P. v. Thomas
Filed 7/11/13 P. v. Thomas CA6
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opinion has not been certified for publication or ordered published for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,
Plaintiff and
Respondent,
v.
ROBERT RUFUS THOMAS,
Defendant and
Appellant.
H038282
(Monterey
County
Super. Ct.
No. SS112254)
Defendant
Robert Rufus Thomas appeals from a conviction of
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 Background
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)). 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
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
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—
“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.â€
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.)
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.†(
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.†(
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.)
705 is instructive. In
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
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 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
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
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
Disposition
The judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
issue presented on appeal.
