GRANT ON DISCIPLINEChief Trial Counsel of the State Bar of California’s Petition for Writ of ReviewCal.December 22, 2011LIU, J. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In the Matter of Case No. S 197503 GARY D. GRANT, State Bar Case No. 09-C-12232 State Bar No. 173665 A Memberof the State Bar. PETITION OF THE CHIEF TRIAL COUNSEL OF THE STATE BAR OF CALIFORNIA FOR WRIT OF REVIEW OF THE DECISION OF THE STATE BAR COURT Starr Babcock, State Bar No. 63473 Richard J. Zanassi, State Bar No. 105044 Mark Torres-Gil, State Bar No. 91597 OFFICE OF GENERAL COUNSEL THE STATE BAR OF CALIFORNIA 180 Howard Street San Francisco, California 94105 Telephone: 415-538-2012 Facsimile: 415-638-2321 Email: mark.torresgil@calbar.ca.gov Attorneysfor Petitioner Chief Trial Counsel of The State Bar of California OF COUNSEL Kimberly Anderson, SBN #150359 Margaret Warren, SBN #108774 I. Il. IV. VI. TABLE OF CONTENTS Pages PRELIMINARY STATEMENT..........:eSesesesaceseecaeeecaeseesecneesaqeeeeeseaneaesesaeeeseeas 1 ISSUES PRESENTED..0.....cccccccsccecsessssceeeeeereeeeseeneesatesesecnresseesaeesseeeseesieeneerensengens 4 GROUNDS FOR REVIEW OF STATE BAR COURT DECISION......cee 4 STATEMENT OF PROCEDURE .....:cccccsccsecesecesssessesereeesesseessasessuseseesesereetsessereateas 4 STATEMENTOF FACTS.ecccccccsccsscccseeeeeceeeeeeseessesseeceseeneesseessueseseeseenesnesseenagags 7 A. Grant’s Felony Conviction For Possession Of Child Pornography.............. 7 B. A Forensic Examination Of Grant’s Computers Revealed Additional Child Pornography........s:.:cscsceccseeessesseetereeeenereteerereeenesensenieans 8 C. Grant Violated His Probation On Two Occasions Shortly After His Conviction ......ccccccccccesssecsecestessecsccceseeseseeesaeesesaeseeeesesensaresesesenessanesanenen 10 D. Grant Misled The State Bar Court And His Testimony Lacked Credibility cececcceeecesseseseseeseseseseseeeeeeeseeeeeseseeseererassesenseneesasseseesseneeneenens 10 ARGUMENT oo issssscscscsessesesceseeeeeecsersesseeseesneeeeneesaeensaesseesaaeseaeenaeesareneey eeeeaeenees 12 A. Review Is Necessary To Establish Consistency Within The State Bar Court On Recommendations Involving Convictions For Possession Of Child Pornography .............cccceseeeeeeeeeetseeeneeeneereeeneees 12 B. As AnIssue Of First Impression, This Court Should Consider Whether A Conviction Of Possession Of Child Pornography Involves Moral Turpitude Per Se .....cccccceseseeenecscseseseeteteeeeeienenenreeeenes 13 C, Even If Grant’s Felony Conviction Does Not Constitute Moral Turpitude Per Se, The Acts Constituting The Offense Involve Moral Turpitude 0.0... ccsecsssseeseesseeesecneseeesenensenereeesiseersesatteens 16 1. Grant’s Offense Involves Moral Turpitude ..0......eeeeeeeeeeeeees 16 2. Grant’s Probation Violations Signal an Habitual Unwillingness or Inability to Comply with the Law or Conform to Professional NOrMS...........:ccccssesseeseneseererseeeeneeess 17 i TABLE OF CONTENTS Pages 3. The Review Department Did Not Properly Weigh the Mitigating and Aggravating Circumstances.........sss 19 4. The Review DepartmentErred in Rejecting the Testimony of the Forensic Examiner Regarding Additional Images of Child Pornography on Grant’s COMPUUELS 0... eee esses es eeeeeeeeeeeeeeneeeteeeeeeaseeeerssesetessenesecseneneeeesaseeeeees 21 a) The secondary evidence rule did not bar the admission of oral testimony describing images of additional child pornography...........ccccsesesteeeeeeeeteteees 22 b) Oral testimony regarding the ages of subjects appearing in pornographic images found on Grant’s computers did not amount to improper lay Witness teStiMONY.........ccceeceeeeeeteteeteeetseeeereeetaeneereenens 24 5. DisbarmentIs the Only Outcome Sufficient to Maintain the Public’s Confidencein the Legal Profession ...........ccceesceeeeees 26 VIL. CONCLUSION — oeecccccccccccccesresseessseeseeeeeessseneesereeenerasensaesnennresaucsessessereasenaneas 26 il TABLE OF AUTHORITIES Pages Cases Inre Alva (2004) 33 Cal.4th 254 oo. eecscsseseeesessessseceseerenesetessnessssenseseserecesensesenssssesenerasesans 15 Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234 we cseessecssesseneceneeenseeeenerenersesssesssasecseesssnesesseneeceesasessssenaesasens 15 Blair v. State Bar (1989) 49 Cal.3d 762... csscsssssssssessessesseeseeesteacscssseseeesssesesesseeenesensesenesseeenereenseeey 20 In Re Boyd, Jr. (1957) 48 Cal.2d 69 w.eeccecesssssssseseessssesensesessceseseassserseseasenscesessearseseesanseseseenenensa 16 Chang v. State Bar (1989) 49 Cal.3d 114.esesesessesseseeesseseetecerseneresesesecssssneneesesseaeneseesenenesenteseas 19 In re Craig (1938) 12 Cal.2d 93 oeccsssseseeseseeeereesseeeeensnerssnesstecesssasesseseeesseseneneneenenensnenenaens 14 Dart Industries, Inc. vy. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059 oo.ccscsseeseseeeesesseeerereneesssssesessesenteeseeessesseessesesesesesenns 24 In re Hallinan (1954) 43 Cal.2d 243. ccceesecssseescsssceesesenenseessseraesecsesesssessesasesesesrenseseseenneessesenenties 14 In re Higbie (1972) 6 Cal.3d 562 ..eecsececssssssessssresescessesnsesesenseeesssrsnerscssesseasecenesesenecsenaneaeaseseneeas 15 Inre Kelly (1990) 52 Cal.3d 487... ccccsesssseessessecsesssessnseseseesseesnensseeerseesseneenenseeeseseeseesseneney 17 In re Lesansky (2001) 25 Cal.4th 11 occ cecesssscsessseseessenecsenereseenensessnersssesesassssesseseerasesensees 14,26 Maltaman v. State Bar (1987) 43 Cal.3d 924... cssessssssseseseeneseserseeesetscnsesssessrssssseesssssessssassesesseassenaneens 21 New York v. Ferber (1982) 458 U.S. 747 oe eecessccsssssseeesseesesesessessensneceenenesseeeessessseesesensasessesseseneeeesesgs 14 ill TABLE OF AUTHORITIES Pages Cases Olguin v. State Bar (1980) 28 Cal.3d 195.esecsecseseersensenseseseereneeetersenssseaseassesenessenansanseveesesasiees 19 In re Olquin-Rufino (BIA 2006) 23 I & N Dec. 896 oo. cecceeeeseeseseneeeeseseeseietesienerseeseneeenessesseeaseeseesentes 14 Osborne v. Ohio (1990) 495 U.S. 103 ..cecceeeeesesseseeesseseeesecsesenesecenenenseseetesessreneseenenenererererenessaeenseey 15 People v. Caldwell (2002) 28 Cal.4th 107 occ eesecssssesceseeseeeeesesasesersaseenecsersssenesesenesensanessessnsasanseeeees 25 People v. Farmham (2002) 28 Cal4th 107 occcessesesesseeseeseeeseeeeseeeeserseraenenessessesensessesessensesesetiens 24 U. S. v. Santacruz (9th Cir. 2009) 563 F.3d 894...cecsceeeeeenecteeeeeenereesenssetseaeseesersesenesaseesensesseenes 14 Inre Utz (1989) 48 Cal.3d 468.0.ccceeee cece eeeeeeseenereteeeneeeeenteesneneenetineetenenaenere 20,21 Rules California Rules of Court Rule 9.13(€)(1) cessescecceseseteessessesessseescneessesaneseneseesseteetesseteeceeaesaseneseenssaseaasanseeseey 4 Rule 9.14 iuiecsececnssessescceeseesnenececseceecessueseaecnsauasesaneeeseescesseseessresensesensenees 6 Rule 9.16(a)(1) ecsseccscssceseeseeceseseeecsueseneecseesessecensessecseseseceessessenecesaseessenesasersnsees 4 Rule 9.16(a)(4) cecececssecsesseseeeesseescseseeeenesaesaeeseseseecastessesseesecsessesseraessereeenaasansersee 4 Rule 9.16(a)(5) ceecascssesesseseesereseeeseeeceaeesseeseesesaeesessescessessaneneessecsesssesesneeeaeraseatens 4 Rule 9.20 ———iciesssevescesscssseeecseesneeeesseeeeneeeseecnseeeaneeseseseeevsneceeaeneussenasseesneesens 6 Statutes Business and Professions Code Section 6068, SUbdIVISION (2).........scescseeesteeeseerseeeeeeseeeseesaeeesneeesneettaeenseesenesteneeny 17 Section 6068, subdIVISION (D).........ccecceeessecesseteeseeseeenseseneeseaeeseseeseneenanesssessneessees 5,17 Section 6102 ————racscssssessssssecesesstecsecceceesenecsesseessnecnsneeeessscnessersenseeeesueessesecesaeeeesas 5 Section 6102, SUbdiVISION (C)....... cece cesseeteeeseseseeneeeteeseeesensaeenseseseneesseseeseneesarenes 14 iv TABLE OF AUTHORITIES Pages Statutes Evidence Code Section 250 ———acecessecesssceessceeessncceeseereseueseseesessreesnsaeeseeesneesseaneesspneetranesesseseegs 22 Section 800 ————cancesssvesseccessececssseeceesseeeerenesseuseseessneneeesessaeessaeeseseenereneeeteeeesags 24 Section 1523, SUbdiVISION (C)......eeeeeeeseteeseeseteeseetenesetsaeraneaetsetanteeareassenseesessseaees 23 Section 1523, subdivision (C)(1) oo... sscsecseessesecseeeseeeeeeteeeteeseseasesessueeseeneeseeeeeceeees 22 Penal Code Section 290 ———cecacesasesneseesseceesesnceeceneesseeeessnaueeseeeessecnsessegneesseenerseeuersinererseeeens 15 Section 311.11, subdivision (4)... cceseceseeesesteceecseeetteeereerereeereteneennens 2-5,7,13,16 Section 311.11, sUbdiVISION (€) 0.0... essecseeeesseeeeeteeeeeeetteeteeeteeteeteeseeenseneeeneenerseeees 13 Section 311.4, subdivision (d)........:secesssesseeeeceeeneeeesenesseesneetaeeaeenecseseseaseesaaeaesaesaeess 7 Section 311.4, subdivision (d)(1) ......csccscseccseseneseneeseneeseeeeesnsaesseaenesseesneseeenasas 13 United States Code Title 18, Section 2252A(a)(2) ...esesscsssssseseseseneeeceerereeeneeessetesseneteessenetieerseseeseeeeees 3 Title 18, Section 2252A(a)(5)(B)......sssscssssseesecseeecneeseseeeneeteeeeenenseresesesnessessarerseeaeegs 3 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In the Matter of Case No. S 197503 GARYD. GRANT, State Bar No. 173665 State Bar Case No. 09-C-12232 A Memberof the State Bar. PETITION OF THE CHIEF TRIAL COUNSEL OF THE STATE BAR OF CALIFORNIA FOR WRIT OF REVIEW OF THE DECISION OF THE STATE BAR COURT I. PRELIMINARY STATEMENT Gary Douglass Grant, an attorney and officer of the court who has been practicing law in California since 1994, was convicted of possession of child pornography — a felony. Grant specifically admitted that he “willfully, unlawfully and knowingly possessed images ofminors under the age of18 years old exhibiting their genitals for the purpose ofsexual stimulation ofthe viewer.” (Emphasis added.) (State Bar Exh.4, p. 3.) Based on his conviction, Grant was sentencedto serve jail time and orderedto register for life as a sex offender. The State Bar Court Hearing Judge correctly concluded that Grant’s conduct involved moral turpitude and recommendedthat he be disbarred. Yet, despite the prurient and morally void nature of Grant’s actions, the Review Departmenterred in finding that this conduct did not involve moralturpitude, either on its face or based on the circumstances surrounding the crime. To compoundits error, the Review Department concluded that Grant should only face suspension even though he admitted that he possessed images of young children to sexually stimulate himself, twice violated the conditions of his probation shortly after his conviction, and lied to the State Bar Court during his disciplinary proceeding.| The Chief Trial Counsel submits that the record in this case demonstrates conclusively that if the high standards of the legal profession are to be maintained and the public confidence in the profession upheld, Grant must be disbarred. It is entirely incompatible with the standards of our profession to permit an officer of this court who has willingly participated in the child pornography market and whois publicly registered as a sex offender to serve as a memberof the State Bar of California. But on a morefar reaching level, this case invites a primary and fundamental question of first impression regarding whether an attorney convicted of possession of child pornographyin violation of Penal Code section 311.11, subdivision (a), should be summarily disbarred. The Chief Trial Counsel contends that any offense by an attorney that supports a despicable industry that profits on child abuse involves moral turpitude per se and meets the standard for summary disbarment. Both decisional law and expert commentary support the notion that possession of child pornographyis a greaterthreatto children than sexual abuseor prostitution becauseit is the lifelong recordation ofthe sexual degradation of a child. The Review Department’s conclusion that possession of child pornography does not automatically involve moral turpitude becausethe The Review Departmentfailed to give proper weight to Grant’s continuing obstructions of the law in the form of two probation violations. The Review Department also failed to properly weigh and consider numerousinstances of evasive testimony by Grant. While the Review Department factored into its decision one instance where Grant testified falsely, it wrongly disregarded many other credibility findings of the Hearing Department. Moreover, both the Hearing Department and Review Departmentfailed to consider Grant’s misleading testimonythat he has no sexual interest in children. (RT, Vol. II, pp. 62:24-63:1.) This testimony was directly contradicted by his confession in the criminal proceeding wherehe stated he viewed child pornographyfor his “sexual stimulation.” (State Bar Exh. 4, p. 3.) Finally, the Review Departmenterred in rejecting testimony of a forensic specialist who described additional images of child pornography discovered on Grant’s computers. circumstances may vary is simply wrong. Possession of child pornography is an ongoing sexual crime against children, and attorneys should not be willing participantsin this criminal market. The Chief Trial Counsel respectfully submits that any member convicted of this offense has automatically forfeited the right to practice law in this state. Even if the Court determines that these cases do not involve moralturpitude per se, review is also necessary to ensure consistency in how child pornography possession casesare treated by the State Bar Court. Presently, disciplinary recommendations in these types of cases can vary significantly. This Court recently rejected several resignations from attorneys with disciplinary charges pending for their child pornography convictions. These cases ultimately resulted in disbarment.” Butin this case, suspension was the recommendeddiscipline. In the parallel petition filed by the Chief Trial Counsel in In the Matter ofFrederick Stocker, the Chief Trial Counselalso challenges a disciplinary proceeding where an attorney convicted of possession of child pornography waspermitted to enroll in the Alternate Discipline Program and received a recommended discipline of a mere thirty days actual suspension. Disbarmentis the appropriate sanction for any attorney convictedof this crime. Anything less than disbarment will erode public ? (See Peter Chamberlain [membership number 53281; resignation case numbers $175875 and 09-Q-10329; conviction referral case number 08-C-14462, disbarred by stipulation, effective July 11, 2011] and Robert Wayne Wiley [membership number 64883; resignation case numbers $178003 and 09-Q-14034; conviction referral case number 08-C-13011; disbarred by stipulation, effective July 6, 2011], both for felony convictions of Penal Code section 311.11, subd. (a), and Thomas Henry Merdzinski [member number 152148; resignation case numbers $175875 and 09-Q-10661; conviction referral case number 08-C-13180; disbarred by stipulation, effective June 25, 2011] for a federal child pornography conviction under Title 18 United States Code section 2252A(a)(5)(B), and Eric Borgerson [member number 177943; resignation case numbers $177186 and 08-Q-13151; conviction referral number 08-C-12600; summarily disbarred,effective June 25, 2011] for a federal conviction of distribution of child pornography conviction undera title 18 United States Code section 2252A(a)(2).) 3 confidence and underminethe integrity of the legal profession. Accordingly, the Chief Trial Counsel respectfully requests that this Court grant review in this matter to address these important issuesor in the alternative, remand the matter back to the State Bar Court to reinstate the Hearing Department’s findings and disbarment recommendation. Il. ISSUES PRESENTED 1. Does a felony conviction of possession of child pornography involve moral turpitude per se? 2. Is the State Bar Court Review Department’s recommended discipline of two years actual suspension with additional terms and conditions appropriate in light of Grant’s felony conviction ofpossession of child pornography with other aggravating factors? Ill. GROUNDS FOR REVIEW OF STATE BAR COURT DECISION A petition before this Court is appropriate at this time, as review within the State Bar Court has been exhausted. (Cal. Rules of Ct., rule 9.13(e)(1).) Moreover, review is necessary to settle important questions of law (Cal. Rules of Ct., rule 9.16(a)(1)), the State Bar Court decision is not supported by the weight of the evidence (Cal. Rules of Ct., rule 9.16(a)(4)), and the recommendeddiscipline is not appropriate in light of the record as a whole. (Cal. Rules of Ct., rule 9.16(a)(5).) IV. STATEMENT OF PROCEDURE On April 8, 2009, Grant was convicted of one count of felony possession of child pornography in violation of Penal Code section 311.11, subdivision (a). (State Bar Exh. 4, p.4 & Exh.8, p. 5.) On September 30, 2009, the Office of the Chief Trial Counsel transmitted Grant’s record of conviction to the State Bar Court with a brief in support of the Chief Trial 4 Counsel’s contention that Grant’s crime involved moralturpitude perse. On October 28, 2009, pursuant to Business and Professions Code section 6102, the Review Department of the State Bar Court placed Grant on interim suspension effective November 20, 2009. (Hearing Department Decision (“Hearing Dept. Dec.”), pp. 1-2, attached as Appendix A.) On December29, 2009, the Review Department determined that “a violation of Penal Codesection 311.11, subdivision (a) (possession of child pornography), ofwhich Gary Douglass Grant was convicted,is a crime which may or may not involve moral turpitude.” The Review Departmentreferred the matter to the Hearing Department for hearing and decision recommendingthe discipline to be imposedifthe court found that the facts and circumstances surroundingthe violation involved moral turpitude or other misconduct warranting discipline. (Hearing Dept. Dec., p. 2.) On October 1, 2010, following a four-daytrial, the Hearing Department issuedits Decision and concludedthatthe facts and circumstances surrounding Grant’s conviction involved moral turpitude and recommendedthat Grant be disbarred. The Hearing Department found that Grant’s criminal conviction involved “a serious breach ofduty owedto anotheror to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respectfor the legal profession, andis, therefore, a conviction ofa crime involving moral turpitude.” (Hearing Dept. Dec., p. 9.) The Hearing Departmentfurther found that Grant’s testimony lacked credibility (Hearing Dept. Dec., p. 3) and that he twice violated his probation shortly after his conviction. (Hearing Dept. Dec., p. 4.) In addition, the Court heard and admitted the testimony of a District Attorney Forensic Specialist who described numerousother images of child pornography found on Grant’s computers and other electronic media owned by Grant.’ The Hearing Departmentalso concluded that Grant’s mitigating factors (no prior record of conviction, extreme emotionaldisability at the time of his misconduct, cooperation, and character evidence) were not compelling. (Hearing Dept. Dec., p. 12.) On September 12, 2011, the Review Departmentfiled its Opinion and Order. Although stating that “. . . possession of child pornography is a reprehensible crime . . .” (Rev. Dept. Op., p. 3) and “we view possession of child pornography as serious and reprehensible misconduct” (Rev. Dept. Op., p. 13), the Review Department concluded that, as a case offirst impression in California, felony possession of child pornography does not involve moralturpitude perse. In addition, the Review Departmentalso rejected the Hearing Department’s moral turpitude finding and determined that based on the facts and circumstances Grant’s misconduct did not merit disbarment. The Review Departmentrejected the evidence presented by forensic specialist Wong of additional images of child pornography found on Grant’s computers and further concluded that Grant’s evidence in mitigation minimally outweighed the single factor in aggravation (lack of candorattrial and misleading the court). The Review Department suspended Grantfor two yearsactual and placed him on probation for three years with various other conditions, including compliance with rule 9.20 of the California Rules of Court. (Review Department Opinion (“Rev. Dept. Op.”), pp. 14-15, attached as Appendix B.) Pursuant to rule 9.14, California Rules of Court, the Chief Trial Counsel now seeks review of the Opinion of the Review Department. ; The Forensic Specialist, Amy Wong,testified as a lay witness asto the ages of children depicted on the pornographic images found on Grant’s computers. 6 V. STATEMENTOF FACTS The following summary offacts reflects that Grant’s misconductis simply too egregious to warrant his continued membership and that a suspension, howeverlengthy, is insufficient. A. Grant’s Felony Conviction For Possession Of Child Pornography On April 8, 2009, Grantpleaded guilty and was convicted in Orange County Superior Court of one countof felony possession of child pornography in violation of Penal Code, section 311.11, subdivision (a).* (Rev. Dept. Op., p. 4; State Bar Exh. 4.) Grantoffered the following factual basis for his guilty plea: “7-28-07, I willfully, unlawfully and knowingly possessed images ofminors under the age of18 years old exhibiting their genitals for the purpose ofsexual stimulation ofthe viewer.” (Emphasis added.) (State Bar Exh.4, p. 3.) Grant was sentencedto 90 daysinjail, three years’ probation andorderedto register for life as a sex offender, among other terms and conditions. (Hearing Dept. Dec., p. 3.) While the circumstances leading up to Grant’s arrest are unclear, Grant admitted that he possessed two imagesthat were “clearly unlawful” of “a young child” (Reporter’s ‘ Penal Codesection 311.11, subdivision (a) reads: (a) Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film,filmstrip, photograph,negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD- ROM,or computer-generated equipment or any other computer-generated image that containsor incorporates in any manner, anyfilm orfilmstrip, the production of which involves the use of a person underthe age of 18 years, knowing that the matter depicts a person underthe age of 18 years personally engagingin or simulating sexual conduct, as defined in subdivision (d) of Section 311.4,is guilty of a felony andshall be punished by imprisonmentin the state prison, or a county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment. 7 Transcript (“RT”), Vol. II, p. 60:19-25), i.e. “clearly someone under 18, considerably younger” (RT, Vol. II, p. 61:14-15) that depicted their genitals and which he possessed for his sexual stimulation. (State Bar Exh.4,p. 3.) B. A Forensic Examination Of Grant’s Computers Revealed Additional Child Pornography Atthe time of his arrest, Grant’s residence was searched and various computers ownedby him (RT,Vol. 1, p. 32:6-10; RT, Vol.II, p. 6:18-21) and other electronic media were seized. (RT, Vol.I, p. 43:1-5.) These materials were delivered to Amy Wong,a computer forensic examiner for the Orange County District Attorney’s Office. (RT, Vol. I, p. 9:17-20.) Wong conducted a forensic examination of these computers andthe other electronic media taken from Grant’s residence. (RT, Vol. I, pp. 21-24.) It was also her job to bookmark imagesof suspected child pornography (RT, Vol. I, p. 116:14-17). And, although she wasnot an “expert” in identifying children’s ages (RT, Vol. I, p. 116:23-25; p. 119:16-18), she felt “comfortable” estimating the ages of children appearing in these images. (RT, Vol. I, p. 116:18-23.) Wong’s forensic examination discovered numerous pornographic imagesfeaturing children under 18 on Grant’s computers that she described as follows:° 1) An examination of a generic PC towerrevealed a peerto peer file sharing program named“Grokster” that contained a video entitled “r@ygoldthreerussianpreteens.mpg”that showedthree girls under the age of 14 naked from the waist down and urinating on the floor. (RT, Vol. 1, pp. 77:4-79:6; Hearing Dept. Dec., pp. 4-5.) 5 Asdiscussed in more detail below, the Chief Trial Counsel did not introduce the actual images of suspected child pornography that Wong discovered on the basisthat both federal and state law prohibit non-law enforcemententities from possessing this material. 2) Also found on the generic PC tower were six other pornographic images of girls under the age of 16 (RT, Vol. I, p. 87:18-20): a) “byriver.jpg” features two girls under the age of 14 exposingtheir bare breasts and genitals (RT, Vol. I, pp. 87:25-88:4); b) “whitpanties.jpg” showsa girl under the age of 16 in panties (RT, Vol.I, p. 88:5-8); c) “Q2.jpg” shows two nude girls under the age of 16 exposing their breasts and genitals (RT, Vol. I, p. 88:9-13); d) “2Fems.jpg” features two girls between the ages of 14 and 16 exposing their breasts (RT, Vol. I, p. 88:14-19); e) “13Gir-1.jpg” shows a nudegirl under the age of 16 exposing her breasts and genitals (RT, Vol. I, p. 88:20-25); and, f) “Friends-12.jpg” shows two nudegirls underthe age of 16 exposing their genitals and touching themselves in the crotch area. (RT, Vol. I, p. 89:2-7.) 3) Wong’s examination of Grant’s Compaq computer revealed the following pornographic images: a) “38.jpg” shows a nudegirl between the ages of 14 and 16 exposing her breasts (RT, Vol.I, p. 90:3-8); b) “39jpg” shows a nude girl between the ages of 14 and 16 exposing her breasts and genitals (RT, Vol. I, p. 91:11-14); and, c) “rivermal 18.jpg” shows a nudegirl under the age of 16 standing ina river exposing her breasts and genitals. 4) Wongalso examined six CDsseized from Grant’s residence. One CD contained nine images of nudeor partially clothed girls under the age of 16 and in sexually suggested poses. (RT, Vol. I, p. 81:23-25; RT, Vol.I, pp. 118:18-119:2 [here Wongcorrects the numberof images she bookmarked]; RT, Vol. I, pp. 83:17-84:13.) 5) Wongalso discoveredthat on June 28, 2004, Grant emailed to three individuals an imageof twogirls under the age of 16 naked in bed and touchingtheir crotch area. (RT, Vol. I, pp. 123:25-124:9.) Cc. Grant Violated His Probation On Two Occasions Shortly After His Conviction Shortly after Grant’s conviction on April 8, 2009, he twice violated his probation. On May11, 2009, Grant admitted that he violated his probation followinghis probation officer’s discovery of adult pornography onhis hard drive. He received 174 days in jail. (State Bar Exh. 11; RT, Vol. IL, pp. 11:4-12:17.) And then again, on September 18, 2009, Grant admitted to violating probation by texting two girlfriends for sexual purposes (“‘sex-texting” or “sexting”) and received an additional nine days in jail. (State Bar Exh. 11; RT, Vol. IIL, pp. 14:24-15:4; RT, Vol. II, p. 13:17-23.) D. Grant Misled The State Bar Court And His Testimony Lacked Credibility The Hearing Department’s conclusion that Grant lackedcredibility and candor was well founded. (Hearing Dept. Dec., p. 3.) The Hearing Department found Grant’s testimony not credible on a numberofpoints: - “Respondent’s claim that his conviction was for a misdemeanorviolation of Penal Codesection 311.11, subdivision (a) is without merit.” (Hearing Dept. Dec., p. 3,n. 1); - “Respondent’s claim that he did not knowingly violate Penal Code section 311.11, subdivision (a) is without merit.” (Hearing Dept. Dec., p. 3, n. 2); - “Respondent’s claim that he admitted culpability to both probation violations only on advice of counsel is without merit.” (Hearing Dept. Dec., p. 4, n. 3); 10 - “Respondent’s Due Process claim concerninghis inability to view the imagesthat formed the basis of Wong’s testimony is without merit.” (Hearing Dept. Dec., pp. 4-5, n. 4.); - “Respondent’s testimony that he had knowledgeofonly two (2) images of child pornography on his computeris not credible.” (Hearing Dept. Dec., p. 6, n. 6); -“ the court does not find respondent’s testimony credible as to the numberof images containing girls under the age of eighteen (18) found on his computers ...” (Hearing Dept. Dec., p. 7); - “Respondenttestified that he resigned his [military] commission because he did not want to go overseas and he wasgetting older. Respondent’s testimony was intentionally misleading. [Emphasis added.] In fact, the United States Army had taken action against respondentbased on respondent’s criminal conviction, which action may haveled to respondent’s involuntary separation from service. Basedon his resignation from the service, respondent was discharged from the United States Army Reserves with the status of ‘other than honorable discharge.’” (Hearing Dept. Dec., pp. 8-9); - “Respondent’s testimony that his legal counsel in the United States Army inquiry into his criminal conviction matter submitted respondent’s resignation and that respondentlater never opened the mail from the United State [sic] Armyindicatinghis discharge status lackscredibility.” (Hearing Dept. Dec., p. 9, n. 8.) This Court mayalso take note of the following additional misleading testimony. Grant testified that he does notfind child pornography “sexually stimulating” (RT, Vol. Il, pp. 62:24-63:1), that he finds such images “repugnant” (RT, Vol. I, p. 187:14-15) and “instantly deleted” these images. (RT, Vol.II, p. 61:15.) This testimony is belied by his confession in support ofhis guilty plea in which he admitted that “7-28-07, I willfully, 11 unlawfully and knowingly possessed images ofminors under the ageof 18 years old exhibiting their genitals for the purpose ofsexual stimulation ofthe viewer.” (Emphasis added.) (State Bar Exh. 4, p. 3.) These words are Grant’s words declared underpenalty of perjury after acknowledging that he had “read, understood, and personally initialed each numbered item above, and I have discussed them with myattorney.” (State Bar Exh. 4, p. 4.) This confession directly contradicts Grant’s trial testimony and cannotbe reconciled. VI. ARGUMENT A. Review Is Necessary To Establish Consistency Within The State Bar Court On Recommendations Involving Convictions For Possession Of Child Pornography Presently, there are no reported cases from this Court that discuss the proper sanction to impose on attorneys convicted ofthis particular offense. Present disciplinary recommendations by the State Bar Court vary greatly, ranging from disbarmentto thirty days actual suspension. (See footnote 2, supra, re disbarment for possession of child pornography followingrejection by this Court of tendered resignations with charges pending; in In the Matter ofFrederick Stocker, filed in this Court as a companion case, an attorney was convictedofpossession of child pornography, stipulated to moral turpitude, was permitted to enroll in the Alternate Discipline Program and received a recommended discipline of a mere thirty days of actual suspension.) The Chief Trial Counsel respectfully submits that allowing Grant(or any other attorney convicted of possession of child pornography) to practice while also a registered sex offender will erode the public’s confidencein the profession. Accordingly, review and direction are requested regarding the appropriate sanction to be imposed on attorneys convicted of felony possession of child pornography. 12 B. As AnIssue OfFirst Impression, This Court Should Consider Whether A Felony Conviction Of Possession Of Child Pornography Involves Moral Turpitude Possession of child pornography is morally reprehensible andintrinsically wrong in every instance. Theevils inherent in child pornography are well understood. Any person convicted of possessing child pornography is an admitted link in the chain ofa criminal enterprise that knowingly degrades and damages children. While the Review Department concededthat possession of child pornographyis a “serious and reprehensible” crime (Rev. Dept. Op., p. 13),it failed to conclude that conviction of felony possession of child pornography involves moralturpitude per se. The Review Department stated that “[w]e do not view possession of child pornography asa crime involving moral turpitude in every case because the circumstances may vary” and because “not every violation of Penal Code section 311.11, subdivision (a), necessarily involves such readiness to commit a sex offense against a child.” (Review Dept. Op., p. 3.) The Chief Trial Counsel respectfully submits that the Review Department’s analysis and conclusion are incorrect and that moral turpitude is inherent in any felony conviction of this offense.® Attorneys mustbe heldto the highest standards of conduct and disbarmentis the only appropriate sanction for members whowillingly participate in child pornographyindustry. ° In order to be convicted of violating Section 311.11, subdivision (a), a person must “knowingly” possess or control any image “knowing”that the image depicts a person underthe age of 18 years personally engaging in or simulating sexual conduct. (Pen. Code, § 311.11, subd. (a).) As defined by Penal Code section 311, subdivision(e), “knowingly” means “being aware of the character of the matter or live conduct.” Thatis, any conviction of possession of child pornography requires a deliberate act with full awareness of the offensiveness of the content of the banned material. This contentwill necessarily depict children engaging in “sexual conduct”asthat term is defined in Penal Codesection 311.4, subdivision (d)(1). Any attorney whosatisfies the elements of the crime of possession of child pornographyalso satisfies the standard for summary disbarment. 13 A memberofthe Bar whois convicted of a felony is subject to summary disbarment“if the offense is a felony .. . and an element ofthe offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude.” (Bus. & Prof. Code, § 6102, subd. (c).) There are no reported California cases concluding that felony possession of child pornography constitutes moral turpitude.’ This issue is of particular importance in the attorney context where the public’s trust in the legal professionrests in great part on the outcomeofits disciplinary proceedings. Thus,this issue is ripe for consideration by this Court. Moralturpitude is an “act of baseness,vileness or depravity in the private and social duties which a man owesto his fellowmanor to society in general, contrary to the accepted and customary ruleofright and duty between man and man.” (dn re Craig (1938) 12 Cal.2d 93, 97; In re Lesansky (2001) 25 Cal.4th 11, 17 [“In the attorney discipline context, the term ‘moralturpitude’ includes ‘particular crimesthat are extremely repugnant to accepted moralstandards such as. . . serious sexual offenses [citation].”].) Moral turpitude mustbe inherent in a criminal conviction as a prerequisite to summary disbarment. Thatis, “[a]n offense necessarily involves moralturpitudeifthe conviction would in every case evidence bad moral character.” (/n re Lesansky, supra, 25 Cal.4th at p. 16; In re Hallinan (1954) 43 Cal.2d 243, 248.) Possession of child pornographyis not a simple victimless crime. Quite the contrary,it is the lifelong recordation of the sexual abuse and degradation of a child. As the Supreme Court stated in New York v. Ferber (1982) 458 U.S. 747: “As one authority has explained: 7 Possession of child pornography has been foundto constitute moral turpitude for immigration purposes. (See U. S. v. Santacruz (9th Cir. 2009) 563 F.3d 894, 896-97 [possession of child pornography violates societal moral standards]; In re Olquin-Rufino (BIA 2006) 23 I & N Dec.896, 898.) 14 ‘(P]ornography poses an even greater threat to the child victim than does sexual abuseorprostitution. Becausethe child’s actions are reducedto a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowingthat the recordingis circulating within the mass distribution system for child pornography.’ Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)” (Ud. at p. 759, n. 10.) In Osborne v. Ohio (1990) 495 U.S. 103, the Supreme Court elaborated onthe Ferber holding and stated that “pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come.” (dd.atp. 111.) Thepractice of law requires good moral character and any attorney convicted of possession of child pornography, particularly a felony conviction, demonstrates his bad moral character and his unfitness to practice law in this state. Possession ofchild pornographyis, in fact, a sexual offense involving minorsasitis less about “pornography”than it is about the sexual predation and abuseof children. (See Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244 [“The sexual abuseofa child is a mostserious crime and an act repugnant to the moral instincts of decent people.”].) To underscore the seriousness ofthis crime, those found culpable of this crime mustregister for life as sex offenders. (Pen. Code, § 290; see In re Alva (2004) 33 Cal.4™ 254 [upholding sex offenderregistration as applied to even a misdemeanor conviction of possession of child pornography].) The sexual exploitation of children cannot be categorized by degrees of harm as suggested by the Review Department. Rather, the legal profession is better served by condemningthis crime without equivocation and subjecting any attorney convicted of this crime to summary disbarment. (See In re Higbie (1972) 6 Cal.3d 562, 570 [the 15. “moral turpitude” standard exists “to ensure that the public, the courts, and the professions are protected against unsuitable legal practitioners.”’].) Cc. Even If Grant’s Felony Conviction Does Not Constitute Moral Turpitude Per Se, The Acts ConstitutingThe Offense Involve Moral Turpitude Thefacts surrounding Grant’s felony conviction — to whichhe pleadedguilty — clearly involve moralturpitude and no reasonable argumentcan be made countering the depravity of his crime. The record also establishes that Grant maintained numerousother imagesof child pornography on his computers, further establishing that his crime involves moral turpitude. 1. Grant’s Offense Involves Moral Turpitude Grantpleaded guilty to felony possession of child pornography in violation of Penal Code, section 311.11, subdivision (a), and, as a consequence, he was required to register for life as a sex offender. Grant further admitted that he used images ofyoung children depicting their genitals for his sexual arousal and gratification. This conductis particularly repugnant and reveals a deeply troubling aspect of his character that Grantis unwilling to confront. Grant’s acts are certainly no less a serious sexual offense than a conviction for indecent exposure which this court has foundconstitutes moral turpitude. (See In Re Boyd, Jr. (1957) 48 Cal.2d 69, 70 [a member’s conviction of misdemeanor indecent exposure is “conduct ... unworthy of a memberofthe legal profession”and involves moral turpitude].) Although Grant would like this Court to believe that his crime resulted from the simple and inadvertent receipt of child pornography, his confession, however, signals he was fully aware ofhis acts and ready to exploit imagesof child pornography for his own disturbed purposes. Grant pleaded guilty to a reprehensible crime that was compounded by the mannerin which heutilized these materials. 16 Unfortunately, the Review Department did not considerat all the repercussions of Grant’s confession that he uses pornographic images of youngchildren for his “sexual stimulation.” Had the Review Department properly considered this evidenceit most certainly would have found that Grant’s conduct involved moralturpitude. By completely ignoring this evidence, the Review Departmentfully accepted Grant’s misleading testimonythat he hasnointerest in child pornography which, puzzlingly, was corroborated by Grant’s therapist. The fact that Grant enjoys child pornography also weakensthecredibility of his claims that he neveractively searched for child pornography orvisited child pornography websites. (RT, Vol.Il, pp. 67:10-15; 67:25- 68:1; 187:7-15.) In addition, Grant maintained numerousother images of child pornographyonhis computer as described by forensic specialist Amy Wong (see discussion, below). The preclusion oftestimony describing this evidence, however, is not necessary to conclude that Grant’s crime involved moral turpitude. As established below, the Review Department improperly precluded the admission ofcritical testimony describing the ages of the subjects depicted in these images. 2. Grant’s Probation Violations Signal an Habitual Unwillingness or Inability to Comply with the Law or Conform to Professional Norms Grant was convicted in April 2009 and within a matter of monthsviolated his probation twice. “Disobedience of a court order, whether as a legal representative or as a party, demonstrates a lapse of character and a disrespect for the legal system that directly relate to an attorney’s fitness to practice law and serve as an officer of the court.” (n re Kelly (1990) 52 Cal.3d 487, 495; Bus. & Prof. Code, § 6068, subd.(a) [it is the duty of an attorney “[t]o support the Constitution and laws ofthe United States andofthis state”] and § 6068, subd.(b) [it is the duty of an attorney “[t]o maintain the respect due to the 17 courts ofjustice and judicial officers.”].) Although the Review Department identified Grant’s probation violations as a factor in the determination of discipline (Rev. Dept. Op., p. 13), the Review Departmentfailed to give proper weight to Grant’s continuing obstructions ofjustice and their bearing on his fitness to practice. Grant’s violations reflect his ongoing disregard for the law and his willingness to jeopardize the safety of the public. Moreover, rather than acknowledge his misconduct, Grant attempted to explain away and minimizethe seriousnessofthese offenses. In connection withhis first probation violation for possessing adult pornography, he testified that while he believed the facts demonstrated a violation he didn’t think he “had the intent to violate the order.” (RT, Vol. II, p. 15:204.) He then explained that he inadvertently downloaded adult pornography from an old hard drive onto his new computer. (RT, Vol. II, p. 15:8-23; p. 17:3-11.) This explanationis entirely implausible. Grant’s lackadaisical and incautious downloading of computer files is particularly alarmingin light of the requirements imposed by the terms of his probation. The Superior Court did not tolerate his violation of its orders as reflected by the fact that he was sentenced to 174 days in jail. (State Bar Exh. 11, p. 2.) Grant’s excuse-making testimony is disturbing and does not give one confidence that he has learned anything from his misconduct. Grant’s second violation occurred in September 2009 a mere four monthsafter his first violation. In that case, Grant admitted violating his probation for sexting two girlfriends. Again, he refuses to accept responsibility for his misconduct. He excuseshis actions by contendingthat he didn’t believe sexting his girlfriends was a violationofhis probation® (RT, Vol.II, pp. 98:4-99:10) andtargets his girlfriends for blame as the § The terms of Grant’s probation included a provision prohibiting the use of “any sexually oriented telephoneservices.” (State Bar Exh.6, p. 3.) 18 initiators of the offending texts. (RT, Vol.II, p. 13:19-23; p. 13:24-14:12; pp. 95:15- 98:3.) Grant continuesto representa threat of harm to the public as evidencedby his willful probation violations and the lack of any understanding ofthe gravity ofhis actions. 3. The Review Department Did Not Properly Weigh the Mitigatingand Aggravating Circumstances The Hearing Department wasnot impressed with Grant’s offer of mitigating circumstancesin light of his overarching lack of candorat trial. (Hearing Dept. Dec., p. 12 [Taken as a whole, the mitigating factors are not compelling”.].) The Review Department, however, concluded that “[o]n balance, Grant’s evidence in mitigation minimally outweighshis sole yet serious factor in aggravation [lack of candor].” (Rev. Dept. Op., p. 12.) The Review Department failed to consider the Hearing Department’s findings that Grant lacked credibility in many other aspects ofhis testimony and offered disingenuous explanations of his conductin other instances. In light of the record, the aggravating circumstancespresent here greatly outweigh any evidence offered in mitigation. “We have held that fraudulent and contrived misrepresentations to the State Bar mayperhapsconstitute a greater offense than misappropriation.” (Chang v. State Bar (1989) 49 Cal.3d 114, 128 [finding that respondent’s misrepresentation to a State Bar investigator delayed its investigation and that his evasiveness before the hearing panel hindered the court’s fact-finding function.]; Olguin v. State Bar (1980) 28 Cal.3d 195, 200 [misrepresentation to the State Bar may result in disbarment].) As the Hearing Department found, Grant’s testimony wasreplete with less than believable testimony in a numberofparticulars (see discussion, above, pp. 11-13) and he intentionally lied to the 19 court about the reasons why he resigned his commission with the U.S. Army Reserve. There is also a strong inference that Grant testified falsely when hesaid that he doesnot find child pornography “sexually stimulating” (RT, Vol. II, pp. 62:24-63:1), that he finds such images “repugnant” (RT, Vol. I, p. 187:14-15) and “instantly deleted” these images. (RT, Vol. II, p. 61:15.) He confessed that he knowingly possessed child pornographyfor the express purposeofhis “sexual stimulation.” (State Bar Exh.4,p.3.) His testimony before the State Bar Court is contradicted by his own confession.” The Review Department disregarded the Hearing Department’s determination that Grant lacked credibility explaining that the hearing judge “never provided the important analysis identifying what portion of Grant’s testimony lacked credibility and why.” (Rev. Dept. Op., p. 11, n. 12.) To the contrary, the Hearing Department expressly noted numerous instances where Grant’s testimony lacked credibility and one instance where Grantintentionally misled the court. “We give great weight to the findings of a referee [trial judge], particularly as to the credibility of witnesses.” (Blair v. State Bar (1989) 49 Cal.3d 762, 775; see In re Utz (1989) 48 Cal.3d 468, 480 [the court is reluctant to reverse credibility findings of the hearing department which had the opportunity to observe the demeanorof witnesses].) The Review Department failed to considerthetotality of Grant’s evasive testimony andhis overall lack of credibility, thus failing to properly weigh the aggravating circumstances. Grant’s lack of candor manifests disrespect to the court and increases the risk that Grant will engage in other misconductifhe is allowed to practice law. , Grant’s therapist testified that Grant was not a pedophile, has no interest in child pornographyandposes no dangerto the public or children. (RT, Vol. II, p. 113:6-16.) Onthe other hand, Grant’s admission that he views child pornography to sexually pleasure himselfweakensthe force of the therapist’s opinions and confirmsthathe is and remains a danger to children. 20 The Hearing Departmentalso properly concludedthat “[s]ince respondentfails to accept full responsibility for his misconduct, he is not eligible for the mitigating factor of remorse.” Indeed, Grant has failed to show remorse or accept any responsibility for his conduct. (See Maltamanv. State Bar (1987) 43 Cal.3d 924, 958 [“though lack of remorseis not an aggravating factor when based upon an honestbelief in innocence... a failure to appreciate the gravity of conduct which is conceded, and a contemptuous attitude toward the disciplinary proceeding, are matters relevant to the appropriate sanction.”’].) The fact that Grant has no prior record of discipline is not a significant mitigating factor given the seriousnessof his crime. (In re Utz, supra, 48 Cal.3d at p. 485.) Likewise, Grant’s cooperation with the State Bar’s investigation is subject to minimal weight given his lack of candor. (Hearing Dept. Dec., p. 10.) And,as correctly stated by the Hearing Department, the mitigation value of his extreme emotionaldisability is “lessened because there was insufficient evidence presented to show that respondent no longer suffers from the disability.” (Hearing Dept. Dec., p. 10.) Grant’s character witnesses are entitled to some mitigating weight, but this evidence does not overcomethe seriousnessofhis offense or the aggravating circumstances clearly evident and on the record. 4. The Review Department Erred in Rejecting the Testimony of the Forensic Examiner Regarding Additional Images of Child Pornography on Grant’s Computers. The Review Department’s rejection of forensic specialist Wong’s testimony concerning imagesof additional child pornography discovered on Grant’s computers was an abuse ofdiscretion. Wongtestified she found additional child pornography on Grant’s computers and 21 CD’s and described the contents of several images of child pornography and the contents of a video entitled r@ygoldthreerussianpreteens.mpg. Shetestified about the approximate agesof the subjects depicted on these materials and bookmarked them for further evaluation by a District Attorney investigator. The actual photos and video were notintroduced into evidence because the Chief Trial Counsel believed they were legally unavailable in that both federal and state law prohibit anyone other than law enforcement from possessing such materials. Without addressing the merits of the Chief Trial Counsel’s contention, the Review Department precluded the admission of Wong’s testimony describing the images. The Review Department concluded that Wong’s testimony violated the secondary evidence rule because the Chief Trial Counsel did not establish that the imagesat issue could not be reasonably procured and,in anycase, Wong’s testimony about the approximate ages of the victims constituted improperlay witness testimony. a) The secondary evidencerule did not bar the admission oforal testimony describing images of additional child pornography The Evidence Code providesthat oral testimony concerning the contents of a writing (a “writing” includes photographic images [Evid. Code, § 250]) is not made inadmissible if the proponent does not have possession of the original or a copy ofthe writing, and the writing is not reasonably procurable by use ofthe court’s process or by other available means. (Evid. Code, § 1523, subd. (c)(1).) Contrary to the Review Department’s finding, the Chief Trial Counsel satisfied thistest. First, it is undisputed that the Chief Trial Counsel never possessed or controlled the images at issue here. Second, the images were not reasonably procurable because both federal andstate lawsrestrict the handling and distribution of such material without any apparent exemption for the prosecution of administrative actions such as 22 disciplinary proceedings. The prosecutor assigned to this matter explained her reasons,in detail, for not offering the actual imagesof child pornographyinto evidence in her Supplemental! Pretrial Statement. The Deputy Trial Counsel summarized herposition as follows: “Federal law restricts lawful possession of child pornography to law enforcement andthe courts for use in criminal proceedings only; while state law restricts possession of such material to law enforcement and for legitimate medical, scientific or educational activities only. The primary rationale behindthis and other statutory restrictions on use of this material is to protect the privacy of the child victims. There appears to be no statute that expressly or impliedly permits either state or federal law enforcement to share such material with a non-law enforcement public entity for use in licensure proceedings. Therisk of unlawfully possessing such imagesis severe and includes both criminal and monetary penalties as well as the possibility of civil litigation filed by child victims whose namesor images are unlawfully disclosed.” (“State Bar’s Supplemental Pretrial Statement”, p. 2:3-12.) The Review Department did not address this legal reasoning and concluded only that the prosecutor made noeffort to use the court’s process to obtain the imagesfortrial and, therefore, did not establish the exception to the secondary evidencerule. (Rev. Dept. Op., pp. 8-9.) The Review Departmentfailed to grasp that if these images could not lawfully be possessed or shared with the prosecutor then they were also not “reasonably procurable by use ofthe court’s process.” (Evid. Code, § 1523, subd. (c).)'° There appearsto be no case law addressingthe issue of whetherevidencethatis “legally unavailable”satisfies the test that it is also not “reasonably procurable.” But reason and commonsensedictate that such secondary evidence be allowedin the same vein that 10 The fact that the District Attorney had at one point agreed to share the images subject to the Superior Court’s modification of a protective order does nothingto dispel or minimize the well-grounded analysis offered by the prosecutorestablishing that the State Bar was prohibited from acquiring these items. 23 secondary evidence is allowed to be admitted to prove the contents of a lost or missing document. (See Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1071 [allowing the use of secondary evidence to prove the contents of a lost insurance policy].) Accordingly, because the unavailability of the images was established, competent oral testimony was admissible to prove the contents of these images. b) Oral testimony regarding the ages of subjects appearing in pomographic images found on Grant’s computers did not amountto improperlay witness testimony The Review Departmentalso erred in excluding Wong’s testimony aboutthe approximate ages of the subjects depicted on the pornographic images found on Grant’s computer as improper lay witness testimony. (Rev. Dept. Op., pp. 9-10.) Wong testified as a non-expert regarding the approximate ages ofthe girls featured in the photos and the video. Evidence Codesection 800 allows a lay witnessto testify to an opinionifit is rationally based on the witness’ perception and helpful to a clear understanding of her testimony. (See People v. Farmham (2002) 28 Cal.4th 107, 153 [lay witness testimony regarding defendant’s aggressive posture was admissible].) Wong’s testimony was clearly rationally based as it was based on her personal knowledgeofthe contents of the photos and the video. In addition, it isWong’s job as a forensic analystis to identify the approximate ages of children in pornographic images. Thus,shetestified that “[m]y job at the DA’soffice is just — for child porn cases, my job is to bookmark whatappears to me to be under 18, and it was the case agent’s job to identify that.” (RT, Vol. I, p. 116:14-17.) And, contrary to the Review Department’s assessment that Wong’s testimony was “tentative” (Rev. Dept. Op., p. 9), Wongtestified that while she is not an expert in 24 identifying ages she was comfortable in estimating the ages of children. Thus, she testified “... Ms. Warren did ask me what,if any, I’d be comfortablein telling you as far as what agesof the pictures appearsto be, and I looked through the images again, and that’s why I narrowed down to what I am comfortable with.” (RT, Vol. I, p. 116:19-24; RT, Vol. I, p. 119:14-18 [“Q: And upon closer examination over the weekend, you believed nine of them were underthe age of 16? A: That I am comfortable with in saying. Again, I am not an expert in identifying ages of the pictures. So, for the testimony today, that’s what I’m comfortable with.”].) Moreover, there can be no reasonable dispute that Wong’s testimony washelpful to a clear understanding of her testimony. Thus, Wong’s testimony about the ages of children was rationally based and must be admitted and given weight bythetrier offact. The Review Department’s observation that “Perceptions regarding the exact age of teenagers are not within common experience” (Rev. Dept. Op., p. 9) is not particularly helpful here. As a non-expert, Wong wastestifying not about any “exact” ages but, rather, about the approximate or estimated ages of children. (See, People v. Caldwell (2002) 28 Cal.4th 107, 153 [while it is settled that a witness maygive his opinion asto the age of a person whois the subject ofjudicial inquiry, “[w]here the ascertainment of exact age is necessary a sternertest is generally applied.” [Emphasis added].) While expert testimony regarding the ages of these individuals would have been relevant, as noted by the Review Department, there is no bar to lay witness testimony about the age of children so long as that testimonyis rationally based. Accordingly, sufficient secondary evidence was introducedto establish that Grant possessed significantly more child pornography than he cared to admitto attrial. 25 5. Disbarment Is the Only Outcome Sufficient to Maintain the Public’s Confidencein the Legal Profession Grant’s felony possession of child pornography for the purpose of his personal sexual stimulation is a serious breach of the duties of respect and care that adults oweto all children. Indeed, his criminal offense constitutes such a flagrant disrespect for the law and for societal norms that his misconduct unquestionably involves moral turpitude. Thus, his continued State Bar membership would likely undermine public confidence in and respect for the legal profession. (See Lesansky, supra, 25 Cal.4th at p. 17.) Here, Grant was convicted of a serious crime that damages the most vulnerable of society’s citizens, its children. His offense was compoundedby the discovery of a significant numberof other images of child pornography and a prohibited video on his computers. Moreover, the evidence showed that he shared at least two images of child pornography with others. Even if the Court agrees with the Review Department’s decisionto reject the forensic testimony revealing other child pornography on Grant’s computers, there is more than sufficient other evidence to support his disbarment. After his conviction, he proceeded to violate his probation not once, but twice, without any indication that he either recognizes the seriousness of his conductor accepts responsibility for his transgressions. Rather, he rejects any demonstration of remorse and minimizes his conduct by offering excuses. Then, at his disciplinary hearing, he proceededto intentionally mislead the State Bar Court and offer other evasive testimony. VII. CONCLUSION The record in this proceeding showsthat Grant is unsuited to be entrusted with the privileges and dutiesof the legal profession. He was convicted of a serious crime against children, forced to register for life as sex offender, repeatedly violated the law following his conviction and lied to the Court. Such conductis inconsistent with the high standards 26 of trust and fidelity to which all members of the Bar must comply. In light of the serious nature of his misconduct and the balance of mitigating and aggravating circumstances, disbarmentis the only recourse to adequately protect the public. (See Blair v. State Bar, supra, 49 Cal.3d at p. 776 [Although we accord great weight to the review department’s recommendation, the ultimate decision rests with this court, and we havenothesitated to impose a harsher sanction than recommended bythe department.’’].) Dated: December 22, 2011 Respectfully submitted, STARR BABCOCK RICHARD J. ZANASSI MARK TORRES-GIL yy, / By: CEda oA ~Mark TeenGin Attorneys for Petitioner The Chief Trial Counsel of The State Bar of California 27 WORD COUNT CERTIFICATE PURSUANT TO CALIFORNIA RULE OF COURT8.504(d)Q1) I, Joan E. Sundt, state as follows: I. I am the secretary to counsel for real party of interest The State Bar of California in the above-entitled action. II. I certify that the word count of the computer software program used to prepare this document is 8,098 words. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December21, 2011, at San Francisco, California. APPENDIX A rs ® = $ FILED oct 01 2010WC PUBLIC MATTER STATE BARCOURT CLERK'S OFFICE LOSANGELES STATE BAR COURT OF CALIFORNIA HEARING DEPARTMENT- LOS ANGELES In the Matter of ) Case No. 09-C-12232-RAP GARY DOUGLASS GRANT, ) DECISION INCLUDING DISBARMENT MemberNo. 173665, ) RECOMMENDATION AND ORDER OF ) INACTIVE ENROLLMENT A Memberofthe State Bar. ) ) I. Introduction This contested convictionreferral proceedingis based upon respondent GARY DOUGLASS GRANT’sfelony conviction for violating Penal Code section 311.11 subdivision (a), possession of child pornography. After having thoroughly reviewedthe record, the court finds that the facts and circumstances surrounding respondent’s conviction of Penal Code section 311.11, subdivision (a), involves moralturpitude and recommends that respondentbe disbarred from thepractice of law. II. Procedural History On April 8, 2009, respondent was convicted on one felonycountofpossession of child pornography. (Orange County Superior Court case no. 08HF1375.) On October 28, 2009, the Review Departmentofthe State Bar Court issued an 018 042 103 iLL | -- @ e orderssl respondenton interim suspension effective November 20, 2009. On December 29, 2009, the Review Departmentissued an orderreferring this matter to the Hearing Departmentfor a hearing and decision recommending the discipline to be imposedif the Hearing Departmentfoundthat the facts and circumstances surrounding respondent’s criminal violation involved moral turpitude or other misconduct warranting discipline. On January 14, 2010, the State Bar Court issued and properly served a Notice of Hearing on Convi¢tion on respondent. Respondentfiled a response on February 26, 2010. (Rules Proc. of State Bar, rule 601.) Trial was held on July 6, 7, 8 and 13, 2010. Respondent wasrepresented byattorney William Suojanen, Deputy Trial Counsel Margaret Warren represented the Office ofthe Chief Trial Counsel of the State Bar of California (State Bar). This matter was submitted for decision on July 13, 2010. Ill. Findings of Fact and Conclusions of Law Respondentis conclusively presumed,by the record ofhis conviction in this proceeding, to have committed all of the elements ofthe crime ofwhich he was convicted. (Bus. & Prof. Code, § 6101, subd. (a); In re Crooks (1990) 51 Cal.3d 1090, 1097; In re Duggan (1976) 17 Cal.3d 416, 423; and Jn the Matter ofRespondent O (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 581, 588.) However, “[w]hether those acts amountto professional misconduct. . . is a conclusion that can only be reached by an examination of the facts and circumstances . surrounding the conviction.” (In the Matter ofRespondent O, supra, 2 Cal. State Bar Ct. Rptr. 581, 589,‘fn.6.) A.. Credibility Determinations After carefully considering,inter alia, each witness’s demeanor while testifying; the mannerin which each witnesstestified; the character of each witness’s testimony; each witness’s 2 | ® @ interest . the outcomein this proceeding, if any; and each witness’s capacity to perceive, | recollect, pnd communicate the matters on whichheorshetestified, the court finds the testimony ofall the witnesses to be credible, except for respondent, whosetestimony was notcredible, and at times lacked candor. B. Jurisdiction Respondent was admitted to the practice of law in California on December7, 1994, and has been a memberofthe State Baratall times since. C. Findings of Fact On July 23, 2008, respondent was charged in a felony complaint with three counts of violating bf Penal Codesection 311.11, subdivision (a). Respondent pleaded not guilty to all counts. Respondenteventually entered into a guilty plea to count one after counts two and three had been dismissed by the prosecutor’s office. Respondent pleaded guilty to and was convicted of one felony countfor violation of Penal Code section 311.11, subdivision (a)', in that respondent “did knowingly’ and unlawfully possess and control matter, knowing the matter depicted i person under the age of eighteen (18) years personally engaging and personally simulating sexual conduct, as defined in Penal Codesection 311.14, subdivision (d). The court placed respondent on three (3) years formal probation on terms andconditions that included, among other things, that he: serve 90 daysin jail; register for lifetime as a sex offender; obey all laws, orders, rules, and regulationsofthe court, jail and probation; not associate with minors; and coopérate in any plan for psychiatric, psychological, alcohol and/or drug treatmentor counseling. ' Respondents claim that his conviction was for a misdemeanorviolation of Penal Code section 311.11, subdivision (a) is without merit. . 2 Respondent’s claim that he did not knowingly violate Penal Code section 311.11, subdivision (a) is without merit. 3 @ @ of May11, 2009, the superior court found respondentin violation ofhis court-ordered terms ofprobation Respondent’s probation officer searched respondent’s computerlocated in respondent’s residence and found on the hard drive adult pornographic images. Respondent admitted culpability to the violation. Oa September 25, 2009, the superior court found respondentin violation of his court- ordered terms of probation. Respondent had “‘sex-texted” a message to a formergirlfriend using his cell phone. Respondentadmitted culpability to the violation. | Respondent has takenaffirmative steps so the probation violations will not reoccur. R¢spondent admitted culpability’ to the probation violations and cannot now attemptto cast doubt as to their validity. Respondent’s has taken steps so that the violation will not reoccur, but he mustacceptresponsibility for the violations. Amy Wong, Senior Systems Forensic Specialist, High Technology Crime Unit, Orange County District Attorney’s Office, performed a forensic examination of three computers seized by law enforcement from respondent’s residence. Wong examined the computers, a Compaq,a Dell, and ba generic PC model Tower computer; seven floppy discs; and six CDs. Respondent was the régistered owner ofthe Compaq and generic Tower computers. The Dell computer was registered to a “Marie”. During the examination of the generic Tower computer , Wong discovered a peerto peer file sharing program named “Grokster”. Users of Grokster can share files while not needing a server. The Groksterfile on respondent’s computer wasan active file, not a deletedfile. One video’ foundin thefile, entitled r@ygold three russian preteens.mpg, shows three girls under the ageofeighteen (18)° either naked and/or involvedin sexualactivity and/or poses. 3 Respondent’s claim that he admitted culpability to both probation violations only on advice of counsel is without merit. * Respondent’s Due Process claim concerninghis inability to view the images that 4 In anothe video, twogirls, fourteen (14).years of age, are seen urinating on the floor while either being topless or bottomless of their clothing. Also found on the generic Tower PC weresix (6) imagesofgirls under the age of sixteen (16) that were downloaded from AOL. File I!!! !by river.jpg showstwo (2) girls underthe age ofsixteen (16); File !!!! twhitpantiesjpg showsa girl under the age ofsixteen (16) ; File 02.jpg showstwo (2) girls underthe age of 16; File 2Fems.jpg shows two (2) girls between the ages of fourteen (14) to sixteen (16); File _13Gir-1.jpg shows one(1) girl underthe age of sixteen (16); and File Friends-12.jpg shows two (2) girls under the age of 16. All the images depicted on the above files depict minors either naked and/or involved in sexual activities and/or suggestive poses. An examination of the Compaq computerrevealed three (3) images ofgirls under the age of eighteen (18): File 38.jpg showsone (1) girl between the ages of fourteen (14) to sixteen (16) year of age. File 39.jpg shows one (1) girl between the ages of fourteen (14) and sixteen formed the basis of Wong’s testimony is without merit. The superior court in respondent’s criminal matter issued a protective order blockingthe release ofthe images. The State Bar viewed those images but never possessedor controlled a copyof the images. After being notified of his State Bar proceeding, respondentneverfiled a motion with the superior court to modify the protective order. Respondentalso failed to serve discovery on the State Bar. In effect, respondent sat on his handsbeforetrial in this matter. The State Bar did not violate the termsofthe protective order by meeting with Wong and viewing the images taken from respondenit’s computers. Any claimed disadvantage to respondentbyhis inability to view the images was caused by respondent’s inaction. > Wongtestified to the ages ofthe girls depicted on the imagesas a lay witness under Evidence Code section 800. Since respondent has been convicted for violation of Penal Code section 311.11, subdivision (a), the court accepts Wong’s testimonyasto the agesofthegirls depictedin the listed imagesas it was rationally based on the perception of the witness and helpful to'a clear understanding ofher testimony. 5 —_ ° (16) years of age nakedin bed. File !!!!'rivermal 18.jpg showsone(1) girl underthe age of sixteen (16) standing in a river, Each image depicted minors either naked and/or involved in sexualactivities and/or suggestive poses. The seized six (6) CDs were examined and marked CD001 — 006. CD001 contained over 3,000 images. Fourteen (14) of these images were girls who appear to be underthe age of 16, whoweretopless, bottomless, or completely naked. The images depicted the girls in some form of sexual activity and/or suggestive poses. On June 28, 2004, respondent e-mailed to another an image of two (2) naked girls under the age ofsixteen (16). The images depicted the girls in some form ofsexual activity and/or suggestive poses. Wong bookmarkedall of the above listed images andsent herreport to the assigned law enforcement agency. Respondentclaimsthat he is aware of only two (2) images depicting minorsin the thousands of images of adult pornography:onhis computers.° Respondenttestified that the images must have been embeddedin otherfiles he received by e-mail. Immediately upon receiving the two imagesby unsolicited e-mails, he immediately deleted the images from his computer because heis notinterested in child pornography andfindsit repugnant. Respondent © Respondent's testimony that he had knowledge of only two (2) imagesofchild pornography on his computeris not credible. Respondentandhis criminal attorney met and started to'review the evidence in his criminal matter. After reviewing someofthe evidence for about 30 minutes, respondent discontinued his review. Therefore, respondenteither intentionally failed to review all the images because he was awareoftheir content, or intentionally ceased viewing the images because hedid not want to know their content. Either way, his testimonyis notcredible. 6 admits to ing addicted to internet adult pornography and addicted to masturbating while viewing those images. Respondent testified that there may have been about 100,000 pornographic images of adult women on his computer as compared to the two imagesofgirls under the age of eighteen (18) as proofthat he wasnotinterested in child pornography. First, the court does not find respondent’s testimony credible as to the numberof images containing girls under the age of eighteen (18) found on his computers, and secondly, the number of imagesof adult females found on tespondent’s computers and loose mediais irrelevant to the numberof images found of girls under the age ofeighteen (18). Respondent was knowingly in possession of child pomography. There is not a magic formula or percentage of images containing adult pomograrihy versus child pornography to determine whether or not respondent’s criminal conviction involves moral turpitude. Respondent arguesthathis collection ofpornographic imagesis so heavily weighted in favor of possession of adult female pornographyas evidence that he did not knowingly possess child pornography. This argumentis without merit. At best, it can be argued that respondent preferred pornographic imagesof adult women,notthat he did not knowingly possessthe proscribed images. Respondenttestified that he was unaware that he sent an e-mail to anyone that included images ofminors. Respondentbelieves that the images must have been embeddedin thefile whenhesentthefile. Respondenthas beentreating with James Hughes,a professionalstate-licensed LMFT psychotherapist; a certified clinical hypnotherapist; certified domestic violence counselor; an alcohol and drug counselor and addictions therapist. Hughes diagnosed respondentas suffering from an obsessive/compulsive disorder; an impulse control disorder; a mild post-traumatic stress disorder; and an avoidantpersonality disorder, which led respondent to excessive masturbation . while vieling internet pornography. Hughes does not believe respondentto be a pedophile or have any sexual interest in children. Respondent told Hughesthat his criminal conviction was based on two(2) images imbeddedin his e-mails that were later found on his computer. Respondent told Hughesthat he immediately deleted the images after viewing them. Hughestestified that respondent’s treatmentconsists of his 12-step program;cognitive behavior treatment; and reading selected materials as instructed by Hughes. Respondent has been compliant with his treatment. Hughes would like to see more from respondent because he is not thete yet, and would like respondentto treat for stress management, and undergo anxiety therapy, and hydro therapy. Respondent wasprescribed Zoloft by his medical doctor. According to Hughes, respondent has come quite a way since hestarted treating. His behavior has changed; his anxiety has been reduced; and his obsessive/compulsion behavior has been lessened, but respondentneedsto keep working at it. Respondent has achieved sobriety in a large measure andis on the right track. Hughes’ prognosis for respondentis termed as optimistic and very good. Respondentspenteight(8) years in the United State Army Reserves as a JAGofficer, handling legal in matters involving reservists. Respondenttestified he resigned his commission because He did not want to go overseas and he was getting older. Respondent’s testimony was intentionally misleading.’ In fact, the United States Army had taken action against respondent based on respondent’s criminal conviction, which action may have led to respondent’s involuntary separation from service. Based onhis resignation from the service, respondent was 7 Respondent's testimony regarding the reasonsfor his resignation from the United States Army Reserves lacked candor. : 8 - e @ discharged from the United States Army Reserves with the status of “other than honorable 198 discharge. The term moralturpitudeis defined broadly. (Bakerv. State Bar (1989) 49Cal.3d 804, 815, fn. 3.) An act of moral turpitude is any “act of baseness, vileness or depravity in the private and socialiduties which a man owesto his fellowmen,or to society in general, contrary to the accepted and customary rule of right and dutybetween man and man. [Citation.]” (In re Craig (1938) 12 Cal.2d 93, 97.) “Although an evil intent is not necessary for moral turpitude [citations], some level of guilty knowledge or [moral culpability] is required. [Citation.}” (In the Matter ofMyrdall (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 363, 384.) Asthe Supreme Court stated in Jn re Lesansky (2001) 25 Cal.4th 11, 16: [W]e can provide this guidance: Criminal conductnot committed in the practice of law or againsta client reveals moral turpitudeifit | Showsa deficiency in any character trait necessary for the practice of | law (such astrustworthiness, honesty, faimess, candor, and fidelity to fiduciary duties) orif it involves such a serious breach of a duty owed to anotherorto society, or such a flagrant disrespect for the law or for societal norms,that knowledge ofthe attorney's conduct would be likely to undermine public confidence in andrespect for the legal profession. Respondent’s criminal conviction for knowingly violating Penal Code section 311.11, subdivision(a) involvesa serious breach of duty owed to anotheror to society, or such a flagrant disrespect for the law orfor societal norms, that knowledge ofthe attorney’s conduct wouldbelikely to undermine public confidence in and respect for the legal profession, andis, therefore, a conviction of crime involving moralturpitude. ® Respondent’s testimony that his legal counsel in the United States Army inquiry into his criminal conviction matter submitted respondent’s resignation and that respondentlater never opened the mail from the United State Armyindicating his discharge status lacks credibility. 9 _ ' @ @ IV. Level of Discipline The parties bear the burden of establishing mitigation and aggravation by clear and convincing evidence. (Rules Proc. of State Bar, tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, standard 1.2(b) and(e).)° A. Mitigation Respondent has no prior record of discipline. (Std. 1.2(€)(i).) Respondent has presented competent medical evidence that at the time of his misconduct he was suffering from an extreme emotionaldisability. However, the mitigation is lessened because there was insufficient evidence presented to show that respondentnolongersuffers from the disability. (Std. 1.2(e)(iv).) Respondent was cooperative with State Bar in the investigation of this matter. However, respondents lack of candorclearly outweighs any mitigation for his cooperation. (Std. 1.2(e\v).) Respondent presented the testimony of seven (7) witnesses who testified to his good characterfor honesty and fairness. Three (3) of these witnesses are attorneys licensed to practice law in California andtheir testimonyis given great weight because “[t]hese witnesses have a strong interest in maintaining the honest administration ofjustice.” (In the Matter ofBrown (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 309, 319.) The witnesses were familiar with the facts and circumstances surrounding respondent's conviction based on information provided by the respondent andtestified that respondent was remorseful for his misconduct. They believed that respondentis not a dangerto the public, especially children, and should be allowed to continue to practice law. Respondentalso presented the declarations of four (4) witnesses who attested to °All further referencesto standardsorstd.are to this source. 10 / @: ° Il respondent's honesty and ability as an attorney, and that he should be able to continue to practice law. (Std. 1.2(e)(vi).) Since respondentfails to acceptfull responsibility for his misconduct, he is not eligible for the mitigating factor of remorse. (Std. 1.2(e)(vii).) B. Aggravation Respondentdisplayed a lack of candor during the hearing in this matter. (Std. 1.2(b)(ii).) V. Discussion In determining the appropriate discipline to recommend in this matter, the court looks at the purposes of disciplinary proceedings and sanctions. Standard 1.3 sets forth the purposes of disciplinaty proceedingsand sanctions as “the protection of the public, the courts and the legal profession; the maintenance of high professional standards by attorneys and the preservation of public confidencein the legal profession.” Standard 1.6(b) provides that the specific discipline for the particular violation found must be balanced with any mitigating or aggravating circumstances, with due regard for the . purposes of imposing disciplinary sanctions. The State Bar urges that respondent be disbarred under standard 3.2. Respondent urges that respondent’s criminal conviction falls under standard 3.4 and requests a suspension for 90 days. Standard 3.2 provides: “Final conviction of a memberofa crime whichinvolves moral turpitude, either inherently or in the facts and circumstances surrounding the crime’s commission shall result in disbarment. Only if the most compelling mitigating circumstancesclearly predominate, shall disbarment not be imposed. In thoselatter cases, the discipline shall not be less than a two-year actual suspension, prospective to any interim suspension imposed, irrespective of mitigating circumstances.” 11 oe ° Standard 3.4 provides that the final conviction of a memberofa crime which does not involve moral turpitude but which does involve other misconduct warranting discipline shall result in a sanction that is appropriate to the nature and extent ofthe misconduct found to have been committed by the member. (Jn the Matter ofCarr (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 108, 118; In the Matter ofKatz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 502, 510.) Thecourt recognizesthat “disbarments, and not suspensions, have been the rule rather than the exceptionin casesofserious crimes involving moral turpitude.” (In re Crooks, supra, (1990) 51 Cal.3d 1090, 1101.) “fT}n the final analysis, as the Supreme Court has madeclear, our consideration of the ‘Standardscannot yield a recommendation which, on the record,is arbitrary orrigid [citation], or about which ‘grave doubts’ exist as to the recommendation’s propriety. [Citation.] Moreover, the weightto be accorded the standards will depend on the degree to which they are apt to the case at bench.” (In the Matter ofOheb, supra, 4 Cal. State Bar Ct. Rptr. 920, 940.) In this case, respondent was convictedof a felony for possession of child pornography, a serious offense. The surrounding facts and circumstances of respondent’s criminal conviction clearly evince an actor acts constituting moral turpitude. Accordingly, the proper standard that governs this matter is standard 3.2, which calls for disbarmentfor the final conviction for a crime ” that involves moral turpitude,either inherently or in the facts and circumstances surrounding the crime’s commission. Onlyifthe most compelling mitigating circumstances clearly predominate, shall disbarment not be imposed. In thoselatter cases, the discipline shall not beless that a two- year actual suspension,irrespective of mitigating circumstances. — Taken as a whole,the mitigating factors are not compelling. In light of the standards and case law,'andafter balancingall relevant factors, including the underlying misconduct, 12 | , 6 S aggravating factors and mitigating circumstances, the court recommendsthat respondent be disbarred from the practice of law. . VI. Discipline Recommendation . A. Discipline Accordingly, the court hereby recommendsthat respondent GARY DOUGLASS GRANTbedisbarred from thepractice of law in California, and that his namebestricken from the roll of attorneysin this State. It is not recommendedthat respondent be ordered to comply with California Rules of Court, rule 9.20 because he did so on December30, 2009 in connection with his interim suspension and has not beenentitled to practice law since. B. Costs It is further recommendedthat costs be awarded to the State Bar in accordance with Business and Professions Code section 6086.10 and are enforceable both as provided in Business and Professions Code section 6140.7 and as a moneyjudgment. VII. Order of Involuntary Inactive Enrollment It is ordered that respondentbe transferred to involuntary inactive status pursuant to section 6907, subdivision (c)(4). The inactive enrollment will be effective three days after this order is served by mail andwill terminate uponthe effective date ofthe Supreme Court’s order imposing‘discipline herein, as provided for by rule 490(b) of the Rules of Procedure of theState Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction. Dated: October 1, 2010. RICHARD A. eee . Judgeofthe State Bar Court 13 ' *i ‘ i- @ @ ! CERTIFICATE OF SERVICE [Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)] _Iam Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on October 1, 2010, I deposited a true copy of the following document(s): DECISION INCLUDING DISBARMENT RECOMMENDATION AND ORDEROF INACTIVE ENROLLMENT ina sealell envelope for collection and mailing on that date as follows: (<] byfirst-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows: WAYNEW SUOJANEN SUOJANEN LAW OFC 26895 ALISO CREEK RD,STE B-440 ALISO VIEJO, CA 92656 CJ by certified mail, No. _, with return receipt requested, through the United States Postal Service at , California, addressed as follows: | {| by overnight mail at , California, addressed as follows: [] _ by fax transmission, at fax number __. Noerror was reported by the fax machinethatI used. CI By personal service by leaving the documents in a sealed envelope or package clearly labeled to identify the attorney being served with a receptionist or a person having charge ofthe attorney’s office, addressed as follows: X] _ byinteroffice mail througha facility regularly maintained by the State Bar of California addressed as follows: MARGARET WARREN,Enforcement, Los Angeles I hereby certify that the foregoingis true and correct. Executed in Los Angeles, California, on October 1, 2010. \ Angela Case Administrator State Bar Court APPENDIX B @ i PUBLIC Marrer—NOT DESIGNATED FOR PUBLICATION FILED ps SEP 12 nt STATE BAR COURT CLERK'SOFFICE LOS ANGELES STATE BAR COURTOF CALIFORNIA REVIEW DEPARTMENT In the Matter of Case No. 09-C-12232 GARY DOUGLASS GRANT, OPINION AND ORDER A Memberofthe State Bar, No. 173665. Ne ue ! N a m e N e e ! N e e N e e “ e e e | I. SUMMARY In 2009, respondent Gary Douglass Grant pled guilty to one countofpossession of child pornography as a felony.’ Wehaveclassified this crimein discipline proceedings as onethat does not ihherently involve moral turpitude in every case, but may dependingon the facts and circumstances surrounding the conviction.” The hearing judge foundthat the facts and circumstances of Grant’s conviction involved moral turpitude and he recommendedthat Grantbe disbarred. Grantseeks review,disputing the moralturpitude finding and requesting a maximum 90-day suspensionas discipline for his felony conviction. The Office of the Chief Trial Counsel of the State Bar (State Bar) support’s the hearing judge’s decision. ' As a result of his felony conviction, we placed Grant on interim suspension,effective November 20, 2009, and he has remained suspendedsince that time. (Bus. & Prof. Code, § 6102,subd.(a).) ? Crimes that inherently involve moralturpitude in every case will also be referenced as crimes involving moral turpitudeperse. 018 042 104 iNT @ 5 Ader independentreviewofthe record (Cal. Rules of Court, rule 9.12), we reverse the hearing judge's moralturpitude finding based onthe limited trial evidence, which did not include the alleged child pornographic images andestablishedlittle more than the convictionitself. However, Grant’s misconductis serious and warrants significant discipline. We recommendthat he be suspended for two years and until he showsproofofrehabilitation, fitness to practice and learning and ability in the law accordingto standard 1.4(c)(ii) of the Standards for Attorney Sanctions for Professional Misconduct.’ I. GRANT'S CONVICTION DOES NOT INVOLVE MORAL TURPITUDE PER SE Grant was convicted of possession of child pornographyin violation of Penal Code section 3 i. 1, subdivision (a).* The State Bar asserts that his conviction involves moral turpitude per se because, amongotherthings, it represents morally reprehensible conductthat generally harmschildren and requireslifetime registration as a sex offender. Since no California decision addresses classification ofthis crime for attorney discipline purposes, we lookto the definition of moral turpitude,its general application to criminal sexual offenses in California discipline cases, and decisional law in other jurisdictions. We concludethatalthough possession 3 Unless otherwise noted,all further references to “‘standard(s)” are to the Rules of Procedure:of the State Bar,title IV, Standards for Attorney Sanctionsfor Professional Misconduct. * Section 311.11, subdivision (a) states in part: “Every person who knowingly possesses or controls any matter, representation of information, data, or image,including, but notlimited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laserdisc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM,or computer-generated equipmentor any other computer-generated imagethat contains or incorporates in any manner, anyfilm orfilmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person underthe age of 18 years personally engagingin or simulating sexual conduct, as defined in subdivision (d) of Section 311.4,is guilty of a felony and shall be punished by imprisonmentin thestate prison, or a countyjail for up to one year, or by a fine not exceeding two thousand five hundreddollars ($2,500), or by both the fine and imprisonment.” -2- of child pornographyis a reprehensible crime,it does not, in every instance, involve moral turpitude.' “ ‘Moral turpitude’ is an elusive concept incapableofprecise general definition.” (In re Higbie (1972) 6 Cal.3d 562, 569.) It has been described as “an act of baseness, vileness or depravityin the private andsocial duties which a man owesto his fellowmen,or to society in general, contrary to the accepted and customary rule ofright and duty between man and man. [Citation.]” (In re Craig (1938) 12 Cal.2d 93, 97.) Some criminal convictionsconstitute moral turpitude per se because they are extremely repugnantto accepted moral standards(Jn re Fahey (1973) 8 (Cal3d. 842, 849), such as murder(Jn re Rothrock (1940) 16 Cal.2d 449, 454) or serious sexual offenses againstchildren. (See In the Matter ofMeza (Review. Dept. 1991) 1 Cal. State Bar Ct. Rpt. 608, 611 [felony conviction for engaging in three or more acts of substantial sexual conduct with child under age of 14 moral turpitude per se}; compare Jn re Safran (1976) 18 Cal.3d 134 {misdemeanor conviction for annoying or molesting child under 18 not moral turpitudeper se].) Wedo not view possession ofchild pornographyas a crime involving moralturpitude in every case because the circumstances surrounding the conviction may vary. For example, actively searching for child pornography on the Internet, accessing it and then perusing and manipulating electronic images may constitute moral turpitude, while merely possessing child pornographyafter receivingit from an unsolicited source may not. A crime such as attempted child molestation clearly involves moral turpitude in every case because it demonstrates a “readiness to engage in a serious sexual offense likely to result in harm to a child,” such that the conduct is “ ‘extremely repugnant to accepted moral standards’. . . [Citations].” (x re Lesansky (2001) 25 Cal.4th 11, 17.) However, not every violation of Penal Code section 311.11, subdivision(a), necessarily involves such readiness to commit a sex offense against a child, -3- particularly since the statute prohibits “the act of possessing child pornography,notthe act of abusing or exploiting children.” (People v. Hertzig (2007) 156 Cal.App.4th 398, 403.) Even with serious criminal offenses such as possession of child pornography,attorney discipline is not intended as punishment for wrongdoing — that is left to the criminal courts. We note that out-of-state discipline cases do not classify possession of child pornography convictions as crimes involving moral turpitude perse, but instead look to the underlying facts and circumstances? Guided bythese authorities and our reasoning above, weaffirm ourprior classification that criminal possession of child pornographydoes not involve moralturpitude in every discipline case, but may dependingonthe facts and circumstances surrounding the conviction, III. FINDINGS OF FACT A. GRANT’S CONVICTION CONCLUSIVELY PROVESHIS GUILT On April 8, 2009, Grant pled guilty to and was sentenced on one felony countof possession of child pornography,in violation of Penal Code section 311.11, subdivision(a). Grant concedes that he possessed two unsolicited electronic images of child pornography,and the criminal conviction conclusively proves his guilt. (Bus. & Prof. Code, § 6101, subd.(a); In re Utz (1989) 48 Cal.3d 468, 480 [conviction record is conclusive evidence ofguilt].) The superior court ordered that Grant serve 90 daysin jail, register as a sex offenderforlife and complete three years’ probation with specific sex offender conditions. Grant did not appealhis conviction or sentence. 5 See In the Matter of Wolff(D.C. 1985) 490 A.2d 1118, 1119, vacated 494 A.2d 932, aff'd. (en banc) 511 A.2d 1047 (distribution of child pornography “notperse [crime] of moral turpitude”); Matter ofDisciplinary Proceedings Against Bruckner (Wis. 1991) 467 N.W.2d 780 (based on'facts and circumstances, importation and trading of child pornography involved moral turpitude); compare United States v. Santacruz (9th Cir. 2009) 563 F.3d 894, 897 (for purposes of immigration, possession of child pomographyin violation of 18 U.S.C. § 2252A(a)(5)(B) involves moral turpitude). Shortly after his sentencing, Grant twice violated the sex offender termsofhis probation. In May 2009,he possessed adult pornography on his computer and a few months later, in September, he sent a “sex-text” from his cell phone to two womenhehadpreviously dated. We placed Grant on interim suspension andreferred his conviction to the hearing department to determineifthe surrounding facts and circumstances involved moralturpitude or other misdonduet warranting discipline. (Bus. & Prof. Code, § 6102, subd. (e).) A four-day trial | was held in July 2010. B. THE STATE BAR’S TRIAL EVIDENCE The State Bar sought to prove that Grant’s conviction involved moral turpitude by showing that he actively sought out child pornography,stored it in different media locations, and emailed itto other email accounts. The State Bar did not present the subject imagesattrial but instead offered a single witness who had viewed them — a forensic computer analyst from the Orange County District Attorney’s Office (OCDA) — to establish the images as child pornography. Grant’s counsel objected to the analyst’s testimony on several grounds, including hearsay, itnproper lay opinion,oral testimony about a writing (secondary evidencerule) and due process because he could not effectively cross-examinethe analyst, having never reviewed the photographs that were the very subject ofher testimony. The hearing judge overruled the objections and admitted the analyst’s testimony. The analyst examined items seized from Grant’s home during the criminal investigation, including a CompagPresario Laptop, a Dell Laptop and a generic PC tower computer along with seven floppy discs and six (compactdiscs) CD’s. The analyst found thousandsofadult pornography images. The analyst also bookmarked 19 separate images and one videotape for the Department of HomelandSecurity, Immigration and Custom Enforcement (ICE) investigator to confirm the subjects’ ages, referencing these images as involving “possibly minors.” When the -5- ICEinvestigator did not appear at Grant’s disciplinetrialto testify to the ages of the subjects in the image: , the State Bar prosecutor asked the analystto testify. The analyst reluctantly agreed, but cautioned: “I’m not an expert in identifying the ages of the children. That’s not myjob.” Hertestimonyaboutthe alleged child pomographic images is summarized below. The analyst examineda video showingthree females, two of whom were naked below the waist and engaged in a pornographic pose. Shetestified that both girls “looked like they were under 14 years of age.” The analyst also viewed six images from Grant’s PC tower computer of females that she thought“appeared”to be under 16 years old. These subjects were either nakéd or partially clothed, exposing their underwear, breasts or pubic area. The analyst found three images stored on Grant’s Compaq laptop of females who werepartially clothed or naked. Shetestified that the subjects in the first image “appear[ed] to be about 14 to 16,”in the second image “appear[ed] to be about 14 to 16”andin the third image “appear[ed] to be under 16 years of age.” The analyst found approximately 4,000 adult pornographic images on Grant’s CDs, and testified that nine images depicted female subjects who “appear to me to be under 16 years of age.” Finally, the analystidentified a photo Grant had emailed to other AOL e-mail accounts showing two naked females in pornographic poses. The analyst opined that these subjects were under 16 years old. Throughouther testimony, the analyst repeated that she lacked any expertise to identify the ages of the subjects in the images. C. GRANT’S TRIAL EVIDENCE Grant testified that he is a recovering “sex and love addict.” He admitted to excessively viewing adult Internet pornography for purposes of sexual arousal. Grant confessedthatat the height of his obsession, he viewed adult pornographyfor several hours a day. Between 2001 and 2007, he collected over 100,000 adult pornographic images on each of his computers. Grant has always maintained that he received only two unsolicited child pornographic images when he was -6- using his ¢-mail account to gather thousandsofadult pornography images. He claims he “instantly fleleted” the child pornography images because he found them repugnant, but pled guilty to the criminal charge of possession of child pornography because, technically, he temporarily possessed those two images. Grant has undergone extensive therapy since his conviction. He currently sees four mental health professionals, adheres to a psychotropic medication program,regularly participates in weekly Sex and Love Addicts Anonymous meetingsandattends group therapyoffered through the Lawyer Assistance Program. Since September 2008, Grant has received cognitive behavioral therapy from James Hughes, a clinical therapist.© Hughestestified that Grant suffers from a serious problem with obsessive-compulsive and impulse-control behavior related to his sexuality. Hughes opined that Grant doesnotfit the profile of a pedophile, has no interest in child pornography and poses no dangerto the public or to children. Hughesbelieves that Grant has “come quite a way”since he began treatment but would like to see him continue as heis “not there yet” in dealing with his chronic anxiety and obsessive behavior. Overall, Hughes described Grant’s prognosis as “very optimistic” and “very good.” IV. CONCLUSIONS OF LAW A. THE ANALYST’S TESTIMONY ABOUT THE IMAGESWASINADMISSIBLE The hearing judge erred by permitting the analystto testify aboutthe alleged child pornographic images for two reasons. First, the analyst’s oral testimony was not admissible to prove the contents of the images under the secondary evidencerule. Second,the analyst’s ° Hughesis a licensed marriage, family and child therapist, a clinical hypnotherapist, an AmericaniPsychotherapy Association Board-certified professional counselor and a sex therapist. -7- testimony pou the subject’s ages in the images was not admissible because it amounted to an improper lay opinion. As'to the secondary evidencerule, “[o]ral testimony is [generally] not admissible to prove the content of a writing” (Evid. Code, § 1523, subd. (a)’), sinceit is typically less reliable than otherproof. (Cal. Law Revision Com. com., West’s Ann. Evid. Code (2011 ed.),foll. § 1523, P. 1903.)® But by statutory exception, oral testimonyis permitted “if the proponent does not have possession or control ofthe original or a copy ofthe writing and. . . [neither the writing nor a copy of the writing was reasonably procurable by the proponentbyuse ofthe court’s process or by otheravailable means.” (Evid. Code, § 1523, subd. (c)(1).) We conclude, for reasons detailed below,that the State Bar did not prove it met this exception. The State Bar prosecutorinitially represented that she wouldoffer the alleged child pornographic imagesattrial. The OCDAhadcustody ofthe images and agreed to submit them to the State Bar Court subject to a protective order. On June 21, 2010, two weeks beforetrial, the prosecutor filed a Pretrial Statementstating that she would seekto seal the images that would becomepart ofthetrial record. But the following day, the prosecutor filed a Supplemental Pretrial Statementstating that it was the State Bar’s position that federal andstate law restricted use of the images to criminal proceedings. The prosecutor made no effort to use the court’s process, such as issuing a subpoena duces tecum,petitioning the appropriate state or federal 7 Writings include photographic images (Evid. Code § 250; People v. Beckley (2010) 185 Cal.App.4th 509, 514) and computerrecords (Aguimatang v. State Lottery (1991) 234 Cal.App.3d 769, 798). ® The rules of evidence are applicable in State Bar Court proceedings. (Rules Proc. of State Bar, former rule 214.) Although the Rules of Procedure of the State Bar were amended effectiveJanuary 1, 2011, the formerrules applyto this proceeding as request for review was filed priar to the effective date. (Rules Proc. of State Bar (eff. Jan. 1, 2011), Preface, item 2.) °The “court’s process” includes a subpoena duces tecum for the production of writings at trial. (Code Civ. Proc., § 1985; Rules Proc. of State Bar, former rule 152(e).) -8- court or the meansto obtain the imagesfortrial. Without making such efforts, the State Bar did not establish the exception to the secondary evidence rule that would permit the analyst to testify about the images without also submitting themattrial. Regarding the analyst’s opinion aboutthe ageof the subjects, a lay witness maytestify to an opinionif it is rationally based on the witness’s perception andit is helpful to a clear understanding ofthe testimony. (Evid. Code, § 800; e.g., Peoplev. Caldwell (1921) 55 Cal.App. 280, 296 flay opinion as to age generally received if opinion includes description of or acquaintaice with subject].) The analyst admitted that she had no expertise to evaluate age beyond her common knowledge or experience. Perceptions regarding the exact age ofteenagers at or near 18 years old are not within common experience, as evidencedby the analyst’s tentative and unconvincing testimony. Moreover,the analyst did not describe the subjects or confirm that they were children or pre-pubescent. Under these circumstances, reasonable minds coulddiffer on whether the subjects in the images were actually under 18 years old, particularly since the analyst did nottestify that the subjects were obviously minors. (See People v. Kurey (2001) 88 Cal.App.4th 840, 846-847 [expert testimony relevant to material fact of minority]; United States v. X-Citement Video, Inc. (1994) 513 U.S. 64, 72, fn. 2 [“opportunity for reasonable mistake as to age increases significantly” whensubjects in photos unavailable for questioning]; United States v. Katz (5th Cir. 1999)178 F.3d 368, 373 [expert testimony maybe necessary to prove minority when individualis post-puberty but appears young].) We conclude that the analyst’s testimony about the age of the subjects lackeda rational basis and was inadmissible as improperlay opinion.'° B. GRANT’S MISCONDUCT WARRANTSDISCIPLINE, BUT THE STATE BAR FAILED TO PROVE THAT IT INVOLVED MORAL TURPITUDE The hearing judge summarily found that the facts and circumstances surrounding Grant’s conviction “clearly evince an act or acts constituting moralturpitude.” Indeed,if the State Bar had prover that Grant soughtout, collected and stored 19 images anda videoofchildren in pornographic poses, we would agree that Grant’s conviction may involve moralturpitude. Butit failed in the first instance to provethat the alleged child pornographic imagesactually depict subjects under 18 years old. It therefore did not establish that such images wereofchild pomography. Becausethe analyst’s testimonyon theissue of age is inadmissible or not persuasive, the State Bar failed to make this preliminary showing." The remainingtrial evidenceconsisted only of Grant’s criminal conviction andhis concession that he possessed two child pornographic images andtwice violated probation. The State Bar sever proved the specific content of those two images or where they were found in Grant’s home. Nordid the State Bar prove that Grant actively searchedthe Internetfor child '© Evenifwe found the analyst’s tentative testimony to be admissible,it does not clearly and convincingly establish that the subjects in the images were under18 yearsold. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 552 [clear and convincing evidence leaves no substantial doubt andis sufficiently strong to commandthe unhesitating assent of every reasonable mind]; see Ballard v. State Bar (1983) 35 Cal.3d 274, 291 [all reasonable doubts resolved in favorof attorney].) u Since the analyst’s testimony on age was not considered, we do not address Grant’s constitutional claim that he was denied due process becausehis attorney was unableto effectively cross-examine the analyst about the age ofthe subjects in the images without access to them. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230 [courts “ ‘ “will not decide constitutional questions where other groundsare available and dispositive ofthe issues ofthe case” ’ ”]; Lyng v. Northwest Indian Cemetery ProtectiveAss'n. (1988) 485 U.S. 439, 445 [“A fundamental and longstandingprinciple of judicial restraint requires that courts avoid reaching constitutional questions in advance ofthe necessity of deciding them. [Citations.]’’].) | -10- @ ® pmoasny visited child pornography websites or joined a child pornography network, which would suggest misconduct involving moralturpitude. To the contrary, Grant claimed he did not solicit or attempt to save the two child pornography images he admits he possessed. Healso denied any interest in child pomography, which wascorroborated byhis therapist. The hearing judge’s broad finding that Grant’s testimonylacked credibility does not create affirmative evidence that Grant had aninterest in child pornographyor soughtit on the Internet. (Edmonson v. State Bar (1981) 29 Cal.3d 339,343 [rejection of evidence doesnotcreate affirmative contrary evidence].) '2 We conclude that the State Bar failed to prove by clear and convincing evidence i that the citcumstances surrounding Grant’s conviction involved moralturpitude. | V. AGGRAVATION AND MITIGATION The State Bar mustestablish aggravating circumstances byclear and convincing evidence while Grant has the sameburdenofproving mitigating circumstances. (Stds. 1.2(b) and (e).) In aggravation, the hearing judge found that Grant lacked candorattrial because he misled the court about his dishonorable discharge from the Armyin 2009. (Std. 1.2(b)(vi).) We agree and assign this factor considerable aggravating weight. (In the Matter ofDahiz (Review Dept. 2001) 4 Cal. State Bar Ct. Rptr. 269, 282 [great weight given to hearing judge’s findings on candor]; see Olguin v. State Bar (1980) 28 Cal.3d 195, 200 [misrepresentation to State Bar mayconstitute greater offense than misappropriation].) We adoptthe three mitigating factors that the hearing judge found: (1) ongoing recovery from extreme emotional and mental health difficulties (std. 1.2(e)(iv)); (2) no prior record of discipline since admission to practice law in 1994(std. 1.2(e)(i); Hawes v. State Bar (1990) 51 Cal.3d 587, 596 [over 10 years ofpractice before first act of misconductgiven significant '2 At the outsetofthe decision below,the hearing judge found that Grant’s testimony regarding his conviction “was notcredible, and at times lacked candor,” but never provided the important analysis identifying what portion of Grant’s testimony lacked credibility and why. -ll- @ @ mitigating|weight]); and (3) good character evidence from 10 witnesses. (Std. 1.2(e)(vi).) Grant’s character witnesses were generally familiar with his conviction and spokehighly ofhis competency, honesty andintegrity. Five of the 10 witnesses are California attorneys, whose testimony we weigh heavily since they “have a strong interest in maintaining the honest administration ofjustice.” (In the Matter ofBrown (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 309, 3 19.) On balance, Grant’s evidence in mitigation minimally outweighs his sole yet serious factor in aggravation. VI. LEVEL OF DISCIPLINE The State Bar proved only that Grant possessed two unspecified child pornographic images, without establishing how he received them or where he kept them. Absentproofthat Grant sought out child pornographic images, displayed sexualinterest in children, or otherwise intended to harm a minor, wedonotbelieve the facts and circumstances surroundinghis conviction support a moralturpitudefinding. Nonetheless, Grant’s conviction constitutes other serious misconduct for which he should receive significant discipline. (See Jn re Rohan (1978) 21 Cal.3d 195, 203-204 [other misconduct warrantingdiscipline includes conviction that demeansintegrity of legal profession and constitutes breach of attorney’s responsibility to society].) The purpose of attorney discipline is not to punish the attorney,butto protect the public, the courts and the legal profession. To determinethe properdiscipline, the Supreme Court has instructed that we follow the standatds “wheneverpossible” (In re Young (1989) 49 Cal.3d 257, 267, fn. 11) because they promote “;‘ “the consistent and uniform application ofdisciplinary measures.” ° [Citation.]” (dn re Silverton (2005) 36 Cal.4th 81, 91.) Standards 3.4 and2.6 apply here. Whenan attorney’s criminal conviction does not involve moral turpitude but does involve misconduct warranting discipline, standard 3.4 requires | 1 -12- that we ook to other standards for comparable misconduct. Wefind standard 2.6(a) is most relevant: failing to uphold the law “shall result in disbarment or suspension depending on the gravity ofthe offenseor the harm,if any,to the victim .. . .” In light of the broad rangeof discipline under these standards, we look to comparable case law. (In re Brown (1995) 12 Cal.4th 205, 220-221.) Since California law does not provide - guidancefor cases involving simple possession of child pornography, we examine discipline for other sexual offense convictions in California. These cases reveal a broad rangeofdiscipline from reprdval to disbarment, dependingon the circumstances surroundingthe crime, such as whetheritwas a felony or misdemeanor, whetherthe victim was a child, or whether the attorney participated in therapy.” Viewing the facts and circumstances unique to Grant’s conviction, and consideringhis mitigation evidence, we recommenda lengthy suspension and reinstatement proceeding rather than disbarment. Wewishto be clear — we view possession of child pornography as serious and reprehensible misconduct. However, as discussed, the State Bar did not prove that the facts and circumstances surrounding Grant’s criminal offense for possessing two child pornographic images involved moral turpitude. Grant was duly punishedbythe criminal court for his wrongdoing and webelieve he should receive significant attorney discipline, particularly since he twice violated his criminal probation and demonstrated a lack of candorin these proceedings. We therefore recommendthatto protect the public and the profession Grantbe actually suspended from the practice of law for two years and reinstated only if he establishes his 8 See e.g., In the Matter ofBuckley (Review Dept. 1990) 1 Cal. Bar Ct. Rptr. 201 (public reproval for misdemeanorsolicitation of lewd act in public); Jn re Safran, supra, 18 Cal.3d 134 (three-year stayed suspension for two counts of misdemeanor annoying or molesting a child under18 involving moral turpitude based on facts and circumstances and where attorney participated in psychiatric treatment making recurrence ofmisconduct remote); Jn re Lesansky, supra, 25 Cal.4" 11 (summary disbarmentfor felony lewd act on child involving moral turpitude perse sinceit demonstrated readiness to engagein serious sexual offense likely to harm child). -13- rehabilitat on,fitness to practice, and learning and ability in the law, as required in a standard 1.4(c)(ii) proceeding, VII. RECOMMENDATION We recommend that Gary Douglass Grant be suspended from the practice of law for three years, that/execution ofthat suspension be stayed, and that Grant be placed on probation for three years on the following conditions: 1. He must be suspendedfrom thepractice of law for a minimumofthefirst two years ofhis probation with credit given for the period ofinterim suspension that commenced on Noveniber 20, 2009, and remain suspended until he provides proofto the State Bar Court of his rehabilitation, fitness to practice and learning and ability in the general law. (Rules Proc. ofState Bar,tit. IV, Stds. for Atty. Sanctions for Prof. Misconduct, std. 1.4(c)(1i).) | He must comply with the provisions of the State Bar Act, the Rules of Professional Conduct, and all of the conditions of this probation. . Within 10 days of any change in the information required to be maintained onthe membership records of the State Bar pursuant to Business and Professions Codesection 6002.I, subdivision (a), including his current office address and telephone number,orifno office is maintained, the address to be used for State Bar purposes, he mustreport such change in writing to the Membership Records Office ofthe State Bar Office of Probation. He must submit written quarterly reports to the Office of Probation on each January 10, April 10, July 10, and October 10 ofthe period of probation. Underpenalty of perjury, he must state whether he has complied with the State Bar Act, the Rules of Professional Conduct, and all of the conditions of his probation during the preceding calendar quarter. In additionto all quarterly reports,a final report, containing the same information, is due no earlier than 20 days before the last day of the probation period andnolater than the last day of the probation period; Subject to the assertion of applicable privileges, he must answerfully, promptly, and truthfully, any inquiries of the Office of Probation that are directed to him personally or in writing, relating to whether he is complying or has complied with the conditions contained herein: Within oneyear after the effective date of the discipline herein, he must submitto the Office of Probation satisfactory evidence of completion of the State Bar’s Ethics School and passageofthetest given at the end of that session. This requirementis separate from any Minimum Continuing Legal Education (MCLE)requirement, and he will not receive MCLE credit for attending Ethics School. He must obtain psychiatric or psychological treatment from a duly licensed psychiatrist, psychologist orclinical social worker, at his own expense, a minimum of twice per month -14- r and mis furnish evidence of his compliance to the Office of Probation with each quarterly report Treatment should commence immediately and, in any event, no later than 30 days after the effective date of the Supreme Court’s final disciplinary order in this proceeding. Treatment must continuefor the period ofprobationor until a motion to modify this condition is granted and that ruling becomesfinal. If the treating psychiatrist, psychologist or clinical social worker determines that there has been a substantial change in Grant’s condition, Grantor the State Bar mayfile a motion for modification of this condition with the State Bar Court Hearing Departmentpursuantto rule 5.300 of the Rules of Procedure. The motion must be supported by a written statement from the psychiatrist, psychologist or clinical social worker, by affidavit or under penalty of perjury, in support of the proposed 8. The period ofprobation will commence onthe effective date of the Supreme Court order imposing discipline in this matter. At the expiration of the period ofprobation,ifhe has complied with all conditions ofprobation, the three-year period of stayed suspension will be satisfied and that suspension will be terminated. | VIII. PROFESSIONAL RESPONSIBILITY EXAMINATION We further recommendthat Gary Douglass Grant be ordered to take and pass the Multistate; Professional Responsibility Examination administered by the National Conference of Bar Examiners during the period of his actual suspension in this matter and to provide satisfactory proofofsuch passageto the Office of Probation within the same period. Failure to do so may result in an automatic suspension. (Cal. Rules of Court, rule 9.10(b).) IX. RULE 9.20 We further recommendthat Gary Douglass Grant be ordered to comply with the requirements ofrule 9.20 ofthe California Rules of Court, and to perform the acts specified in subdivisions(a) and (c) of that rule within 30 and 40 days, respectively, after the effective date of the Supreme Court orderin this proceeding. Failure to do so may result in disbarmentor suspension. X. COSTS Wefurther recommendthat costs be awardedto the State Bar in accordance with Business and Professions Code section 6086.10, such costs being enforceable both as provided in section 6140.7 and as a moneyjudgment. -15- | XI. ORDER Since we do notadopt the hearing judge’s disbarment recommendation,we orderthat Grant’s involuntary inactive enrollment under Business and Professions Codesection 6007, subdivision (c)(4), be terminated, effective upon service ofthis order. However, pursuant to our October 28, 2009 interim suspensionorder, effective November 20, 2009, Grant remains suspended and notentitled to practice law pendingfinal disposition of this proceeding. | | WE CONCUR: PURCELL,J. t REMKE, P. 1. EPSTEIN;J. -16- CERTIFICATE OF SERVICE | {Rule 62(b), Rules Proc.; Code Civ. Proc., § 1013a(4)] Tama Cate Administrator ofthe State Bar Court of California. I am over the age of eighteen andnot a party to the within proceeding. Pursuant to standard court practice, in the City and County of!Los Angeles, on September 12, 2011, I deposited a true copyofthe following document(s): OPINION AND ORDER FILED SEPTEMBER12,2011 in a sealed envelopeforcollection and mailing on that date as follows: XX byfirst-class mail, with postage thereon fully prepaid, through the United States Postal Setvice at Los Angeles, California, addressed as follows: WAYNEW.SUOJANEN MICHAEL GORDON YORK SUOJANEN LAW OFC 1301 DOVE ST #1000 26895 ALISO CREEK RD STE B-440 NEWPORT BEACH, CA 92660 ALISO VIEJO, CA 92656 C] by:certified mail,No. _, with return receipt requested, through the United States Postal Service at , California, addressed as follows: | byovernight mailat , California, addressed as follows: CI by: fax transmission, at fax number __. Noerror wasreported by the fax machinethat I used, LC By personal service by leaving the documents in a sealed envelope or packageclearly labeled to identify the attorney being served with a receptionist or a person having charge ofthe attorney’s office, addressed as follows: Xx by, interoffice mail througha facility regularly maintained by the State Bar of California addressed as follows: Kimberly G. Anderson, Enforcement, Los Angeles Thereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on September 12, 2011. OPgheZ “Milagro eron Case ‘Administrator State Bar Court PROOF OF SERVICE BY MAIL I, Joan Sundt, hereby declare: that I am over the age of eighteen years and am not a party to the within above-entitled action, that [am employed in the City and County of San Francisco, that my business address is The State Bar of California, 180 Howard Street, San Francisco, California 94105. On December 22, 2011, following ordinary businesspractice, I placed for collection for ‘mailing at the offices of the State Bar of California, 180 Howard Street, San Francisco, California 94105, three copies of PETITION OF THE CHIEF TRIAL COUNSEL OF THE STATE BAR OF CALIFORNIA FOR WRIT OF REVIEW OF THE DECISION OF THE STATE BAR COURTin an envelope addressed as follows: Wayne W. Suojanen Michael Gordon York Suojanen Law Office 1301 Dove St. #1000 26895 Aliso Creek Rd, Ste. B-440 Newport Beach, CA 92660 Aliso Viejo, CA 92656 Colin P. Wong Chief Administrative Officer, State Bar Court The State Bar of California 180 HowardStreet San Francisco, CA 94105 Iam readily familiar with the State Bar of California’s practice for collection and processing correspondence for mailing with the U.S. Postal Service and, in the ordinary course of business, the correspondence would be deposited with the U.S. Postal Service on the day on which it is collected at the business. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California this 22nd day of December, 2011.
