P. v. Harper

Filed 12/17/09 P. v. Harper CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Jeffrey F. Fraser, and Cynthia A. Bashant, Judges. Affirmed.

This case arises out of eight bank robberies committed in 2006-2007. A jury found Vincent Wayne Harper guilty of committing those robberies (Pen. Code,[1]  211) and found true an allegation that he suffered a prior serious felony conviction ( 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction ( 667, subds. (b)-(i), 1170.12). The court sentenced him to an aggregate prison term of 27 years.

Harper appeals his convictions, contending (1) the June 26, 2007[2] hearing on his pretrial motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace his court-appointed counsel[3] (hereafter the June 26 Marsden hearing) was insufficient because the court[4] failed to conduct an adequate inquiry into his dissatisfaction with his trial counsel, and thus the court abused its discretion in denying his Marsden motion; and (2) the court[5] erred in failing to hold a second pretrial Marsden hearing on September 12 or September 17. We reject these contentions and affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

1. Counts 1 and 2: Union Bank (Aug. 23, 2006)

On August 23, 2006, Kristie Gist and Megan Wiebke were working at a Union Bank in Lemon Grove. At about 4:00 p.m., Harper walked up to Wiebke's teller window, pulled out of his pants a large gun with a silencer on the end, pointed the gun at Wiebke, and told her to hand over her "large." Wiebke, who was frightened, handed over all the large bills she had, a total of $8,000.

Harper then looked over at Gist, who was Wiebke's manager, and motioned for her to come. When she came to the teller window, Gist noticed that Harper, who was saying "[l]arge only, large only," had a gun in his jumpsuit. Gist gave Harper about $1,500.

2. Count 3: Wells Fargo Bank (Oct. 10, 2006)

On October 10, 2006, at around 4:00 p.m., Adam Foster was working at the Wells Fargo Bank at Fourth and "B" Street in San Diego, when Harper walked up to his merchant's teller window without being called, and said, "I need to make a cash withdrawal, do not panic, do not want to have to kill you." Harper lifted up his shirt and showed Foster a gun that he had tucked into his pants. Harper asked for $100 bills, and Foster gave him some. Foster gave Harper a total of about $7,800.

3. Count 4: Washington Mutual Bank (Nov. 28, 2006)

In November 2006 Karla Santiesteban was working at the Washington Mutual Bank on Mission Bay Drive in San Diego. At about 10:30 a.m., Harper walked up to her teller window, lifted up his shirt, showed her a gun tucked in his pants, and demand money in $100 and $50 bills. Harper moved closer to Santiesteban, who was frightened, and pulled the gun out a little.

Santiesteban did not have many $100 and $50 bills, so she grabbed 10's, fives, and ones to make what she gave him look bulky. Harper told her not to give him a dye pack, but she did anyway. Harper, however, found the dye pack, ripped it open, and asked for more 100's and 50's. Santiesteban told him she did not have any more because most of the cash was stored in cash dispensers. Harper told her to open the dispenser and take out the money. Santiesteban told him she could not do that, but that she could type a code in the computer, and it would dispense cash. Harper told her to do that, but, when nothing came out, he left. Santiesteban gave Harper a total of about $1,200.

4. Count 5: Wells Fargo Bank (Dec. 20, 2006)

On December 20, 2006, at around 5:00 p.m., Eric Wade was working at the Wells Fargo Bank on Rosecrans Street in San Diego, when Harper came in and walked up to Wade's teller line as he was closing. Harper nodded at Wade and lifted up his jacket to show he had a gun. Harper pulled the gun out of his pants and placed it on the counter so it was pointed at Wade. Harper asked for "large hundreds," but Wade gave him 20's, 10's and fives in the total amount of about $200.

5. Count 6: Union Bank (Feb. 8)

On February 8, just before noon, Marlene Caro was working at the Union Bank on University Avenue in San Diego when Harper came in wearing a Rastafarian hat with fake dreadlocks. He walked to Caro's teller window and started talking about how he needed money for payroll. Harper placed a gun on the counter so it was pointed at her and told her she had one minute to give him all the money. When Caro started grabbing 20's, he told her he did not want them, so she started grabbing the $100 and $50 bills. Caro feared she was going to die. After he took the money, Harper nonchalantly walked out the side door of the bank.

6. Count 7: Washington Mutual Bank (March 24)

On March 24 Ashley Peltier was working at the Washington Mutual Bank at 1740 Rosecrans Street in San Diego. At around 11:15 or 11:30 a.m., Harper walked up to her, lifted his shirt, and put his hand on the handle of a gun in his belt. Peltier gasped because she was frightened. Harper said, "Shh," and motioned with his finger for her to be quiet. He then said, "50's and 100's."

When Peltier reached in her top drawer to press the emergency button, Harper said, "uh-huh." Peltier then handed him $1,250 in 100's and 50's. Harper thanked her and walked out.

7. Count 8: Wells Fargo Bank (March 27)

On March 27, just before noon, Jennifer Shutrump was working at the Wells Fargo Bank in Fashion Valley in San Diego when Harper came up to her teller window wearing a multicolored hat with fake dreadlocks. He pulled up his shirt, pulled out a gun with what looked like a silencer on the end of the barrel, placed it on the counter pointed in Shutrump's "general direction," and asked for 100's and 50's. Shutrump triggered the silent alarm, then reached into her drawer, pulled out a stack of cash in the amount of about $2,200, and gave it to Harper.

San Diego Police Detective Thomas Levenberg responded to the scene and determined from witnesses the direction the robber ran after leaving the bank. Detective Levenberg thereafter viewed some videos taken by a surveillance camera in the parking lot of an AM/PM minimart, which is located a few hundred feet away in the direction of the robber's travel. The video showed a Black male with the same clothing, hat and dreadlock wig as the robber getting out of a silver, late 1990's or early 2000's Nissan Altima parked at the AM/PM minimart before the robbery and getting back in the passenger side of the car after the robbery.

Detective Levenberg and other police officers determined that Harper had been stopped in October 2006 driving a 1987 Nissan Altima bearing license plate No. 4CQX624. The registered owner of the car was Coterica Richardson. Officer Levenberg and other police officers conducted surveillance of her residence and observed Harper coming to and going from the residence and getting into the Nissan Altima.

Harper was arrested on March 31. Harper did not cooperate with the booking process and made faces so as to make it difficult to get a straight picture of his face. Harper refused to have his mouth swabbed for DNA evidence, so the police had to draw blood.

B. The Defense

Harper did not testify in his own defense. Coterica Richardson testified that she dated Harper from February 2006 until the following March, when he was arrested. During the time they lived together, Richardson never saw any fake dreadlocks or weapons, and she did not see Harper wear any of the clothing worn by the robber shown in the surveillance camera photographs. She did not see him with large sums of money from the end of August 2006 to the following March.

Richardson also testified that in May 2006, she met Ali Abdula, who was a boyfriend of her friend Shantille Cherry. On February 8, 2007, Abdula borrowed Richardson's late-1990's Nissan Altima. Harper, not Richardson, gave Abdula permission to borrow the car that day. Abdula borrowed the car on several other occasions.

On March 24 Richardson took Cherry to the store in her car. Harper's clothes were in the car. Abdula gave Harper money for a missing hat.

On cross-examination, Richardson stated she kicked Harper out of her house two weeks before he was arrested, but some of his clothes remained in her house, and she still loaned him her car. A couple of times a week he took her to work and then had the car all day.

Jeremiah Brown testified that on February 8 he was sitting behind the Union Bank on University Avenue in San Diego. A police officer drove by and asked him whether he had seen a man wearing a Rastafarian beanie come by. Brown told the police he did see the man walk by with another African-American man. He had seen them pull up in a rusty teal green car. The man with the beanie was driving. The driver got out of the car and went around the left side of the bank building. About five or 10 minutes later, he came back to the car in a hurry, and he and his passenger drove off. Brown heard the car tires squeal. On cross-examination, Brown stated the car had been parked within an arm's reach of Brown.

On October 10, 2006, following the robbery of the Wells Fargo Bank at Fouth and "B" Street on that same day, Officer Darryl Willis detained Harper as a suspect in downtown San Diego. Officer Matthew Johnson brought a witness, a Mr. Foster, in a police car from the scene of the robbery to a curbside lineup to look at Harper. Foster did not make a positive identification of Harper as the robber.

Andrea Cunha testified that on March 24, in the evening, she was walking home in the vicinity of the Washington Mutual Bank on Rosecrans Street. Her friend Dorothy Zapien had told her the bank had been robbed. Cunha saw a Black male wearing pancake makeup. The man, who was about 40 years of age and six feet tall, was wearing gold glasses and a golf hat. Later in the evening, Cunha's daughter and son found a hat in a brown paper bag on the corner in some bushes. A couple of days later, Cunha gave the hat to someone at the bank. Cunha stated she believed the man with makeup put the hat in the bushes. She also indicated that Harper was the man with the makeup and stated he was probably looking for his hat when she saw him.

In November 2006 Harper's probation officer, James Whelpley, checked the surveillance photographs of the robbery of the Washington Mutual Bank on Mission Bay Drive. Whelpley testified that although there were similarities between Harper and the person shown robbing the bank, there were also differences.

Thomas MacSpeiden, a clinical psychologist, testified regarding factors that influence eyewitness identification.

Steven Hillard testified that the residence he shared with Harper was searched by the police on March 31. The bulletproof vest confiscated from the bedroom belonged to one of Hillard's friends.

PROCEDURAL BACKGROUND

A. June 26 Marsden Hearing

On June 26 Judge Danielsen held a hearing on Harper's Marsden motion for appointment of new trial counsel. The court excused the prosecutor and asked Harper what "the problem" was with the representation his current counsel, Epley, was providing. Harper replied that he liked Epley and thought he was a "competent lawyer." However, Harper complained that it seemed Epley lacked confidence he could prevail in the case. Judge Danielsen responded:

"Well, let me make sure that I understand what you are telling me. [Epley] is not confident because he has independently evaluated the strength of the People's case and has come to the conclusion that the only intelligent conclusion is . . . that you are going to lose most of these counts if not all of these counts?"

Harper replied, "It's a possibility, yes, Your Honor." Harper then indicated he believed evidence existed that would raise a reasonable doubt about his guilt. Specifically, he claimed that four or five of the bank witnesses who were 100 percent sure of their identification of him had either failed to identify him during the initial photographic lineups or had identified someone else as the perpetrator. He also indicated that he had new information, which he had not yet shared with Epley, that a security guard at the Washington Mutual Bank on Rosecrans Street saw a man exit the door of the bank and get into a black SUV; and he also had information that another potential witness, whose name he did not know, had seen that man.

Harper also complained that he had confided in Epley that if he received a substantial prison sentence in this matter, he probably would not "make it through that sentence" because of unspecified "health issues": Harper was bothered by the fact that before the preliminary hearing his girlfriend told him that Epley had asked her, in the presence of one of her friends, whether Harper had cancer or AIDS and why he would not release his medical records.

The court asked Epley whether he was aware of the medical issues to which Harper referred, and Epley replied: "Harper initially told me that there was a medical condition that he had which would make any sentence he had a light sentence, and he didn't want to elaborate or give me any more information, nor would he sign a confidential medical records release to I could get medical records." Epley told the court that in talking with Harper's girlfriend before the preliminary hearing, he asked whether Harper was sick and whether she knew if he was getting treatments. Epley said he did not know what, if anything, was wrong with Harper, and he may have asked his girlfriend whether he had cancer or AIDS.

The court then asked Epley, "[I]n terms of your confidence, is there a problem with being prepared to go to trial[?]" Epley responded that there was no such problem, he had told Harper he could adequately represent him, and he would do so "to the best of [his] ability." He acknowledged he told Harper that the prosecution had "strong evidence for a conviction" if "it comes out the way it did at the preliminary hearing," unless they had "something else to counter that." However, he also told Harper that he had tried 131 cases and, although Harper could be convicted if he went to trial, Epley had been "surprised before in both ways," and "you never know what a jury is going to do." Epley indicated he was aware that "there [were] some issues initially" with respect to witnesses "not being able to pick somebody out of a lineup," and he saw that their "confidence level was quite high" at the second lineup. Epley also indicated he understood that the earlier identifications could be used for impeachment, and he planned to do so as he had done during the preliminary hearing.

Harper volunteered that, "I really don't have a problem with Mr. Epley," but then complained again that Epley was not confident Harper could "win" the case. The court then asked Harper:

"Would you rather have a very, very competent clueless lawyer or a competent lawyer that had a clue about what was going on?"

Harper responded: "A competent lawyer with a clue." Replying, "Then why do you want me to appoint somebody else for you?", the court denied Harper's Marsden motion, explaining that "[t]his is a non-meritorious Marsden motion, and there is no basis to replace counsel."

Thereafter, the trial call was set for September 17.

B. September 12 Hearings

1. Proceedings before Judge Fraser

On Wednesday, September 12, Harper, who had filled out a Lopez waiver[6] form but was still represented by Epley, appeared before Judge Fraser to request that he represent himself because he and Epley had "a disagreement" as to how his case should be presented. When the court advised Harper that Epley was "a very good lawyer" and indicated to Harper that it would be better to keep Epley as his lawyer rather than try to represent himself, Harper responded:

"Me and Mr. Epley don't agree on how I can present my case. The problem with this was Mr. Epley hadn't even researched, he hadn't even interviewed witnesses or anything. I submitted a motion, a letter, to Mr. Epley asking─"

The court interjected:

"We have already done the Marsden. We don't need to go into that. That was denied. The law requires that I talk to you about representing yourself because everybody recognizes it is not a very good idea."

After Harper indicated that he understood, the court asked him whether he was ready to begin the trial on Monday (September 17). Harper responded he would not be ready because "[t]here is additional discovery that I need and interviews of the witnesses that need to be done, which I discussed with [Epley], that hasn't been done yet." When the court again asked Harper whether he wanted to represent himself, Harper replied, "I wanted another lawyer but since that can't happen, I'll represent myself."

The court then relieved Epley and granted Harper's request to represent himself. The court appointed a runner and investigator to assist Harper, assigned the case to Judge Bashant for all purposes, and ordered Harper and the prosecutor to report to her forthwith.

2. Proceedings before Judge Bashant

Soon thereafter, also on September 12, Harper in propria persona and the prosecutor appeared before Judge Bashant. Harper requested a continuance of the trial date on the ground material witnesses had not been interviewed. Specifically, he identified James Whelpley, Shantille Cherry, and Cassandra Luccio. Whelpley was Harper's probation officer who, according to Harper, believed that Harper was not the person shown in a surveillance photograph of the robber at the Washington Mutual Bank on Mission Bay Drive. Harper represented that Cherry would testify that her boyfriend, "Ali", "[e]ssentially set me up in these bank robberies." He also represented that Luccio would testify that she worked at the Wells Fargo Bank in Fashion Valley, she knew Harper because she opened an account for him at that branch, she could give her opinion about whether it was likely Harper would rob a bank at which he had an account, she might have been present on the day that bank was robbed, and thus she might be able to testify that he was not in any "surveillance footage."

The court found that the witnesses were not material and denied Harper's request for a continuance of the trial on that basis.

Indicating that the prosecutor would be introducing "some DNA evidence," Harper stated he "needed to obtain a DNA fingerprint expert witness and a photo identification expert witness." When the court asked the prosecutor whether he was going to present DNA testimony, the prosecutor responded that he doubted he would present such evidence, he wanted to review some lab reports over the weekend, and "whatever discovery is available has been available to [Harper and Epley] for at least six weeks." Harper stated he did not have all of the discovery evidence and complained that it would be "highly unfair" to be "forced to go to trial in five days." The court denied Harper's request to continue the trial date.

C. Continuances of the Trial Date

On September 17, the date set for trial, Judge Bashant addressed a handwritten motion for continuance filed by Harper and noted that Judge Fraser had denied Harper's Marsden motion. The court expressed concern about Harper's statement that he had not had access to the law library and had not been given a runner and a private investigator as ordered by Judge Fraser. The prosecutor opposed Harper's request for a continuance, indicating he believed Harper's decision to represent himself was "done exclusively for the purposes of delay."

Judge Bashant trailed the matter to the next day, September 18, on which date she trailed the trial again to Monday, September 24. Harper immediately complained that he did not have adequate time to prepare for a trial. The court reminded Harper that he was told when he asked to represent himself that he still had to be "ready to go" on the date set for trial. The court explained to Harper that he had two choices: "You can either go to trial representing yourself . . . or you can go to trial with [Epley] representing you. I will reappoint [Epley today] if you didn't understand that you had to go to trial on Monday." Harper replied he would continue to represent himself, but complained again that he was "not ready."

On Monday, September 24, the court trailed the jury trial to October 1 and set the case for a pretrial status conference on September 28.

At the September 28 hearing, Harper addressed numerous problems he was having in preparing his defense for trial.

On October 1, the prosecutor withdrew his opposition to a continuance of the trial in light of his decision to present expert testimony concerning DNA evidence. The court continued the trial to October 29 and on that date continued it again to December 3.

On December 3, Harper complained about his inability to locate and interview witnesses. Judge Bashant denied his request for a continuance and trailed the trial to the following day.

On December 4, Harper told the court he was requesting an attorney because he was "not allowed to put on a defense." Judge Bashant offered to appoint counsel to represent Harper, but admonished that "I am not going to play any more games with this." Harper withdrew his request for a lawyer. Jury selection commenced during the afternoon session, and the first witness testified on December 5. Harper was sentenced on May 6, 2008, and this appeal followed.

DISCUSSION

I. JUNE 26 MARSDEN HEARING

Harper first contends his bank robbery convictions must be reversed because the June 26 Marsden hearing on his pretrial request to replace his court-appointed counsel was insufficient in that Judge Danielsen failed to conduct an adequate inquiry into Harper's dissatisfaction with his trial counsel and thus the court abused its discretion in denying Harper's Marsden motion. We reject these contentions.

A. Applicable Legal Principles

In People v. Ortiz (1990) 51 Cal.3d 975, our high state court explained both the limited nature of an indigent criminal defendant's right to appointed counsel as delineated in its prior decision in Marsden, supra, 2 Cal.3d 118, and the scope of the burden an accused must carry in bringing a Marsden motion to substitute one appointed counsel for another: "In [Marsden], we held that a defendant is deprived of his constitutional right to the effective assistance of counsel when a trial court denies his motion to substitute one appointed counsel for another without giving him an opportunity to state the reasons for his request. A defendant must make a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel [citation], whether because of his attorney's incompetence or lack of diligence [citations], or because of an irreconcilable conflict [citations]. We require such proof because a defendant's right to appointed counsel does not include the right to demand appointment of more than one counsel, and because the matter is generally within the discretion of the trial court." (People v. Ortiz, supra, 51 Cal.3d at p. 980, fn. 1, italics added.)

A trial court's denial of a Marsden motion does not constitute an abuse of discretion unless it is shown the failure to replace counsel substantially impaired the defendant's right to effective assistance of counsel. (People v. Gutierrez (2009) 45 Cal.4th 789, 803.)

B. Analysis

Here, the record shows the court gave Harper an adequate opportunity at the June 26 Marsden hearing to state the reasons for his Marsden motion. Judge Danielsen began by asking Harper what "the problem" was with the representation his appointed counsel was providing. As already noted, Harper complained that it seemed to him Epley lacked confidence he could prevail in the case, and stated that he (Harper) believed evidence existed that would raise a reasonable doubt about his guilt. The court permitted Harper to give several specific examples of such claimed evidence.

The court also gave Harper an opportunity to complain that he had confided in Epley that if he received a substantial prison sentence in this matter, he probably would not "make it through that sentence" because of unspecified "health issues." Harper indicated he was bothered by the fact that his girlfriend had told him before the preliminary hearing that Epley had asked her, in the presence of one of her friends, whether Harper had cancer or AIDS, and why he would not release his medical records.

The court gave Epley an opportunity to reply and then gave Harper an opportunity to respond. The foregoing record demonstrates the court's inquiry was adequate.

We also conclude the court's decision to deny Harper's Marsden motion did not substantially impair his right to effective assistance of counsel, and thus did not constitute an abuse of discretion. Harper has failed to show that Epley provided incompetent legal representation. Harper acknowledged that Epley was a "competent lawyer." When the court addressed Harper's complaint that Epley seemed to lack confidence in his ability to win the case, Harper conceded it was "a possibility" that Epley had independently evaluated the strength of the People's case and had determined that the only intelligent conclusion was that Harper would be convicted of most, if not all, of counts alleged against him.

With respect to Harper's concern about certain prosecution witnesses "not being able to pick somebody out of a lineup," Epley indicated he understood that some of the identifications could be used for impeachment, and he planned to do so as he had done during the preliminary hearing.

The record also shows that despite Harper's presentation of testimony by Whelpley─a defense witness whom he claimed Epley had failed to investigate─the jury convicted him on all counts. On appeal, Harper does not contend the evidence is insufficient to support those convictions.

Harper has also failed to demonstrate that an irreconcilable conflict had arisen in his relationship with Epley. Harper told the court he liked Epley, and he "really [did not] have a problem with" him. With respect to Harper's complaint that Epley may have revealed confidential medical information to his girlfriend, Epley's response supported the court's conclusion that Epley did not disclose any such information, but was merely attempting to gather information that might have assisted Harper during sentencing in the event he was convicted.

For all of the foregoing reasons, we reject Harper's contentions that the court's inquiry during the June 26 Marsden hearing was insufficient and that the court abused its discretion in denying his Marsden motion.

II. FAILURE TO HOLD A SECOND MARSDEN HEARING

Harper also contends the court erred in failing to hold a second pretrial Marsden hearing on September 12 or September 17. Harper's contention is unavailing.

As already discussed, Judge Fraser, who conducted the first of two hearings on September 12, told Harper that "[w]e have already done the Marsden," but relieved Epley as Harper's counsel and permitted Harper to represent himself. Judge Bashant, who conducted the second hearing on that date, allowed Harper to present an offer of proof with respect to potential defense witnesses Whelpley, Cherry and Luccio; denied his request for a continuance; and trailed the trial to September 17. On that date, noting that Judge Fraser had heard and denied Harper's Marsden motion, Judge Bashant granted Harper's request for a continuance. After a series of continuances, trial began on December 5.

We need not decide whether the court erred by refusing to hold a second pretrial Marsden hearing, as Harper contends, because any such error was harmless under any standard. The record shows that on December 4, before the commencement of trial and almost three months after the initial trial call and Harper's decision to execute a Lopez waiver and represent himself, Judge Bashant offered to appoint counsel to represent him. Harper, however, refused the offer, withdrew his request for appointment of new counsel, and elected to continue representing himself. Having refused an offer to provide him the very relief he claims the court should have granted him, Harper cannot now be heard to complain─as a ground for reversal of his convictions, which he does not dispute are supported by substantial evidence─that he was prejudiced by the court's failure to grant him a second pretrial Marsden hearing.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code.

[2] All further dates are to calendar year 2007 unless otherwise specified.

[3] Harper's court-appointed trial counsel was Mel Epley of the Office of the Public Defender.

[4] The Honorable David J. Danielsen.

[5] The Honorable Jeffrey F. Fraser and the Honorable Cynthia A. Bashant.

[6] A defendant who executes a "Lopez waiver" under People v. Lopez (1977) 71 Cal.App.3d 568, 572, expressly acknowledges, among other things, that "self-representation is almost always unwise"; that "extra time for preparing the case for motions or for trial will not be granted"; and that "no special investigator will be assigned to provide assistance."