Filed 4/11/14 Duke v. Superior Court CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


JONATHAN DUKE,                                                 B254105

         Petitioner,                                           (L.A.S.C. No. MA057733)

         v.
                                                               OPINION AND ORDER
THE SUPERIOR COURT OF                                          GRANTING PEREMPTORY
LOS ANGELES COUNTY,                                            WRIT OF MANDATE

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         ORIGINAL PROCEEDING; petition for writ of mandate. Lisa Mangay Chung,
Judge. Petition granted.
         Ryan Wolfe for Petitioner.
         No appearance for Respondent.
         Jackie Lacey, District Attorney, Roberta Schwartz and Cassandra Hart, Deputy
District Attorneys, for Real Party in Interest.

                                      ___________________________
       Petitioner Jonathan Duke sought an order for free trial transcripts to prepare a
motion for a new trial after his conviction for murder. Respondent court denied his
request. Although Petitioner did not demonstrate his indigency below, the People
concede error and recommend an evidentiary hearing in the trial court. Accordingly, we
grant the petition and order that such a hearing be conducted. (Code Civ. Proc., § 1088.)
                                     BACKGROUND
       At trial, Petitioner was represented by appointed counsel, an alternate public
           1
defender. On October 21, 2013, Petitioner was convicted by jury of one count of willful,
deliberate, and premeditated murder; the jury found true the allegation that the crime was
committed for the benefit of, at the direction of, or in association with a criminal street
gang, with the specific intent to promote, further, or assist in any criminal conduct by
gang members. (Pen. Code, §§ 187, 186.22, subd. (b)(4).)
       Before Petitioner’s sentencing, his family hired attorney Ryan Wolfe to file a
motion for a new trial and to represent Petitioner upon sentencing. Petitioner moved
ex parte for County of Los Angeles to provide trial transcripts without cost to Petitioner.
Petitioner did not provide his own declaration in support of the motion. Instead,
Petitioner provided Wolfe’s declaration, stating, in part, “Although I have been privately
retained with fundraising support of [Petitioner]’s family, based on information and belief
it is my conclusion that the [Petitioner] is indigent, and therefore qualifies for court
ordered transcripts. [¶] [Petitioner] previously qualified for representation as an indigent
by the Alternate Public Defender’s Office.”
       In the declaration filed in support of the instant petition, Wolfe states that at the
January 13, 2014 hearing, he “offered an oral declaration of Mr. Duke’s indigency and

       1
         The Office of the Public Defender represented Petitioner until October 29, 2012,
when it declared a conflict of interest, and respondent court appointed the Office of the
Alternate Public Defender. On November 6, 2012, respondent court relieved the Office
of the Alternate Public Defender, and private counsel Theodore A. Loewen substituted in
as Petitioner’s counsel. Private counsel Martin Pines represented Petitioner at the
November 19, 2012 preliminary hearing. By the time trial commenced on October 21,
2013, Mario Barrera, Alternate Public Defender, represented Petitioner.
                                               2
made him available for Judge Chung’s inquiry and . . . noted that the attorney’s fees were
reasonable and discounted to a monthly payment plan which exhausted any resources to
pay for ancillary services and transcripts.”
       Respondent superior court denied the motion. Petitioner does not provide a copy
                                                   2
of the transcript of the January 13, 2014 hearing, but the minute order states: “The court
                                                                        3
denies the motion – the court indicates it[’]s a type of Harris motion.” In the declaration
filed in support of the instant petition, Wolfe simply states that respondent court denied
the ex parte motion “on the basis that Mr. Duke had retained private counsel and
[respondent court] did not want to create an occasion for a Harris appointment.” In his
March 6, 2014 declaration in support of the People’s “Response to Petition for Writ of
Mandate/Concession Letter,” Deputy District Attorney Jonathan M. Chung, who
appeared at the January 13, 2014 hearing, states: “On January 13, 2014, I appeared for a
sentencing hearing in this case, during which the trial court denied a request by defense
counsel for the court to pay for defendant Duke’s trial transcripts. The basis for the trial
court’s denial was that the defendant had hired private counsel and that the request
amounted to a Harris motion.”
                                      DISCUSSION
       Petitioner contends: “This Court should order the superior court to grant
Mr. Duke’s request for transcripts at County expense because Mr. Duke has demonstrated
his indigency.”
       To support a claim of indigency, a defendant has the burden to provide a
declaration to show that his current financial status denies him equal access to the legal


       2
          When a transcript of oral proceedings is unavailable, the record on the writ
petition must include a declaration “[e]xplaining why the transcript is unavailable and
fairly summarizing the proceedings, including the parties’ arguments and any statement
by the court supporting its ruling. This declaration may omit a full summary of the
proceedings if part of the relief sought is an order to prepare a transcript for use by an
indigent criminal defendant in support of the petition and if the declaration demonstrates
the need for and entitlement to the transcript . . . . ” (Cal. Rules of Court, rule 8.486.)
        3
          Harris v. Superior Court (1977) 19 Cal.3d 786.
                                               3
process. (March v. Municipal Court (1972) 7 Cal.3d 422, 430.) Contrary to his claim that
he demonstrated his indigency below, Petitioner provided no evidence of his indigency to
respondent court nor a transcript to this Court showing that he offered to make such
showing.
       Instead, Petitioner provided his counsel’s declaration, in which Wolfe stated that
Petitioner is indigent “based on information and belief.” A declaration made on
information and belief is hearsay and must be disregarded. (Baustert v. Superior Court
(2005) 129 Cal.App.4th 1269, 1275, fn. 5; Star Motor Imports, Inc. v. Superior Court
(1979) 88 Cal.App.3d 201, 204.)
       Although Petitioner did not demonstrate his indigency below, the parties
nonetheless agree that the hiring of private counsel by a defendant’s family is only one
factor to be considered in determining a defendant’s indigency. (Tran v. Superior Court
(2001) 92 Cal.App.4th 1149, 1153–1154.) They also agree that the issue of a Harris
appointment—a request by an indigent defendant for appointment of private counsel—is
irrelevant. (Harris v. Superior Court, supra, 19 Cal.3d at p. 799; see People v. Cole
(2004) 33 Cal.4th 1158, 1186.) We agree.
       The remedies sought by the parties differ. While Petitioner requests the
immediate provision of free transcripts, the People request that this Court order
respondent court to conduct an evidentiary hearing to determine whether Petitioner is
indigent. Given the concession of the People that Petitioner be afforded the opportunity
to prove his indigency at an evidentiary hearing, we grant the petition and so order.




                                             4
       THEREFORE, let a peremptory writ issue, commanding respondent superior court
(1) To vacate its order of January 13, 2014, in Los Angeles Superior Court case
No. MA057733, entitled People v. Jonathan Duke, denying Petitioner’s motion to
provide trial transcripts at the expense of the County of Los Angeles, and (2) To conduct
an evidentiary hearing to determine whether Petitioner is indigent; and (3) To issue a new
order, consistent with this opinion.


       In all other respects, the petition is denied.
       NOT TO BE PUBLISHED.


THE COURT:




________________________ _____________________ _____________________
 ROTHSCHILD, Acting P. J.     CHANEY, J.            JOHNSON, J.




                                               5
