Filed 10/8/15 P. v. Clauer CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040810
                                                                    (Santa Cruz County
         Plaintiff and Respondent,                                   Super. Ct. No. F21566)

             v.

JOHN BRUCE CLAUER,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         An information charged defendant John Bruce Clauer with murder (Pen. Code,
§ 187, subd. (a)).1 The information alleged one prior strike conviction (§ 667, subds. (b)-
(i)), one prior serious felony conviction (§ 667, subd. (a)(1)), one prior violent felony
prison term (§ 667.5, subd. (a)), and four prior felony prison terms (§ 667.5, subd. (b)).
Following a trial, a jury convicted defendant of first degree murder. In a bifurcated
proceeding, the trial court found all of the charged allegations to be true. The trial court
sentenced defendant to a prison term of 50 years to life consecutive to nine years.




         1
             Subsequent unspecified statutory references are to the Penal Code.
       Defendant now appeals from the judgment of conviction. On appeal, he contends
that the trial court erred in failing to conduct a Marsden2 hearing after he made comments
regarding defense counsel’s performance. As set forth below, we will affirm.
                                      BACKGROUND3
       Before trial, defendant made three separate requests for appointment of substitute
counsel, and the trial court held three separate Marsden hearings. The trial court denied
the three requests for substitute counsel on January 25, 2013, October 16, 2013, and
November 21, 2013, respectively.
       On January 6, 2014, the day before opening statements, the trial court ruled on
motions in limine. When it concluded issuing its rulings, the trial court stated, “All right.
Anything else?” Defendant said, “You know we’re not ready to start. You know that.”
The trial court did not respond to defendant’s comment, and it recessed the proceedings
for the day.
       On January 8, 2014, the prosecutor expressed frustration that defendant was using
expletives and “mumbling in some crazy fashion” during the testimony of prosecution
witnesses. The trial court advised defendant: “I’ve let you mumble a little bit. . . . I
assumed you were talking with your lawyer. But this last time you said something out
loud and it was loud enough for me to hear, so you need to keep those thoughts to
yourself or whisper them to your lawyer. So you need to communicate with your
lawyer.” Defendant responded: “If I had more opportunity to confer and consult with
my attorney, if he wouldn’t be gone for months at a time, I could find out things without
having to find out things in the courtroom while things are being talked out.” The trial
court again advised defendant to whisper any comments to defense counsel. Defendant

       2
           People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
       3
        The facts underlying defendant’s conviction are irrelevant to the issue presented
on appeal. We therefore will not summarize those facts.
                                              2
then stated: “All right. Thank you. And I do think we have a really good judge and a
really good jury, but I still say I’m concerned whether I’m getting a constitutionally
adequate defense. You know what I mean by that, right?” The trial court responded,
“And everything is going on the record, so if there’s an issue—” Defendant replied, “All
right.”
          On January 9, 2014, the prosecutor again expressed frustration that defendant was
using expletives and making comments during the testimony of prosecution witnesses.
The trial court advised defendant that the jury might not like defendant’s commentary
and “hold that against” defendant. Defendant interrupted the trial court’s remarks, and
defense counsel attempted to silence defendant. Defendant said to defense counsel, “I
don’t need you to tell me not to respond.” Defense counsel stated, “You do need me to
tell you not to respond.” Defendant replied: “You need to come and confer and consult
with me so I don’t have to talk to you in the courtroom. See, this is what happens. He’s
gone six and seven months at a time. The only time I get to talk to him is in the
courtroom.” The trial court did not respond to defendant’s comments about defense
counsel, and it instead advised defendant to not show anger in front of the jury and to
whisper any statements to defense counsel. After the advisement, defendant stated,
“Now we’ve got a good jury, we’ve got a good judge, and we’re not going to switch
lawyers in the middle of trial.”
                                         DISCUSSION
          Defendant contends that his comments about defense counsel’s performance on
January 6, 2014, January 8, 2014, and January 9, 2014 informed the trial court that he
desired substitute counsel, and that the trial court therefore erred in failing to conduct a
Marsden hearing following those comments. He urges us to conditionally reverse the
judgment and remand the matter for a Marsden hearing. As explained below, we find no
error and must affirm.

                                              3
       “The seminal case regarding the appointment of substitute counsel is Marsden,
supra, 2 Cal.3d 118, which gave birth to the term of art, a ‘Marsden motion.’ ” (People
v. Smith (1993) 6 Cal.4th 684, 690.) Marsden held that a defendant has a right to
substitute counsel on a proper showing that the constitutional right to counsel would
otherwise be substantially impaired. (Marsden, supra, 2 Cal.3d at p. 123; see People v.
Nakahara (2003) 30 Cal.4th 705, 718.) Marsden further held that when a defendant
requests appointment of substitute counsel, the trial court must hold a hearing at which
the defendant may state any grounds for dissatisfaction with the current appointed
counsel. (Marsden, supra, 2 Cal.3d at pp. 123-125; see People v. Sanchez (2011) 53
Cal.4th 80, 90 (Sanchez).)
       The “trial court’s duty to permit a defendant to state his reasons for dissatisfaction
with his attorney arises when the defendant in some manner moves to discharge his
current counsel.” (People v. Lucky (1988) 45 Cal.3d 259, 281, fn. omitted (Lucky).)
Although a “proper and formal legal motion” is not required, there must be “at least some
clear indication by defendant that he wants a substitute attorney.” (Id. at p. 281, fn. 8; see
Sanchez, supra, 53 Cal.4th at p. 84.) “The mere fact that there appears to be a difference
of opinion between a defendant and his attorney over trial tactics does not place a court
under a duty to hold a Marsden hearing.” (Lucky, supra, 45 Cal.3d at p. 281.) “Mere
grumbling” about counsel’s failures is insufficient to trigger a Marsden hearing. (People
v. Lee (2002) 95 Cal.App.4th 772, 780.)
       Here, defendant did not clearly indicate that he wanted a substitute attorney on
January 6, 2014, January 8, 2014, or January 9, 2014. It is true that defendant made
general complaints regarding defense counsel’s performance. He never made any
statement, however, that connected his complaints with a desire for a new attorney. On
the contrary, he explicitly informed the trial court that he was “not going to switch
lawyers in the middle of trial.” Thus, rather than moving to discharge his attorney,

                                              4
defendant actually informed the trial court that he was not seeking substitution of
counsel. “[W]e will not find error on the part of the trial court for failure to conduct a
Marsden hearing in the absence of evidence that defendant made his desire for
appointment of new counsel known to the court.” (People v. Richardson (2009) 171
Cal.App.4th 479, 484.) Given the record here—which contains no clear indication of
defendant’s desire for appointment of new counsel and actually includes defendant’s
express statement that he was not seeking substitute counsel—defendant cannot show
that the trial court erred in failing to hold a Marsden hearing.
                                        DISPOSITION
       The judgment is affirmed.




                                              5
                                        ______________________________________
                                                   RUSHING, P.J.




WE CONCUR:




____________________________________
      ELIA, J.




___________________________________
      WALSH, J.*




People v. Clauer
H040810




      *
         Judge of the Santa Clara County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
                                           6
