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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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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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. 

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. 
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 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— 
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 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.) 
4 

 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 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 performance. Here, defendant made no such 

complaints. Rather, defendant’s statements reflected a general dissatisfaction with the 
5 

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. 
6 

DISPOSITION

The judgment is affirmed. 

 ______________________________________ 

 RUSHING, P.J. 

WE CONCUR: 

 

____________________________________ 

PREMO, J. 

 

____________________________________ 

ELIA, J.