PEOPLE v. NGO

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Tin Trung NGO, Defendant and Appellant. IN RE: Tin Trung NGO on Habeas Corpus.

Nos. H013170, H013521.

Decided: August 21, 1995

Robert Spertus (under appointment by the Court of Appeal), Berkeley, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman and Ann K. Jensen, Supervising Deputies Atty. Gen., for plaintiff and respondent.

Defendant Tin Trung Ngo entered a negotiated plea of no contest to 13 offenses and related enhancements arising from multiple robberies.   At sentencing he unsuccessfully sought a new appointed counsel and to withdraw his plea.   The trial court then sentenced defendant to an agreed 10 years in prison.

On appeal, defendant contends that he received ineffective assistance of counsel because his counsel (1) was an inactive member of the State Bar at the time of the sentencing hearing because of noncompliance with the State Bar's mandatory continuing legal education (hereafter, MCLE) requirements, and (2) failed to object to his sentence in certain respects.   Defendant has also filed a petition for writ of habeas corpus predicated upon his counsel's inactive status.

We agree that defendant was afforded ineffective assistance of counsel because of his counsel's status and the error is reversible per se.   Since the People have stipulated to trial counsel's status for purposes of defendant's appeal,1 we reverse the judgment, remand for resentencing, and dismiss the petition as moot.

BACKGROUND

Defendant's probation report indicated that defendant wished to be appointed new counsel and withdraw his plea.   At sentencing, the trial court heard defendant's reasons at a hearing outside the presence of the district attorney.   Defendant offered that he had pleaded to charges he did not commit.   His counsel added nothing except that he had learned of defendant's desire only the day before.   The trial court opined that defendant was not rushed into his decision, denied the plea-withdraw motion, and did not expressly rule on the new counsel motion.

The sentencing hearing occurred on August 5, 1994.   The State Bar had placed defendant's trial counsel on inactive status for MCLE noncompliance on July 25, 1994.2  Defendant first indicated knowledge of his counsel's status in a declaration supporting his application for a certificate of probable cause to appeal so as to challenge the denial of his plea-withdraw motion.

DISCUSSION

 There is no question that when an attorney on inactive status and with disciplinary charges pending submits his resignation from membership in the State Bar and then represents a defendant in a criminal case, the defendant is denied the right to counsel guaranteed by the California Constitution.  (In re Johnson (1992) 1 Cal.4th 689, 693, 694, 4 Cal.Rptr.2d 170, 822 P.2d 1317 (hereafter, Johnson.)

In Johnson, the petitioner's attorney had been convicted of a crime of moral turpitude and suspended from practice because of the conviction.   He then resigned from the State Bar while disciplinary proceedings were pending, but thereafter represented the petitioner throughout a sale-of-cocaine trial.   In vacating the petitioner's conviction, the court reasoned that the attorney's resignation was determinative:  “Representation by a person who has never been admitted to the practice of law or has fraudulently procured admission denies a defendant his rights under article I, section 15, [of the California Constitution] as a matter of law.   So too does representation by a person who, although formerly licensed, has resigned from the State Bar.   The court will not examine the quality of the representation in such cases since an essential element of the constitutional right to counsel is counsel's status as a member of the State Bar.”  (Johnson, supra, 1 Cal.4th at p. 701, 4 Cal.Rptr.2d 170, 822 P.2d 1317, fn. omitted.)

In reaching its decision, the court first rejected the petitioner's threshold contention that the suspension of his attorney, as distinguished from the resignation, established as a matter of law that the attorney was incapable of providing, and did not provide, competent representation:  “We are not persuaded that a suspension under [Business and Professions Code] section 6102 [after conviction of a felony or crime of moral turpitude] alone creates a presumption of incompetence or deprives the defendant of his right to the ‘fully licensed attorney’ contemplated by article I, section 15.   Commission of any felony or other offense that may have involved moral turpitude triggers the suspension whether or not the crime was related to the attorney's practice or affected the quality of the attorney's representation of clients.”   (Johnson, supra, 1 Cal.4th at pp. 696–697, 4 Cal.Rptr.2d 170, 822 P.2d 1317.)

 The People argue that Johnson stands for the proposition that mere administrative inactive status does not trigger the presumption that counsel was ineffective.

We disagree with this interpretation.   We construe the court's analysis rejecting the petitioner's threshold contention as an analysis that focuses upon the reason for the attorney's suspension.   The court explained:  “[A] conclusion that an attorney who has committed an offense of moral turpitude is unfit to practice law is not necessarily a judgment on the attorney's professional competence.   We do not presume that a suspended attorney lacks professional competence.  ‘Merely because an attorney has been disciplined for some infraction of the rules by which he must abide is no reason for assuming that he is not a qualified and efficient lawyer.   Erring morally or by breach of professional ethics does not necessarily indicate a lack of knowledge of the law.’  [Citations.]  [¶]  Professional competence is only one element in determining whether an individual is ‘fit’ to practice law.   Professional competence demonstrated by education and examination and good moral character are required for admission to practice.  [Citation.]  Commission of acts manifesting moral turpitude may establish unfitness even if the attorney's professional competence is not disputed.”  (Johnson, supra, 1 Cal.4th at p. 699, 4 Cal.Rptr.2d 170, 822 P.2d 1317.)

It therefore follows that where the reason for the suspension relates to professional competence the suspension itself should trigger the presumption.

 Here, there can be no serious dispute that the State Bar's MCLE requirements, which stem from legislative (Bus. & Prof.Code, § 6070) and judicial (Cal.Rules of Court, rule 958) command, are requirements directly related to professional competence.   Failure to maintain the standards necessarily reflects “a legislative or judicial assessment of the attorney's professional competence.”  (Johnson, supra, 1 Cal.4th at p. 697, 4 Cal.Rptr.2d 170, 822 P.2d 1317, fn. omitted.)

 We therefore conclude that representation of a criminal defendant by an attorney who has been placed on inactive status by the State Bar because of failure to maintain the MCLE requirements fails to afford the right to counsel guaranteed by article I, section 15 of the California Constitution.   Reversal is required without an examination of the quality of or the prejudice caused by the representation.  (Cf. Johnson, supra, 1 Cal.4th at p. 702, 4 Cal.Rptr.2d 170, 822 P.2d 1317.)

DISPOSITION

The judgment is reversed.   The matter is remanded for resentencing.   At the resentencing hearing, defendant may renew the motion to withdraw his plea and make any other appropriate motions or arguments such as the sentence challenges he raised in his secondary arguments on appeal.   The petition for writ of habeas corpus is denied as moot.

FOOTNOTES

1.   The record on appeal did not establish trial counsel's status, but the People agreed that we could take judicial notice of the State Bar records presented to the court via the habeas corpus petition.   (Evid.Code, §§ 459, subd. (a), 452, subd. (h).)

2.   The State Bar reinstated defendant's trial counsel on October 24, 1994.

PREMO, Associate Justice.

COTTLE, P.J., and ELIA, J., concur.