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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

 v.

JOHN BRUCE CLAUER,

Defendant and Appellant.

 H040810

 (Santa Cruz County

 Super. Ct. No. F21566)

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. 
2

Defendant now appeals from the judgment of conviction. On appeal, he contends 

that the trial court erred in failing to conduct a Marsden2hearing 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. 
3

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. 
4

“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, 
5

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. 
6

______________________________________

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.