
    [No. B245674.
    Second Dist., Div. One.
    Mar. 10, 2015.]
    THE PEOPLE, Plaintiff and Respondent, v. CLYDE WESLEY ANDERSON, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of part II.
    
   Opinion

CHANEY, J.

Clyde Wesley Anderson appeals from his conviction for the murder of Dominique McDaniel on three grounds; that he was deprived of representation by competent counsel at his preliminary hearing; that there is insufficient evidence to support his murder conviction; and that there is insufficient evidence to support the gang enhancements. We disagree, and affirm the judgment.

Background

Anderson was charged by amended information with the first degree murder of Dominique McDaniel (Pen. Code, § 187, subd. (a)), and the attempted murder of Brandy Smallwood (Pen. Code, §§ 187, subd. (a), 664). The information alleged as to both counts that Anderson personally and intentionally discharged a firearm causing great bodily injury and death (former § 12022.53, subds. (d) & (e)(1)); that he personally and intentionally discharged a firearm (former § 12022.53, subds. (c) & (e)(1)); that he personally used a firearm (former § 12022.53, subds. (b) & (e)); and that the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)), causing the offense to be classified as a serious felony (§ 1192.7, subd. (c)(28)). A number of prior juvenile and serious felony convictions were alleged. Anderson pleaded not guilty to the charged offenses and denied the special allegations.

A jury acquitted Anderson of the attempted murder of Smallwood, but deadlocked (one juror favoring acquittal) on the charged murder of McDaniel. Following a second trial for the murder of McDaniel, the jury convicted Anderson of first degree murder and found the firearm and gang allegations true. In a bifurcated court trial the court found true three prior strike allegations.

The court sentenced Anderson to 115 years to life in prison: 25 years to life in prison for the murder, tripled to 75 years to life under the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)); an additional 25 years for the firearm discharge enhancements (§ 12022.53, subds. (d), (e)(1)); and an additional five years, consecutive, for each of the three prior serious felony convictions (§ 667, subd. (a)(1)).

Underlying Events

Late in the morning of Easter Sunday, April 24, 2011, Smallwood and her friend McDaniel (who was then 18, about six years younger than Smallwood) left Smallwood’s sister’s house, in the Compton area of Los Angeles. Having just fought with her niece, Smallwood took with her a knife from her sister’s kitchen, which she gave to McDaniel.

As Smallwood and McDaniel walked past a group of people standing outside a house, a man (later identified as Anderson) approached them, asking “How old is she” — referring to McDaniel — “smoking a cigarette?” Smallwood replied that “she’s old enough,” and Anderson responded, “She looks like she’s 12.” McDaniel, wielding the knife, stepped toward Anderson, saying “Blood, I’m BPS,” or “this is BPS.” “I’m old enough,” or “You’re going to be fucked up.”

Anderson then followed Smallwood and McDaniel as they walked on, and McDaniel turned and talked with Anderson, still holding the knife. Smallwood did not hear the exchange, but then heard Anderson say and repeat, apparently to someone standing nearby, “Cuz, get the burner.” To Smallwood, “Cuz” referred to the Crips gang; and “Get the burner” referred to a gun. McDaniel was still angry, but Smallwood pulled her away and they continued up the street. When Smallwood turned around after walking for a minute or more, Anderson was behind them. McDaniel turned around, spread her arms, palms up, and asked him, “What you going to do?” Anderson pulled a gun from his jacket, put his arm around McDaniel, and with the gun to her chest he fired the gun. McDaniel fell, and- — according to Smallwood— Anderson then pointed the gun at her, but did not shoot. McDaniel died at the scene.

Discussion

I. Anderson Is Not Entitled to Have the Information Set Aside.

Anderson retained Attorney Victor Comstock to represent him, and was represented by Comstock at his September 1, 2011 preliminary hearing, at his September 15, 2011 arraignment (at which his not guilty pleas were entered), and at a pretrial conference on October 25, 2011. At the next pretrial conference, on November 23, 2011, Comstock withdrew as Anderson’s attorney and was replaced by a member of the office of the alternate public defender. On July 1, 2011, however, some months before any of these proceedings, Comstock had been placed on inactive status by the State Bar, rendering him “Not eligible to practice law.”

Anderson moved on February 14, 2012, to set aside the information on the ground he had been unrepresented by counsel at the September 1, 2011 preliminary hearing. The prosecution expressly conceded that Comstock “was not eligible to practice law” at the time of Anderson’s preliminary hearing, but argued that Anderson nevertheless was not deprived of a substantial right that would render his commitment illegal. The motion was heard, argued (briefly), and denied by the trial court on March 13, 2011, on grounds not reflected in the transcript.

On appeal, Anderson reiterates that Comstock was ineligible to practice law at Anderson’s September 1, 2011 preliminary hearing, constituting a per se deprivation of his right to counsel at a critical stage of the proceeding. The People dispute this contention because the reason Comstock had been placed on inactive status was his failure to pay his State Bar dues rather than for anything that would demonstrate a lack of professional competence to represent Anderson.

An order denying a motion to set aside the information may be reviewed on appeal from the judgment of conviction. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519 [165 Cal.Rptr. 851, 612 P.2d 941].) However, “failure to move to set aside the information [(citing § 995)] bars the defense from questioning on appeal any irregularity in the preliminary examination [(citing § 996)].” (People v. Harris (1967) 67 Cal.2d 866, 870 [64 Cal.Rptr. 313, 434 P.2d 609] .)

A. Anderson Was Deprived of His Right to Representation by Competent Counsel at His Preliminary Hearing and Arraignment.

The right of a criminal defendant to the effective assistance of counsel at all critical stages of the prosecution is a substantial right guaranteed by the Sixth Amendment to the United States Constitution and by article I, section 15 of the California Constitution. The preliminary hearing is a critical stage of the prosecution, which is validly conducted only when the defendant is afforded the effective assistance of counsel. (Cal. Const., art. I, § 15; Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [26 L.Ed.2d 387, 396-397, 90 S.Ct. 1999].) If a defendant is denied the effective assistance of counsel at the preliminary hearing, a substantial right has been denied. (People v. Coleman (1988) 46 Cal.3d 749, 772-773 [251 Cal.Rptr. 83, 759 P.2d 1260].)

A valid preliminary hearing is a prerequisite to the filing of an information. (§ 738.) Therefore, as the Supreme Court reaffirmed over 50 years ago, “where it appears that, during the course of the preliminary examination, the defendant has been denied a substantial right, the commitment is unlawful within the meaning of section 995, and [the information] must be set aside upon timely motion.” (People v. Elliot (1960) 54 Cal.2d 498, 503 [6 Cal.Rptr. 753, 354 P.2d 225]; see People v. Napthaly (1895) 105 Cal. 641, 644-645 [39 P. 29].) “[W]here the accused is not legally committed within the meaning of section 995 of the Penal Code, the commitment is voidable. ... It is the same as if no preliminary examination at all had been held .... In such event, of course, the information must be quashed.” (People v. Elliot, supra, 54 Cal.2d at p. 503.)

Anderson was represented by Attorney Comstock at the September 1, 2011 preliminary hearing, and at his September 15, 2011 arraignment. However, on July 1, 2011, Comstock had been placed on inactive status by the State Bar, rendering him ineligible to practice law. Respondent contends that because Comstock’s inactive status resulted from his failure to pay bar membership dues, the record reflects nothing indicating his professional incompetence; his ineligibility to practice law therefore did not deprive Anderson of his right to representation by competent counsel at the preliminary hearing and arraignment. Anderson contends, to the contrary, that the State Bar’s determinations do in fact establish Comstock’s professional incompetence, compelling the conclusion that Anderson was deprived of his right to representation by competent counsel.

The Supreme Court held in People v. Ngo (1996) 14 Cal.4th 30 [57 Cal.Rptr.2d 456, 924 P.2d 97], that “representation of a criminal defendant by an attorney who has been involuntarily enrolled [by the State Bar] on inactive status for MCLE noncompliance [or for any other reasons that do not necessarily establish professional incompetence or constitutionally deficient performance in representation] does not, in itself, amount to the denial of counsel.” (Id. at p. 38.) “Although the right to counsel clearly entails a right to competent representation by a licensed attorney, and although MCLE requirements clearly do relate to professional competence . . . , the inference is unwarranted that any and all noncompliance with those requirements necessarily establishes an attorney’s professional incompetence or constitutionally deficient performance in representation following enrollment on inactive status.” (Ngo, at p. 36; see In re Johnson (1992) 1 Cal.4th 689 [4 Cal.Rptr.2d 170, 822 P.2d 1317] [attorney suspended from practice of law following conviction of crime involving moral turpitude is not necessarily professionally incompetent].)

Under the rule of People v. Ngo, Comstock’s inactive status with the State Bar at the time of Anderson’s preliminary hearing and arraignment is not alone sufficient to establish that Anderson was deprived of his right to representation by competent counsel at those stages of the prosecution. A suspension for failure to pay State Bar dues does not even reflect on Comstock’s competence, much less does it establish his incompetence. (People v. Medler (1986) 177 Cal.App.3d 927, 930 [223 Cal.Rptr. 401] [in the absence of evidence of deficient representation, suspension of attorney for failure to pay State Bar dues does not show incompetence to represent criminal defendant].)

However, the record shows far more than Comstock’s suspension to practice law at the time of the preliminary hearing and arraignment. It shows also that Comstock had stipulated with the State Bar to conduct that subjected him to State Bar discipline. The issue therefore is whether the facts established by Comstock’s stipulation demonstrate his lack of competence to represent Anderson at the preliminary hearing and arraignment. Anderson argues that they do, and we agree.

The State Bar record establishes that on July 1, 2011, Comstock was suspended for failure to pay bar member fees. However, it also reflects that additional disciplinary proceedings were pending against Comstock at that time, based on charges filed in December 2010, arising from acts and omissions during the period from June through November 2009. On July 28, 2011, the State Bar and Comstock entered into a stipulated disposition of the pending disciplinary charges, resulting in Comstock’s one-year suspension, stayed, and his placement on one-year probation with conditions that included a requirement that he take and pass the Multistate Professional Responsibility Examination within that year.

The State Bar record summarizes the conduct that led to the stipulated disposition: “Comstock stipulated that he failed to perform legal services competently after being hired to try to win a new trial for a criminal defendant who was sentenced to 108 years to life in prison. Although he filed a timely notice of appeal, he did no work on the appeal and took no action to have himself removed as attorney of record. When the appeal was dismissed, Comstock did not inform the client to take any steps to reinstate the appeal. [][] Although Comstock filed the notice of appeal solely to preserve the client’s rights, he never advised the client that he didn’t intend to represent him or that he needed to hire a new lawyer. He did not respond to letters from the California Appellate Project, which successfully had the appeal reinstated. [][] He stipulated that he failed to perform legal services competently. He also did not reply to a bar investigator’s inquiries.” Comstock stipulated to the facts underlying this summary, and to the conclusions that he thereby willfully violated rule 3-700(A)(2) of the Rules of Professional Conduct, and Business and Professions Code section 6068, subdivision (i).

This record of the conduct that resulted in the disciplinary charges and the stipulated suspension was before the trial court when it heard Anderson’s motion to set aside the information. It showed that at the time of Anderson’s preliminary hearing, Comstock was suspended from the practice of law for reasons that do not themselves reflect on his professional competence. But it showed also that he was at that time under discipline — on probation and subject to a suspension (stayed on condition of his probation) — arising from stipulated determinations that he had failed to perform legal services competently, and that he had willfully violated the law and professional rules. To this must be added Comstock’s failure to perform his professional duties (which were also mandatory conditions of his probation) to inform the trial court and his client of his suspension during the proceedings, and to seek the court’s permission to withdraw from representation of Anderson. (Rules Prof. Conduct, rule 3-700(A)(2).)

The record thus showed that when Anderson moved in the trial court to set aside the information, Comstock was guilty of willful conduct demonstrating his professional incompetence and resulting harm to a client and to the court. It showed that he was then subject to discipline for that conduct. And it showed that he had violated conditions of his discipline and the Rules of Professional Conduct.

Evidence of Comstock’s guilt of this conduct does not necessarily establish his incompetence when he represented Anderson at the preliminary hearing and arraignment. These facts, if disputed and contradicted, might leave a court with discretion to find that Anderson had not been deprived of his right to representation by competent counsel at the preliminary hearing and arraignment. But these facts were not disputed or contradicted; the trial court had before it no contrary showing. Under the reasoning of People v. Ngo, supra, 14 Cal.4th 30, and In re Johnson, supra, 1 Cal.4th 689, the unrebutted inference that Comstock was not competent to represent Anderson at the preliminary hearing and arraignment stages of the prosecution therefore is conclusive.

B. The Information Need Not Be Set Aside in the Absence of Any Indication of Prejudice Resulting from Anderson’s Representation by Incompetent Counsel at the Preliminary Hearing and Arraignment Stages of the Prosecution.

Anderson contends that his trial court challenge to the denial of his right to competent counsel at his preliminary hearing and arraignment — before he was tried and convicted — was timely, requiring that the information must be set aside without a showing of actual prejudice. In People v. Pompa-Ortiz, supra, 27 Cal.3d 519 (Pompa-Ortiz), our Supreme Court reaffirmed the rule that if the defendant has been denied a substantial right at the preliminary hearing, the information must be set aside “on timely motion.” (Id. at p. 523.) But at the same time it narrowed the circumstances under which a motion may be found to be “timely” under that rule.

Until the decision in Pompa-Ortiz, a deprivation of competent counsel at the preliminary hearing would render the court without jurisdiction to proceed — therefore permitting the error to be raised any time, including for the first time on appeal. (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) But in Pompa-Ortiz, the court distinguished defects that are jurisdictional “in the fundamental sense of legal power to hear and determine a cause,” from those that are jurisdictional but only in the sense that they may justify issuance of an extraordinary writ before trial. (Ibid.; see Harris v. Superior Court, supra, 225 Cal.App.4th at pp. 1144-1145.)

The deprivation of counsel at the preliminary hearing is in the latter category, the court held. It is a jurisdictional defect that may entitle a defendant to a writ prior to trial, but “does not necessarily deprive a trial court of the legal power to try the case if prohibition is not sought.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Following Pompa-Ortiz, therefore, the right to relief without any showing of resulting prejudice will be limited to pretrial challenges, that permit the matter to be “expeditiously returned to the magistrate for proceedings free of the charged defects,” by application for extraordinary writ. (Ibid.) The Pompa-Ortiz rule rests on the belief that a fair trial generally renders harmless any preliminary hearing errors. (Reilly v. Superior Court (2013) 57 Cal.4th 641, 653 [160 Cal.Rptr.3d 410, 304 P.3d 1071]; People v. Hurtado (2002) 28 Cal.4th 1179, 1190 [124 Cal.Rptr.2d 186, 52 P.3d 116].) But once a defendant has been tried and convicted, “irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Letner and Tobin, supra, 50 Cal.4th at p. 139; see People v. Booker (2011) 51 Cal.4th 141, 157 [119 Cal.Rptr.3d 722, 245 P.3d 366] [“the need for a showing of prejudice depends on the stage of the proceedings at which a defendant raises the claim in a reviewing court, and not simply on whether he or she had raised the claim prior to trial”].)

Here, Anderson raised the issue of his counsel’s incompetence soon after its discovery, but he failed to apply for extraordinary writ based on the rule of Pompa-Ortiz that relief is available at that stage of the proceedings— before trial and conviction — without any showing of resulting prejudice. But Anderson has now been tried on the charge of the murder while being represented by counsel whom he does not contend was in any way incompetent — bringing him outside the Pompa-Ortiz rule that the right to relief without any showing of resulting prejudice will be limited to pretrial challenges that permit the matter’s expeditious return to the magistrate “for proceedings free of the charged defects” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529), and that render harmless any incompetence of counsel at his preliminary hearing. (Reilly v. Superior Court, supra, 57 Cal.4th at p. 653; People v. Hurtado, supra, 28 Cal.4th at p. 1190.) In the absence of any showing of prejudice, he is entitled to no relief.

II. Substantial Evidence Supports Anderson’s Conviction.

Conclusion

Anderson was deprived of competent counsel at the preliminary hearing. Had he pursued and perfected relief before he was tried and convicted in a trial free from that defect, he would have been entitled to have the information set aside and to have a new information, preliminary hearing, and arraignment. But that relief is no longer available without a showing that he was somehow prejudiced by the pretrial error, in a manner that his conviction following a full and fair trial did not cure — a showing that we believe would not be possible even if he had attempted it.

The primary disputed issue at trial was the accuracy of Anderson’s identification by various witnesses as McDaniel’s shooter. Despite the various uncertainties and inconsistencies, however, those identifications provided substantial evidence to support the jury’s determination on the issue.

The same reasoning requires our refusal to set aside the jury’s determination that the special allegations charging that the murder for which Anderson was convicted was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further and assist in criminal conduct by gang members. There was substantial evidence that Anderson was an admitted gang member, and that when taunted by McDaniel, a girl about half his age who expressed her affiliation with a rival gang, he obtained a gun from another gang member, pursued her when she walked away, and shot her at close range — in order, a gang expert opined, to preserve the gang’s reputation for violence and control in its home territory. That evidence, apparently credited by the jury, is sufficient to support the jury’s true finding on the special gang allegations.

Disposition

The judgment is affirmed.

Rothschild, P. J., and Bendix, J., concurred. 
      
       All statutory references are to the Penal Code unless otherwise specified.
     
      
       The BPS identification referred to a “Black P-Stone Blood” gang affiliation.
     
      
       The facts showing Comstock’s status are reflected in State Bar records attached as exhibits to the People’s opposition to Anderson’s trial court motion, and relied upon in this appeal by both Anderson and the People without objection.
     
      
       On January 13, 2012, Anderson was rearraigned on an amended information, which modified only the alleged prior convictions.
     
      
       Anderson, the People, and the trial court all refer to section 995 as the motion’s statutory basis. Section 995 provides for the information to be set aside if “before the filing thereof the defendant had not been legally committed by a magistrate,” or if probable or reasonable cause for the commitment was lacking. Section 996 provides that unless the defendant moves to set aside the information, a defendant may not thereafter assert the objections enumerated in section 995.
     
      
       Because Anderson’s motion to set aside the information was brought under section 995, the question whether the rule stated in section 996 is applicable when the motion is brought on nonstatutory grounds, as is appropriate when the error alleged by the motion is not known at the time of the preliminary hearing and is not reflected in the preliminary hearing transcript, does not arise in this case. (Currie v. Superior Court (1991) 230 Cal.App.3d 83, 90, 91 [281 Cal.Rptr. 250] [motion to set aside information based on matters outside preliminary hearing record is nonstatutory motion, not motion under § 995]; see Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1144-1145 [170 Cal.Rptr.3d 780], and cases referenced therein.)
     
      
       “MCLE” stands for “mandatory continuing legal education.” (People v. Ngo, supra, 14 Cal.4th at p. 32.)
     
      
       Anderson does not contend that the record of Comstock’s performance at the preliminary hearing demonstrates any lack of professional competence.
     
      
       Rule 3-700(A)(2) of the Rules of Professional Conduct provides that “A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3~700(D), and complying with applicable laws and rules.” Rule 3-700(D) requires to the client of any papers and property, and return to the client of any unearned fee.
     
      
       Business and Professions Code section 6068, subdivision (i) provides that it is the duty of an attorney to cooperate and participate in any disciplinary investigation or disciplinary proceeding against him.
     
      
       Subsequent State Bar records reflect that as of June 13, 2012, Comstock’s probation was revoked, the stay of his suspension was lifted, and he was actually suspended for one year. He later failed to pass the professional responsibility exam, and was placed on inactive status.
     
      
       Setting aside the complaint against Anderson would not bar his further prosecution for the same offenses. (§§ 999, 1387, subd. (c)(2)(C), 1387.1.)
     
      
       The court held in People v. Letner and Tobin that the rule it announced in Pompa-Ortiz applies to errors challenged before trial, and not just to errors at the preliminary hearing stage of the proceedings. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 139 [112 Cal.Rptr.3d 746, 235 P.3d 62].)
     
      
       The Pompa-Ortiz rule applies only if the right of which the defendant has been deprived is a substantial right (Reilly v. Superior Court, supra, 57 Cal.4th at p. 653), as established by a showing that the error, even though not necessarily prejudicial, might reasonably have affected the hearing’s outcome. (People v. Standish (2006) 38 Cal.4th 858, 863, 882-883 [43 Cal.Rptr.3d 785, 135 P.3d 32]; People v. Konow (2004) 32 Cal.4th 995, 1024 [12 Cal.Rptr.3d 301, 88 P.3d 36].)
     
      
       Anderson has identified nothing indicating he was prejudiced by his pretrial representation by Comstock, and our review of the preliminary hearing transcript has disclosed no indication of prejudicial error.
     
      
      See footnote, ante, page 1411.
     
      
      Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
     