Filed 7/11/13 P. v. Thomas 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038282
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS112254)

             v.

ROBERT RUFUS THOMAS,

         Defendant and Appellant.



         Defendant Robert Rufus Thomas appeals from a conviction of attempted voluntary
manslaughter and assault with a deadly weapon. Defendant contends that he informed
the trial court that he desired substitution of counsel, and that the trial court therefore
erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118
(Marsden). We conclude that a Marsden hearing was not required, and we accordingly
will affirm the judgment.
                                        PROCEDURAL BACKGROUND1
         An information charged defendant with attempted willful, deliberate, and
premeditated murder (Pen. Code, §§ 664/187, subd. (a)). The information alleged that
defendant had personally used a deadly or dangerous weapon (Pen. Code, § 12022,
subd. (b)) and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).


         1
             The facts of the case are not relevant to the issue presented on appeal.
Following the close of evidence at defendant’s jury trial, the prosecutor amended the
information to add a charge of assault with a deadly weapon (Pen. Code, § 245,
subd. (a)(1)) and a great bodily injury allegation (Pen. Code, § 12022.7).
       The jury acquitted defendant of attempted murder, but it convicted him of the
lesser-included offense of attempted voluntary manslaughter (Pen. Code, §§ 664/192,
subd. (a)). The jury convicted defendant of assault with a deadly weapon, and it found
true the allegations that defendant personally used a deadly or dangerous weapon,
personally inflicted great bodily injury, and had served two prior prison terms.
       The trial court sentenced defendant to nine years in prison. Following the
sentencing hearing, defendant filed a timely notice of appeal.
                                       DISCUSSION
       Defendant argues that, because his postverdict “statements to the trial court
expressed his clear dissatisfaction with trial counsel and clearly indicated he wanted
substitute counsel,” the trial court erred in failing to hold a Marsden hearing. Defendant
thus urges us to remand the case to the trial court for a Mardsen hearing.
       We conclude that there was no clear indication that defendant wanted a substitute
attorney, and that the trial court therefore was not required to hold a Marsden hearing.
Background
       After the jury returned the verdicts, the following colloquy occurred:
       “THE COURT: April 4th, 2012, 8:45 in the morning, for sentencing. [¶] We’ll
see you back on that date and at that time.
       “DEFENDANT THOMAS: I just want to say I believe this was a set up. I
believe everything was just, um, coached. I believe that, uh, that, um, the decision
making was more enforced by leading and pleading than the righteous choice. [¶] And I
believe that, uh, you know, I was treated unfairly in that way. And also, uh, manipulated
and told one thing and other things happened. And—

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       “THE COURT: Mr. Thomas, I want to say this for the record. Your attorney has
done an absolute fabulous job in representing you. You were looking at a life crime, and
she worked with the evidence she had and did a rather amazing thing which is get you out
of that life crime. [¶] It could have been—the jury could have viewed the evidence, with
the number of stab wounds to the back of the victim as well as the other evidence, as
being attempted premeditated murder. [¶] So for you to feel that you have been
railroaded is your own personal feeling. I can’t—feelings aren’t wrong, so you can have
that feeling. [¶] But I can assure you, your attorney has done an incredible job, and these
attorneys have behaved professionally and ethically and have both zealously represented
their respective clients and their respective interests. [¶] I don’t say that often let me
assure you. You should be thanking your attorney about this moment. [¶] I’ll see you at
sentencing.
       “DEFENDANT THOMAS: I am. I’m just saying that I believe she was pushed
around. That’s all I’m saying. I just believe she was pushed around.
       “THE COURT: Court’s in recess.”
A Marsden Hearing Was Not Required
       “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 (Nakahara).) 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.)

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       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.) 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
People v. 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.)
       People v. Nakahara, supra, 30 Cal.4th 705 is instructive. In Nakahara, the
defendant sent a letter to the trial court in which he expressed dissatisfaction with his
counsel’s performance. (Id. at p. 718.) In the letter, the defendant stated the following:
counsel and the defendant had a conflict of interest arising from phone calls that were
never made, counsel conferred with the defendant only at court, counsel was uninterested
in reading the defendant’s notes regarding the preliminary hearing, and counsel failed to
provide the defendant with paperwork regarding some witnesses. (Ibid.) Nakahara held
that the complaints in the defendant’s letter did not trigger the trial court’s duty to hold a
Marsden hearing. (Id. at pp. 718-719.) Nakahara reasoned: “As for the vague
allegations in defendant’s letter, at most they reflect a difference of opinion over trial
tactics and some generalized complaints regarding counsel’s performance, rather than a
request for new counsel based on specific facts showing a deterioration of the attorney-
client relationship.” (Id. at p. 719.)
       If a Marsden hearing was not required in Nakahara, we cannot conclude that a
Marsden hearing was required in defendant’s case. The Nakahara defendant made
complaints regarding his counsel’s performance. Here, defendant made no such
complaints. Rather, defendant’s statements reflected a general dissatisfaction with the

                                               4
trial process, not dissatisfaction with defense counsel in particular. Indeed, defendant’s
comments suggested that he was actually pleased with defense counsel’s performance.
After the trial court stated, “You should be thanking your attorney about this moment.
[¶] I’ll see you at sentencing,” defendant responded, “I am. I’m just saying that I believe
she was pushed around.” (Italics added.) Defendant’s response thus confirmed that he
was thankful for defense counsel’s performance, and that his only concern was that
defense counsel had been “pushed around” by unspecified individuals. Even if we were
to construe defendant’s “pushed around” comment as a complaint regarding counsel’s
performance, such a generalized complaint cannot be deemed a clear indication of a
desire for a new attorney. (See Nakahara, supra, 30 Cal.4th at p. 719.) Accordingly,
because there was no clear indication that defendant was dissatisfied with defense
counsel and wanted a substitute attorney, the trial court was not required to hold a
Marsden hearing.
       Defendant contends his comment that he was “manipulated” constituted a clear
indication of a desire for a new attorney. Defendant’s argument is meritless. When
making his statements to the trial court, defendant never specified who had allegedly
manipulated him. Given that defendant’s manipulation comment was not directed at
defense counsel, we cannot conclude that the comment constituted an indication of a
desire for a new attorney.
       In summary, we conclude that there was no clear indication by defendant that he
wanted a substitute attorney. We therefore conclude that the trial court did not err in
failing to hold a Marsden hearing.




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                                 DISPOSITION
     The judgment is affirmed.


                                   ______________________________________
                                              RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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