Filed 8/23/16 P. v. Harris CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052827

         v.                                                            (Super. Ct. No. 14NF3889)

BRIAN EVERETT HARRIS,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, W.
Michael Hayes and Beatriz M. Gordon, Judges. Affirmed.
                   Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
                                                       *     *     *
                   We appointed counsel to represent Brian Everett Harris on appeal. Counsel
filed a brief that provided the facts of the case. Counsel did not argue against his client,
but advised the court he found no issues to argue on his behalf. We gave Harris 30 days
to file written argument on his own behalf. That time has passed, and Harris has not filed
any written argument.
              Counsel filed a brief following the procedures outlined in People v. Wende
(1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that
sets forth a summary of proceedings and facts but raises no specific issues. Under these
circumstances, the court must conduct an independent review of the entire record. When
the appellant himself raises specific issues in a Wende proceeding, we must expressly
address them in our opinion and explain why they fail. (People v. Kelly (2006)
40 Cal.4th 106, 110, 120, 124 (Kelly).) Harris did not raise any issues himself.
              Pursuant to Anders v. State of California (1967) 386 U.S. 738 (Anders), to
assist the court with its independent review, counsel provided the court with information
as to issues that might arguably support an appeal. Counsel raised the following three
issues: (1) whether the trial court erred by denying Harris’s motion to represent himself;
(2) whether Harris had a plausible self-defense argument; and (3) whether Harris was
effectively represented during the trial court proceedings. We have reviewed the record
in accordance with our obligations under Wende and Anders, and the information
provided by counsel. We found no arguable issues on appeal. The judgment is affirmed.
                                          FACTS
              Late one evening, officers Rafael Orozco and Priscilla Owens responded to
a call and spoke with Erica Turner. Turner was bleeding profusely down her neck and
chest area. Turner suffered a stab wound to the left side of her neck. The treating doctor
said the stab wound did not hit any arteries but went through all the layers of muscle.
              Turner said a man by the name of “No Good” had been calling her wanting
to retrieve his clothes that he had left in her motel room. She described the person as a
thin black male from Ethiopia, about five foot seven inches tall. Later that evening,
Turner answered her phone and told Harris that she would meet him and give him his



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clothes. When Turner met with Harris she gave him his backpack, but he complained
there was stuff missing.
              Later that evening, Turner walked out with another bag of clothing for
Harris, but when they met they got into an argument. Harris had an eight-inch black
knife in his hand. Turner tried to kick the knife out of Harris’s hand and kicked him in
the groin. Harris dropped the knife and Turner tried to pick it up, but Harris grabbed the
knife first and made a slashing or stabbing motion at her, which cut her neck.
              Orozco spoke with Jay Bueno who told him that he was staying at the
Shadow Park Inn with his friend Turner when they decided to walk to the store. As they
approached the sidewalk, Turner had a verbal altercation with Harris. Harris produced a
knife and jabbed at Turner in the upper torso with a locking knife about four inches in
length and Harris left the scene. Harris also told Bueno, “I’m going to fuck you up.”
              An information charged Harris with attempted murder (Pen. Code, §§ 664,
subd. (a), 187, subd. (a); all further statutory references are to the Penal Code) (count 1),
and aggravated assault (§ 245, subd. (a)(1)) (count 2). The information alleged Harris
personally used a deadly weapon during the commission of count 1 (§ 12022, subd.
(b)(1)), and he personally inflicted great bodily injury (GBI) during the commission of
counts 1 and 2 (§ 12022.7, subd. (a)). The information also alleged Harris had suffered a
serious and violent strike conviction (§§ 667, subds. (a)(1), (d) & (e)(1), 1170.12, subds.
(b) & (c)(1), and two prior prison terms (§ 667.5, subd. (b)).
              Prior to the preliminary hearing, Harris filed a motion to represent himself
under Faretta v. California (1975) 422 U.S. 806 (Faretta). Harris submitted a Farreta
waiver form and Judge Beatriz M. Gordon reviewed the form with him in open court.
The form listed a number of facts relating to self-representation. For each fact there was
a place for the defendant to indicate whether he had considered the fact by answering
“Yes” or “No.” After reviewing Harris’s completed form, the court noted Harris had
entered a significant number of “no” answers. The court advised Harris that because the

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form indicated he had not considered a number of important facts, it could not find he
was making a knowing and intelligent waiver of his right to counsel. The court allowed
Harris to review the form a second time and amend his answers as appropriate.
              When he resubmitted the Farreta waiver form, the court asked Harris if he
had now considered all the facts listed on the form and he said he had. On the form
Harris indicated he had previously represented himself in jury trial. When the court
asked when he had represented himself, Harris responded, “I’m not too familiar with
that.” The court then asked, “You can’t remember when you represented yourself in
front of a jury before?” Harris responded, “This is my first time.” The court inquired
further, “This is your first time? But in your paperwork, you said you’ve already
represented yourself before a jury.” Harris simply answered, “No.” The court said, “Sir,
I have now talked to you twice about this, and I’ve reviewed your answers to these
questions twice, and I don’t believe that you fully understand the information that is set
forth in this paperwork.” The court concluded it could not find Harris was making a
knowing, voluntary, and intelligent waiver to his right to counsel. The court denied the
Faretta motion without prejudice.
              Harris subsequently pleaded guilty to count 2, admitted the GBI allegation,
and admitted he suffered a prior conviction and served two prior prison terms. He did so
based on the condition he be sentenced to 10 years. The factual basis in the guilty plea
form read as follows: “In Orange County, California, on 9-15-14, I did willfully and
unlawfully commit an assault upon the person of Erica T. with a knife that resulted in me
personally inflicting great bodily injury on Erica T.” Prior to accepting the plea, Judge
W. Michael Hayes asked the prosecutor to review the plea agreement with Harris. The
prosecutor specifically asked Harris if the factual basis was true and correct, and he
responded it was. Harris also indicated he was pleading guilty freely and voluntarily
because he was, in fact, guilty.



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              The maximum sentence Harris could receive was 12 years. The trial court
sentenced Harris to a total prison term of 10 years as follows: the low term of two years
for count 2; a consecutive term of three years for the GBI enhancement; and a
consecutive term of five years for the serious prior felony conviction. The court struck
the strike prior and the prison priors for sentencing purposes. Harris filed a timely notice
of appeal, and the trial court granted a certificate of probable cause.
                                       DISCUSSION
              Although presented as three issues, counsel essentially raises the following
two issues: whether the trial court erred by denying Harris’s Faretta motion; and
whether Harris received ineffective assistance of counsel. We will address them anon.
Faretta Motion
              The United States Supreme Court in Faretta, supra, 422 U.S. 806, held that
under the Sixth and Fourteenth Amendments a criminal defendant has a constitutional
right to conduct his own defense subject to the trial court’s determination the defendant’s
decision to represent himself is voluntarily and intelligently made. In People v. Windham
(1977) 19 Cal.3d 121, 127-129, our Supreme Court held a trial court must permit a
defendant to represent himself upon ascertaining he has voluntarily and intelligently
elected to do so, irrespective of how unwise such a choice might appear to be. Based on
the record before us, we find no error.
Ineffective Assistance of Counsel
              Counsel questions whether Harris had a plausible self-defense argument
and whether Harris was effectively represented during the trial court proceedings. These
questions are essentially a claim of ineffective assistance of counsel.
              ““To prevail on a claim of ineffective assistance of counsel, a defendant
must show both that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if
the representation fell below an objective standard of reasonableness under prevailing

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professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
              The record in this case is minimal because Harris entered a guilty plea and
admitted he suffered a prior conviction and two prison priors. Nothing in the record
suggests Harris had a plausible self-defense claim. The record demonstrates an
unprovoked attack. While the victim was in the process of returning a bag of clothing to
him, Harris began arguing with her and ultimately Harris produced a knife and slashed at
the victim cutting her in the neck. Nor does the record reflect Harris was not effectively
represented during the trial proceedings or that he was prejudiced. In fact, the plea
agreement resulted in a reduced sentence for Harris. Accordingly, we find no error.
                                      DISPOSITION
              The judgment is affirmed.




                                                  O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.




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