THE PEOPLE, Plaintiff and Respondent, v. RICHARD RAMIREZ, Defendant and Appellant, 39 Cal. 4th 398

Opinion MORENO, J. On November 7, 1989, defendant Richard Ramirez was sentenced to death for the so-called Night Stalker murders following his convictions of 12 counts of first degree murder (Pen. Code, § 187, subd. (a)), one count of second degree murder (§ 187, subd. (a)), five counts of attempted murder (§§ 187, 664), four counts of rape (§261, former subd. (2)), three counts of forcible oral copulation (§ 288a, former subd. (c)), four counts of forcible sodomy (§ 286, former subd. (c)), and 14 counts of first degree burglary (§ 459).

The jury found true allegations of multiple-murder, burglary, rape, forcible sodomy, and forcible-oral-copulation special circumstances. (§ 190.2.) The court imposed a sentence of death. This appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, the judgment is affirmed. FACTS Prosecution’s Case On the afternoon of June 28, 1984, Jack Vincow arrived at his elderly mother’s apartment in Los Angeles and was surprised to find the screen missing from her open living room window and the front door unlocked.

The missing window screen was on the floor of the living room, and the contents of the living room were in disarray. He found his mother, Jennie Vincow, dead in her bedroom. Her body was on the bed with her feet at the head of the bed. Her throat had been slashed and her body was partially covered by a blanket. He ran out of the apartment and called the police. The victim had been stabbed multiple times in her upper chest, neck, arm, and leg and had some wounds on her hands. Her throat had been slashed “almost from ear to ear.” It appeared she may have been sexually assaulted.

Her dress was partially lifted and her girdle had been pulled down and tom. The temperature of the deceased’s liver was measured and the degree of rigor mortis noted, but the coroner had difficulty estimating the time of death. The temperature of the victim’s liver indicated she had been dead only a couple of hours, but that estimate may have been inaccurate, because the body had been covered and the room may have been warm.

Other factors, particularly the degree of rigor mortis, indicated the victim had been dead for “anywhere from six to eight hours, up to as long as 72 hours.” Jack Vincow had seen his mother alive approximately 24 hours earlier, however, when he had visited her the previous afternoon. Police recovered fingerprints from the screen found on the living room floor that later were identified as defendant’s fingerprints. Nine months later, on March 17, 1985, shortly before 11:00 p.m., Maria Hernandez entered the garage of the condominium she shared with her roommate, Dale Okazaki, in Rosemead.

As the garage door was closing, she unlocked the door to her condominium and heard a noise behind her. She turned to see defendant holding a gun pointed at her face. She raised her hand to shield her face and said something like “don’t” or “stop.” Defendant approached within a few feet and fired the gun. The bullet hit Hernandez in her hand and apparently was deflected by the keys she was holding. She fell to the floor. She did not lose consciousness, but lay still. Defendant shoved her aside and entered the condominium. The door closed behind him and Hernandez opened the garage door and ran outside.

She stumbled and fell. As she got up, she heard a “muffled loud sound.” She ran around to the front of the condominium complex and saw defendant leaving the complex. She ducked behind a car as he pointed the gun at her. She said, “please don’t shoot me again” and he lowered the gun and ran away. Hernandez approached the front door of her condominium and found it ajar. Inside, she found her roommate, Okazaki, lying dead on the kitchen floor. She had been shot in the forehead from no more than 18 inches away. Her blouse had been pulled up. Hernandez summoned the police.

At a subsequent autopsy, a .22-caliber bullet was retrieved from Okazaki’s skull. Police found on the ground outside the garage a blue baseball-type cap bearing the name of the rock group AC/DC. An associate of defendant’s later testified that the cap looked like one defendant wore. Hernandez later identified defendant as her assailant at a police lineup and identified defendant at trial.

About an hour after Dale Okazaki was murdered and Maria Hernandez was shot, shortly before midnight on March 17, 1985, Jorge Gallegos was sitting in his parked car with his girlfriend in front of her residence in Monterey Park when his attention was drawn by the sound of two cars applying then-brakes. A car driven by defendant apparently had forced a car driven by Tsai-Lian Yu to the side of the road, where it was forced to stop with its bumper against the bumper of a parked car. Defendant got out of his car and pulled Yu out of her car as she fought.

Joseph Dueñas was in his second-floor apartment when he heard a woman scream “help me.” He went onto his balcony and saw Yu struggling with a man near the curb. Dueñas grabbed a telephone to call the police and returned to the balcony. He saw the man push Yu away, enter his car, and drive away. As defendant drove past Gallegos, Gallegos could see his profile and noted the license number of defendant’s vehicle. Gallegos identified defendant at trial. After defendant left, Yu crawled a short distance and then lay still. A police officer soon arrived and found Yu breathing but unconscious.

She stopped breathing and the officers administered “CPR” until an ambulance arrived. She had been shot twice in the chest at close range and was pronounced dead at the hospital. It later was determined that a .22-caliber bullet recovered from Yu’s body had been fired from the same gun as the bullet that killed Dale Okazaki. One of the victim’s shoes was found on the ground and the other was in her car. A tom portion of a $20 bill was on the ground. The car was running with the transmission in reverse. Its headlights were on and the driver’s side door was open.

Bruno Polo managed two pizzerias owned by Vincent Zazzara. On March 28, 1985, about 8:30 p.m., Polo went to the home that Vincent Zazzara shared with his wife Maxine to deliver the day’s receipts from the restaurant and found the screen door unlocked and the front door ajar. Polo rang the doorbell and called out Vincent’s name, but received no response. He placed the receipts in the mail slot, as was his usual practice, and left.

When Polo had not heard from Vincent Zazzara by the following morning, he and a fellow employee went back to the Zazzaras’ house and found the door in the same position as the night before. They entered and found Vincent Zazzara lying dead on the couch in the den. He had been shot in the head from close range. Maxine Zazzara’s body was found in the bedroom lying on her bed, partially covered by a sheet. Her pajama top had been pulled up, exposing her breasts, and her pajama bottoms had been pulled down around her ankles.

She had been shot in the head and neck at close range, stabbed in her neck, cheek, chest, abdomen, and pubic area, and her eyes had been cut out. Her eyes were never found. Drawers had been pulled out in the bedroom and bathroom, and clothing was strewn around the room. It later was determined that two .22-caliber bullets removed from Maxine Zazzara’s head and neck had been fired from the same gun later used to kill Chainarong K. Police discovered that the screen had been removed from a patio window at the Zazzara residence, which had been pried open. A bucket had been placed underneath the window.

Footprints on the bucket and in the flower bed were made by an Avia athletic shoe. On May 9, 1985, an intruder entered a house in Monrovia by removing louvers from a kitchen window and climbing onto a patio chair that had been placed against the wall beneath the window. A shoe print recovered from the kitchen sink near the window was made by an Avia athletic shoe. Defendant’s palm print was found on the sink. On May 14, 1985, about 5:00 a.m., a police dispatcher received a 911 call from a residence in Monterey Park.

A man repeated, “Help me, help me.” The dispatcher sent an ambulance, which arrived within five minutes. The firefighter who responded found the iron security gate and the front door open. He entered and encountered Yuriko Lillie Doi in a nightgown who motioned toward her husband, William Doi, who was sitting in a chair in the den by a telephone; he was unconscious and breathing with difficulty. Books and papers were strewn around the room. After taking a few labored breaths, Mr. Doi stopped breathing and the firefighters tried to resuscitate him.

An ambulance arrived and took him to the hospital where he was pronounced dead. Mr. Doi, who was 65 years old, had been shot in the head with a .22-caliber bullet fired from a Jennings semiautomatic pistol that later was recovered from Jose Perez, a convicted felon who had obtained the gun from defendant. Mrs. Doi was dressed in a nightgown. She had a thumb cuff on her left thumb and her other thumb had blood on it. Her face was swollen and bruised. The den and bedroom had been ransacked. Dresser drawers were open and clothes had been thrown around the room. Mrs.

Doi, who had suffered a stroke prior to this incident, was unable to testify at trial. A screen had been removed from an open bathroom window and was lying on the ground. Outside the window, the police found footprints from an Avia athletic shoe. Linda Doi-Fick, the daughter of William and Yuriko Doi, later identified several items of property that had been taken from her parents’ home, including her mother’s wallet and pieces of jewelry, which had been recovered from Felipe Solano, who had purchased the items from defendant.

Launie Dempster, who delivers newspapers, testified that she had seen defendant in a car parked near the Dois’ home an hour and a half before the attack. On May 31, 1985, Carlos Valenzuela noticed that newspapers had been left in the driveway of the house shared by 83-year-old Mabel Bell and her 79-year-old sister, Florence L. He knocked on their door, but received no reply. The next day, he returned and knocked on the door again. When there was no reply, he entered the house through the unlocked door and found Bell and Florence L. Florence L. was lying on her bed in one bedroom.

Bell was lying on the floor next to the bed in another bedroom with a table on her chest. Valenzuela removed the table and left to call the police. Paramedics arrived and found Bell still breathing and took her to a hospital. She was comatose. Her skull had been fractured; the injury could have been caused by a hammer. She had a black eye. A red circle with a star in it (a pentagram) had been drawn on her thigh, perhaps using lipstick. She had injuries on her body caused by bums. Bell died from her injuries about a month later in July, 1985.

In the other bedroom, Florence L.’s wrists had been bound using an electric cord and her ankles were taped together. Above the bed, a pentagram had been drawn on the wall. A tube of lipstick was found on the floor. A hammer lying on a table next to the bed had blood and hair on it. Florence L. was taken to a hospital, where an examination revealed evidence that she had been sexually assaulted. She had a puncture wound in her head, two black eyes, and her face was bmised. Florence L. later regained consciousness, but police were unable to communicate with her. The house had been ransacked.

A partial shoe print found on an unplugged clock was consistent with an Avia athletic shoe. Several items taken from the residence later were recovered from Felipe Solano, who had purchased the items from defendant. Before dawn on May 30, 1985, Carol K. was awakened in her Burbank home by defendant. He may have entered through an unlocked “doggie door” in the back door. He was standing over her bed, holding a gun, and shining a flashlight in her eyes. Defendant ordered her to “get up and don’t make any noise.” He took her into the bedroom of her 12-year-old son, woke him up, and handcuffed her to her son.

He called her names and repeatedly asked where was her money, jewelry, and other property. Defendant ran from room to room, ransacking the house. He found her wallet and removed her money. Defendant made Carol K. and her son lie on the floor and covered them with a sheet. He then removed the handcuffs from Carol K., handcuffed her son behind his back, and put him in a closet. Defendant took Carol K. to her bedroom, put the gun to her head and threatened to kill her, then tied her hands behind her with a pair of pantyhose. He forced her to kneel with her head on the bed and covered her head with a pillow.

Periodically, he punched her in the back. He ordered her to lie on the bed and raped her and sodomized her. He brought her son from the closet and handcuffed them together to the bed. Defendant said, “I don’t know why I’m letting you live. . . . I’ve killed people before.” He threatened to have a friend come back and kill her if she went to the police. Defendant left and they called the police. The victim later identified defendant in a lineup and at trial and identified several pieces of jewelry that police had recovered from Felipe Solano, who had purchased the items from defendant.

Mary Cannon was a widow in her 80’s who lived alone in Arcadia. On the morning of July 2, 1985, a neighbor, Frank Starich, noticed that a window screen was lying on the front porch and her newspaper was in the driveway. He knocked on the door, but received no response, so he retrieved an extra key Cannon had given him. Starich and his wife entered the house but soon left to call the police when they saw that things in the house had been thrown on the floor. The police arrived and found Cannon lying dead on the bed. She had been strangled and beaten and stabbed in the neck.

Her nose was broken and both eyes blackened. She had a large, “extremely lethal,” wound in her neck. A window in the bedroom was open and the bedroom had been ransacked. On the carpet and on a tissue, police found shoe prints from an Avia athletic shoe. Several days after Cannon was murdered, shortly after midnight on July 5, 1985, 16-year-old Whitney B. dressed for bed and sat down on her bed with the light on. Several hours later, she awoke lying facedown on her bed covered with blood. She had multiple skull fractures, which could have been caused by a tire iron that had been left by her bed.

A physician later testified, “This was the most massive head injury I’ve ever seen. She had greater than forty inches of linear lacerations criss-crossing every direction on her head.” She had been strangled, which resulted in a fractured larynx, and had black eyes. She summoned her father, who called the police. The screen had been removed from her bedroom window. A shoe print from an Avia athletic shoe was found in the bedroom. Two days after the attempted murder of Whitney B., on July 7, 1985, a neighbor of Joyce Nelson noticed that a screen had been removed from Nelson’s bedroom window.

Finding the front door ajar and seeing that Nelson’s home had been ransacked, he called the police, who found Nelson lying dead on her bedroom floor. She had died from blunt force head injuries and had been strangled. She had multiple bruises, lacerations and contusions on her face. Between 3:00 and 4:30 a.m. that morning, Launie Dempster, the newspaper deliverer, had seen defendant walking to his car, which was parked next door to Nelson’s house in Monterey Park. Dempster returned about 15 minutes later and noticed the car remained but defendant was gone.

In the flower bed beneath Nelson’s open bedroom window, police found a shoe print from an Avia athletic shoe. About 3:30 a.m. that same morning, July 7, 1985, Sophie D. awoke in her home in Monterey Park before dawn when the bedroom light went on. Defendant put a gun to her head, covered her mouth with a gloved hand, and threatened to kill her if she made a sound. Defendant handcuffed her, took several items of jewelry and some money, and then raped and sodomized her. Defendant handcuffed the victim to the bed and fled. The victim yelled for help from a neighbor who was a deputy sheriff.

He responded and called the police, who found that defendant had entered the house through a “cat door,” which had been bent out of shape. The victim later identified defendant at a lineup and identified several pieces of jewelry that police had recovered from Felipe Solano, who had purchased the items from defendant. The victim repeated her identification of defendant at trial. On the morning of July 19, 1985, the bodies of Maxon and Lela Kneiding were discovered in their bed by their daughter, who had come looking for them after they failed to meet her at a restaurant for breakfast as planned.

Their throats had been slashed and they had been shot in the neck and head. The bedroom had been ransacked. A .22-caliber bullet recovered from Ms. Kneiding’s brain had been fired from the same gun that fired the bullets that killed Dale Okazaki and Tsai-Lian Yu. The victims’ daughter later identified several pieces of her parents’ jewelry that police had recovered from Felipe Solano, who had purchased them from defendant. The next day, shortly after midnight on July 20, 1985, Somkid K. was sleeping on her living room couch when she was awakened by the sound of the sliding screen door opening.

Defendant entered holding a gun and ordered her to be quiet. He went into the bedroom and shot her husband, Chainarong, in the head, killing him. Defendant returned to the living room and brought Somkid K. into the bedroom, threatening to kill her children if she resisted. He raped her, sodomized her, beat her, and forced her to orally copulate him. Defendant tied up her eight-year-old son and hit him. He took jewelry, . money, and a videocassette recorder and left. Police found shoe prints from an Avia athletic shoe on the front porch, the rear porch, and inside the house.

The victim later identified defendant in a lineup and identified several pieces of jewelry and a suitcase that police had recovered from Felipe Solano, who had purchased them from defendant. A .22-caliber bullet recovered from Chainarong K.’s head had been fired from the same gun that fired the bullets that killed Vincent and Maxine Zazzara. Early in the morning on August 5, 1985, Virginia Petersen woke up to find defendant walking into her bedroom pointing a gun at her. She asked who he was and demanded that he leave. He told her to be quiet, asked, “Where is it?” and then shot her in the face.

Her husband, Christopher Petersen awoke and sat up and defendant shot him in the head, but he did not lose consciousness. He jumped from the bed and chased defendant, who fired at least two more shots and then fled through a sliding glass door that had been left unlocked. Christopher Petersen drove his wife to the hospital. Virginia Petersen later identified defendant at a lineup and at trial. Before dawn on the morning of August 8, 1985, Sakina A. was awakened by the sound of defendant shooting her husband, Elyas, in the head as he lay next to her, asleep.

Defendant struck Sakina A. in the head and handcuffed her hands behind her back. He continued to beat her, forcing her to “swear upon Satan” that she would not scream. Defendant blindfolded and gagged the victim before ransacking the bedroom, demanding money and jewelry. Defendant removed the victim’s blindfold and gag and she directed him to a briefcase that contained jewelry and to her purse, which contained money. Defendant took a ring and necklace she was wearing. Defendant forced the victim to orally copulate him, then raped and sodomized her.

The victim’s three-year-old son awoke, and defendant bound his hands and feet and covered his head with pillows. He handcuffed Sakina A. to a doorknob, threatening to return and kill her, her three-year-old son, and her infant child if she called the police. Defendant then fled. Sakina A. untied her son, called in vain for her husband, and screamed for help. Receiving no reply, she sent her son to a neighbor’s house by promising the child that the neighbor would give him popsicles and candy bars. The neighbor returned the child to his home, found Sakina A., and summoned the police.

Police found a sliding glass door had been pried open. Elyas A. had been killed by a single bullet to the head. Subsequent analysis revealed that a .25-caliber bullet recovered from the victim’s head had been fired from the same gun that fired bullets recovered from the home of Virginia and Christopher Petersen. Satina A. later identified defendant at a lineup and identified a television, a videocassette, recorder, and several pieces of jewelry that police had recovered from Felipe Solano, who had purchased them from defendant. The victim repeated her identification of defendant at trial.

On August 30, 1985, law enforcement officers had focused their suspicion upon defendant and obtained a photograph of him, which they distributed to law enforcement agencies throughout Southern California and released to the news media. Defendant’s photograph appeared in the newspaper the next morning. On the morning of August 31, 1985, Manuela Villanueva was sitting in her parked car when defendant ran up and demanded her car keys. She ran out of the car and called for help. Frank Moreno and Carmelo Robles responded and chased defendant down an alley.

Defendant climbed over a fence and encountered Fastino Pinon, who was working on his car, which was running. Defendant entered the vehicle, saying he had a gun, but Pinon attempted to pull defendant from the vehicle. They struggled as the car moved and struck a chimney. Defendant left and ran toward the street. Angelena Delatorre was sitting in her parked car across the street from Pinon’s house when defendant demanded her car keys. She refused and he pulled her out and entered her car. She screamed and her neighbor, Jose Burjoin, responded and ordered defendant to leave.

Delatorre’s husband, Manuel, arrived and struck defendant on the head with a steel bar. Defendant left the car and ran down the street. Manuel Delatorre pursued and struck defendant on the head a second time, causing defendant to fall. He stayed with defendant until the police arrived, as a crowd formed. Some people in the crowd were holding the newspaper with defendant’s photograph on the front page. On the ride to the police station, defendant asked the officer to “just shoot me,” saying he wanted to die.

He said, “all the killings are going to be blamed on me.” At the police station, defendant spontaneously confessed; “I want the electric chair. They should have shot me on the street. I did it, you know. You guys got me, the Stalker. Hey, I want a gun to play Russian Roulette. I’d rather die than spend the rest of my life in prison. Can you imagine the people caught me, not the police.” Defendant laughed and then added: “You think I’m crazy, but you don’t know Satan.” He hummed the song “Night Prowler” by the rock group AC/DC. Defendant continued: “Of course I did it, you know that I’m a killer.

Give me your gun, I’ll take care of myself. You know I’m a killer, so shoot me, I deserve to die. You can see Satan on my arm.” Defendant moved his shirt sleeve to reveal a pentagram drawn on his left shoulder. On September 2, 1985, a guard saw defendant in his jail cell bleeding from his right palm. Defendant used his blood to draw a pentagram on the floor and write the number 666. On October 24, 1985, during defendant’s arraignment in municipal court, defendant turned to the audience, raised his hand, and said, “Hail Satan.” A pentagram and the number 666 appeared on defendant’s palm.

On October 30, 1986, defendant called a guard over to his jail cell, displayed photographs of two of the murder victims, and said: “People come up here and call me a punk and I show them the photographs and tell them there’s blood behind the Night Stalker and then they go away all pale.” Defense Case The defense focused on the lack of physical evidence tying defendant to the charged crimes, attacked the reliability of the identifications of defendant, and offered the alibi that defendant was in Texas when the crimes against Mabel Bell, Florence L., and Carol K. were committed.

The manager of Jennie Vincow’s apartment building testified that the windows in the victim’s apartment were in working order following the murder. Forensic pathologist Dr. Werner Spitz testified, based upon the temperature of Vincow’s apartment, her body temperature when found, and the circumstance that her body had been covered, that Vincow had been dead four to five hours when her body was discovered. The police officer who discovered the AC/DC cap at the scene of Dale Okazaki’s murder testified the cap was just inside the threshold of the garage.

Okazaki’s roommate, Maria Hernandez, was shown a photographic lineup that did not include defendant’s photograph, and she said one of the photographs resembled her attacker. That person was apprehended and questioned, but then released. A police officer who responded to the scene where Tsai-Lian Yu was murdered testified that witness Jorge Gallegos told him that he never saw the assailant fight with the victim, did not hear gunshots, and would not be able to identify the assailant.

Photographs later taken of the crime scene showed poor lighting conditions that would make an identification of the assailant difficult. A defense pathologist testified that Yu’s injuries were consistent with her having been shot while seated in her car. Photographs were taken of the location near the Doi residence where Launie Dempster, the newspaper deliverer, had seen defendant in a parked car shortly before the murder. The photographer testified that shadows cast by the car’s roof would have obscured the face of the driver in a parked car.

Defendant’s father, Julian Tapia, testified that defendant was with him in El Paso, Texas, from May 22 or 23, 1985, until May 31, 1985, which included the period during which Mabel Bell was attacked, her sister, Florence L., was murdered and Carol K. was attacked. Hairs recovered in Mabel Bell’s house were dissimilar to defendant’s hair. A blood sample recovered from the house in which Mary Cannon was murdered differed from defendant’s blood type. Defendant introduced photographs of the residences of Joyce Nelson and Christopher and Virginia Petersen.

Police showed Sophie D. the same photographic lineup not including defendant’s photograph that had been shown to Maria Hernandez, and Sophie D. picked out the same person who, as noted above, was apprehended, questioned and released. A criminalist examined hairs recovered from the home of Maxon and Lela Kneiding and testified that they were dissimilar to defendant’s hair. A criminalist testified that it was uncertain whether semen collected from Sakina A. could be matched to defendant.

Deputy Public Defender Allen Adashek, who was appointed to represent defendant soon after his arrest, testified regarding the circumstances of the lineup in which defendant was identified by several of the victims. Deputy Public Defender Judith Crawford was present at the lineup as an observer for defendant. Just prior to the lineup, Crawford saw a police officer who was conversing with some children raise his index and middle fingers. When the lineup formed, defendant was the second person in line. Crawford later saw another officer make a similar gesture, raising two fingers.

A still photograph taken from a videotape of the lineup showed a police officer raising two fingers. Psychologist Elizabeth Loftus, an expert in eyewitness identifications, testified that memory degrades over time, that witnesses who are assaulted with weapons focus upon the weapon rather than the features of the assailant, and that members of one race have difficulty identifying members of other races. Sandra Hotchkiss testified for the defense and acknowledged that she was incarcerated at the California Institution for Women serving a term for burglary.

She had committed numerous burglaries with defendant and had seen him sell jewelry to Felipe Solano. Defendant was an amateur burglar. She never saw defendant with a gun and never saw him act violently, even when provoked. Penalty Phase On September 20, 1989, after the court accepted the jury’s guilty verdicts, the prosecution indicated that it did not intend to present any further evidence at the penalty phase, but reserved the right to call rebuttal witnesses. The court granted defendant a one-week continuance to present his case.

On September 27, 1989, defense counsel announced that the defense had made a “tactical decision” not to present any evidence at the penalty phase. Defense counsel then questioned defendant as follows: “[Defense counsel]: Mr. Ramirez, is it true that do you [sic] not wish to take the stand in your behalf during this phase of the trial? “The Defendant: Yes. “[Defense Counsel]: And you know that you have a right to take the stand? “The Defendant: Yes. “[Defense Counsel]: You know you have a right not to take the stand? “The Defendant: Yes. “[Defense Counsel]: You know that Mr.

Hernandez [codefense counsel] has been in El Paso talking to friends and relatives about testifying on your behalf? “The Defendant: Yes. “[Defense Counsel]: And you agree with the tactical decision that we made not to put on any evidence at this stage of the proceeding? “The Defendant: Yes.” In response to the court’s question, Daniel Hernandez confirmed that he had “done extensive work” interviewing potential witnesses in El Paso, and had located “witnesses who are willing to come forth,” but explained that the defense had decided not to present these witnesses.

The court stated: “The court finds that the defendant’s waiver of his right to testify and his waiver of the right to put on evidence during the penalty phase, these waivers have been freely, voluntarily and intelligently made and joined in by his counsel.” DISCUSSION A. Pretrial Issues 1. Retention of Counsel Citing the decisions in Wheat v. United States (1988) 486 U.S. 153 [100 L.Ed.2d 140, 108 S.Ct. 1692] and People v.

Ortiz (1990) 51 Cal.3d 975 [275 Cal.Rptr. 191, 800 P.2d 547], defendant argues that the trial court violated its “positive, sua sponte duty” under the Sixth Amendment of the federal Constitution and

article I,

section 15 of the California Constitution “to ensure that appellant would be represented by qualified, effective counsel” by granting defendant’s request to substitute counsel. We disagree. As noted above, defendant was arrested on August 31, 1985. On September 3, 1985, a felony complaint was filed against defendant and the public defender was appointed as counsel. Defendant appeared in court represented by the public defender on September 9, 17, and 27, 1985.

On October 9, 1985, Municipal Court Judge Elva Soper removed the public defender as counsel subject to defendant providing a written agreement retaining Attorney Joseph Gallegos. On October 22, 1985, Judge Soper noted that defendant had failed to provide a written agreement retaining Attorney Gallegos. Defendant indicated he no longer intended to retain Gallegos and instead asked to retain Attorneys Arturo Hernandez and Daniel Hernandez (who are unrelated).

The court stated that it had “conducted an extensive examination of the attorneys which the defendant desires to have substituted in as the retained counsel.” Noting that defendant had the “right to retain counsel of his choice,” the court stated that “it is important the defendant be fully informed regarding his choice of counsel at this point rather than to have serious questions arise later which could result in even greater delay. This court cannot guarantee that such result will not happen anyway; it can only attempt to safeguard against it.” The court stated that it had “informed Mr.

Ramirez that neither Daniel Hernandez nor Arturo Hernandez have the legal experience which would qualify them to be appointed by this court to represent him in this case, nor do either attorney meet the qualifications set forth by the Los Angeles County Bar for the indigent criminal defense appointment panel.” The court was interrupted by an objection from Arturo Hernandez, stating that he and Daniel Hernandez were not seeking appointment by the court but had been retained by defendant’s family and terming the court’s remarks “out of order.” The court continued, stating: “Court is aware of that.

Under the bar plan, an attorney would have to be a member of the California bar for a minimum of ten years, be an attorney of record in at least fifty trials, forty of which must have been submitted to a jury for decision, and thirty of the fifty must have been felonies. The attorneys must have been attorneys of record in at least three cases where the initial charge was a violation for Penal Code

section 187 and at least one of those cases must have been submitted to a jury for decision. “Both attorneys fall short of these qualifications.

In addition, it has been brought before the court’s attention that both Arturo Hernandez and Daniel Hernandez have been held in contempt by the courts in Santa Clara County on at least two occasions; that on a third occasion a contempt citation was not sustained against Daniel Hernandez—.” Daniel Hernandez interrupted the court to object on the ground that this material had been discussed during an in camera hearing, noting that he and Arturo Hernandez had been “assured that any information given to the court would be kept closed.” The court continued, stating: “They are a matter of public record, sir. . . .

And that there is presently pending in that court another contempt hearing for Daniel Hernandez’ failure to appear at a preliminary hearing where the defendant is charged with a violation of

section 187 of the Penal Code. [][] . . . [f] “It also has been brought to the court’s attention that there is presently pending in Superior Court of Santa Clara County a hearing set for November 12 in the case of People versus Pinon where the district attorney’s office has asked the court for—has asked for monetary sanctions against Mr. Daniel Hernandez for his failure to appear at the hearing in the Pinon case. “In view of the above facts, the court is ordering that both attorneys make full disclosure to Mr. Ramirez of any facts which might bear on their ability to effectively represent him in this case. . . .

After this disclosure, if there are any made, the court will, if Mr. Ramirez desires, offer him independent assistance to check any information disclosed to him. “This court fully recognizes that the defendant has the right to retained counsel of his choice at all stages of the proceedings against him. However, it is also the view of the court that the defendant should be fully informed regarding his choice of counsel, so that he may make his decision knowingly and intelligently. It is a decision which must be made by the defendant. ... In addition, the court has requested that the agreement retaining Mr.

Arturo Hernandez and Mr. Daniel Hernandez be reduced to writing and that Mr. Ramirez be given the opportunity to discuss that contract with an independent attorney appointed by this court. H] . . . ffl “For these reasons, the court is going to take the matter of the substitution of attorneys under submission until October 24, 1985, to allow the defendant to investigate the attorneys he now wishes to hire, if he so desires, and for him to have the contractual agreement looked at by an independent attorney. For that purpose the court has appointed attorney Victor E.

Chavez of Los Angeles County.” On October 24, 1985, the prosecutor, defendant, Gallegos, Arturo Hernandez, and Daniel Hernandez appeared in camera before the municipal court. Arturo Hernandez represented that defendant had entered into a written contract retaining him and Daniel Hernandez as his attorneys. The court had the following exchange with defendant: “The Court: Since you are bilingual, I want to inquire: the contract was written in English? “The Defendant: Yes.

And I did read it. “The Court: Did you read the entire contract? “The Defendant: Entirety. “The Court: Did you have any questions regarding any of the conditions in that contract? “The Defendant: No questions. “The Court: Did you understand each item in that contract? “The Defendant: Completely. “The Court: You are aware that the court did provide an independent attorney for you to discuss any questions you might have with him? “The Defendant: Yes.

He was provided and he did visit me yesterday, but I refused to see him.” The court further questioned defendant regarding the possibility of a conflict between him and his counsel, and defendant stated he understood but felt there would be no conflict. Defendant declined the court’s offer to permit defendant to speak to an independent attorney.

The court invited defendant to request to speak to an independent attorney “if at any time in the future you change your mind.” The in camera hearing concluded and, in open court, defendant acknowledged that he wished to substitute Arturo Hernandez and Daniel Hernandez as his counsel. The court relieved Gallegos as counsel and permitted the substitution. More than three years later, on March 6, 1989, during the presentation of the prosecution’s case-in-chief, the trial court appointed Attorney Roy Clark as an additional cocounsel for defendant.

As noted above, defendant argues that the trial court erred in granting his request to substitute counsel, but the cases he cites do not support his assertion that the trial court had a sua sponte duty to ensure that he would be represented by qualified, effective counsel. To the contrary, the United States Supreme Court has just reiterated that an element of a defendant’s right to counsel “is the right of a defendant who does not require appointed counsel to choose who will represent him. [Citations.]” (United States v.

Gonzalez-Lopez (2006) 548 U.S._[165 L.Ed.2d 409, 126 S.Ct. 2557].) A criminal defendant has a qualified right to retain counsel of his choice, and the trial court can deny a defendant’s timely request to substitute counsel only if it “ ‘will result in significant prejudice to the defendant.’ ” (People v.

Gzikowski (1982) 32 Cal.3d 580, 587 [186 Cal.Rptr. 339, 651 P.2d 1145].) “The right to effective assistance of counsel [citations] encompasses the right to retain counsel of one’s choice. [Citation.] Though entitlement to representation by a particular attorney is not absolute [citation], ‘the state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources—and . . . that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case’ [citation].” (Id. at pp. 586-587.) We observed in Maxwell v.

Superior Court (1982) 30 Cal.3d 606, 615 [180 Cal.Rptr. 177, 639 P.2d 248]: “[C]hosen representation is the preferred representation. Defendant’s confidence in his lawyer is vital to his defense. His right to decide for himself who best can conduct the case must be respected wherever feasible.” (Fn. omitted.) In Wheat v. United States, supra, 486 U.S. 153, 157, the trial court denied the defendant’s request to substitute counsel because it found that the proposed attorney had an “ ‘irreconcilable conflict of interest’ ” that the defendant was not permitted to waive.

The high court ruled that the trial court did not err in denying the defendant’s request to substitute counsel, stating, “where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented.” (Id. at p. 162.) The defendant in People v. Ortiz, supra, 51 Cal.3d 975, retained private counsel, but his first trial ended in a mistrial and he became indigent prior to the retrial. He moved to discharge his attorney and obtain appointed counsel.

The trial court denied his request to discharge counsel on the grounds that the defendant had not shown that his attorneys were incompetent.

This court reversed the ensuing judgment of conviction, holding that the trial court erred in requiring the defendant to demonstrate that his attorneys were incompetent before allowing him to discharge them. (Ortiz, at p. 987.) We described the right of a criminal defendant to counsel and to present a defense as “among the most sacred and sensitive of our constitutional rights” and cautioned that “the state should keep to a ‘necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best.’ ” (Id. at p. 982.) We recognized in Ortiz “the value we place on allowing defendants to defend themselves as they deem best, absent prejudice to themselves or unreasonable delay in the processes of justice” and “the importance of the right to counsel of choice and the sensitive nature of the relationship between a criminal defendant and his lawyer.” (Id. at p. 987.) Moreover, a trial court must exercise caution when denying a defendant’s request to substitute counsel, because “[r]eversal is automatic . . . when a defendant has been deprived of his right to defend with counsel of his choice. [Citation.]” (Id. at p. 988.) “The right to counsel of choice is one of the constitutional rights most basic to a fair trial.

Accordingly, it is clear that a criminal defendant need not demonstrate prejudice resulting from a violation of that right in order to have his conviction reversed.” (Ibid.) Defendant cites no case, and we are aware of none, in which a conviction was reversed because the court granted the defendant’s request to substitute counsel. A defendant whose request to substitute counsel is granted cannot complain on appeal that the trial court should have denied that request. The defendant’s only contention on appeal in such circumstances can be that he or she was denied effective assistance of counsel. (See Wheat v.

United States, supra, 486 U.S. 153, 161 [“If a district court agrees to the multiple representation, and the advocacy of counsel is thereafter impaired as a result, the defendant may well claim that he did not receive effective assistance.”].) Defendant expressly does not claim on appeal that counsel were ineffective, noting that “[a] claim of ineffective assistance of counsel will be separately presented in a related petition for writ of habeas corpus.” Curiously, defendant cites our decision in Drumgo v.

Superior Court (1973) 8 Cal.3d 930 [106 Cal.Rptr. 631, 506 P.2d 1007], for the proposition that the trial court has a “duty to ensure that any counsel appointed to represent the accused is competent and qualified to conduct the defense” (italics added), adding: “That is precisely the obligation involved in the present case which the trial court failed to meet.” But Daniel Hernandez and Arturo Hernandez were not appointed by the court, they were retained by defendant. Our decision in Drumgo, accordingly, has no application here.

Contrary to defendant’s assertion, the trial court in the present case did not find that Daniel Hernandez and Arturo Hernandez were unqualified to be retained as counsel by defendant.

The court simply made certain that defendant was “ ‘fully informed regarding his choice of counsel’ ” (ante, at p. 419) by observing that the Hernandez attorneys did not meet the standards required of attorneys appointed by the court to represent capital defendants, noting that both attorneys had been held in contempt on at least two occasions, requiring both attorneys to disclose to defendant “ ‘any facts which might bear on their ability to effectively represent him in this case,’ ” and offering defendant the assistance of independent counsel “to check any information disclosed to him.” (Ante, at p. 420.) The trial court correctly recognized “ ‘that the defendant has the right to retained counsel of his choice.’ ” (Ante, at p. 420.) The Sixth Amendment “commands . . . that the accused be defended by the counsel he believes to be best.” (United States v.

Gonzalez-Lopez, supra, 548 U.S. at p._[165 L.Ed.2d at p. 418].) The trial court did not err in granting defendant’s request to substitute counsel. 2. Conflict of Interest Defendant claims that he was denied the right to conflict-free counsel in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and

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section 15 of the California Constitution because the trial court failed to conduct an adequate inquiry into whether his attorneys suffered from a conflict of interest stemming from their retainer agreement with defendant’s family.

When he and Daniel Hernandez were seeking to be substituted as counsel for defendant, Arturo Hernandez stated they had entered into .a written contract with defendant, adding: “Also, the other parties that have retained us, his family, who are also liable, have acquired some financial responsibility to us due to that contract.” The court had the exchange with defendant, which is quoted above, in which defendant stated he had read and understood the contract. This exchange then continued as follows: “The Court: . . .

You understand because your attorneys have a contract with you and with your family, those two contracts may at some point be in conflict; the contract with the family may present a conflict at some point with the contract with you? Do you understand that possibility does exi[s]t? “The Defendant: It exists, but I feel there will be no conflict. “The Court: You may be waiving any conflict. I just want to make perfectly sure you understand. “The Defendant: I understand. I understand. “The Court: All right.

Do you realize the contract may contain certain provisions which may create potential areas of conflict between you and your attorneys? “The Defendant: I understand. “The Court: Do you understand it is not the court’s desire in any way to change any of the terms of this contract; it is only my desire to make sure you understand those terms and any potential problems that these terms may create; all I want to know is that you do understand? “The Defendant: I do understand. “The Court: Okay. Understanding that, do you wish at this time the opportunity to talk to an independent attorney? “The Defendant: No.

I waive that. “The Court: All right. Do you understand if at any time in the future you change your mind and desire to obtain independent legal advice regarding the contract, you have the right to ask the court to appoint an attorney to discuss that matter with you? “The Defendant: Yes. “The Court: All right. Both Messrs. Hernandez, I have some question because last time when you left the courtroom, you made some comment about going to see your ‘client,’ the ‘client’ obviously being the family. I do wish to impress upon you the importance of Mr.

Ramirez being in the contract, and that has to have prime consideration. Because of the two contracts, the court will request if at any time there is the slightest possibility that a potential conflict might exist, you immediately inform whatever court this is in so that that problem can be raised and taken care of. Do you understand the court is ordering you [to] do that? “Mr. Arturo Hernandez: We understand fully; and, for the record, we have indicated to the court in the past that at this point we anticipate no conflict of interest.

We have our standard retainer agreement that we have used in many, many different felony cases, including murder cases. We have no question in our mind at this point that there is a conflict in this case; however, we realize the concerns of the court. As we stated before, we have no knowledge of any potential conflicts; but if there are any, we will notify whatever court this case is before. “The Court: All right. Do you realize, both Messrs.

Hernandez, the family funds may be insufficient to adequately reimburse you for your services in this matter and, recognizing that fact, do you understand it may be necessary once you are attorneys of record in this case to perform some or all of your services on a pro bono basis? “Mr. Arturo Hernandez: We realize that, your honor, and we are willing to undertake that risk. “The Court: Mr. Daniel Hernandez, you are nodding your head ‘yes.’ Do you— “Mr. Daniel Hernandez: Yes. I agree with that. “The Court: To the court inquiry as to the extent of your contract, does it cover through the preliminary hearing? “Mr.

Arturo Hernandez: It covers through the trial, your Honor, and any post-trial remedies that my client may have. “The Court: The filing of any notices of appeal? “Mr. Arturo Hernandez: That’s correct. “The Court: Have you disclosed to Mr. Ramirez any facts, both negative and positive, which would bear not only on your ability to represent him but on any publicity that might come from your representation? “Mr. Arturo Hernandez: Yes, we have. We have fully discussed with him on several occasions our background, and he is satisfied and he is willing to undertake our retainment in this case. “The Court: Mr.

Ramirez, are you satisfied with the disclosures that have been made to you? “The Defendant: Yes, Ma’am.” Defendant asserts that the above quoted inquiry of counsel was deficient because the court “failed to determine the nature of the terms and conditions” of the retainer agreements entered into between defendant and counsel and defendant’s family and counsel, failed to determine the impact of counsels’ agreement with the family on their representation of defendant, and “failed to consider the impact of the agreements with respect to counsels’ purported waiver of appellant’s right to a full and proper inquiry regarding his mental competency.” Defendant asserts that counsels’ expressed willingness to represent defendant pro bono, if necessary, “deepened the appearance of grave conflicts of interest, triggering the trial court’s duty of inquiry.” “ ‘The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and

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section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.’ [Citation.] ‘ “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.’ ” ’ [Citation.] [f] Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. [Citation.] 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.” ’ [Citation.] An actual conflict of interest means ‘a conflict that affected counsel’s performance-as opposed to a mere theoretical division of loyalties.’ [Citation.]” (People v.

Roldan (2005) 35 Cal.4th 646, 673 [27 Cal.Rptr.3d 360, 110 P.3d 289], italics omitted.) An actual conflict of interest occurred in Holloway v. Arkansas (1978) 435 U.S. 475, 484 [55 L.Ed.2d 426, 98 S.Ct. 1173] (Holloway), in which indigent codefendants were represented by a single appointed attorney who represented that he had received confidential information from each defendant that created a risk of conflicting interests, but no conflict of interest was found in Cuyler v.

Sullivan (1980) 446 U.S. 335 [64 L.Ed.2d 333, 100 S.Ct. 1708] (Sullivan), in which three codefendants were represented jointly by retained counsel in separate trials. The high court observed that the trial court was not obligated to investigate whether counsel’s representation of multiple defendants created a conflict of interest, in the absence of an objection by the defendant, stating that “nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. ...

Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” (Id. at pp. 346-347, fns. omitted.) “[T]he rule applied when the trial judge is not aware of the conflict (and thus not obligated to inquire) is that prejudice will be presumed only if the conflict has significantly affected counsel’s performance . . . .” (Mickens v.

Taylor (2002) 535 U.S. 162, 172-173 [152 L.Ed.2d 291, 122 S.Ct. 1237] (Mickens).) The defendant in Mickens claimed he had been denied effective assistance of counsel because his appointed attorney earlier had represented the murder victim on a juvenile matter. The high court denied relief, distinguishing Holloway on the basis that counsel had not “protested his inability simultaneously to represent multiple defendants.” (Mickens, at p. 173.) The present case does not involve concurrent representation of multiple defendants as in Holloway and Sullivan, or even prior representation of the victim as in Mickens.

Defense counsel in the present case had entered into a contract with both defendant and his family to represent defendant, which defendant now claims created a possible financial conflict of interest. The trial court conducted an extensive and appropriate inquiry into defendant’s awareness of the possibility of a conflict of interest, offered defendant separate counsel to advise him, and obtained assurances from defense counsel that no such conflicts existed or were likely to arise. The trial court did not err and was not required to review the terms and conditions of the retainer agreement.

Defendant expressly “does not raise an assignment of error as to counsel’s conflicts of interest with respect to the retainer agreements,” preferring to raise this issue in a subsequent petition for writ of habeas corpus. Defendant contends that his waiver of his right to conflict-free counsel was defective. We need not, and do not, decide whether defendant validly waived his right to conflict-free counsel because defendant has not shown, and expressly disclaims an intention to show on appeal, that he was denied his right to conflict-free counsel. 3.

Competency to Stand Trial Defendant claims that the trial court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution because it abused its discretion under

section 1368 in denying Defense Counsel Gallegos’s motion for a psychiatric evaluation of defendant.

Prior to the in camera hearing on October 24, 1985, referred to above, at which the court substituted Arturo Hernandez and Daniel Hernandez as counsel, Defense Counsel Gallegos appeared in camera in the municipal court with former defense counsel, Deputy Public Defender Henry Hall, and asked the judge to order a “psychiatric evaluation” of defendant “as to his present mental state, his ability to choose his own attorney and other related matters concerning this trial.” As noted above, the municipal court had taken under submission defendant’s request to substitute new counsel in place of Attorney Gallegos.

Gallegos stated he was concerned by a news report he heard on the radio “indicating my client wanted to plead guilty to 14 counts of murder providing the district attorney’s office would drop the counts involving minor children.” The court noted that it previously had ordered a psychiatric evaluation of defendant at the request of the public defender, who then represented defendant. Deputy Public Defender Hall stated that the psychiatrist had met with defendant “for approximately 10 or 15 minutes, at which point Mr.

Ramirez refused to speak with him anymore.” Based upon this short interview, and his observations of defendant before and after the interview, the psychiatrist concluded, according to Hall, that defendant was “borderline in terms of his competence,” but he “couldn’t say for sure.” Hall added that the psychiatrist stated that, if forced to reach a conclusion, “he would have to say [defendant] was competent but borderline so.” Following a recess, the in camera hearing resumed, as noted above, with the prosecutor, defendant, Gallegos, Arturo Hernandez, and Daniel Hernandez present.

The court observed that “[u]p until this point the questions I have asked Mr. Ramirez he has answered in a logical, intelligent fashion. From his questions I at this point do not have any question regarding his ability. He has remembered things I have said at prior hearings and reported them back to me.” The court stated it had no doubts about defendant’s competency, and defendant interrupted the court to state: “I am sane.” Arturo Hernandez added that he and cocounsel “have been visiting with Mr. Ramirez for a lengthy period of time. We have seen him on almost a daily basis.

We have conducted extensive conversations with him. We have conducted extensive investigations of the case with him. We have done a tremendous amount of work with him. We have no problems with him understanding, with him being very rational, very intelligent. We have no problems.” The court then had the following exchange with defendant: “The Court: Mr.

Ramirez, could you tell me: how many years of school have you had? “The Defendant: I have had 11 years of high school [sz'c] and one year of technical in electrical trades, and I have a psychologist in Los Angeles who has qualified me sane. “The Court: I am just wanting to know your education, sir. “The Defendant: Oh. Okay. “The Court: Just answer specifically— “The Defendant: I don’t want to go to no hospital, Ma’am.” As noted above, the in camera hearing concluded, and Arturo Hernandez and Daniel Hernandez were substituted as counsel without the court ordering a psychiatric evaluation of defendant.

We conclude the trial court did not abuse its discretion under

section 1368 in denying Defense Counsel Gallegos’s motion for a psychiatric evaluation of defendant. “A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this

chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).)

Section 1368 states: “(

a) If, 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, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . [f] (

b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.” In People v. Hayes (1999) 21 Cal.4th 1211 [91 Cal.Rptr.2d 211, 989 P.2d 645], defense counsel asserted that his client was incompetent and moved for a hearing pursuant to

section 1368. The trial court denied the motion, declaring that no doubt had arisen in the court’s mind concerning the defendant’s competence because it appeared the defendant understood the nature of the proceedings and was able to assist counsel. We affirmed the resulting judgment, ruling that a trial court is required to conduct a competency hearing under

section 1368 only if “substantial evidence of incompetence is introduced,” and adding that evidence “that does no more than form the basis for speculation regarding possible current incompetence is not sufficient. [Citation.]” (People v. Hayes, supra, 21 Cal.4th at p. 1281.) In the present case, there was no substantial evidence that defendant was mentally incompetent. Defense counsel’s request for a “psychiatric evaluation” of defendant, standing alone, does not require the court to appoint such an expert or conduct a competency hearing. (See People v.

Panah (2005) 35 Cal.4th 395, 433 [25 Cal.Rptr.3d 672,107 P.3d 790]; People v. Howard (1992) 1 Cal.4th 1132, 1164 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) And defense counsel’s concern over news reports he had heard concerning defendant’s alleged plans provide no insight into defendant’s mental processes. The court’s observations of defendant raised no question in the court’s mind about defendant’s competence, and one of the attorneys who was about to be substituted in as counsel vouched for defendant’s competence.

Under these circumstances, the court did not err in denying defense counsel’s motion to appoint a psychiatrist to evaluate defendant. Defendant further argues that the trial court erred in failing to order a competency hearing sua sponte.

Defendant relies upon “the bizarre nature of the criminal acts charged, [defendant]’s bizarre and abnormal behavior following his arrest, and the court’s own questions at various court hearings regarding [defendant’s competence.” But none of these circumstances raised a question as to defendant’s ability to understand the nature of the proceedings or assist counsel in his defense. “[M]ore is required to raise a doubt [as to a defendant’s competence] than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense [citation].” (People v.

Laudermilk (1967) 67 Cal.2d 272, 285 [61 Cal.Rptr. 644, 431 P.2d 228].) Moreover, contrary to defendant’s suggestion, the trial court did not express a doubt as to defendant’s competence to stand trial. On April 14, 1986, during the preliminary hearing in municipal court, defense counsel requested “that we be allowed to talk to you in chambers and without the presence of the prosecutor” regarding a request by defendant not to attend the preliminary hearing.

In denying counsel’s request to speak to the court outside the presence of the prosecutor, the court stated: “If counsel is of the opinion that the court ought to be persuaded by what you might say or what I have seen thus far that inquiry should be made pursuant to

section 1368, that you got to do in open court. There is no provision for a secret disclosure of counsel’s feelings.

With respect to that, there is no evidence upon which I might conclude so far that the defendant is in any way unable to understand and participate in the proceedings.” Ten months later, on February 26, 1987, just prior to the weekend recess during a hearing on pretrial motions, the superior court judge sought time estimates from counsel regarding proceedings the following week and asked defense counsel: “Are there any motions that you are considering as to other aspects of this case that should be filed or you are considering filing? 1368 comes to mind.” Daniel Hernandez responded: “We’ve been considering that from the beginning of course and we haven’t made a decision on that and we are very aware and concerned about that.” The court replied: “So am I.

Again I’m not trying to jump in and tell you guys how to run your ship. That is an avenue I think that has to be explored one way or another.” The next month, on March 24, 1987, the court spoke to defense counsel about when they were going to file a severance motion and then added: “The 1368 and related issues I would also like you to consider. I realize that that is going to be a very difficult one for you, but I would like you to get working on that as well.” From the above quoted statements, it is clear the trial court made inquiries into whether defense counsel planned to file a

section 1368 motion, but the trial court did not express a doubt as to defendant’s mental competency. 4. Motion for Change of Venue Defendant contends the trial court erred in denying his motion for change of venue under

section 1033, depriving him of his rights under

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section 15 of the California Constitution and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. We disagree. The offenses with which defendant was charged occurred between June 27, 1984 and August 8, 1985. Defendant was arrested on August 31, 1985, and the felony complaint against him was filed on September 3, 1985. Nearly a year after his arrest, on July 21, 1986, following the preliminary hearing, defendant filed a motion for change of venue. The trial court conducted an extensive hearing on the motion, which spanned two months.

The court viewed hours of videotape recordings of television news broadcasts. Paul Strand, Ph.D., testified for defendant that during the last week of November 1986, he conducted a telephone survey of 300 persons who were eligible to be prospective jurors, using a computer program that generates random telephone numbers. The survey revealed that 94.3 percent of those who responded had heard of the case and 52.7 percent were able to recall something about defendant, such as that he was a Satanist or that he looked evil or mean.

About half (47.7 percent) indicated that the Night Stalker murders had posed no particular threat to them, while nearly an equal number (46 percent) said their concern for their safety had increased when the murders were occurring. Just over 10 percent of those polled said they had taken special precautions.

At the time of the survey, more than a year after defendant was arrested, only 31.7 percent indicated they continued “to have feelings about this case,” with the rest agreeing that they had “pretty much forgotten about it.” Slightly more than half of the people questioned (51.7 percent) said that “[b]ased on what [they had] seen or heard” they thought defendant was “responsible” for the Night Stalker murders, while about a third of those polled (34.7 percent) said they would need more information to make a judgment. Only one person (0.3 percent) believed defendant was not responsible for the murders.

Strand testified that the levels of recognition and predisposition were the highest he had ever seen. Defendant introduced evidence that participation in neighborhood watch programs “probably doubled” while the murders were occurring. Police increased their patrols, gave advice on how to avoid being victimized, and gave free deadbolt locks to the elderly. Gun sales tripled, returning to normal after defendant’s arrest.

The trial court denied defendant’s motion for change of venue on January 9, 1987, stating it was “not convinced . . . that the survey shows that the pretrial publicity in this case has created an atmosphere where he cannot receive a fair trial.” The court described the news coverage of this case as “saturation, as much as they possibly can give,” but noted that this was not the only case in Los Angeles that had received such extensive news coverage.

The court noted that although the survey indicated that nearly all of those surveyed had heard of the case, and about half said they thought defendant was responsible based upon what they had heard, the survey did not show that the people polled were predisposed or prejudiced.

The court concluded: “I don’t think that a reasonable likelihood has been made out that a fair trial cannot be had in this county,” adding, “You know, of course, that if a panel is brought in and if you go through the panel and the voir dire experience shows that the panel is, in fact, rather than in theory, polluted, that you can make another motion for change of venue at that time.”

Section 1033 provides that a defendant’s motion for change of venue shall be granted “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” (§ 1033, subd. (a).) “ ‘A change of venue must be granted when the defendant shows a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. “. . . ‘[T]he reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable.’ ” [Citation.] “The de novo standard of review applies to our consideration of the five relevant factors: (1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.” [Citation.]’ [Citations.]” (People v.

Panah, supra, 35 Cal.4th 395, 447.) The “nature and gravity” of the present offenses could not have been more serious, but this factor alone does not require a change of venue. (People v. Jenkins (2000) 22 Cal.4th 900, 943 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) Neither defendant nor the victims were known to the public prior to the crimes and defendant’s arrest, so the last two factors—the “community status of the defendant” and the “prominence of the victim” do not support a change of venue. (See People v. Panah, supra, 35 Cal.4th 395, 449; People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 46 [17 Cal.Rptr.3d 710, 96 P.3d 30].) Our attention, therefore, focuses on the two remaining factors—the “nature and extent of the media coverage” and the “size of the community.” The trial court described the media coverage of the murders and defendant’s arrest as “saturation, as much as they possibly can give,” but noted that such coverage was not unprecedented in Los Angeles County. And defendant did not show that the media coverage was unfair or slanted against him or revealed incriminating facts that were not introduced at trial. (Cf. Sheppard v.

Maxwell (1966) 384 U.S. 333 [16 L.Ed.2d 600, 86 S.Ct. 1507].) Further, the passage of more than a year from the time of the extensive media coverage served to attenuate any possible prejudice and supports the trial court’s denial of the motion for change of venue. (People v. Panah, supra, 35 Cal.4th 395, 448; People v. Jenkins, supra, 22 Cal.4th 900, 944.) The size of the community also militates against granting defendant’s request for a change of venue. (People v. Panah, supra, 35 Cal.4th 395, 449; People v. Coffman and Marlow, supra, 34 Cal.4th 1, 46; People v.

Jenkins, supra, 22 Cal.4th 900, 944.) The trial court correctly noted that because of the number of prospective jurors that could be assembled in Los Angeles County, it was likely that an impartial jury could be chosen. And this turned out to be the case. Although only one member of the jury indicated during voir dire that he never had heard of the case, they all stated they had not “formed any opinion as to the guilt or innocence of Richard Ramirez regarding this case” and could be fair.

When asked in the juror questionnaire what, if anything, they had learned about the case, they indicated, at most, only the most general familiarity with the case. They all stated that this information did not make them favor either the prosecution or the defense. One juror added: “I just know he is the one arrested for murders he was to have committed. But I have not said he is guilty or innocent.” The trial court did not err in denying the motion for change of venue. Citing Rideau v.

Louisiana (1963) 373 U.S. 723 [10 L.Ed.2d 663, 83 S.Ct. 1417], defendant argues that the trial court’s denial of his motion for change of venue deprived him of his rights to a jury trial under the Sixth Amendment to the federal Constitution and to due process of law under the Fifth and Fourteenth Amendments. The defendant in Rideau was filmed in his jail cell, the morning after his arrest, flanked by two state troopers. He was interrogated without counsel by the sheriff and confessed to bank robbery, kidnapping, and murder.

This film of the defendant’s confession was shown three times on a local television station in the small Louisiana parish where the crimes were committed and was seen by a substantial segment of the population of the parish. The trial court denied the defendant’s motion for a change of venue, and the defendant was convicted and sentenced to death.

The high court held that the defendant was denied due process, concluding that “it was a denial of due process of law to refuse the request for a change of venue, after the people of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged” because the televised “spectacle” of the defendant confessing to the crimes rendered his subsequent trial “but a hollow formality.” (Id. at p. 726.) The circumstances in Rideau bear no resemblance to the circumstances in the present case.

Although defendant argues that the media coverage of this case was “extensive and inflammatory,” he focuses on the extent of the coverage and offers few examples of coverage that could be described as inflammatory. With few exceptions, the media reports were accurate. Defendant’s confessions were reported, but these confessions ultimately were admitted into evidence. And the voir dire confirmed that the jury ultimately selected was largely unaware of, or had forgotten, the details of the media coverage by the time of trial.

Defendant argues he was denied a reliable determination of his penalty guaranteed by the Eighth Amendment, citing Caldwell v. Mississippi (1985) 472 U.S. 320, 328-329 [86 L.Ed.2d 231, 105 S.Ct. 2633], which held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” He also cites Woodson v.

North Carolina (1976) 428 U.S. 280 [49 L.Ed.2d 944, 96 S.Ct. 2978], which invalidated a law that provided a mandatory penalty of death for all first degree murders. Defendant fails to explain how either of these cases has any relevance to the present case.

Defendant contends that the trial court failed “to consider a vast array of defense-proffered evidence in support of change of venue,” adding that “[t]he trial court erred in refusing to take judicial notice of the defense-proffered exhibits that demonstrated the prejudicial nature of the news media coverage in appellant’s case.” The trial court viewed several hours of videotapes of media coverage of the present case proffered by defendant. At the end of the second court day of viewing these videotapes, the court allotted defendant one more hour on the following day, saying: “This is all cumulative.

All the channels had the same kind of mixture of hard news and fluff, and I don’t see any point in sitting here watching, you know, all of the channels. We have now seen Channel 11, and this is Channel 4, and they are the same. And I have no reason to believe that Channel 2 or Channel 7 or 9 or 13 or the rest of them are any different, [ft] So the point I am trying to make to you is this: you may file and lodge all of the cassettes you wish, all those that you have, but I don’t think that in my discretion that it is a judicious use of my time to sit there and watch them all.

It simply isn’t proving anything.” “The point is that what you are presenting is cumulative and repetitive and it isn’t proving anything. I am aware of the fact that all of the local news media have given inordinate coverage to this case. I know that. And these cassettes that we have seen have refreshed my memory. . . .

Your point, in other words, is made regarding the extent of media coverage that has been afforded this case.” Following several days of oral testimony presented by defendant in support of his motion for change of venue, the court permitted defendant time “to file a statement regarding matters you wish to have judicial notice or acknowledgment of the existence of.” The People objected to much of the material submitted by defendant, and the court ruled: “Now I have read that carefully, I have read all of the matters that are attached thereto, and 1 am at this time willing to accept and acknowledge that everything set forth in that document is true, the factual matters set forth therein are true, that this publicity was disseminated to the public throughout the Southern California area about the time indicated.” (Italics added.) The court sustained the People’s objection to numerous exhibits on grounds of “lack of foundation and unintelligibility” and lack of authentication, adding: “But again, Gentlemen, I do have knowledge and I will accept the principle that all of the—virtually all of the local news media, including the small outlet media, local newspapers, ethnic-oriented publications, various language publications, have covered this case, if that is the point you are trying to make.

Is that the point you are trying to make? [f] Mr. Arturo Hernandez: Yes. PK] The Court: I don’t think there is any doubt but that that is true, and I accept that that is true.” The court then admitted several exhibits “without foundation,” stating: “I’ve got to have some kind of record.” The trial court did not err in failing to admit all of the evidence submitted by defendant in support of his motion for change of venue. 5.

Motion to Sever Counts As noted above, defendant was charged in an amended information with 43 offenses—including 13 counts of murder, five counts of attempted murder, 14 counts of burglary, and four counts of rape—arising from 15 separate incidents involving 24 victims during a 14-month period ending in the summer of 1985. The trial court denied defendant’s motion to sever some of these counts and try these charges in eight separate trials.

Defendant argues on appeal that the trial court erred in denying his motion for severance in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights, asserting that this “case could have been easily severed, for example, into four separate groups.” The trial court did not err in denying defendant’s severance motion.

Section 954 permits related offenses to be charged in a single accusatory pleading unless there is good cause to try them separately: “An accusatory pleading may charge two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses, . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.” Defendant’s motion in the trial court to sever the charges was confusing.

Defendant initially moved to sever the charges into “at least six” groups, conceding that the charges involving the Petersen and Elyas A. victims on August 5 and August 8 were properly joined, and that the charges involving the Okazaki, Yu, Doi, Bell, Cannon, Whitney B., Nelson, and Kneiding victims on March 17, May 14, May 29, July 2, July 7, July 5, and July 19 of 1985 were properly joined, but arguing that these two groups of cases should be tried separately and that the charges involving the Sophie D., Carol K., Higgins, and Vincow victims should each be tried separately.

In a subsequent pleading, defendant argued the charges should be tried in “eight different trials” involving the following groups of victims:

(1) Petersen and Elyas A. on August 5 and 8, 1985;

(2) Okazaki and Yu, on March 17, 1985;

(3) Zazzara and Chainarong K. on March 28 and July 19, 1985;

(4) Higgins;

(5) Vincow on June 27, 1984;

(6) Be

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