THE PEOPLE, Plaintiff and Respondent, v. HOOMAN ASHKAN PANAH, Defendant and Appellant, 35 Cal. 4th 395

Opinion MORENO, J. A jury convicted defendant Hooman Ashkan Panah of the first degree murder of eight-year-old Nicole Parker (Pen. Code, § 187), among other offenses, and found true the special circumstance allegations that the murder was committed while defendant was engaged in the commission of the crimes of sodomy and lewd acts upon a child under the age of 14 (Pen. Code, § 190.2, subd. (a)(17)(D), (E)). The same jury subsequently set the penalty at death. This appeal is automatic. (Pen. Code, § 1239, subd. (b).) We affirm the judgment. I. Facts A.

Procedural History Defendant was charged in a seven-count indictment with the murder of Nicole Parker (Pen.

Code, § 187) with the special circumstances that the murder occurred while defendant was engaged in the commission of the crimes of kidnapping, sodomy, lewd acts upon a child under 14, and oral copulation of a person under the age of 14 and more than 10 years younger than defendant. (§ 190.2, subd. (a)(17)(B), (D), (E), and (F).) He was further charged with kidnapping for child molesting (§ 207, subd. (b)); kidnapping a person under 14 years of age (§§ 207, subd. (a), 208, subd. (b)); sodomy by use of force (§ 286, subd. (c)); lewd acts upon a child under the age of 14 (§ 288, subd. (a)); penetration of genital or anal openings by a foreign object with a person under the age of 14 and more than 10 years younger than defendant (§ 289, subd. (j)); and oral copulation of a person under 14 years of age and more than 10 years younger than defendant (§ 288a, subd. (c).) Defendant pled not guilty and denied the special circumstance allegations.

Prior to commencement of the guilt phase of his trial, he also entered a plea of not guilty by reason of insanity. (§ 1016, subd. 6.) After presentation of the prosecution’s case, defendant moved for acquittal (§ 1118.1); his motion was granted as to the special circumstance allegation of kidnapping and as to the substantive counts alleging kidnapping and kidnapping for child molestation, but was otherwise denied.

The jury convicted defendant of first degree murder and found true the special circumstance allegations that he committed the murder while engaged in the commission of the crimes of sodomy and lewd acts upon a child under the age of 14. The jury found not true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of the crime of oral copulation.

Defendant was also convicted of sodomy by force, lewd acts upon a child under the age of 14, penetration of genital or anal openings by a foreign object with a person under 14 years of age, and oral copulation of a person under 14 years of age. Defendant withdrew his plea of not guilty by reason of insanity. Following the penalty phase, the jury returned a verdict of death. Defendant’s motion for a new trial (§ 1181) was denied and the trial court declined to modify the verdict of death (§ 190.4, subd. (e)). Defendant was sentenced to death on the murder count.

On the remaining four counts, he was sentenced to eight years on each count, to run consecutively. These terms were stayed pursuant to

section 654. B. Guilt Phase Evidence 1. Prosecution Evidence On the morning of Saturday, November 20, 1993, Lori Parker drove her eight-year-old daughter, Nicole, and her son, Casey, to the apartment of their father, Edward Parker, in Woodland Hills. Mr. Parker lived with the Parkers’ other two children, Chad and Travis. Defendant, then 22, and his mother, Mehri Monfared, lived in the apartment across the courtyard from Mr. Parker’s apartment. Defendant’s mother was having a business meeting that morning with Ahmad Seihoon. When Mr. Seihoon arrived about 9:00 a.m., defendant was asleep in his bedroom upstairs.

Ms. Monfared left the apartment sometime before 11:00 a.m., as did Mr. Seihoon, but Seihoon had to return to the apartment for his keys and wallet. As Mr. Seihoon was leaving, he saw Nicole. She asked him if he lived in the apartment and if he was the father of the “boy with the long hair.” He told her he was a friend of the family. Nicole stared at him and then ran across the courtyard into her father’s apartment. Mr. Seihoon went back into defendant’s apartment and called out to him in Farsi to lock the door. Sometime after 11:00 a.m., Nicole asked her father for a glove and softball. As Mr.

Parker walked back and forth between his apartment and the laundry room, he saw Nicole throwing the ball against the elevator. He told her to be inside the apartment by noon. About 11:45 a.m., he came outside and called her. She did not respond, but he assumed she had heard him. Five minutes later, he went out again and called her. When she again failed to respond, he searched the apartment complex for her. About 12:30 p.m., he called Mrs. Parker and reported that Nicole was missing. Afterwards, Mr. Parker began knocking on doors to see whether Nicole was playing inside a neighbor’s apartment.

He came to defendant’s apartment. Defendant answered and stood in the doorway. Mr. Parker asked him whether he had seen Nicole and defendant answered “something like, oh, is she missing.” Mr. Parker answered, “yeah. I can’t find her,” and went to the next door. Unable to locate her, he called the police. While Mr. Parker waited for the police, defendant and other neighbors were standing around. They wanted to know if he had found Nicole. Defendant followed him down some stairs. He offered to drive down Ventura Boulevard with Mr. Parker looking for Nicole. Mr.

Parker brushed him off, telling him the police were coming and would take care of it. Defendant was “very persistent,” however, and kept “pushing,” telling Mr. Parker, “let’s go. Let’s go.” Mr. Parker told him, “no, no, no. Don’t worry about it. Like just leave me alone.” Eventually, he stopped paying attention to defendant, who left. Los Angeles Police Department Officer Roger Mosset arrived about 1:15 p.m. He and Sergeant Melvin Patton set up a command post at the apartment complex. Officer Mosset obtained a description of Nicole from Mr. and Mrs.

Parker and initiated a search of the apartment complex and the surrounding area. Officer Ruth Barnes and her partner, Officer Calderon, participated in a door-to-door search for Nicole. At defendant’s apartment, Officer Barnes saw the television was on, but no one responded when she knocked, so she and Calderon left. Sometime later, Officer Barnes returned to the apartment and observed the television was off. A neighbor told her a young man lived there with his mother. Defendant reported to work at Mervyn’s department store about 3:00 p.m. Adele Bowen was the store manager.

The day before, she and defendant had argued about his parking in an unauthorized area. Defendant had become loud and argumentative and called Ms. Bowen a “dictator.” When defendant arrived for work, Bowen sought him out to resolve the argument. His responses were normal and he did not appear to be under the influence of drugs or alcohol. Defendant’s direct manager, Bruce Cousins, saw him about 3:15 p.m. According to Cousins, defendant was not as “up and cheery” as usual, but he did not appear to Cousins to be under the influence of alcohol or drugs.

About 5:00 p.m., Rauni Campbell, a fellow employee who had dated defendant, saw him in the store. Sometime between 5:15 and 5:30 p.m., Mr. Cousins noticed that defendant was gone. Cousins searched for him, but he could not be found. At the apartment complex, Sergeant Patton received information that Nicole had been seen talking with a man outside of defendant’s apartment. Officer Barnes also told him that the television in defendant’s apartment had been on and then turned off.

After obtaining a key from the apartment manager, Patton and several other officers, including Barnes and Calderon, entered defendant’s apartment to search for Nicole. After about 15 minutes, when they did not find her, Patton ended the search. When Ms. Monfared returned to the apartment complex, she was stopped by police who showed her a picture of Nicole and asked her whether she knew the child. Ms. Monfared said she did not. An officer told her that defendant had been seen talking with Nicole, and asked her where he was. She said he was at work.

Officers Calderon and Barnes went to defendant’s apartment and spoke to Ms. Monfared about talking to defendant. Ms. Monfared called him and gave the phone to Officer Barnes. Barnes asked defendant if he knew Nicole and he said, “vaguely,” or “not really.” Officer Barnes then asked him, “Do you know where she is?” Defendant answered, “No.” Officer Barnes said, “Oh, because someone said that they had seen you with her earlier.” Defendant replied, “No, I didn’t see her.” Around 5:45 p.m., defendant called Bruce Cousins and told Cousins he was not in the store, would not be returning and loved everyone at Mervyn’s.

He said he could not come back “because some people that he knew [were] trying to get him in trouble and would I please inform his mother to get out of town.” Cousins put him on hold to wait on customers. When he picked up the phone, defendant again asked Cousins to call his mother and “tell her that these people were after her and they were going to kill her, for her to get out of town.” Cousins did not take defendant seriously. Sometime after 5:00 p.m., defendant paged Rauni Campbell.

He told her, “I need your help” and “I have done something very bad” and asked her to call his mother and his friends to tell them good-bye because he would not be seeing them again. When she asked him what he had done, he would tell her only that it was “so big” she would find out about it. At 8:00 or 9:00 p.m., Mr. Seihoon called defendant’s apartment and learned from Ms. Monfared that police were looking for a missing girl. He went to her apartment and told police about his earlier encounter with Nicole. On Sunday, November 21, sometime around 9:00 a.m., Ms.

Campbell was awakened by defendant, knocking at her window. His wrists were slashed and there was dried blood on his sweater and wrists. She let him into her apartment and he told her he wanted her to buy sleeping pills for him. She did not ask him why he needed them. They drove to a store, where defendant purchased the pills and then returned to her apartment.

After defendant took the pills, she asked him what he had done, and if it had anything to do with “the little girl that was missing from his apartment complex.” He said, “Yes.” When she asked him “if the little girl was still alive,” defendant said, “No.” She asked him, “do you know she is not alive or are you assuming that because of what you have done that is so bad she is not alive.” Defendant answered, “she is not alive.” He told her she would find out about it because “they have a tape of me.” Defendant appeared to understand her questions and was responsive to them. Ms.

Campbell told him she needed to go downstairs to the manager’s apartment and call in sick. Instead, she called 911 and told the operator that a friend was in her apartment trying to commit suicide. When Officer Kong arrived, she told him defendant was taking sleeping pills and had something to do with the missing girl. When defendant saw Officer Kong, he ran. Officer Kong went in pursuit, but lost defendant. He broadcast a radio call describing defendant as the victim of a suicide attempt. When he learned from Ms. Campbell what defendant had told her about Nicole, he relayed this information to Sergeant Mascóla.

Sergeant Mascóla arrived at Ms. Campbell’s apartment about 10:00 a.m. After talking to Officer Kong, he began a search. He came upon defendant’s black BMW. Through the windows he saw a couple of bloodstained knives and bloodstains in the interior of the car. He also observed a cord sticking out from the trunk that he believed could have been a ligature. Mascóla believed Nicole might be inside the trunk so he had his officers force it open. She was not there. Detective David Navarro also went to Ms. Campbell’s apartment that morning. From there, he went to defendant’s apartment.

Detective Navarro and other officers searched defendant’s apartment for Nicole but did not find her. In defendant’s bedroom, Detective Navarro observed a video camera set up with a video machine. The video camera was pointing toward the bed. Detective Navarro ended the search and secured the location so he could obtain a search warrant. Defendant was eventually detained by police at Ms. Campbell’s apartment complex. His wrists were cut and he appeared to one of the officers, Officer Joe, to be under the influence of drugs or alcohol. Officer Joe asked defendant where the little girl was.

Defendant replied she “could be at Topanga Canyon and Parenthia” at a motel. He also said she could be at the Fallbrook Mall or at a park located at Topanga Canyon and Roscoe Boulevard. He told the officer he “liked her very much, even carry her skeleton remains around.” The statement did not make sense to Officer Joe. At times defendant spoke clearly, at other times he was incoherent as if he were falling asleep. He appeared to Joe to be under the influence of “something,” and because of the cuts to his wrists, the paramedics were called. Defendant was transported to West Valley Hospital for medical treatment.

At 10:00 or 11:00 p.m., Detective Burris and other police officers arrived at defendant’s apartment and conducted a search pursuant to a search warrant. In defendant’s bedroom closet, Burris found three suitcases, one atop the other beneath a pile of clothes. Inside the third suitcase, Burris found Nicole’s naked body wrapped in a bed sheet tied with a knot. Various items were removed or collected from defendant’s bedroom by police criminalist, Robert Monson, including the bedding, all the items on the bed, and defendant’s blue robe. The sheet Nicole was wrapped in was preserved for later analysis.

Monson also found and collected bloodstains from the bathroom and a tissue paper from the bathroom wastebasket that had a beige-colored stain on it. A preliminary acid phosphatase test of the stain indicated the possible presence of semen. Later, Monson went to West Valley Hospital where he obtained a blood sample from defendant. A police detective also gave Monson a ring, a pendant, and a necklace belonging to defendant. About midnight, a coroner’s criminalist, Lloyd Mahany, arrived at the crime scene. He lifted Nicole’s body out of the suitcase, placed it on the bed, and unwrapped it.

Mahany examined the body and collected sexual assault evidence, including swabs of the mouth, vaginal and anal areas, and breasts. The evidence collected by Monson and Mahany was analyzed by a third criminalist, William Moore, a forensic serologist. Preliminarily, Moore determined that defendant’s blood type was ABO type B while Nicole’s blood type was ABO type A. The sheet in which Nicole was wrapped was found to have bloodstains of ABO type AB, semen, and amylase, a constituent of saliva and other bodily fluids.

Moore testified the blood on the sheet could have come from a person who had type AB blood or could have been a mixture of A antigens and B antigens. The bloodstain on the sheet was “consistent” with Nicole. Additionally, there were a small number of stains on the sheet exhibiting positive acid phosphatase activity consistent with semen.

Some of these stains revealed the presence of spermatozoa fragments, indicating “that a male had ejaculated and deposited semen directly on the sheet or it was deposited by some other means.” Moore opined that the pattern of stains was consistent with the spewing of semen across the sheet and inconsistent with masturbation. The stains also showed amylase activity that was consistent with saliva. The saliva could have come from Nicole and the semen could have originated from defendant. Moore also analyzed the oral swab taken from Nicole as part of the sexual assault kit.

The oral swab produced a positive acid phosphatase result indicative of the presence of semen, but was inconclusive. Moore also analyzed defendant’s blue robe. The robe, like the sheet, bore bloodstains of ABO type AB. These stains also contained high amylase activity, indicative of saliva. The bloodstain was consistent with Nicole. The saliva could have originated from defendant. Moore’s analysis of the tissue paper found in the wastebasket in defendant’s bathroom revealed that the paper contained semen stains consistent with defendant and high amylase activity consistent with Nicole.

The stains were consistent with the product of oral copulation. Moore also examined the anal swab. The swab produced a positive acid phosphatase result indicative of the presence of semen, but was inconclusive. The autopsy of Nicole’s body was performed by Dr. Eva Heuser of the Los Angeles County Coroner’s Office. Dr. Heuser testified that there were petechial hemonrhages around Nicole’s eyes indicative of pressure to the neck. This was confirmed by evidence of neck injuries, including deep bruising to the tissue around the carotid artery and jugular vein.

The bruising was consistent with application of pressure by a thumb. The injury to the carotid artery could have caused death. There was an injury to the larynx indicative of manual strangulation. The injuries to her neck were sufficient to cause death. An examination of her lungs indicated she had aspirated her own vomit. Dr. Heuser also observed other bruises and abrasions to Nicole’s face. A bruise on her forehead was consistent with impact with a wall or the floor or being struck with a fist. Other bruises were caused by finger pressure.

Scratches on the inside of her thighs were consistent with having been made by defendant’s ring. The vaginal opening was “very widely” open and bruised, suggesting penetration with a finger or attempted penetration by a penis. The anal opening was very relaxed and the circumference of the anus had a bruised appearance; there was also tearing of the anus toward the vagina and indications of bleeding. These injuries were consistent with the insertion of a male penis, or a similar object, into the rectum. All these injuries were premortem. Dr. Heuser opined that the injury to the rectum could have caused death. Dr.

Heuser concluded that the cause of Nicole’s death could have been the injuries to her neck or the result of sodomy. She was unable to state a time of death but did opine that death would have taken at least a half-hour. 2. Defense Evidence Defendant called Dr. John Palmer, who had treated him following his arrest. Dr. Palmer was not a psychiatrist but had treated many people with psychiatric problems in the emergency room. Dr.

Palmer thought defendant was “psychotic,” and described him as being “agitated” and “delusional.” He was having auditory hallucinations, acting inappropriately, and had slashes on his wrists that appeared to have been self-inflicted. The cuts to his wrists were not life threatening. Defendant said that people in black hoods had told him to slash his wrists. A toxicological screen revealed the presence of tetrahydrocannabinol, the active ingredient in marijuana, and benzodiazepine, which’ belongs to a class of drugs used as a mild tranquilizer. Dr.

Palmer concluded that defendant was “acutely psychotic,” suicidal and hearing “command hallucinations, meaning the black robed and hooded figures were telling him to kill himself.” Defendant was also under the influence of drugs. Dr. Palmer could not tell whether his psychosis was brought on by the drugs, or was long-standing and relatively quiescent but had been exacerbated. He also acknowledged “environmental factors,” like “acute stress” or “acute grief,” can produce an acute psychotic break.

Defendant also presented character witnesses who testified to his peaceful disposition, sensitive nature and lack of any unnatural interest in children. Two former girlfriends also testified that defendant was never violent during sex. One of them, Victoria Eckstone, whom defendant dated for six months to a year, also testified that she believed defendant was the father of her 19-month-old daughter. She testified that defendant loved the child.

Michael Mier, who lived about five miles from defendant, testified that on the evening of November 20, he heard a young girl and a man screaming for help in a creek next to his home. He called 911. C. Penalty Phase Evidence 1. Prosecution Evidence The prosecution presented victim impact evidence in the form of testimony from Mr. and Mrs. Parker and their sons, Travis, Chad and Casey. Each family member testified about Nicole’s character and the effect that her death had had on that family member and other members of the family. 2.

Defense Evidence Victoria Eckstone testified that she believed defendant was the father of her child, Amanda, and that defendant was good with the child. She acknowledged that she had never had Amanda’s paternity medically determined but believed she bore an uncanny resemblance to defendant. She wanted defendant to continue to have a relationship with Amanda because even an imprisoned father was better than no father at all. If defendant were given the death penalty, Amanda would not have a father.

Five friends of defendant testified to his good character, describing him as “nice,” “polite,” “kind,” “sensitive,” “sweet,” and “gentle,” and described how they would be affected should he receive the death penalty—“shocked,” “devastated],” “hurt,” “very sorry,” and “very upset.” Daryoosh Adib, who befriended defendant after his arrest, believed defendant was a “very calm” person who could not have “bothered anyone.” If defendant received the death penalty, he would feel as if he had lost a brother.

William Glaser, defendant’s history teacher, testified he had encouraged defendant to seek psychological counseling for stress after defendant expressed his pessimism about his future. Farrah Farzaneh was a friend of defendant’s mother, and had known defendant for approximately six years. Ms. Farzaneh believed that defendant’s mother loved him very much but that her parenting methods had “failed miserably.” She described defendant as a “sensitive” and “caring” young man who had had a very difficult life. She testified that it would be horrible for her if defendant received the death penalty.

Defendant’s mother, Ms. Monfared, testified at length. She was bom in Tehran in 1947 and married defendant’s father when she was 21 and he was 25. She testified that she and defendant’s father argued constantly and that he beat her. While she was pregnant with defendant, her husband physically abused her, more than once pushing her and causing her to fall to the floor. The abuse continued after defendant was bom in 1971. When defendant was three months old, defendant’s father pushed her and she dropped the baby carrier containing him. He required medical attention.

When defendant was about three and a half years old, Ms. Monfared divorced her husband and was granted custody of defendant. Defendant and his mother went to live with her family. Defendant was upset at his parents’ separation. When he was four years old, he intentionally cut his finger severely enough to require stitches. When his mother asked him why, he said did not want to live anymore. Defendant did eventually reestablish a good relationship with his father. When defendant was 10, he told his mother that his grandfather was sexually molesting him and an older cousin by having anal sex with them. Ms.

Monfared did not believe defendant. She slapped him and called him a liar and a “kuni,” a pejorative term in Farsi for a homosexual. A few months later, the principal at his school told her some students were saying defendant was “acting like a gay.” Defendant denied it, but she did not believe him. She slapped him and punished him and frequently called him a “kuni.” In 1984, after the death of her parents, Ms. Monfared decided to leave Iran with defendant. She had been fired from her job because of her disagreement with the government over its treatment of women. At one point, Ms.

Monfared was put in jail by the government. Also, while they were in Iran, the country was at war with Iraq. Defendant was so frightened by the bombing of Tehran that he wet himself at night. Ms. Monfared was afraid that defendant might be taken to war. She also wanted more opportunity for him. For all these reasons, she wanted to take him out of the country. Defendant, however, wanted to stay in Iran where he could have a relationship with his father. They first went to Turkey where they lived for two years while Ms. Monfared attempted to gain entry into the United States.

For the first two weeks they were in Turkey they had to share a bed; during this period, defendant, then 13, tried to “touch” his mother. At one point, during their sojourn in Turkey, they went to Cypms where Ms. Monfared attempted unsuccessfully to obtain visas to the United States. While they were in Cyprus, a man tried to rape her in the hotel room she was sharing with defendant. Her yelling woke defendant, who was very frightened. The man struck them and left. In 1986, Ms. Monfared obtained visas to Germany and to Mexico. Defendant did not require a visa to go to Germany, so they went there. Ms.

Monfared remained in Germany for 10 days, then left for Mexico before her visa expired. Defendant, then 15, stayed behind in Germany, which had granted him political asylum. He lived at a dormitory for teenagers from foreign countries or without parents. Eventually, Ms. Monfared obtained green cards for herself and defendant to allow them to travel to the United States. In 1988 she returned to Germany for defendant. Defendant was happy in Germany where he had a girlfriend whom he wanted to marry. Ms. Monfared threatened to commit suicide unless he came with her to the United States.

In September 1988, a month after they arrived, defendant took some pills in a suicide attempt. When Ms. Monfared asked him why he had attempted suicide, he told her it was because he had wanted to stay in Germany with his girlfriend. In 1989, defendant began dating a girl named Laura. Laura lived with defendant and his mother briefly, but Ms. Monfared asked Laura to leave because she suspected Laura was stealing from her. Defendant continued to see Laura. Ms. Monfared threatened to kill herself unless defendant stopped seeing Laura. They argued and she hit him and threw him out of the apartment.

On one other occasion, Ms. Monfared threw a knife at defendant and threatened to kick him out of the house. Ms. Monfared testified that she physically abused defendant when he was a child. She beat him with her hands and shoes, slapped him when he misbehaved and pulled his hair. She also put pens and pencils in the middle of his fingers and squeezed his hand to make him cry. Defendant’s uncles and aunts also struck him when he misbehaved. She also testified that when defendant was eight or nine, she took more than 50 showers with him.

She testified further that over the years, she would threaten to commit suicide to get defendant to do as she said. She threatened to commit suicide when defendant was offered a plea bargain in this case. Dr. Palmer testified that it was “possible” the symptoms he observed defendant exhibit the night he treated him could have been the result of long-standing psychosis. He also examined the hospital records of defendant’s 1988 suicide attempt. The records indicated defendant had taken a relatively small overdose of antihistamines, an over-the-counter medication. Dr.

Palmer characterized the incident as a “suicide gesture, not a suicide attempt.” The hospital records showed evidence of major depression, not psychosis. On cross-examination, Dr. Palmer stated it had “always been [his] opinion” that defendant’s psychotic episode on the night of his arrest was more likely a stress-induced or drug-induced reaction, rather than a longstanding psychological problem. Dr.

William Vicary, defendant’s court-appointed psychiatrist, testified that, prior to the crime, defendant’s mental condition was “decompensating.” He explained that, from childhood, defendant had been through “an ongoing series of traumatic experiences,” and “was getting worse.” He testified that “the best single diagnostic label” to apply to defendant would be “depression.” He also described defendant as a passive personality, and explained that people who are excessively passive “tend to accumulate painful experiences, frustration, resentments [and] anger . . . until one day like a pressure cooker the top blows off.” Nonetheless, Dr.

Vicary concluded that defendant was sane at the time he committed the crimes. 3. Rebuttal Evidence A police detective, Kevin Krafift, testified that Victoria Eckstone had told him William Boorstin, not defendant, was the father of her child. Eckstone described Boorstin as her “common law husband” of 10 years. Krafft obtained a certified birth certificate for Amanda that listed Boorstin as her father. Another police witness, Brent Rollins, testified that he had had a conversation with Eckstone just after she testified at defendant’s trial. She told him that the child would never see defendant.

She also told him that the father’s name was not on the birth certificate. Dr. Kaushal Sharma, a forensic psychiatrist, testified that defendant was not suffering from a mental illness that would have caused him to be legally insane at the time of the crime. He agreed that defendant was passive in relation to his mother, but not in other relationships. He characterized defendant’s 1988 suicide attempt as an impulsive act designed to gain attention and express his unhappiness. He agreed that defendant may have been suffering from depression. In Dr.

Sharma’s interview with defendant, defendant denied having been sexually molested by anyone. He also characterized defendant as manipulative during the interview. His conclusion that defendant was not suffering from a mental illness was not altered by the testimony presented regarding defendant’s early life, his physical and sexual abuse, and the events that followed his departure with his mother from Iran. II. Discussion: Guilt Phase Issues A. Claims Relating to Removal and Replacement of Second Counsel 1.

Background On December 14, 1993, Attorney Syamak Shafi-Nia, who had been privately retained, appeared on defendant’s behalf at his arraignment. Defendant was also represented at that point by Milton Kerlan. After Kerlan withdrew from the case, Robert Sheahen was substituted in to conduct the preliminary hearing. Shafi-Nia had limited experience in criminal law and described his role as being there to “help” defendant. Sheahen, by contrast, was a veteran criminal lawyer with death penalty experience. On February 25, 1994, Shafi-Nia and Sheahen were appointed by Judge Ito to represent defendant to settle the case.

Shafi-Nia was appointed pursuant to Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750], notwithstanding his lack of criminal law experience, because of his personal relationship with defendant. Judge Ito made it clear that Shafi-Nia was being appointed “as second counsel” because of his “lesser qualifications” as a criminal lawyer. On June 1, 1994, Judge Ito reappointed Shafi-Nia and Sheahen for all purposes. The case was transferred to Van Nuys where it was ultimately tried by Judge Kriegler. On November 21, 1994, defendant made a Marsden motion (People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]) primarily directed at removing Shafi-Nia. He objected to Shafi-Nia’s “inexperience in not being a criminal attorney and definitely not qualifying for first degree death penalty cases,” and also faulted Shafi-Nia for his “inadequate translation” of a magazine

article from Farsi to English. Defendant requested a “second outstanding criminal attorney with appropriate experience and expertise in death penalty cases.” The trial court denied the motion, remarking, “I don’t think there’s any need for a second attorney in this case. I think it’s nice that Mr. Shafi-Nia has been here to serve the function that he was appointed to serve, but it’s more than the defendant necessarily would have received.” On November 29, Sheahen informed the court that Shafi-Nia had been in a traffic accident the previous day for which he was being treated, but did not request a continuance.

The following day, jury selection began. Sheahen waived Shafi-Nia’s presence. The court expressed its understanding that Sheahen would be handling “all the jury selection.” Sheahen agreed that he would be “making the calls here.” At the afternoon session, however, he said Shafi-Nia was his “communication fink” to defendant and that it was “very important that he be here.” He acknowledged he was not unable to proceed in Shafi-Nia’s absence and asked that, if Shafi-Nia could not be present, another lawyer be appointed.

He conceded he had not asked the case to be put over and was prepared to “go the distance” on jury selection. He also acknowledged that “97 percent of the decisions in this case have been made by me,” and that Shafi-Nia’s “learning curve” had been like a “fifty-pound weight that we are dragging around.” Nonetheless, he said, Shafi-Nia had assisted him on the juror questionnaires. The prosecutor suggested a recess to allow Sheahen to read the questionnaires.

Sheahen requested that the proceedings be “adjoum[ed]” until Shafi-Nia could return or, if the court declined to do so, he requested that the court “appoint a new and different second counsel for Mr. Panah.” The court did not rule on the request, nor did Sheahen press for a ruling. At some point, the court received a fax from Southern California Orthopedic and Medical Associates, dated November 29. It stated Shafi-Nia required bed rest for five days because of back pain due to the traffic accident. On December 1, both Sheahen and Shafi-Nia appeared.

Shafi-Nia wanted more time to discuss possible settlement and asked for a 10-day continuance or, alternatively, that another lawyer be appointed for defendant. The prosecutor said he would not object to the five-day continuance requested for Shafi-Nia to recover, but would object if the continuance was sought to give the defense more time to talk defendant into taking a plea. That afternoon, Shafi-Nia’s representation of defendant was again discussed.

The trial court had reviewed the transcript of Shafi-Nia’s appointment and observed that he had been appointed to facilitate a settlement and because of his long-standing relationship with defendant. The court remarked that the latter ground “has nothing to do with this case. And I think in retrospect it has created nothing but problems for the court and the orderly processing of this case.” The court also reiterated its belief that the case did not require two lawyers.

It denied the request for a 10-day continuance, noting that it was giving Shafi-Nia until Monday, December 5—the five days requested in the November 29 fax. On December 5, the court received a fax from Dr. Solomon Hakimi saying Shafi-Nia continued to have severe lower back pain and required bed rest until December 10, at which point he would be evaluated again. The defense requested a continuance. It was denied. The next day, defendant requested that the case be continued until Shafi-Nia could return or alternatively, for appointment of new counsel.

Sheahen told the court he had spoken with a possible replacement, Marcia Morrissey. The court indicated it was willing to entertain this request but denied the continuance. Later that day, when the court was informed Ms. Morrissey was not available, the court said it would consider another attorney if Sheahen proposed one. At the end of the court day, the trial court noted Shafi-Nia had not appeared. It terminated Shafi-Nia’s appointment and appointed William Chais in his place as second chair.

Defendant thanked the court, but Sheahen objected that replacing Shafi-Nia deprived defendant of Shafi-Nia’s preparation and communication skills. He also complained that Shafi-Nia remained in possession of some files. The trial court responded that it would order him to return the files. The following day, the court made the following statement to Mr. Sheahen to clarify the record: “You had, in fact, requested that a new second attorney be appointed and . . . your client last week had made that request. [][] And I denied that request from [sic] the grounds Mr.

Shafi-Nia was fulfilling the limited function he had been appointed to fulfill. [J[] You repeated your request for a new second lawyer yesterday, and I took action to ensure that an experienced criminal lawyer was brought in as second chair in an exercise of my discretion, [f] That was not done because I felt that defendant was receiving inadequate representation or that the absence of Mr.

Shafi-Nia had any impact whatever on how the trial had progressed to that point. [][] It was done because the case started with two lawyers, and I thought really just to continue having two lawyers would be in the defendant’s best interest.” Sheahen responded that the defense would have preferred a continuance and complained again that Shafi-Nia was in possession of files in the case. At the end of the day, the defense investigator informed the court that he had spoken to Shafi-Nia and arranged for the missing files to be brought to court.

At the end of the guilt phase, the trial court observed that Chais had done an “outstanding job,” and that what he “added to the trial in terms of good lawyering, coordination, and communication is far beyond what Mr. Shafi-Nia could have ever hoped to have added in this case because of his complete lack of criminal experience.” Sheahen argued that Chais, who was 32 years old, lacked trial experience in murder cases and should have been given time to prepare. The court pointed out that the defense had not requested a continuance for that purpose nor had Chais ever indicated he was unprepared. 2.

Analysis Defendant contends the trial court erred by: (1) denying his request for a continuance to permit Shafi-Nia to recover from his back injury; (2) removing Shafi-Nia over his objection; (3) appointing Chais; and (4) failing to give Chais adequate time to prepare. He asserts the errors were of federal constitutional magnitude.

As we explain, we reject his claims. “ ‘ “The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.” ’ [Citation.] In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. [Citation.]” (People v.

Barnett (1998) 17 Cal.4th 1044, 1125-1126 [74 Cal.Rptr.2d 121, 954 P.2d 384], quoting People v. Zapien (1993) 4 Cal.4th 929, 972 [17 Cal.Rptr.2d 122, 846 P.2d 704]; § 1050, subd. (e).) Defendant bears the burden of establishing that denial of a continuance request was an abuse of discretion. (People v. Beeler (1995) 9 Cal.4th 953, 1003 [39 Cal.Rptr.2d 607, 891 P.2d 153].) There was no such abuse of discretion here, but even if there was, defendant was not prejudiced. The trial had already commenced and the respective roles of defendant’s two lawyers, Sheahen and Shafi-Nia, were clearly delineated.

It was understood that Sheahen would be conducting the defense at trial because, by his own admission, Shafi-Nia was not qualified to try the case. Sheahen had, at least initially, waived Shafi-Nia’s presence for purposes of jury selection and even after Sheahen argued that Shafi-Nia should be present, he acknowledged that he, not Shafi-Nia, was making “97 percent of the decisions in the case.” Sheahen also conceded he was able to proceed in Shafi-Nia’s absence.

Additionally, the continuance requests escalated from an initial request of five days, which, in effect, the court granted, to 10 days, and then, ultimately, to an open-ended request. Furthermore, the trial court had reason to believe that the underlying reason for the request was not to allow Shafi-Nia to recover, but to obtain more time for defense counsel to persuade defendant to plead guilty after many months of fruitless plea negotiations.

Thus, the trial court was being asked to continue a trial that had already begun to some unknown point in the future to accommodate defendant’s secondary lawyer whose role in the trial, it was understood by all participants, was to have been, at best, limited. Given these circumstances, the trial court did not abuse its discretion when it denied the request. Defendant argues that Shafi-Nia’s status as “Harris counsel,” because of his “long-standing and unique relationship” with defendant, rendered his participation in the trial essential. We disagree.

In Harris, while affirming the general principle that an indigent defendant’s choice of counsel is not a dispositive factor in the appointment of counsel, we concluded that the trial court abused its discretion when it rejected the defendants’ request to appoint as counsel attorneys who had represented them in prior related criminal proceedings and with whom the defendants had developed a relationship of trust and confidence over a substantial period of time. (Harris v.

Superior Court, supra, 19 Cal.3d at p. 799.) We laid particular stress on the prior representation factor because it “served to provide those attorneys with an extensive background in various factual and legal matters which may well become relevant in the instant proceeding—a background which any other attorney appointed to the case would necessarily be called upon to acquire.” (Id. at p. 798.) In this case, there was no prior history of representation like that present in Harris and, unlike the attorneys in Harris, Shafi-Nia was so wholly inexperienced in criminal matters that, even in appointing him, Judge Ito made it clear he was to function as “second counsel,” behind Sheahen.

The only basis supporting Shafi-Nia’s appointment was his prior personal relationship with defendant. Fully aware of the circumstances of Shafi-Nia’s appointment, the trial court concluded that he was not essential to the defense, but was, at most, a “special benefit bestowed” on defendant by Judge Ito. The record bears this out. Just one week before trial began, defendant specifically sought to remove Shafi-Nia because of Shafi-Nia’s lack of criminal law experience and his deficiencies as a translator.

Additionally, the various defense requests for a continuance also alternatively requested appointment of new counsel. Moreover, lead counsel Sheahen acknowledged that Shafi-Nia’s lack of criminal experience was, in essence, a dead weight on the defense. Plainly, by the time this case reached the trial stage, any value Shafi-Nia may have had to the defense was exhausted.

Defendant also contends that the denial of his request for a continuance was detrimental because Shafi-Nia had been in contact with a number of potential witnesses in Iran and with defendant’s German girlfriend, all of whom may have testified at the penalty phase but, ultimately, did not. This argument was not made to the trial judge at the time defendant requested the continuance and to the extent he bases his claim of error on this point, his claim is forfeited. (Cf. People v.

Crovedi (1966) 65 Cal.2d 199, 207 [53 Cal.Rptr. 284, 417 P.2d 868] [whether denial of a continuance constitutes a due process violation “ ‘must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied’ ”].) In any event, defendant fails to establish either that the testimony of these witnesses—all of them unidentified except defendant’s German girlfriend—would have been anything other than cumulative to his mother’s penalty phase testimony.

Accordingly, Shafi-Nia’s asserted status as “Harris counsel” did not render the denial of defendant’s request for a continuance an abuse of discretion. Since there was no abuse of discretion “there is thus no predicate error on which to base the [defendant’s] constitutional claims.” (People v. Roybal (1998) 19 Cal.4th 481, 506, fn. 2 [79 Cal.Rptr.2d 487, 966 P.2d 521].) Accordingly, we reject them as well.

Defendant next contends that the trial court abused its discretion and violated his constitutional rights when it removed Shafi-Nia from the case. “On appeal, a trial court’s removal of counsel for an indigent criminal defendant is reviewed for abuse of discretion.” (People v. Cole (2004) 33 Cal.4th 1158, 1187 [17 Cal.Rptr.3d 532, 95 P.3d 811]; see People v.

McKenzie (1983) 34 Cal.3d 616, 629 [194 Cal.Rptr. 462, 668 P.2d 769] [a trial court may remove defense counsel, even over a defendant’s objections, “in order to eliminate potential conflicts, ensure adequate representation, or prevent substantial impairment of court proceedings . . .”].) Whether the trial court acted within its discretion in removing counsel to prevent “disruption of the orderly processes of justice” is to be determined “under the circumstances of the particular case.” (People v. Crovedi, supra, 65 Cal.2d at p. 208; People v.

Strozier (1993) 20 Cal.App.4th 55, 62 [24 Cal.Rptr.2d 362].) “A court abuses its discretion when it acts unreasonably under the circumstances of the particular case.” (People v. Cole, supra, 33 Cal.4th at p. 1185.) In this case, given Shafi-Nia’s indeterminate unavailability coupled with defendant’s insistence that he was entitled to two attorneys, the trial court acted within its discretion in relieving Shafi-Nia and replacing him. Defendant advances the same arguments he raised in connection with his claim that the trial court abused its discretion in denying his request for a continuance.

We find them no more persuasive in this context than in the continuance context and for the same reason we reject them. Further, the cases upon which he relies are inapposite because they involve the removal of lead counsel (e.g., People v. Crovedi, supra, 65 Cal.2d 199) or removal for reasons not present here (e.g., Smith v.

Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65] [trial court exceeded its authority by removing counsel for incompetence].) Even if the trial court abused its discretion either by denying defendant’s requests for a continuance or by removing Shafi-Nia, we would find any error harmless. Preliminarily, we reject defendant’s assertion that the removal of Shafi-Nia, if error, is reversible per se. For this proposition, defendant relies on People v. Crovedi, supra, 65 Cal.2d 199.

In Crovedi, we found that the trial court denied defendant his federal and state constitutional right to counsel when it denied his request for a seven-week continuance of trial to permit his attorney to recover from a heart attack, and removed counsel and replaced him with the attorney’s law partner over the latter’s protest. (People v. Crovedi, supra, 65 Cal.2d at pp. 201-203, 208-209.) In this situation, we concluded the constitutional violation required reversal “regardless of whether a fair trial resulted.” (Id. at p. 205; accord, People v.

Gzikowski (1982) 32 Cal.3d 580, 589 [186 Cal.Rptr. 339, 651 P.2d 1145] [denial of continuance to permit counsel to associate more experienced cocounsel, after withdrawal of original, experienced cocounsel, reversible regardless of whether a fair trial resulted].) Here, Shafi-Nia was secondary counsel who had, from the beginning of his representation of defendant, disavowed any intention of trying the case, leaving that duty to Sheahen. Under these circumstances, a reversible per se standard is not required. (See People v.

Weaver (2001) 26 Cal.4th 876, 952 [111 Cal.Rptr.2d 2, 29 P.3d 103] [after one cocounsel withdrew, the defendant agreed to proceed with remaining counsel and “nothing in the record suggests [remaining counsel] was an inexperienced attorney or was otherwise unable to assume lead counsel status”; distinguishing Gzikowski].) Defendant was represented by two competent lawyers, and nothing in the record shows he was prejudiced by Shafi-Nia’s removal. Accordingly, any error, if there was error, was harmless under any standard of review. Defendant makes two additional, related claims.

He asserts that the trial court erred by appointing Chais because he was unqualified to try a death penalty case and that the court erred by failing to give Chais sufficient time to prepare. These claims are forfeited because defendant did not object to the appointment of Chais on grounds he was unqualified, or did Chais request a continuance to prepare. In any event, defendant does not demonstrate Chais rendered ineffective assistance of counsel. Therefore, he fails to show any prejudice arising from his claims of error. B.

Denial of Marsden Motions Defendant contends the trial court erred in denying his three motions for substitution of counsel. (People v. Marsden, supra, 2 Cal.3d 118 (Marsden).) He asserts that the trial court did not give him an adequate opportunity to explain his dissatisfaction with counsel, as mandated by Marsden, and that, as a result, his right to effective assistance of counsel and other constitutional rights were denied. We disagree. 1. The November 21, 1994 Hearing On November 21, 1994, defendant filed a letter with the court in which he lodged 15 complaints against his lawyers.

Upon being informed by Shafi-Nia of the existence of the letter and some of its contents, the trial court excused the prosecutor and conducted a Marsden hearing. Responding to the letter, Sheahen told the court that, based on the evidence, and his discussions with other criminal defense lawyers who had tried death penalty cases, he had tried to persuade defendant to move away from a claim of “factual innocence” and either plead guilty to avoid the death penalty or enter a plea of not guilty by reason of insanity.

With respect to defendant’s desire for a DNA expert, Sheahen said he had explained to defendant that a DNA expert would only confirm the prosecution’s serology results. He said he had told defendant the case was “moving toward the death penalty,” and urged defendant to plead and avoid the death penalty. “And rather than do that, Mr. Panah has said, ‘Well, let’s get a new lawyer on the case.

Let’s do whatever.’ And that’s essentially where we are.” Defendant read a statement in which he claimed a conflict of interest with counsel existed because they had failed to pursue “certain matters” he asserted were important to his defense. He also read the complaints he had put in his letter. In reply, Sheahen again said he had assessed the DNA question and determined that the downside of a defense examination was greater than the upside. He also stated that every important witness had been interviewed.

He said he was working on a petition for writ of mandate to review denial of a disqualification motion under Code of Civil Procedure

section 170.1. (See post, at pp. 444-447.) He explained he had not moved to suppress certain items, including the victim’s body, as defendant urged, because, as he had explained to defendant, there was no legitimate basis to suppress them. He pointed out that the defense had filed an exhaustive discovery motion and that were no grounds for a hearing because the prosecution had complied with every request made by the defense. As to defendant’s request for a Franks hearing (Franks v.

Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674] [evidence obtained pursuant to a search warrant based on an affidavit including false statements, or statements made in reckless disregard of the truth, must be suppressed]), Sheahen pointed out that such a hearing had been conducted a month earlier.

Regarding the jailhouse informant to whom defendant referred, Sheahen said the district attorney had informed the defense that a cellmate of defendant’s had been used to attempt to elicit incriminating statements from defendant about eliminating a witness. (See post, at pp. 454-455.) Their conversations had been taped and reviewed by Sheahen. He said nothing on them was admissible in the guilt phase and if the prosecution tried to use them at the penalty phase their probative value was minimal because defendant “doesn’t say much of anything on these tapes.” The trial court found that “Mr.

Sheahen has done a very, very thorough and comprehensive job in presenting the 1538.5 issues, the 402 issues, the change of venue motion, the challenge to the entire courthouse, including myself, as well as the renewed motion for change of venue or transfer of district.” It found Sheahen’s decision not to call a DNA expert was a “sound” tactical decision. When the trial court asked defendant if there were specific names of witnesses whom he believed counsel had not interviewed, defendant was unable to provide them.

Sheahen stated if the case went to trial he would seek appointment of an investigator to interview any remaining witnesses. Concluding there had been no irreconcilable breakdown of the attorney-client relationship, the trial court denied the motion. 2. The December 5-6, 1994 Hearing On December 5, defendant requested another Marsden hearing. The trial court excused the prosecutor. Pressed by the trial court to state his specific complaints against Mr.

Sheahen, defendant complained that Sheahen had failed to adequately communicate with him, leaving most of the communication to Shafi-Nia and that Shafi-Nia’s absence was having a “negative effect” on Sheahen’s representation of him. He also complained Sheahen had failed to adequately investigate and prepare an “alibi defense.” Specifically, he stated that Sheahen had not talked to a professor of his who knew he had been suicidal. He also said Sheahen had failed to interview other witnesses, including Ronald Hicks, Victoria Eckstone, Adele Bowen and Bruce Cousins.

He complained, moreover, that Sheahen had not investigated mental defenses or sought to suppress evidence. Defendant said Sheahen had told him he would be “found guilty regardless . . . .” The court interrupted and observed that Sheahen had visited defendant countless times in lockup and arranged meetings with defendant at county jail. Defendant complained, however, that Sheahen had only talked to him about “taking a deal.” In response, Sheahen agreed with defendant that a substantial amount of communication with him had been done through Shafi-Nia, but said he also had met repeatedly with defendant.

As to defendant’s complaint about suppression of evidence, Sheahen pointed out that “we had a month long hearing where we moved to suppress.” With respect to defendant’s claim about alibi witnesses, Sheahen said defendant “doesn’t have an alibi witness because he was there at the scene of the crime.” As to the professor defendant mentioned, Sheahen stated there were other witnesses to defendant’s mental state but he might use the professor.

Regarding defendant’s claim about Sheahen’s assessment of the case, Sheahen said the record showed the evidence against defendant was substantial. “He wanted me to use a two bearded strangers defense. That is absolutely absurd and I will not use it.” The trial court denied the motion. It pointed out that Sheahen “cannot make up defenses where no defenses exist, [f] His duty is to give the defendant solid advice and do the best he can under the circumstances, [f] There is no doubt in my mind Mr. Sheahen has done exactly that .... [f] I find there’s no conflict.

No irreparable breakdown in the attorney-client relationship.” The following day, defendant appeared in court with a two- or three-page handwritten note and complained the trial court had cut him off before he could make his record on the “Marsden Bonin hearing.” The court declined to excuse the prosecutors because it said it had heard all of defendant’s claims. Nonetheless, with Sheahen’s assistance, defendant was allowed to state his complaints. Defendant complained about Sheahen’s failure to prepare for the penalty phase. He said he wanted his father to come from Iran for the penalty phase.

Sheahen told the court he had “looked into” having defendant’s father come but “he is presently in an immigration status that precludes him from leaving Iran to come to this country.” The trial court stated it was “going to stand by my rulings regarding the representation given the defendant in this case.” 3. The January 3, 1995 Hearing On January 3, after the guilt phase but before the penalty phase, defendant made a third Marsden motion. The trial court declined to excuse the prosecutors because defendant’s complaints related to tactical decisions made during the guilt phrase.

Defendant complained that counsel had not argued his ring could not have made the scratches on Nicole’s thigh and had not called a forensic expert to establish this point. He said counsel should have contended he had not worn the ring for a long time. Defendant also complained about counsel’s failure to impeach the victim’s mother and Rauni Campbell.

The trial court stated that, with respect to the ring, counsel had objected to its admission and conducted cross-examination on whether it caused the scratches on the victim’s body but that, in any event, it was an “insignificant factor” on identity, the only possible issue to which it could have been relevant. With respect to attacking Mrs. Parker’s credibility, the trial court stated this was a disagreement over tactics. Regarding the cross-examination of Rauni Campbell, the trial court found defendant’s complaints were conclusory and that, in any event, a tactical decision was involved.

The trial court denied the motion. 4. Analysis “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].) When the defendant seeks to remove appointed counsel “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.

Cole, supra, 33 Cal.4th at p. 1190.) The trial court’s ruling is reviewed for abuse of discretion. (Ibid.) Defendant asserts he was not given a sufficient opportunity to justify his request for new appointed counsel, that his attorney argued against him, and that the trial court improperly defended counsel. These claims are meritless. The record demonstrates that defendant was afforded the opportunity to explain the basis of his Marsden requests and to cite specific instances of counsel’s inadequate performance.

His complaints, however, amounted to nothing more than tactical disagreements between defendant and counsel. Given the overwhelming evidence of defendant’s guilt, defense counsel was not obliged to pursue futile lines of defense simply because defendant demanded them, and his refusal to do so did not justify his removal as counsel. (People v.

Welch (1999) 20 Cal.4th 701, 728-729 [85 Cal.Rptr.2d 203, 976 P.2d 754] [“Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict’ ”].) Furthermore, the trial court did not err in soliciting a response from defense counsel to defendant’s complaints, nor was counsel “arguing” against him when he did so. Inquiring of counsel is necessary for the trial court to evaluate the defendant’s request and for appellate review. (See, e.g., People v. Fierro (1991) 1 Cal.4th 173, 205 [3 Cal.Rptr.2d 426, 821 P.2d 1302]; People v.

Memro (1995) 11 Cal.4th 786, 854-855 [47 Cal.Rptr.2d 219, 905 P.2d 1305].) Nor did the court improperly defend counsel against defendant’s complaints when it disagreed with certain of defendant’s assertions. The trial court is not required to sit mute while a defendant advances patently erroneous grounds for substitution of counsel. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 95 [8 Cal.Rptr.3d 271, 82 P.3d 296].) We conclude defendant failed to show the trial court abused its discretion in denying his Marsden motions and, of necessity, reject his claims of constitutional violation as well. C.

Mental State Issues 1. Failure to Order Competency Hearing Defendant contends the trial court erred by declining to order a competency hearing pursuant to

section 1368. “When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citation.] ‘Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competence to stand trial.’ ” (People v. Lawley (2002) 27 Cal.4th 102, 131 [115 Cal.Rptr.2d 614, 38 P.3d 461], quoting People v. Danielson (1992) 3 Cal.4th 691, 726 [13 Cal.Rptr.2d 1, 838 P.2d 729].) Absent substantial evidence of a defendant’s incompetence, “the decision to order such a hearing [is] left to the court’s discretion.” (People v.

Gallego (1990) 52 Cal.3d 115, 162 [276 Cal.Rptr. 679, 802 P.2d 169].) On November 28, 1994, just before trial began, the trial court learned that Dr. Cobum, defendant’s court-appointed psychiatrist, had written defense counsel expressing his doubt that defendant was competent to stand trial.

According to the trial court, the letter indicated that defendant was fully aware of the charges against him but “he has little understanding of the nature of the plea change and has significant impairment in his ability to rationally cooperate with counsel . . . .” The court found that the letter was too vague to raise a doubt about defendant’s competence. It asked Dr. Vicary, the defense psychiatric expert, and Dr. Cobum to interview defendant and assess his competence to stand trial.

As part of their assessment, the court asked them to examine the November 21 Marsden proceeding transcript, calling it “highly probative of whether or not the defendant understands the nature of the proceedings and can assist counsel.” Defense Counsel Sheahen stated that, although working with defendant had been “extremely difficult” and at times defendant “lack[ed] [a] . . . grasp of what [was] going on,” he was “surprised that Dr. Cobum felt there was a 1368 issue” and was uncertain whether defendant’s behavior amounted to incompetence.

The court also observed that defendant had “repeatedly assisted counsel.” Shafi-Nia disagreed with Sheahen and the court, stating that he believed defendant was incompetent. After reviewing the transcript and interviewing defendant, both Cobum and Vicary opined that defendant was competent to stand trial. The trial court declined to conduct a competency hearing. Defendant contends that Dr. Cobum’s somewhat equivocal statements about his competence and statements by defense counsel constituted substantial evidence of incompetence. They do not.

While Cobum testified that defendant was “fragile” and “disturbed,” he also repeatedly acknowledged that defendant was not incompetent to stand trial. Moreover, defendant ignores the opinion of the other defense psychiatric expert, Dr. Vicary, who testified without reservation that defendant was competent. Nor did comments by defense counsel constitute substantial evidence of incompetence. First, defense counsel were not in agreement on the issue of defendant’s competence. While Shafi-Nia claimed that defendant was incompetent, Sheahen, the more experienced criminal defense attorney, did not share this belief.

Second, even if both counsel had agreed that defendant was incompetent, such opinion, standing alone, would not have been dispositive of the issue but only one factor for the trial court to consider in determining whether substantial evidence existed. (People v. Howard (1992) 1 Cal.4th 1132, 1164 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Balanced against the conflicting statements of counsel were the opinions of the experts that defendant was competent and the trial court’s own observation that defendant had repeatedly assisted in his defense, including bringing and arguing his first Marsden motion. (See People v.

Hayes (1999) 21 Cal.4th 1211, 1282 [91 Cal.Rptr.2d 211, 989 P.2d 645] [a defendant’s participation in his trial “demonstrate^] beyond any doubt that he was fully aware of the nature of the proceedings and able to assist counsel”].) We conclude therefore that the trial court did not abuse its discretion in declining to conduct a competency hearing. 2. Informing Jury of NGI Plea Defendant entered dual pleas of guilty and not guilty by reason of insanity (NGI). Where such dual pleas are entered,

section 1026, subdivision (

a) provides for a bifurcated trial. The trial court told counsel it would inform prospective jurors that defendant had entered an NGI plea. Defense counsel objected that it would be prejudicial to do so.

The trial court responded: “I think the jury needs to be advised of the plea and just what they’re facing in this case.” In the voir dire proceedings that followed, two prospective jurors were excused for cause, one because he told the court that, if the prosecution proved defendant guilty, he could not accept an insanity defense, and the other because she did not understand the burden of proof would shift during a sanity phase. Defendant contends that informing prospective jurors about his NGI plea violated the spirit of

section 1026, and various constitutional protections including the privilege against self-incrimination and the presumption of innocence. Nothing in the statute, either expressly or by implication, bars the trial court from informing prospective jurors about a defendant’s NGI plea, and defendant fails to articulate a basis for his claim of statutory violation. His constitutional claims are based on the premise that the jury would have been so prejudiced by having learned of his NGI plea it would have been unable to impartially determine his guilt. A similar claim was made and rejected in People v.

Guillebeau (1980) 107 Cal.App.3d 531 [166 Cal.Rptr. 45]. There, the court remarked: “As to the contention that once the jury learns of the double plea it cannot approach the question of guilt in an impartial way, it is sufficient to cite the following passage from People v.

Leong Fook [(1928)] 206 Cal. 64 at page 78 [273 P. 779]: ‘We must assume that a fair and impartial jury of intelligent men and women would obey . . . instructions and would therefore hold in reserve their ultimate finding upon the issue of the defendant’s sanity until that separate issue and the evidence supporting it had, in the prescribed order of the trial, been committed to it for determination.

We are not to assume that such a jury will cease to be fair and impartial as the cause progresses upon its successive issues, but, on the contrary, we must assume, in the absence of any other showing, that the jury has retained its attitude of fairness and impartiality under the changed procedure as before until the whole cause . . . has been determined.’ ” (Id. at p. 543.) We agree with this analysis. Defendant’s claim that the jury was prejudiced by learning about his double plea at the outset of trial is wholly speculative. There was no error and, necessarily, no constitutional violation. 3.

Denial of Request to Appoint a Third Mental Health Expert After defendant entered his NGI plea, the trial court, pursuant to

section 1027, appointed two psychiatrists to examine him, Dr. Vicary for the defense and Dr. Sharma for the prosecution. At the conclusion of the guilt phase, defense counsel informed the court that defendant was requesting appointment of a psychologist to examine him for the sanity phase. Counsel told the court defendant had “declined to cooperate” with Vicary or Sharma. The trial court refused to appoint a psychologist but without prejudice to renewal of the request. Defendant did not renew his request. Ultimately he withdrew his NGI plea.

Defendant contends the trial court’s refusal to appoint a third mental health expert violated his federal and state constitutional rights, including the right to ancillary defense services as part of the right to effective assistance to counsel. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319-320 [204 Cal.Rptr. 165, 682 P.2d 360].) His claim is without merit. As a procedural matter, defendant failed to argue in the trial court that the denial of a third mental health expert amounted to a violation of his federal constitutional rights. His constitutional claim is, therefore, forfeited. (People v.

Saunders (1993) 5 Cal.4th 580, 590 [20 Cal.Rptr.2d 638, 853 P.2d 1093].) His claim is also substantively without merit. Defendant contends that under California law, he has a federal constitutional right to effective assistance of a mental health expert. Not so. “Neither Ake [v. Oklahoma (1985) 470 U.S. 68 [84 L.Ed.2d 53, 105 S.Ct. 1087]] ... nor the broader rule guaranteeing court-appointed experts necessary for the preparation of a defense [citation], gives rise to a federal constitutional right to the effective assistance of a mental health expert.” (People v.

Samayoa (1997) 15 Cal.4th 795, 838 [64 Cal.Rptr.2d 400, 938 P.2d 2].) In any event, defendant received reasonable ancillary services, and there was no showing that the appointed psychiatrists were unqualified or incapable of administering the psychologist tests defendant now argues were crucial to his defense. The issue, rather, is whether a defendant’s unjustified refusal to cooperate with qualified, court-appointed mental health experts required the trial court to appoint another expert. We think not. (See, e.g., People v.

Messerly (1941) 46 Cal.App.2d 718, 722 [116 P.2d 781] [trial court did not abuse its discretion in refusing to appoint a third mental health expert where two experts had been appointed pursuant to

section 1027, had examined the defendant, were cross-examined and “(n)o objections were made at the trial as to their qualifications”].) 4. Withdrawal of NGI Plea Prior to the commencement of the sanity phase, defendant sought an advance ruling from the trial court to limit the scope of cross-examination if he testified. He wanted to testify only to matters regarding his childhood and his upbringing and to preclude the prosecution from cross-examining him about the murder.

The trial court declined to issue an “advisory opinion” regarding the scope of cross-examination in advance of hearing defendant’s direct testimony. Defendant claimed the court left him “no choice” but to withdraw his plea, but the court refused to accept the withdrawal. Defendant began to withdraw his plea a second time, but then again equivocated, and the trial court again declined to proceed unless defendant’s withdrawal was unequivocal. The prosecutor, citing People v.

Bloom (1989) 48 Cal.3d 1194 [259 Cal.Rptr. 669, 774 P.2d 698], argued that defendant should be allowed to withdraw his NGI plea if there was no doubt as to his sanity and the examining psychiatrists unanimously agreed he was sane. Without objection, the trial court unsealed the reports of Drs. Vicary and Sharma, and read portions of the reports into the record. The court noted that both Vicary and Sharma concluded that defendant was legally sane at the time of the commission of the offenses. Defendant was then allowed to withdraw his NGI plea.

The court stated it was “satisfied that defendant understood the nature of his plea and that he furthermore understood his right to a sanity phase trial, and that he has effectively and knowingly and intelligently given up that right and personally withdrawn his plea of not guilty by reason of insanity.” Defendant argues that the trial court’s refusal to give him an advance ruling on the scope of cross-examination coerced him into withdrawing his NGI plea. He also suggests the withdrawal was involuntary because there were doubts as to his sanity. Neither claim has merit.

Defendant’s withdrawal of his plea was not coerced by the trial court’s adverse ruling on his motion to limit the scope of cross-examination because there was no such ruling. Rather, the trial court properly declined to provide a ruling in advance of defendant’s testimony. “Defendant had no inherent right to a binding advance ruling which would spare him the necessity of raising specific objections before the jury.” (People v. Keenan (1988) 46 Cal.3d 478, 513 [250 Cal.Rptr. 550, 758 P.2d 1081]; see People v.

Sandoval (1992) 4 Cal.4th 155, 178-179 [14 Cal.Rptr.2d 342, 841 P.2d 862].) Regarding his second claim, unlike People v. Merkouris (1956) 46 Cal.2d 540, 553 [297 P.2d 999], upon which defendant relies, there was no conflict among the experts regarding defendant’s sanity at the time of the offense. (See People v. Bloom, supra, 48 Cal.3d at p. 1214 [where there is no doubt in the trial court’s mind of the defendant’s sanity, and the reports of the examining psychiatrists agree he was sane, the defendant should be allowed to withdraw his NGI plea].) Accordingly, the withdrawal of his NGI plea was not involuntary. D.

Juror Issues 1. Failure to Remove Two Jurors for Cause Defendant contends the trial court erred by failing to remove two prospective jurors for cause. Assuming, without deciding, there was error, defendant was not prejudiced in either case. One of the prospective jurors, G.B., did not sit on the jury because she was excused by the prosecution. (People v. Boyette (2002) 29 Cal.4th 381, 419 [127 Cal.Rptr.2d 544, 58 P.3d 391].) The other, L.W., was excused by the defense via a peremptory challenge, but because the defense did not exhaust its peremptory challenges, the claim of error is waived. (People v.

Seaton (2001) 26 Cal.4th 598, 637 [110 Cal.Rptr.2d 441, 28 P.3d 175].) Defendant nonetheless argues he was prejudiced because the prospective jurors were not removed until toward the end of jury selection and were thus able to “intermingle and influence the objectivity of those potential jurors who ultimately become members of [defendant’s] panel.” This is sheer speculation. 2. Wheeler Claim Defendant contends the trial court erred in denying his Wheeler motion (People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]) based on the prosecutor’s use of peremptory challenges to remove women from the jury. “ ‘In [Wheeler] ... we held that the use of peremptory challenges by a prosecutor to strike prospective jurors on the basis of group membership violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16, of the California Constitution. Subsequently, in Batson v. Kentucky (1986) 476 U.S. 79, 84-89 ... the United States Supreme Court held that such a practice violates, inter alia, the defendant’s right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. . . .’” (People v. Catlin (2001) 26 Cal.4th 81, 116 [109 Cal.Rptr.2d 31, 26 P.3d 357].) Women constitute a cognizable group for purposes of Wheeler. (People v.

Crittenden (1994) 9 Cal.4th 83, 115 [36 Cal.Rptr.2d 474, 885 P.2d 887].) “The United States Supreme Court has given this explanation of the process required when a party claims that an opponent has improperly discriminated in the exercise of peremptory challenges; ‘[0]nce the opponent of a peremptory challenge has made out a prima facie case of racial [or gender] discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral [or gender-neutral] explanation (step two).

If a race-neutral [or gender-neutral] explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial [or gender] discrimination.’ (Purkett v. Elem (1995) 514 U.S. 765, 767 [131 L.Ed.2d 834, 115 S.Ct. 1769, 1770-1771].)” (People v. Silva (2001) 25 Cal.4th 345, 384 [106 Cal.Rptr.2d 93, 21 P.3d 769].) Defendant brought four gender-based Wheeler motions. On each occasion, the trial court concluded that a prima facie case had not been made. Only once did the prosecutor offer a comment to justify his use of a peremptory challenge.

When, as here, “a trial court denied a Wheeler motion because it finds no prima facie case of group bias was established, the reviewing court considers the entire record of voir dire. [Citation.] ‘If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’ ” (People v. Davenport (1995) 11 Cal.4th 1171, 1200 [47 Cal.Rptr.2d 800, 906 P.2d 1068], quoting People v.

Howard (1992) 1 Cal.4th 1132, 1155 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Defendant concedes that the prosecution may have been justified in excusing two of the 10 women on whom it used peremptory challenges, J.R. and M.C. We therefore consider only the remaining eight. Prospective Juror M.A. Prospective Juror M.A. stated on her questionnaire that she strongly agreed with the statement that “[r]egardless of the evidence, anyone who intentionally kills another person should never get the death penalty.” She also indicated her belief that life without possibility of parole might be worse for a defendant than death.

Nonetheless, she stated she would be able to return a death sentence. She indicated further that she had had a negative experience with a police officer who gave her a “traffic ticket without cause,” that she or someone close to her had been the victim of a robbery and her niece had been arrested or charged with a crime. Prospective Juror G.B. Prospective Juror G.B. disclosed in camera that her daughter had been raped by a psychiatrist and the case was pending.

When asked whether she could fairly listen to psychiatrists and not be upset about what had happened to her daughter, she replied, “I would have to check it in his record and the credibility and see if they had any previous problems or any incidents, but it’s a very heavy situation.” When asked if she would rather not sit on the case because of the NGI plea, she replied, “Probably so.” Prospective Juror J.W.

Prospective Juror J.W. responded to the question about her general feelings regarding the death penalty that “only God gives and takes away, but honestly, if someone close to me [was] involved, I don’t know the [depth] of my [compassion.]” On the statement, “[r]egardless of the evidence, anyone who intentionally kills another person should never get the death penalty,” she responded, “[t]here is so much involved I don’t know what to answer.” On the other hand, when asked about a spiritual or religious belief pertaining to the death penalty, she wrote, “Eye for an eye [][] Do not befriend a bad person.” However, she agreed that life without possibility of parole might be a worse punishment than death.

Prospective Juror R.M. Prospective Juror R.M. indicated it might be difficult for her to sit on the case because she had children of her own. She also responded, to a question regarding any religious or moral beliefs that would make it difficult for her to sit as a juror, with “the Ten Commandments.” She again referred to the Ten Commandments and “Thou Shalt Not Kill,” in response to the question whether she had any spiritual or religious beliefs that would have a bearing on the death penalty. Nonetheless, she also stated she had voted for the death penalty.

In court, when asked to explain her reference to the Ten Commandments, she replied, “One of the commandments obviously is thou sh

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