People v. Clauer CA6

Filed 10/8/15 P. v. Clauer CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H040810 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. F21566)

v.

JOHN BRUCE CLAUER,

Defendant and Appellant.

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.

Defendant now appeals from the judgment of conviction. On appeal, he contends that the trial court erred in failing to conduct a Marsden2 hearing 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