness, the jury be advised that the case was dismissed. The People filed a written motion for the trial court to take judicial notice of its own records in People v. Cooper, RIM1607553; specifically, the minutes from the September 7, 2016, hearing.
The trial court agreed to take judicial notice of the minute order from September 7, 2016. Investigator Riley testified about the minutes. A certified copy of the minutes from the September 7, 2016, hearing was marked as Exhibit 20. Investigator Riley testified the minutes stated " 'Defendant has been served with the criminal protective order.' " Further, " 'Defendant was personally present at the court hearing and no additional proof of service of the restraining order is required.' " An additional statement was read into the record as follows: " 'Firearms prohibiting notification forms provided to Defendant.' "
Investigator Riley admitted he was not present in court when defendant was served and had not reviewed a transcript of the proceeding. However, he had been previously assigned to a domestic violence courtroom and seen the procedure for serving defendant with the CPO. He believed there was a court reporter present during the proceedings and the trial court advised the person as to the protective order's provisions. Exhibit 20 was not admitted into evidence.
2. PREJUDICE
We need not determine if defendant waived the hearsay issue by failing to object at the time the trial court granted the People's request to take judicial notice of the September 7 minutes, or if the testimony from Investigator Riley about the minute order was inadmissible hearsay as the admission of this evidence was clearly harmless. "Generally, California appellate courts apply either one of two standards for assessing harmless error: (1) the Chapman [Chapman v. California (1967) 386 U.S. 18, 24] test (harmless beyond a reasonable doubt); and (2) the Watson [People v. Watson (1956) 46 Cal.2d 818, 836] test (a reasonable probability the error was harmless). [Citations.] The more stringent Chapman test applies in cases where federal constitutional errors are made; the less stringent Watson test applies in other cases." (People v. Nicolas (2017) 8 Cal.App.5th 1165, 1179.)
Defendant contends that the admission of the evidence violated his Fourteenth Amendment right to due process because the statements in the minute order did not fall under any firmly rooted hearsay exception and did not contain any indicia of trustworthiness. The People insist the error is merely state law error. The error in this case is harmless under either standard.
If the challenged evidence " 'is merely cumulative of other direct evidence, the error will be deemed harmless.' " (People v. Houston (2005) 130 Cal.App.4th 279, 296; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1119.)
Here, the evidence introduced through the testimony of Investigator Riley was the same evidence that was on the CPO admitted as Exhibit 19. Defendant does not dispute that the CPO was properly admitted. The CPO contained evidence that defendant was present in court on September 7, 2016; he was served with the CPO; and it contained a firearm restriction. Defendant speculates that the jury relied on the minute order evidence in finding he was aware of the CPO. However, defendant does not acknowledge the same statements were in the CPO.
Further, defendant himself acknowledged when Agents Svoboda and Pelligrini arrived at his house that he had knowledge of the court proceeding during which the CPO was ordered. Defendant asked the agents if the order had come from the trial judge who presided over the September 7 hearing. He also admitted that he spoke with a bailiff as to whether he possessed any guns. This evidence clearly supported that defendant was in court on the day the CPO was ordered, and the jury could reasonably conclude that he was served with the CPO based on the language in the CPO.
Finally, the fact that defendant was acquitted of counts one through five does not support that the error here was prejudicial. Those counts required the jury to consider whether defendant was aware that he was in possession of assault weapons and whether parts found were sufficient to constitute firearms.
Based on the other evidence presented in the trial court, the admission of the same evidence in the form of testimony based on the minutes from the hearing was clearly harmless beyond a reasonable doubt.
B. MOTION FOR NEW TRIAL
Defendant claims the trial court erred by denying his motion for new trial based on ineffective assistance of his trial counsel. Specifically, he claims that his trial counsel should have obtained the transcript from the September 7 hearing to corroborate that defendant was not informed in open court about the issuance of the CPO and the need to relinquish his firearms.
1. ADDITIONAL PROCEEDINGS
Defendant was appointed new counsel to file a motion for new trial (Motion). It was alleged in the Motion that defendant received ineffective assistance of counsel based on (1) the public defender's office, and in particular his trial counsel Deputy Public Defender Brianne King, had an undeclared conflict of interest that arose prior to trial; (2) his counsel failed to investigate and/or introduce significant evidence what would have resulted in an acquittal of defendant; and (3) counsel failed to request an acquittal pursuant to section 1118.1 despite the People's failure to prove the elements of count 6, possession of ammunition.
Defendant argued that at the domestic violence hearing conducted on September 7, 2016, defendant was represented by the Riverside County Public Defender's Office, specifically Jennifer Loflin. King was Loflin's supervisor and took over defendant's case. Loflin failed to adequately represent defendant because she neither advised him of the need to surrender his firearms nor discussed the CPO with him. King, as Loflin's supervisor, and the public defender's office, both were responsible for Loflin's poor performance.
Further, defendant obtained a transcript from the September 7 hearing and King was aware he had a copy. The transcript was attached as Exhibit 2 to the Motion. At the hearing, Loflin was appointed counsel for defendant. Loflin requested that defendant be released on his own recognizance. The People had no objection and he was to be released on his own recognizance. The trial court advised defendant, "And then, sir, I am issuing a no negative criminal protective order. Did you have any questions about that? Defendant responded, "no." Defendant was advised to wait for his paperwork.
Relying upon the transcript, defendant contended that Loflin never discussed the CPO with him, and the trial court never advised him of its contents. Such allegation by defendant that Loflin did not discuss the CPO with him created a conflict of interest with the public defender's office. If Loflin failed to advise defendant, it created liability for the public defender's office and King may not want to pursue the issue at defendant's trial.
Further, defendant contended that King provided ineffective assistance of counsel by failing to introduce the transcript from the September 7 hearing at trial. Despite having access to the transcript, King failed to introduce it at defendant's trial to show he may not have been advised about the firearm and ammunition restriction or may not have received the CPO. The transcript also contradicted Investigator Riley's testimony that protective orders were normally read in court. The prosecutor was able to argue in closing that the CPO was read in court. If King had introduced the transcript, the results of the proceeding would have been different.
Finally, King should have moved for dismissal of count 6, the possession of ammunition. The instructions defined ammunition as a "bullet, cartridge, magazine clip, speed loader, auto-loader, or projectile capable of being fired from a firearm with deadly consequence." The People did not introduce any evidence supporting that the ammunition found was capable of being fired from a firearm.
King provided a declaration. She was unaware that Loflin appeared for defendant at the September 7 hearing until after defendant's trial. She had knowledge prior to trial that defendant was claiming that he was never served with the CPO, or if he had been served, he was not advised about the CPO requiring that he surrender his firearms. King stated, "As a matter of trial tactics and strategy, I did not order a copy of the transcript prior to the trial, as I suspected that the transcript would indicate that he had indeed been served the protective order and advised that he could not possess firearms or ammunition." She also declared, "I have since reviewed the transcript of the September 7, 2016, arraignment. The transcript supports [defendant's] contention that the judge did not advise him that he could not possess firearms and ammunition on that date or at that particular hearing." She did not state she had seen the transcript prior to trial.
The People filed a response. Based on King's declaration, she was unaware that Loflin had represented defendant on September 7. She could not have a conflict of interest if she was unaware of Loflin's representation. Further, King made a deliberate choice not to order the transcript from the September 7 hearing. This was a matter of trial tactics and strategy rather than a failure to investigate. King reasonably decided that the transcript would show defendant had been served with the CPO and that he was advised of its contents. She used the lack of transcript as a tactic in her closing argument. Such determination not to pursue the transcript was reasonable.
Further, a motion for acquittal on count 6 would not have been granted. Finally, there was no prejudice.
The trial court tentatively ruled to deny the Motion. Defendant's counsel argued that King had failed to investigate the transcript. The prosecutor responded that although King ended up being wrong about the transcript, it was still a trial tactic. Further, the jury would not believe that defendant did not read the CPO. The trial court denied the Motion without comment.
2. STANDARD OF REVIEW
We evaluate the trial court's denial of a new trial motion alleging ineffective assistance of counsel using a mixed standard of review. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) "On appeal, all presumptions favor the trial court's exercise of its power to judge the credibility of witnesses, resolve any conflicts in testimony, weigh the evidence, and draw factual inferences. The trial court's factual findings, express or implied, will be upheld if they are supported by substantial evidence." (Id. at p. 724.) We exercise our independent judgment to determine whether, on the facts so found, defendant was deprived of his constitutional right to effective assistance of counsel. (Id. at p. 725.)
To establish ineffective assistance of counsel, "[f]irst, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Strickland v. Washington (1984) 466 U.S. 668, 687.)
" ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation] and . . . "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." ' " (People v. Hinton (2006) 37 Cal.4th 839, 876.)
3. ANALYSIS
On appeal, defendant only contends the Motion should have been granted based on his trial counsel's failure to obtain the transcript from the September 7 proceeding, and does not argue the alternative grounds of conflict of interest and the failure to bring a section 1118.1 motion on count 6.
Defendant has not shown that his trial counsel provided deficient representation by choosing to not obtain the transcript from the September 7 hearing. Counsel had information that the CPO stated that defendant was served with the order and that it contained a clear provision he could not possess firearms. Counsel averred in support of the new trial motion, "As a matter of trial tactics and strategy, I did not order a copy of the transcript prior to the trial, as I suspected that the transcript would indicate that he had indeed been served the protective order and advised that he could not possess firearms or ammunition."
Counsel could reasonably conclude that the transcript would produce favorable evidence for the prosecution in that it would show that defendant was in court, and that he was given the CPO, which contained a clear firearm provision. Without the transcript, counsel could reasonably argue that defendant was unaware of the provisions of the CPO. In fact, defense counsel argued in closing argument that the People had the burden of proof and the best way to prove defendant got notice was to introduce the transcript from the hearing; they failed to present the transcript. There was no evidence defendant was informed in the instant case. Counsel made a reasonable, tactical decision to not obtain the transcript, a decision this court will not second guess.
The trial court did not abuse its discretion in denying the Motion as defendant failed to show that his counsel provided deficient representation. We need not consider prejudice. (Strickland v. Washington, supra, 466 U.S. at p. 697 [a reviewing court may decide an ineffective assistance of counsel claim without addressing both components of inquiry "if the defendant makes an insufficient showing on one"].)
C. CUMULATIVE ERROR
Defendant contends the cumulative effect of the errors created a "synergy" that denied him a fair trial. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' [Citation.] When the cumulative effect of errors deprives the defendant of a fair trial and due process, reversal is required." (People v. Williams (2009) 170 Cal.App.4th 587, 646; see also People v. Mincey (1992) 2 Cal.4th 408, 454.) We have found no error in the trial court's denial of the motion for new trial. Further, we concluded that any conceivable error in admitting testimony from the minute order was harmless. As such, either collectively or individually any errors in this case were harmless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. FIELDS
J.