Filed 7/11/13 P. v. Thomas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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.
P ROCEDURAL B ACKGROUND 1 An information charged defendant w ith 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 (P en. Code, § 12022, subd. (b)) and had served tw o prior prison terms (Pen. C ode, § 667.5, subd. (b)).

1 The facts of the case are not relevant to the issue presen ted on appeal.2 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 voluntar y manslaughter (Pen. Code, §§ 664/192, subd. (a)). The jury convicted defendant of assault with a deadly weapon, and it found true the allegations that de fendant personally used a de adly or dangerous weapon, personally inflicted great bodily injury, an d had served two prior prison terms. The trial court sentenced defendant to nine years in prison. Following the sentencing hearing, defendant f iled a timely notice of appeal.
D ISCUSSION Defendant argues that, because his postv erdict “statements to the trial court expressed his clear dissatisfaction with tria l counsel and clearly indicated he wanted substitute counsel,” the trial c ourt 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 indi cation that defendant wanted a substitute attorney, and that the trial court th erefore 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 pleadi ng than the righteous choice. [¶] And I believe that, uh, you know, I was treated unfairl y in that way. And also, uh, manipulated and told one thing and othe r things happened. And—3 “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 ev idence she had and did a rather am azing 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 th e 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 a ssure you, your attorney has done an incredible job, and these attorneys have behaved professionally and et hically and have both zealously represented their respective clients and thei r respective interests. [¶] I don’t say that often let me assure you. You should be thanking your atto rney 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 ju st believe she was pushed around.
“THE COURT: Court’s in recess.” A Marsden Hearing Was Not Required “The seminal case regarding the appo intment 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 constituti onal 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 tr ial court must hold a hearing at which the defendant may state any grounds for dissati sfaction with the current appointed counsel. ( Marsden, supra, 2 Cal.3d at pp. 123-125; see People v. Sanchez (2011) 53 Cal.4th 80, 90.)4 The “trial court’s duty to permit a defend ant to state his reasons for dissatisfaction with his attorney arises wh en 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 requi red, 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 a nd 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 di ssatisfaction 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 in terest arising from phone calls that were never made, counsel conferred with the defendan t only at court, counsel was uninterested in reading the defendant’s notes regarding th e preliminary hearing, and counsel failed to provide the defendant with paperwor k regarding some witnesses. ( Ibid. ) Nakahara held that the complaints in the defe ndant’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 th ey reflect a difference of opinion over trial tactics and some generalized complaints rega rding counsel’s performance, rather than a request for new counsel based on specific fact s showing a deterioration of the attorneyclient 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 perform ance. Here, defendant made no such complaints. Rather, defendant’s statements reflected a general dissatisfaction with the5 trial process, not dissatisfaction with defense counsel in particular. Indeed, defendant’s comments suggested that he wa s actually pleased with defe nse counsel’s performance. After the trial court stated, “Y ou should be thanking your a ttorney about th is moment. [¶] I’ll see you at senten cing,” defendant responded, “ I am . I’m just saying that I believe she was pushed around.” (Ita lics added.) Defendant’s respon se thus confirmed that he was thankful for defense counsel’s perform ance, 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” co mment as a complaint regarding counsel’s performance, such a generalized complaint cannot be deem ed 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, th e trial court was not required to hold a
Marsden hearing.
Defendant contends his co mment 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 wa s no clear indication by defendant that he wanted a substitute attorney. We therefore co nclude that the trial court did not err in failing to hold a Marsden hearing.6 D ISPOSITION The judgment is affirmed.

__________ _______________ _____________ RUSHING, P.J.

WE CONCUR:

___________________ _________________ PREMO, J.

___________________ _________________ ELIA, J.