THE PEOPLE, Plaintiff and Respondent, v. JAMES F. HORTON II, Defendant and Appellant, 11 Cal. 4th 1068

Opinion GEORGE, J. Following the guilt phase of a jury trial, defendant James F. Horton II was convicted of one count of first degree murder (Pen. Code, §§ 187, 189) and one count of robbery (§ 211), and the jury found true the special circumstance allegations that the murder occurred in the course of a robbery (§ 190.2, subd. (a)(17)) and that defendant had suffered a prior murder conviction (§ 190.2, subd. (a)(2)). Following the penalty phase of the trial, the jury returned a verdict of death.

We conclude the prior-murder-conviction special-circumstance finding must be vacated and the sentence of death set aside. The judgment is otherwise affirmed. Facts I. Guilt Phase Evidence A. The prosecution case. On October 11, 1982, Herschel “Lobo” Bowser was discovered in his apartment located at 10459 Artesia Boulevard in the City of Bellflower, lying on the floor in front of the doorway, his head covered with blood and pieces of brain matter. A claw hammer, later marked for identification as the People’s exhibit No. 3, was lying in a pool of blood within a foot of his body.

He had suffered a fractured skull and 12 separate blunt injuries to his head, consistent with force applied by a hammer, as well as lacerations and bruises to his left hand. He was alive but later died following surgery. The police arrived as paramedics were transporting Bowser in an ambulance from his apartment. Several canvas bank bags containing approximately $10 in coins were on top of the desk. An empty leather wallet was found under a pillow in the bedroom. A safe on the floor in the bedroom closet was closed and locked.

Also found in the apartment were items associated with narcotic sales, including plastic “baggies,” mannitol (a cutting agent), and a sifter. An empty plastic container was on the kitchen counter near the stove. A latent print investigation was conducted at the crime scene, but the only identifiable print (lifted from a tool box) matched that of the victim. Carolyn Ebel lived in the same apartment building as Bowser and was his girlfriend. She first met him in early 1982 when he hired her as a driver for a truck in his catering business.

Eventually she became his girlfriend and began living in his apartment, although she also maintained a separate residence and continued to work as a driver in the catering business. Ebel testified that Bowser was a drug dealer and sold cocaine from his apartment. She had seen Bowser on a daily basis prepare for sale, and sell, cocaine. He stored the cocaine in three “ziploc” plastic bags in a plastic butter container, which he kept in a kitchen cabinet near the stove. One of the bags was marked with three “X’s.” She had seen defendant on six or seven occasions at Bowser’s apartment buying cocaine.

Bowser kept a large amount of cash in his apartment and usually carried approximately $500 on his person. On October 11, at 9:30 in the morning, Ebel entered Bowser’s apartment to pick up her paycheck. She used her key to unlock the two locks on the door, one of which was a deadbolt. Bowser was in bed asleep. She did not wake him when she retrieved her paycheck from the table next to the bed. When she departed, she left behind her catering truck wallet, which contained approximately $100.

Tracy Crisp, a resident of another apartment in the building, telephoned Ebel later that day to tell her that she had been unable to reach Bowser on the telephone. Ebel returned to Bowser’s apartment at approximately 2:30 in the afternoon. Placing her key in the top lock, she found it was unlocked. Opening the door she found that it was partially blocked by Bowser’s body, lying on the floor. The apartment had been ransacked. She called the paramedics and, while awaiting their arrival, walked around the apartment. She observed that her trucker’s wallet and money bag were missing.

In the kitchen, the plastic butter container was on the stove uncovered, and the plastic bags of cocaine that had been stored inside were gone. Ebel testified that, in an attempt to conceal the circumstance that Bowser had been dealing in drugs, she removed a scale, a plastic bag containing several hundred Quaalude pills, and Bowser’s telephone directory listing the names of his drug customers. In October 1982, Michael Graham resided at the Shangri-Lodge apartment complex in Compton, as did defendant. Graham and defendant were employed by the manager of the complex, Willie Dom, and performed odd jobs.

One morning defendant asked Graham for a hammer that belonged to Dom. After obtaining the hammer for defendant, Graham never saw him again. On the morning of October 10, 1982, defendant knocked on Dom’s bedroom window and told Dom that “he had something he was going to do,” and that “if it worked out okay,” defendant would be moving out the next day. On October 11, defendant told Dom he was leaving, and departed in his automobile, accompanied by James Cunnigan and another man (established by other evidence to be Anthony Wilson).

A few days later, defendant telephoned Dom and inquired whether anyone had been looking for him, and specifically whether the police had been looking for him. Defendant subsequently telephoned Dom on approximately four occasions, making the same inquiry. Defendant requested that Dom instruct Graham that in the event anyone asked whether Graham had given defendant anything, Graham should deny having done so. At trial, Dom identified People’s exhibit No. 3 as the hammer he had owned for 12 years. He recalled that in October 1982, Graham had been using the hammer, and Dom thereafter noticed it was missing.

The police asked Dom for a sample of the paint that was used on the Shangri-Lodge buildings. One of the five kinds of white paint on the hammer matched the paint sample provided by Dom. The prosecution’s principal witness was Donald “Foo” McLaurin. McLaurin had known defendant since 1980. Both men used cocaine. On a number of occasions, defendant had taken McLaurin to an apartment building on Artesia Boulevard (identified as the building where the victim, “Lobo” Bowser, resided) to purchase cocaine.

McLaurin never entered the building, but on each occasion when defendant returned, defendant was in possession of cocaine and told McLaurin he had purchased the dmgs from a man named “Lo.” In October 1982, McLaurin also resided at the Shangri-Lodge apartments. He testified that on the morning of October 10 (the day before Bowser was killed), he (McLaurin) walked from his apartment to defendant’s apartment, where he joined defendant, defendant’s friend Anthony Wilson, and defendant’s brother William Horton.

In the afternoon, the four men drove in defendant’s automobile to the apartment building on Artesia Boulevard. Defendant entered the building while the other three men waited outside. When defendant returned, he had a bag of cocaine with him. The men proceeded to Ray’s Motel, where they smoked the cocaine. They were freebasing and consumed five or six grams, worth $500 to $600. McLaurin got “high” and proceeded with defendant to another motel, where the two men freebased additional quantities of cocaine. Eventually McLaurin, defendant, and Wilson returned to the Shangri-Lodge.

James Cunnigan (known as “Doonie”) joined the three of them at defendant’s apartment, where they all consumed additional cocaine. In the late evening hours, when their supply of cocaine was depleted, defendant suggested “hustling,” i.e., robbing, a drug dealer as a means of replenishing their supply. Defendant began to discuss a plan to rob his dealer on Artesia Boulevard.

He said that he could not use a gun, because there would be too much noise, but that he could enter the apartment with a pipe, and as the dealer turned around to close the door, defendant would be able to “slug him a few times.” Defendant said he knew his dealer kept cocaine in one of the kitchen cabinets. Defendant asked McLaurin whether he would drive him to the apartment building in McLaurin’s girlfriend’s automobile. McLaurin initially agreed but, when his girlfriend refused to lend the vehicle, departed with her. On the following afternoon, October 11, a Monday, defendant called McLaurin at his workplace.

He asked McLaurin to meet him at Ray’s Motel and stated “he did the number he was talking about last night.” When McLaurin arrived there, defendant, Wilson, and Cunnigan were inside a motel room. McLaurin saw they had three bags of cocaine—two with powder and one with cocaine rocks. One of the bags was marked with black “X’s.” He also observed a large roll of money. As the men began to smoke the cocaine, Cunnigan stated that “everything went down pretty smooth.” Defendant explained that he entered the apartment and, as the dealer turned his back to close the door, defendant clubbed him on the head with a hammer.

Defendant then went to the kitchen cabinet and removed the cocaine. After leaving the crime scene, defendant’s vehicle overheated on the freeway, and he and his companions abandoned it. At a later point, defendant requested that McLaurin pick up the vehicle. McLaurin and Cunnigan returned to the automobile and retrieved “a couple of bags of weed” and a gym bag, proceeding to the Shangri-Lodge without the vehicle. Upon rejoining defendant, they consumed an additional quantity of drugs. Later, McLaurin drove defendant to the bus depot.

McLaurin’s job supervisor testified that on October 11, 1982, McLaurin arrived for work at 5:45 a.m. and left at 1 p.m after receiving a telephone call. In November 1984, after being incarcerated on a probation violation, McLaurin was placed in the same jail module with defendant. At one point McLaurin met with defendant’s attorney in the attorneys room at county jail. McLaurin testified at trial that he (McLaurin) lied to defendant’s attorney on this occasion. McLaurin informed defense counsel prior to trial that he had lied.

On cross-examination, McLaurin admitted having told defense counsel that he had been untruthful concerning everything he had told the police that was the subject of his testimony. B. The defense case. The defense presented evidence of police reports of several burglaries committed in 1982 in the same apartment complex where the victim resided, as well as in the general vicinity. The parties stipulated to the reading of the preliminary hearing testimony of Carolyn Ebel. At one point during that testimony, Ebel stated that on October 11, she returned to the victim’s apartment at 10:30 a.m.

At another point she testified that she returned at 2:30 p.m. Deputy Sheriff LaPorte testified that he did not search the crime scene for a possible murder weapon other than the hammer, because that object had been plainly visible. In his written report, he described the hammer as having a dark blue-grey rubber handle with blood and paint stains on it. He released the hammer to a criminalist at the crime scene. In closing argument, the defense argued the prosecution had failed to prove beyond a reasonable doubt that defendant was the killer.

At the conclusion of the guilt phase, the jury returned a verdict finding defendant guilty of first degree murder and robbery, and found true the special circumstance allegation that the murder was committed in the course of the robbery. II. Special-circumstance-phase Evidence James Padar testified that in April 1973, he was a homicide investigator with the Chicago Police Department, assigned to a case entitled People v. James Horton, in which defendant was charged with murder. Padar testified that he attended the trial in that case and was present when the jury returned a verdict convicting defendant of murder.

A certified copy of a document issued by the Illinois Department of Corrections, reflecting defendant’s 1973 conviction of murder, was received in evidence. At the conclusion of the special circumstance phase, the jury returned a verdict finding true the special circumstance allegation that defendant had suffered a prior conviction of murder. III.

Penalty Phase Evidence The prosecution did not present any evidence at the penalty phase, but in closing argument the prosecutor argued that the death penalty was justified by the aggravating factors consisting of the circumstances of the crime and defendant’s prior murder conviction. The defense presented, in mitigation, evidence of defendant’s troubled family history, some of the circumstances of the 1973 Chicago murder, defendant’s employment at a convalescent hospital, and the effects of long-term cocaine usage.

Caroline Hughes, defendant’s grandmother, testified that defendant’s mother suffered beatings at the hands of defendant’s father and that defendant’s parents divorced shortly after he was bom. During his youth, defendant had little contact with his father. When he was a child, defendant was struck by a tmck and was confined in a body cast for approximately eight months. When he was seven years of age, his mother developed leukemia and died within eight months. Hughes and her husband thereafter raised defendant.

Hughes testified that following the death of defendant’s mother, his performance in elementary school seriously declined, and his misbehavior required that he be counselled by a psychologist. By the eighth grade, defendant was associating with juvenile delinquents and street gangs. She described the circumstances leading to the shooting and death of a boy in Chicago that resulted in defendant’s 1973 conviction of murder. She testified that a codefendant, Michael Golden, who at the time was 21 years of age, was involved in the shooting.

Golden had a “terrible” reputation and made “all the children, all the teenagers, do what he wanted them to do.” Although Golden was acquitted of the murder charge, Hughes said it was he who was primarily responsible for the incident. Defendant was imprisoned when he was 17 or 18 years of age. He completed his schooling while in prison. Errol Carter, Hughes’s son, testified that he was the same age as defendant and that they were raised together. Carter recalled defendant’s crying at his mother’s funeral and believed his personality changed after her death.

According to Carter, defendant performed well in school when strictly supervised, but became hostile when Caucasian children referred to him as “nigger.” In his opinion defendant performed “very functionally” in a structured environment. Ron Siegel, M.D., a psychopharmacologist who was qualified as an expert on the effects of drugs on human behavior, testified regarding the effects of cocaine usage, particularly freebasing. These include hallucinations, psychosis, and violent behavior. Dr. Siegel testified regarding defendant’s history of drug use as related by defendant. On the basis of that history, Dr.

Siegel formed the opinion that defendant exhibited the symptoms of a chronic cocaine user. A nurse at a convalescent hospital, where defendant had been employed as a nurse’s assistant, testified that she had worked with him in 1982 or 1983. This witness testified that defendant was punctual and well liked by the patients and by his coworkers. At the conclusion of the penalty phase, the jury returned a verdict imposing the punishment of death. IV. Guilt Phase Issues A. Jury selection issues. 1. Claim of denial of representative jury venire.

During the jury selection process, defendant moved to quash the petit jury venire, asserting the jury selection process in Los Angeles County violated his right to a jury drawn from a fair cross-section of the community. In support of his motion, he presented evidence that, he maintained, demonstrated a prima facie case that Hispanics and African-Americans were systematically underrepresented in the jury venire. The trial court denied the motion. Defendant renews his contention.

Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367 [58 L.Ed.2d 579, 583-588, 99 S.Ct. 664]; People v. Howard (1992) 1 Cal.4th 1132, 1159 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. (People v.

Mattson (1990) 50 Cal.3d 826, 842 [268 Cal.Rptr. 802, 789 P.2d 983].) “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v.

Missouri, supra, 439 U.S. at p. 364 [58 L.Ed.2d at pp. 586-587]; People v. Howard, supra, 1 Cal.4th at p. 1159.) The relevant “community” for cross-section purposes is the judicial district in which the case is tried. (People v. Mattson, supra, 50 Cal.3d at p. 844; Williams v.

Superior Court (1989) 49 Cal.3d 736, 744-745 [263 Cal.Rptr. 503, 781 P.2d 537].) If a defendant establishes a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. (People v.

Sanders (1990) 51 Cal.3d 471, 491 [273 Cal.Rptr. 537, 797 P.2d 561].) As to the third element of the Duren test, a defendant does not meet the burden of demonstrating that the underrepresentation was due to systematic exclusion, by establishing only statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process. (People v. Howard, supra, 1 Cal.4th at p. 1160; People v.

Bell (1989) 49 Cal.3d 502, 530 [262 Cal.Rptr. 1, 778 P.2d 129].) When a county’s jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, the defendant must identify some aspect of the manner in which those criteria are applied (the probable cause of the disparity) that is constitutionally impermissible. (People v. Sanders, supra, 51 Cal.3d at p. 492; People v. Bell, supra, 49 Cal.3d at p. 524.) The Los Angeles County jury selection process to which defendant objects was examined in People v.

Mattson, supra, 50 Cal.3d 826, where the defendant challenged the method of assigning jurors in 1985 to the Southeast Judicial District (Norwalk)—the same judicial district and the same year in which the present case was tried. In Mattson, we described the selection process as “one that was peculiar to Los Angeles County in which 11 judicial districts existed at the time of defendant’s trial [which commenced in 1985]. Each of those districts summoned jurors from the surrounding area, but in compliance with former

section 203 of the Code of Civil Procedure, no prospective juror was assigned to a courthouse more than 20 miles from his or her residence.” (Id. at p. 843, fn. omitted.) In the present case, the county’s director of jury services testified to the method of selecting prospective jurors, explaining that the master jury list for the year is compiled from the voter registration list as well as the Department of Motor Vehicles’ list of persons holding driver’s licenses or identifications cards.

The lists are merged to create a file of names of potential eligible jurors, to whom questionnaires are sent to determine whether the person is qualified for jury service. Of the total number of questionnaires sent, approximately 56 percent are returned completed, 15 percent are undeliverable, and 29 percent are not returned. “Follow-up,” i.e., further attempts to contact the potentially eligible jurors from whom completed questionnaires were not received, is not performed, because it does not yield satisfactory results in relation to cost.

Thus, approximately 56 percent of the mailed questionnaires provide a basis for further selection. Defense expert Dr. W. Butler presented statistical evidence of a disparity between the number of African-American and Hispanic persons who served on Norwalk jury venires and those presumptively eligible for jury service within a 20-mile radius of the Norwalk courthouse. Dr.

Butler did not present any statistical or other evidence tending to establish the probable cause of this disparity, however, but opined that this underrepresentation of Hispanics and African-Americans on the jury panels was not the result of chance, but rather of some aspect of the jury selection system. He speculated that the 44 percent of the population to whom questionnaires are mailed and from whom there is no response might account for the underrepresentation, i.e., that the 44 percent comprised a primarily minority population.

He explained additionally that the Central Judicial District’s 20-mile limit overlapped that of the Southeast Judicial District (Norwalk), and that because the Central Judicial District had priority in the selection of eligible jurors, the Norwalk court drew from a more restricted area.

In denying the motion to quash, the court found that a disparity existed between the percentage of Hispanics and African-Americans in the Norwalk area and the respective percentage of those minorities who comprised the jury venires, but that such underrepresentation was not the result of systematic exclusion of either of these groups. The court noted the selection process employed to compile the master list from the county registrar of voters and the Department of Motor Vehicles was race neutral and nondiscriminatory, and Dr.

Butler’s speculation as to the cause of this underrepresentation was insufficient to establish constitutionally impermissible systematic exclusion of African-Americans or Hispanics. Subsequent to the trial in the present case, this court held that the relevant community for the purpose of determining whether the cross-section requirement has been met is the judicial district in which a case is tried. (Williams v.

Superior Court, supra, 49 Cal.3d at pp. 744-746.) At defendant’s trial, he challenged the jury venires as underrepresentative of the African-American and Hispanic populations within the 20-mile radius of the Norwalk courthouse, and did not present any evidence tending to establish that the percentage of these minorities on the jury venires at that courthouse was unfair in relation to the percentage of these minorities in the jury-eligible population of the Southeast Judicial District.

For this reason, defendant failed to make a prima facie showing that the representation of African-Americans and Hispanics in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the “community,” with the meaning of Duren. (See Williams v.

Superior Court, supra, 49 Cal.3d at p. 746.) Defendant maintains that, in light of Williams's clarification of the definition of the relevant community for comparison purposes, he is entitled to have his case remanded for a new evidentiary hearing to afford him the opportunity to present evidence of a disparity under this new definition. Defendant cites no authority, however, that supports his claim to entitlement to remand, and such a remand for the purpose sought by defendant is particularly unwarranted in this case in light of our decision in People v. Mattson, supra, 50 Cal.3d 826.

In that case, as we have noted above, the defendant raised a similar challenge to the jury selection system as applied in the Southeast Judicial District of Los Angeles County in the same year as the trial in the present case—1985. There the defendant’s evidence demonstrated —as did the evidence in the present case—that although the area within a 20-mile radius of the Norwalk courthouse had a high population of African-Americans and Hispanics, the population of the smaller area from which the Norwalk court tended to draw jurors was more predominantly Caucasian.

The county’s director of jury services, however, testified that no disparity existed with respect to the percentage of Hispanics and African-Americans in the pertinent population and on Norwalk jury venires, from either a countywide perspective or at the judicial district level.

We accordingly held in Mattson that the defendant had failed to satisfy the second Duren prong, and therefore had not established a prima facie violation of the cross-section guarantee. (50 Cal.3d at p. 844.) Moreover, the remand proposed by defendant is unjustified in light of the trial court’s finding, supported by the record, that there was an insufficient showing that any discrepancy in the jury pool was attributable to “systematic exclusion”—because the procedures employed by the jury commissioner were, on their face, race neutral, and the opinion of Dr.

Butler as to the cause of any disparity was not supported by empirical evidence but, rather, amounted to no more than speculation. (See People v. Cummings (1993) 4 Cal.4th 1233, 1278-1279 [18 Cal.Rptr.2d 796, 850 P.2d 1].) For these reasons, we reject defendant’s claim of denial of his right to a representative jury. 2. Claim of Witherspoon error in the excusal of two prospective jurors for cause. Defendant contends the trial court improperly restricted defense counsel during “Witherspoon” voir dire (Witherspoon v.

Illinois (1968) 391 U.S. 510, 522 [20 L.Ed.2d 776, 784-785, 88 S.Ct. 1770]) in questioning two prospective jurors after their responses indicated an unwillingness to impose the death penalty. We find no error. During voir dire as to the qualifications of the prospective jurors to serve on a capital case, the trial court determined to ask each prospective juror a set of four standard questions based upon Witherspoon.

Defense counsel requested a ruling limiting voir dire, and, in response, the trial court ruled that if a juror’s responses to the four questions were “appropriate,” i.e., did not indicate a basis for excusal for cause, no further voir dire would be permitted, but that if a juror was unclear regarding a question, further inquiry would be permitted.

Thereafter, in the course of the voir dire of prospective juror Ahumada, after she stated that because of a conscientious objection she never would vote for death and automatically would vote for life without possibility of parole, regardless of the evidence, defense counsel sought to examine this witness further. The prosecutor asked to approach the bench, and a subsequent discussion ensued outside the presence of the prospective juror.

Defense counsel, seeking to justify further inquiry, explained that, by his motion to limit voir dire, he had sought to preclude further inquiry only if a juror answered “no” to a particular question, but had not intended to preclude further inquiry in the event a juror’s response indicated that excusal for cause might be warranted (because of an unwillingness to impose the death penalty). The prosecutor interjected that, if further inquiry were permitted, the prosecution as well as the defense should be permitted to make inquiry.

Ultimately the trial court stated it was prepared to allow voir dire by both sides, or, alternatively, would “grant the defense motion” and preclude voir dire absent an ambiguous response by a juror, offering to defense counsel the choice of these two alternatives. Defense counsel responded, “I want to stand on my written motion,” whereupon the trial court ruled that it would bar voir dire unless a juror’s response was ambiguous. Prospective juror Ahumada thereafter was challenged and excused for cause.

Subsequently, prospective juror Carey was excused for cause after answering in the affirmative the first of the three Witherspoon questions, thereby expressing an unwillingness to impose the death penalty under any circumstances. Several days later, the prosecutor informed the court that, upon further reflection, he had determined to withdraw his challenges for cause to the two jurors in question as well as any objection to further efforts by the defense to “rehabilitate” these jurors by further examination.

Prospective jurors Ahumada and Carey (who had been sent to another courtroom) were returned to the courtroom. At that point, however, defense counsel declined to engage in further questioning, and the court affirmed the excusal for cause of these two jurors.

Defendant maintains on appeal that, in presenting the two alternatives to defense counsel, the court mischaracterized the defense motion as one to preclude voir dire by either side unless a juror’s response was ambiguous; that, accordingly, the court never properly considered the alternative of permitting further inquiry if a juror’s response indicated an unwillingness to impose the death penalty, and that the trial court’s ruling barring such inquiry was prejudicial error.

In light of the circumstance that defense counsel declined to ask further questions of these prospective jurors after being provided the opportunity to do so, however, defendant has waived any right to complain of the trial court’s initial restriction of voir dire. Accordingly, we need not, and do not, decide whether the trial court’s actions were erroneous in any respect. 3. Denial of defense challenges for cause of two prospective jurors. During jury selection, defendant challenged for cause prospective jurors Kirstenpfad and Cowie.

The trial court denied the challenges, and defendant later employed peremptory challenges to excuse these two individuals from serving on the jury. When the defense accepted the jury, it had not exhausted its peremptory challenges. Defendant now urges that denial of his challenges for cause was reversible error under the federal and state Constitutions (Wainwright v. Witt (1985) 469 U.S. 412, 423-424 [83 L.Ed.2d 841, 851-852, 105 S.Ct. 844]; U.S. Const., 5th, 6th, 8th & 14th Amends; Cal. Const., art. I, §§ 1, 7, subd. (a), 15, 16).

In order successfully to claim error in the denial of a challenge for cause of a prospective juror, a defendant on appeal must demonstrate that the ruling affected his or her right to a fair and impartial jury. Because defendant exercised peremptory challenges to remove the two prospective jurors whom he unsuccessfully had challenged for cause, neither of these two prospective jurors possibly could have compromised the impartiality of the jury. Therefore, under Witt he cannot claim constitutional error based upon the trial court’s denial of those challenges for cause. (People v.

Johnson (1992) 3 Cal.4th 1183, 1211 [14 Cal.Rptr.2d 702, 842 P.2d 1]; People v. Mason (1991) 52 Cal.3d 909, 954 [277 Cal.Rptr. 166, 802 P.2d 950].) Furthermore, defendant had 11 peremptory challenges remaining when he accepted the jury. Exhaustion of peremptory challenges is a prerequisite to a claim of prejudicial error in the denial of a challenge for cause. (People v. Johnson, supra, 3 Cal.4th at p. 1211; People v.

Morris (1991) 53 Cal.3d 152, 185 [279 Cal.Rptr. 720, 807 P.2d 949].) For these reasons, we reject defendant’s claim that denial of his challenges for cause affected his right to a fair and impartial jury. 4. The trial court’s failure to admonish prospective jurors excused for cause. Defendant contends the trial court erred, under

section 1122, subdivision (b), in failing to admonish certain prospective jurors, after excusing them for cause, not to converse among themselves or with others, and that this failure may have tainted the remaining jury pool, requiring reversal. We disagree.

Section 1122, subdivision (b), imposes a duty upon a trial court to give such an admonition once the jury is sworn (see § 1122, subd. (a)). Accordingly, although the giving of the admonition to prospective jurors during the voir dire process constitutes a sound judicial practice, the trial court’s omission in this case did not constitute error. 5. Denial of defendant’s motion for separate guilt, special circumstance, and penalty phase juries.

Defendant contends the trial court erred in denying his motions for separate juries for the guilt, special circumstance, and penalty phases of his trial, thereby violating his rights under the federal and state Constitutions to due process of law, a fair trial by an impartial jury, and an accurate and reliable capital proceeding. Recognizing that

section 190.4, subdivision (c), reflects a legislative preference that the guilt, special circumstance, and penalty phases of a capital trial be tried by the same jury (see People v. Rowland (1992) 4 Cal.4th 238, 268 [14 Cal.Rptr.2d 377, 841 P.2d 897]), we have rejected constitutional challenges to this practice (see People v. Wader (1993) 5 Cal.4th 610, 648 [20 Cal.Rptr.2d 788, 854 P.2d 80]; People v. Johnson, supra, 3 Cal.4th at pp. 1212-1213). Defendant presents no persuasive grounds for our reconsideration of this issue. B. Right to counsel and self-representation issues.

Defendant asserts the trial court erred in denying his repeated requests for the appointment of trial counsel of his choice, Andrew Stein (who had represented him at the preliminary hearing), and his request to proceed in propria persona. Defendant maintains that these rulings, and others, separately and cumulatively violated his rights to the effective assistance of counsel and to self-representation, among other rights guaranteed by the federal and state Constitutions.

A proper understanding of these claims requires that we set forth in some detail the lengthy procedural background leading to the challenged rulings. On August 9, 1983, at defendant’s arraignment in municipal court, Andrew Stein was appointed by the court pursuant to

section 987.2 to represent defendant. The public defender’s office previously had declared a conflict of interest because of its representation of defendant’s two alleged accomplices, Wilson and Cunnigan. On September 26, 1983, at the conclusion of defendant’s preliminary hearing, defendant was held to answer on the charges. Stein neither presented a defense nor moved to strike the special circumstance allegations, nor did he make any other posthearing motions. On October 11, 1983, defendant appeared for arraignment in the Los Angeles County Superior Court before the Honorable Cecil J. Mills.

Immediately after the court appointed Walter Barrett to represent defendant, Barrett informed the court that defendant had indicated to him that he did not want Barrett to represent him. The court thereupon instructed defendant that he had two options, one being that Barrett could represent him and the other being that defendant could represent himself. Defendant responded that he wanted Stein as his attorney. The court repeated that Stein would not be available, and reiterated that defendant had the foregoing two options. Defendant replied that he would represent himself.

With reference to an application form for self-representation, the court indicated that it would consider such an application, but that Barrett was appointed to represent defendant pending further order of the court. The court thereupon arraigned defendant. When asked how he pleaded, defendant replied that he preferred not to say anything until such time as Stein was representing him. When the court again reiterated that Stein was not available to represent him, defendant responded that he had nothing to say to the court. The court entered a plea of not guilty on defendant’s behalf.

The court then concluded the hearing by explaining to defendant that in the event he desired Stein as his attorney, defendant could retain him, but otherwise Barrett would remain his appointed counsel. Defendant again announced that Barrett was not representing him. On that same day, Stein filed an ex parte application for reappointment as counsel for defendant, supported by his declaration and a declaration of defendant.

In his declaration, Stein expressed his belief that he had not been reappointed because of a conflict with the presiding judge of the court, who assertedly had told Stein that he would not be reappointed in defendant’s case because he had asked an excessive number of questions on cross-examination in the trial of Stein’s last homicide case. In his declaration defendant stated that he would not accept, or cooperate with, any attorney other than Stein, whom he trusted, having developed a “close, working relationship” with him.

On October 14, 1983, another hearing was held before Judge Mills, occasioned by a request by Barrett to be relieved from his appointment as counsel for defendant because of health problems. Barrett informed the court that he (Barrett) recently had undergone heart surgery. Expressing the view that the strain of trying a capital case should not be imposed upon Barrett, the court rescinded Barrett’s appointment and appointed Leo Newton as counsel for defendant. Judge Mills then addressed the application of Stein for reappointment as defendant’s counsel.

The court inquired of defendant regarding his asserted special relationship with the attorney and asked defendant to explain why the appointment of other counsel would not be appropriate. Specifically the court asked whether defendant was knowledgeable as to Stein’s background and experience as a trial lawyer and whether Stein ever had represented a defendant in a capital case. Defendant indicated he was unaware of Stein’s professional background.

Judge Mills explained that, under circumstances where the People were seeking the death penalty, defendant needed to have an attorney who was highly experienced and qualified to present a defense in a capital case, since defendant’s life was in jeopardy. The court advised defendant that it would set for hearing Stein’s application for reappointment as defendant’s counsel, and that at the hearing “Stein can be examined by a judge of this court to determine whether it’s appropriate to appoint him,” but that Newton would serve as his appointed counsel during the interim period.

The hearing on Stein’s application for reappointment went forward on October 25, 1983, before the Honorable William E. McGinley. Stein and a deputy district attorney were present. The court accepted from counsel a transcript of the October 11 proceedings before Judge Mills and indicated it would proceed to review it. The court also stated that it had a transcript of the October 14 proceedings, and that it had reviewed the declarations of Stein and defendant, as well as the points and authorities filed in support of Stein’s application.

The court requested that defendant state the reasons for seeking the appointment of Stein in place of Newton. Defendant stated simply that he had confidence in Stein’s abilities. The court inquired of Newton whether in his view there was any conflict between Newton and defendant with regard to presentation of the defense. Newton replied that he discerned no conflict. Stein then spoke in support of his application, explaining that he had expended a significant amount of time on defendant’s case in preparing for the preliminary hearing.

Stein indicated that he never had tried a death penalty case, but argued that this circumstance did not constitute an adequate ground for denial of his reappointment. Referring to the statements in his declaration, he maintained that a conflict between himself and the then-presiding judge of the Norwalk court had resulted unfairly in the court’s failure to reappoint him.

The court then expressed its view that Newton was an experienced criminal defense specialist, having an excellent reputation in the legal community as a trial lawyer, and that his appointment by Judge Mills as defendant’s counsel did not constitute an abuse of discretion. The court accordingly ruled it would not vacate that appointment, and denied Stein’s application for reappointment. Defendant requested that he be provided 30 days for the purpose of contacting other attorneys, because he would not accept Newton as his attorney.

At the court’s direction, the court clerk set a trial date of November 30, 1983 (providing defendant with more than the 30 days that he had requested in order to seek other counsel). On November 3, 1983, at the request of defense counsel, a hearing was held before Judge Mills at which Newton requested the appointment of two physicians to assist him in assessing defendant’s mental competence. He explained that he had had great difficulty in communicating with defendant and that defendant refused to speak to him about the case.

The court granted Newton’s request, appointing two physicians to assist counsel in determining whether there was a basis for a doubt as to defendant’s mental competence (within the meaning of sections 1367.1-1368). In response to the court’s invitation to comment, defendant stated that he would not cooperate with the physicians, and objected to having an attorney “force[d]” upon him. On November 28, 1983, Stein filed in the Court of Appeal a petition for writ of mandate, seeking to set aside the trial court’s order denying his application for appointment as defendant’s counsel. The petition was denied.

On November 30, 1983, before Judge Mills, Newton declared a doubt as to defendant’s mental competence, pursuant to

section 1368. The court ordered the proceedings suspended and appointed two physicians to conduct a medical examination of defendant pursuant to

section 1368 and to report back to the court regarding the results of that examination. A hearing to determine defendant’s mental competence was scheduled for January 10, 1984. The court then acknowledged defendant’s oral request to proceed in propria persona, which defendant had communicated to a bailiff, whereupon defendant handed to the judge a written request for Stein’s reappointment as his counsel. The court declined to rule on the request, explaining that the issue of Stein’s appointment already had been determined by Judge McGinley.

The court set defendant’s request to proceed in propria persona for hearing on January 10, 1984. On January 10, at the hearing on defendant’s mental competence, the court determined that defendant was mentally competent to stand trial. Informing the court that defendant had directed him to do so, Newton subsequently moved for the appointment of Stein. The court denied the motion, and then addressed defendant’s motion to proceed in propria persona, which defendant proceeded to withdraw. 1. The trial court’s refusal to reappoint Stein.

Defendant contends the trial court violated his right to the effective assistance of counsel by denying his request for the reappointment of Stein to represent him in the superior court. A series of judicial decisions of this court have established guiding principles pertaining to an indigent defendant’s request for appointment of a particular attorney of his or her choice. The appointment of counsel for indigent defendants under

section 987.2 rests within the sound discretion of the trial court. (Drumgo v. Superior Court (1973) 8 Cal.3d 930 [106 Cal.Rptr. 631, 506 P.2d 1007] (Drumgo).) The court’s discretion in the appointment of counsel may not be restricted by any fixed policy (e.g., a superior court policy to appoint its “own” counsel in every case [People v. Chavez (1980) 26 Cal.3d 334, 346 (161 Cal.Rptr. 762, 605 P.2d 401)]).

An abuse of discretion is not demonstrated, however, simply by the failure of a trial court to appoint a particular counsel whom the defendant has requested and who is willing to undertake the appointment. (Drumgo, supra, 8 Cal.3d at pp. 933-934.) In Drumgo, supra, 8 Cal.3d 930, the defendant moved for the appointment of a particular attorney, Richard Hodge, to represent him at trial, rather than the attorney appointed by the court, on the sole ground of defendant’s trust and confidence in Hodge and defendant’s lack of knowledge concerning appointed counsel.

There was no showing that Hodge previously had represented defendant, nor any suggestion that any disagreement had arisen with appointed counsel regarding trial tactics or any other aspect of the presentation of the defense. Defendant nevertheless purported to refuse the services of appointed counsel. The trial court denied the motion, finding that court-appointed counsel was competent and that the matters asserted in support of the motion did not provide a basis for termination of the appointment.

In upholding the trial court, this court observed that constitutional and statutory guarantees of the assistance of counsel are not violated simply by the appointment of an attorney other than the one requested by a defendant. (8 Cal.3d at p. 934.) We concluded that the circumstance that the defendant had announced that he would refuse to cooperate with appointed counsel in the preparation of a defense “does not create a situation which entitles an indigent defendant to the appointment or substitution of a particular attorney selected by defendant.” (Id. at pp. 935-936.) In contrast, in Harris v.

Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750], we concluded the trial court abused its discretion in declining to appoint the attorneys requested by the defendants who had represented them in related proceedings in municipal court, and in appointing new counsel instead.

The Harris decision pointed to several factors that the trial court improperly had disregarded in refusing to appoint the attorneys of defendants’ choice: the documented fact that the familiarity of former counsel with the issues and witnesses involved in defendants’ alleged activities as members of the so-called Symbionese Liberation Army greatly would facilitate the preparation of the superior court case; the circumstance that former counsel not only had represented the defendants in the same proceeding but also in several other criminal cases arising out of these same activities; and the support of newly appointed counsel for the reappointment of former counsel, for the reason that the effort required of new counsel to achieve a level of familiarity with the case comparable to that of former counsel would entail considerable duplicative time and expense to the county—all of which could be avoided by the reappointment of former counsel.

The court in Harris concluded that, because the defendants’ preference for counsel was supported by objective considerations, and there were no countervailing considerations of comparable weight, it was an abuse of discretion to deny the defendants’ request for appointment of counsel of their choice. (19 Cal.3d at p. 799.) In the present case, defendant’s request for appointment of Stein was based upon the subjective factor of his having developed a relationship of trust and confidence in the attorney in preparation for the preliminary hearing.

In support of his reappointment, Stein offered the objective considerations that he had familiarized himself with the case in preparation for the preliminary hearing, having expended approximately 15 hours in conference with defendant. Stein did not demonstrate, however, that he had achieved a familiarity with the issues or evidence that newly appointed counsel would be unable to achieve without considerable duplication of time and effort.

At the preliminary hearing, Stein did not present a defense, and there was no indication that he had interviewed witnesses or had undertaken an independent investigation of the relevant evidence. Additionally, Stein never had represented a defendant in a capital case, and there was nothing in the record establishing his experience or qualifications in homicide cases.

Balanced against Stein’s familiarity with defendant, and with some of the evidence in the case, was the circumstance of Newton’s undisputed excellent reputation as a trial attorney and his qualifications as a criminal law specialist who previously had tried capital cases. Unlike the newly appointed counsel in Harris v. Superior Court, supra, 19 Cal.3d 786, who supported the reappointment of the defendants’ former counsel, Newton sought the appointment, advising the court that he did not discern any conflict of interest.

Moreover, when questioned regarding his desire to be represented by Stein, defendant did not indicate that he disagreed with Newton regarding trial tactics or any other aspect of his defense. Under these circumstances, Judge Mills’s appointment of Newton instead of Stein, and Judge McGinley’s denial of Stein’s application for reappointment, constituted proper exercises of discretion.

Defendant contends the record reflects Judge McGinley both failed properly to exercise his discretion in ruling on Stein’s application, having conducted the hearing under a misconception that the sole issue was whether Judge Mills had committed an abuse of discretion in appointing Newton, and failed to determine independently the suitability of Stein’s requested reappointment. The record belies defendant’s contention. Judge McGinley properly determined that Newton’s appointment had been made pending an independent review of Stein’s application for reappointment.

The determination of the propriety of Newton’s appointment in place of Stein necessarily involved consideration of the matters presented in support of Stein’s application. Only after the court stated it had reviewed Stein’s application and the supporting declarations and points and authorities, and permitted Stein as well as defendant to speak in support of the attorney’s reappointment, did the court deny Stein’s application.

Our conclusion that Judge McGinley properly considered Stein’s application for reappointment, and that the denial of the application did not constitute an abuse of discretion, precludes defendant’s related claim that Judge Mills erroneously determined that Judge McGinley’s ruling was binding upon Mills. Judge Mills properly determined that the issue of Stein’s appointment had been resolved at the hearing before Judge McGinley and was not subject to independent review by another trial court judge. Defendant finally contends that under People v.

Chavez, supra, 26 Cal.3d 334, he was entitled to an evidentiary hearing on his request for the reappointment of Stein. Chavez simply holds, however, that an indigent defendant desiring the appointment of particular counsel is entitled to be heard on the reasons for his or her preference and to explain the circumstances that might warrant the continued appointment of former counsel. (26 Cal.3d at pp. 347-348.) The record reflects that defendant was provided ample opportunity and did present before both Judge Mills and Judge McGinley his reasons for seeking Stein’s reappointment.

For these reasons, we conclude the record fails to support defendant’s contention that the trial court’s appointment of Newton as defendant’s attorney in place of Stein abridged defendant’s right to counsel or otherwise constituted an abuse of discretion. 2. The trial court’s denial of the Marsden motion. On January 18, 1985, the date scheduled for commencement of trial, Newton moved for a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]).

Counsel explained that he was in receipt of a document purporting to be a civil complaint for legal malpractice, naming defendant as the plaintiff and Newton and cocounsel Charles Windon as the defendants, and indicated that he construed the complaint as a request for substitution of counsel. Newton expressed his belief that it was necessary to undertake a full hearing pursuant to Marsden on each of the grievances defendant had alleged as a ground for relief. Following a hearing, the trial court denied the motion.

Defendant contends the trial court erred in the course of the hearing in refusing to permit him to testify or present evidence in support of his claim of ineffective representation, resulting in a denial of his right to counsel, among other rights guaranteed by the state and federal Constitutions. In People v.

Marsden, supra, 2 Cal.3d at page 124, the seminal case regarding the substitution of appointed counsel, we held that “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” For this reason, “[w]hen a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate.

Thereafter, substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (People v. Webster (1991) 54 Cal.3d 411, 435 [285 Cal.Rptr. 31, 814 P.2d 1273]; accord, People v. Freeman (1994) 8 Cal.4th 450, 480 [34 Cal.Rptr.2d 558, 882 P.2d 249, 31 A.L.R.5th 888].) The record establishes that defendant was afforded ample opportunity to identify and explain the grounds for his dissatisfaction with appointed counsel.

The court requested from counsel a copy of the legal malpractice complaint and proceeded to read from this document each of the several grievances alleged, as follows: “1. Defendants promised and agreed to file motions including, but not limited to, motion for order to interview prosecution witnesses; [<]Q 2. Defendants further refused to prepare . . . motion for production and inspection. Motion for plaintiff’s indigent fund; [U 3. Motion to declare a conflict of interest between client and attorney; [U 4.

Defendants has [sic] further taken a position antagonistic and or adverse to plaintiff[’s] interest without plaintiff[’s] consent and have failed and or refused to assist in the planning and implementation of defense strategy or plaintiff’s defense. The defendants have not and or refused to contact any witnesses for the plaintiff’s defense. [U 5. Defendants did refuse[] and or failed to perform the sworn obligation of their office in contract with the plaintiff.” The complaint further alleged generally that defendants had failed to exercise diligence or skill in their representation of defendant.

Although not clear from the record, the court apparently also received a sworn declaration submitted by defendant, which set forth additional alleged failings on the part of his attorneys. We have held, under circumstances in which a defendant has set forth in a “self-contained document” in sufficient detail the basis for his dissatisfaction with appointed counsel, that a “full-blown hearing” on the alleged inadequate representation is not required. (People v. Freeman, supra, 8 Cal.4th at p. 481; People v.

Wharton (1991) 53 Cal.3d 522, 580 [280 Cal.Rptr. 631, 809 P.2d 290].) In the present case, moreover, not only did the trial court consider defendant’s numerous specific written complaints regarding his counsel’s performance, but the court additionally provided defendant with ample opportunity to explain further, in the course of the Marsden hearing, his grounds for dissatisfaction. After reading the list of alleged grievances, the court inquired of defendant whether he wished to be heard as to any of them.

Defendant simply responded that the attorneys “did not perform their duties.” After Newton and Windon responded in detail to each of the allegations, explaining and justifying their conduct, the trial court again inquired of defendant whether he wished to be heard. Defendant stated that, although the trial had been scheduled to commence on that date, counsel had failed to undertake an investigation on his behalf to locate witnesses in Chicago.

Newton replied that he had retained an investigator for this purpose and that earlier, in the presence of the investigator, defendant had assured counsel that he would provide him with the names of specific witnesses in Chicago who could be interviewed “when the time came.” Although counsel had urged defendant that “the time was now,” defendant had failed to provide him with the names or any other information regarding these witnesses. As shown above, contrary to defendant’s contention, the trial court did not preclude him from presenting evidence in support of his allegations of incompetent representation.

Instead, the court repeatedly inquired of defendant regarding the basis for his complaints and permitted him to respond to his counsel’s explanations for their actions. Nor did the trial court accept at “face value” (as defendant contends) counsel’s profferred explanations and justification for their conduct, instead inquiring regarding each listed grievance and then making note of the numerous discovery motions and other pretrial matters that had been filed by defense counsel and that tended to refute defendant’s allegations.

Indeed, as defendant currently emphasizes on appeal, the prosecution’s case hinged primarily upon the testimony of one witness whom defense counsel did interview at length in the attorneys room at the county jail. We conclude defendant was afforded an adequate opportunity to apprise the court in sufficient detail regarding the basis of his dissatisfaction with counsel. Defendant further contends the court erred in failing to appoint independent counsel to represent him at the Marsden hearing. We find no error, defendant having failed to establish even a colorable claim of ineffective representation. (People v.

Smith (1993) 6 Cal.4th 684, 695 [25 Cal.Rptr.2d 122, 863 P.2d 192].) We conclude the denial of the Marsden motion constituted a proper exercise of the trial court’s discretion. 3. The trial court’s denial of appointed counsel’s motion to withdraw. Defendant contends the trial court erred in refusing to permit appointed counsel to withdraw as counsel for defendant on the asserted ground the filing of the malpractice action created a conflict of interest between defendant and appointed counsel.

We conclude the trial court did not err in denying the request to withdraw after determining that the assertion by defendant of frivolous claims of malpractice did not create an actual conflict between the interests of defendant and those of his appointed counsel. The procedural background pertinent to this claim is as follows. On January 25, 1985, defendant filed in the Los Angeles County Superior Court the civil complaint against Newton and Windon for attorney malpractice, which had been the subject of the earlier Marsden hearing. On February 6, 1985, trial in the present case commenced with jury selection.

On February 19,1985, in an unreported ex parte conference, defense counsel informed the court they had been served with the malpractice complaint. Expressing the concern that by virtue of the filing of the complaint, defendant had waived the attorney-client privilege, counsel sought guidance from the court as to how to proceed, and offered to withdraw. The trial court responded by stating, among other things, that in the court’s view the filing of the malpractice action represented another attempt by defendant to manipulate the judicial process and delay his trial.

The court indicated that although the action, if not withdrawn, might warrant the removal of appointed counsel, the court would not grant a continuance of the trial date. In open court, with all counsel present, the court announced that defense counsel had informed the court that a civil action had been filed against them by defendant. Newton stated his belief that the malpractice complaint, containing the allegations that were examined at the prior Marsden hearing, created a conflict of interest and requested permission to withdraw as counsel for defendant.

The trial court responded that, although the filing of the complaint technically placed the attorneys in a position adverse to that of their client, the allegations that gave rise to the alleged conflict already had been examined (at the Marsden hearing), had been determined to have no merit, and would not justify the removal of appointed counsel. The court stated that the appropriate means available to defendant to challenge that determination was appellate review of the court’s ruling.

The court further remarked that the record of the numerous minute orders in the proceeding led the court to believe that defendant was seeking to manipulate the system by delaying the proceedings and creating a ground for appellate reversal of any conviction subsequently rendered. Following Newton’s representation that, apart from the complaint, he perceived no conflict between the interests of defendant and those of counsel, the court determined that in fact no conflict of interest existed.

The court reasoned that to conclude otherwise would enable a criminal defendant to delay the prosecution indefinitely by resorting to the ploy of filing successive malpractice complaints against appointed counsel. The court indicated, however, that in the event it denied defense counsel’s motion to be relieved of their appointment, the court would provide counsel an opportunity to seek writ review of its ruling before impaneling a jury. On February 25, 1985, the court denied defense counsel’s motion to declare a conflict of interest and be relieved as counsel.

The court stated its understanding that defense counsel would be seeking writ relief from the ruling unless defendant chose voluntarily to dismiss the complaint. Newton informed the court that he had discussed with defendant the potential adverse consequences that could arise from maintenance of the malpractice action, including waiver of the attorney-client privilege, and that defendant had agreed to dismiss the action. Newton stated that a request-for-dismissal form was in the process of being prepared for defendant’s signature.

On February 26, 1985, Newton informed the court that he was in receipt of a request for dismissal signed by defendant, and then inquired of defendant whether it was his desire to have the document filed with the court. Defendant responded affirmatively and, in response to the court’s inquiry whether his decision to dismiss the action had been coerced, replied that it had not been. Under the state and federal Constitutions, a criminal defendant has the right to the effective assistance of counsel, which includes the right to representation that is free from conflicts of interest. (People v.

Jones (1991) 53 Cal.3d 1115, 1134 [282 Cal.Rptr. 465, 811 P.2d 757].) Conflicts of interest arise in “ ‘all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.’ ” (Ibid.., quoting People v. Bonin (1989) 47 Cal.3d 808, 835 [254 Cal.Rptr. 298, 765 P.2d 460].) Defendant’s claim that his counsel were burdened by an actual conflict of interest is undermined by the circumstance that defendant voluntarily dismissed the complaint, thereby eliminating any potential conflict of interest.

Moreover, the trial court properly determined, in the exercise of its discretion, that the filing of the complaint did not create any actual conflict of interest necessitating the withdrawal of appointed counsel. Although being named as a defendant in a collateral lawsuit by one’s client may place an attorney in a situation in which his or her loyalties are divided (People v.

Hardy (1992) 2 Cal.4th 86, 136-137 [5 Cal.Rptr.2d 796, 825 P.2d 781]), a criminal defendant’s decision to file such an action against appointed counsel does not require disqualification unless the circumstances demonstrate an actual conflict of interest. (Id. at p. 137.) A contrary holding would enable an indigent criminal defendant to challenge each successive appointment of counsel, delaying indefinitely the criminal prosecution. (See Smith v.

Lock-hart (8th Cir. 1991) 923 F.2d 1314, 1321, fn. 11 [“We recognize the danger of any holding implying that defendants can manufacture conflicts of interest by initiating lawsuits against their attorneys. [Citation.] A patently frivolous lawsuit brought by a defendant against his or her counsel may not, alone, constitute cause for appointment of new counsel.” (Italics added.)].) The trial court’s finding that the filing of the complaint represented yet another attempt by defendant to delay his trial and otherwise interfere with the criminal prosecution against him is supported amply by the record.

Counsel represented that, apart from the complaint, they discerned no conflict of interest, and the trial court previously had determined that defendant’s allegations of incompetence had no merit. The circumstances apparent to the trial court fail to demonstrate any divergence of the interests of defendant from those of his attorneys, and support the trial court’s determination that no actual conflict of interest existed requiring the withdrawal of counsel.

Defendant contends the circumstance that his counsel affirmatively moved to withdraw distinguishes the present case from other cases where, despite the claim of conflict of interest, counsel sought to continue the representation of their client. (See, e.g., People v. Hardy, supra, 2 Cal.4th 86.) We disagree.

The record establishes that appointed counsel moved for leave to withdraw based solely upon their concern that the filing of the malpractice complaint gave rise to a conflict of interest requiring their withdrawal as a matter of law, but that, apart from the filing of the action, their interests and loyalties toward defendant were undivided. For these reasons, we conclude the trial court’s denial of defense counsel’s motion to withdraw did not constitute an abuse of discretion. 4. Denial of defendant’s Faretta motion.

Defendant maintains that he unequivocally asserted before three judges his right to proceed in propria persona, and that in denying his requests the court violated his right to self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], among other rights guaranteed under the state and federal Constitutions.

We conclude the record fails to support defendant’s contention. “ ‘[I]n order to invoke the constitutionally mandated unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.’ ” (People v. Wright (1990) 52 Cal.3d 367, 409 [276 Cal.Rptr. 731, 802 P.2d 221], italics in the original; People v.

Windham (1977) 19 Cal.3d 121, 127-128 [137 Cal.Rptr. 8, 560 P.2d 1187].) As will be shown, defendant did not assert his Faretta rights in an unequivocal and timely manner at any point in the proceedings. As set forth, ante, on October 11, 1983, at the time the court appointed Barrett, defendant asserted that in the event Stein were not appointed, he wished to represent himself. The court directed defendant to complete the necessary application to proceed in propria persona.

On October 25, 1983, the court again advised defendant he could represent himself, but noted defendant had not completed the necessary written application. The court set a trial date of November 30, 1983. At a hearing on November 3, defense counsel expressed a doubt as to defendant’s mental competence, thereby causing the court to appoint two physicians to examine him. At this time, defendant had not completed the in propria persona application. Prior to November 30, 1983, defendant requested that a bailiff inform the court he wished to proceed in propria persona.

On November 30, after defense counsel declared a doubt as to defendant’s mental competency pursuant to

section 1368, the court expressly acknowledged defendant’s oral communication requesting to proceed in propria persona, but stated it declined to act upon that request. Defendant contends the trial court’s response constituted a denial of his right to proceed in propria persona. We find no Faretta violation on this occasion, however. As a result of the doubt declared as to defendant’s mental competency, the criminal proceedings were suspended (see People v. Marks (1988) 45 Cal.3d 1335, 1340 [248 Cal.Rptr. 874, 756 P.2d 260]).

Thus, the court lacked jurisdiction to rule upon defendant’s motion (ibid.) and accordingly properly declined to do so. The court scheduled a hearing on defendant’s motion for self-representation for January 10, 1984, the same date scheduled for the hearing on defendant’s mental competency. Defendant contends the trial court violated his Faretta rights at the hearing that went forward on that date. Again, the record fails to support his claim.

After determining defendant was competent to stand trial, the court inquired of defendant whether he still desired to have the court rule upon his request for self-representation. Defendant unequivocally stated that he did not, and responded affirmatively when the court inquired whether he sought to withdraw his motion for in propria persona status. The trial court thereupon granted defendant’s request to withdraw the motion. Thus, contrary to defendant’s contention, the trial court at the January 10 hearing did not deny defendant’s request for self-representation or otherwise abrogate his Faretta rights.

Defendant contends the settled statement, reflecting the substance of his unreported conversation with Newton following the withdrawal of his motion for self-representation, reflects that his withdrawal was premised upon his assumption that Stein would be appointed as cocounsel, a condition that did not materialize. Again, the record lacks support for defendant’s contention and establishes that defense counsel’s unreported conference with defendant occurred subsequent to defendant’s unconditional withdrawal of his request to proceed in propria persona.

The settled statement relating to the ensuing conference reflects that Newton informed defendant that he would be seeking a 60-day continuance of trial for the purpose of filing a motion for the appointment of cocounsel, and that defendant believed that Stein would be appointed as cocounsel. Defendant’s communication with his attorney pertaining to the unrelated matter of the appointment of cocounsel, which occurred after defendant had withdrawn his request for self-representation, however, does not provide a basis for his current assertion of a violation of his Faretta rights.

Approximately two months after the January 10 hearing, defendant again asserted his Faretta rights. According to a settled statement of unreported proceedings, on March 23, 1984, the Honorable Robert Einstein met in chambers with defense counsel for the purpose of informing them that he had received a note from defendant indicating his desire to proceed in propria persona. Judge Einstein expressed concern regarding the consequences of defendant’s self-representation in a complex capital case, and inquired of counsel whether they were aware of any matter that had prompted defendant’s request.

Newton responded that defendant appeared to have difficulty communicating with counsel, was anxious to ensure the protection of his rights, and desired access to a law library to assist with his defense. The prosecutor objected to granting defendant law library privileges, which generally are available only to defendants having in propria persona status. Judge Einstein indicated his belief that he had the authority to grant defendant law library privileges in the event defendant agreed to withdraw his motion to proceed in propria persona. Defense counsel agreed to discuss the matter with defendant.

On March 27, 1984, at the hearing before Judge Einstein on defendant’s motion to proceed in propria persona, Newton and Windon approached the bench and informed the court that defendant had agreed to withdraw his motion for in propria persona status, based upon the court’s representation that he would be accorded law library privileges and counsel’s representation that they would assist him in obtaining access to pertinent judicial decisions.

Thereafter, defendant withdrew his request for in propria persona status, on the condition that he have law library privileges and the assistance of counsel in obtaining law books.. As shown above, contrary to the assertion of defendant that Judge Einstein disregarded his Faretta rights, the record reflects that, in an attempt to safeguard defendant’s rights incident to his defense, the court provided him an alternative to self-representation, and defendant voluntarily elected that alternative. No violation of defendant’s Faretta rights has been shown.

On January 18, 1985, the date scheduled for the commencement of trial, defendant again requested to proceed in propria persona after the trial court denied his Marsden motion. In denying this motion, the trial court found that defendant’s actions demonstrated an attempt to manipulate the judicial process, to obstruct his prosecution, and to delay the trial. The court denied defendant’s request to proceed in propria persona for this same reason, and additionally on the ground the request was untimely (having been asserted on the date scheduled for trial after numerous continuances).

The court stated: “Now, as far as I’m concerned, while you do have a right to represent yourself in propria persona, that right must be made in a timely and reasonable manner. You made an election agreeing to proceed with the counsel who are representing you now.

And the Court finds that it is not timely at this late stage of the game, on the date of trial, to attempt to discharge your attorney by whatever means are available to you, by trying to create a conflict of interest by filing a complaint that is unfounded against them or by moving for pro per status.” Although defendant maintained that he was not seeking a delay and was ready to proceed to trial, the court observed that defendant’s law library privileges had been revoked (apparently due to an abuse of those privileges).

The court expressly doubted defendant’s ability to represent himself for more than one day without creating a basis for revocation of his in propria persona status. The trial court’s denial of defendant’s request to represent himself, made on the date scheduled for trial (shortly before the actual commencement of trial), after numerous continuances extending over a significant period of time and following defendant’s prior assertion and withdrawal of similar requests, constituted a proper exercise of the trial court’s discretion.

In order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right within a reasonable time prior to trial. The latter requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. (People v. Wright, supra, 52 Cal.3d at p. 409.) If the motion is untimely—i.e., not asserted within a reasonable time prior to trial—the defendant has the burden of justifying the delay. (People v.

Burton (1989) 48 Cal.3d 843, 854 [258 Cal.Rptr. 184, 771 P.2d 1270].) “[A] defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court . . . .” (People v.

Windham, supra, 19 Cal.3d at p. 128, fn. 5.) The record amply supports the trial court’s action in denying defendant’s untimely request after finding a lack of any justification for the delay. The circumstances here are remarkably similar to those in People v. Williams (1990) 220 Cal.App.3d 1165, 1170 [269 Cal.Rptr. 705], where the Court of Appeal upheld the trial court’s denial of the defendant’s belated request for in propria persona status. The court explained that the defendant was able to delay trial “for eight months by juggling his Faretta rights with his right to counsel interspersed with Marsden motions.

He first asserted his right to represent himself and did so until the case was sent out for trial. He then persisted in an attempt to select counsel of his choice. His meritless Marsden motions and his civil suit against appointed trial counsel were devised to delay proceedings and allow personal selection of appointed counsel. [U Contrary to his assertion on appeal, he never made a timely and unequivocal request to represent himself after abandoning propria persona status when the case was sent out for trial.

He was playing the ‘Faretta game[.]’ ” (Ibid.) For similar reasons, we conclude defendant’s claims relating to an alleged violation of his Faretta rights have no merit. 5. Defendant’s request for telephone privileges. Defendant contends the trial court improperly denied his request for telephone access for the purpose of contacting potential defense witnesses, in violation of his rights to a fair trial, to effective assistance of counsel, and to assist in his own defense, among other rights guaranteed under the federal and state Constitutions.

The appellate record, however, fails to establish that defendant was denied telephone access or otherwise was precluded from assisting counsel in contacting potential defense witnesses. On January 18, 1985, at the conclusion of the Marsden hearing, defendant requested access to a telephone for one hour each day throughout the trial, in order to enable him to contact witnesses.

In response to the court’s comment that defense counsel had retained investigators for that purpose, defendant explained that the investigators “could not go to the places that [he] must send them.” At this point, Newton interjected that, for this very reason, defendant should provide defense counsel with the names and addresses of potential defense witnesses to enable counsel to attempt to locate them and, if such efforts proved unsuccessful, counsel could report back to the court and seek another solution.

The court finally indicated to defendant that “[i]f you will provide the names and addresses of any witness you want your attorneys to contact, I’ll have no objection in ordering that you may be permitted to phone call,” but explained that defendant first must permit counsel to contact witnesses in an orderly manner through their investigators. Although current regulations provide that a prisoner should be afforded reasonable telephone access while incarcerated (Cal. Code Regs., tit. 15, § 1067), the record fails to indicate that defendant was denied the same reasonable access that was afforded other prisoners.

The trial court simply refused to grant unconditionally the special telephone privileges that were sought by defendant but not by his counsel. Defendant maintains that his right to an effective defense included the right to assist his counsel in contacting witnesses. Appointed counsel were in control of preparing the defense, however, and they did not seek special privileges for their client and never indicated to the court that special telephone access was necessary for the preparation of an adequate defense.

Moreover, the court did not deny absolutely such privileges, but simply conditioned the privilege of special access upon defendant’s cooperation with defense counsel. The court’s condition was reasonable under the circumstances where defendant had not asserted a timely, unequivocal right to self-representation and was represented by counsel. In imposing the condition, the court properly sought to enable appointed counsel to fulfill their duties and to prevent defendant from impeding the prepar

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