THE PEOPLE, Plaintiff and Respondent, v. STEPHEN COLE, Defendant and Appellant, 33 Cal. 4th 1158

Opinion WERDEGAR, J. Introduction Defendant Stephen Cole was convicted by a jury in Los Angeles County Superior Court of the first degree murder of Mary Ann Mahoney (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and arson (§451, subd. (b)).

The jury also sustained a special circumstance allegation that the murder was intentional and involved the infliction of torture. (§ 190.2, subd. (a)(18).) A mistrial was declared on a further special circumstance allegation that defendant committed the murder while engaged in the commission of arson. (Former § 447, now § 451, subd. (b); § 190.2, former subd. (a)(17), now subd. (a)(17)(H).) The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) I. Facts A. Guilt Phase 1.

People’s Case-in-chief Mary Ann Mahoney and defendant moved to California from the East Coast in 1986. They lived with Mary Ann’s mother, Gertrude Mahoney, in her North Hollywood apartment for two weeks and then moved to their own apartment nearby. Shortly thereafter, Mary Ann’s brother, Richard Mahoney, having observed physical injuries on Mary Ann that he presumed defendant had caused, asked defendant to leave Mary Ann. Defendant left California, and Mary Ann moved back in with Gertrude.

Approximately one month later, defendant returned to California and apparently began living on the street in front of Gertrude’s apartment. Shortly thereafter, defendant and Mary Ann moved together two more times and then, in April 1987, representing themselves as Mr. and Mrs. Mahoney, rented a house from William Gomik on North Whitnall Highway in North Hollywood. Mary Ann and defendant had a tumultuous relationship. They bickered and argued, and their regular screaming matches, punctuated by profanities, were often heard by family and neighbors.

During this period, defendant was twice convicted of cohabitant abuse, a misdemeanor, based on his conduct towards Mary Ann. Defendant was very possessive of her. On August 13, 1988, Mary Ann told her mother’s neighbor, Jacquelyn Blakely, that she planned to give notice to Gomik within three days that she would be moving out without defendant and moving back in with her mother. Mary Ann also indicated that defendant had seen a list of shelters for battered women that Blakely had previously given to her.

On August 14, 1988, Nicholas Snyder, a friend of defendant and a patron of the Red Rooster—a neighborhood bar where Mary Ann worked—saw defendant and Mary Ann walk into that bar shortly before the start of Mary Ann’s 10:00 a.m. shift. Snyder left the bar at 11:00 a.m. When he returned at 4:00 p.m., defendant was there. Defendant asked Mary Ann if he could take her car to the Silver Moon, another bar located approximately one-half to three-quarters of a mile from their house. Mary Ann said no. Defendant then asked for a ride from Snyder, who agreed to give him one.

When Snyder dropped defendant off at the Silver Moon about 4:30 p.m., defendant was “high” but not drunk. At approximately 9:00 p.m., the Los Angeles Fire Department received a report of a fire at the North Whitnall Highway residence. Los Angeles Firefighter Zane Testerman and Chief Wilford Bisson were the first to arrive on the scene. Soon after Testerman parked the fire department’s sedan in front of the house, defendant knocked on the driver’s side window. When Testerman rolled down the window, defendant said, “I’m the one you’re looking for.

I lit the house on fire.” Bisson radioed for the police, and Testerman got out of the car to detain defendant. Defendant continued speaking spontaneously. He stated, “I lit the house on fire and I tried to kill my old lady.” Defendant said he was angry at his landlord because the landlord was planning to build a new apartment building at the site of the burning house, and that he was angry at his “old lady” and wanted to kill her. Defendant repeatedly said that he was angry at both Mary Ann and his landlord, and that he wanted to kill Mary Ann and bum the house down.

When Testerman asked how defendant had lit the fire, defendant responded, “Well, I poured gasoline on [Mary Ann] and in the house and lit her and the house on fire.” Defendant appeared to be coherent, did not seem to be excited or injured, and did not smell of alcohol. The police arrived shortly thereafter and took custody of defendant. When the arson investigator arrived at the scene at approximately 9:40 p.m., Mary Ann was being placed into an ambulance. She had suffered severe bums to her upper torso and head area and was having difficulty breathing. She was also agitated, angry, and afraid.

The arson investigator spoke with Mary Ann during the short ambulance ride to Riverside Hospital and in the emergency room. Mary Ann said that she and defendant had argued earlier that evening, that defendant was extremely jealous of her, that he had followed her around all day, and that he thought she was cheating on him. She said she was asleep in bed but woke up when she smelled gasoline. When she did, defendant was standing over her and pouring gasoline on her. Defendant then lit the gasoline on fire. Mary Ann said that defendant tried to kill her and that she thought she was going to die.

After speaking with Mary Ann at the hospital, the arson investigator returned to the scene and began his investigation. He determined that approximately one gallon of a flammable liquid had been poured in two distinct areas in the front bedroom—near the bedroom door and at the foot of the bed—and ignited separately with an open-flame device. There was no way to determine which of the two areas was ignited first. A five-gallon container smelling of gasoline was found but determined not to have been used in the fire.

The arson investigator interviewed defendant at the police station shortly after midnight, and an audiotape recording of the interview was played for the jury. At the beginning of the interview, defendant insisted on taking an intoxilizer test, which the police administered. At trial, the parties stipulated that two readings from the test indicated defendant had blood-alcohol levels of 0.25 and 0.26 grams of alcohol per 100 milliliters of blood. During the interview, defendant admitted setting Mary Ann and the house on fire, and he described the events leading up to that point.

Defendant told the police that at approximately 10:00 a.m. on the day of the crimes, he drove Mary Ann to work at the Red Rooster and drank one beer there. He then drove home and spent most of the day cleaning the house and car, during which time he drank four more beers. Defendant picked up Mary Ann from work sometime after 6:00 p.m.—the end of her shift—and she dropped him off at home before heading back out with the car to the Silver Moon. Defendant got a ride to the Silver Moon from his friend Nick, who dropped him off there about 8:00 p.m. At the Silver Moon, defendant drank another beer.

Defendant spoke to Mary Ann, but she refused to leave the bar, cursing and calling him a “no good bastard.” Defendant left the Silver Moon shortly before 9:00 p.m. and walked home. Defendant also told the police that, when he walked inside the house, Mary Ann was “passed out” on the bed. She woke up, called him a “no good mother fucker,” and asked him where he had been. According to defendant, she said, “one of these fuckin’ days I’m going to bum you to fuckin’ bits and I’m going to cut your goddamn heart out.” Mary Ann also said, “if you lay down on that goddamn couch, . . .

I’ll put a butcher knife in your ass.” Defendant went “berserk,” cursed and called Mary Ann a “no good bitch.” He then retrieved a plastic carton containing nearly one-half gallon of gasoline from the patio, walked to the bedroom with it, poured approximately a quart of gasoline on the bedroom floor, threw the carton toward the bed where Mary Ann lay, spilling gasoline on Mary Ann in the process, and threw a burning cigarette lighter, igniting the fire.

According to defendant, “the fuckin’ thing just went.” Defendant told police that he left through the back door to make sure his pet dogs and cats escaped, and then returned and helped Mary Ann out of the house through the front door. Defendant told police he was “pissed off” at Mary Ann but that his mind was also on his landlord, who had offered him money if he burned the house down. He also mentioned that his rent was due the next day and that his landlord had recently remodeled other nearby properties.

William Gomik, defendant and Mary Ann’s landlord, testified that defendant told him shortly before the fire that he was going to have a difficult time paying the rent, which was due on the 15th of every month. Defendant did not, however, ask for an extension. Gomik told defendant to “do the best” he could. Gomik testified that he never asked defendant to bum down the North Whitnall Highway property or any other property. Mary Ann was transferred to the Torrance Bum Center in Los Angeles County in the early morning hours of August 15.

She had suffered bums over approximately 50 percent of her body, including third degree bums to her hair, face, neck, upper arms, chest, back, and legs. She had severe respiratory problems and was placed on special life-support ventilators. Various catheters were inserted to measure blood and pulmonary artery pressures and to administer fluids. Incisions were made along the length of Mary Ann’s limbs so that her tightly burned skin would be able to expand and not block blood flow to her extremities.

Mary Ann experienced pain from her bums, pain from the swelling of her face and eyes, pain from the ventilator tube in her neck, pain from skin grafting, pain when the dressings on her wounds were changed, and pain when she was moved so the bed sheets could be changed. She was very agitated, restless, and angry, thrashing about in her bed. She was given large doses of Valium and morphine, but they did not appear to diminish her pain. She seemed frightened of what was happening and longed to die. Her pain was severe but tapered off as she approached death. After four or five days, she became unresponsive.

A few days later, she suffered multiple organ system failure, and her extremities turned black. Had she survived, her hands and feet would have been amputated. She died on August 25, 1988. An autopsy established that she died of multiple organ system failure as a result of smoke inhalation and bums. 2. Defense Case The defense endeavored to show that defendant was guilty of only second degree murder by presenting evidence that he was reacting to Mary Ann’s burst of anger and was under the influence of alcohol when he ignited the fire.

The defense also endeavored to show that defendant intended solely to kill Mary Ann, not to commit arson. Lisa Leone, the next-door neighbor of Mary Ann’s mother Gertrude, met Mary Ann and defendant shortly after they moved to California and moved in with Gertrude. Leone, who rarely saw defendant without a beer in his hand, believed defendant was a “functioning alcoholic.” Occasionally, she saw Mary Ann drinking beer but not to the point of intoxication. Leone often heard loud arguments between Mary Ann and defendant in the late afternoon and early evening hours.

In August 1988, Steve Hoeck and David Carpenter lived in the house next door to Mary Ann and defendant. Both testified that although defendant drank beer from morning until night on a daily basis, he could hold his liquor and was a “functional drunk.” They also testified that Mary Ann and defendant argued frequently, including shouting and yelling profanities at each other. Defendant testified on his own behalf at trial. He met Mary Ann in the spring of 1982 or 1983 when they worked as grooms for different horse trainers on a racetrack circuit in New Hampshire.

They moved in together within days of meeting, and they continued working in the same racetrack circuit. From early on in their relationship, they drank beer together—with defendant drinking as many as 12 beers a day—and they argued frequently, sometimes violently. Mary Ann and defendant moved to California, initially living with Mary Ann’s mother Gertrude in North Hollywood for two weeks and then renting their own apartment for approximately two months. The two continued to drink together and argue. Defendant then moved back to New Hampshire for a month to work as a groom.

He returned to California after receiving telephone calls from Mary Ann. By that point, Mary Ann had moved back in with Gertrude. Defendant lived in his car because Gertrude would not allow him back into her house. Mary Ann and defendant resumed their volatile relationship. They obtained jobs at a warehouse. Defendant worked there for approximately 16 months and quit in November 1987. Mary Ann worked there until Christmas 1987. Defendant usually went to the Red Rooster, a neighborhood bar, early in the morning to drink beer.

When the owner of the bar wanted to hire a barmaid, defendant suggested that Mary Ann work there. Mary Ann started working at the Red Rooster in early 1988. Mary Ann and defendant eventually rented the house on North Whitnall Highway from Gomik. On August 14, 1988, when defendant and Gomik were doing some chores around the property, Gomik said he was upset because a neighboring property, which he also owned, was extremely dirty.

Gomik commented that perhaps he would “get lucky and this place will bum down.” Gomik then asked defendant to bum down his property, but defendant considered the conversation to be a joke. Concerning the events of August 14, 1988, defendant testified as follows: Over the course of the day and night, he drank approximately one case of beer. That evening, after he picked up Mary Ann from work, the two went outside to the car, intending to drive to the Silver Moon to check on a job opportunity for Mary Ann.

Just then, Hoeck approached and asked to borrow something; defendant became angry, using profanity, because they were in a hurry. Mary Ann called defendant a drunk and drove away, leaving defendant behind. At approximately 7:30 p.m., defendant telephoned the Red Rooster, spoke to Nicholas Snyder, and asked him for a ride to the Silver Moon. About 8:00 p.m., Snyder picked up defendant from his house and drove him to the Silver Moon, where he saw Mary Ann. After drinking two beers, defendant told Mary Ann he was going home. Defendant walked home. When he arrived, every light in the house was on.

Mary Ann had, in the meantime, apparently returned by car. Going inside, defendant saw Mary Ann walking out of the bathroom and into the bedroom. Defendant retrieved a beer from the kitchen, entered the living room, and turned on the television. Mary Ann and defendant argued about where defendant had been and when and where he would sleep.

Mary Ann told defendant that if he fell asleep on the couch she would “cut [his] damn balls off with a butcher knife.” Defendant yelled in reply, “Why don’t you just shut your goddamned mouth and go to sleep.” Defendant then picked up a plastic container of gasoline from the patio and walked approximately 43 feet to the entrance of the bedroom. Mary Ann was sitting on the bed. Defendant threw the plastic container toward Mary Ann, said something to the effect of “you fucking bitch, I hope you bum in hell,” lit a Bic brand cigarette lighter, and threw it. There was an explosion.

While defendant stood in the doorway, Mary Ann ran past him, on fire. Defendant remained in the doorway a few minutes and then walked out the front door. While defendant testified that he threw the lighter, he also testified that, for the butane flame of a Bic lighter to remain lit, a button must be continuously depressed. Defendant burned his left arm from the resulting flash when he ignited the fire. When defendant threw the gasoline and ignited it with the lighter, his only thought was to kill Mary Ann. He did not think about Gomik, the rent due, or the consequences of his actions.

At the time of the incident, he felt drank. If he had been sober, he would not have acted as he did. Defendant was confused during his police interview, although he attempted to tell the truth. Contrary to defendant’s statement to the police, he was not angry with Gomik, Gomik had not suggested he bum the house down, and Gomik’s comment about wishing the place would bum down had occurred at least a year before Mary Ann died. Defendant never worried about Mary Ann leaving him. He was not upset when Mary Ann told him she had a list of battered women’s shelters.

Psychologist Brace Sutkus, Ph.D., examined defendant on July 15 and 17, 1989. Defendant’s intelligence quotient (IQ) was 100, which is considered average. Dr. Sutkus performed a series of tests and concluded there was no indication of brain dysfunction. Defendant was generally cooperative. Dr. Sutkus opined that defendant was egocentric, immature, impulsive, childish, and demanding. Individuals with these characteristics tend to have a nonintegrated conscience and a history of aggression and assaultive behavior. Males with these characteristics tend to have a high frequency of alcohol-related problems.

They tend to be assaultive when they are drunk and to engage in manipulative behavior to escape stressful situations. Impulsiveness is an enduring personality characteristic, and an individual with this characteristic does not look or think before he acts. Imbibing alcohol tends to limit the activity of frontal lobes in the brain, loosening inhibitions and increasing impulsiveness. It is possible for a heavy drinker with a blood-alcohol level of 0.25 or 0.26 percent not to appear outwardly intoxicated. Nevertheless, such an individual would be cognitively impaired. Dr.

Sutkus also opined that defendant was alcohol dependent, meaning that he needed to drink socially on a regular basis to be able to function. In making this determination, Dr. Sutkus considered defendant’s erratic work history, his volatile relationship with Mary Ann, which involved heavy drinking by both parties, and his history of cohabitant abuse.

Henry Greenberg, who had worked as a criminalist with the Los Angeles Sheriff’s Department for 12 years and owned a private forensic alcohol laboratory in Fountain Valley, testified that ethyl alcohol, commonly found in commercial alcoholic beverages, is a depressant that acts on the brain and spinal column, which comprise the central nervous system. According to Greenberg, alcohol consumption first affects an individual’s mental capabilities such as judgment, reasoning, perception, loss of inhibitions, and ability to comprehend, understand, think, and reason.

Alcohol consumption next impairs fine motor coordination skills, visual acuity, and speech. It then results in physical impairment, such as balance coordination, gross motor coordination, and total loss of inhibition. The amount of alcohol consumed can become toxic, resulting in death by alcohol poisoning. Greenberg testified that an average individual with a blood-alcohol level between 0.10 and 0.12 percent would have impaired mental reasoning.

An average individual with a blood-alcohol level of 0.25 percent would be significantly impaired, unable to make rational and critical judgment decisions, would lose inhibition, and would show outward signs of impairment or intoxication. Although an individual with a history of alcohol consumption might have a blood-alcohol level of 0.15 or 0.20 percent without showing any outward signs of physical impairment, his mental functions would be affected. Greenberg opined that if a male individual weighing 165 pounds like defendant committed

an act at 9:00 p.m., did not consume any alcohol between then and midnight, and had a blood-alcohol level of 0.25 percent at midnight, his blood-alcohol level at 9:00 p.m. would have been between 0.27 and 0.31 percent. If such an individual began drinking at 9:00 a.m., he would have had to drink at least 21 beers to reach the assumed blood-alcohol level. Greenberg further opined that no individual is capable of using proper judgment with a blood-alcohol level above 0.20 percent. 3.

Rebuttal Evidence Bartender Charlene Garcia testified that defendant came into the Red Rooster a week before the fire, upset because Mary Ann was planning to move out. Defendant said, “If she tries to leave me, I’ll bum the fucking house down.” Defendant also told Garcia that he believed Mary Ann was “running around.” Defendant, a regular patron of the Red Rooster, often complained about arguments he had with Mary Ann. Gertrude Mahoney, Mary Ann’s mother, testified that defendant was very possessive of Mary Ann. On August 14, 1988, the day of the fire, Gertrude received 10 to 15 telephone calls from defendant.

Defendant became more agitated with each call. During one particular conversation, defendant told Gertrude he thought Mary Ann was seeing someone else. In one of the last telephone calls, defendant mentioned that he was going to the Silver Moon. At approximately 7:00 p.m., worried and scared by the increasing agitation in defendant’s voice, Gertrude telephoned Mary Ann at the Silver Moon and told her to come straight to her house. Winifred Meyer, a psychiatrist, reviewed the materials Dr. Sutkus used to make his evaluation of defendant and the tape of defendant’s interview with police. Dr.

Meyer found nothing in any of these materials that would indicate defendant was impulsive in character. The arson investigator testified that it was impossible to have a flash-type explosion by throwing gasoline, lighting a Bic lighter, and throwing the lighter at the gasoline. Had such an explosion occurred, defendant would likely have suffered significant bums to his hands and face, and parts of his clothing also would likely have been burned. When Mary Ann told the arson investigator that she thought she was dying, she also said she had been asleep and felt someone pouring something on her.

The arson investigator opined that Mary Ann was either asleep or half asleep in bed when defendant poured a flammable liquid on her back, and that the liquid had then dripped down onto the floor at the edge of the bed, creating one of the two distinct areas where the fire ignited. Police Officer Roy McIntosh arrested defendant on August 14, 1988, at approximately 10:10 p.m. He did not smell alcohol on defendant, and defendant exhibited no outward signs of being under the influence of alcohol. In December 1987, Officer McIntosh had participated in arresting defendant for cohabitant abuse against Mary Ann.

Mary Ann had a bruise under her right eye and red welts around her neck, consistent with being choked or strangled. At that time, Officer McIntosh could tell defendant had been drinking because defendant showed signs of intoxication such as slurred speech and unsteadiness, and because defendant had the smell of alcohol on his breath. Police Officer Robert Wantling arrested defendant for cohabitant abuse against Mary Ann in May 1988. Mary Ann had suffered a bruise below her right knee. Defendant stated he had been drinking, and his breath smelled of an alcoholic beverage. B.

Penalty Phase Neither the People nor defendant introduced any evidence at the penalty phase. II. Discussion A. Pretrial Issues 1. Appointment and Removal of Counsel A proper understanding of the issues involving the appointment and removal of defendant’s counsel requires that we set forth in some detail the procedural background leading to the trial court rulings defendant challenges. Defendant was originally represented by the Los Angeles County Public Defender’s Office.

On December 21, 1989, more than a year after defendant was held to answer on first degree murder and arson charges, the trial court appointed the Alternate Defense Counsel (ADC) to represent defendant because the public defender’s office had declared a conflict of interest. On January 31, 1990, Wayne Brandow of the ADC appeared in court as counsel for defendant. On August 31, 1990, the People announced they were ready for trial. Brandow stated he would be ready toward the end of September 1990. The trial court set the matter for trial and pretrial setting on September 11.

Because of the court’s scheduling conflicts, the matter was thereafter continued to December 3. On November 19, 1990, Brandow, who no longer worked for the ADC, requested appointment as defendant’s counsel to maintain “continuity of the individual attorney in representation” pursuant to Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750] (Harris). At the hearing on the motion, the trial court considered confidential declarations filed by defendant and Brandow.

Defendant declared, inter alia, that: He regarded Brandow, not the ADC, to be his counsel; Brandow had interviewed family members and others in New England who could testify on his behalf; he was confident Brandow, who had previously handled cases involving the death penalty, would represent him well at trial; he did not want new counsel who would need additional time to become familiar with his case when Brandow was already familiar with it; and because Brandow did not have a large caseload, he would be able to devote more time to his matter than attorneys with the public defender’s office or the ADC.

Brandow declared, inter alia, that: He had been counsel of record for defendant since the court appointed the ADC; he had traveled to Massachusetts and New Hampshire and personally interviewed numerous potential witnesses; an informed decision on which individuals to call as witnesses at trial could be made only by someone who had personally interviewed them and observed their demeanor; many potential witnesses were reluctant to travel to California but might agree to attend proceedings in this matter because he had developed a rapport with them, and such a rapport could be duplicated by different counsel only if such counsel were willing to spend as much time as he had already spent interviewing the witnesses at their homes and places of work; and he was the only counsel with whom defendant had had contact since the ADC was appointed.

Michael Morse of the ADC appeared as counsel for defendant at the hearing on Brandow’s motion. Morse represented that the ADC did not have a conflict of interest in continuing to represent defendant, was “neutral” on whether the motion should be granted, and would not oppose a court order replacing the ADC with Brandow as counsel for defendant.

The trial court declined to relieve the ADC as counsel for defendant “based upon the case law and based upon the papers filed.” On December 3, 1990, Philip Nameth of the ADC appeared on behalf of defendant and stated he would be second counsel on the case and that Otha Standifer, also of the ADC, would be lead counsel. Nameth also noted that two potential witnesses in the case had been or were currently in prison and that the ADC might have a conflict of interest.

The trial court stated that it would like to be notified as soon as possible if there was a conflict so that it could “advance the matter to appoint private counsel.” Between February and April 1991, the ADC successfully moved to continue the matter several times. In May 1991, the trial court set October 15, 1991, as the trial date. On October 15, the ADC moved for another continuance, which the People opposed. The court granted the continuance until January 27, 1992, but stated that would be the last continuance it would grant.

On December 6, 1991, the ADC moved for yet another continuance because the case had been reassigned internally to John Daley, even though Otha Standifer remained on the case. The court denied the motion. On January 13, 1992, the ADC moved for yet another continuance. The trial court denied the motion and stated that voir dire would begin “in earnest” on February 13. On January 17, 1992, the ADC filed an ex parte motion for a continuance.

At an ex parte in camera hearing, Standifer stated that he personally had had defendant’s case for only 10 months because the file had not been obtained from previous counsel in a timely fashion, that he was only just beginning to make inroads in obtaining interviews with potential witnesses on the East Coast, and that he could not be ready to try the case earlier than late April. The trial court replied that it could not, in good conscience, grant another continuance and that it might have to relieve the ADC if the ADC could not try the case within the time frame the court contemplated.

The court further noted that the hearing on the motion to continue should have taken place in open court, as nothing that counsel said had been confidential. Standifer repeated his arguments in open court, and the People objected to the continuance and requested that the ADC be relieved.

The court remarked repeatedly that the ADC had had the case for over two years and that “enough [was] enough.” Daley replied, “But there’s still no continuity in terms of investigators or lawyers, and that’s the hardest thing to do with that.” Following arguments by counsel, the trial court stated: “At this time, now, I will be honest with you. I wish I had relieved you before and appointed Mr. Brandow, who would have been ready a long time ago. [][] If I made a mistake in this case, that was my mistake. I should have appointed Mr.

Brandow and relieved the Alternate Defense Counsel, [f] . . . [f] But I didn’t do that, because I felt your office would be ready in a reasonable amount of time, and I did not feel it was fair to take the case from your office, because it was your office’s case and I don’t think your office would have been terribly fond of me if I had taken the case from your office at that time, because one of your members had happened to be relieved at that time, and it was unfair, [f] But now you’ve put the court in a very awkward position, and what I will do is as follows: [f] I will begin—I will agree to begin the jury selection process on March 2nd; one, to help you out; two, to help the court out, because I’m in the middle of a murder trial, [f] But as far as I am concerned, it’s March 2nd.

If you cannot be ready on that date, tell me now and I will relieve you.

If you can be ready on that date, I’ll accept your representations and I will go from there.” Standifer replied, “[I] will try with all my might to be ready by that date.” He also stated that if the trial court were unwilling to continue the trial until late April as he requested, he would “request as much time as the court will give [him] before then.” The People objected to the trial court’s ruling and noted that the numerous defense continuance motions were not fair to the victim’s frail and elderly mother, a crucial witness for the prosecution.

The court replied: “I agree you [the People] have rights under 987.5 of the Penal Code and 1050.5 of the Penal Code. I agree with you entirely. But I will accept the representations of counsel [that they will be ready].” The court further stated: “[I] feel I should give Alternate Defense Counsel a chance to be ready. They’ve been on the case this long, [f] I think I’ll save time by giving them the March 2nd date, and if they cannot be ready at that time [sz'c]. For ethical reasons I will relieve them at that time. And I think they understand the parameters of my ruling.

So I’m going to give you some slack, but that’s as far as it’s going to go.” The court then noted that Attorney Marvin Part was in the courtroom and asked him to be present on March 2, 1992, “just in case [defense] counsel are not ready and cannot proceed in the Cole matter on that date.” The prosecutor noted that she would give Part “all of the materials that [she had],so he will be knowledgeable and prepared in this case, because [the ADC] will not be ready.” On February 7, 1992, the ADC made another motion for a continuance, specifically, a two-week continuance with a four-week “hiatus” between the guilt and penalty phases.

Defendant indicated he would prefer to be represented by the ADC over Part, but he also renewed his motion under Harris, supra, 19 Cal.3d 786, to have Brandow appointed as counsel. The trial court again noted that it wished it had “kept Brandow on the case” but that, at this point, Part had already become “involved in the case,” and that, if the court relieved the ADC, it would appoint Part as counsel for defendant. After hearing from all counsel, the court “with reluctance” relieved the ADC because it could not be ready in time. In so doing, the court stated: “This case has gone on and on.

I feel this case will go on and on unless I do something now, while I am [loath] to do it.” Defendant, once again, renewed his Harris motion, stating that he had spoken with Brandow and that Brandow was available to handle the case if need be. The court appointed Part as counsel for defendant, but it ruled that the appointment was without prejudice to possibly appointing Brandow on February 18, the next court date, if

Part could not be ready to try the case “in a reasonable time.” On February 18, Part appeared as counsel for defendant. The People noted that there was an “absolute” prosecution witness who had been previously represented by the ADC. The trial court stated for the record that it had relieved the ADC of its appointment because it could not be ready for trial in a reasonable time frame. It further noted that the ADC should have been relieved in any case because it had a conflict of interest in continuing to represent defendant because of its previous representation of a prosecution witness.

The court also stated that Brandow had filed a declaration in which he represented, among other things, that: (1) he would be out of town on February 18 and thus would not be able to appear in court; (2) during the 10 months he had represented defendant, Brandow had personally performed out-of-state interviews with potential witnesses and evaluated their suitability as trial witnesses, and viewed physical locations relevant to the defense; (3) when he left the ADC, Brandow “believed that certain things still remained to be done in order to become fully and adequately ready to commence trial”;

(4) Brandow did not know what work had been done since December 1990, when he ceased representing defendant, but he believed “it would be necessary to relocate some of the previously interviewed witnesses, regain access to the file and documents which were previously transferred to the [ADC], review the entire file[,] and perform the limited additional preparation” that he had previously planned, with the result that although he “could not unconditionally guarantee” he could be prepared to try the case on March 2, 1992, he was sure no other counsel would be better prepared on that date; and (5) he was currently the counsel of record in two other cases, one of which was a death penalty case then set for preliminary hearing on February 24, 1992, and to commence within 30 days thereof, in which the court had instructed counsel to avoid becoming otherwise engaged, but he believed the preliminary hearing would be continued to a future date.

When the trial court inquired about defendant’s own wishes on the matter of counsel, defendant said he would like to have Brandow as counsel because Brandow was more familiar with his case, had spoken to more potential witnesses than any other counsel, and “would be much more prepared to go to trial.” Attorney Part stated that he had already received discovery and begun work on the case and that he would be ready to go to trial on March 16. Part also stated, however, that his three attempts to speak to defendant had been unsuccessful. The first two attempts failed because of a flood and lockdown at the jail.

The third attempt, on February 13, failed because defendant had refused to speak to Part. Part said that although defendant’s case was “a most serious case and a problem case,” it was largely based on “a stipulated set of facts.” Part related that previous counsel, specifically the public defender’s office and Brandow, had “two excellent investigators” who interviewed potential witnesses on the East Coast and thereafter wrote detailed reports about them.

Part stated that he did not believe there would be much difference for him between personally interviewing these potential witnesses and reading the reports and the exhibits. He acknowledged that “voluminous work” had been done by investigators in this case, but added that he would not use most of that work at trial.

Rather, he would “pick and select a few witnesses, not the 30 or 40 or 50 who perhaps were visited, acquaintances at work and school and things like that, that I really tactically think have no reason to be in the case at all.” Part believed that if defendant “would listen to what I had to say rather than hanging up the telephone . . . , I could explain my position and he would know that I am firm in his defense.” The trial court ruled that Part would remain as counsel for defendant. It further stated: “While it is true Mr. Brandow has done some work on the case, that was some time in the past. Mr.

Part is an excellent lawyer, as is Mr. Brandow, but I believe Mr. Part’s statements to me reflect that he will be ready and will do an excellent job in this matter, and will be prepared.” a. Refusal to relieve the ADC and appoint Brandow Defendant contends the trial court initially erred in denying him continued representation by Brandow, who had left the ADC and requested appointment as private counsel in his case. “A criminal defendant’s right to counsel is guaranteed by both the federal Constitution’s Sixth Amendment (applicable to the states through the Fourteenth Amendment), and by the California Constitution

article I,

section 15. The essential aim ‘is to guarantee “an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” ’ ” (People v. Sapp (2003) 31 Cal.4th 240, 256 [2 Cal.Rptr.3d 554, 73 P.3d 433].)

Section 987 provides that the trial court must assign counsel to a capital defendant if he or she is unable to employ counsel. “In Los Angeles County, pursuant to

section 987.2, indigent criminal defendants ... are represented by the public defender. If the public defender is unable to represent a defendant because of a conflict of interest, the alternate defense counsel is assigned to represent the defendant. If the alternate defense counsel is unable to represent a defendant because of a conflict of interest, private counsel is assigned.” (Alexander v.

Superior Court (1994) 22 Cal.App.4th 901, 910 [27 Cal.Rptr.2d 732]; see also § 987.2, subd. (d).) The court may depart from this specific order of appointing counsel for an indigent defendant, however, “[i]n the interest of justice.” (§ 987.2, subd. (d).) In such a case, the court must make “a finding of good cause and stat[e] the reasons therefor on the record.” (Ibid.) On appeal, a trial court’s orders concerning the appointment of counsel for an indigent defendant are reviewed for abuse of discretion. (See, e.g., People v.

Horton (1995) 11 Cal.4th 1068, 1098 [47 Cal.Rptr.2d 516, 906 P.2d 478]; Harris, supra, 19 Cal.3d 786, 799.) A court abuses its discretion when it acts unreasonably under the circumstances of the particular case. (See Harris, supra, at p. 796.) In Drumgo v. Superior Court (1973) 8 Cal.3d 930 [106 Cal.Rptr. 631, 506 P.2d 1007], prior to the date for appointing counsel, the indigent petitioner sought and was granted permission to consult with private counsel.

He thereafter requested appointment of that counsel, who, in turn, advised the trial court that he was ready, willing, and able to proceed as appointed counsel. The court denied the petitioner’s request and appointed a different attorney. (Id., at pp. 932-933.) The petitioner later moved to relieve counsel and to appoint the attorney he had originally requested. In support of the motion, the petitioner stated that he knew and had confidence in his requested counsel, and that he did not know, did not have such confidence in, and thus would not cooperate with, appointed counsel.

The court denied the motion. (Ibid.) When the petitioner sought review of this decision, we denied relief, explaining that the petitioner had “not met the heavy burden imposed in stating a claim for relief cognizable on mandate.” (Id., at p. 933.) Citing

section 987, we stated that the court assigns counsel to an indigent defendant, and that “constitutional and statutory guarantees are not violated by the appointment of an attorney other than the one requested by defendant.” (Drumgo, supra, at p. 934.) We also noted that requested counsel’s readiness, willingness, and ability to act did “not raise any constitutional compulsion requiring his appointment.” (Ibid.) In contrast to Drumgo v.

Superior Court, supra, 8 Cal.3d 930, we held in Harris, supra, 19 Cal.3d 786, that the trial court’s refusal to appoint requested counsel for certain indigent defendants amounted to an abuse of discretion. When the two petitioners in Harris, who were charged with multiple felony violations, first appeared in court and were advised that they were entitled to appointed counsel because the public defender was burdened with a conflict of interest, the petitioners requested the same two attorneys who had been appointed to represent them in municipal court proceedings on the same matter.

The court declined and appointed different attorneys. Among the factors considered by the court in making the appointments were the respective reputations of appointed counsel among the local bench and bar, their experience in the trial of similarly serious cases, and their certifications by the State Bar as criminal law specialists.

The petitioners objected to the appointments, noting they had developed a relationship of trust and confidence with their requested counsel. (Id., at pp. 788-790.) At the arraignment, all counsel joined in petitioners’ request, but the court ultimately reaffirmed its prior order. (Id., at pp. 790-794.) When the petitioners sought review of the trial court’s order by writ (Harris, supra, 19 Cal.3d 786, 789), we held that the court’s refusal to appoint requested counsel was an abuse of discretion.

In so concluding, we found significant that requested counsel had previously represented the petitioners in related prosecutions, which had established a close working relationship between counsel and petitioners and also given counsel extensive background in factual and legal matters that might become relevant in the current proceeding.

We also found significant that appointed counsel vigorously supported the petitioners’ plea that they not be appointed, emphasizing their relative unfamiliarity with the factual and legal issues involved and the necessity for expending considerable time and energy if they were to bring their level of familiarity with the case up to that of requested counsel. (Id., at pp. 797-799.) We thus reaffirmed “the basic holding of Drumgo [v.

Superior Court, supra, 8 Cal.3d 930,] that the court’s discretion in the appointment of counsel is not to be limited or constrained by a defendant’s bare statement of personal preference, [but] . . . that when that statement of preference, timely made, is supported by objective considerations of the consequence here involved, and where there are no countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendant’s request to appoint the counsel of his preference.” (Id., at p. 799.) The People argue that Harris, supra, 19 Cal.3d 786, is applicable only where the public defender (including the ADC) is unavailable and the court must for that reason choose between private counsel.

In, support of their position, the People point to Charlton v. Superior Court (1979) 93 Cal.App.3d 858 [156 Cal.Rptr. 107] and Williams v. Superior Court (1996) 46 Cal.App.4th 320 [53 Cal.Rptr.2d 832], in which courts interpreted the trial court’s statutory authority to appoint private counsel when the public defender is unavailable (see § 987.2, subd. (d)) as precluding appointment of such counsel when the public defender is available. In People v.

Daniels (1991) 52 Cal.3d 815, 844-845 [277 Cal.Rptr. 122, 802 P.2d 906], we acknowledged that uncertainty existed on the question whether Harris, which permits discretionary appointment of counsel for indigent criminal defendants, was applicable to situations where the public defender was available for appointment. Ultimately, however, we declined to address the question because the facts presented in Daniels were factually distinguishable both from Harris and from the situation where a defendant is unable to cooperate with the available public defender. We similarly decline to address the question here.

Brandow’s request for appointment was based on the considerations that he had personally interviewed and developed rapport with numerous potential witnesses, that different counsel could duplicate such rapport only by expending considerable time interviewing and otherwise spending time with these potential witnesses, and that he was the only counsel with whom defendant had had contact at the ADC.

In support of Brandow’s request, defendant declared he was confident that Brandow, who had interviewed family members and other potential witnesses and had previously handled capital cases, would represent him well at trial. Defendant also stated that he did not want a new attorney who was unfamiliar with his case and would require additional time to become as familiar with it as Brandow already was, and that Brandow could devote more time to his case than the ADC because of a lighter caseload.

Nothing in the record before us, however, demonstrates that the relationship between defendant and Brandow ever approached the depth of the relationship between the petitioners and their requested counsel in Harris, supra, 19 Cal.3d 786. And, unlike the appointed counsel in Harris, the ADC did not actively seek to withdraw as counsel or support Brandow’s appointment. Furthermore, there is no showing that defendant disagreed with the ADC as to trial tactics or any other aspect of his defense in such a way that he could not cooperate with the ADC.

Under these circumstances, the trial court’s denial of Brandow’s motion for removal of the ADC and appointment of him as counsel in its place constituted a proper exercise of discretion. That the court later regretted its ruling is no indication that the ruling made at the time was improper. b. Removal of the ADC as counsel Next, defendant contends the trial court erred in relieving the ADC as counsel. Generally, it is either the defendant or his counsel who requests the removal of counsel. (People v. McKenzie (1983) 34 Cal.3d 616, 629 [194 Cal.Rptr. 462, 668 P.2d 769], limited on another ground in People v.

Crayton (2002) 28 Cal.4th 346, 364-365 [121 Cal.Rptr.2d 580, 48 P.3d 1136]; see also Smith v. Superior Court (1968) 68 Cal.2d 547, 558-559 [68 Cal.Rptr. 1, 440 P.2d 65]; Code Civ. Proc., § 284.) Counsel may also be relieved on the trial court’s own motion, over the objection of the defendant or his counsel, “to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings.” (People v. McKenzie, supra, at p. 629.) On appeal, a trial court’s removal of counsel for an indigent criminal defendant is reviewed for abuse of discretion. (See, e.g., People v.

Daniels, supra, 52 Cal.3d 815, 846-847.) Added by Proposition 115 in 1990,

article I,

section 29 of the California Constitution provides, “In a criminal case, the people of the State of California have the right to due process of law and to a speedy and public trial.” (See also Tapia v. Superior Court (1991) 53 Cal.3d 282, 286, 299 [279 Cal.Rptr. 592, 807 P.2d 434].)

Section 987.05, also added by Proposition 115, provides in pertinent part that “In cases where counsel, after making representations that he or she will be ready for . . . trial, and without good cause is not ready on the date set, the court may relieve counsel from the case and may impose sanctions upon counsel . . . ." Additionally,

section 1050, which predates Proposition 115, provides, in pertinent part, that “the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice.” Under the circumstances of this case, we conclude the trial court did not abuse its discretion in relieving the ADC as counsel of record.

A court may remove appointed counsel both to “prevent substantial impairment of court proceedings” (People v. McKenzie, supra, 34 Cal.3d 616, 629) and when counsel, without good cause, does not become ready for trial (§ 987.05). The court in this case, before removing the ADC, granted several defense motions for continuances and allowed some flexibility in terms of the start of jury selection.

Furthermore, as early as October 1991, the court had warned that it would not entertain any more defense continuance motions, noting that the ADC had been counsel of record for over two years and that the People also had a right to a speedy trial. Given the ADC’s numerous requests for continuances despite the court’s warning that it would not grant any further continuances, the skepticism with which the court undoubtedly viewed the ADC’s latest assurances of a March 13 readiness date was not unreasonable.

Even those assurances were predicated on the ADC’s request for a four-week hiatus between the guilt and penalty phases. c. Appointment of Part as counsel As stated, on February 7, 1992, the trial court relieved the ADC and appointed Part as counsel for defendant, but without prejudice to possibly appointing Brandow on the next court date if

Part could not be ready to try the case in a reasonable period of time. Defendant contends that the court erred in failing to appoint Brandow in place of Part. As stated, we review a trial court’s appointment of counsel for an indigent criminal defendant for an abuse of discretion. The trial court’s ruling that Part would remain counsel for defendant was not an abuse of discretion under the circumstances of this case, notwithstanding the fact that Part had been defendant’s counsel for only 38 days when trial began.

Part indicated he had reviewed the voluminous materials in the case, including detailed investigation reports, and that he would be ready for trial on March 16. Part did not indicate that he needed to perform additional investigation; indeed, his trial strategy involved offering a few select witnesses at trial. He was “firm” in defendant’s defense. In comparison, Brandow’s availability and readiness for trial by the appointed trial date were uncertain.

He needed to access and review the entire file and perform additional preparation for trial, including locating some previously interviewed potential witnesses, and he could not guarantee he could be ready for trial on March 2. Further, he was under order from the court in another case to avoid becoming otherwise engaged. Although Brandow previously had a 10-month working relationship with defendant, that relationship effectively ended when he left the ADC in 1990, and Brandow was unfamiliar with any investigation or trial preparation that had occurred after that time.

Moreover, defendant’s reluctance to speak to Part was largely based on his desire to have Brandow as counsel and his belief that the prosecutor had selected Part, rather than any purported failings in representation by Part. Under these circumstances, the court did not act unreasonably in declining to appoint Brandow over Part. Defendant argues that the trial court appointed Part without determining whether he was qualified to handle a capital case and without complying with statutory suggestions for assigning private counsel (see § 987.2, subd. (c)).

The record is silent on whether Part was a county-contracted panel attorney. Even if he was not,

section 987.2, subdivision (

c) does not require the appointment of panel attorneys, and the trial court had no reason to believe that Part was unable to represent defendant competently. Indeed, stating that Part was a “very fine attorney,” the court noted that Part recently had defended a murder case before it and obtained for his client a second degree murder conviction in a case the court believed should have been first degree murder. Our decision in In re Avena (1996) 12 Cal.4th 694 [49 Cal.Rptr.2d 413, 909 P.2d 1017] is of no assistance to defendant.

There, we denied relief on habeas corpus to a petitioner who had raised claims of ineffective assistance against Part, who had represented the petitioner at a capital trial that took place in November 1981 through February 1982. (Id., at pp. 721-739; id., at pp. 741, 743 (dis. opn. of Mosk, J.).) That a petitioner in an unrelated capital case raised claims of ineffective assistance against Part based on his performance in 1982 has no obvious bearing on the question whether the court in this case abused its discretion in appointing Part as counsel for defendant in 1992. 2.

Denial of Marsden Motion On March 25, 1992, defendant moved to relieve Part as counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden). Following a hearing on the matter, the trial court denied the motion. Defendant argues the court erred in denying the motion because it failed to inquire fully into his complaints and failed to recognize there was a complete breakdown of the attorney-client relationship. We disagree.

When a defendant seeks discharge of his appointed counsel on the basis of inadequate representation by making what is commonly referred to as a Marsden motion, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequacy. (People v. Smith (2003) 30 Cal.4th 581, 604 [134 Cal.Rptr.2d 1, 68 P.3d 302]; People v.

Hart (1999) 20 Cal.4th 546, 603 [85 Cal.Rptr.2d 132, 976 P.2d 683]; see Marsden, supra, 2 Cal.3d 118, 123-126.) “A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245 [131 Cal.Rptr.2d 468, 64 P.3d 762]; People v.

Earp (1999) 20 Cal.4th 826, 876 [85 Cal.Rptr.2d 857, 978 P.2d 15].) We review a trial court’s decision declining to discharge appointed counsel under the deferential abuse of discretion standard. (People v. Jones, supra, 29 Cal.4th 1229, 1245.) Defendant’s written declaration in support of his motion stated as follows:

(1) Part visited defendant in county jail only four times in February—three times for approximately 30 minutes and once for less than five minutes—and he had not seen Part since then except in court;

(2) Part dismissed an investigator who had been working on the case since its inception and hired another investigator, who had visited defendant only twice for short periods; (3) although Brandow made extensive arrangements for use of expert testimony in the guilt and penalty phases, Part told defendant that to use a psychiatric expert would be “useless” and that the prosecutor would “just chew [such an expert] up”;

(4) Part told defendant he would use an “ex-cop” to testify about the effects of intoxication;

(5) Part told defendant that his case “was nothing but a simple murder and he would treat it as such”;

(6) Part did not plan to present any witnesses in the penalty phase other than defendant; (7) neither Part nor his new investigator had interviewed any potential witnesses; and (8) the prosecutor purportedly chose Part, and this impropriety should, in and of itself, result in his removal. Part addressed defendant’s complaints as follows:

(1) He had visited defendant four or five times in jail, had seen him in the holding cell, had visited him as recently as the day before, and had spoken to him “I don’t know how many times”; (2) a mitigation expert was no longer on the case because of a ruling made by a different court, and Part believed defendant “held that against [him]”; (3) a psychologist had made an evaluation of defendant regarding specific intent or ability to deliberate at the time of the victim’s death, and, although the psychologist had “great credentials,” he would “fear to put the man on the stand” on the issue of his opinion of defendant; (4) the only expert witness Part would need at trial was someone who could explain the significance of a 0.26 to 0.30 percent blood-alcohol level, and he was endeavoring to obtain what he considered to be the best expert—someone who had worked in law enforcement; (5) there were some legal issues related to defendant’s taped statement, but the case-in-chief was otherwise “quite simple”; and

(6) Part acknowledged there had been much work done by prior counsel and his investigator involving interviews with many potential witnesses in preparation for the penalty phase, but he would not “parade them to the witness stand” because it would be difficult to identify who would be favorable to defendant, stating for example, that defendant’s father “would probably be a better witness for the prosecution than he would be for the defense.” Part stated he was fully prepared for trial, and he detailed some of his trial strategy, explaining that if defendant were to be found guilty of first degree murder with a special circumstance, he would emphasize defendant’s lack of a criminal record but for two misdemeanors against the victim.

He noted that defendant did not like him, had walked out on him many times, and was not very helpful. When the trial court inquired if defendant had anything further to say, defendant stated the following:

(1) Part’s five-minute visit the previous day consisted of Part’s statement that approximately 15 prospective jurors were opposed to the death penalty, one woman’s spouse was a prosecutor, and one man was a former homicide detective;

(2) Part stated he wanted defendant to testify, without asking defendant for his opinion; and

(3) Part did what he wanted to do “without asking [defendant] anything, like he knows it all.” Part responded that he had done a great deal of work, spending as much as 30 hours analyzing the jury questionnaires so that defendant could receive “a fair shake,” and that he did not need defendant’s opinion or advice to pick the jury. Part added that, under the circumstances, it was necessary for defendant to testify, although he could not force defendant to do so.

Part stated he was doing what he believed was best for defendant to exonerate him to the extent possible, he was sorry if defendant did not agree with his strategy, and he would try the case regardless of whether defendant testified. The trial court clarified for the record that the decision to appoint Part as counsel for defendant was made solely by the court. The court added that Part was an outstanding attorney, he had a reputation among prosecutors as a respectable attorney who obtained results for his clients, and that it could think of no better counsel in this case.

The court thereafter denied the Marsden motion. Under the totality of the circumstances, we find no abuse of discretion. First, “the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.” (People v. Silva (1988) 45 Cal.3d 604, 622 [247 Cal.Rptr. 573, 754 P.2d 1070].) Second, defendant’s complaints regarding Part’s purported inadequate investigation, trial preparation, and trial strategy were essentially tactical disagreements, which do not by themselves constitute an “irreconcilable conflict.” (People v.

Welch (1999) 20 Cal.4th 701, 728-729 [85 Cal.Rptr.2d 203, 976 P.2d 754].) Indeed, a “defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense.” (Id., at p. 728.) “Nothing in the record here shows that [Part] was incompetent or would not provide adequate representation if he received defendant’s cooperation.” (People v.

Michaels (2002) 28 Cal.4th 486, 523 [122 Cal.Rptr.2d 285, 49 P.3d 1032].) Rather, defendant’s complaints mostly show disagreement as to tactics, which, by itself, is insufficient to compel discharge of appointed counsel. (See People v. Smith, supra, 30 Cal.4th 581, 606.) As we have stated, “the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (Ibid.) Such appears to be the case here.

We therefore conclude that the court did not act unreasonably in denying the Marsden motion. B. Guilt Phase Issues 1. Purported Erroneous Admission of Evidence a. Two prior incidents of abuse against the victim Prior to trial, the trial court conducted a hearing on the admissibility of evidence that defendant had committed ohabitant abuse against Mary Ann on two prior occasions. Over defendant’s objections, the court ruled that the evidence was admissible under Evidence Code

section 1101, subdivision (

b) to prove a fact at issue on a theory of murder by torture, specifically, intent to torture, and that Evidence Code

section 352 did not otherwise limit its admissibility. At trial, the parties stipulated that defendant had twice been convicted of cohabitant abuse, as a misdemeanor, against Mary Ann, in December 1987 and in May 1988. In the audiotaped police interview of defendant, which was played for the jury, defendant stated at one point that he had been arrested twice for incidents involving Mary Ann, had been released from jail two months earlier, and had been placed on probation for two years.

Later, on cross-examination, defendant testified that in December 1987 he slapped Mary Ann once or twice but did not drag her by her hair across the room, and he further stated that he released his pent-up anger by hitting her. Also on cross-examination, defendant said that in May 1988 he was angry and slapped Mary Ann, and that he had “a tendency to hit with the heels of [his] hand.” He testified he hit her but did not recall on what part of her body the blows fell. He then inconsistently testified that he did not recall hitting her.

In rebuttal, Officer McIntosh testified that he had arrested defendant for cohabitant abuse in December 1987 and that, on that occasion, Mary Ann had a bruise under her right eye and red welts around her neck, which were consistent with having been choked or strangled. Defendant exhibited symptoms of being under the influence of alcohol. Similarly, Officer Wantling testified he arrested defendant for cohabitant abuse against Mary Ann in May 1988 and that, on that occasion, Mary Ann had a bruise below her right knee. Defendant smelled of an alcoholic beverage and told the officer he had been drinking.

Defendant contends the trial court erred in admitting evidence of prior cohabitant abuse and allowing the parties to stipulate that defendant had been twice convicted of that crime. Such evidence, defendant argues, was irrelevant (see Evid. Code, §§ 350, 351), and if relevant, was unduly prejudicial (see id., § 352) and constituted impermissible character evidence (see id., § 1101, subd. (a)). The heart of defendant’s contention is that his prior cohabitant abuse against Mary Ann was not sufficiently similar to support the inference that he probably harbored the same intent—intent to torture—in both instances.

Intent to torture, which is a required element in murder by torture and the torture-murder special circumstance (see People v. Davenport (1985) 41 Cal.3d 247, 271 [221 Cal.Rptr. 794, 710 P2d 861]), has been variously described as intent to inflict or cause “extreme pain” (People v. Bemore (2000) 22 Cal.4th 809, 841 [94 Cal.Rptr.2d 840, 996 P.2d 1152]; People v. Crittenden (1994) 9 Cal.4th 83, 140 [36 Cal.Rptr.2d 474, 885 P.2d 887]), “extreme and prolonged pain” (People v. Steger (1976) 16 Cal.3d 539, 546 [128 Cal.Rptr. 161, 546 P.2d 665]; accord, People v.

Raley (1992) 2 Cal.4th 870, 888 [8 Cal.Rptr.2d 678, 830 P.2d 712]; People v. Pensinger (1991) 52 Cal.3d 1210, 1239 [278 Cal.Rptr. 640, 805 P.2d 899]), and “ ‘cruel pain and suffering for the purpose of revenge, extortion, persuasion or for any other sadistic purpose’ ” (People v. Wiley (1976) 18 Cal.3d 162, 168 [133 Cal.Rptr. 135, 554 P.2d 881]; accord, People v. Mincey (1992) 2 Cal.4th 408, 432 [6 Cal.Rptr.2d 822, 827 P.2d 388]; People v. Bittaker (1989) 48 Cal.3d 1046, 1101 [259 Cal.Rptr. 630, 774 P.2d 659]; People v. Davenport, supra, 41 Cal.3d at p. 267).

In short, we refer to the intent to torture as the intent to inflict extreme pain. Evidence Code

section 1101, subdivision (

a) generally prohibits the admission of a prior criminal act against a criminal defendant “when offered to prove his or her conduct on a specified occasion.” Subdivision (

b) of the statute, however, provides that such evidence is admissible “when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge . . .).” To be admissible to show intent, “the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance.” (People v. Yeoman (2003) 31 Cal.4th 93, 121 [2 Cal.Rptr.3d 186, 72 P.3d 1166]; accord, People v. Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) Moreover, to be admissible, such evidence “ ‘ “must not contravene other policies limiting admission, such as those contained in Evidence Code

section 352.” ’ ” (People v. Lewis (2001) 25 Cal.4th 610, 637 [106 Cal.Rptr.2d 629, 22 P.3d 392]; accord, People v. Daniels, supra, 52 Cal.3d 815, 856.) Under Evidence Code

section 352, the probative value of the proffered evidence must not be substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (See People v. Ewoldt, supra, at p. 404; Evid. Code, § 352.) We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352. (See People v. Heard (2003) 31 Cal.4th 946, 973 [4 Cal.Rptr.3d 131, 75 P.3d 53]; People v.

Crittenden, supra, 9 Cal.4th 83, 134, 36 Cal.Rptr.2d 474, 885 P.2d 887; accord, People v. Brown (2003) 31 Cal.4th 518, 534 [3 Cal.Rptr.3d 145, 73 P.3d 1137]; People v. Lewis, supra, 25 Cal.4th 610, 637.) Assuming, for the sake of argument, that the trial court abused its discretion in admitting evidence of defendant’s prior crimes, the error would not require reversal. Even if the two prior instances of criminal abuse are disregarded, there was abundant testimony that defendant’s relationship with Mary Ann was acrimonious and that they fought constantly, both verbally and physically.

Moreover, as will be discussed, defendant’s actions and statements on the day of the fire provided evidence that he intended to torture her. Accordingly, it is not reasonably probable that a result more favorable to defendant would have resulted had the prior crimes evidence not been admitted. (People v. Welch, supra, 20 Cal.4th 701, 750; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) For the same reasons, any error was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824] People v.

Rodrigues (1994) 8 Cal.4th 1060, 1120, fn. 23 [36 Cal.Rptr.2d 235, 885 P.2d l].) b. Victim’s suffering prior to death Prior to trial, defendant requested an evidentiary hearing to determine the extent to which Dr. Davies, the surgeon who treated Mary Ann until she died, could testify about her suffering. Although the defense acknowledged that commission of

an act calculated to cause extreme pain was an element of the torture-murder special circumstance, defense counsel argued that testimony of eight to 10 days of such pain was irrelevant to prove murder by torture and unduly prejudicial as proof of the torture-murder special circumstance. Over defendant’s objections, the trial court ruled that Dr.

Davies could testify as to Mary Ann’s suffering, stating such evidence was “extremely relevant to the issue of proving the torture/murder special circumstance,” and that “its probative value outweigh[ed] any prejudice under [section] 352 of the Evidence Code.” At trial, Dr.

Davies testified extensively about external and internal injuries to Mary Ann, the deteriorating condition of her body from the time she was admitted until she died 10 days later, various medical treatments administered to treat her bums, her continuing pain and agitation from her injuries and treatments until she lost consciousness on approximately her seventh day of hospitalization, and medication administered to relieve her pain. He opined that had Mary Ann survived, she would have required, at the least, amputation of her hands and feet.

In addition, Nurse Mary Justus further testified about Mary Ann’s agitation, pain, and fear in the first four to five days when she was still conscious. Other prosecution and defense witnesses also described Mary Ann’s condition immediately after the fire, albeit to a much lesser degree. Defendant contends that the trial court erred in admitting evidence of Mary Ann’s suffering because such evidence was irrelevant at the guilt phase and that, even if relevant, it should have been excluded as unduly prejudicial under Evidence Code

section 352. As stated, we review for abuse of discretion a trial court’s mlings on relevance and admission or exclusion of evidence under Evidence Code

section 352. At the time defendant committed his crimes, commission of

an act calculated to cause extreme pain no matter how long its duration was an element of the torture-murder special circumstance. (See People v. Davenport, supra, 41 Cal.3d 247, 271.) In light of evidence that defendant deliberately poured a flammable liquid on two distinct places, told Mary Ann as he set fire to the liquid that he hoped she would bum in hell, and his subsequent statements that he wanted to kill her, evidence that Mary Ann suffered extreme pain was relevant to prove defendant committed

an act calculated to cause extreme pain. Evidence that Mary Ann suffered extreme pain also was part of the circumstances of the crime relevant to prove intent to torture, both for murder by torture and the torture-murder special circumstance. (See People v. Davenport, supra, at p. 271; see also People v. Morales (1989) 48 Cal.3d 527, 559 [257 Cal.Rptr. 64, 770 P.2d 244].) In addition, the trial court acted within its broad discretion in admitting evidence of Mary Ann’s suffering because the probative value of the evidence presented was not substantially outweighed by its prejudicial effect. The “prejudice” referred to in Evidence Code

section 352 is “evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.” (People v.

Crittenden, supra, 9 Cal.4th 83, 134.) Graphic evidence in murder cases is always disturbing and never pleasant. (See ibid.) Although the evidence of Mary Ann’s suffering was indeed disturbing, it was not unduly shocking or inflammatory, especially considering that proof of the torture-murder special circumstance required evidence of commission of a kind of act calculated to cause extreme pain, and that both murder by torture and the torture-murder special circumstance required evidence of intent to inflict extreme pain. c.

Victim photographs At a pretrial hearing, the prosecutor proffered three photographs of Mary Ann before the fire and nine photographs of her after the fire. Defendant objected to the photographs of Mary Ann before the fire as irrelevant and cumulative, and to the quantity of photographs depicting Mary Ann’s bums after the fire as irrelevant and, if relevant, unduly prejudicial and cumulative.

The trial court permitted the prosecutor to admit one photograph of Mary Ann before the fire and all nine photographs of her after the fire, stating that, with regard to the photographs depicting her bums, each was taken “from a different perspective” and their “probative value outweighs undue prejudice as to the issues to be proven in this case.” On appeal, defendant challenges the photograph of Mary Ann before the fire as irrelevant and the nine photographs of her after the fire as irrelevant and, if relevant, as unduly prejudicial and cumulative. As we shall explain, defendant’s challenge is without merit.

We review the trial court’s rulings on relevance and admission or exclusion of evidence under Evidence Code

section 352, including photographic evidence, for abuse of discretion. (See People v. Martinez (2003) 31 Cal.4th 673, 692 [3 Cal.Rptr.3d 648, 74 P.3d 748]; accord, People v. Medina (1995) 11 Cal.4th 694, 755 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Defendant argues that the photograph of Mary Ann before the fire was irrelevant, and therefore inadmissible, because it “had no bearing on any contested issue in the case.” (People v. Ramos (1982) 30 Cal.3d 553, 578 [180 Cal.Rptr. 266, 639 P.2d 908].) We disagree. Whether defendant intended to inflict extreme pain and to commit

an act calculated to cause such pain were two important issues at trial relating to the torture-murder special circumstance. Intent to inflict such pain was also relevant to the charge of murder by torture. Accordingly, the photograph of Mary Ann before the fire was relevant to show the extent of the harm caused by defendant’s actions. We thus conclude the trial court did not abuse its discretion in admitting a single photograph of Mary Ann before the fire.

Defendant also argues that the nine photographs of Mary Ann after the fire were irrelevant to the issue of intent to inflict extreme pain, cumulative to testimonial evidence, partly cumulative to each other, and unduly prejudicial. His challenge to these photographs on the ground of relevance has not been preserved for review because he did not make a specific and timely objection on this ground. (See People v. Alvarez, supra, 14 Cal.4th 155, 204, fn. 14.) In any event, he fails on the merits because, as we will discuss, the photographs were indeed relevant.

The intent to inflict extreme pain may be inferred from the circumstances of the crime, the nature of the killing, and the condition of the victim’s body. (People v. Morales, supra, 48 Cal.3d 527, 559.) The photographs of Mary Ann, which depicted the numerous bums on specific parts of her body, were obviously relevant to show the condition of her body as it related to the issue of intent to inflict extreme pain, as well as to prove commission of a kind of act calculated to cause such pain.

Further, we have often rejected the argument that photographs of a murder victim should be excluded as cumulative to other evidence in the case. (People v. Heard, supra, 31 Cal.4th 946, 976, 978; People v. Martinez, supra, 31 Cal.4th 673, 692; People v. Gurule (2002) 28 Cal.4th 557, 625 [123 Cal.Rptr.2d 345, 51 P.3d 224].) We cannot conclude that the trial court abused its discretion in admitting the photographs. As we have previously observed, all photographs of murder victims are disturbing. (See People v.

Heard, supra, 31 Cal.4th 946, 976.) Here, although the photographs are “unquestionably unpleasant” (id., at p. 977), they are not unduly gmesome or inflammatory and, as previously noted, are all relevant to issues in the case. Moreover, the trial court ruled that the photographs were sufficiently different as not to be cumulative to each other, and such a ruling is not unreasonable. The trial court did not abuse its discretion in admitting these photographs.

Even if we were to agree with defendant that the trial court erred in admitting one or more of the autopsy photographs, we nonetheless would conclude that any error was harmless under the standard of People v. Watson, supra, 46 Cal.2d 818. Under Watson, the erroneous admission of photographs warrants reversal of a conviction only if the appellate court concludes that it is reasonably probable the jury would have reached a different result had such evidence been excluded. (People v. Heard, supra, 31 Cal.4th 946, 978; see People v.

Watson, supra, at p. 836.) The photographs here “did not disclose to the jury any information that was not presented in detail through the testimony of witnesses,” and they were “no more inflammatory than the graphic testimony provided by a number of the prosecution’s witnesses.” (People v.

Heard, supra, at p. 978.) Under these circumstances, it is not reasonably probable that the admission of the nine photographs of Mary Ann after the fire, which depicted her bums and injuries, affected the jury’s verdict. (Ibid.) And for the reasons stated, we would also conclude that any error was harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. 18, 24.) 2.

Prosecutorial Misconduct Defendant contends that the prosecutor committed misconduct during his guilt phase closing argument by comparing defendant’s conduct to the Spanish Inquisition and persecution of early Christians, and by impugning the integrity of defense counsel. We review the various statements of asserted misconduct in some detail below and conclude that defendant has forfeited the claim for failure to object or request an admonition to any of the statements, and that in any event the claim lacks merit. a.

Relevant proceedings As an illustration to explain murder by torture, the prosecutor argued that during the Spanish Inquisition, suspected heretics were tortured and killed. The prosecutor then continued: “The night before, after months, sometimes years, one of these acts of faith when somebody was going to be executed, they would give them the opportunity one last time, although it wasn’t really a last time, to confess and turn over their friends. This might be after six months of unbelievable torture.

They knew they were going to die. “If they confessed at this point in time and tum[ed] people over, a mercy was done them. They were allowed to be garroted right then and there, strangled so that only their dead body would be burned at the stake the next day, and they wouldn’t have to face the flames and the pain of burning. They could be dead first.

This is after months of torture of not confessing. “Hundreds, thousands of them at the last minute, either the night before, or actually some of them the next day after they were marched out, right when they were about to be taken to the stake, there was one more time, even though they were told the night before, ‘this is the last time, confess now and we’ll strangle you and you won’t have to face the flames,’ and they did, because they had seen it. “There was nothing—there is nothing you can plan, there is nothing in the human psyche that is as terrifying as dying by burning, and these are people who were going to die while tied up to the stake, and the whole thing is going to take ten minutes. “Doesn’t compare to what Mary Ann Mahoney went through.

Doesn’t even come close. They were allowed to be strangled first. “I’m not suggesting to you that Stephen Cole knew the history of the Inquisition. This

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