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The People v. Brian Harper

November 29, 2011


(Super. Ct. No. 09F3392)

The opinion of the court was delivered by: Butz , J.

P. v. Harper



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Brian Harper of first degree murder, but was unable to agree on the alleged special circumstance that he committed or attempted to commit rape in the commission of the murder. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17).) Defendant agreed to waive his appellate rights for the prosecutor's dismissal of the special circumstance allegation. Defendant was thereafter sentenced to state prison for 25 years to life. He obtained a certificate of probable cause on the grounds that his counsel was ineffective and that his appellate waiver was not knowing, voluntary and intelligent. On appeal, he contends the trial court erred by failing to hold a Marsden*fn1 [1] hearing. We shall affirm.


On August 7, 1988, Judith Hasselstrom's body was found in a Redding park covered by six stalks of bamboo in a thicket of blackberry bushes. Her panties and bra were pulled down. An autopsy revealed that Hasselstrom had a one-quarter-inch tear to the outer rim of her vagina, and that injuries to her neck and face were consistent with manual strangulation.

The bamboo recovered at the scene was later processed for a palm print and several drops of blood, but resulted in no matches. The case went cold until defendant pleaded guilty to bank robbery in 2008. Defendant's DNA sample was entered into the DNA database, providing law enforcement with a preliminary match for the blood droplets from the bamboo stalks. Further DNA testing confirmed defendant was the sole source of the blood droplets found on the bamboo, and the likelihood that another white male would match the DNA found on the bamboo was one in 4.2 quadrillion. Defendant's left palm print was also a positive match for the print found on the bamboo and could not have been left by anyone else. Although defendant first denied knowing anything about Hasselstrom's murder, he later admitted to holding Hasselstrom to the ground with his arm over her throat as she struggled.

Defendant was convicted of first degree murder, but the jury remained split on the special circumstance of rape. Defendant agreed to waive his appellate rights in exchange for the prosecutor's motion to dismiss the special circumstance allegation.

Nearly a month later, defendant moved to withdraw his waiver on grounds that his psychiatric-based "regimen of drugs" prevented him from fully understanding the proceedings that took place when he agreed to the waiver. At that time, defendant's counsel requested a continuance "[i]n order to fulfill [his] obligations under People v. Eastman." (People v. Eastman (2007) 146 Cal.App.4th 688 (Eastman).) Counsel later reported that there were insufficient facts on which to file a meritorious motion to withdraw the waiver. The court then sentenced defendant to 25 years to life.


Defendant claims that his counsel's reference to Eastman should have put the trial court on notice that defendant was alleging ineffective assistance of counsel, and thereby requesting a Marsden hearing. We disagree. Although Eastman held that a court must hold a Marsden hearing when a defendant details how his counsel rendered ineffective assistance and requests that he receive an "'adequate defense,'" even if the defendant does not expressly request substitute counsel (Eastman, supra, 146 Cal.App.4th at pp. 695-696), the standard set forth by our state Supreme Court in People v. Dickey (2005) 35 Cal.4th 884 for triggering a Marsden hearing still requires "'"'some clear indication by defendant that he wants a substitute attorney'"'" (Dickey, at p. 920).

In Marsden, the Supreme Court held that when a defendant requests new appointed counsel, the court must give the defendant an opportunity to explain the basis for his contentions. (Marsden, supra, 2 Cal.3d at p. 125.) While the defendant is not required to make a formal motion for substitute counsel, there must be some indication that substitution is desired. (Dickey, supra, 35 Cal.4th at p. 920.) In the present case, defendant mentioned that he would like to withdraw his waiver of appeal because he was taking a regimen of drugs for his mental health issues and, therefore, he did not knowingly waive his right to appeal; ...

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