THE PEOPLE, Plaintiff and Respondent, v. JAMES NELSON BLAIR, Defendant and Appellant, 36 Cal. 4th 686

Opinion GEORGE, C. J. A jury convicted defendant James Nelson Blair of the first degree murder of Dorothy Green (Pen. Code, § 187) and found true the special circumstance allegation of murder by the administration of poison. (§ 190.2, subd. (a)(19).) At the penalty phase of the trial, the jury returned a verdict of death. The trial court denied defendant’s automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed a death sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I.

Factual Background Defendant was convicted of the first degree murder of his neighbor Dorothy Green by the administration of poison. The prosecution’s evidence showed that, in 1984, defendant deliberately poisoned Green and Green’s friend, Rhoda Miller, by placing cyanide in a gin bottle and giving the bottle to Miller to deliver to Green. The apparent motive was to obtain money that defendant believed was owed to him by Green. Green drank more of the gin than Miller, fell into a coma that lasted for several months, and sustained brain damage.

Green survived for almost two years and then died from pneumonia in 1986. Medical experts testified that the cyanide poisoning caused the brain damage, which then caused the pneumonia that led to Green’s death. Defendant was tried in 1985 for the attempted murder of Green and Miller. He represented himself and was convicted. After Green died, he was tried in the present case for the first degree murder of Green with the special circumstance of murder by the administration of poison. Defendant insisted on representing himself, as he had in the earlier proceedings.

He attempted, unsuccessfully, to establish that cyanide poisoning was not the cause of Green’s death. At the penalty phase, the prosecution’s evidence in aggravation consisted principally of proof of defendant’s prior convictions, and defendant presented no witnesses and only a few college transcripts as evidence in mitigation. A. Guilt phase 1. The prosecution’s case a. The poisoning In 1984, defendant lived in an apartment complex located at 5542 Sierra Vista Avenue in Hollywood. Dorothy Green shared apartment 209 in the same complex with a man named Goretha Murphy.

One evening, a man whom Murphy believed was defendant came to their apartment. After Murphy let the man in, Murphy overheard the man tell Green that he wanted his money back and was going to get it. The man then left. On another occasion, the same man approached Murphy and told him that he had “better do something” about having Green return the money. Murphy then heard this man tell another person that he was going to “get” Green and Murphy. This led to a scuffle between Murphy and the man on the walkway near Green’s apartment.

On September 24, 1984, Rhoda Faye Miller, a former resident of the Sierra Vista apartment complex, and her eight-year-old son, William, went to visit Michelle Dubois in apartment 203. Defendant was at Dubois’s apartment when Miller and her son arrived. Defendant had a briefcase with him. After a while, Miller went to a store and returned with some food, soda, and a pint of rum. Miller, Dubois, and defendant consumed drinks of rum and cola. About 40 minutes after Miller returned, defendant asked to speak with her privately in the kitchen.

There, defendant asked Miller to do him a favor by delivering to Dorothy Green a tall box wrapped in butcher paper and a ribbon, which he explained contained a bottle of gin. Defendant said he did not want to deliver the package himself, because Green’s “husband,” Murphy, did not like them drinking together. Miller agreed and left Dubois’s apartment with the package, leaving William and defendant with Dubois. When Miller arrived at Green’s apartment, she told Green that she had brought a bottle of gin as a gift from defendant. Green said “how nice,” and invited Miller in for a drink.

Once Miller was inside, Green took the bottle out of the box. To Miller, the seal on the cap of the bottle appeared to be intact, except for one spot that was not completely sealed. When Green opened the bottle, it made a “swish” sound as if it had been sealed. Green poured a six-to-eight-ounce glass of gin for herself. Miller put about two inches of gin into her own glass and mixed it with water. Green then drank her full glass of gin straight down, immediately said the gin did not “taste right,” and asked where defendant was. Miller took a swallow from her own glass. Miller thought the gin tasted like kerosene.

As Green was returning from her bedroom, where she had gone to get her slippers, she began to fall. Miller caught her so she would not hit her head, and then Miller herself began to feel woozy. Both of them fell to the floor. Green was vomiting, so Miller turned her on her side to prevent her from choking, then called the paramedics, and told them she believed she and Green had been poisoned. Meanwhile, Dubois sent Miller’s young son, William, to Green’s apartment to look for Miller. William and defendant left Dubois’s apartment at the same time; as William headed to Green’s apartment, defendant left the complex.

When William arrived at Green’s apartment, he saw Miller on her knees by the telephone and Green lying on the floor on her side, barely moving. Miller told William to return to Dubois and tell her that she and Green had been poisoned. Miller then passed out. When Miller regained consciousness, several paramedics were in the apartment. Miller told one of the paramedics, Robert Miller (who was no relation), that she and Green had drunk some gin, and that possibly the gin had been poisoned. It appeared to Robert Miller that Green was in a more serious condition than Miller.

Green was unconscious and “critical.” The paramedics inserted an “I.V.” into Green’s arm and took her, Miller, and the gin bottle (which they had found in the apartment) to Hollywood Presbyterian Hospital. At the hospital, the paramedics gave the gin bottle to the police. Later tests of samples of gin from the bottle revealed that it contained sodium cyanide, at a quantity of 5 percent of the solid material. b. Defendant’s arrest A few days after the poisoning incident, William was playing with some friends outside the Sierra Vista apartment complex.

He saw defendant, who was carrying the same briefcase that was in his possession on the day of the poisoning. Defendant asked William where his mother was. Officer Keith Moreland arrested defendant at the Sierra Vista apartment complex on October 2, 1984. At the time of his arrest, defendant was carrying a briefcase. Officer Moreland took defendant to the Hollywood police station and turned him and the briefcase over to the investigating officer, Detective Richard Jackson, and his partner, Detective Michael Thrasher. In an interview room, Detective Jackson searched the briefcase.

Inside, he found an envelope with writing on it. Among such entries as “magic shave,” “soap,” and “Reader’s Digest law book” were the words “get cyanide.” Detective Jackson also searched defendant’s wallet and found several items, including: (1) a piece of paper with “Chem Lab Supply” and a telephone number and address written on it; (2) another piece of paper with “RJM Lab,” “Chem Lab Supplies,” and corresponding addresses and phone numbers written on it; (3) and a business card with “Chem Lab” and “Haw” written on it.

Detectives Jackson and Thrasher later visited Chem Lab Supply and RJM Lab in Hawthorne, but no one there recognized a photo of defendant as someone who had purchased cyanide. On October 3, 1984, Miller, who had been released from the hospital, identified defendant from a photo lineup as the person who had handed her the gin bottle to give to Green. A police handwriting analyst compared the writing on the envelope found in defendant’s briefcase with handwriting exemplars taken from defendant on the day of his arrest in October 1984, in October 1986, and again in April 1989.

The analyst was able to state that the writing on the envelope matched that of the first and third of defendant’s exemplars, but not the second. The analyst testified that the handwriting in the second exemplar had been “disguised,” that is, the person giving the exemplar had attempted to change the characteristics of the writing. c. Green’s illness and death Meanwhile, Green remained at Hollywood Presbyterian Hospital. When first admitted she was in a coma and unable to breathe, with a blood pressure reading as low as 33, indicating shock. This condition had to be reversed immediately to avoid death.

An intratracheal tube was placed in her throat, and a machine helped her breathe for the first few days. When she regained the ability to breathe on her own, a tracheotomy was performed so that a tube could be placed directly in her trachea, bypassing her nose and throat. Without breathing assistance, she would have died. Toxicology screens performed on Green’s blood and urine when she was admitted to the hospital revealed the presence of cyanide, as well as amphetamine and Valium. Green remained in a coma for approximately three months. She was fed and medicated through tubes connected to her nose and stomach.

During that time, she developed pneumonia, a common complication for patients in her condition. When she awakened from the coma briefly, she showed signs of mental impairment. Dr. Henri Becker, a specialist in the critical care of patients whose lives are in danger due to heart attack or other trauma, participated in Green’s care at Hollywood Presbyterian and reviewed her medical records. Dr. Becker explained that cyanide causes brain damage by binding with hemoglobin to prevent the transport of oxygen to the brain and other tissues. In Dr.

Becker’s opinion, Green’s ingestion of cyanide caused her coma and the resulting complications. Green’s daughter, Caron Green, had seen her mother regularly before the poisoning, when Green was in excellent health. Caron visited Green frequently while Green was at Hollywood Presbyterian. For about the first three months, Caron could not speak to Green because of the coma. When Green came out of the coma, she could not see and did not have control of her bodily functions. After several months, Green was transferred to Glendale Adventist Hospital. Caron continued to see her mother regularly.

Green was unable to walk, see, converse, or feed herself. Later, she was moved to a hospital in Michigan, where her other daughters lived. Her condition steadily deteriorated, and she died on July 26, 1986. Dr. Jerry Gray, a pathologist, performed an autopsy on Green. Green died from another bout of pneumonia attributed to “toxic brain damage” caused by the cyanide poisoning. The cyanide prevented oxygen from reaching Green’s brain, thus killing her brain cells. Dr.

Gray testified that pneumonia is common after this type of brain injury because the patient cannot breathe and cough normally and therefore cannot tolerate secretions in the lungs. 2. The defense case Acting as his own counsel, defendant re-called Detective Jackson, who testified that he never had spoken to Green’s daughter Caron. Dell Freeman, a fingerprint expert, compared defendant’s fingerprints to photographs of fingerprints taken from the gin bottle, the gift box, and the wrapping paper. Freeman could not identify the prints on the bottle as defendant’s. Dr.

Mohamad Abdel Latif, the director of the intensive care unit at Hollywood Presbyterian Hospital, treated Green on September 24, 1984, the day she was admitted. In Green’s stomach, Dr. Latif found Darvon, the drug Atropine, and bleach. These three substances could cause brain damage or respiratory arrest if they reached the bloodstream in significant amounts, but blood tests indicated they had not. Alcohol at a level of 0.123, as well as Valium and amphetamine, were found in Green’s blood. Dr.

Latif testified that theoretically, the combination of alcohol, amphetamine, Valium, and bleach could cause respiratory arrest and brain damage. On cross-examination, however, he agreed that the most likely cause of Green’s condition upon her arrival was cyanide poisoning. The cyanide level in Green’s blood 16 hours after her admission to the hospital was 20 micrograms per milliliter, an “extremely high” amount. Dr.

Hideo Itabashi, a neuropathologist employed by the County of Los Angeles, without having read any of Green’s medical records or the autopsy report, testified that theoretically a combination of alcohol, Darvon, and Valium in significantly high amounts in a person’s blood could cause respiratory arrest leading to hypoxia and brain damage. Cyanide poisoning also could cause such hypoxia. Dr. Itabashi testified that a physician examining a patient could not distinguish between hypoxia caused by cyanide and hypoxia caused by Darvon, Valium, and alcohol.

He was aware that Green had a blood-alcohol level of 0.123, but was not told the amounts of the other drugs that were present. He could not say what had caused Green’s death. 3. The prosecution’s rebuttal Dr. Irving Root, a pathologist who had conducted approximately 20,000 autopsies, reviewed Green’s medical records and autopsy report. In his expert opinion, Green died from complications of cyanide poisoning—that is, pneumonia resulting from brain damage caused by cyanide.

The amount of cyanide in Green’s blood, 20 micrograms per milliliter, was an extremely high level and normally would cause a very quick death, absent immediate resuscitation. In Green’s case, Dr. Root explained, emergency personnel resuscitated Green in time to keep her alive, but not soon enough to avoid the brain damage that eventually caused her death. B. Penalty phase 1. The prosecution’s case Defendant was convicted of first degree robbery and assault with a deadly weapon in Orange County in 1959. In 1963, defendant was convicted of second degree robbery in San Bernardino County.

Defendant was incarcerated for these offenses. In 1985, defendant was convicted of the attempted murder of Green and Miller. Over defendant’s objection, Emily Maverick, a professor of chemistry at Los Angeles City College (formerly Los Angeles Community College), testified concerning an experiment involving cyanide that defendant had conducted when he was a student in one of her chemistry classes in 1982. 2. The defense case Still acting as his own counsel, defendant called no penalty phase witnesses in mitigation.

The parties stipulated to the admission in evidence of defendant’s academic records from Los Angeles City College. II. Discussion A. Competency and self-representation issues 1. Knowing and intelligent waiver Defendant contends the trial court erred in permitting him to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta) without, he asserts, obtaining a knowing and intelligent waiver of his right to the assistance of counsel under the Sixth Amendment to the United States Constitution. a.

Facts At his trial for the attempted murder of Green and Miller, defendant moved for permission to represent himself. The court, Judge Clarence A.

Stromwall presiding, orally quizzed defendant concerning his knowledge of the charges, the possible penalties, and courtroom procedures, warning defendant of the pitfalls of self-representation and informing him that he would be “prosecuted by a professional prosecutor.” The court cautioned defendant: “How would you like to get into the [boxing] ring with Joe L[ou]is in his h[e]yday? . . . [T]hat’s what you’re asking to do.” Ultimately, the court granted defendant’s request, and defendant represented himself through trial and in posttrial proceedings following the guilty verdict.

Shortly after defendant’s conviction was affirmed on appeal in June of 1986, Green died, and defendant was charged with her murder. On September 19, 1986, defendant appeared with counsel for arraignment in the municipal courtroom of Judge Glenette Blackwell. Defendant soon indicated that he wished to represent himself. The court warned defendant: “Sir, the State is asking for your life. I think you need all the help you can get. It’s always unwise to represent yourself. I don’t know if you do your own medical surgery. I don’t think that would be wise. I read the report on you.

I don’t think you have that type of educational background, but you can think about it, fill out the appropriate form.” The court then gave defendant a written “Pro. Per. Advisement Form” to complete. On the form, defendant wrote that he had completed 12 years of education. Defendant also responded to nine questions asking whether he understood his rights as a defendant and the responsibilities he would be undertaking as his own attorney.

Although the form instructed defendant to place his initials in the “yes” or “no” column in response to each question, defendant instead placed an “x” in each box in the “yes” column. Defendant also placed an “x” in the “yes” column next to the question “Understanding all that you have read here, and all that the Court has told you, do you still wish to give up your right to have an attorney, and to represent yourself?” When defendant returned to court with the form, Judge Blackwell stated: “Sir, let me ask you. I have your pro. per. form filled out here.

Do you understand that in your case that the prosecutor is an experienced lawyer and possibly may have an advantage over you? Do you understand that?” Defendant responded in the affirmative and also stated he understood it was unwise to represent himself. The court then denied defendant’s request for self-representation on the ground that defendant’s responses on the Pro. Per. Advisement Form, where he had marked an “x” instead of placing his initials, indicated he could not read and understand simple English.

Although the court stressed to defendant that this was a special circumstances case in which the state was asking for his life, defendant refused to waive time. The court then entered a not guilty plea on defendant’s behalf and set the preliminary hearing for October 1, 1986. On October 1, 1986, defendant appeared with a deputy public defender before another municipal court judge, Judge Xenophon F. Lang. Counsel told the court that defendant wished to represent himself, explaining that defendant had represented himself at the earlier trial. Judge Lang stated: “I see that Judge Blackwell, in Division 30, had Mr.

Blair fill out a form and she still denied the motion; however, I don’t think that those questions are necessary now. They were several years ago; but in the last several years, if the defendant wants to represent himself, he has a perfect right to do so. Isn’t that your understanding?” The prosecutor agreed that defendant had an “absolute right” to represent himself “if he meets the basic criteria of Faretta,” and reminded the court that defendant had represented himself in the previous jury trial.

The court then stated: “The public defender is relieved,” and continued the preliminary hearing until October 3, 1986, to give defendant time to prepare. Defendant appeared in propria persona for the preliminary hearing in municipal court on October 3, 1986, before Judge Ronald S. Coen.

At the beginning of the hearing, the following exchange occurred: “The Court: You are representing yourself? “[Defendant]: Yes. “The Court: You have been told earlier, I take it, the pain and pitfalls of self-representation and the warnings about it? “[Defendant]: Yes. “The Court: Is it still your desire to represent yourself? “[Defendant]: Yes. “The Court: Very well.” The court then read defendant a statement of rights, which included the following: “You have the right to be represented by an attorney at all phases of the proceedings. At this time you have chosen to represent yourself.

You have been granted that right.” Defendant indicated he understood his rights. Thereafter, defendant represented himself throughout the preliminary hearing, at the end of which he was held to answer on the capital murder charges. Defendant appeared for his arraignment in the superior court before Judge Aurelio Munoz on October 21, 1986. Judge Munoz stated that he was aware defendant was representing himself, and asked defendant whether he wanted to be represented by an attorney, to which defendant answered: “No.

No, I don’t, your honor.” When the court noted that this was a “death case,” the prosecutor stated that a final decision concerning whether the death penalty would be sought had not yet been made.

The court stated: “I’m not going to let somebody walk into a death case pro. per. without making very sure that we aren’t going to be trying this case again.” The prosecutor replied: “We have had three hearings on this already and I understand the court’s concern.” The court then had defendant fill out another, more extensive form, entitled “Petition to Proceed in Propria Persona.” On this form, defendant stated that he could read and write; that he understood his constitutional rights to a speedy and public jury trial, to compulsory process, to confrontation and cross-examination, to testify or refuse to testify, to bail, and to appointed counsel; that he understood that if he was permitted to represent himself, he would be giving up his right to be represented by counsel and would have to conduct his own defense; that he was a high school graduate; that he understood that by representing himself he would be giving up the right to the assistance of an experienced public defender; that he would have to “follow all of the many technical rules of substantive law, criminal procedure, and evidence”; that he would not be entitled to any special consideration from the court; and that the district attorney would be experienced in both court and jury trials.

Defendant correctly identified the charge against him, stated that the crime was a specific intent crime, and acknowledged that if he represented himself it would be necessary for him to handle all pretrial motions, plea negotiations, jury selection, opening and closing statements, presentation and cross-examination of witnesses, objections, and motions. Defendant further acknowledged that he understood he would have to participate in the formulation of jury instructions, conduct any necessary penalty phase, and prepare and submit posttrial motions.

On several places on the form defendant correctly noted that the possible penalties included the death penalty. Finally, defendant acknowledged that the form would become part of the case file and would be considered by an appellate court in determining whether he had knowingly and intelligently waived his right to counsel, and that by acting as his own lawyer he was giving up any possible claim of ineffective assistance of trial counsel. When defendant returned to court later in the day, the following exchange occurred: “The Court: Now, the People are deciding if this is a death penalty. Okay.

H] Do you understand, of course, that you are not going to get any breaks or any help simply because you are a layman? You are aware of that? “[Defendant]: I understand that. “The Court: And there is a saying in the law ‘that a lawyer who tries his own case has a fool for a client.’ “[Defendant]: I have heard that. “The Court: Do you know what it means? “[Defendant]: I heard that before. “The Court: Do you know what it means? “[Defendant]: Do I know what it means? “The Court: Yes. What it means, you can’t be objective when you are trying your own case. And a lawyer’s job, above all, is to be objective.

And that’s one of the dangers, [f] Do you understand that? “[Defendant]: Yes.” Then, after ascertaining that defendant had been represented by lawyers previously, had had troubled relationships with each, and did not want a lawyer now, the court stated: “All right. I’ll allow the defendant to proceed in pro. per. He did fill out the pro. per. petition. Apparently he has represented himself before in this identical case. So you may arraign the defendant.” Judge Munoz arraigned defendant a few days later, on November 4, 1986.

When the prosecutor informed the court that the prosecution would be seeking the death penalty, the following exchange took place: “The Court: Okay. Mr. Blair, I know you were representing yourself pro. per. in the previous trials . ... [f] Okay. It’s one thing to represent yourself at a trial. At this point, the stakes have just gone up quite a bit. Now, you are a layman, and you really need a lawyer. It’s your life. [][] I’ll guarantee one thing. The way things are going now, just based upon what I’ve seen and heard this morning, you’re going to lose that life.

Now, I’m not denying you the right to be your own counsel. I’m not denying you appointed counsel. I’m not denying you anything. I’m telling you you have the right to have one. [][] So you’re not going to be able to go up and say that you were denied counsel. You are not going to be able to go up and say that you were ineffective. Now, don’t you really think you ought to reconsider your decision to proceed in pro. per.? “[Defendant]: No, your honor. I want to go pro. per.

It’s my decision. “The Court: Would you like to have advisory counsel? “[Defendant]: No. “The Court: You realize, of course, you will get no special consideration from the court. And chances are it’s going to be somebody just like me sentencing you to death. I’m being realistic. Do you understand, sir? “[Defendant]: Yes, I understand.” Later, in the same hearing, Judge Munoz inquired again whether defendant wanted advisory or associate counsel. When defendant said he did not, the court stated: “All right. It’s your life. I will state for the record that I think Mr. Blair is making a conscious choice.

He appears to be in full control of his faculties. [][] I think it’s probably a game that he’s hoping that even if he does get the death penalty, that some court is going to look at this and say it isn’t fair.” Later that same day, defendant indicated that he wished to have Attorney Ray Newman appointed as “associate counsel.” Newman appeared in the courtroom, and after ascertaining his availability, Judge Munoz appointed him as “associate counsel” and “standby counsel.” After it became clear that Newman would be unable to attend ail court sessions during the trial, the trial judge, Judge Jerold A.

Krieger, appointed Lonzo Lucas as defendant’s additional advisory counsel. b. Discussion A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. (Faretta, supra, 422 U.S. at pp. 835-836; People v.

Bradford (1997) 15 Cal.4th 1229, 1363 [65 Cal.Rptr.2d 145, 939 P.2d 259].) A defendant seeking to represent himself “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation].” (Faretta, supra, 422 U.S. at p. 835.) “No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation.” (People v.

Koontz (2002) 27 Cal.4th 1041, 1070 [119 Cal.Rptr.2d 859, 46 P.3d 335].) Rather, “the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140 [115 Cal.Rptr.2d 614, 38 P.3d 461]; People v.

Marshall (1997) 15 Cal.4th 1, 24 [61 Cal.Rptr.2d 84, 931 P.2d 262].) Here, the record is replete with instances in which defendant was warned of the dangers and disadvantages of self-representation, both orally and in writing, in both the municipal and superior courts.

For example, defendant was orally warned that representing himself was unwise, that the prosecutor was an experienced lawyer who would have an advantage over him, that as an in propria persona defendant he would receive no special consideration from the court, that he would be unable to claim ineffective assistance of counsel on appeal, that as his own attorney it would be difficult to be objective, and that a death penalty case involved special risks. These oral advisements sufficed to apprise defendant of the dangers and disadvantages of self-representation.

Further, defendant in writing expressed his understanding, on the “Pro. Per. Advisement Form” and “Petition to Proceed in Propria Persona,” of the charge against him and the possible penalties, including death. He further acknowledged, in writing, that he would have to handle pretrial, trial, and many posttrial matters himself without the assistance of an attorney, and that he would have to comply with all substantive and procedural rules, which could be quite technical. He thus demonstrated an understanding of the risks and complexities of his case.

That these latter warnings and understanding were expressed only in writing makes no difference in our determination. (Cf. People v. Marshall, supra, 15 Cal.4th at p. 24.) The Los Angeles County Superior Court’s in propria persona advisement form (sometimes referred to as a Faretta form) serves as “a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation.” (People v.

Silfa (2001) 88 Cal.App.4th 1311, 1322 [106 Cal.Rptr.2d 761].) The court might query the defendant orally about his responses on the form, to create a clear record of the defendant’s knowing and voluntary waiver of counsel. (Cf. People v. Koontz, supra, 27 Cal.4th at p. 1071.) The failure to do so, however, does not necessarily invalidate defendant’s waiver, particularly when, as here, we have no indication that defendant failed to understand what he was reading and signing. To the contrary, defendant demonstrated his ability to read and write in numerous pro se filings before the court.

Defendant also appeared to be of at least normal intelligence and spoke articulately in court. The last superior court judge who considered defendant’s request for self-representation, Judge Munoz, found that defendant was “in full control of his faculties” and was making “a conscious choice.” We have no reason to question these findings. In sum, the record as a whole reflects that defendant was familiar both with the facts and the difficulties of his particular case and with the risks he faced in representing himself against an experienced prosecutor in a capital case.

He demonstrated considerable legal knowledge, and had represented himself at his previous trial on the attempted murder charges involving the same underlying events. These facts support the conclusion that defendant understood the Faretta warnings. (See People v. Lawley, supra, 27 Cal.4th at p. 142 [relying in part on the defendant’s experience in prior trials to find his waiver knowing and intelligent].) Under the circumstances, we have no difficulty in concluding that defendant’s waiver of counsel was knowing and intelligent.

Defendant contends nonetheless that no judge in either the municipal court or the superior court conducted the kind of “searching inquiry” that is required to support a valid waiver of counsel. He claims that no court inquired whether he understood the nature of the charged offense, including the grave risk arising from the special circumstance allegation, or the nature of a capital proceeding, including the possibility of a separate penalty phase. But defendant stated on the “Petition to Proceed in Propria Persona” that he understood that he was being charged with special circumstances murder under

section 190.2, subdivision (a)(19) (murder by the administration of poison), that death was a possible penalty, and that if he continued to represent himself he would be required to handle any separate penalty phase. Further, both Judge Blackwell and Judge Munoz warned defendant that a death penalty case requires the expertise of a lawyer. Judge Blackwell told defendant: “Sir, the State is asking for your life. I think you need all the help you can get.” And after the prosecution announced its decision to seek the death penalty, Judge Munoz told defendant: “At this point, the stakes have just gone up quite a bit.

Now, you are a layman, and you really need a lawyer. It’s your life.” No more was required. (Cf. People v. Lawley, supra, 27 Cal.4th at p. 142 [defendant’s waiver knowing and intelligent even though court did not advise him regarding the possibility of a second phase of the trial to determine penalty].) Defendant further argues that the court made no attempt to determine whether he understood there would be limitations on his ability to investigate defenses and arrange for the assistance of experts. But again, we have rejected contentions that such detailed advisements are necessary. (People v.

Koontz, supra, 27 Cal.4th at pp. 1072-1073 [failure to advise defendant regarding restrictions on library privileges and investigations did not vitiate waiver]; People v.

Jenkins (2000) 22 Cal.4th 900, 1042 [95 Cal.Rptr.2d 377, 997 P.2d 1044] [noting lack of authority for defendant’s claim that trial court must advise a defendant seeking in propria persona status “of each limitation upon his ability to act effectively as counsel that will flow from security concerns and facility limitations”].) Further, as discussed more fully below, defendant received library privileges as well as the services of investigators, a legal “runner,” and experts.

Nothing in the record suggests that defendant’s decision to proceed in propria persona depended on his understanding of his library privileges or his ability to consult with experts. (See People v. Koontz, supra, 27 Cal.4th at p. 1073; People v. Jenkins, supra, 22 Cal.4th at p. 1042.) 2.

Trial court’s failure to declare a doubt concerning defendant’s competence to waive counsel Defendant contends that his Fifth, Sixth, and Fourteenth Amendment rights to the assistance of counsel and to due process and a fair trial, as well as his rights under state statutory law, were violated when, at two points in these proceedings, the trial court failed to declare a doubt concerning defendant’s competence to waive his right to counsel and failed to conduct a hearing into defendant’s competency.

First, defendant contends that Judge Henry R Nelson (who had presided over his trial in the attempted murder case, and who briefly presided during pretrial proceedings in the present case) should have declared a doubt concerning defendant’s competence, based solely on knowledge about defendant that Judge Nelson had gained during the attempted murder trial. Second, defendant contends that the judge who presided at the trial under present review, Judge Jerold A.

Krieger, should have declared a doubt when, during proceedings that occurred between the guilt and penalty phases, defendant’s advisory counsel, Newman and Lucas, questioned defendant’s competence. As we shall explain, we reject both contentions.

Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. (§§ 1367, 1368; Drope v. Missouri (1975) 420 U.S. 162, 181 [43 L.Ed.2d 103, 95 S.Ct. 896]; Pate v. Robinson (1966) 383 U.S. 375, 384-386 [15 L.Ed.2d 815, 86 S.Ct. 836]; People v.

Welch (1999) 20 Cal.4th 701, 737-738 [85 Cal.Rptr.2d 203, 976 P.2d 754].) Failure to declare a doubt and to conduct a competency hearing when there is substantial evidence of incompetence requires reversal of the judgment. (Ibid.) Whether the question for the trial court is competence to stand trial or competence to waive counsel and represent oneself, the competence standard is the same: the defendant must have a “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and . . . a rational as well as [a] factual understanding of the proceedings against him.’ ” (Dusky v.

United States (1964) 362 U.S. 402, 402 [4 L.Ed.2d 824, 80 S.Ct. 788]; see also Godinez v. Moran (1993) 509 U.S. 389, 399-400 [125 L.Ed.2d 321, 113 S.Ct. 2680]; People v. Stewart (2004) 33 Cal.4th 425, 513 [15 Cal.Rptr.3d 656, 93 P.3d 271].) The focus of the inquiry is the defendant’s mental capacity to understand the nature and purpose of the proceedings against him or her. (Godinez v. Moran, supra, 509 U.S. at p. 401, fn. 12; People v. Koontz, supra, 27 Cal.4th at p. 1069.) The defendant’s “ ‘technical legal knowledge’ ” is irrelevant. (People v.

Bradford, supra, 15 Cal.4th at p. 1364, quoting Faretta, supra, 422 U.S. at p. 834.) a.

Judge Nelson’s failure during pretrial proceedings to declare a doubt concerning defendant’s competence and to conduct a competency hearing As mentioned above, defendant premises his first claim that the court erred in failing to declare a doubt about his competence to waive his right to counsel solely on knowledge concerning defendant that Judge Henry R Nelson, who briefly presided over pretrial proceedings in this case long after defendant had been granted the right to represent himself, had gained during defendant’s earlier trial on the attempted murder charges.

Judge Nelson presided over defendant’s 1985 trial for the attempted murders of Green and Miller. After the jury found defendant guilty on both counts in that case, but before defendant’s sentencing, Judge Nelson received and reviewed a probation report.

The report discussed defendant’s employment history (none) and military service (he was discharged for being absent without leave (AWOL) on an excessive number of occasions), and noted that in 1972 in Riverside County defendant was “arrested by the sheriff’s office in regards to a ‘sanity hearing.’ ” The probation report also stated: “During that same year defendant was a patient at Atascadero State Hospital from March until July for 1026 Penal Code—Forgery—Steal car.” At the sentencing hearing on August 16, 1985, Judge Nelson remarked that he believed the maximum available sentence of 14 years four months was too lenient for defendant’s crimes.

Judge Nelson explained: “Apparently you are what is called in the trade a psychopath, Mr. Blair. In other words, you just don’t have any kind of human feelings for anybody else. That’s apparently your situation now. “There’s some indication that you’ve had some previous bouts with psychiatric disability, and that’s not surprising. “You’re 45 years old, and by your own statement you’ve never held a permanent job in your life, and apparently you were fooling around doing some studying on student loans.

Apparently did some flitting around at some school. “Apparently the military, the Marine Corps discharged you, and according to you, for too many [AWOL’s]. So maximum sentence in this case is not enough. [][]... [f] “You, who ruined one woman’s life, put her in a vegetative state, ruined another woman, the most you can get is 14 years and 4 months .... “But all this is just a joke to you, and I can see that’s true. Because, as I say, that’s your problem.” Judge Nelson then imposed the maximum sentence. Nearly two years later, as a result of defendant’s statutory peremptory challenge (see Code Civ.

Proc., § 170.6) to the judge then presiding, Judge Roger W. Boren, the present capital case was assigned to Judge Nelson for a brief period beginning on May 1, 1987. As described in the previous part, defendant had been representing himself since October 1986, having been questioned and admonished by various judges regarding his self-representation.

In an answer to a challenge for cause filed against him by defendant, Judge Nelson acknowledged having expressed “regret” during the attempted murder sentencing “that the sentence could not have been longer, since the evidence indicated a cold, calculated attempt to kill one woman, and almost causing the death of another woman through that attempt. The Defendant’s actions, as well as his demeanor before me (he secreted an exhibit into the holding tank and flushed it down the drain), indicate a dangerous psychopath, and I did say so.” Some time later that summer, Judge Nelson was reassigned to another department.

During the brief period Judge Nelson presided over this case, the issue of defendant’s competence to waive counsel or to represent himself never arose. Judge Nelson did not preside over any further proceedings in this case. Defendant contends that because Judge Nelson had presided over defendant’s attempted murder trial in 1985, he was aware in 1987—when he was assigned to this capital case—of facts that should have raised a bona fide doubt in his mind whether defendant was competent to waive counsel and represent himself in the capital trial.

Therefore, defendant claims, Judge Nelson erred in failing to declare a doubt concerning defendant’s competence and to conduct a competency hearing in 1987. Defendant observes that Judge Nelson was aware, from the probation report in the attempted murder case, that defendant had been (1) found insane in a criminal proceeding in 1972 and confined to Atascadero State Hospital for several months; (2) unable to hold a job during his adult life; and (3) discharged from the military for being AWOL on an excessive number of occasions.

We disagree that the foregoing amounted to substantial evidence that defendant was incompetent to waive counsel at the time of the capital trial. Nothing about defendant’s discharge from the military or his inability to hold a job indicated that he did not have the mental “ ‘capacity to understand the nature and object of the proceedings against him.’ ” (Godinez v. Moran, supra, 509 U.S. at p. 401, fn. 12; see also People v.

Koontz, supra, 27 Cal.4th at p. 1068 [evidence of defendant’s inability to “ ‘function socially’ ” was not substantial evidence of defendant’s incompetence to stand trial, to waive counsel, or to represent himself].) Similarly, the evidence of defendant’s possible mental instability did not amount to substantial evidence of incompetence to waive counsel at the time of the capital trial.

Defendant’s confinement at Atascadero State Hospital in 1972 suggested that he might have been suffering from a mental illness at that time, and Judge Nelson noted that defendant appeared to have had “previous bouts with psychiatric disability.” The Atascadero confinement was in 1972, however, 12 years before the present crimes took place, and there was nothing in the record of this case pertaining to the period between 1972 and 1987 to indicate that defendant might be mentally ill at the time of the capital trial. (See People v.

Stewart, supra, 33 Cal.4th at pp. 516-517.) Moreover, even a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt concerning a defendant’s competence and to conduct a hearing on that issue. (See, e.g., People v.

Ramos (2004) 34 Cal.4th 494, 508 [21 Cal.Rptr.3d 575, 101 P.3d 478] [defendant must exhibit more than a preexisting psychiatric condition to be entitled to a competency hearing].) We have found that evidence of more serious mental disturbances than defendant displayed did not amount to substantial evidence of incompetence requiring a competency hearing. (See, e.g., People v.

Ramos, supra, 34 Cal.4th at pp. 508-511 [defendant’s death wish, history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimony that defendant was physically abused as a child and suffered from a paranoid personality disorder did not constitute substantial evidence of incompetence requiring court to conduct a competency hearing].) Here, the circumstance that defendant had been found insane in a criminal proceeding and had been confined to a mental hospital for an unspecified period approximately 15 years prior to the present trial, without more, was insufficient to compel a doubt whether defendant had the mental capacity to understand the proceedings against him in the current prosecution.

Nor did Judge Nelson’s 1985 statement that defendant was a “psychopath” indicate that Judge Nelson entertained or should have entertained a doubt concerning defendant’s competence in 1987. Defendant notes that one definition of “psychopath” is “a mentally ill or unstable person.” Thus, he contends, Judge Nelson must have recognized that defendant was mentally ill. We disagree. The term “psychopath” (or “sociopath”) commonly is used to describe individuals with “antisocial personality disorder,” defined as “a pervasive pattern of disregard for, and violation of, the rights of others.” (See Am.

Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (2000 4th rev. ed.), pp. 701-702.) It appears that Judge Nelson intended this meaning when he used the term “psychopath,” for he immediately explained: “In other words, you just don’t have any kind of human feelings for anybody else.” He further explained that it was defendant’s cold and calculated crime and his destruction of evidence in the attempted murder trial that had prompted him to label defendant a “dangerous psychopath.” Thus, Judge Nelson’s use of the term “psychopath” in describing defendant apparently did not indicate a belief, even in 1985, that defendant was psychotic, out of touch with reality, or otherwise unable to understand the proceedings against him.

Defendant also contends that the following additional evidence should have raised a doubt in Judge Nelson’s mind regarding defendant’s competence: (1) at a time when Judge Stromwall was presiding over the attempted murder case, the Court of Appeal had issued a pretrial ruling finding good cause for a continuance to allow defendant’s counsel to investigate the possibility of an insanity defense; (2) in the capital case, Judge Blackwell found that defendant could not read and understand simple English, and Judge Munoz assertedly found he could not understand the saying, “a lawyer who tries his own case has a fool for a client”; and (3) defendant told Judge Munoz that he was unable to get along with the attorneys appointed to represent him.

Nothing in the record, however, indicates that Judge Nelson was or should have been aware of these facts at the time he presided over pretrial proceedings in the capital case in 1987. They therefore have no bearing on whether Judge Nelson should have declared a doubt regarding defendant’s competence. (See People v. Jones (1991) 53 Cal.3d 1115, 1152 [282 Cal.Rptr. 465, 811 P.2d 757] [due process requires a competency hearing if defendant presents substantial evidence of incompetence]; People v.

Castro (2000) 78 Cal.App.4th 1402, 1415 [93 Cal.Rptr.2d 770] [due process requires competency hearing when trial court becomes aware of substantial evidence of incompetence].) We also note that defendant overstates what is reflected in the record. After fully exploring a possible insanity defense in the attempted murder case, defendant’s counsel informed Judge Stromwall that the insanity issue “is no longer involved in this matter” and stated his belief that there was nothing that would impair defendant from representing himself.

Further, although Judge Blackwell denied defendant’s request for self-representation on the ground that defendant could not “read or write simple English” (because he did not follow all the instructions in filling out the pro. per. advisement form), that finding appears to be incorrect, in view of defendant’s demonstrated ability, which we already have noted, in the preparation of numerous pro se filings. Moreover, Judge Munoz did not find that defendant could not understand the saying about a lawyer trying his own case being a fool.

Accordingly, none of these asserted facts compelled the expression of a doubt concerning defendant’s competence to waive counsel. Finally, we note that defendant’s advisory counsel did not advise Judge Nelson that defendant’s competence might be in issue. In sum, there was no substantial evidence of incompetence requiring Judge Nelson to declare a doubt concerning defendant’s competence and to conduct a competency hearing at his capital trial. (See §§ 1367, 1368.) b.

Judge Krieger’s failure between the guilt and penalty phases to declare a doubt concerning defendant’s competence and to conduct a competency hearing Defendant’s second claim of error is premised upon the failure of the trial judge, Judge Krieger, who had observed defendant’s performance at the guilt phase, to declare a doubt concerning defendant’s competence when defendant’s advisory counsel raised the issue between the guilt and penalty phases.

At an ex parte hearing on May 8, 1989, after the guilt verdict had been rendered but before the penalty phase began, defendant’s additional advisory counsel, Lucas, informed the court that the defense was preparing to have a psychiatrist interview defendant. Lucas added that he believed defendant might not be competent to represent himself or to stand trial.

The court disagreed: “Having seen [defendant] in the past month and a half, I don’t find that he’s incapable of standing trial, at least from a judicial—a psychological lay person’s point of view, [f] He’s a lot more competent than most pro. per.’s I’ve seen.” The court refused to find that defendant’s decision to represent himself was grounds “per [se] ... for some type of psychological finding.” The next court day, May 10, 1989, Lucas again raised the issue of defendant’s competence to represent himself.

Lucas explained that, having observed defendant through the guilt phase, he did not believe that defendant was “competent legally to undertake the representation he’s done.” When the court asked him to clarify this statement, Lucas replied: “I’m talking about his legal competency ... I’m not saying that he has a mental problem at this point, and I haven’t raised that issue.” Co-advisory counsel Newman, however, added: “I would be inclined to say that a lot of it is mental, too.

I don’t think [defendant]—though him and I disagree on that—is mentally competent to represent himself.” The court again disagreed with both attorneys, finding defendant possessed a “good grasp of a lot of legal issues” and appeared “mentally stable.” Newman observed that there had been “an incarceration of [defendant] at Atascadero State Hospital” and asked the court, over defendant’s objection, to declare a doubt as to defendant’s competency.

The court replied: “I have no doubt as to his competency, his mental capacity and his sanity.” Newman then said that over the years he had tried to persuade defendant to be examined by a psychiatrist, but defendant had refused. When the court asked defendant whether he was requesting the appointment of a psychiatrist, defendant stated: “No.

I made my position clear ... to both advisory counsel, that I am not—I’m not raising an incompetency hearing nor an insanity—nor an insanity issue.” Defendant reiterated that he wished to represent himself at the penalty phase as well, and that he understood “the drawbacks” of that course of action.

Later that day, during an in camera hearing regarding defense strategy held in the prosecutor’s absence, Newman stated for the record that he and Lucas had advised defendant to be examined by a psychiatrist, to consider calling family members or friends as penalty phase witnesses, and to consider introducing his Atascadero State Hospital records, but that defendant had refused to do so.

Newman told the court that there were “records from Atascadero State Hospital that I think would have a bearing—I think would have had a bearing also as far as the guilt phase and the penalty phase.” Newman said he had long believed “that Mr. Blair might have some mental deficiency that would have been to the benefit at least as to the guilt phase and definitely of some benefit as to the penalty phase.” Lucas added that defendant had “spent 95 percent of his time writing writs, writing and thinking writs.

He has spent absolutely no significant time in preparation of this case.” Defendant confirmed that he had instructed his advisory attorneys not to contact his family members or friends, that he did not want to introduce the Atascadero records, and that he did not want to put on, in his words, a “diminished capacity or an insanity defense.” When the court asked whether there would be any mitigating evidence, defendant stated: “I am not sure. I have to do some research on that, just what is mitigating evidence.

It may be my defense will be that the district attorney shouldn’t be allowed to put on aggravating evidence. I’m not sure what mitigating evidence would be—there would be. I do know that the—the insanity or diminished capacity is out, and I do know that—that compelling my family members to—to attend is out.” Defendant contends that Judge Krieger had before him substantial evidence that defendant was unable to consult with his lawyers or to rationally understand the nature of the proceedings.

Defendant asserts that he did “almost nothing” to prepare for the guilt and penalty phases, prevented his advisory counsel from investigating and presenting mental health evidence, prevented advisory counsel from investigating any kind of mitigating evidence, and spent most of his time researching and writing writs instead of preparing for trial. Defendant contends that these actions were the product of his mental illness and should have alerted the trial court to his possible incompetence. But nothing concerning defendant’s failure to prepare indicated that he did not understand the proceedings against him.

Further, we have rejected the notion that a defendant’s choice not to present a defense, even at the penalty phase, amounts to substantial evidence of incompetence. (People v. Bradford, supra, 15 Cal.4th at p. 1373 [defendant’s choice not to present a defense at the penalty phase did not compel a doubt as to his competence to stand trial and represent himself].) Defendant further claims the record demonstrates that he did not understand the nature of mitigating evidence. Defendant’s technical legal knowledge, however, was irrelevant to the competency inquiry. (See People v.

Bradford, supra, 15 Cal.4th at p. 1364, citing Faretta, supra, 422 U.S. at p. 834.) Defendant further contends there were other signs of mental illness, which included his hospitalization at Atascadero State Hospital, the irrational nature of the crime, and his insistence on self-representation in this capital case. But we have rejected the notion that the existence of Atascadero records raised a reasonable doubt as to defendant’s competence. Further, the circumstance that the crime itself was irrational does not raise a reasonable doubt as to defendant’s competence; the same could be said of many murders.

Moreover, we agree with the trial judge that the fact that a defendant represents himself or herself cannot be the basis, in itself, “for some type of psychological finding,” because such a rule would require a competency hearing in every case in which a defendant exercises his or her right of self-representation—a standard that neither the high court nor this court has adopted. Defendant further observes that his advisory counsel expressed doubts concerning defendant’s competency.

Lucas clarified, however, that he was questioning only defendant’s “legal” competency, not any possible “mental problem.” Again, defendant’s legal knowledge was irrelevant to the competency inquiry. (See People v. Bradford, supra, 15 Cal.4th at p. 1364, citing Faretta, supra, 422 U.S. at p. 834.) Further, Newman’s general opinion that defendant might be incompetent, although relevant, did not compel the court to declare a doubt or to order a competency hearing. (People v. Welch, supra, 20 Cal.4th at pp. 738-739, fn. 7; People v. Rodrigues (1994) 8 Cal.4th 1060, 1112 [36 Cal.Rptr.2d 235, 885 P.2d 1]; People v.

Howard (1992) 1 Cal.4th 1132, 1164 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) Newman did not explain the basis of any belief on his

part in defendant’s possible incompetence other than to highlight the Atascadero hospitalization, defendant’s refusal to be examined by a psychiatrist, and defendant’s insistence on remaining in propria persona and filing numerous motions and writs. As we have explained, those circumstances did not compel a doubt concerning defendant’s competence. Further, the trial court had ample opportunity to observe defendant personally. (See People v.

Ramos, supra, 34 Cal.4th at p. 509.) In sum, whether the facts outlined above are considered separately or cumulatively, “the record in the present case does not indicate that a reasonable doubt existed [or should have existed] as to defendant’s ability to understand the proceedings against him.” (People v. Bradford, supra, 15 Cal.4th at p. 1373.) Defendant further contends that the court erred in allowing him to decide whether or not to request the appointment of a psychiatrist. Defendant, however, was acting as his own attorney.

Because the court did not find reason to doubt defendant’s competence, it properly deferred to defendant’s wishes on that score. Defendant finally contends that the trial court “utterly failed to follow the requirements” of

section 1368 when it failed to appoint counsel for him, to solicit counsel’s opinion as to his competence, to order a competency hearing, and to appoint a psychiatrist or psychologist to examine him.

Those statutory duties arise, however, only if the court entertains a doubt as to the defendant’s competence. (§ 1368, subd. (a) [requiring the trial judge to declare a doubt concerning the defendant’s competence, appoint counsel if the defendant is unrepresented, and solicit counsel’s opinion as to competence “[iff, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant” (italics added)]; id., subd. (b) [requiring the trial judge to order a competency hearing “[i]f counsel [appointed pursuant to subdivision (a)] informs the court that he or she believes the defendant is or may be mentally incompetent”]; § 1369 [outlining the procedure for a hearing ordered under

section 1368, including the appointment of a psychiatrist or psychologist to examine the defendant].) Because the court here never entertained or declared such a doubt, it was not obligated to appoint counsel or to take the other steps outlined in sections 1368 and 1369. 3. Asserted ineffective assistance of advisory counsel Defendant contends he was deprived of the effective assistance of his advisory counsel in violation of the Sixth Amendment to the United States Constitution, and thus that reversal of the guilt and penalty judgments is warranted. a.

Facts As noted above, the master calendar judge, Judge Munoz, appointed Ray Newman as associate counsel and standby counsel on November 4, 1986. Thereafter, Newman appeared in court with defendant during all pretrial proceedings. Between November 1986 and May 1987, defendant, Newman, and the court occasionally referred to Newman as “associate counsel,” “cocounsel,” or “auxiliary counsel.” Newman also filed several motions as attorney for defendant. In early May 1987, defendant’s case was assigned to Judge Nelson.

At the May 4, 1987, hearing, the court made clear that it would not permit defendant and Newman to share defendant’s representation. On one occasion, when Newman attempted to object to the prosecution’s argument regarding a requested continuance, the court cut him off: “First of all, let’s remember your status in the case. The defendant is acting in pro. per., as I understand.” In response to Newman’s explanation that he was “associate” counsel, the court stated: “I don’t see how a pro. per. can be chief counsel and . . . have a lawyer in effect representing him. ...

I’m not going to permit the defendant to be in pro. per. and in effect represented before the court by a lawyer. If he’s going to be in pro. per., he’s going to be in pro. per. f If the defendant wants to be represented by a lawyer, he has that right. If the defendant wants to go in pro. per., he has that right. I see nothing wrong with having a lawyer assist the defendant in a death penalty case, but I’m not going to have a pro. per. in effect being represented by a lawyer in these proceedings, f Make the choice. Does he want to be represented by an attorney?

If that’s the case, fine; I’ll appoint you counsel, Mr. Newman, and you can go ahead and represent the defendant. If he wants to be pro. per., you may remain as advisory counsel, but you won’t be co-counsel to a pro. per.” After more discussion, the court addressed defendant: “Now, make a decision, Mr. Blair. Do you want to represent yourself? If so, fine. You may have an advisory counsel. If you want to have Mr. Newman represent you, you may not be pro. per. And we’ll go from there. ... So let’s make a decision, Mr. Blair. ...

Do you want to be pro. per., or do you want a lawyer representing you?” Defendant responded: “I’m pro. per.” The court replied: “All right. Then, Mr. Newman, you may remain as advisory counsel.” At another hearing a few weeks later, Judge Nelson reiterated that Newman was not defendant’s attorney, and directed Newman to “let the defendant represent himself in pro. per., please.” Judge Nelson remained assigned to this case until some time later that summer, when another judge was assigned.

After that time, the court, the prosecutor, and the defense resumed occasionally referring to Newman as “associate counsel.” Subsequently, the case was assigned to Judge Candace Cooper in January 1988. Judge Cooper initially expressed some confusion concerning Newman’s status. For example, on February 26, 1988, she said to Newman: “I’m not sure if it’s cocounsel or advisory counsel [capacity] that you are working in.” Then again on January 10, 1989, she asked Newman “is it advisory or cocounsel technically?” Newman responded: “It’s been both.

I’m not sure which one.” At all times, however, Judge Cooper made clear that defendant was his own attorney. For example, on March 11, 1988, she stated: “Mr. Blair, you are your own counsel in this matter. You have cocounsel with you.” And again, on January 10, 1989, she said: “Nonetheless, Mr. Blair is pro. per. I expect this matter to move along.” Finally, on March 6, 1989, Judge Cooper denied a further continuance that defendant had requested based on Newman’s involvement in another trial. In defendant’s presence, the court addressed Newman: “I understand that.

You are, however, advisory counsel, not trial counsel. Mr. Blair can try this matter. He has been pro. per. and advisory counsel is not standby counsel. It is not backup counsel. It is advisory counsel.” When Newman again began to argue in favor of a continuance, Judge Cooper stated: “Mr. Newman, with all due respect, you keep talking like you are going to try this case [but] you are advisory counsel.” Ultimately, the parties appeared for trial on March 17, 1989. Judge Cooper was unavailable, so the case was assigned to Judge Krieger.

Because Newman was involved in another capital trial, the court agreed to continue the matter for a few days to allow Newman to locate additional advisory counsel. The court, however, denied a lengthy continuance, reasoning that defendant, not Newman, was counsel of record. The court reiterated to defendant, “You’re still pro. per. status. He [Newman] is only advising.” The court also indicated it would grant a continuance if defendant gave up his in propria persona status, but defendant refused.

The court explained to defendant: “Well, it seems to me that with your pro. per. status then you’re not engaged in another trial. If you relinquished your pro. per. status and Mr. Newman were your attorney of record, then the attorney of record is engaged in another trial or will be and, therefore, there is that distinction to be made.” A few days later, the court appointed Lonzo Lucas as additional advisory counsel. The court later denied a 60-day continuance to allow Lucas to familiarize himself with the case, reasoning that defendant, as counsel, was prepared to try the case.

Jury selection began on March 22, 1989. Thereafter, either Newman or Lucas, or both, was present in court on each trial day, except during jury deliberations when counsel were on call. The court ruled that only defendant would be allowed to address the court when the jury was present, and told prospective jurors that defendant was representing himself “assisted” by Lucas and Newman. Upon defendant’s request, the court permitted Newman to deliver defendant’s guilt phase closing argument, but only after defendant expressly waived “any objection to any change in tactics or emphasis” that Newman might make.

Again upon defendant’s request, and after defendant again waived his right to object to any change in tactics, defendant’s additional advisory counsel, Lucas, presented the defense penalty phase closing argument. Lucas also argued the automatic motion to modify the verdict. b.

Discussion Under the Sixth Amendment, “[defendants who have elected self-representation may not thereafter seek reversal of their convictions on the ground that their own efforts were inadequate and amounted to a denial of effective assistance of counsel. [Citation.] This rule applies whether or not the self-represented defendant has been assisted by an attorney acting as advisory counsel or in some other limited capacity. [Citations.]” (People v. Bloom (1989) 48 Cal.3d 1194, 1226 [259 Cal.Rptr. 669, 774 P.2d 698]; accord, People v.

Pinholster (1992) 1 Cal.4th 865, 930 [4 Cal.Rptr.2d 765, 824 P.2d 571].) “While the Sixth Amendment guarantees both the right to self-representation and the right to representation by counsel... a defendant who elects self-representation ‘does not have a constitutional right to choreograph special appearances by counsel’ (McKaskle v. Wiggins (1984) 465 U.S. 168, 183 [79 L.Ed.2d 122, 104 S.Ct. 944]). Thus none of the ‘hybrid’ forms of representation, whether labeled ‘cocounsel,’ ‘advisory counsel,’ or ‘standby counsel,’ is in any sense constitutionally guaranteed.” (People v.

Bloom, supra, 48 Cal.3d at p. 1218; accord, People v. Stewart, supra, 33 Cal.4th at pp. 518-519; People v. Bradford, supra, 15 Cal.4th at p. 1368.) Accordingly, “[t]o prevail on a claim that counsel acting in an advisory or other limited capacity has rendered ineffective assistance, a self-represented defendant must show that counsel failed to perform competently within the limited scope of the duties assigned to or assumed by counsel [citations], and that a more favorable verdict was reasonably probable in the absence of counsel’s failings [citations].

A self-represented defendant may not claim ineffective assistance on account of counsel’s omission to perform

an act within the scope of duties the defendant voluntarily undertook to perform ... at trial.” (People v. Bloom, supra, 48 Cal.3d at pp. 1226-1227, italics in original.) However, “[a]s to those aspects of the representation over which counsel retains control, counsel remains responsible for providing constitutionally effective representation, and the defendant may assert a claim of ineffective assistance of counsel.” (People v.

Mendoza (2000) 24 Cal.4th 130, 157 [99 Cal.Rptr.2d 485, 6 P.3d 150].) Defendant contends that Newman was effectively “associate counsel” until the eve of trial when, on March 6, 1989, the court denied the defense request for a continuance based on Newman’s involvement in another trial. Defendant argues that forcing him to go to trial without Newman’s assistance was analogous to removing a represented defendant’s chosen attorney on the eve of trial in violation of the Sixth Amendment right to counsel.

We disagree. “[T]he powers and responsibilities which attend the representation of a criminally accused person should never be conferred jointly and equally on the accused and the attorney. Rather, in all cases of shared or divided representation, either the accused or the attorney must be in charge. Stated otherwise, at all times the record should be clear that the accused is either self-represented or represented by counsel; the accused cannot be both at once.” (People v. Bloom, supra, 48 Cal.3d at pp. 1218-1219; accord, People v. Stewart, supra, 33 Cal.4th at p. 518; People v.

Bradford, supra, 15 Cal.4th at p. 1368.) Responsibility for clarifying the record in this regard rests with the trial court. Here, the record unfortunately reflects some initial confusion as to the scope of Newman’s role when the court first appointed him in November 1986, because the court used both the term “associate counsel” and the term “standby counsel.” Any initial confusion was dispelled, however, in May 1987, when Judge Nelson clarified that the court would not permit defendant and Newman to share defendant’s legal representation, and that Newman was solely advisory counsel.

The record suggests that defendant understood the limits of advisory counsel’s role, because in arguing for a continuance based on Newman’s unavailability, defendant cited People v. Bigelow (1984) 37 Cal.3d 731 [209 Cal.Rptr. 328, 691 P.2d 994], in which we explained that advisory counsel acts as an advisor or consultant only. Thus, from May 1987 forward, the record reflects no reasonable basis for defendant to have believed that he would not be expected to try the case himself.

Although various judges may have expressed confusion concerning Newman’s status, at each point it was made clear that defendant alone was counsel of record. As early as March 11, 1988, more than a year before the trial began, Judge Cooper emphasized that defendant was his own counsel and was therefore responsible for determining which defense motions to bring. On January 10, 1989, she reiterated that she expected the case to “move along” despite Newman’s possible unavailability, because “Mr.

Blair is pro. per.” And Judge Krieger, who presided over the actual trial, made it crystal clear that defendant was in charge. Judge Krieger gave defendant the option of relinquishing his in propria persona status in exchange for a continuance to allow Newman to assume defendant’s representation, but defendant refused. That the court granted several continuances based on Newman’s unavailability is not inconsistent with a proper understanding of Newman’s limited role as advisory counsel.

Before delivering the guilt phase closing argument, Newman confirmed that defendant had been in charge of trial strategy all along and that Newman, as advisory counsel, had not had the power to subpoena witnesses or to tell defendant which witnesses to call. Thus, there is no merit in defendant’s contention that he somehow was deprived of appointed counsel at the last minute. Defendant contends that even if Newman was solely advisory counsel, he performed incompetently “within the limited scope of the duties” he had assumed. (People v.

Bloom, supra, 48 Cal.3d at p. 1226, italics omitted.) Below we address each of defendant’s contentions that either Newman or defendant’s additional advisory counsel, Lucas, performed incompetently. i. Newman’s absence from the trial Defendant contends that Newman could not possibly have rendered effective assistance, because he was absent from the courtroom for more than half of the trial. We disagree. We never have held that advisory counsel must be present during the entire trial.

In any event, here defendant had the assistance of additional advisory counsel, Lucas, at trial; the court appointed Lucas as additional advisory counsel specifically to assume Newman’s role in Newman’s absence. Lucas was present on each of the days that Newman was not, and defendant points to nothing in Lucas’s representation on those days that was not competent. Relying upon State v. Parson (Minn.Ct.App. 1990) 457 N.W.2d 261, 263, defendant contends that advisory counsel at a minimum should be present in court during the trial. That case, however, dealt with standby counsel, not advisory counsel.

The two roles are distinct. “Standby counsel” is an attorney appointed for the benefit of the court whose responsibility is to step in and represent the defendant if that should become necessary because, for example, the defendant’s in propria persona status is revoked. (People v. Clark (1992) 3 Cal.4th 41, 149 [10 Cal.Rptr.2d 554, 833 P.2d 561]; People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14 [259 Cal.Rptr. 701, 774 P.2d 730].) “Advisory counsel,” by contrast, is appointed to assist the self-represented defendant if and when the defendant requests help. (People v.

Hamilton, supra, 48 Cal.3d at p. 1164, fn. 14; see also Littlefield v. Superior Court (1993) 18 Cal.App.4th 856, 858 [22 Cal.Rptr.2d 659]; People v. Kurbegovic (1982) 138 Cal.App.3d 731, 757 [188 Cal.Rptr. 268].) Here, whatever Newman’s status when he initially was appointed, the court subsequently made clear that he was solely advisory counsel. As such, there was no requirement that he be present at each court session, particularly because additional advisory counsel Lucas was present when Newman was not.

Defendant next contends that “it was Newman’s job to prepare the defense experts for trial,” yet Newman did so ineffectively, with the result that “the defense that was supposed to be asserted, that the cause of death was not the cyanide but some other intervening cause, was never presented.” In this regard, defendant observes that Judge Krieger denied defendant’s request to instruct the jury on “intervening cause” because there was no evidence presented to support that instruction.

We first note that nothing in the record supports defendant’s contention that Newman assumed full responsibility for preparing defense experts. Even assuming he had done so, defendant’s claim would fail. Defendant contends in effect that Newman failed to meet in advance with the defense experts— Dr. Latif and Dr.

Itabashi—and failed to provide them with sufficient information to testify effectively for the defense. “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v.

Mendoza Tello (1997) 15 Cal.4th 264, 266 [62 Cal.Rptr.2d 437, 933 P.2d 1134].) “Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus.” (Id. at pp. 266-267.) Here, the record on appeal does not explain why Newman prepared the experts as he did, and there could be a satisfactory explanation for Newman’s conduct. For example, Newman’s failure to give Dr.

Itabashi any of Green’s medical records to review before testifying could have been a deliberate defense strategy to keep Dr. Itabashi in the dark about defendant’s case so that he could testify only about a hypothetical situation. In any event, defendant does not demonstrate that he was prejudiced by any failure to prepare the experts.

The jury was instructed that a proximate cause of death is “a cause which, in the natural and continuous sequence, produces death and without which the death would not have occurred.” Defendant does not explain how, even had the defense experts been better prepared, they could have persuaded the jury that the cyanide given to Green was not a proximate cause of her death. Defendant also contends that Newman’s absence from the trial made it impossible for him to give a “coherent” guilt phase closing argument.

Because defendant expressly waived any objection to Newman’s closing argument, we decline to reach this claim. In any event, we would find the claim meritless. We note that Newman had available the daily trial transcripts for preparation of his argument. Although Newman’s argument elicited objections from the prosecution for misstating evidence, on the whole Newman presented a coherent argument based upon an effort to persuade the jury to find a reasonable doubt that defendant could have placed cyanide in a sealed gin bottle or that Green died of cyanide poisoning. ii.

Newman’s failure to keep confidential the appointment of Dr. Root Defendant next contends that, in seeking the appointment of Dr. Root as the defense pathologist, Newman failed to follow the procedures set forth in

section 987.9, which allow the defense to apply to the court on a confidential basis for funds for the payment of experts. Defendant contends that Newman’s failures in this regard permitted the prosecution to learn of Dr. Root’s unfavorable conclusions and to call him as a rebuttal witness at the guilt phase, with devastating results. At the time of defendant’s trial,

section 987.9 provided, as it does today in subdivision (a), that “the fact that an application [by an indigent defendant for reasonably necessary funds for the payment of experts] has been made shall be confidential and the contents of the application shall be confidential.” The confidentiality provision evidently was intended to prevent the prosecution from anticipating defense strategy. (People v. Anderson (1987) 43 Cal.3d 1104, 1132 [240 Cal.Rptr. 585, 742 P.2d 1306].) Despite the existence of this confidentiality provision, Newman requested the appointment of Dr.

Root in open court in the presence of the prosecutor, who informed the defense and the court that he knew Dr. Root on a social basis and had called him as a witness several times. Newman also filed an unsealed, written motion requesting the appointment of Dr. Root. After the defense had presented its case-in-chief, however, Newman informed the court that the defense would not be calling Dr. Root. The prosecutor then stated; “Dr. Root is here. The defense told Dr. Root to leave. But I had a chance to talk to Dr. Root briefly, and I intend to call Dr. Root.” Dr.

Root then testified in the prosecution’s rebuttal case that, contrary to the defense position, cyanide poisoning caused the brain damage and pneumonia that led to Green’s death. Newman later informed the court that he had advised defendant against calling Dr. Root to testify, but defendant had subpoenaed him anyway. The record does not reflect whether Newman had a tactical basis for declining to keep Dr. Root’s appointment confidential, and it would be proper for us to reject defendant’s contention on this basis. (People v.

Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) In any event, defendant fails to establish that the failure to keep Dr. Root’s appointment confidential prejudiced him. It was defendant’s own choice to subpoena Dr. Root against Newman’s advice, and it was that subpoena that brought Dr. Root to court and resulted in the prosecutor’s interview with him. Moreover, even had the prosecutor never learned of Dr. Root’s opinion concerning defendant’s case and never called him to testify, it is not reasonably probable that the outcome of the guilt phase would have been different. (See People v.

Bloom, supra, 48 Cal.3d at pp. 1226-1227.) The prosecution presented the testimony of Green’s treating physician, Dr. Becker, who testified that cyanide poisoning caused her brain damage and resulting complications. Dr. Gray, who had performed the autopsy on

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