1 Filed 11/20/14 P. v. Harper CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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THE PEOPLE, Plaintiff and Respondent,

v. PAUL GAPPO HARPER, Defendant and Appellant. C072762 (Super. Ct. No. 09F06365)

Appointed counsel for defendant Paul Gappo Harper as ked this court to review the
record and determine whether there ar e any arguable issues on appeal. ( People v. Wende (1979) 25 Cal.3d 436 ( Wende ).) Finding no arguable erro r that would result in a disposition more favorable to defendant, we will affirm the judgment.2 I The People filed a compla int charging defendant and his wife, Theresa Harper, with the August 20, 2009 murder of thei r 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 co mpetence to stand trial. Th e trial court suspended the criminal proceedings and appointed two doctors, Charles B. Schaffer, M.D. (a psychiatrist) and Paul G. Mattiuzzi, Ph.D. (a psychol ogist), to examine defendant pursuant to section 1368. After considerin g reports from the doctors, the trial court concluded defendant was competent to stand tria l and reinstated the criminal proceedings. Trial commenced and two separate juries were selected and sworn. Before the presentation of evidence, however, the prosec utor announced that defendant’s wife had entered into a plea agreement. In exchange for her guilty pl ea 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 st ate 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 d eath. 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 te rm would be 25 years to life and that, with good behavior, he could be eligible for parole. The trial c ourt directed defendant to let the trial court

1 Undesignated statutory references are to the Penal Code.3 know if he did not understand something or needed clarifi cation, noted that defendant appeared “lucid and clear,” and found that defendant understood the proceedings. The prosecutor set forth the factual ba sis 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 th e child’s death. Defendant agreed with th e 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 pleadi ng guilty. Defendant waived his rights and pleaded no contest to the charged offenses. The trial court scheduled the sentencing hearing to permit de fense counsel time to consult with mental health experts for purposes of preparing a fi le of materials to accompany defendant to state prison. At the sentencing hearing, defendant sought substitution of counsel. The trial
court conducted a Marsden 2 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 allege d ineffective representation. Because the appointed counsel panel administ rator agreed that a different attorney could investigate whether there were grounds for defendant to withdraw his pl ea, 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 se parate incidents of assault leading to the
child’s death. Defendant claimed the advise ment, along with his mental health status, prevented his plea from being knowing, intelligen t, and voluntary. The trial court noted,

2 People v. Marsden (1970) 2 Cal.3d 118.4 however, that it had expressly explained to defe ndant at the plea hearing that defendant’s
sentence would be the same whether he was co nvicted 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 agains t 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 reque st for a certificate of probable cause ( Harper v. Superior Court (June 5, 2014, C0761 14) [nonpub. order].)
II Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record a nd 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 r eceived no communication from defendant.5 Having undertaken an exam ination of the entire record , we find no arguable error that would result in a dispositi on more favorable to defendant.
DISPOSITION The judgment is affirmed.

MAUR O , J.

We concur:

HULL , Acting P. J.

DUARTE , J.