THE PEOPLE, Plaintiff and Respondent, v. ALBERT LEWIS and ANTHONY CEDRIC OLIVER, Defendants and Appellants, 39 Cal. 4th 970

Opinion BAXTER, J. A Los Angeles County jury convicted Albert Lewis and Anthony Cedric Oliver (defendants or Lewis and Oliver) of the first degree murders of Patrinella Luke and Eddie Mae Lee, and of the attempted murder of Peter Luke. (Pen.

Code, §§ 187, subd. (a), 664.) The jury sustained allegations that defendants were armed with a firearm (shotgun), personally used a firearm, and personally inflicted great bodily injury in committing the charged crimes. (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7.) The jury further found true a multiple-murder special-circumstance allegation against each defendant. (§ 190.2, subd. (a)(3).) After a penalty trial, the jury returned a verdict of death against both defendants.

The court denied defendants’ motions for a new trial (§ 1181) and to modify the penalty verdict (§ 190.4, subd. (e)), and sentenced them to death. The present appeal is automatic. (§ 1239, subd. (b).) The judgment will be affirmed in its entirety. I. FACTS A. Guilt Phase Two gunmen, each carrying a shotgun and hooded and dressed in black, raided the Mount Olive Church of God in Christ in Los Angeles on July 21, 1989. While one assailant stood guard and shot at a bystander outside, the other one entered and shot three churchgoers, two of whom died. Defendants were jointly charged with the crimes.

They were tried in a single proceeding before the same jury. Oliver was 27 years old at the time of the capital crime. His half brother, Lewis, was 33 years old at the time. 1. Prosecution Case The prosecution presented evidence that Lewis, embittered toward his estranged wife, Cynthia Mizell, mounted an escalating campaign of terror against her and her family. It culminated in the murder of her cousin, Patrinella Luke, the wounding and near-killing of Peter Luke, who was Patrinella’s husband, and the killing of Eddie Mae Lee, a friend of Mizell’s.

The evidence also showed that Oliver joined in the campaign of terror and personally committed the murders. Lewis met Mizell in 1985. At the time, Mizell lived with her parents, Iva Worthen and Edward Worthen, in a four-unit apartment house on 77th Street in Los Angeles. Other family members lived in the same building. They included Mizell’s aunt, Betty Bates. When Mizell and Lewis met, he was living with Jeanett Hudson a short distance away on 77th Street. Lewis told Mizell that Hudson was a friend who, along with her daughter, was staying with him. In fact, Lewis was married to Hudson.

Lewis and Mizell married on June 25, 1988, in a wedding ceremony at the Mount Olive Church. Afterwards, the couple moved to a house on 117th Street. Lewis, who stayed married to Hudson without Mizell’s knowledge, soon began to abuse Mizell. In September 1988, he attacked her with a knife, drawing blood, and threatened to kill her. Mizell moved out. Lewis asked her to return to their house. She complied. In February 1989, Lewis, wearing a black “ninja”-style suit, attacked Mizell in their kitchen.

He ordered her to leave, but apparently changed his mind and said that if she did so, he would kill everyone living in her family’s apartment house. Mizell stayed. In March 1989, Mizell moved out, but continued to see Lewis. One night during that month, Lewis met Mizell after her church choir practice. He drove her to an alley, held a knife to her throat, and threatened to kill her. He then drove her to her parents’ home. Thereafter, he called and asked her to return to their house. In June 1989, she complied out of fear for her family’s safety. On June 22, 1989, Lewis and Mizell were living together.

She complained to him about forgetting her birthday. He responded by slapping and choking her, and threatening to kill her. On June 25, shortly after this violent episode, Oliver moved into the couple’s house, where he stayed until July 4. While there, Oliver was able to view Lewis and Mizell’s wedding album. It contained pictures of her friends and relatives, and would have allowed him to memorize their likenesses. Oliver told Mizell that Lewis was still married to Hudson.

Mizell obtained Lewis and Hudson’s marriage certificate from authorities in Las Vegas, Nevada, and confirmed that her own marriage was unlawful by reason of Lewis’s existing marriage to Hudson. (See § 281.) Mizell ended her relationship with Lewis on July 18, 1989. She moved out of their home on that day, three days before the killings. Oliver helped her to move out. Mizell’s departure triggered threats of retaliation from Lewis. In a phone call on the evening of July 18, he promised to kill her. At some point the same day, Lewis bought a 12-gauge Mossberg shotgun and Winchester shotgun shells.

That night, at 10:00 p.m., he rented a red Mustang automobile. On the night of July 18, Mizell stayed at the 77th Street apartment of her parents in a state of fear. Mizell and her mother, Iva Worthen, were in the residence early on the morning of July 19, when someone torched Worthen’s automobile, a 1984 Ford Tempo. It was parked on the street outside. Defendants knew that Mizell sometimes drove the Ford. According to prosecution witnesses, a neighbor, Barbara Johnson, had seen the arsonist and described him as a Black male driving a red Mustang.

Later in the day on July 19, 1989, Mizell enlisted the help of the police to retrieve her automobile, a maroon Datsun 200SX, from the home she had shared with Lewis. Her car was blocked by another vehicle. The police extracted Oliver from the house, drawing their guns on him at one point. He was furious with Mizell, saying, in her words, “You let the police in on me.” Mizell’s mother, Iva Worthen, was present. She described Oliver as “very, very upset and shouting and ranting and raving and . . . cursing.” Oliver left the scene in a red Mustang that Mizell did not recognize.

A license plate check revealed that the Mustang was registered to the Hertz Corporation. One police officer, Bret Richards, testified that he saw a pair of black leather gloves inside the Mustang. Also on July 19, Mizell obtained a temporary restraining order against Lewis. The order directed him to stay away from her, many of her relatives (each identified by name), and the Mount Olive Church. The order was served on Lewis on July 22, 1989, the day after the killings. It was entered into evidence by stipulation.

On July 20, 1989, someone used a firearm to vandalize a new Buick Skylark automobile belonging to Betty Bates, Mizell’s aunt. The windows of the Buick were shot out by shotgun blasts. Shell casings found at the scene came from rounds fired from Lewis’s Mossberg shotgun. In response to these events, Mizell and several relatives decided to go to Las Vegas for their own safety. These plans were disclosed to few other people. The family left on the morning of July 21, 1989, and was in Las Vegas when the murders occurred in Los Angeles.

Shortly before the family’s trip, the fire department called and told Iva Worthen that Mizell’s Datsun 200SX automobile had been destroyed by fire. Fire department investigators testified that the car fire had been deliberately set. The murders took place on Friday evening, July 21, 1989, in the annex of the Mount Olive Church. Mizell and Lewis, and Mizell’s family, regularly attended services at the church. Oliver had no ties to the church and never went there. Mizell, who had been the church organist for some time, ordinarily performed on Friday nights between 7:30 and 9:30 p.m. in the annex.

Had she and her family not fled to Las Vegas, they would have been present for the services that evening. About 70 people were in attendance, including 30 children. Two parishioners, Melvin Earl Johnson and Ruth Johnson, waited outside the church around 8:30 p.m. for Melvin Johnson’s daughter and niece to emerge. Another parishioner, Larry Brown, also was outside. These witnesses saw two Black men wearing dark clothing and hoods, and carrying shotguns—one with a pistol grip. The pair came from a car that had circled nearby moments before with its headlights off. It was dark outside at the time.

The taller, heavier, and darker man (Oliver) approached the porch of the church, and covered his face with a hood or mask. Oliver, in his black clothing and armed with a shotgun, confronted Brown, who jumped over a ledge and bolted away in fear of his life. The smaller, lighter-skinned gunman (Lewis) was standing guard with his own shotgun. He shot twice at Brown, missing him. Oliver entered the church while Lewis stood guard outside with his shotgun. Oliver walked calmly up and down the aisle and seemed to be looking for particular worshipers. He wore black gloves with all or part of the fingers removed.

Though Mizell and certain family members were out of town, other relatives and friends were present. Oliver shot and killed Mizell’s cousin, 35-year-old Patrinella Luke, by inflicting a head wound at close range. Oliver also killed 76-year-old Eddie Mae Lee, Mizell’s friend, shooting her in the back as she tried to flee. Oliver shot and wounded Patrinella’s husband, Peter Luke, who suffered permanent, severe, and painful injuries as a result. Oliver then “calmly walked out like [there] was nothing to it,” according to one witness, Vivian Worthen. Vivian Worthen was Patrinella Luke’s mother and Mizell’s aunt.

Detective Richard Aldahl led the investigation. He found two Winchester 12-gauge shotgun shell casings outside the church where shots were fired at parishioner Brown. Three more 12-gauge shotgun shells were found inside the church, including one Charles Daly shell. Shortly after the crimes, Mizell and other family members identified defendants as suspects to Detective Aldahl. Aldahl and his partner, Larry D. Bird, sought a warrant to search Lewis’s home for shotguns, ammunition, and black clothing. Meanwhile, Detective Jerry Lee Brooks performed surveillance duties.

He arrested defendants on July 24, 1989, three days after the murders. Specifically, Detective Brooks caught Lewis as he tried to leave his house with the barrel of the disassembled Mossberg shotgun. Executing the search warrant, Detective Frank Garcia found the Mossberg receiver inside Lewis’s house. During the same search, Garcia and other detectives recovered black clothing items that included a “ninja” suit and hooded sweatshirt.

Other evidence found in Lewis’s house included a pair of black leather gloves with the fingers removed, a directory for the Mount Olive Church, an owner’s manual for the Mossberg shotgun, and the restraining order that Mizell had served on Lewis. Shortly after arresting Lewis, Detective Brooks arrested Oliver. At the time, Oliver was spotted in Lewis’s yard, where he had jumped a fence and possibly tried to flee. After obtaining certain information from defendants’ neighbor, discussed below, Detective Aldahl obtained a warrant to search a Chevrolet Monte Carlo to which Oliver had the keys.

Inside the trunk, police found a fully loaded Savage model shotgun, with a pistol grip, and a Winchester ammunition box containing 12-gauge shotgun shells. There were 10 unexpended Winchester shells, one unexpended Charles Daly shell, and one expended Charles Daly shell. The trunk of the car also contained a black jacket. Gunshot residue was detected on the black “ninja” suit taken from Lewis’s house and on the black jacket taken from Oliver’s Monte Carlo.

Ballistics tests established that the two Winchester shells found outside the church, expended in the attempt to shoot Larry Brown, were discharged by Lewis’s Mossberg shotgun. Testing also established that the three expended shells retrieved from inside the church (one a Charles Daly) were fired by the Savage shotgun that Oliver possessed. Forensic analysis further revealed several impressions of Oliver’s right palm print on the Savage shotgun.

Louise Holt, a neighbor of defendants, testified that on July 23, 1989, two days after the capital crime, Oliver took a shotgun from the trunk of his Monte Carlo, brandished it at her, and threatened to kill her and her 14-year-old daughter. He had argued with Holt’s daughter, and Holt confronted him. Lewis’s supervisor at work, Gerald Dickinson, testified that Lewis expressed anger after the July 19, 1989, incident in which the police extracted Oliver from the Lewis home. On the day of the murders, Dickinson noticed that Lewis drove a gold Nissan Maxima, rather than his usual car.

When asked why, Lewis replied that he had rented a car because he did not want to be seen in his own motor vehicle. The day after the murders, on July 22, 1989, Lewis told Dickinson that he would be accused of committing the killings, and that Iva Worthen’s automobile had been torched. Regarding the latter act, Lewis told Dickinson, “No one can say they saw me do it.” That was also the day on which Lewis was served with Mizell’s temporary restraining order. Lewis showed Dickinson the document, which ordered him to avoid contact with Mizell’s relatives. Lewis blamed them for his marital problems. 2.

Defense Case Lewis presented no evidence. For Oliver, Lee Smith, a fingerprint expert, testified as follows. The palm prints linked to Oliver on the Savage shotgun were consistent with his having handled the weapon, but not fired it. However, the palm prints were consistent with someone loading the shotgun. The shooter’s use of gloves would explain the lack of additional palm prints on the gun. Prints would not be left in the “shooting position” by someone wearing gloves. Maggie Crenshaw, a neighbor of defendants, in July 1989, testified that she saw Oliver’s Monte Carlo arrive to the area by tow truck.

She never saw Oliver drive it. However, she did see him work on the car. Crenshaw also had heard on the television news that a reward, possibly of $5,000, could be obtained for information about the murders. Patricia James, Oliver’s older half sister, testified, among other things, that Oliver’s hair at trial was similar, but somewhat shorter, than when the crimes occurred, and that he had facial hair in July 1989. James had heard a televised report of a reward for information about the murders.

Detective Aldahl testified that Melvin Johnson had reviewed a “six-pack” photographic lineup that included Oliver’s photograph, but could not identify him. Johnson also could not eliminate Oliver as the gunman who entered the church. According to Aldahl, a small pair of pants, waist size 31 inches, was found in the trunk of Oliver’s Monte Carlo. At the time of his arrest, Oliver weighed 207 pounds, and was five feet 11 inches tall. No reward was offered in the case, and no one ever asked Aldahl about a reward.

The parishioner accosted on the church porch, Larry Brown, testified that the man in the alley (Lewis) could have been Hispanic or Black, and that the armed man entering the church seemed smaller than Oliver, who weighed about 207 pounds at the time of the murders and 277 pounds during pretrial proceedings. Brown knew Lewis but did not recognize him as the gunman in the alley who shot at him. At the time, however, Brown was fleeing from the shotgun-wielding Oliver and did not register many details about Lewis. Moreover, Brown accurately described the assailants’ relative height, weight, and complexion.

Brown had also heard rumors of a reward for information about the murders. B. Penalty Phase 1. Prosecution Case a. Oliver’s Other Violent Crimes In early October 1986, Oliver committed a strong-arm robbery, taking $120 from Melvin Lee. Later that month, Oliver burglarized Lee’s house by kicking open the front door, choking Lee, and taking his sister’s television. On another occasion at the same place, Oliver assaulted one James Green, who moved out of Lee’s residence after Oliver’s attack. b.

Oliver’s Prior Felony Convictions The parties stipulated to the admission of Oliver’s prior felony convictions for the robberies of Melvin Lee in October 1986, the grand theft of an automobile in August 1984, and an armed robbery committed in December 1981. Oliver was sentenced to prison for these crimes. c. Oliver’s Misconduct in Prison In November 1984, while incarcerated in the California Institution for Men, Chino, Oliver was confined in a unit reserved for inmates with disciplinary problems or in protective custody.

He threw a carton of milk and coffee at Richard Valiente, the correctional officer serving a meal. Immediately beforehand, when the officer displayed a paper plate, Oliver had said, “I ought to throw this food at you.” The coffee was hot, and it would have hit the officer had he not dodged it. Afterwards, Oliver said, “If I had any more food, I would throw that on you, too.” Sergeant Royal Towns testified that staff found a plastic shank, or knife, in Oliver’s possession at San Quentin Prison in March 1985. It was located in a shampoo bottle in the rear of Oliver’s cell.

At the time, he was single-celled in a secure unit for high-profile inmates, such as gang members. The weapon was almost two inches wide, and sharpened to a point. Towns testified that inmates favored plastic weapons because they do not activate prison metal detectors. d. Oliver’s Misconduct in Jail In January 1990, Oliver saw another Los Angeles County jail inmate, Joseph Odem, rifling through his belongings and attacked him. Oliver told deputies that he “beat the shit out of’ Odem. Oliver did, however, summon help for Odem.

In February 1991, Oliver flung a typewriter at another inmate in the Los Angeles County jail law library. Oliver then grabbed the sharp-edged typewriter cover, which had detached from the typewriter, and chased the other inmate with it. The pair scuffled. Oliver punched the inmate in the head. Oliver also lunged at him with the metal cover while being restrained by deputies. Oliver ignored deputies’ orders to stop fighting. Sheriff’s Deputy Pete Cacheiro testified that at the time of the incident, both Oliver and his victim were housed in a special unit reserved for inmates with prior violent histories in jail.

In April 1991, four Los Angeles County sheriff’s deputies escorted Oliver to the attorney visiting room at the county jail. The number of escorts was extraordinary, and was required because of Oliver’s history of violence. Oliver threatened, cursed, and resisted deputies the entire time. Oliver kicked one of the deputies in the knee. e. Lewis’s Domestic Violence Jeanett Hudson was already married to Lewis when he “married” Mizell. Hudson testified that, during their relationship, Lewis grew increasingly violent. He pushed and punched her.

He threatened her life at knifepoint on one occasion, and caused her to lose consciousness another time. Once, after she fled from him, he apparently feigned suicide to induce her return. In November 1981, following a severe beating, Hudson moved out. She went to her parents’ house, taking her young daughter with her. In the following days, numerous phone calls from Lewis or both defendants contained threats to kill Hudson and her family. For example, Oliver announced that “all of [them] . . . were going to die.” In the same period, Hudson’s parents’ house was shot at, as was Hudson’s car.

The shooting of the house was particularly terrifying, Hudson testified. There were six adults and two preteen children in the house. As the shots penetrated the house, the children were placed in the bathtub and the adults lay on the floor and slept there that night. More phone calls followed, containing laughter. Thereafter, the house was shot up again. Hudson described “gunfire [coming] from everywhere.” She testified that the “[h]ouse was full of smoke. You could hear the kids crying, everybody laying on the floor.” The family quickly fled Los Angeles.

On December 11, 1981, another house belonging to Hudson’s parents was destroyed by the second of two deliberately set fires. Lewis later admitted to Hudson that he had done the shootings of the house and car. Hudson’s sister, Nadine Burchett, testified that, around the same time, she received telephone calls at work from both Lewis and Oliver saying they were going to find Hudson and her family and kill them. Despite all of this, Hudson married Lewis in March 1982. She was still married to him when she testified. On July 21, 1989, the night of the murders, Lewis and Oliver arrived at Hudson’s home.

They were dressed in black clothing, some of which they removed. They showed Hudson two shotguns in the trunk of an apparent rental car. Lewis wanted to store the guns in Hudson’s house. She refused, but allowed him to place them in the trunk of her car. Defendants left in a hurry, saying they needed to return the car to the rental agency. Later, the police questioned Hudson. She furnished a false alibi for Lewis, saying they were watching television when the murders occurred. She did so because she feared Lewis more than the police.

When Hudson declined to provide a false alibi for the capital crimes at trial, Lewis threatened to kill her. f. Victim Impact Evidence Relatives and friends testified briefly about the victims’ loving and caring natures, and the grief and loss their deaths had caused. Ouida Faye Mitchell was the daughter of Eddie Mae Lee. Mitchell praised Lee as a mother, and said she was an important presence in her grandchildren’s lives. Lee was dedicated to the church. The congregation recruited five volunteers to do her charity work after her death.

Lee spoke to skid row residents about her faith, and delivered blankets and food. She also visited convalescent homes, and cared for sick people in their own homes. Dora Ballard was a close friend of the victims. She testified that the impact of their deaths was immeasurable. She confirmed Lee’s prodigious work in the community, and described Patrinella Luke as a gifted and talented singer with the potential for a “wonderful future.” Patrinella Luke’s mother, Vivian Worthen, and son, Peter Luke, Jr., saw the shootings inside the church.

Worthen testified that everyone loved Patrinella Luke, who had a beautiful voice and was a good homemaker. Peter Luke, Jr., loved his mother very much and had experienced difficulty in school since her death. He could not stop thinking about her and the murders. Four years later, he continued to dream about her and cry over her death. Peter Luke (Peter Luke, Sr.) was the husband of murder victim Patrinella Luke, and a shooting victim. He described Patrinella as “a beautiful person, very vibrant.” He testified that her death had been hard on their son, Peter Luke, Jr.

The shooting also had deprived the son of a father who could engage in activities with him. Peter Luke, Sr., asked jurors to “do the right thing.” Nobody testified for more than five minutes. The prosecutor played a short videotape of Eddie Mae Lee and Patrinella Luke in church. 2. Defense Case Lewis’s sister, Patricia James, testified that their father was diagnosed as a paranoid schizophrenic when Lewis was very young, and was continually hospitalized in the 1950’s and 1960’s. Lewis’s father seemed to be supematurally strong. He heard voices and behaved violently when not hospitalized or medicated.

He would sometimes hit Lewis. Nevertheless, when Lewis was older, he tried to help his father with his mental illness. The father lived in Lewis’s house for a year and a half, where Lewis cared for him. James further testified that the family consisted of 10 children by five different fathers. Both the youngest sibling and Oliver’s father had been in prison. The sibling was still incarcerated and used a wheelchair. Oliver’s father was a “true to life swindler.” In the 1960’s, their mother suffered a stroke. After the mother’s stroke, the children stayed with relatives. Their mother died of breast cancer.

One of the mother’s husbands was an abusive alcoholic. Lewis accidentally shot Oliver when Oliver was about age nine. Oliver was treated at a mental hospital as a boy. Dr. Alvin E. Davis, a psychiatrist, examined Lewis on four occasions for a total of six hours in preparation for trial. He diagnosed him as having severe paranoid personality disorder and recurrent episodes of depression. Dr. Davis explained to the jury that Lewis’s behavior throughout his life, including his treatment of his wives, was not surprising in light of his paranoia. Dr.

Davis also testified that, while Lewis might think he was malingering or feigning mental disorders at various points in the trial, he was only fooling himself, as his disorders were real. Like Patricia James, Lewis’s sister, Dr. Davis testified that Lewis’s father had been diagnosed as a paranoid schizophrenic decades before, and that Lewis’s father would beat him for no reason. Defendants’ first cousin, Brenda Roxie Wilson, and their second cousin, Lana Luvercie Moore Bastien, each asked the jury to spare defendants’ lives. This testimony was the sole mitigation Oliver offered.

The parties stipulated that Oliver was stabbed by another inmate in jail midway through the trial. The jury learned that Oliver sustained more than 40 stab wounds, and that he suffered various ailments as a result (stroke, pneumonia, punctured lung, mild brain damage causing some speech impairment, partial paralysis of lower left leg, and residual lung infection). H. PRETRIAL ISSUES A.

Failure to Challenge Search Warrant; Ineffective Assistance (Lewis) Lewis contends he received constitutionally deficient representation because counsel did not move before trial to exclude evidence retrieved from his home, to wit, the Mossberg shotgun and owner’s manual, and articles of black clothing that tested positive for gunshot residue. Counsel should have tried to quash the search warrant, Lewis claims, because the affidavit supporting it contained false statements.

Specifically, he asserts the warrant affidavit falsely attributed to Mizell a statement that Lewis “possesse[d] a long rifle or shotgun.” Lewis relies on police interview statements and on preliminary hearing testimony indicating that Mizell never saw or knew about any shotguns in Lewis’s possession. Ineffective assistance of counsel under the Sixth Amendment requires deficient performance under an objective standard of professional reasonableness. It also entails prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v.

Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 104 S.Ct. 2052].) In addition, “a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. . . . [T]he lower court must conduct an evidentiary hearing [only if] a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. . . .

Innocent or negligent misrepresentations will not defeat a warrant. [Citation.] ‘Moreover, “there is a presumption of validity with respect to the affidavit. . . .” ’ ” (People v. Panah (2005) 35 Cal.4th 395, 456 [25 Cal.Rptr.3d 672, 107 P.3d 790], citing Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674]; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1297 [65 Cal.Rptr.2d 145, 939 P.2d 259]; see People v. Luttenberger (1990) 50 Cal.3d 1, 9-10 [265 Cal.Rptr. 690, 784 P.2d 633].) As pertinent here, the police executed a search warrant of Lewis’s home.

The warrant authorized the seizure of, among other things, any 12-gauge shotguns, shotgun ammunition, and black clothing. The police found such clothing, which came into evidence. At the time of Lewis’s arrest, he was carrying the barrel of the Mossberg shotgun. The rest of the gun was recovered on Lewis’s bed during service of the search warrant. In the challenged affidavit, Detective Bird stated that two people had been murdered by shotgun blasts.

The affidavit also described accounts of the clothing the assailants wore, and explained that Mizell, the intended murder victim, told police that Lewis “possesses a long rifle or shotgun, along with a black Ninja suit complete with hood.” In arguing that the affidavit contained false statements, Lewis observes that Mizell did not mention Lewis’s possession of any kind of gun to police in a statement she gave shortly after the murders. He also observes that she testified at the preliminary hearing that he did not have a shotgun in the house.

However, Lewis has not shown that Detective Bird lied about what Mizell said concerning long guns in Lewis’s possession. Nor has Lewis shown that the detective knew Mizell was lying or mistaken, even assuming her statement to him was untrue. Under Franks v. Delaware, supra, 438 U.S. 154, and its progeny, the showing is insufficient. (People v. Panah, supra, 35 Cal.4th 395, 456.) Lewis further fails to establish that any deficient performance was prejudicial or that the result would have changed had counsel acted differently. The alleged falsehood was neither “necessary” (Franks v.

Delaware, supra, 438 U.S. 154, 156) nor “material” (People v. Bradford, supra, 15 Cal.4th 1229, 1297) to the probable cause finding. The affidavit amply justified the search of Lewis’s house. In addition to Lewis’s history of violence against Mizell and her family, including her aunt, Betty Bates, the affidavit alleged that (1) a small gray or silver car similar to Lewis’s car was seen at both the Bates Buick shooting and the church, (2) expended Winchester 12-gauge shotgun shells were found at both the Bates shooting and the church, and

(3) Lewis owned a black, hooded “ninja” suit. We find no ineffective assistance. B. Motion to Dismiss the Information (Lewis, Oliver) Defendants contend the information should have been dismissed based on their motion for insufficient evidence to commit them to superior court for trial. (§ 995.) They challenge the trial court’s ruling under state law, and claim it had the additional legal consequence of denying them due process under both the Fourteenth Amendment and parallel provisions of the state Constitution. The information was filed on December 21, 1989, and amended on February 21, 1990.

On August 21, 1990, Lewis moved to set aside the information for insufficient evidence—a motion that Oliver joined. At a hearing on August 24, 1990, Lewis admitted that' the motion lacked an adequate recitation of the relevant facts, and asked informally for a delay in adjudicating it. The trial court decided to proceed. It denied the motion, but offered to reconsider its ruling if defendants presented new reasons to do so. Defendants failed to renew the motion.

Irregularities in pretrial commitment proceedings that are not jurisdictional in the fundamental sense require reversal on appeal only where the defendant shows he was deprived of due process or suffered prejudice as a result. (People v. Millwee (1998) 18 Cal.4th 96, 121 [74 Cal.Rptr.2d 418, 954 P.2d 990], citing People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) Errors in the denial of a

section 995 motion claiming insufficiency of the evidence are not jurisdictional in the fundamental sense. (See, e.g., People v. Mattson (1990) 50 Cal.3d 826, 870 [268 Cal.Rptr. 802, 789 P.2d 983].) Thus, even assuming defendants have not forfeited their claim by abandoning their pretrial efforts to dismiss the case, they have not shown any prejudice warranting relief. As we shall discuss, the evidence was sufficient to support the guilt verdict. C. Pitchess Discovery Motion (Lewis) Lewis argues that the trial court wrongly denied his motion to discover information in police personnel files under Pitchess v.

Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305] (Pitchess). He insists the error had the additional legal consequence of violating his right to due process under the Fifth Amendment, and that it violated his right to compulsory process under the Sixth Amendment. Because “[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct” (Partida, supra, 37 Cal.4th 428, 435), the compulsory process claim is forfeited. (Ibid.) We also find no state law error.

Representing himself, Lewis filed two motions to discover information in the personnel files of several investigators, including Detectives Richard Aldahl and Jerry Lee Brooks. Both times, Lewis alleged that the detectives were involved in a conspiracy with Mizell to steal $10,000 and to murder him. He claimed they attempted to murder him by using excessive force during his arrest that would provoke him into defending himself, and that would allow them to apply lethal force in return.

He also alleged that the officers were violent men generally, and that they were conspiring to frame him for murders he did not commit. In Lewis’s first Pitchess motion, filed on April 18, 1991, he attached what appears to be a photograph of himself when he was booked for the murders. (He claims it shows he was beaten—a circumstance we do not discern from copies of the photograph in the record.) Also attached to Lewis’s motion were photocopies of newspaper articles reporting allegations or episodes of police misconduct in unrelated cases. The trial court held a hearing on the motion on May 31, 1991.

The court denied the motion because Lewis failed to include a police report, as statutorily required. (See Evid. Code, § 1046.) On June 4, 1991, Lewis filed a second Pitchess motion. This time he included the required police report among the attachments, and excluded the booking photograph. The hearing on the second motion occurred on July 19, 1991. The trial court indicated that it had carefully reviewed the moving papers. Ultimately, it found no prima facie evidence of a police conspiracy, and no basis for an in camera review of the requested personnel records.

The court viewed the discovery request as a “fishing expedition,” and said it was “miserably” supported. We review the trial court’s ruling for an abuse of discretion. (Pitchess, supra, 11 Cal.3d 531, 535.) None appears. Lewis did not show that a police conspiracy to murder or frame him “could or might have occurred.” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 [29 Cal.Rptr.3d 2, 112 P.3d 2]; see id. at p. 1026.) Lewis’s moving papers alleged one or more grandiose conspiracies to frame and murder him.

The trial court did not abuse its discretion in concluding that Lewis did not meet the standard for permitting discovery of information from police personnel files. D. Judicial Bias Claim (Lewis) Lewis claims he was denied due process and an impartial judge under the Fifth and Fourteenth Amendments. (See Tumey v. Ohio (1927) 273 U.S. 510 [71 L.Ed. 749, 47 S.Ct. 437].) We disagree. By way of background, Lewis filed three disqualification motions in propria persona during the long interval between the filing of the information in December 1989 and the start of jury selection in January 1993.

On August 15, 1991, Lewis filed a disqualification motion invoking Code of Civil Procedure

section 170.1. On January 6, 1992, Lewis filed a disqualification motion invoking Code of Civil Procedure

section 170.6. On December 9, 1992, Lewis orally presented another disqualification motion invoking Code of Civil Procedure

section 170.1. At bottom, he claimed the trial court (Judge Jacqueline A. Connor) systematically favored the prosecution due to a bias against parties appearing in propria persona. He also complained about the denial of his Pitchess motions. All three disqualification motions were denied. Proceedings were suspended after the first motion. A judge appointed by the Judicial Council (Orange County Superior Court Judge James L. Smith) found no bias on the part of the trial court. The superior court denied the second motion as untimely, and denied the third motion as lacking a sufficient factual basis.

Defendant petitioned for a writ of mandate after the second motion. The Court of Appeal denied that petition as untimely. He also sought a writ of mandate after the third motion. The Court of Appeal denied that petition “for absence of facts and record showing entitlement to extraordinary relief.” Lewis now asserts, for the first time, that the trial court showed bias in (1) making evidentiary rulings unfavorable to the defense, such as excluding a plastic bag containing a cocaine-like powder found at the crime scene, (2) mishandling Marsden issues (see People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden)), (3) making negative comments about Lewis’s efforts to delay the trial and feign mental illness, and (4) mishandling Lewis’s mental competence to stand trial. All such matters touch on substantive claims addressed later in this discussion. Meanwhile, in resolving the claim of judicial bias, we summarize the relevant facts as follows. Following pretrial hearings in April and October 1992, the trial court rejected defense efforts to admit a plastic bag containing a cocaine-like substance found in the Mount Olive Church after the capital crime.

Initially, the court posited that if defendants’ fingerprints were not found on the bag, and the bag was found to contain cocaine, the bag could come into evidence to advance a theory, otherwise poorly supported, that someone else committed the murders and left cocaine at the crime scene. The defense checked the bag for fingerprints, but never sought to have the contents tested. The court ruled the evidence was irrelevant and therefore inadmissible. On February 2, 1993, near the close of the prosecution’s guilt case-in-chief, Lewis presented a Marsden motion.

By then, Richard Leonard had represented Lewis either as counsel or advisory counsel for over two years. During that time, and as discussed later, Lewis vacillated between professional representation and self-representation. Hence, much like a brawl that defendants had caused in the courtroom the previous day, on February 1, the trial court apparently viewed the Marsden motion as another effort to delay the jury verdict. The trial court emphasized that, aside from the courtroom brawl, Lewis had largely cooperated with, and behaved well toward, counsel.

In denying the motion, the court relied, in part, on Lewis’s apparent attempt to generate conflict and distrust by physically attacking counsel late in the case. Near the end of the Marsden hearing, Lewis declined to speak further and refused to remain in the courtroom. On February 10, 1993, the day before the guilt verdict, the court noted outside the jury’s presence that Lewis had “made an ineffectual attempt to injure himself,” and that Lewis seemed to be trying to delay the proceedings with disruptive behavior.

On February 22, 1993, the trial court faced the issue of Lewis’s mental competence between the guilt and penalty phases. The court commented on the “creative array [of] talents he has for delay.” Finally, Lewis’s counsel, the trial court, and the prosecutor all believed that Lewis was competent to stand trial. Each indicated at times that various outbursts, including Lewis and Oliver’s assault on counsel, were feigned attempts to persuade the court and the jury of mental illness that did not exist.

For instance, the court commented that Lewis “behaved inappropriately, [but] there was no indication of any mental impairment observed by my deputies or anybody here in this courtroom, including myself.” When the foregoing events occurred, Lewis did not call the trial court’s attention to the comments and rulings he now cites as evidence of judicial bias. In general, if the trial court refuses or fails to disqualify itself, the complaining party must seek disqualification at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.

In doing so, the party must bring to the trial court’s attention “all of the facts” later cited on appeal in support of the judicial bias claim. (People v. Guerra (2006) 37 Cal.4th 1067, 1111 [40 Cal.Rptr.3d 118, 129 P.3d 321].) By failing to do so when the relevant events occurred, Lewis has forfeited the right to complain about them on appeal. (Ibid.) For similar reasons, he has lost any additional claims that the trial court’s alleged bias affected subsequent rulings. (Ibid.; cf. People v.

Harris (2005) 37 Cal.4th 310, 346 [33 Cal.Rptr.3d 509, 118 P.3d 545] [declining to decide similar forfeiture issue when the substantive claim “lacks merit”]; People v. Brown (1993) 6 Cal.4th 322, 334—335 [24 Cal.Rptr.2d 710, 862 P.2d 710] [suggesting defendant may claim on appeal that judgment is constitutionally invalid due to judicial bias].) In any event, we see no violation of Lewis’s right to be tried before an impartial judge.

As we later explain, the court correctly applied the law in excluding evidence of the “baggie” containing “cocaine.” It made this ruling only after giving the defense ample opportunity to show relevance. Regarding the Marsden motion, the court reasonably found no actual breakdown in the attorney-client relationship. Again, it gave Lewis a fair chance to show the opposite was true. Finally, the comments suggesting Lewis was feigning mental incompetence, and had used outbursts and other tactics to manipulate and delay the proceedings, did not suggest that the court had prejudged competence or could not be fair.

Such observations were supported by the record, including expert testimony introduced at a hearing on Lewis’s competence. The bias claim fails on the merits. E. Motion for Eyewitness Identification Expert (Lewis) Lewis challenges the pretrial denial of funds to retain an expert witness on eyewitness identification. He insists the ruling violated state law, and that it had the additional legal consequence of violating his right to due process and to present a defense under the Sixth and Fourteenth Amendments, and under parallel provisions of the state Constitution.

As explained further below, a claim of ineffective assistance of counsel also is raised. We see no basis for relief. On October 19, 1991, Lewis moved in propria persona under

section 987.9 for funds to retain Dr. Elizabeth Loftus as an expert on eyewitness identification (I.D.). Lewis wanted Dr. Loftus to examine several potential eyewitnesses. At a hearing on October 28, 1991, Los Angeles County Superior Court Judge Gary Klausner, who was not the trial judge, denied the request. Judge Klausner doubted that Dr. Loftus was available for appointment or that the proposed testimony would be admitted at trial. He realized, however, that those issues were not before him, and that only funding for. an identification expert was raised.

Judge Klausner ruled that if “the trial court decides I.D. testimony would be admissible and says that it is appropriate to [appoint] an I.D. expert,” then he “would go ahead and appoint him.” Hence, Judge Kausner denied the motion without prejudice. It appears that neither Lewis, while acting in propria persona, nor appointed counsel, when later reinstated, sought a ruling from the trial judge on the admissibility of the proposed testimony.

Anticipating the Attorney General’s forfeiture claim, Lewis suggests it does not matter whether he followed Judge Kausner’s advice and sought an advance ruling from the trial judge on the admissibility of the proposed testimony. Rather, in Lewis’s view, Judge Kausner’s ruling was erroneous because it forced Lewis to litigate admissibility before being able to retain and consult with the expert, and without being able to formulate an offer of proof. Lewis also claims compliance with the funds ruling would have required him to disclose confidential information to the trial court.

Finally, Lewis faults counsel for not offering exculpatory expert identification testimony at trial in any event. No prejudicial error or ineffective assistance occurred. Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary. For this reason, the trial court’s discretion regulating its use is rarely disturbed. (People v. McDonald (1984) 37 Cal.3d 351, 377 [208 Cal.Rptr. 236, 690 P.2d 709].) Consistent with these principles, Lewis has not shown that such testimony would have made a difference here. No witness identified the masked perpetrators.

The prosecution relied on circumstantial evidence showing defendants’ motive, intent, and opportunity to commit the crime, and their consciousness of guilt afterwards. Oliver called Larry Brown. Oliver stressed that neither Brown nor Melvin or Ruth Johnson was able to identify defendants. The record does not show what additional exculpatory inferences could have been drawn if an expert had testified. We reject the claim. F.

Bag Containing Suspicious White Powder (Lewis, Oliver) Defendants contend the trial court erred in excluding, as irrelevant, evidence that a plastic bag containing white powder resembling cocaine was found in the Mount Olive Church after the capital crime. (See Evid. Code, § 350.) Lewis further argues that counsel rendered ineffective assistance in failing to have the substance chemically tested.

Citing the Fifth, Sixth, Eighth, and Fourteenth Amendments, and parallel provisions of the state Constitution, defendants assert the additional legal consequence that they were denied their constitutional right to present a defense. They also invoke their Sixth Amendment right to confront and cross-examine witnesses. (See Davis v. Alaska (1974) 415 U.S. 308, 318 [39 L.Ed.2d 347, 94 S.Ct. 1105].) The confrontation claim is forfeited. (Partida, supra, 37 Cal.4th 428, 435.) We find no state law error, and no ineffective assistance of counsel.

In a police property report dated July 25, 1989, Detective Aldahl stated that, while inspecting the Mount Olive Church after the killings, he found a “[c]lear plastic zip-lock baggie containing a white powdery substance resembling cocaine[—]17.0 grams.” At a hearing on April 20, 1992, the question arose of admitting the plastic bag and its contents into evidence. The prosecutor stated that the white powder had not been tested by anyone, that nothing connected it to the murder victims, and that its introduction would distract the jury by portraying the victims and prosecution witnesses in a false light.

Defendants argued that if testing proved the bag contained cocaine but did not bear their fingerprints, then some third person must have shot the victims and either thrown or dropped the bag, possibly during a “drug deal gone bad.” The trial court questioned relevance. The court said, however, that if defendants intended to rely on an abortive-drug-deal theory for the murders, it would admit the bag of powder. The defense promised to test the powder. On October 14, 1992, the prosecution moved in writing to exclude, as irrelevant, the “baggie” evidence described in the police report.

According to the motion, the item was found on the opposite side of the church from the victims, and at least 16 feet away from the shooter. A hearing on the motion was held two days later, on October 16, 1992, while Lewis was representing himself. Oliver’s counsel indicated that two unnamed inmates could confirm, for reasons counsel did not describe, that the church was used for selling drugs. It became clear that defendants had not tested the substance for cocaine. They argued that, even so, the evidence would have shown the shooting was in retaliation for the sale of “bunk” cocaine.

The trial court granted the motion, excluding the evidence as irrelevant. The trial court properly could have denied outright the motion to admit the baggie evidence. (See People v. Pride (1992) 3 Cal.4th 195, 237-238 [10 Cal.Rptr.2d 636, 833 P.2d 643] [third party must be linked to “ ‘actual perpetration’ ” of charged crime (applying People v. Hall (1986) 41 Cal.3d 826 [226 Cal.Rptr. 112, 718 P.2d 99]), italics omitted]; see Holmes v.

South Carolina (2006) 547 U.S. 319,_, fn. * [164 L.Ed.2d 503, 126 S.Ct. 1727, 1733].) Whether the substance was cocaine or an innocuous white powder resembling it, the mere presence of a saleable quantity of suspicious powder in the church does not tend to prove that someone other than defendants committed murder as part of a drug deal, or that the police overlooked such evidence. Even assuming the presence of the substance suggested drug dealing or gang activity inside the church, the suspicious powder does not raise a reasonable doubt as to defendants’ guilt of the crimes they committed.

No error or incompetence occurred. G. Severance Motions (Lewis, Oliver) Defendants assert the court erred in denying their oral motions to sever their cases for trial. Both claim violations of their right to due process and to an impartial jury under the Fifth, Sixth, and Fourteenth Amendments, and under parallel provisions of the state Constitution. Oliver also invokes his right to an individualized penalty determination under the Eighth Amendment. Except for due process, the constitutional claims are forfeited. (Partida, supra, 37 Cal.4th 428, 435.) We find no error under state law. 1.

Oliver On April 28, 1992, Oliver moved to sever his trial from Lewis’s because Lewis had flashed a thumbs-down sign to him, and because Oliver thought Lewis might turn “State’s evidence.” The trial court denied the motion. On appeal, Oliver invokes different grounds in arguing that the severance motion should have been granted, citing events that happened after the severance motion.

They concern the admission of evidence that Lewis alone committed certain uncharged crimes, the risk that jurors would find defendants—who are half brothers—guilty by association, Lewis’s outbursts in court after the “thumbs-down” incident, and the lack of separate penalty trials. 2. Lewis On November 18, 1992, Lewis, appearing in propria persona, moved to sever his trial from Oliver’s immediately after Oliver was ejected from court for unruly behavior. Lewis complained that “this is highly prejudicial on the part of [his] defense.” The trial court denied the motion.

Like Oliver, Lewis now invokes different grounds, based on later events, in arguing that the severance motion should have been granted. Such events are that Oliver joined the courtroom brawl that later happened in front of the jury, and that Lewis ultimately decided not to testify against Oliver. 3. Discussion We question defendants’ apparent assumption that they could mandate severance through their own misconduct. In any event, denial of a severance motion is generally reviewed for an abuse of discretion. (People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 41 [17 Cal.Rptr.3d 710, 96 P.3d 30].) The reviewing court assesses the ruling based on the record before the trial court at the time. (People v. Arias (1996) 13 Cal.4th 92, 127 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Price (1991) 1 Cal.4th 324, 388 [3 Cal.Rptr.2d 106, 821 P.2d 610].) Of course, even a ruling that was correct when made cannot stand if joinder caused such “ ‘gross unfairness’ ” as to violate defendants’ due process rights. (People v. Arias, supra, at p. 127.) Defendants fail to advance sufficient grounds to disturb the ruling below.

This was, after all, the classic situation in favor of a joint trial, given that defendants were charged with common crimes involving common events and victims. (E.g., People v. Coffman and Marlow, supra, 34 Cal.4th 1, 40; People v.

Pinholster (1992) 1 Cal.4th 865, 932 [4 Cal.Rptr.2d 765, 824 P.2d 571].) Given the “legislative preference for joinder, separate trials are usually ordered only ‘ “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” ’ ” (People v. Box (2000) 23 Cal.4th 1153, 1195 [99 Cal.Rptr.2d 69, 5 P.3d 130].) None of these factors exists here.

Both defendants denied committing the crimes, faced essentially the same charges and allegations, bore equal criminal responsibility, and relied on a defense of mistaken identity. There was no indication either defendant would have given exonerating testimony at a separate trial. No abuse of discretion or gross unfairness appears. H. Trombetta Motion (Lewis, Oliver) Defendants contend the trial court erred by concluding that their due process rights under California v.

Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528] (Trombetta) were not violated when the police discarded two shotgun shells recovered from the shooting of an automobile belonging to Betty Bates, Mizell’s aunt. In particular, defendants insist both that a Trombetta violation occurred and that they were not allowed to make an adequate record on the issue. Lewis invokes, as an additional legal consequence, a violation of due process under the state Constitution. Bates’s Buick Skylark was vandalized by shotgun blasts the day before the murders.

Los Angeles Police Department Detective Kempton Lockwood, a prosecution firearms expert, testified at trial that he test-fired Lewis’s Mossberg weapon. He compared the test-fired casings to the two spent Winchester shells found near Bates’s damaged automobile.

He determined that the Bates shells came from the Mossberg and from “no other weapon.” On March 6, 1992, well before the trial began, the prosecutor mentioned in court for the record that the two shells recovered from the scene of the Bates Buick shooting had been discarded after they were photographed and after experts for both defendants examined the evidence. At a pretrial hearing on April 14, 1992, Lewis claimed a Trombetta violation had occurred. He asserted that his expert, James Warner, examined the five shells found at the church, but that he did not examine the Bates shells.

Lewis claimed Trombetta was violated insofar as the shells had been discarded. The prosecutor responded that, before being discarded, the shells had been made available to Warner and he had examined them. However, they were maintained under a different case number, which might explain Lewis’s confusion over his expert’s access to them. The court deferred a ruling until it could hear more facts. The trial court revisited the Trombetta issue at another pretrial hearing on April 20, 1992. The court received no response when it asked Oliver whether he joined Lewis’s Trombetta motion. Lewis then withdrew the motion.

He noted for the record that his expert had received access to the Bates shells. On January 4, 1993, at another hearing that took place two days before trial began, the prosecutor described the evidence logs, which supported her ongoing view that the Bates shells were in the firearms laboratory and had been made available some time before to Warner and Mr. Morton, Oliver’s expert, both of whom had visited the laboratory to examine them. Lewis then renewed his Trombetta motion. The trial court summarily denied it.

Contrary to what defendants now argue, they were not prevented from making a record before their Trombetta claim was denied. Lewis expressly relinquished his right to do so despite the court’s offer to entertain any additional facts defendants might present. When asked to explain this stance, Lewis conceded that his expert had a chance to examine the Bates shells and to assess their relevance before they were discarded. Oliver stood mute when asked his views. Defendants suggest no way in which they could have added to the record. In sum, the trial court adequately protected defendants’ fair hearing rights.

Defendants also claim the trial court erred in failing to suppress Lockwood’s testimony about the Bates shells as a remedy for what they perceived to be a Trombetta violation.

The due process rights conferred by Trombetta apply only when the “evidence . . . possesses] an exculpatory value that was apparent [to the authorities] before the evidence was destroyed.” (Trombetta, supra, 467 U.S. 479, 489.) The prosecution’s expert determined conclusively that the shells used to damage Bates’s Buick came from Lewis’s Mossberg shotgun—a conclusion that linked him both to the vandalism of Bates’s automobile and to the murders. This information negates any inference that the shells possessed exculpatory value manifest to the authorities when discarded before trial.

Accordingly, no Trombetta violation appears. I. Uncharged Criminal Acts (Lewis, Oliver) Defendants argue here, as below, that evidence of uncharged conduct was improperly admitted to show their violent character or disposition. (Evid. Code, § 1101, subd. (a).) This evidence was not relevant, defendants claim, for any valid nondispositional purpose. (Id., subd. (b).) Oliver also alleges violations of his right to due process under the Fifth Amendment and to a reliable penalty determination under the Eighth Amendment. He also invokes generally the Sixth Amendment and the state Constitution.

Lewis claims a violation of his right to due process under the Fifth Amendment and his right to be free of cruel and unusual punishment under the Eighth Amendment. Except for due process, the constitutional claims are forfeited. (Partida, supra, 37 Cal.4th 428, 435.) No error occurred under state law. On April 9, 1992, the prosecution moved, in writing, to admit five uncharged incidents in which Lewis abused Mizell and threatened to kill her and her family.

Such evidence showed that Lewis (1) threatened to kill Mizell with a knife and nicked her with it in September 1988, (2) threatened to kill her and choked her in February 1989, (3) threatened to kill her and held a knife to her throat in an alley in March 1989, (4) assaulted and threatened to kill her in June 1989, and (5) threatened to kill her on July 18, 1989, after she moved out.

Other uncharged acts the prosecution moved to introduce included the arsons of Iva Worthen’s Ford Tempo and Mizell’s Datsun 200SX on July 19 and 21, 1989; the confrontation involving Mizell, Oliver, and the police on July 19, 1989; the shooting of Betty Bates’s Buick Skylark on July 20, 1989; and Oliver’s act of threatening Louise Holt with his Savage shotgun on July 23, 1989. Defendants opposed this evidence at pretrial hearings on April 14 and 20, 1992.

The trial court agreed with the prosecution that the evidence permitted reasonable inferences about defendants’ motive, identity, and opportunity to commit the charged crimes. The court stressed the close timing and similar nature of the acts, the relationship between the victims and defendants, defendants’ familiarity with the victims’ property, and defendants’ access to the murder weapon. The court found no substantial risk of prejudice under Evidence Code

section 352. The court later instructed the jury that Lewis’s “threats” against Mizell could not be used against Oliver. The court also instructed jurors on the limited purpose for which other-crimes evidence can be used. The court’s ruling is consistent with the law. (People v. Gray (2005) 37 Cal.4th 168, 202 [33 Cal.Rptr.3d 451, 118 P.3d 496]; People v. Catlin (2001) 26 Cal.4th 81, 145-146 [109 Cal.Rptr.2d 31, 26 P.3d 357].) It is entitled to deference on appeal. (People v. Jablonski (2006) 37 Cal.4th 774, 821, 824 [38 Cal.Rptr.3d 98, 126 P.3d 938].) No abuse of discretion occurred.

The uncharged acts showed an escalating campaign to retaliate against Mizell and her family for the marital breakup. This motive also suggested that defendants were the perpetrators, and that they intended and premeditated the victims’ deaths. The incident with Louise Holt, which occurred a few days later, showed defendants had the means to commit the murders. J. Faretta Claim (Oliver) Oliver claims that two withdrawals from his constitutional right to represent himself (Faretta v.

California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta)) before trial began in January 1993 were ineffective, because they were the product of the trial court’s improper attempt to discourage self-representation. Oliver complains that the court’s actions generally violated his rights under the Sixth and Fourteenth Amendments, and under parallel provisions of the state Constitution. He claims as an additional legal consequence that a related hearing held on September 9, 1991, violated due process under the Fifth Amendment, because he did not receive an adequate opportunity to be heard.

The record does not support the claims. Criminal defendants have the right both to be represented by counsel at all critical stages of the prosecution and the right, based on the Sixth Amendment as interpreted in Faretta, supra, 422 U.S. 806, to represent themselves. (People v. Marshall (1997) 15 Cal.4th 1, 20 [61 Cal.Rptr.2d 84, 931 P.2d 262].) However, this right of self-representation is not a license to abuse the dignity of the courtroom or disrupt the proceedings. (Ibid.) Faretta motions must be both timely and unequivocal.

Otherwise, defendants could plant reversible error in the record. (Marshall, at pp. 21, 22; accord, People v. Valdez (2004) 32 Cal.4th 73, 98-99 [8 Cal.Rptr.3d 271, 82 P.3d 296].) Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation, or where such actions are the product of whim or frustration. (Marshall, supra, at pp. 21, 22.) Of course, a defendant may withdraw his Faretta motion before a ruling is made. (See, e.g., People v.

Snow (2003) 30 Cal.4th 43, 68-70 [132 Cal.Rptr.2d 271, 65 P.3d 749].) Oliver made unsuccessful motions to act as cocounsel and for library privileges on March 1 and 19, 1990, and on June 21, 1990. He also made an initial Faretta motion on June 29, 1990, which he withdrew on July 11, 1990, and a second Faretta motion on October 12, 1990, accompanied by a refusal to accept appointed counsel as advisory counsel. He reaffirmed his desire to represent himself, coupled with the appointment of new advisory counsel, on October 24 and 30, 1990, and the court allowed him to do so.

He relinquished his self-representation for the second time on March 8, 1991. Oliver made and withdrew two more Faretta motions. They form the basis of his claims on appeal. One of these motions was litigated during hearings held on August 23, 1991, and September 9, 1991, and withdrawn on the latter date. The second motion arose much closer to trial, and was addressed on November 18 and 19, 1992. The trial court cautioned that it viewed the latter motion as untimely, but was willing to continue it to the next day and entertain it further.

On that next day, Oliver equivocated, refusing to give the court a clear answer on whether he still wished to proceed in propria persona. The court ruled that he had withdrawn his motion. Oliver maintains that his actual or constructive withdrawals of the two Faretta motions at issue were ineffective because they were the product of the trial court’s improper attempt to discourage him from representing himself.

Specifically, Oliver complains that the court improperly delayed acting on the August 23, 1991 motion, inducing him to withdraw it on September 9, 1991, and that it erroneously denied his November 18, 1992 request as untimely. The trial court did not improperly delay acting on Oliver’s August 23, 1991 motion, or induce him to withdraw it on September 9, 1991. During these two hearings, the court had a serious discussion with Oliver and his counsel, Charles E. Lloyd, who stepped forward to represent him, about the security risks that self-representation would present.

Oliver admitted that he had “abused the pro. per. perks” before. He became frustrated, however, over the tenor of the discussion, and over the possibility that valid security concerns might interfere with his unfettered right of self-representation. The court made no ruling on August 23, 1991, and continued the matter until September 9, 1991, so that it could review Oliver’s jail records and consider additional evidence related to security. When Oliver withdrew his Faretta motion at the latter hearing, and accepted representation by Lloyd and his associate, William E.

Turner, Oliver’s actions were not the result of any error by the court, but of his own frustration over legitimate security concerns. A similar conclusion applies to Oliver’s claim regarding the Faretta proceedings held in November 1992. The only reference to the timeliness of this motion occurred when the trial court asked on November 18 that Oliver join Lewis in waiving time to start the trial, which was imminent. Oliver refused and asked to appear in propria persona. As noted, the court said the motion was untimely, but postponed its ruling until the next day.

Oliver became hostile and said he would refuse to return to court the next day. On November 19, when Oliver nonetheless appeared, he and the court debated whether he wanted to pursue or withdraw his request for self-representation. The court found a withdrawal. In the process, Oliver agreed with Lewis to delay the start of the trial until January 1993. Nothing more was said about whether Oliver’s request for self-representation was timely. Oliver’s acceptance of the court’s conclusion that the Faretta motion was withdrawn was not the product of any ruling—erroneous or otherwise—on the timeliness of the motion. K.

Marsden Claim (Oliver) Oliver challenges the denial of his pretrial motion to replace counsel under Marsden, supra, 2 Cal.3d 118. He claims a Sixth Amendment violation as an additional legal consequence of the court’s ruling. No error occurred. Replacing counsel lies within the court’s discretion. “The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel.” (People v.

Smith (2003) 30 Cal.4th 581, 604 [134 Cal.Rptr.2d 1, 68 P.3d 302].) In September 1991, after Oliver withdrew one of his many Faretta motions, the trial court appointed Charles Lloyd and William Turner to represent him. A short time later, in October 1991, the court learned that Oliver might wish to replace counsel under Marsden. Oliver had apparently sent the court a letter requesting a Marsden hearing, but then indicated that his motion was premature and withdrew it for the time being. The same issue was broached in June 1992, but Oliver denied wanting to file a Marsden motion.

Eventually, on December 9, 1992, Oliver moved to replace counsel. This motion occurred between his last Faretta motion, which he made on November 19, 1992, and the start of trial, which occurred on January 6, 1993. Oliver and Turner attended the Marsden hearing. In that hearing, Oliver complained of counsel’s inattentiveness, lack of loyalty, and inadequacy of trial preparation. Specifically regarding the first point, Oliver asserted that counsel did not visit him in jail.

Turner replied that he visited Oliver at least weekly in jail, but that in the last two weeks “they didn’t have the personnel to bring him down because Mr. Oliver has to be escorted by 10 other subjects.” Oliver acknowledged that Turner was correct about the frequency of his visits to him in jail, but that he still wanted him relieved because he was not “preparing my case properly.” The court asked Oliver for examples as to what Turner had not done in preparing for the guilt trial. Oliver said only that Turner had promised to withdraw. Also, the court asked Turner about Lloyd’s preparation for the penalty trial.

Turner reported that Lloyd had tried to contact witnesses, and that Oliver was not cooperating in the matter. Regarding loyalty, Oliver questioned counsel’s loyalty to him based on their failure to honor an alleged promise to withdraw from representing him. The trial court denied the motion as to Turner, and deferred it as to Lloyd. On December 16, 1992, Oliver withdrew his Marsden motion as to Lloyd without explanation. On appeal, Oliver contends that the trial court denied him an adequate opportunity to make a showing that he was entitled to replace counsel under Marsden.

He primarily faults the court for not asking Turner either to defend his own trial preparation or to address the state of their relationship. The record does not support the foregoing claim. Oliver had a full and fair opportunity to voice his objections about counsel’s performance. Oliver offered no specific information to which either Turner or the trial court could meaningfully respond. Indeed, given the timing and nature of the motion, it appears to have been made primarily to delay the trial.

In any event, since Oliver declined to elaborate on his complaints about counsel, the court had no duty to inquire still further. (See, e.g., People v. Lucky (1988) 45 Cal.3d 259, 280-283 [247 Cal.Rptr. 1, 753 P.2d 1052] [no Marsden violation where, among other things, defendant declined to criticize counsel].) Oliver also asserts that the trial court violated his Marsden rights when it refused to let him subpoena records of the frequency of visits by Lloyd. He claims a related violation of his due process rights under the Fourteenth Amendment.

However, the court agreed to accept Oliver’s version of events without seeing the records. Thus, Oliver was not deprived of any information needed to support his Marsden claim. L. Faretta Claim (Lewis) Lewis claims the trial court erred by allowing him to relinquish his Sixth Amendment right to represent himself (see Faretta, supra, 422 U.S. 806) without ascertaining that he was mentally sound at the time. We disagree. Counsel was appointed early in the case. Lewis also had library privileges to help with his defense.

Nevertheless, and possibly in an attempt to delay the proceedings, Lewis brought numerous motions regarding his representation, vacillating about whether he wanted to represent himself or be represented by counsel. Lewis first moved to represent himself with Richard Leonard as cocounsel. On October 24, 1990, the trial court denied the motion. On October 30, 1990, Lewis moved to represent himself under Faretta. At a hearing on November 2, 1990, the court appointed a psychiatrist, Dr. Michael Cobum, who found that Lewis could knowingly and intelligently waive his right to appointed counsel.

After the court warned Lewis about the risks of self-representation, he sought and received more time to decide the issue. On December 14, 1990, his Faretta motion was granted, and his counsel was placed on advisory status. At hearings on April 14 and 20, 1992, the trial court and Lewis discussed whether he wanted to continue representing himself. Lewis sought to forgo self-representation if he could retain his library privileges. The court apparently agreed and reappointed Richard Leonard as counsel. On May 19, 1992, Lewis asked to represent himself again.

On June 5, 1992, the trial court warned that Lewis would not be allowed to “go back unpro. per.,” but granted his second Faretta motion. Two days before trial, on January 4, 1993, Lewis asked to relinquish his in propria persona status a second time. After warning Lewis that he “can’t change [his] mind,” the court granted the request. It reappointed Richard Leonard as lead counsel, and appointed his brother James Leonard as cocounsel.

Meanwhile, at an evidentiary hearing on December 9, 1992, the trial court learned that Lewis had accused his alibi witness and first wife, Jeanett Hudson, of involvement in the murder of one Frankie Hudson in 1975 or 1977. On January 19, 1993, the prosecutor moved to have Lewis’s telephone privileges revoked, explaining that Lewis had been calling Jeanett Hudson and threatening her.

The prosecutor stated, “These threats entailed his intent to have her and her daughter killed, as well as threats to find a way to get her fired.” On January 20, 1993, after counsel was reappointed, Lewis declined to appear in court because other inmates had made upsetting comments about his mother’s death, which had occurred about a year beforehand. Citing Brown v. Wainwright (1982) 665 F.2d 607, 612, Lewis argues that a defendant may not forgo self-representation absent a “dialogue” with the court, at least where “special circumstances” are present.

Such conditions supposedly existed here in the form of what he characterizes as his aberrant behavior before and after the January 4, 1993 hearing. He claims the court erred in not questioning him or ordering a new psychiatric examination to determine whether the renewed request for counsel resulted from a mental defect. The record suggests that Lewis acted “intentionally and voluntarily” (People v. Dunkle (2005) 36 Cal.4th 861, 909 [32 Cal.Rptr.3d 23, 116 P.3d 494]) when he requested counsel on January 4, 1993, and was not incompetent or suffering from any mental defect. (See ibid., citing Brown v.

Wainwright, supra, 665 F.2d 607, for general rule that Faretta may be waived through silence or equivocation.) After all, Lewis had taken a similar step once before and was familiar with the differences involved in self-representation as opposed to representation by counsel. In addition, the trial court alerted Lewis to the consequences of abandoning his role as his own counsel so near the start of trial.

A short time later, as we shall discuss, the trial court declined to declare a doubt as to Lewis’s competence to stand trial. (See Dunkle, supra, at pp. 909-910 [defendant found competent around time of request for counsel].) There was no substantial evidence that Lewis was mentally incapable of surrendering his Faretta rights. The asserted error did not occur. IH. JURY SELECTION ISSUES A. Excusal for Cause (Lewis, Oliver) Defendants claim the trial court erred in granting the prosecution’s motion to excuse a prospective juror, A.L., based on his views on capital punishment.

The error allegedly violated defendants’ right to an impartial sentencing jury under the Sixth and Fourteenth Amendments. We reject the claim. A prospective juror may be excused if his views would “ ‘prevent or substantially impair’ ” the performance of his duties as a juror in accordance with his instructions and oath. (Wainwright v.

Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844].) Because this determination involves an assessment of the juror’s demeanor and credibility, it is one “peculiarly within a trial judge’s province.” (Id. at p. 428, fn. omitted.) “When applying these rules, the trial court’s assessment of a prospective juror’s state of mind will generally be binding on the reviewing court if the juror’s responses are equivocal or conflicting.” (People v.

Hayes (2001) 21 Cal.4th 1211, 1285 [91 Cal.Rptr.2d 211, 989 P.2d 645].) In other words, the reviewing court generally must defer to the judge who sees and hears the prospective juror, and who has the “definite impression” that he is biased, despite a failure to express clear views. (Wainwright v. Witt, supra, at pp. 425-426.) A.L. admitted several past negative encounters with law enforcement, including a misdemeanor conviction and a gang fight in which he was hit with a police nightstick. A.L. indicated that intentional killers should “never” get death.

However, in apparent self-contradiction, he also said the verdict might “depend[]” upon how the victims were killed. A.L. could see himself voting for life imprisonment even where the murder was “brutal” and aggravation outweighed mitigation. The prospective juror’s views seemed to harden when the prosecutor asked how he would assess culpability and punishment where, as here, a shooter and nonshooter were both accused of the same crime. A.L. indicated that he would not convict anyone of an intentional killing, or impose death, unless he were the actual killer.

A.L. said he would adhere to these views notwithstanding the evidence or instructions. At first, the trial court denied the motion to excuse A.L. for cause. Ultimately, however, the court granted the request. The prospective juror’s answers were equivocal and conflicting. Those answers, in combination with the trial court’s firsthand observations, could give rise to a definite impression that AJL.’s views on the death penalty would substantially impair the performance of his duties. We therefore defer to the court’s ruling. B.

Batson-Wheeler Claims (Lewis, Oliver) Defendants contend that by failing to grant their motions challenging the prosecution’s excusal of seven Black male prospective jurors, made over defense objection, the trial court violated the federal constitutional guaranty of equal protection of the laws (Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson)), and the state constitutional right to a jury drawn from a representative cross-section of the community. (People v.

Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748] (Wheeler).) A prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds”—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under

article I,

section 16 of the state Constitution. (Wheeler, supra, 22 Cal.3d 258, 276-277; see People v. Griffin (2004) 33 Cal.4th 536, 553 [15 Cal.Rptr.3d 743, 93 P.3d 344].) Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. 79, 88; see People v. Cornwell (2005) 37 Cal.4th 50, 66 [33 Cal.Rptr.3d 1, 117 P.3d 622]; People v.

Cleveland (2004) 32 Cal.4th 704, Til [11 Cal.Rptr.3d 236, 86 P.3d 302].) The United States Supreme Court has recently reaffirmed that Batson states the procedure and standard trial courts should use when handling motions challenging peremptory strikes. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v.

California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410, 2416], fn. omitted.) We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 946, 971 [123 Cal.Rptr.2d 654, 51 P.3d 874].) It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court’s ability to distinguish “bona fide reasons from sham excuses.” (People v.

Burgener (2003) 29 Cal.4th 833, 864 [129 Cal.Rptr.2d 747, 62 P.3d 1].) As long as the court makes “a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.” (Ibid.) We now turn to defendants’ contentions regarding the seven prospective jurors. Defendants assert the prospective jurors were subjected to peremptory challenge in violation of Batson and Wheeler. The trial court disagreed. We will sustain its rulings. 1. Defense Motions There were four Batson-Wheeler motions.

The first expressly covered three Black males against whom the prosecutor had exercised peremptory challenges: L.W., L.T., and C.W. (See People v. Avila (2006) 38 Cal.4th 491, 549, 552 [43 Cal.Rptr.3d 1, 133 P.3d 1076] [scope of motion affects scope of inquiry into reasons for excusal].) The trial court stated that it saw nothing amounting t

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