THE PEOPLE, Plaintiff and Respondent, v. RICARDO ROLDAN, Defendant and Appellant, 35 Cal. 4th 646

Opinion WERDEGAR, J. Ricardo Roldan was convicted in 1992 in Los Angeles County Superior Court of the first degree murder of Roland Teal (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated) and the robbery and attempted murder of Barney Pipkin (§§ 211, 664, 187).

The jury found true a special circumstance allegation that defendant murdered Teal while engaged in committing a robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and also sustained three lesser enhancement allegations (§§ 12022.5, subd. (a) [personal use of a firearm], 12022, subd. (a)(1) [participation in a felony in which a principal was armed with a firearm], 12022.1 [on-bail enhancement]).

On October 26, 1992, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) After considering the claims raised on appeal, we affirm the judgment in its entirety. I. Guilt Phase A. Facts In 1990, defendant was free on bail while being prosecuted on charges he had participated in a robbery at the Sun Valley swap meet. On June 3 of that year, a different swap meet in San Fernando closed at the usual time of 3:00 p.m.

Manager Barney Pipkin followed his usual procedure, collecting the receipts from the two ticket booths and then returning to the reservation office to count the day’s receipts with assistant manager Judy Adams. Leticia Calderon and Maria Murillo also worked in the office. On this day, the receipts were more than $12,000, mostly in cash, which Pipkin and Adams bundled and placed into seven bags bound together at the top with rubber bands. Pipkin, with Adams’s help, then began loading his car trunk with various items, saving the bags of money for last, as was his custom.

As Adams handed him the bags to load into the car, someone said: “Don’t fucking move.” Adams turned and observed a young Latino male in a long coat, although it was over 100 degrees that day. He had a gun, somewhat obscured by his coat. Adams turned to run, but the gunman pointed the gun at her and repeated: “I said don’t anybody fucking move.” Calderon and Murillo heard this second command. Calderon heard a clicking metal-on-metal sound, as if the gunman had pulled the trigger but the gun had misfired. Calderon and Murillo identified defendant as the gunman.

A second young Latino man, later determined to be 17-year-old Sergio Ayala, approached Pipkin and wrestled the bags of money from him. The two robbers then fled on foot. Pipkin and Calderon shouted that they had been robbed, while Adams returned to the office and called the police. Pipkin got into his car and attempted to follow the robbers. Both Pipkin and Calderon noticed a white Camaro parked in a driveway nearby. Juan Jimenez was working at the swap meet as a security guard when he heard Calderon yelling.

He saw the robber (Ayala) with the bags and gave chase, but the white car, driven by a third robber later identified as Richard Zorns, moved back and forth, blocking his path. Jimenez continued his pursuit, along with Roland “Lucky” Teal, his stepson Dominic Wright, and Ricardo Míreles, all swap meet employees. Teal eventually grabbed the fleeing robber, and Jimenez, Wright, and Míreles arrived to help detain him.

The gunman, whom Jimenez later identified as defendant, reappeared and shouted: “Let my friend[] go or I’m going to start shooting.” People scattered, but Teal simply released the robber, put his hands up, and froze, looking at the gunman. Defendant fired several shots in succession, as if from a machine gun, striking Teal in the chest and arm. Teal later died in the hospital of his wounds. As the robbers prepared to make their getaway in the white car, Pipkin arrived in his car. Defendant, who was standing in the street near the white car, pointed a gun at Pipkin’s car. Pipkin heard a “ping” sound and retreated.

Police found a bullet hole in Pipkin’s windshield and a corresponding bullet hole in the car seat, at chest level, two inches from where Pipkin had been sitting. A second bullet struck the roof of Pipkin’s car. Pipkin provided police with what he believed was the license plate number of the white Camaro: 1 BSX 567. Christine Zoms (hereafter sometimes Christine) owned a white Pontiac Firebird, license No. 2 BSX 544. Her boyfriend at the time was Richard Zorns. Richard Zoms often drove the car. On the day of the crime, Christine returned to their home in the early afternoon to find both Zoms and her car were gone.

She received a telephone call from Zoms later that day, asking her to join him at his mother’s house. Several people were present when she arrived, including Zoms, Ayala, and defendant. They were watching television, drinking, and laughing. They appeared to be discussing the details of the crime. For example, Christine overheard someone say that Ayala had been caught and that someone else had said to release him or he would “bump” him, meaning shoot him. Christine noticed defendant had a briefcase with a lot of money in it; Zoms and Ayala also had bags filled with money. Zoms’s bag had $4,000.

Jude Barrios was defendant’s girlfriend and the mother of his two children. They lived with his mother. Barrios testified that defendant often spoke to her of robbing the San Femando swap meet. He also had discussed it with Zoms and Ayala. In the late afternoon on the day of the crime, she called defendant at Zoms’s mother’s house. Defendant sounded “ecstatic,” “on cloud nine.” She drove to the house and picked him up; he told her he had robbed the swap meet. The next day, they went to the courthouse together to await the jury verdict in the Sun Valley swap meet robbery case.

While there, he again confessed to her that he had robbed the San Femando swap meet and, reading a press account of Teal’s killing, told Barrios the newspaper

article had incorrect details. Later, he told her a “huge” Black security guard held Ayala and that he had shot the guard “because he was the only one who could identify him.” That evening, Richard Zoms and Sergio Ayala came over to visit defendant; Barrios overheard them laughing and joking about the crime. Police arrested defendant the next day. He called Barrios from jail and told her where he had hidden his share of the money stolen from Pipkin. She found a briefcase with more than $3,000 and, as instructed, gave some money to defendant’s mother and spent the rest.

She admitted she had lied for defendant in his earlier robbery trial. She also admitted the prosecution had granted her immunity in the present case and that defendant had told her if she testified against him he would not hurt her, but would hurt someone in her family. Defendant was convicted in the earlier Sun Valley robbery case. Zoms and Ayala were tried separately and convicted of robbery and murder for their roles in the crimes at the San Fernando swap meet. The defense in the instant case rested without calling any witnesses. B. Pretrial Issues 1.

Denial of a Continuance Defendant first contends the trial court’s denial of his request for a continuance, made approximately two weeks before the scheduled start of the trial, violated his federal and state constitutional rights to effective assistance of counsel, to a fair trial, to confront and cross-examine the witnesses against him, to due process of law, and to a reliable capital sentencing determination. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art.

I, §§ 7, 15, 16, 17.) As we explain, although the denial of a continuance can, under some circumstances, deprive a criminal defendant of these important constitutional rights, the circumstances in this case fail to rise to that level. The trial court, therefore, did not abuse its broad discretion by denying the continuance. a. Facts Trial Attorney Richard Gomez-Hemandez was appointed to represent defendant on April 11, 1991, and appeared in court for defendant’s arraignment on that day. The proceedings were put over several times, often at the request of counsel.

On November 8, 1991, counsel stated he would “probably” be ready to proceed in 45 days. When, on January 9, 1992, scheduling problems developed due to the court’s previous decision to try defendant jointly with Zoms and Ayala, the court granted Zoms and Ayala’s motion to sever their cases from defendant’s case. On March 6, 1992, defense counsel explained that he was engaged representing a defendant in a different capital trial, People v. Carrion, that would take at least 45 days, excluding a possible penalty phase trial. He asked the trial court not to

schedule defendant’s case to begin until “at least a month” after the end of the Carrion case. The trial court agreed. Back in court on April 24, 1992, counsel explained that he was engaged in plea negotiations with the prosecutor in defendant’s case and hoped to reach a mutually agreeable plea agreement as a result of those negotiations. Both sides agreed to a continuance to May 22. At a status conference on May 21, 1992, the trial court announced that, barring a plea, it expected the matter to go to trial and asked the parties whether July 28 was a viable trial date.

When both sides agreed, the trial court set the matter as a “must go” for July 28, 1992. The parties were back in court for a status conference on June 30, 1992. The court reminded the parties that it considered the case a “must go.” Defense counsel explained that the plea negotiations had been unsuccessful and that the district attorney’s office refused to accept any plea that did not include the death penalty. When counsel communicated that information to defendant, “it was a very, very emotional time for Mr.

Roldan. [|] I continued to speak with him for approximately a half-hour after I informed him of that fact and Mr. Roldan did not speak any sentences that were coherent to me.” Counsel also stated he had spoken to defendant on June 25 and he was similarly incoherent. Counsel then declared he had a doubt as to defendant’s competence and requested appointment of a psychiatrist pursuant to

section 1368. The trial court stated it did not doubt defendant’s competence, but offered to appoint a psychiatrist to examine defendant and to render a report to counsel concerning defendant’s mental state. Counsel accepted this offer and acquiesced to setting a status conference for July 13. By the time the parties met in court on July 13, 1992, Dr. Michael Maloney, a clinical psychologist, had twice interviewed defendant. In an in camera hearing, the prosecutor opined that Dr. Maloney was preparing a report that would conclude that defendant was competent to stand trial. In addition, Dr.

Maloney had informed the prosecutor that in order to avoid trial, defendant had said he planned to kill the prosecutor. (See Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334].) Defense counsel confirmed the prosecutor’s story. Back in court on July 20, 1992, defense counsel indicated he would not be ready to proceed on July 28, the intended trial date.

The court reminded counsel that jurors had already been ordered for “August 4th, day seven of ten.” Counsel asked the trial court to set a status conference for July 23, saying: “If I were asked at this point whether or not I would be ready to proceed within the near future, I would say yes, I would be ready to proceed in the near future, but the near future is not a trial date on August 4th.” The court replied: “I made this a must go basis. I need a little more.” Counsel stated he was “prepared to make the necessary statements for the court,” but asked to do so at a status conference on July 23.

With counsel’s acquiescence, the court set a status conference for July 22, but added: “Just so you are aware, when I say ‘no further continuances,’ I do it rarely because when I do it, I mean it.” On July 22, 1992, defense counsel moved for a continuance. Neither the prosecutor nor defendant was present. Counsel explained that when he told defendant the prosecution intended to seek the death penalty and would not accept a plea to a lesser charge, “I could see an immediate and substantial impairment on my ability to represent him to the effect that Mr. Roldan became entirely silent.

I could see that he was extremely angry and upset. I assume that that was just as a result of me bringing him the news [that a plea to less than the death penalty would not be accepted], [][] Since the time of [that] decision, I had seen Mr. Roldan about 14 or 15 different times. On each of those occasions he has refused to speak with me. I have attempted to elicit the help of family members. I don’t find his family members to be particularly helpful with regard to establishing lines of communication.” In addition, defense counsel revealed that he too had received a Tarasoff warning from Dr.

Maloney and considered the threat to be real. He indicated he had taken precautions to protect his wife and children. Defense counsel considered declaring a conflict and asking the court to appoint someone else to represent defendant but concluded he could not “in good conscience ask somebody else to take responsibility and put themselves in a position like mine.” He averred: “I believe in my heart that Mr. Roldan is extremely distraught at this time. I also firmly believe that I will be able to work through this situation and provide him effective assistance of counsel.

I don’t see that happening by August the 4th. [f] I am not asking you to relieve me at this time because I believe that I would have the best opportunity to manage this case until its completion. I don’t want somebody else to be put in this situation, and I do not believe that my effectiveness would be overshadowed by this particular event.” The trial court denied the request for a continuance. Citing People v. Hardy (1992) 2 Cal.4th 86 [5 Cal.Rptr.2d 796, 825 P.2d 781], the court found “that defendant is merely trying to manufacture a possible conflict of interest.

I can foresee that in this case he is trying to manufacture a possible delay.” (See id. at p. 138.) “[I]f it were not for you, ... it would be against attorney X, or attorney Y, or attorney Z, and that if not now, then the next trial date and the next one.” Defense counsel “implore[d]” the court to reconsider, seeking time to repair his relationship with defendant. He noted that defendant’s brother was capable of carrying out the threat.

Counsel sought 45 additional days, claiming that the denial of a continuance compromised him “beyond effectiveness.” Claiming that the threat to his life “is going to play on my mind night and day,” counsel claimed: “I cannot, I am not objective at the present time. And if I am not objective, how effective can I really be for Mr. Roldan?” The trial court asked counsel: “What assurance can you give me, if any, that in 45 days this threat will not be as serious?” Counsel replied that he “will do everything in my power to establish my relationship with Mr. Roldan.

I can tell you, Judge, that I will devote literally all of my time to getting Mr. Roldan to cooperate. That’s the only way that I can ameliorate a threat.” Later, defense counsel stated: “Can I provide Mr. Roldan with effective assistance of counsel? Yes, I believe I can provide him with effective assistance of counsel if I am given this additional time. Otherwise, I am left to only one, to one subject, which is [to] declare a conflict right now because, subjectively, I am not in the frame of mind to be able to say that nothing else would impair my ability to represent him.

I believe this to be a real threat, [f] I cannot say that nothing would affect my ability to represent Mr. Roldan, but I can assure you, sir, that if I was given this additional time, I believe that I can get Mr.

Roldan to cooperate with me and I believe that the threat that has been articulated by the psychologist to both [the prosecutor] and myself would be minimized.” The trial court declined to reconsider its previous denial of a continuance, explaining: “I have to tell you that based upon what you told me, it appears that you do agree that your client is subject to manufacturing his own reasons for either a conflict, apparent conflict or delay.

I am not. . . convinced that in 45 days the matter will be assuaged or that is such to be put to rest.” “I accept what you are saying that you are acting in good faith, and I am not questioning your integrity at all. I feel your client is trying to manufacture a delay, that’s all.” Defense counsel immediately challenged the trial court’s denial of a continuance, unsuccessfully seeking a pretrial writ of mandate or prohibition and a stay of trial from the Court of Appeal. (Roldan v.

Superior Court, July 28, 1992, B068672.) On August 7, 1992, this court stayed the trial, which was then in jury selection, but ultimately denied relief. (Roldan v. Superior Court, Aug. 20, 1992, S027967.) Counsel renewed his request for a continuance several more times during this period, but the trial court denied the request each time. Jury selection eventually resumed, and opening statements finally commenced on September 1, 1992, approximately 40 days after the trial court had denied a continuance on July 22. b.

Discussion A “trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial. (§ 1050, subd. (e) . . . .) A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” (People v. Jenkins (2000) 22 Cal.4th 900, 1037 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) Such discretion “may not be exercised so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.” (People v.

Sakarias (2000) 22 Cal.4th 596, 646 [94 Cal.Rptr.2d 17, 995 P.2d 152].) “To effectuate the constitutional rights to counsel and to due process of law, an accused must . . . have a reasonable opportunity to prepare a defense and respond to the charges.” (People v. Bishop (1996) 44 Cal.App.4th 220, 231 [51 Cal.Rptr.2d 629].) Applying that law here, we find the trial court did not abuse its broad discretion when it denied defendant’s July 22 request for a continuance as well as the renewed requests made in the remaining pretrial period.

At the time of the July 22 request, defense counsel had represented defendant for more than 15 months. The trial court had set a July 28 trial date and had given counsel two months’ notice of it, saying the case was a “must go.” In an abundance of caution, the court accommodated counsel by appointing a mental health expert to examine defendant before trial, although the court expressly stated it did not doubt his competence to stand trial. Counsel’s reasons for seeking a delay included defendant’s refusal to cooperate with him and his threats against him.

It is settled law, however, that the denial of a request for a continuance, when such request is premised on an accused’s persistent failure to cooperate with counsel and his deliberate refusal to assist counsel, is not arbitrary. (People v. Jenkins, supra, 22 Cal.4th at pp. 1037-1038; People v. Grant (1988) 45 Cal.3d 829, 844 [248 Cal.Rptr. 444, 755 P.2d 894].) Although counsel’s self-proclaimed inability to provide effective assistance without a continuance is a cause for concern, counsel did not seek to withdraw at that time.

Nor could counsel explain why an additional 45-day delay would improve the situation to a point where defendant would cease issuing threats of violence against him and would instead begin cooperating with him. Given the long period of time the case had been pending, the trial court justifiably was concerned that defendant would threaten any subsequent lawyer and thereby attempt to delay his trial indefinitely.

The trial court expressed this very sentiment, saying: “if it were not for you, ... it would be against attorney X, or attorney Y, or attorney Z, and that if not now, then the next trial date and the next one.” Under the circumstances, the trial court did not abuse its discretion in concluding that counsel had had a fair opportunity to prepare for trial and that defendant was merely attempting to manufacture delay. Although neither party cites any legal authority involving an accused’s attempt to delay trial by threatening his lawyer with violence, no authority is necessary.

That the administration of justice would suffer if one accused of a serious crime could postpone his trial indefinitely merely by issuing a series of threats to his court-appointed attorney is obvious. Although we sympathize with defense counsel (and the prosecutor), who were required to work under such stressful conditions, we depend on our trial judges to discern whether such threats are genuine or not, whether such threats have rendered trial counsel unable to continue, and whether granting a continuance would ameliorate the situation.

The trial court here acted well within its wide discretion in ruling that defendant’s threat to counsel was merely an attempt to delay the trial further. Finding the trial court did not abuse its discretion by denying a continuance, we also reject defendant’s further claims that the court’s ruling violated various of his constitutional rights. Assuming without deciding these claims were preserved for appellate review despite defendant’s failure to make timely and specific objections on constitutional grounds (People v.

Champion (1995) 9 Cal.4th 879, 908, fn. 6 [39 Cal.Rptr.2d 547, 891 P.2d 93]), our conclusion the trial court acted within its broad discretion in denying a continuance forecloses a constitutional challenge (People v. Jenkins, supra, 22 Cal.4th at pp. 1039-1040). 2. Alleged Conflict of Counsel Defendant next contends he is entitled to reversal of his judgment of conviction because defense counsel labored under a conflict of interest stemming from defendant’s threats against counsel’s life. a. Facts As explained, ante, defense counsel requested a continuance on July 22, 1992.

At that same hearing, he expressly declared that he was not asking to be relieved. “I don’t want somebody else to be put in this situation, and I do not believe that my effectiveness would be overshadowed by this particular event.” Later at the same hearing, counsel stated: “I believe I can provide [defendant] with effective assistance of counsel if I am given this additional time. Otherwise, I am left to only one, to one subject, which is [to] declare a conflict right now because, subjectively, I am not in the frame of mind to be able to say that nothing else would impair my ability to represent him.

I believe this to be a real threat. HQ ... I am not asking you to appoint another lawyer and for me to get off the case, because my conscience and my moral dictates won’t allow me to subject somebody else rather than myself.” (Italics added.) Later at the same hearing, he averred: “I cannot be, I cannot provide him effective assistance of counsel right now. I want to remain being Mr. Roldan’s lawyer because I believe that the threat would be lessened to me.” (Italics added.) The court denied the request for a continuance.

Back in court on August 20, 1992, following this court’s denial of writ relief and dissolution of a previously ordered stay of trial, defense counsel renewed both his motion for a continuance and his claim of a conflict of interest: “I believe there exists the potential, not the potential, I should say there exists a conflict between Mr.

Roldan and myself, which would materially and irreparably affect the attorney-client privilege [sic: relationship?].” In response to the trial court’s questions, counsel affirmed that he was declaring a conflict for the same reasons he explained in camera on July 22, that is, defendant’s threat to kill him. The trial court then ruled: “The reasons you stated before were insufficient then, they are insufficient now. The fact that you are now inferring a conflict of interest, when you chose specifically to deny that before, does not dissuade me.

I am not saying this is a last minute ploy to inject error into this case. I do not accept this as a conflict of interest, and the motion is denied.” The guilt phase portion of the trial began with the prosecutor’s opening statement on September 1, 1992. As noted in more detail, post, defendant thereafter twice moved to have his attorney relieved as appointed counsel, once on September 3 and again on September 15. Both motions were denied. Defense counsel raised the conflict issue again on September 16, 1992. Noting in camera that a second mental health expert, Dr.

Ronald Siegel, had reported that defendant again threatened defense counsel’s life, counsel stated: “Your honor, I don’t know of any way that I can effectively represent Mr. Roldan if, in fact, . . . there [are] threats against my life pending over my head. But at any time that I endeavor to secure the assistance of others in order to provide Mr. Roldan with effective assistance of counsel, those people are told literally that Mr.

Roldan does not want to cooperate and that the threats that I have indicated [have been] made. [][] I feel that there is such a conflict, such a breakdown in the attorney-client relationship, that at this point I am left with no other choice but to declare a conflict. I believe that the court is well aware of this problem. Its genesis began with statements to Dr.

Maloney.” Then: “I don’t believe I can exercise my independent judgment as to what can and cannot be done and what should and should not be done if I have these threats over my head.” After listening to counsel explain himself, the trial court denied the motion: “I can tell you at this time that there is nothing in the record to reflect the breakdown of the attorney-client relationship of the magnitude to jeopardize the defendant’s right to effective assistance of counsel. [j[] You are doing an exemplary job. You are making those points that you are seeking to make.

Your client, and I mentioned this before, may be seeking to run this trial, as he stated himself, in such a way that he either wants a mistrial or should try to inject error into this proceeding, [f] Your client yesterday stated during the Marsden hearing that he wants to get to the penalty phase as quickly as possible. You are doing your ethical duty to see that that is not so. [][] The motion to be relieved, if that’s what it is, is denied for the reasons I have stated.” b. Discussion “The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and

article I,

section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.” (People v. Cox (2003) 30 Cal.4th 916, 948 [135 Cal.Rptr.2d 272, 70 P.3d 277].) “ ‘Conflicts of interest may arise in various factual settings. Broadly, they “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.” ’ ” (People v.

Hardy, supra, 2 Cal.4th at p. 135.) Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. (Cuyler v. Sullivan (1980) 446 U.S. 335 [64 L.Ed.2d 333, 100 S.Ct. 1708].) This presumption arises, however, “only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 692 [80 L.Ed.2d 674, 104 S.Ct. 2052], citing Cuyler v.

Sullivan, supra, at p. 348.) An actual conflict of interest means “a conflict that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.” (Mickens v. Taylor (2002) 535 U.S. 162, 171 [152 L.Ed.2d 291, 122 S.Ct. 1237], italics omitted.) “Under the Sixth Amendment of the federal Constitution, reversal is required if a defendant, over a timely objection, is forced to continue with conflicted counsel.” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1685 [53 Cal.Rptr.2d 282], overruled on other grounds in People v.

Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986].) To obtain a reversal for this type of error, “the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.” (People v. Bonin (1989) 47 Cal.3d 808, 837-838 [254 Cal.Rptr. 298, 765 P.2d 460]; see generally Mickens v.

Taylor, supra, 535 U.S. 162.) “ ‘To show a violation of the corresponding right under our state Constitution, a defendant need only demonstrate a potential conflict, so long as the record supports an “informed speculation” that the asserted conflict adversely affected counsel’s performance. [Citations.]’ (People v.

Frye (1998) 18 Cal.4th 894, 998 [77 Cal.Rptr.2d 25, 959 P.2d 183].) ‘But “[permissible speculation giving rise to a conflict of interest may be deemed an informed speculation . . . only when such is grounded on a factual basis that can be found in the record.” ’ [Citations.] “To determine whether counsel’s performance was ‘adversely affected,’ we have suggested that [Cuyler v.] Sullivan[, supra, 446 U.S. 335,] requires an inquiry into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record.

But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (

i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.” (People v.

Cox, supra, 30 Cal.4th at pp. 948-949.) Defendant essentially complains that due to his threat to kill defense counsel, counsel became so concerned for his safety that he “pulled his punches” or otherwise conducted a less-than-vigorous defense, to defendant’s detriment, that is, counsel acted to ensure his personal safety and thereby deprived defendant of the undivided loyalty a criminal defendant should expect from his legal representative.

There is something perverse in this argument, for although defendant unquestionably was entitled to the effective assistance of a conflict-free attorney, defendant’s own behavior created the alleged conflict and threatened to undermine his lawyer’s effectiveness. We are reluctant to recognize a rule of law that would empower criminal defendants to inject reversible error into their trials by simply threatening their lawyers. (See People v.

Linares (2004) 2 N.Y.3d 507, 512 [813 N.E.2d 609, 780 N.Y.S.2d 529, 532] [“That defendant backed his objections to counsel’s advice with the threat of violence does not” require replacement with a substitute attorney. “Substitution of counsel is an instmment designed to remedy meaningful impairments to effective representation, not to reward truculence with delay”].) The situation is analogous to one where a criminal defendant attempts to create a conflict by filing a lawsuit against his lawyer. Faced with that situation in People v.

Horton (1995) 11 Cal.4th 1068 [47 Cal.Rptr.2d 516, 906 P.2d 478], we concluded the defendant was not entitled to relief. “[T]he trial court properly determined, in the exercise of its discretion, that the filing of the complaint did not create any actual conflict of interest necessitating the withdrawal of appointed counsel.

Although being named as a defendant in a collateral lawsuit by one’s client may place an attorney in a situation in which his or her loyalties are divided [citation], a criminal defendant’s decision to file such an action against appointed counsel does not require disqualification unless the circumstances demonstrate an actual conflict of interest. [Citation.] A contrary holding would enable an indigent criminal defendant to challenge each successive appointment of counsel, delaying indefinitely the criminal prosecution.” (Id. at p. 1106, second italics added.) We emphasize that no rigid rule exists to preclude relief whenever a claimed conflict of interest with counsel originates in a defendant’s own actions.

We rely in the first instance on our trial courts to determine whether a criminal defendant is represented by an attorney truly laboring under conflicting interests or whether the defendant has simply engineered an apparent conflict in an attempt to delay the ultimate moment of truth, the jury’s verdict. Here the court reasonably concluded that defendant, by threatening counsel, was simply trying to delay his trial.

Thus, in denying a requested continuance based on defendant’s threat to counsel, the court, speaking to defense counsel, opined: “[I]t appears that you do agree that your client is subject to manufacturing his own reasons for either a conflict, apparent conflict or delay.

I am not . . . convinced that in 45 days the matter will be assuaged or that is such to be put to rest.” The court concluded: “I feel your client is trying to manufacture a delay, that’s all.” When counsel later renewed the claim, the court, after eliciting from counsel that the circumstances had not changed, denied a continuance, saying: “The reasons you stated before were insufficient then, they are insufficient now.” The record adequately supports the court’s assessment of the situation.

Defendant contends defense counsel’s views were more relevant than the trial court’s assessment of whether an actual conflict existed. “A criminal defense attorney “is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial” ’ ” (People v. Hardy, supra, 2 Cal.4th at p. 137), and his or her opinion is “a significant factor when determining whether an actual conflict existed” (ibid.).

But here counsel pronounced at the July 22 hearing that he simply needed additional time to repair his relationship with defendant in order to facilitate preparation of a defense, thereby implying no debilitating conflict existed. A month later, when counsel for the first time announced he was burdened by a conflict of interest as a result of defendant’s threat against him, he admitted no new grounds had emerged that had not been discussed at the earlier hearing. In other words, there was no new threat.

Defendant simply was refusing to communicate with counsel, hampering counsel’s efforts and possibly undermining his own defense. Although by September 16 defense counsel had unequivocally declared a conflict due to defendant’s threats and continued refusal to cooperate, the trial court reasonably found “nothing in the record to reflect the breakdown of the attorney-client relationship of the magnitude to jeopardize the defendant’s right to effective assistance of counsel. [j[] You are doing an exemplary job. You are making those points that you are seeking to make.

Your client . . . may be seeking to run this trial, as he stated himself, in such a way that he either wants a mistrial or should try to inject error into this proceeding.” Although we do not wish to minimize the stress under which counsel was operating, the trial court’s conclusion was reasonable and supported by the evidence.

Considering all the circumstances, we agree with the trial court that defendant was attempting to make good on his intention to avoid trial at all costs; he was attempting to disrupt and delay the trial by threatening his court-appointed lawyer, by threatening the prosecutor, and by refusing to speak to counsel. Defendant’s meritless Marsden and untimely Faretta’ motions, discussed post, are but additional elements of his effort to delay the inevitable.

These were difficult circumstances under which to work, to be sure, but they fall short of demonstrating defense counsel was burdened by either an actual or potential conflict of interest. 3. The Trial Court’s Failure to Intervene to Ensure Defendant Was Represented by Conflict-free Counsel Defendant next contends the trial court failed in its duty to conduct an independent inquiry into the alleged conflict of interest created by defendant’s threat of violence.

He contends the trial court’s duty to inquire was all the more important because he had been excluded from the hearings in which defense counsel and the trial court discussed the issue. Although a trial court has the duty to inquire when it knows or reasonably should know a conflict of interest exists between client and lawyer (People v. Seaton (2001) 26 Cal.4th 598, 642 [110 Cal.Rptr.2d 441, 28 P.3d 175]), the court fulfilled this obligation by holding the hearings on July 22, August 20, and September 16, 1992.

Our examination of the trial record confirms the trial court conducted a meaningful inquiry into the issue. We thus reject defendant’s claim that the court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, as well as his claim that the court violated his rights under “parallel provisions” of the California Constitution. 4.

Denial of Marsden and Faretta Motions During the guilt phase, at the same time defense counsel sought to be relieved due to an alleged conflict of interest, defendant sought to relieve counsel. (Marsden, supra, 2 Cal.3d 118.) In addition, defendant sought to represent himself. (Faretta, supra, 422 U.S. 806.) As we explain, the trial court did not abuse its discretion when it denied these requests. a. Facts Defendant made his first Marsden motion on September 3, 1992, early in the guilt phase.

After the prosecutor left the courtroom, defendant said: “I just want to say that I want to fire my lawyer because he don’t listen to what I tell him. I tell him I already went through this trial before. I told him I want to take a deal for life [imprisonment] without [the possibility of parole], I can’t plead guilty to the death penalty. I told him don’t be talking to the witness, my family. He come tell me he been talking to Jude [Barrios], my family. If not, I’ll be my own lawyer if he is going to be like that.

He is doing the same thing I can do.” “You know, if I am going to get railroaded, I might as well railroad myself.” Defense counsel corroborated defendant’s claim that he had disobeyed defendant’s request that he not speak to defendant’s family. Citing In re Horton (1991) 54 Cal.3d 82 [284 Cal.Rptr. 305, 813 P.2d 1335], the trial court denied defendant’s motion to fire his lawyer, noting that counsel was in charge of trial strategy and that counsel was doing an “exemplary job.” The court also found the motion was untimely.

To the extent defendant’s motion was also for self-representation, the court ruled that his statement that he would “rather represent myself’ was not an unequivocal assertion of his right to self-representation and impliedly denied it on that basis. Defendant made his second Marsden/Faretta motion on September 15, 1992, the fifth day of the guilt trial. Addressing the court in the prosecutor’s absence, defendant stated: “I wanted to ask you again, because I am not sure if you understand the first time when I asked you about my attorney, I don’t want him to be doing this already, I guess the defense for me.

All I just want to wish is hurry up and get to the penalty phase because I don’t want that. I keep on telling him that I don’t, you know, want him doing certain things, [f] I was informed by the court that, I guess, he is my lawyer, and, I guess, this is my case, and I just don’t want him, I wish to fire him. I’d rather go pro per if I could.” Defendant then stated that he would like two attorneys who were death'penalty specialists. Addressing the Marsden motion first, the trial court denied it, reiterating that defense counsel was in charge of tactical decisions.

To the extent defendant was seeking to replace counsel with other, more qualified attorneys, the trial court denied that motion as well, noting counsel was a “death penalty specialist [who] knows what he is doing.” The court then turned to defendant’s Faretta motion and asked him to elaborate on his reasons. Defendant replied: “I feel that I might be able to do a better job. That’s what I want to do. I don’t want to cross-examine. I don’t want to question no witness.

I refuse to talk to any investigators or doctors or whatever that can be, you know.” The trial court first noted the motion was untimely, and then denied it on the merits after considering the factors set forth in People v. Windham (1977) 19 Cal.3d 121 [137 Cal.Rptr. 8, 560 P.2d 1187]: “One, I have to determine the quality of counsel’s representation of the defendant. And I have to say at this time it’s been excellent, [f] Two, defendant’s prior proclivity to substitute counsel. I do note that some days ago defendant made the same motion, [f] Three, the reasons for the request.

I do note that right now the defendant stated that he just wants to get to the penalty phase as soon as possible, [f] Fourth, the length and stage of the proceedings. This trial is many years old. We are in the midst of the People’s case; it appears that the People are soon to rest, [f] Five, the disruption and delay which might reasonably be expected to follow the granting of such motion.” After eliciting from defendant that he would require a continuance to prepare for trial, the court resumed placing its reasoning on the record: “All right, this would cause quite a dismption.

It would cause a mistrial, at the very least, the suspending of the trial for sometime.” Observing that numerous appellate decisions have applied these factors set forth in Windham, the court denied defendant’s Faretta motion. Defendant’s third and final combination Mar sden!Faretta motion came on September 25, 1992, after the prosecutor had completed the first portion of his closing argument for the guilt phase of trial. After noting the motions were untimely, the trial court invited defendant to speak.

The following colloquy then occurred: “THE DEFENDANT: I just want you to reconsider that I wish to fire my attorney. You know, this case is over with already and there’s no doubt in no one’s mind about guilty or anything like that. I don’t want my attorney to speak on these closing arguments. “I’m down there with the pro pers. I’m right there in high power with all the pro pers, co-counsels. I want to speak. Do my last closing arguments if I could. If not go pro per or co-counsel in any way. I want to address the jury. “You know—you know, this meeting, I don’t have no defense. What’s wrong with just doing this?

I can’t hurt no one else. This is it right here. I have no defense. I might as well, you know, go by myself. He can’t say nothing for me to defend me. This case is over with. “I just wish to say to the jury, you know, my closing arguments. I don’t want him to speak for me. “THE COURT: The problem that you told me right off the bat is that you are down there with the pro pers. These are people that are giving you bad advice. They are giving you bad advice. “The case, as far as . . . this stage of the trial, this may be the last part of the trial. . . .

There’s only one thing left for your attorney to do and that’s to argue the matter. He’s well versed and we talked about that before. [][] . . . [<][] “THE DEFENDANT: Your honor, there’s nothing to argue. Why should—he cannot say anything to say—I tried to plead guilty before in the past. “THE COURT: What do you plan on doing, standing up, looking at the jury and say, ‘convict me of everything’? “THE DEFENDANT: If that’s what I have to do. There’s no reason to go through none of this out here. I wanted to plead guilty long ago. He refused. “I just want life [imprisonment] without [possibility of parole].

You probably know yourself that ain’t no joke. There ain’t no difference. I just want you to let me live my life in jail. Death penalty—life without. I just want to live. “There’s no reason, you know, you should know yourself how it is in there, you know, just by sitting here and just, you know, sending everybody up state or people taking deals or whatever, there’s no guarantee of nothing up there. It’s life without. I’m going to high security prison. You know, that’s a war zone up there. You know that. There’s no guarantee.

I might get killed up there anyway, before I even—how long I would make it in death row, whatever. I just want life without. You know, there’s no argument to tell the jury.” The court denied the motions. “First of all, we have a number of factors to discuss. The first one is the defendant asking that counsel be replaced.

Again, it is untimely, and can be denied on that basis alone, [f] However, even if it were not [un]timely, again I heard the comments of [defense counsel] and he had diligently, and I stress that, advocated a defense and did everything in his power for the defendant.” The court then denied defendant’s request to argue his case personally, noting: “[A] trial court may authorize [such personal participation in the case by a represented defendant] upon a substantial showing that it will promote justice and judicial efficiency in a particular case. [][] In this case the defendant told me basically what he wants to argue, which is in a sense to convict him of everything as charged.

I do not feel that that is a substantial showing that it will promote justice and judicial efficiency in the particular case, [f] The defendant’s motion, if that’s what it is, to address the jury is likewise denied as he is represented by competent counsel.” Finally, turning to defendant’s Faretta motion, the trial court once again addressed the factors set forth in People v. Windham, supra, 19 Cal.3d 121, and concluded: “Based upon the totality of the circumstances I find that the motion is untimely.” b.

Discussion of Marsden Motion Defendants in capital cases often express dissatisfaction with their appointed counsel, affording us ample opportunity to address the contours of the rule set forth in Marsden, supra, 2 Cal.3d 118.

The rule is well settled. “ ‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” (People v.

Fierro (1991) 1 Cal.4th 173, 204 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) The decision whether to grant a requested substitution is within the discretion of the trial court; appellate courts will not find an abuse of that discretion unless the failure to remove appointed counsel and appoint replacement counsel would “substantially impair” the defendant’s right to effective assistance of counsel. (People v. Smith (2003) 30 Cal.4th 581, 604 [134 Cal.Rptr.2d 1, 68 P.3d 302].) Applying these standards here, we conclude the trial court acted well within its discretion by denying all three of defendant’s Marsden motions.

At the outset, we agree with defendant that, to the extent any part of the trial court’s decision to deny the three Marsden motions was based on untimeliness, it erred. A criminal defendant is entitled to raise his or her dissatisfaction with counsel at any point in the trial when it becomes clear that the defendant’s right to effective legal representation has been compromised by a deteriorating attorney-client relationship.

Because the trial court heard defendant’s complaints in connection with each of the three Marsden motions, however, any reliance on the purported untimeliness was harmless under any standard. Turning to the merits, we find no abuse of discretion. First, there was sufficient evidence supporting the trial court’s conclusion that defense counsel was providing adequate legal assistance.

Responding to the first two Marsden motions, the trial court explicitly noted that counsel was doing an “exemplary job,” was a “death penalty specialist,” was doing an “excellent” job, and was a “diligent” advocate on defendant’s behalf. Defendant argues these characterizations of counsel’s skill and experience were incorrect, noting counsel did not make an opening statement at the guilt phase and did not call any defense witnesses at the guilt phase. But these events had not yet occurred at the time of defendant’s first two Marsden motions and thus were unknown to the trial court.

More to the point, defense counsel had a difficult task at the guilt phase because the evidence of defendant’s guilt was overwhelming. Although defense counsel did not call any witnesses for the defense, he raised on cross-examination the possibility that defendant was intoxicated when he committed the crime and that the shooting was an accident. Second, the trial court acted within its discretion when it concluded the purported conflict between defendant and his lawyer was not “ ‘such an irreconcilable conflict that ineffective representation is likely to result.’ ” (People v.

Fierro, supra, 1 Cal.4th at p. 204.) As the record shows, defendant himself created the conflict. Defendant’s dissatisfaction with counsel stemmed from counsel’s failure to convince the district attorney to agree to a plea bargain sparing defendant’s life and counsel’s decision to contact defendant’s family against his express wishes. These incidents, while evidently disquieting to defendant, do not rise to the level of a substantial impairment of his right to the effective assistance of counsel.

To begin with, counsel actively sought a plea bargain to allow defendant to plead guilty in return for a sentence of life imprisonment, but was rebuffed by the district attorney’s office.

Moreover, counsel’s decision to contact defendant’s family over his express wishes was a tactical decision counsel was entitled to make. “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. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ ” (People v.

Welch (1999) 20 Cal.4th 701, 728-729 [85 Cal.Rptr.2d 203, 976 P.2d 754].) The mitigating evidence presented in defendant’s defense at the penalty phase is an indication of the wisdom of counsel’s tactical choice in this regard. Although defendant emphasizes that defense counsel himself several times asserted that he could not be an effective advocate, those assertions stemmed in part from defendant’s refusal to speak to counsel.

As we explained, ante, a criminal defendant cannot willfully refuse to cooperate with his appointed attorney, thereby possibly hampering his own defense, and then claim he is entitled to a new attorney because counsel has not been effective. The trial court reasonably deduced from the circumstances, including defendant’s serial Marsden motions and his considered choice not to speak to counsel, that defendant was merely attempting to inject error and delay into the proceedings. Under the circumstances, we find the trial court did not abuse its discretion by denying the three Marsden motions.

We further find no Sixth Amendment violation and reject defendant’s attempt to equate the denial of his Marsden motions with the outright denial of counsel. c. Discussion of Faretta Motion The trial court also properly denied defendant’s various requests to represent himself. The right to eschew a professional legal advocate and represent oneself in a criminal trial, first recognized by the United States Supreme Court in the seminal case of Faretta, supra, 422 U.S. 806, is one aspect of the constitutional right to present a defense under the Sixth Amendment to the federal Constitution (People v.

Koontz (2002) 27 Cal.4th 1041, 1069 [119 Cal.Rptr.2d 859, 46 P.3d 335]), and the erroneous denial of this right is reversible per se (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [79 L.Ed.2d 122, 104 S.Ct. 944]; People v. Dent (2003) 30 Cal.4th 213, 217 [132 Cal.Rptr.2d 527, 65 P.3d 1286]).

The right, however, is not absolute. “To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. [Citation.] ‘The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words.

Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion.

A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.’ [Citation.] A reviewing court, in determining whether a motion for self-representation is unequivocal, is not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation.” (People v. Barnett (1998) 17 Cal.4th 1044, 1087 [74 Cal.Rptr.2d 121, 954 P.2d 384].) These limitations on the constitutional right to self-representation are particularly relevant here.

The first of defendant’s three Faretta motions was made on September 3, shortly after the guilt phase had begun. He complained to the trial court that defense counsel had contacted his family against his wishes and stated that “I’ll be my own lawyer if he is going to be like that.” (Italics added.) The trial court denied the Faretta request because it was not unequivocal. We have emphasized that a Faretta request must be unequivocal. (People v.

Marshall (1997) 15 Cal.4th 1, 20-25 [61 Cal.Rptr.2d 84, 931 P.2d 262].) This rule “is necessary in order to protect the courts against clever defendants who attempt to build reversible error into the record by making an equivocal request for self-representation.” (Id. at p. 22.) This concern applies here; circumstances strongly suggested defendant was attempting to delay the trial and did not state unequivocally and definitely that he wished to represent himself. The trial court acted properly in refusing to permit defendant to control and delay his trial.

We also conclude the trial court properly denied defendant’s second Faretta motion, made on September 15. Applying the factors we set forth in People v. Windham, supra, 19 Cal.3d at page 128, the trial court denied the motion on the merits. Defendant contends the trial court misapplied these factors in a number of ways, but we disagree.

Defendant first argues the trial court was incorrect when it concluded counsel’s representation had been “excellent.” Instead, defendant argues, counsel made no opening statement, called no witnesses, and had declared (in camera) that he could not be an effective advocate because defendant refused to speak with him. At the time of this motion, however, the People had called six witnesses and counsel had cross-examined each of them. Counsel had deferred making an opening statement, and the People had not yet rested.

Counsel’s confidential assessment of his own ability to provide effective assistance of counsel was based on defendant’s refusal to speak to or cooperate with him. The trial court’s implicit conclusion that no irreconcilable rift had occurred between client and counsel, and that defendant was merely attempting to delay the trial, was a reasonable one. Defendant next argues that contrary to the court’s conclusion when it denied his second Faretta motion, he had no prior proclivity to substitute counsel. His contention is belied by the record, for he had made a similar motion just a few days before.

The reason for his request, the third Windham factor, had not essentially changed from the time the court denied the first motion for self-representation. As the trial court noted, defendant did not think he could do a better job, but merely wanted to speed up the guilt trial so he could proceed to the penalty phase as soon as possible. The trial court properly concluded this reason would not support a midtrial decision to permit defendant to fire his lawyer and represent himself.

The final Windham factors (the length and stage of the trial and the disruption and delay that would result from granting the motion) also strongly support the trial court’s denial of the Faretta motion. Defendant’s case had dragged on for more than two years, and defendant’s second Faretta motion came in the middle of the guilt phase. Defendant affirmed that he would need a continuance to prepare for trial, leading the trial court reasonably to conclude that granting a mistrial would be necessary if it permitted defendant to represent himself at that late date.

Defendant argues that “[djelay, and delay alone, should not be the determining factor,” but that argument misconstrues the nature of the trial court’s ruling. The court considered several factors other than the delay that would ensue if it granted the motion. Defendant also contends an “objective assessment” of the propriety of the trial court’s denial of his second Faretta motion should consider the court’s eve-of-trial denial of a requested 45-day continuance and the denial of his motion for appointment of second counsel.

He argues that his Faretta motion was not made sooner because the denial of these motions sparked his dissatisfaction with defense counsel, which led to the motion for self-representation. Thus, he argues, the delay in making the motion was understandable. There are several answers to this claim. First, defendant had made an earlier Faretta motion. In denying the second motion, the trial court noted the previous, equivocal motion. Thus, this is not a case in which a defendant made a Faretta motion as soon as was practicable.

Second, the trial court chose not to deny the motion as untimely; defendant therefore was not penalized for the belated nature of his motion. Third, nothing in the record indicates that defendant’s dissatisfaction with counsel was linked to the denial of a continuance or the denial of second counsel. Defendant proclaimed in court that he wished to represent himself and that he could do a better job than counsel, but “I don’t want to cross-examine. I don’t want to question no witness.

I refuse to talk to any investigators or doctors or whatever that can be, you know.” Under the circumstances, the trial court did not err in denying defendant’s second Faretta motion. We reach the same conclusion with regard to defendant’s third Faretta motion, made and denied as untimely on September 25. By the time defendant made this last Faretta motion, presentation of evidence at the guilt phase was complete and the prosecutor had finished the opening part of his closing statement. All that was left of the guilt phase was defense counsel’s closing argument and the prosecutor’s rebuttal.

The trial court denied the motion, noting specifically that defendant “wishes merely to have the jury convict him of all counts and all allegations so he can just ask for life in prison without the possibility of parole, and end the matter” and that the trial was “about to wind down to an end.” The court also noted the “disruption of the delay which might reasonably be expected to follow the granting of such motion.” We find no abuse of discretion.

Contrary to defendant’s further argument, the trial court did not focus on any one fact but, as it expressly stated, denied the motion based on the totality of the circumstances. (People v. Barnett, supra, 17 Cal.4th at p. 1109.) Even if the guilt phase judgment must stand, defendant claims the penalty judgment must be reversed because the trial court abused its discretion in denying this third Faretta motion. He argues the motion came at a convenient time as it was between the guilt and penalty phases of the trial and that no delay would have resulted because he did not request a continuance.

The mere fact this third Faretta request came between the guilt and penalty phases is of no moment, for the request is still considered to be one made midtrial. “[T]he penalty phase has no separate formal existence but is merely a stage in a unitary capital trial.” (People v. Hamilton (1988) 45 Cal.3d 351, 369 [247 Cal.Rptr. 31, 753 P.2d 1109].) Accordingly, defendant was not entitled to invoke the absolute right of self-representation. (Ibid.) Finding no abuse of discretion, we reject defendant’s claim that we must reverse the penalty judgment.

In sum, the trial court properly denied all three of defendant’s Faretta motions. 5. Denial of Keenan Counsel Defendant next contends the trial court abused its discretion when it twice denied his motion for appointment of a second attorney to assist defense counsel. He further claims the court’s refusal to appoint second counsel violated his state and federal constitutional rights to effective assistance of counsel, to due process of law, to a fair trial, and to a reliable sentencing determination, and constituted an arbitrary deprivation of an entitlement under state law. (U.S.

Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 15, 16, 17.) The right to counsel is, of course, a bedrock constitutional right (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; see Gideon v. Wainwright (1963) 372 U.S. 335 [9 L.Ed.2d 799, 83 S.Ct. 792]), but California’s interest in ensuring that those charged with capital crimes receive adequate legal representation manifests itself in a further layer of protection: courts have the statutory discretion to appoint a second defense attorney at public expense. (People v. Weaver (2001) 26 Cal.4th 876, 950 [111 Cal.Rptr.2d 2, 29 P.3d 103]; Keenan v.

Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108] (Keenan); § 987, subd. (d).) But unlike the constitutional right, the statutory right to appointed second counsel is qualified. Thus, “[i]f it appears that a second attorney may lend important assistance in preparing for trial or presenting the case, the court should rule favorably on [a] request.

Indeed, in general, under a showing of genuine need ... a presumption arises that a second attorney is required.” (Keenan, supra, at p. 434.) “ ‘The initial burden, however, is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.’ [Citation.] An ‘abstract assertion’ regarding the burden on defense counsel ‘cannot be used as a substitute for a showing of genuine need.’ ” (People v.

Staten (2000) 24 Cal.4th 434, 447 [101 Cal.Rptr.2d 213, 11 P.3d 968].) With these rules in mind, we turn to an analysis of defendant’s two Keenan requests. On March 6, 1992, well before the start of trial, defense counsel moved for second, or Keenan, counsel. Noting that the case would probably proceed to a penalty phase, counsel stated: “I consider this to be a complicated case because of the number of witnesses that will testify. The fact is that investigation in this case is ongoing, that I will need to interview witnesses myself rather than just rely upon investigators.

There are witnesses that will be inconsistent with the statements that were made by other witnesses during the trial proceeding and I would ask the court... to appoint second counsel.

This case warrants [such appointment] because of the high probability that we will proceed to penalty phase.” The trial court denied the request, saying: “The fact that a case in your opinion is almost assured to go to penalty phase is not the specific and compelling reasons that [precedent] require[s]. . . . [Y]ou are an experienced capital attorney [and] the fact that a case is going to go to penalty phase itself is not sufficient in and of itself [to appoint second counsel].” Defense counsel then explained that his Keenan request was not solely based on the probability of a penalty phase. “I must also indicate to the court that based upon my independent investigation that the witnesses that testified in the case of People versus Ayala and Zorns, their statements will be contradicted in part by witnesses that will be presented by Mr.

Roldan, and I need the assistance of another attorney to do that.” Counsel thought the task of coordinating such witnesses was more than one attorney could handle. The trial court disagreed; “I have had the unusual circumstance of actually sitting through the factual bases for this trial one time already and the trial with the two defendants lasted some four weeks.

I cannot see the evidence, as far as the People’s case is concerned, lasting even that long as far as your client is concerned.” Counsel then explained that he had been working as second counsel in another capital case and was undertaking defendant’s case “literally back to back,” that there was a lot of work in the other case, and that he sought to have lead counsel in the other case be appointed as second counsel in defendant’s case.

The trial court disagreed that counsel would be ineffective without the appointment of second counsel, noted that counsel was being “overly modest” about his abilities, and concluded: “Based upon my discretion, weighing the factors here and understanding the facts as I understand them thus far in this case I am denying your motion for appointment of second counsel.” The court added: “My ruling is not in concrete and if there [are] reasons that come up, specific and compelling reasons, I will be glad at any time to entertain such a motion.” The decision whether to grant a request to appoint second counsel under

section 987 is reviewed for abuse of discretion. (People v. Ochoa (1998) 19 Cal.4th 353, 408 [79 Cal.Rptr.2d 408, 966 P.2d 442].) The abuse of discretion standard is used in many other contexts and reflects the trial court’s superior ability to consider and weigh the myriad factors that are relevant to the decision at hand. A trial court will not be found to have abused its discretion unless it “exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.” (People v.

Lawley (2002) 27 Cal.4th 102, 158 [115 Cal.Rptr.2d 614, 38 P.3d 461] [addressing exercise of discretion to permit a jury to view defendant’s cabin].) On these facts, we cannot find the trial court abused its discretion. Defense counsel’s explanation that he would be required personally to interview additional witnesses who would provide impeachment evidence was respectfully discounted by the trial court, who had firsthand knowledge of the weight and nature of the evidence of guilt, having presided over the trial of Sergio Ayala and Richard Zorns.

In fact, the case was quite straightforward, as eyewitnesses had identified defendant as the gunman, and both his girlfriend, Jude Barrios, and Richard Zorns’s then girlfriend, Christine, testified to his damaging and incriminating admissions. Counsel’s further explanation that he was overloaded by conducting back-to-back trials was no doubt discounted by the court given the fact defendant’s trial was not to begin for several months. Finally, the trial court had discretion to rely on its own evaluation of counsel’s competence.

Defense counsel renewed the Keenan motion on July 22, 1992, in conjunction with his request for a continuance prompted by the threats of violence revealed by Dr. Maloney. Despite counsel’s understandable anxiety over the threat to his life, he did not articulate any specific need for the services of second counsel at this hearing over and above the abstract desire for assistance. (People v. Staten, supra, 24 Cal.4th at p. 447.) Accordingly, the trial court did not abuse its discretion when it denied the renewed request. 6.

Restriction of Voir Dire Defendant next contends the trial court improperly restricted voir dire in a number of ways, prejudicially inhibiting his ability to identify prospective jurors who might have been subject to a challenge for cause and those who should have been removed by the exercise of a peremptory challenge. He claims the trial court’s restrictions violated his federal constitutional rights to due process of law, to an impartial and representative jury, to a jury drawn from a fair cross-section of the community, to a fair trial, and to a reliable capital sentencing determination. (U.S.

Const., 5th, 6th, 8th & 14th Amends.) He also claims the court’s restrictions violated “parallel provisions” of the California Constitution. We begin with the obvious: A criminal defendant is entitled to a trial by jurors who are impartial and unbiased. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) Although neither the state nor federal Constitution expressly mentions the impartiality of jurors, courts have long interpreted both charters to encompass the right to impartial jurors. (Turner v. Louisiana (1965) 379 U.S. 466, 471-472 [13 L.Ed.2d 424, 85 S.Ct. 546]; People v.

Wheeler (1978) 22 Cal.3d 258, 265 [148 Cal.Rptr. 890, 583 P.2d 748].) “ ‘[T]he right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the [Constitution.’ ” (People v. Earp (1999) 20 Cal.4th 826, 852 [85 Cal.Rptr.2d 857, 978 P.2d 15].) The impartiality of prospective jurors is initially determined during the pretrial procedure known as voir dire. “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.

Without an adequate voir dire the trial judge’s responsibility to remove prospective jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled. [Citation.] Similarly, lack of adequate voir dire impairs the defendant’s right to exercise peremptory challenges where provided by statute or rule.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [68 L.Ed.2d 22, 101 S.Ct. 1629].) “Voir dire examination serves to protect [an accused’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors.

Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges.” (McDonough Power Equipment, Inc. v.

Greenwood (1984) 464 U.S. 548, 554 [78 L.Ed.2d 663, 104 S.Ct. 845] (plur. opn. of Rehnquist, J.).) “The ability of a defendant, either personally, through counsel, or by the court, to examine the prospective jurors during voir dire is thus significant in protecting the defendant’s right to an impartial jury.” (In re Hitchings (1993) 6 Cal.4th 97, 110 [24 Cal.Rptr.2d 74, 860 P.2d 466].) Choosing a jury for a capital case poses a special problem. “The state and federal constitutional guarantees of a trial by an impartial jury include the right in a capital case to a jury whose members will not automatically impose the death penalty for all murders, but will instead consider and weigh the mitigating evidence in determining the appropriate sentence. [Citation.] ‘[A] juror may be challenged for cause based upon his or her views concerning capital punishment only if those views would “prevent or substantially impair” the performance of the juror’s duties as defined by the court’s instructions and the juror’s oath.’ [Citations.] If the death penalty is imposed by a jury containing even one juror who would vote automatically for the death penalty without considering the mitigating evidence, ‘the State is disentitled to execute the sentence.’ ” (People v.

Weaver, supra, 26 Cal.4th at p. 910, quoting Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844], and Morgan v. Illinois (1992) 504 U.S. 719, 729 [119 L.Ed.2d 492, 112 S.Ct. 2222].) a. The Voir Dire Procedure At the beginning of voir dire, the trial court asked prospective jurors whether they wished to be excused for hardship. Those whose claim of hardship the court accepted were excused. Those remaining were asked to fill out a 24-page juror questionnaire.

The questionnaire asked jurors to reveal their place of residence, occupation, military service, marital status, education, and contacts with the justice system. It also asked jurors whether they had heard about defendant’s case or about defendant and, if so, whether the information about the case made them favor the prosecution or the defense, what newspapers they read and television news they watched, and whether they followed other crime stories in the news. Finally, the questionnaire asked several questions regarding the jurors’ views about the death penalty.

The court photocopied the completed questionnaires and distributed copies to both the prosecutor and defense counsel. The trial court, having decided to choose six alternate jurors for this trial, called the first 18 prospective jurors, 12 to sit in the jury box and six to sit as alternates. The trial court asked each juror in open court whether the juror wished to change any of his or her answers in the questionnaire.

The court then asked the jurors individually four questions regarding their willingness and ability to return a verdict of first degree murder, to sustain a special circumstance allegation, and to vote for either life imprisonment or for the death penalty. Questions regarding sensitive and personal matters were asked at the bench, out of the hearing of the other jurors, but the balance of the questioning was done in open court. Some jurors were excused on stipulation by both sides, some by the court on its own motion, and some for cause due to their views on the death penalty.

The trial court then had all prospective jurors leave the courtroom and entertained challenges for cause from the parties. When both sides indicated they intended to make no further challenges for cause, the jury was brought in and the parties exercised their peremptory challenges. The procedure continued until 12 jurors and six alternates were chosen. b. Failure to Hold Sequestered Voir Dire Defendant first contends the trial court committed prejudicial error by failing to sequester the jurors and question them individually. He admits the procedure used was authorized by

section 223 of the Code of Civil Procedure, added to the code when the electorate passed Proposition 115 in 1990. That

section provides in part: “Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.” Defendant nevertheless contends that nonsequestered voir dire tends generally to produce juries more likely to return a guilty verdict than to acquit, and more likely to choose the death penalty over life imprisonment.

More specifically, defendant contends the nonsequestered voir dire in this case allowed prospective jurors to hear (and thus become prejudiced by) concerns expressed by some jurors about possible gang involvement in the trial, as well as the nature of some pretrial publicity. Defendant failed to object to the trial court’s decision to conduct voir dire in open court and thus failed to preserve the issue for appeal. (People v.

Avena (1996) 13 Cal.4th 394, 413 [53 Cal.Rptr.2d 301, 916 P.2d 1000].) Had he moved for sequestered, individual voir dire and the trial court denied the motion, we would have had to determine whether the trial court abused its discretion. (People v. Waidla (2000) 22 Cal.4th 690, 713-714 [94 Cal.Rptr.2d 396, 996 P.2d 46].) Conceding that

section 223 of the Code of Civil Procedure creates a preference for nonsequestered voir dire in capital cases, and that Proposition 115 was designed to supersede the contrary rule established in Hovey v. Superior Court (1980) 28 Cal.3d 1, 80-81 [168 Cal.Rptr. 128, 616 P.2d 1301] (see People v. Gurule (2002) 28 Cal.4th 557, 596, fn. 6 [123 Cal.Rptr.2d 345, 51 P.3d 224]), defendant nevertheless argues the trial court would have abused its discretion in denying a motion for sequestered voir dire because the procedures followed by the court denied him critical information about the prospective jurors.

He cites Tapia v. Superior Court (1991) 53 Cal.3d 282, 299 [279 Cal.Rptr. 592, 807 P.2d 434], in support, where we explained that “[t]here is no reason to believe that the new voir dire rules will be applied to deprive [defendants] of any information to which voir dire is legitimately directed.” He does not, however, indicate how the nonsequestered voir dire procedure deprived him of relevant information, given the detailed jury questionnaires and the follow-up questions asked by the trial court.

Accordingly, even were we to assume defendant had properly preserved this claim with a timely objection, it is meritless. c. Court-only Questioning In a related claim, defendant contends the trial court’s voir dire of prospective jurors “unfairly limited the amount of information that defense counsel received.” As with the decision not to sequester the jurors, however, defendant failed to preserve this issue by objecting. (People v.

Hernandez (2003) 30 Cal.4th 835, 855-856 [134 Cal.Rptr.2d 602, 69 P.3d 446].) Even assuming the issue was properly before us, defendant fails to explain what type of information was missing or how the detailed jury questionnaires and follow-up questions from the bench were inadequate. Accordingly, the claim is meritless. d.

Refusal to Ask Follow-up Questions Defendant cites several instances in which he sought unsuccessfully to have the trial court conduct additional questioning of certain prospective jurors in order to have them elaborate on the answers given in their questionnaires and during in-court examination. By denying these requests, he claims, the trial court compromised his ability to acquire sufficient information to exercise his challenges, both for cause and peremptorily, in an intelligent manner and thereby violated his constitutional rights.

Although defendant identifies 14 prospective jurors of whom he sought to have the trial court ask additional questions on voir dire, only two actually served on his jury. Accordingly, even assuming error as to the other 12, no prejudice could have resulted from the trial court’s refusal to engage in supplementary voir dire questioning as to them. (People v. Burgener (2003) 29 Cal.4th 833, 866 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Ramos (1997) 15 Cal.4th 1133, 1157 [64 Cal.Rptr.2d 892, 938 P.2d 950].) The two who served on defendant’s jury were Juror B.R. and Juror H.R.

In his questionnaire, Juror B.R. made clear he was in favor of the death penalty, but would not automatically vote for death without considering the evidence, both aggravating and mitigating, including defendant’s background and character. When questioned in open court, he affirmed he would not automatically vote for death as the appropriate penalty and that he would follow the law as described by the trial court even if he did not agree with it. Defense cou

[…]