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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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; and there is the cryptic reference to Eastman. There is nothing in the record to suggest that defendant wanted new counsel or was even dissatisfied with counsel.

Defendant relies mainly on Eastman to support his contentions. Eastman, however, did not discuss the Dickey standard ("'"'some clear indication'"'") for triggering a Marsden hearing, and is factually distinguishable from the case at hand. In Eastman, the defendant wanted to withdraw his plea and submitted a letter to the court detailing how his counsel had not adequately represented his interests. (Eastman, supra, 146 Cal.App.4th at p. 695.) Although the letter did not expressly request substitute counsel, the letter did adequately describe the breakdown in the attorney-client relationship and requested Eastman receive an "'adequate defense.'" (Id. at pp. 695-696.) The appellate court held that the trial court erred by failing to hold a Marsden hearing. (Eastman, at p. 696.)

Defendant's reliance on Eastman is problematic for two reasons:

First, defendant's contention is not supported by facts similar to those in Eastman. Instead, defendant relies on his counsel's reference to Eastman as sufficient to indicate that he was requesting substitute counsel. Although Eastman held that an express request for substitute counsel is not required, counsel's reference to Eastman without any other evidence of defendant's dissatisfaction with appointed counsel is insufficient to trigger a Marsden hearing. (Eastman, supra, 146 Cal.App.4th at pp. 695-696.)

Second, this appellate district has expressly declined to follow Eastman because the decision failed to discuss Dickey. (People v. Richardson (2009) 171 Cal.App.4th 479, 485.) While Richardson agreed that a defendant is not required to use the word "Marsden," there must be "evidence that defendant made his desire for appointment of new counsel known to the court." (Richardson, at p. 484.) In the case at hand, there is simply no evidence to support defendant's contention that he desired substitute counsel.

In Dickey, the Supreme Court found that the defendant had not provided any clear indication that he wanted substitute counsel and, therefore, a Marsden hearing was not required. (Dickey, supra, 35 Cal.4th at p. 920.) Dickey noted, "Defendant did not clearly indicate he wanted substitute counsel appointed for the penalty phase. To the extent he made his wishes known, he wanted to use counsel's assertedly incompetent performance in the guilt phase as one of the bases of a motion for new trial . . . ." (Ibid.) Again, the record here does not indicate that defendant was dissatisfied with counsel.

Defendant further relies on People v. Mendez (2008) 161 Cal.App.4th 1362 and People v. Mejia- - (2008) 159 Cal.App.4th 1081--two decisions from the Fifth Appellate District--to support his contention that the trial court erred by failing to hold a Marsden hearing. In Richardson, we explicitly declined to follow Mendez because the decision failed to discuss the Supreme Court's standard in Dickey. (Richardson, supra, 171 Cal.App.4th at p. 485.) Mejia also failed to consider Dickey. We therefore decline to follow Eastman, Mendez and Mejia.

Finally, defendant cites to People v. Reed (2010) 183 Cal.App.4th 1137, a decision from the Court of Appeal, First Appellate District, Division Five, which agreed with Mendez and Mejia. (Reed, at p. 1148.) In light of this reliance, we find Reed problematic as well. In any event, Reed is factually distinguishable because Reed's counsel explicitly stated on two separate occasions that the defendant wanted to bring a motion regarding counsel's incompetence. (Id. at pp. 1141-1142.) Here, defendant's counsel mentioned only that he needed time to review his obligations under Eastman, but there was no mention of defendant's dissatisfaction with counsel.

We therefore adhere to Richardson. Since defendant never indicated a desire to replace his appointed counsel, we reject his claim of Marsden error.


The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. DUARTE , J.

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