Filed 11/20/14 P. v. Harper CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072762

         v.                                                                      (Super. Ct. No. 09F06365)

PAUL GAPPO HARPER,

                   Defendant and Appellant.




         Appointed counsel for defendant Paul Gappo Harper asked this court to review the
record and determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a
disposition more favorable to defendant, we will affirm the judgment.




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                                               I
       The People filed a complaint charging defendant and his wife, Theresa Harper,
with the August 20, 2009 murder of their 21-month-old child (Pen. Code, § 187,
subd. (a))1 and with assault likely to produce great bodily injury resulting in a child’s
death (§ 273ab). The magistrate held defendant and his wife to answer on both charges.
       Defendant’s trial counsel subsequently advised the trial court that he was
concerned about defendant’s competence to stand trial. The trial court suspended the
criminal proceedings and appointed two doctors, Charles B. Schaffer, M.D. (a
psychiatrist) and Paul G. Mattiuzzi, Ph.D. (a psychologist), to examine defendant
pursuant to section 1368. After considering reports from the doctors, the trial court
concluded defendant was competent to stand trial and reinstated the criminal proceedings.
       Trial commenced and two separate juries were selected and sworn. Before the
presentation of evidence, however, the prosecutor announced that defendant’s wife had
entered into a plea agreement. In exchange for her guilty plea to second degree murder,
she would receive a prison sentence of 15 years to life and would potentially testify
against defendant at trial. The trial court accepted her change of plea.
       Defendant was offered an aggregate state prison term of 25 years to life in
exchange for pleas to second degree murder and assault likely to produce great bodily
injury resulting in a child’s death. Defendant accepted the plea agreement. He assured
the trial court that he had been taking his medications regularly, that he understood the
proceedings, and that his conduct had resulted in the death of his child. He said he
understood that the jury would find him guilty based on the evidence. He further stated
that he understood his prison term would be 25 years to life and that, with good behavior,
he could be eligible for parole. The trial court directed defendant to let the trial court




1 Undesignated statutory references are to the Penal Code.


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know if he did not understand something or needed clarification, noted that defendant
appeared “lucid and clear,” and found that defendant understood the proceedings.
       The prosecutor set forth the factual basis for the plea, stating that defendant
repeatedly beat his child over a period of weeks, causing a skull fracture and brain
injuries that resulted in the child’s death. Defendant agreed with the prosecutor’s
recitation of the factual basis for his plea. The trial court advised defendant of the
consequences of his plea and the rights he was waiving by pleading guilty. Defendant
waived his rights and pleaded no contest to the charged offenses. The trial court
scheduled the sentencing hearing to permit defense counsel time to consult with mental
health experts for purposes of preparing a file of materials to accompany defendant to
state prison.
       At the sentencing hearing, defendant sought substitution of counsel. The trial
court conducted a Marsden2 hearing, denied defendant’s request to substitute counsel,
and continued the sentencing hearing.
       At the subsequently scheduled sentencing hearing, defendant asked to withdraw
his plea based on his trial counsel’s alleged ineffective representation. Because the
appointed counsel panel administrator agreed that a different attorney could investigate
whether there were grounds for defendant to withdraw his plea, the trial court continued
the matter.
       Defendant filed a motion to withdraw his plea. According to defendant, his trial
counsel said defendant could receive a sentence in excess of 25 years to life if he went to
trial, because the prosecutor might allege separate incidents of assault leading to the
child’s death. Defendant claimed the advisement, along with his mental health status,
prevented his plea from being knowing, intelligent, and voluntary. The trial court noted,




2 People v. Marsden (1970) 2 Cal.3d 118.


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however, that it had expressly explained to defendant at the plea hearing that defendant’s
sentence would be the same whether he was convicted after trial or whether he entered
the plea agreement: 25 years to life. The trial court denied defendant’s motion to
withdraw the plea and continued sentencing to permit review of the probation report.
       The trial court subsequently sentenced defendant, consistent with the plea
agreement, to 25 years to life for assault against a child leading to death. A sentence of
15 years to life for second degree murder was stayed pursuant to section 654.
       The trial court denied defendant’s request for a certificate of probable cause, and
this court subsequently denied defendant’s petition for writ of mandate seeking an order
requiring the trial court to grant his request for a certificate of probable cause (Harper v.
Superior Court (June 5, 2014, C076114) [nonpub. order].)
                                              II
       Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed and we received no communication from defendant.




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       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                             MAURO                   , J.


We concur:


             HULL                    , Acting P. J.


             DUARTE                 , J.




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