Filed 8/18/14 P. v. Karawia CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B248405

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA355163)
         v.

OUSAMA W. KARAWIA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Sam
Ohta, Judge. Affirmed.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
                                   INTRODUCTION


       A jury found defendant Ousama W. Karawia guilty of one count of grand theft
(Pen. Code, § 487, subd. (a); count 2),1 one count of insurance fraud by presenting a false
claim to the State Compensation Insurance Fund (SCIF) (§ 550, subd. (b)(1); count 7),
one count of insurance fraud by making misrepresentations to SCIF regarding facts
material to the insurance premium (Ins. Code, § 11880, subd. (a); count 13), and four
counts of possession of an assault weapon (former § 12280, subd. (b), renumbered
§ 30605; counts 15-18).2 The trial court sentenced defendant to five years in state prison
on the fraud by misrepresentation count, suspended execution of that sentence, and
placed defendant on probation for a period of five years on the condition that he serve
240 days in custody, which could be served by electronic monitoring.3 On the remaining
counts, the court suspended imposition of sentence and placed defendant on probation for
five years. Defendant appeals from the judgment (order granting probation), contending
that in treating his assault weapons convictions as felonies rather than misdemeanors, the
trial court misunderstood the scope of its discretion and abused that discretion. We
disagree and affirm.




1      All further undesignated statutory references are to the Penal Code.

2      He was acquitted of conspiracy (§ 182, subd. (a)(1)) and several counts of
insurance fraud (Ins. Code, §§ 550 & 11880, subd. (a)) and failure to file an income tax
return (Rev. & Tax. Code, § 19706). The jury also found not true excessive taking
allegations under former section 12022.6, subdivision (a)(1) and (2), and section
1203.045, subdivision (a).

3      The court postponed proceedings regarding restitution.

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                                    BACKGROUND


       Because defendant’s contentions relate solely to sentencing, we only briefly
describe the evidence introduced at trial, viewed in the light most favorable to the
judgment and presuming in support every fact that reasonably can be deduced from the
evidence. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)4
       Through a wholly-owned holding company, defendant owned several security
companies that provided security services for construction sites, office buildings, and
other sites and activities in California and other states and countries. The companies
operated under the name International Protective Services and derivative names.
Defendant was tried with codefendant Allan Bailey.5
       The prosecution’s theory was that beginning in 2003, defendant conspired with
Bailey to defraud SCIF of approximately $10 million. The alleged scheme was as
follows: by using similar names for his companies and by misrepresenting the ownership
structure of them when applying for coverage from SCIF in 2003 through 2006,
defendant obtained workers’ compensation coverage for all of his employees at the cost
of insuring only those who were employed by a single company, International Armored
Solutions. Further, the prosecution alleged that defendant conspired with Bailey to
present workers’ compensation claims under the International Armored Solutions policy
for injured workers employed by defendant’s other companies. Audits conducted by
SCIF for the years 2004 through 2006 revealed that in those years, 46 employees made
claims on the policy issued to International Armored Solutions. When asked by an
investigator from SCIF about five specific claimants who did not work for International
Armored Solutions, defendant said the claimants had been mislabeled as out-of-state


4     We are aided in this task by the trial court’s thoughtful summary of the charges,
evidence, and convictions at the time of sentencing.

5      Bailey was convicted of failing to file a tax return (Rev. & Tax. Code, § 19706)
and possession of an assault weapon (former § 12280, subd. (b)). He is not a party to this
appeal.

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employees. He did not say that they worked for companies other than International
Armored Solutions. These claimants received substantial payouts from SCIF on the
policy issued to International Armored Solutions in the sums of approximately $44,000
(to Maria Bernabe for two claims), $78,000 (to Rogelio Talacay), $31,000 (to Judy
Hoiten), $1,600 (to Martha Jacquez), and $83,000 (to Miguel Zuniga).
       The jury acquitted defendant of conspiracy, most of the related insurance fraud
counts, and filing a false tax return, and it found the excessive taking allegations not true.
(See fn. 2, ante.) It convicted defendant of only three counts based on his dealings with
SCIF: count 2, grand theft (§ 487); count 7, presenting a false claim to SCIF related to a
$38,000 payout to employee Maria Bernabe in 2005 (§ 550, subd. (b)(1)); and count 13,
misrepresenting facts material to the insurance premium related to the SCIF audit for
2005 (§11880, subd. (a)).
       As relevant to defendant’s assault weapons convictions, on April 15, 2009, a
search warrant was executed at defendant’s residence in connection with the investigation
of defrauding SCIF. Defendant told investigators that a safe in an upstairs room
contained firearms. A search of the safe revealed several firearms, including four that are
classified as assault weapons under California law: a Colt .223 caliber Model HBAR
Sporter, an L. Franchi Model SPAS12 12-gauge shotgun, an IMI Uzi nine-millimeter
Model B, and a Calico nine-millimeter Model M-900. To lawfully possess such
weapons, an owner was required to have registered them by January 1, 1992. (Former
§ 12285, subd. (f).) The relevant data bases did not contain any such registration filed by
defendant for any of the assault weapons in the safe.


                                       DISCUSSION


       Taking out of context a comment made by the trial court in sentencing
codefendant Bailey, defendant contends that the trial court applied improper criteria in
declining to treat defendant’s assault weapons convictions as misdemeanors. Defendant
also contends that the court abused its discretion. We disagree with both arguments.


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I.     Relevant Proceedings
       In addition to his convictions for grand theft and insurance fraud, defendant was
convicted of four counts of possessing an assault weapon, in violation of former section
12280, subdivision (b)(1) (now § 30605, subd. (b)(1)). The crime is an alternative
felony/misdemeanor, punishable in the court’s discretion (§ 17, subd. (b)) by
imprisonment in the county jail for a period not exceeding one year or by imprisonment
in state prison for 16 months, two, or three years. (See §§ 30605, subd. (a), 1170, subd.
(h)(1); see also In re Jorge M. (2000) 23 Cal.4th 866, 873 [former § 12280, subd. (b),
was an alternative felony/misdemeanor].)
       In his written sentencing memorandum, defendant asked that all of his convictions
be reduced to misdemeanors. As relevant to the assault weapons convictions, defendant
noted that he had significant firearms training, a permit from the State of California to
carry an exposed firearm, and a federal license to sell firearms. He was also a reserve
deputy with the Los Angeles County Sheriff’s Department. Defendant argued that the
assault weapons convictions should be treated as misdemeanors because his four guns
were legally purchased by one of his companies before the date of the regulation of such
weapons, they were kept securely in a safe, and they were never used. Further, he was a
first time offender.
       The sentencing hearing was held in two sessions. At the first sentencing session,
held on February 20, 2013, defendant appeared with codefendant Bailey. The court
engaged in a lengthy review of the charges, evidence, and convictions, and also gave a
thoughtful analysis of relevant sentencing considerations relating to defendant’s case,
focusing on the insurance fraud convictions and defendant’s personal characteristics. In
deciding to grant defendant probation, the court discussed all of the general sentencing
objectives of California Rules of Court, rule 4.410 and all of the criteria affecting
probation in rule 4.414. The court also discussed the option of sentencing defendant
under realignment (§ 1170, subd. (h)) to a sentence without probation or a split sentence.



                                              5
The court chose straight probation because it intended to order restitution as a condition
of probation.
       Insofar as the assault weapons convictions were concerned, the court stated:
“Based on the nature of his profession as a provider of security guard services, I do not
find that [defendant’s] possession of an assault weapon changes the picture in any
significant way. This is not a man who has aggressive tendencies who was arrested for
illegal arms possession. This is a man who bought these arms legally but then later failed
to adequately account for them with the State of California. Given the totality of these
considerations and in light of the jury’s verdict in this matter, the appropriate level of
punishment in this case is for the court to grant probation to the defendant.”
       The court then stated its intent to impose the upper term of five years on the
insurance fraud conviction in count 13, reasoning that “the amount taken is of such
severity that the imposition of the high term is appropriate.” The court also stated its
intention to suspend execution of that sentence and place defendant on probation for five
years. As to counts 2, 7, and 15 through 18 (15-18 being the assault weapons
convictions), the court stated its intention to suspend imposition of sentence and place
defendant on probation for five years. The court then considered the relevant sentencing
criteria for codefendant Bailey and elected probation for him as well.
       Defendant’s attorney then argued concerning the amount of jail time that the court
might impose and asked for community service. After a lengthy colloquy with defense
counsel concerning defendant’s background and the hardship the instant case imposed on
him, the court stated that it intended to impose a certain amount of jail time and ordered
defendant to return for that determination.
       Codefendant Bailey was convicted of a single count of possessing an assault
weapon and four counts of failing to file an income tax return. Before the court
scheduled the second phase of the sentencing hearing, Bailey’s attorney brought up the
subject of reducing those convictions to misdemeanors. The court replied: “I have the
discretion to either do that or not to do that. And in my opinion, when a person evades
filing an income tax for a number of years and the amount of income that he is earning is


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fairly substantial, then that person . . . is worthy of a felony conviction.” Bailey’s counsel
asked if the court’s thinking would be the same as to the assault weapons conviction
“because it is a bit different.” The court replied: “It is a bit different, but he has not
complied with the requirements of all of the elements that make a first-time offense a
misdemeanor. So as I stated in my denial of the motion for a new trial, your client
. . . may not have known specifically [that the gun he possessed was classified as an
assault weapon], but he is a man who has routine contact with firearms. And as such, I
see him in a different position than someone who was perhaps given an assault weapon
by a grandfather, had it in his closet, didn’t know that it was an assault weapon . . . . I
just see a different person sitting in front of me.”
       At no time did defendant’s attorney or counsel for codefendant Bailey suggest that
the court somehow misunderstood the nature of its discretion to reduce the assault
weapons convictions to misdemeanors.
       At the second sentencing proceeding on March 18, 2013, the court again heard
argument on how much custody time to impose on defendant. The court then formally
sentenced defendant to the upper term of five years on count 13, suspended execution of
that sentence, and placed defendant on probation for five years, subject to the condition
that he serve 240 days in county jail, which could be served by electronic monitoring. As
to the remaining counts, including the assault weapons convictions, the court suspended
imposition of sentence and placed defendant on probation for five years. Defendant’s
attorney did not request that the assault weapons convictions be treated as misdemeanors
and did not suggest that the court failed to understand its discretion to do so.


II.    The Trial Court Understood the Proper Nature of Its Discretion
       Seizing upon the trial court’s comment to Bailey’s attorney that Bailey had “not
complied with the requirements . . . that make a first-time offense a misdemeanor,”
defendant contends that the court misunderstood the nature of its discretion to reduce
Bailey’s assault weapons conviction to a misdemeanor. He then extrapolates that the
court must also have misunderstood the nature of its discretion to reduce his assault


                                               7
weapons convictions as well. According to defendant, in the comment concerning Bailey
not having complied with requirements to make a first time offense a misdemeanor, the
court was referring to former section 12280, subdivision (b), which provided that a first
time offense is punishable by a $500 fine if certain conditions are met—conditions that
neither Bailey nor defendant could meet.6 Defendant argues that by referring to this
provision, the court was relying on factors that have “nothing to do with the
misdemeanor/felony wobbler issue.”
       We note that having failed to contend below that the trial court misunderstood its
discretion, defendant forfeited this issue on appeal. (People v. Scott (1994) 9 Cal.4th
331, 356.) In any event, a full consideration of the court’s comments in response to
Bailey’s attorney shows that the court fully understood its discretion.
       “A court ha[s] broad discretion under section 17, subdivision (b) in deciding
whether to reduce a wobbler offense to a misdemeanor. [Citation.] We will not disturb
the court’s decision on appeal unless the party attacking the decision clearly shows the
decision was irrational or arbitrary. [Citation.] Absent such a showing, we presume the
court acted to achieve legitimate sentencing objectives.” (People v. Sy (2014) 223
Cal.App.4th 44, 66.)
       As stated in People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978
(disapproved on other grounds in People v. Williams (2005) 35 Cal.4th 817, 832): “We
find scant judicial authority explicating any criteria that inform the exercise of section
17[, subdivision] (b) discretion. [Citation.] However, since all discretionary authority is

6       Former section 12280, subdivision (b) stated in relevant part: “[A] first violation
of these provisions is punishable by a fine not exceeding five hundred dollars ($500) if
the person was found in possession of no more than two firearms in compliance with
subdivision (c) of Section 12285 and the person meets all of the following conditions: [¶]
(1) The person proves that he or she lawfully possessed the assault weapon prior to the
date it was defined as an assault weapon pursuant to Section 12276, 12276.1, or 12276.5.
[¶] (2) The person has not previously been convicted of a violation of this section. [¶]
(3) The person was found to be in possession of the assault weapon within one year
following the end of the one-year registration period established pursuant to subdivision
(a) of Section 12285. [¶] (4) The person relinquished the firearm pursuant to Section
12288, in which case the assault weapon shall be destroyed pursuant to Section 12028.”

                                              8
contextual, those factors that direct similar sentencing decisions are relevant, including
‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude
toward the offense, or his traits of character as evidenced by his behavior and demeanor
at the trial.’ [Citations.] When appropriate, judges should also consider the general
objectives of sentencing . . . . The corollary is that even under the broad authority
conferred by section 17[, subdivision] (b), a determination made outside the perimeters
drawn by individualized consideration of the offense, the offender, and the public interest
‘exceeds the bounds of reason.’ [Citation.]”
       In the present case, when first asked by Bailey’s counsel to reduce the tax fraud
and assault weapons conviction to misdemeanors, the court acknowledged that it had
discretion to do so. When later directed specifically to the assault weapons conviction,
the court’s reference to the first time offender provisions of former section 12280,
subdivision (b) was entirely appropriate—Bailey was not eligible under that provision.
Further, the comment was merely prefatory to the heart of the court’s analysis, which was
that because Bailey was involved in the security business and familiar with firearms, the
court did not consider him deserving of reduction to a misdemeanor. That consideration
is clearly within the proper bounds of discretion. Moreover, the record shows that the
trial court exercised extraordinary care in sentencing and showed superior knowledge of
sentencing rules. In light of those facts, there is no basis to conclude that the court failed
to understand either the nature of its discretion or factors relevant to determining whether
to treat Bailey’s single assault weapons conviction (or by extension defendant’s four
assault weapons convictions) as a felony rather than a misdemeanor.


III.   The Trial Court Did Not Abuse Its Discretion
       Defendant also contends that in implicitly denying defendant’s written request to
treat the assault weapons convictions as misdemeanors, the trial court abused its
discretion. We are not persuaded.
       Defendant possessed not one or two, but four, illegal assault weapons. Based on
his background—significant firearms training, possession of a permit from the State of


                                               9
California to carry an exposed firearm, possession of a federal license to sell firearms,
and employment as a reserve deputy with the Los Angeles County Sheriff’s
Department—it reasonably could be inferred that he knew possession of those guns was
illegal, even though they initially were purchased legally. Moreover, by violating the law
in possessing those weapons, defendant also violated the public trust imposed on him
based on his status as a licensed firearms dealer and a reserve deputy sheriff. Further, the
trial court showed substantial leniency in granting defendant probation. Under these
circumstances, the trial court did not abuse its discretion by failing to grant even further
leniency by treating the assault weapons convictions as misdemeanors.


                                          DISPOSITION


       The judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EDMON, J.*

We concur:




       EPSTEIN, P. J.




       WILLHITE, J.


*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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