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Name: People v. Carter
Case #: B210203
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 02/26/2010

The trial court was not required to hold a hearing where defendant did not make a Marsden motion at his arraignment. At his arraignment on robbery charges, appellant asked for a Marsden hearing. He then proceeded to complain that counsel was “dragging his feet” and not doing what appellant told him to. The court denied his motion. On appeal, appellant contended that the trial court prejudicially erred in failing to hold a Marsden hearing at the arraignment. The appellate court held that appellant did not make a Marsden motion at that time. Although he used the term “Marsden hearing,” upon further inquiry he clarified that he wanted to represent himself. Under those circumstances, the court was not required to hold a Marsden hearing.
The trial court did not err in denying the motion to suppress. Appellant, a passenger in a vehicle, was stopped by police because he fit the description of a robbery suspect. Appellant told police he was on probation for armed robbery. Police requested identification, which appellant supplied. When the officer ran the identification through the system, he found an outstanding warrant for armed robbery and arrested appellant. A witness identified appellant as the suspect. The appellate court affirmed the denial of appellant’s motion to suppress. Even if the initial traffic stop was not supported by reasonable suspicion, the trial court did not err because under People v. Brendlin (2008) 45 Cal.4th 262, the discovery of the outstanding arrest warrant attenuated the taint of the unlawful stop.
The court’s error in failing to give CALCRIM No. 101 is subject to harmless error analysis. Appellant also contended that he was denied his right to a fair and impartial jury because the trial court failed to instruct the jury as required by Penal Code section 1122, subdivision (a) by not giving CALCRIM No. 101 (preinstruction on basic rules of law and procedure), the instruction which implements the statute. He argued that the failure to give the instruction is reversible per se. Respondent argued that the error was waived since there was no objection below, and also that the error is subject to a harmless error analysis. The appellate court found that the issue was not waived, but agreed with respondent that failure to give CALCRIM No. 101 is subject to a harmless error analysis. Here, there was nothing in the record which suggests any prejudice from the court’s failure to so preinstruct. Other instructions addressed some of the concepts covered by CALCRIM No. 101 and there was no evidence that anything occurred which might have adversely affect the trial and would have been avoided had the instruction been given. No juror spoke to anyone about the case, listened to media reports, etc. The case was simple and the jury deliberated for slightly more than an hour. The failure to give CALCRIM No. 101 had no affect on the trial.