THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MATTHEW MARTINEZ, Defendant and Appellant, 47 Cal. 4th 399

Opinion GEORGE, C. J. Defendant Michael Matthew Martinez appeals from the judgment of death imposed by the Alameda County Superior Court following his conviction of the first degree murder of Lisa White (Pen. Code, § 187) and the premeditated, attempted murder of Tara R. (§§ 187, 664, subds. (a), (f)).

In connection with the murder charge, the jury found true the allegation that defendant personally used deadly weapons, specifically a hammer and a knife. (§ 12022, subd. (b)(1).) In connection with the attempted murder charge, the jury found true the allegation that defendant inflicted great bodily injury. (§ 12022.7.) The jury found true a special circumstance allegation that the murder occurred while defendant was engaged in the commission, attempted commission, or flight after the performance of a lewd act upon a child under the age of 14 years, in violation of

section 288. (§ 190.2, subd. (a)(17)(E).) After the penalty phase of the trial, the jury returned a verdict of death and the trial court imposed a sentence of death, also imposing a sentence of life imprisonment for the attempted murder, two one-year terms of imprisonment for the weapons enhancements, and a three-year term for the great-bodily-injury enhancement. Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety for the reasons set forth below. I. FACTS A. Guilt Phase Evidence 1.

Prosecution evidence The murder victim, Lisa White, resided in Hayward with her daughter Amanda O., then two years of age. White’s other daughter, Tara R., was 10 years of age at the time of the charged offenses. According to Tara’s grandmother, Tara, after having been sexually abused by Amanda’s father, was removed from her mother’s home by the local child protective services agency and was placed for a period of approximately two years in a residential facility for psychiatric treatment. Tara visited her mother and her sister from time to time on weekends and for holidays.

White occasionally employed Lisa Gamaza as a babysitter. According to Gamaza’s testimony, White chastised Gamaza for permitting her boyfriend, defendant, to visit while Gamaza tended Tara and Amanda. White explained to Gamaza that Amanda’s father had sodomized and orally copulated Tara, and that Tara was in residential treatment as a result of that abuse. Gamaza also testified that defendant had drawn a picture for Tara on one occasion, depicting a cross dripping with blood, surrounded by flowers. Defendant ordinarily carried a Buck knife on his hip.

Gamaza mentioned that White and defendant had engaged in methamphetamine sales with one another. Gamaza’s relationship with defendant ended in May 1989. The charged offenses occurred in the early morning hours of December 22, 1990, when Tara was at her mother’s residence for her Christmas visit. According to the testimony of defendant’s acquaintance, Ron Casuga, defendant spent the preceding evening of December 21 at defendant’s residence with Casuga and Casuga’s girlfriend, Shonette Leite. The group drank beer and smoked marijuana.

According to Casuga, they moved to a bar, where they were joined by Jennifer Hartz. At approximately 11:00 p.m., the group returned to defendant’s residence and consumed more beer and marijuana. Casuga testified that defendant departed with his neighbor, James Dyer, at approximately midnight. Casuga and the other members of the group departed from defendant’s residence at approximately 3:00 a.m. Casuga testified he left defendant a note explaining that because defendant had not returned, the rest of the group had departed.

Dyer testified that late in the evening of December 21, 1990, defendant requested a ride to a nearby residence, which Dyer identified at trial as White’s home. According to Dyer, defendant entered the residence, then emerged to direct Dyer not to wait for him, because he would use the occupant’s vehicle to return home. Tara testified that in the early morning hours of December 22, 1990, she was sleeping in her mother’s room with her younger sister, Amanda, when she felt someone lift her up and carry her to her own room. She discovered that she had been transported by defendant, with whom she was acquainted.

Tara testified that he ordered her to remove her clothing, then raped and sodomized her and forced her to orally copulate him. Defendant informed Tara he would kill her and her mother if she told anyone what he had done. Tara testified further that defendant struck her on the head and arm with a hammer. She lost consciousness, then awoke to hear her mother slam the door of her automobile and approach the residence. Defendant ran out of Tara’s room. Tara observed him hiding behind the front door.

Tara testified that when her mother entered the residence, Tara screamed a warning and that defendant then struck White on the head repeatedly with a hammer. After White fell to the floor, defendant went to the kitchen and retrieved a knife. He stabbed White in the neck. Tara testified that she ran to a neighbor’s residence, pursued by defendant. Tara’s testimony was marked by hostility to defense counsel, impulsive outbursts, and her refusal to answer questions until ordered to do so by the court.

Her testimony contained some inaccuracies, such as her assertion she had encountered defendant in her mother’s residence, confronted him, and disarmed him two days prior to the commission of the crimes — when Tara actually was in her group home in Sacramento. In closing argument, the prosecutor acknowledged that Tara’s testimony was inaccurate in some relatively unimportant respects and reflected her psychiatric problems.

The prosecutor pointed out, however, that her testimony was consistent in all significant respects with statements she made to police officers and medical examiners immediately following the crimes. Prosecution witness John Feeny confirmed that in the early morning hours of December 22, 1990, Tara appeared at his residence, which adjoined White’s, and tapped on his front door. He testified that she was clothed only' in sweatpants, was bleeding from the face and chest, and wept uncontrollably. At first Tara informed him that her mother had dropped her off in downtown Hayward and a man had beaten her.

Feeny was skeptical because he had observed White leave her home some 25 to 30 minutes prior to Tara’s arrival. Feeny had spoken to White, who had explained she was going to buy cigarettes. He had assumed there was another adult present at White’s residence to care for Tara and Amanda during her absence. Feeny testified that shortly after he heard White’s vehicle return, he heard loud banging, as if someone were affixing a nail to a wall to hang a picture. Approximately 10 minutes later, Tara arrived at his doorstep.

Feeny testified that when he contacted a police department emergency dispatcher, Tara became distraught and stated that she had been beaten and raped by her mother’s friend Mike, that Mike had killed her mother by hitting her on the head with a hammer, and that her mother’s bloody body was lying on the floor of her home. A tape recording of the 911 call was played for the jury and confirmed Feeny’s account of Tara’s statements to the police dispatcher. Feeny’s testimony also was confirmed by that of his stepdaughter, Kimberly Hoskins, who was present when Tara arrived at Feeny’s residence.

Casuga, who testified concerning defendant’s movements on December 21, 1990, also stated that when he visited defendant on the morning of December 22, defendant informed him he had injured someone and thus had blood on his clothing. According to Casuga, defendant instructed him to say defendant had been with Casuga all night if anyone should ask. Prosecution witness Linda Pedersen testified that defendant contacted her by telephone at approximately 3:00 a.m. on December 22, 1990. Pedersen resided near White’s residence.

Defendant informed her that he was stranded at a gas station located some six blocks from Pedersen’s home, and he pleaded with her to pick him up in her automobile. She was persuaded by his tone of desperation and drove to the gas station. Following defendant’s instructions, she parked at the side of the station. Defendant emerged from a bathroom, jumped into her vehicle, and ordered her to drive away. Pedersen noticed a red stain on defendant’s jeans and testified that he refused to explain his circumstances.

Pedersen drove to her residence, where defendant used the telephone, and then drove defendant to his own apartment. Prosecution witness Dyer testified that in the early morning hours of December 22, 1990, approximately three or four hours after he had driven defendant to White’s residence, defendant knocked at his door and requested a ride to a grocery store. Dyer testified that defendant appeared nervous, and that he slumped in his seat as Dyer drove. Defendant informed Dyer he had a headache and needed to sleep. Dyer purchased a soporific for him, and then drove defendant back to defendant’s residence.

Pediatric emergency physician William Hawk testified that when Tara arrived at Children’s Hospital & Research Center Oakland (Children’s Hospital) in the early morning hours of December 22, 1990, both bones in her left forearm were broken and she had suffered a laceration to her scalp that almost penetrated to her skull. Her face, chest, and legs were bruised, and her lips were swollen and lacerated. In Hawk’s opinion, her head wound could have been inflicted by the claw of a hammer. Hawk testified that during his medical examination, Tara stated that “Michael M.” had threatened her and raped her.

She also identified her attacker as Michael Martinez and described him as a Hispanic male who was approximately 25 years of age. Hawk testified that Tara informed him defendant had placed his finger and his penis inside her vagina. Although she initially reported that there had been no anal contact, subsequently she informed Hawk that defendant had placed his penis inside her rectum. Tara also informed Hawk that she had been attacked with a hammer. Hawk testified that his medical examination of Tara revealed trauma in the vicinity of the anus, denoting anal penetration, but there was no trauma to the vagina.

Alameda County Deputy Sheriff Claudette Center testified that on December 22, 1990, she responded to Feeny’s residence, where she observed Tara bleeding profusely from a large head wound. Screaming and weeping, Tara repeatedly declared, “she’s dead, I saw her fall down dead, he killed her, he fucked me, he hit me — I have to go back.” Center testified that her inspection of the crime scene at White’s residence revealed a pool of blood on the mattress in Tara’s bedroom, blood spattered on the walls of the bedroom, and drops of blood on the floor leading to the comer of the room.

White’s body was on the floor in a doorway between the kitchen and the living room of the residence. Her skull and face had been beaten in, and she was impaled to the floor with a knife through her neck. Her body was warm, and steam rose from the surrounding pools of blood. The front door was spattered with blood. After inspecting the crime scene, Center followed Tara to Children’s Hospital in Oakland. Center had past experience as a social worker treating sexually abused children. She testified that at the hospital, Tara gave her an anguished account of her experiences that night.

She testified that Tara informed her that defendant had carried her from her mother’s bed to her own bed and, using graphic terms, Tara declared that defendant had raped her, sodomized her, and forced her to orally copulate him. Tara added that defendant warned her not to say anything about what he had done. He left the room and returned, then attacked her with a hammer and used “the sharp part” to strike her head. Center testified Tara informed her she heard her mother return, heard yelling and, after Tara left her bed, witnessed defendant strike her mother on the head multiple times.

Tara stated she fled from the house, and then returned briefly with the objective of saving her younger sister, Amanda. She fled when she heard noises inside the residence, and climbed over the fence to reach Feeny’s residence. Center testified that Tara displayed extreme emotional turmoil throughout the interview. Alameda County Deputy Sheriff Dale Toussaint testified that he conducted two tape-recorded interviews of Tara, one on the morning of December 22, 1990, and one on the afternoon of the same date. The recordings were played for the jury.

The transcript of the recorded statements reflects that Tara was sleepy, a condition the officer attributed to medication. Tara’s statements were rambling, and it is difficult to determine whether she was offering a chronological account or merely blurting out each event as it occurred to her. The interview was terminated and recommenced after several hours in order to accommodate Tara’s need for rest.

At one point in her statements, Tara informed Toussaint that defendant was present in the residence before Tara went to bed on the night of the crimes, but subsequently she stated she was unaware of his presence until he woke her.

She stated that while she slept, “mommy left and then he watched us, and then he put me in my room and started fucking me.” She added that defendant removed her pants and underpants but not her shirt, and raped her and forced her to orally copulate him; that at some point while assaulting her, he retrieved a knife; that he left her room and returned with a hammer, with which he struck her; that she heard her mother enter the residence and heard banging; and that she heard defendant stab her mother and then ran to Feeny’s residence. She would not acknowledge that she witnessed defendant’s attack on her mother.

She repeatedly sought to terminate the second interview. Prosecution witness Sharon Smith, an Alameda County Sheriff’s Office criminalist, testified that rectal, vaginal, and oral swabs taken from Tara on December 22, 1990, tested negative for semen. Semen was present, however, on the exterior and interior of Tara’s underpants, which had been removed and examined when Tara arrived at the hospital. The underpants also bore blood and possible fecal stains. A sweatshirt removed from Tara’s bedroom bore stains of semen and either fecal material or saliva on the lower front portion of the shirt.

Tara’s trousers bore bloodstains, but no evidence of semen was discovered on them. Conventional testing for genetic markers indicated that defendant could not be excluded as the source of the semen stains on the underpants, although the result may have been influenced by the admixture of Tara’s body fluids. Smith also testified that jeans seized from defendant’s apartment bore bloodstains that were consistent with White’s blood but not with Tara’s or defendant’s blood. Blood collected from the hammer discovered near White’s body matched White’s blood, but not defendant’s or Tara’s.

Samples from defendant’s jeans and Tara’s sweatshirt were submitted for DNA testing. The stains from defendant’s jeans matched White’s DNA profile in four of six chromosomal tests; the remaining two tests were inconclusive. The blood found on the hammer did not come from defendant’s body. The DNA of the semen sample taken from the sweatshirt matched defendant’s DNA profile in five of six chromosomal tests; the sixth was inconclusive.

The frequency with which defendant’s genetic profile would appear in the population was one out of 250 million persons belonging to the southwestern United States Hispanic population, one out of 760 million persons belonging to the Black population, one out of 890 million persons belonging to the White population, and one out of 480 million persons belonging to the southeastern Hispanic population. White’s body was examined for evidence of sperm but none was found. The cause of her death was acute trauma to the head, and her injuries were consistent with hammer blows. She also had been stabbed twice in the neck.

When her body was discovered on the floor of her home, a knife had penetrated her neck and the floor beneath her. The handle of the hammer that was recovered near her body was split. Prosecution witnesses Pedersen and Casuga testified they were present in defendant’s residence on the evening of December 22, 1990, along with two other persons, when the police arrived and knocked on the door. Both witnesses testified that the officers announced several times that they had an arrest warrant.

According to the witnesses, defendant directed all those present to remain silent, and then proceeded up the stairs to the second story. The police broke down the door and ejected Pedersen and the other occupants of the room. Sergeant John Reasoner of the Alameda County Sheriff’s Office testified that he and his partner went to defendant’s residence on the evening of December 22, 1990, to serve an arrest warrant. Upon their arrival, they heard voices coming from inside the apartment. The officers identified themselves several times, then effected a forced entry.

Reasoner testified that the arresting officers conducted a search for defendant, and that when they announced they would release a police dog and began to ascend the stairs to the second story, defendant surrendered and was placed under arrest. 2. Defense evidence Defendant testified in his own defense. He admitted that he killed White, but denied assaulting Tara or, indeed, even having seen her or having had any contact with her on the evening of White’s death. Defendant testified he had sold controlled substances to friends for approximately 10 years prior to committing the charged offenses.

He testified that on December 21, 1990, he had been under the influence of methamphetamine and unable to sleep for six days. He described further heavy use of this drug at various points during that day. He felt “amped” or “unreal.” Defendant testified that he consumed alcohol and smoked marijuana in his apartment with Casuga and Leite. The party, joined by Hartz, proceeded to a bar. Defendant consumed two strong alcoholic drinks and ingested methamphetamine. The group returned to defendant’s residence, where defendant drank two beers and ingested additional methamphetamine.

Because White telephoned to say she wished to purchase methamphetamine, defendant secured a ride to her residence from Dyer. Before he reached White’s residence, he visited Pedersen and ingested methamphetamine. At White’s residence, defendant requested the use of White’s automobile. Although they failed to agree on a price for his use of her vehicle, defendant returned to Dyer’s vehicle to say he would not need a ride. Defendant gave Dyer some methamphetamine, and Dyer departed. Defendant testified that he and White injected methamphetamine in Tara’s empty, darkened bedroom.

According to him, he and White had sexual intercourse on Tara’s bed. Defendant testified he ejaculated on the bed. He claimed that he and White argued concerning his use of her vehicle. She demanded a gram of methamphetamine in exchange for his using the vehicle and departed to buy cigarettes, returning after five or 10 minutes. When she returned, the argument continued concerning trading methamphetamine for defendant’s use of the vehicle. After White hit him in the chest, he pushed her. She then swung at defendant with a hammer. He became angry and struck her in the face.

When she fell to the ground, he retrieved the hammer and used it to beat White’s face and head. Defendant testified that the next thing he remembered was Pedersen arriving to give him a ride to her residence, and then to his own apartment. He did not realize he had killed White. He testified he did not observe Tara or interact with her that evening. Defendant further testified that when the police arrived at his residence on December 22, 1990, they knocked on the door but failed to identify themselves.

According to defendant, because the officers did not respond when he questioned them, he mounted the stairs to reach an upstairs window that could afford a view of the front door. He denied requesting that the other persons present remain silent. The defense presented the testimony of John Schlim, an expert on the subject of methamphetamine use. He testified concerning the generally deleterious effects of habitual methamphetamine use on the body, including sleeplessness, and on behavior, noting an increased incidence of sudden bursts of paranoia, hostility, and aggression.

He also testified that tests of blood and urine samples extracted from White’s body indicated a high level of methamphetamine intoxication at the time of her death. In Schlim’s opinion, the tests demonstrated White had ingested a large dose of methamphetamine approximately 10 to 14 hours prior to her death. B. Penalty Phase Evidence 1. Prosecution evidence The prosecution introduced evidence implicating defendant in the uncharged murder of another woman, Christine Parks, whose body was discovered on October 29, 1989, in an alleyway next to an athletic field. The victim’s dress had been pulled up above her waist.

The entire body was smeared with blood and dirt and bore evidence of multiple blunt force traumas. In addition, there were 22 stab wounds, including multiple injuries to the face, neck, chest, arms, and hands. All had been inflicted while the victim was alive. Tire tread marks were evident in the dirt next to the body. Death was caused by the stab wounds and the blunt force injury. The latter was consistent with the victim’s having been run over by an automobile. An autopsy disclosed that the victim had ingested multiple controlled substances.

In connection with this earlier incident, prosecution witness Denise Alden testified that defendant had borrowed an automobile from her. Early one morning in the autumn of 1989, defendant returned the vehicle in a badly damaged condition. Defendant’s finger was lacerated, and his clothing bore bloodstains. The front end and one side of the vehicle had been damaged. The exterior had been cleaned but there were puddles of blood on the front passenger seat and on the floor. Alden testified that defendant informed her he had witnessed a beating and had given aid to the victim, a man.

She testified that according to defendant, the victim’s assailants then attacked defendant. Defendant told her he had driven away, dropping off the victim at the latter’s request. Alden testified that she witnessed defendant washing blood from a knife. Alden further testified that she and defendant cleaned the interior of the vehicle at a carwash facility. The victim’s handbag subsequently was discovered in a dumpster near the facility.

Alden’s stepfather, Chester O’Steen, testified that when defendant returned Alden’s vehicle in damaged condition, O’Steen directed defendant to show him the location where the purported attack had occurred and the vehicle had been damaged. Defendant did so, but there was no broken glass or evidence of paint or blood at that location to corroborate defendant’s story. Prosecution witness Gamaza testified that prior to defendant’s commission of the presently charged offenses, defendant informed her he had killed a man by running him over with an automobile belonging to his then girlfriend, Denise Alden.

According to Gamaza’s testimony, defendant explained he was delivering controlled substances when the man approached him and attacked him, cutting defendant’s finger. Defendant bragged that he had run over the individual several times to make certain that he was dead. Prosecution witness Erik Eastman testified that in 1996, when he and defendant were prisoners at Santa Rita Jail, defendant struck him twice without provocation. White’s mother, Sondra Filson, testified concerning the impact of White’s death on her. She also described the traumatic effect of the crimes on Tara and Tara’s sister, Amanda. 2.

Defense evidence Defendant’s half brother, Steve Martinez, testified regarding the harsh treatment received by defendant at the hands of their mother when they were children. He recounted episodes of physical abuse inflicted on defendant by his mother. Defendant’s half brother and his sister, Jessica Marie Hutchinson, testified that defendant’s mother always blamed defendant for a brain aneurysm that substantially disabled defendant’s father when defendant was 14 years of age.

According to these witnesses, defendant’s mother believed an incident in which defendant accidentally struck his father’s head while closing a garage door was the cause of the aneurysm that occurred months later. II. DISCUSSION A. Marsden Inquiry Defendant contends the trial court erred (1) in failing to conduct a Marsden hearing (People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]); (2) in discussing complaints concerning defense counsel’s representation with counsel in defendant’s absence; and (3) in failing to intervene to ensure that defense counsel responded adequately to complaints concerning his legal representation of defendant. Defendant claims these errors violated his state and federal constitutional rights to due process of law and a fair trial, to reliable guilt and penalty determinations, and to be personally present at all critical stages of the proceedings. We are not persuaded. 1.

Factual background When a complaint was filed on December 26, 1990, the Alameda County Public Defender was appointed to represent defendant. Counsel from that office represented defendant during his 1991 preliminary hearing and subsequently filed a motion to suppress evidence. On February 1, 1994, prior to the hearing on the motion to suppress, the office declared a conflict of interest and Attorney Lincoln Mintz was appointed. Jury selection commenced on March 18, 1997, and the jury was sworn on May 5, 1997.

Defendant’s sister, Jessica Marie Hutchinson, wrote four letters to the Superior Court of Alameda County during March, April, and May of 1995, approximately two years prior to the commencement of the trial. These letters complained that Mintz had failed to communicate adequately with defendant subsequent to the attorney’s initial interview with his client.

The first letter, dated March 28, 1995, addressed to the court administrator, asserted that Hutchinson was writing “on behalf of [her] brother,” and stated, “we are requesting” that defendant be transported to court for the next trial-setting hearing, then scheduled for April 4, 1995. The letter acknowledged that, ordinarily, such requests are made by counsel, but explained that defendant had been unable to communicate in person or by telephone with his attorney for a full year despite defendant’s efforts to arrange a visit.

The letter referred to denial of the “right to an adequate defense” and concluded: “[Defendant] is asking for what he is entitled to and what Mr. Mintz was appointed to give him — a defense. He is asking for a candid, face-to-face discussion with his attorney. Mr. Mintz has excellent recommendations and appears to be supremely qualified and well-respected. However, we are all extremely frustrated with this situation and the lack of interest displayed by Mr. Mintz.

We ask that all this be taken into consideration when deciding this basic request to appear in court.” The second letter was dated April 4, 1995, and, like the remaining two letters, was addressed to the Honorable William McGuiness. The letter repeated the earlier letter’s description of defendant’s unsuccessful efforts to contact Mintz personally or by telephone.

It requested defendant’s presence at the next trial-setting hearing and added that “[a]n acknowledgement and recognition of this problem and/or any other helpful information, conveyed to my brother, would be greatly appreciated.” The third letter was dated April 26, 1995, and stated Hutchinson was communicating “regarding her brother.” The letter noted that no response to the previous letter had been received, but stated the expectation that any response from the court would be made “to [defendant] personally.” The letter again asserted defendant had experienced “numerous difficulties” communicating with Mintz.

It continued: “I do not believe [defendant] wants to change his attorney further delaying the proceedings. However, you must understand his intense frustration and ours as we have no legal advisor or access to the system at this current time. Not everyone enjoys the privileges of OJ. Simpson, but, regardless, [defendant] is entitled to legal representation. If Mr. Mintz is not willing or able to give this to him, it is the very least his obligation to let [defendant] know about it. We respectfully ask you to intervene, in an appropriate manner, and facilitate some communication between Mr.

Mintz and [defendant]. [][] I apologize for this ordeal which should not involve you. However, we are not sure of where to turn either and can not see any reason for what seems to be a continual neglect of [defendant].” The fourth letter was dated May 10, 1995, and again was characterized as a communication “regarding” defendant. Defendant’s sister requested “some kind of acknowledgement” from the court. It noted that “to my knowledge, Mr. Mintz has still not consulted with [defendant] at all about his case,” and asserted that “[defendant] would simply like to meet and consult with Mr.

Mintz prior to going to trial. If it takes judicial intervention to do so, then that is what he is asking.” On June 1, 1995, Judge McGuiness conducted a trial-setting proceeding. Defense counsel waived defendant’s right to be present at the hearing.

The clerk of the court noted in the record that the “[cjourt further notes receiving correspondence from Jessica [Hutchinson]. [Counsel] receives copies of said correspondence and states he has ongoing contact with client and will contact family [with] future dates.” The reporter’s transcript of the hearing reflects the following interchange. “The Court: I would note parenthetically, for the record, the court received communications on May [10] and April 26 from a Jessica [Hutchinson], directed to the court. [][] I have shared that correspondence, providing a copy with respect to those letters to Mr.

Mintz. [][] Mr. Mintz, did you want to state anything on the record with regard to that? “[Defense counsel]: Just briefly. []Q [Defendant] and I are in communication, your honor, contrary to what concerned members of his family have said. [][] The Court, [defendant] and I have discussed the defense in this case. And what I will do is, previous to the July 13th [trial-setting] date, I will take up the matter of these with [defendant] and his family, and see that the court receives a communication, and close up the matter.” Defendant asserts that there was no further discussion of the matter on the record. 2.

Discussion Defendant contends the letters sent by his sister imposed a duty upon the court to order that he be transported to the court for a hearing at which the court could inquire into the adequacy of the legal representation provided to defendant by Mintz. Defendant places primary reliance upon this court’s decision in People v. Marsden, supra, 2 Cal.3d 118 (Marsden). In that case, the defendant complained in general terms that his appointed counsel was not providing adequate representation, and the court inferred that he wished to discharge counsel and substitute another appointed attorney.

The court conducted a hearing, but erred by refusing to permit defendant to list particular instances in which he felt his counsel had performed inadequately. (Id. at p. 124.) In Marsden, supra, 2 Cal.3d 118, we explained that although an indigent defendant possesses a right under the Sixth Amendment to the assistance of court-appointed counsel, he or she does not have an unlimited right to require the trial court to discharge appointed counsel and appoint substitute counsel. (Marsden, at p. 123.) The decision whether to substitute counsel at the defendant’s request rests within the trial court’s discretion; when ineffective assistance of counsel is alleged by the defendant, the court should grant a request to substitute counsel if there is “ ‘ “a sufficient showing . . . that the right to the assistance of counsel would be substantially impaired ... in case the request is not granted (Ibid.) In Marsden, supra, 2 Cal.3d 118, we pointed out that a trial court cannot discharge its duty without hearing the reasons for the defendant’s belief that his or her attorney has not afforded adequate representation. (Id. at pp. 123-124.) We observed that “ ‘the critical factual inquiry ordinarily relates to matters outside the trial record . . .’ ” (id. at p. 123), and concluded that denial of a motion to substitute counsel based upon the court’s observations in the courtroom — without affording the defendant an opportunity to offer argument or evidence in support of his or her complaint — “ ‘is lacking in all the attributes of a judicial determination.’ ” (Id. at p. 124.) We also rejected the position taken by the trial court in the Marsden case — that it was prohibited from advising the defendant how to present his request to substitute counsel.

We pointed out that, on the contrary, we had commended courts that aided unrepresented persons “ ‘as to the presentation of evidence, the rules of substantive law, and legal procedure.’ ” (Marsden, supra, 2 Cal.3d at p. 126.) Even as to defendants who are represented, we concluded it is within the court’s authority to assist a defendant who is “groping for the proper manner in which to demonstrate the alleged lack of competence of his attorney . . . .” (Ibid.) a.

Absence of request to substitute counsel As a threshold matter, defendant’s claim fails because a review of the record reveals that defendant did not complain concerning counsel, nor did he request substitution of counsel. Although a formal motion is not required, the trial court’s duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides “ ‘at least some clear indication’ ” that the defendant wishes to substitute counsel. (People v.

Dickey (2005) 35 Cal.4th 884, 920 [28 Cal.Rptr.3d 647, 111 P.3d 921]; see People v. Valdez (2004) 32 Cal.4th 73, 97 [8 Cal.Rptr.3d 271, 82 P.3d 296]; People v. Mendoza (2000) 24 Cal.4th 130, 157 [99 Cal.Rptr.2d 485, 6 P.3d 150].) Because defendant made no assertion whatsoever regarding dissatisfaction with counsel, the trial court’s duty under Marsden was not triggered.

Moreover, contrary to defendant’s contention, even if we were to view the letters sent by defendant’s sister as emanating from defendant, those letters do not contain a “clear indication” from defendant that he desired substitution of counsel on the ground of counsel’s deficiencies. In fact, as noted above, one of the letters states that “Mr. Mintz has excellent recommendations and appears to be supremely qualified and well-respected.” The letters do not even imply a request to substitute counsel.

Rather, they complain of lack of communication between defendant and his counsel, and request the court’s intervention to improve attorney-client communication. In the absence of a request to discharge appointed counsel, however, differences of opinion between a defendant and his or her appointed counsel regarding the conduct of the defense do not impose a duty upon the court to conduct a Marsden hearing. (People v. Lucky (1988) 45 Cal.3d 259, 281 [247 Cal.Rptr. 1, 753 P.2d 1052].) b.

Invocation of defendant’s rights under Marsden by a third party In addition, the circumstance that the letters were sent by a third party renders them an insufficient basis for imposing a duty upon the court to conduct a Marsden hearing. This is so because our decision in Marsden, supra, 2 Cal.3d 118, was intended to afford protection to the defendant’s right to counsel as guaranteed by the Sixth Amendment, and the constitutional right to counsel is personal to the defendant and ordinarily cannot be asserted vicariously. (People v.

Badgett (1995) 10 Cal.4th 330, 343-344 [41 Cal.Rptr.2d 635, 895 P.2d 877]; see also People v. Tena (2007) 156 Cal.App.4th 598, 613 [67 Cal.Rptr.3d 412] [describing the personal nature of the right to present a defense, and to counsel].) It would be inappropriate to recognize a third party’s authority to require the court to conduct a Marsden inquiry, because the defendant’s right to mount a defense in the manner that he or she, under the direction of defense counsel, deems best requires that counsel’s independence from third party influence be protected.

The court must exercise circumspection in taking actions that may interfere with an existing attorney-client relationship, and must remain “on [its] guard neither to infringe upon the defendant’s right to counsel of his choice, nor to compromise the independence of the bar.” (Smith v. Superior Court (1968) 68 Cal.2d 547, 559 [68 Cal.Rptr. 1, 440 P.2d 65] [“The value in issue ... is ‘the state’s duty to refrain from unreasonable interference with the individual’s desire to defend himself in whatever manner he deems best, using every legitimate resource at his command.’ ”]; see Cannon v.

Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697 [122 Cal.Rptr. 778, 537 P.2d 898]; see also People v. Jones (2004) 33 Cal.4th 234, 244 [14 Cal.Rptr.3d 579, 91 P.3d 939]; Ingram v. Justice Court (1968) 69 Cal.2d 832, 840 [73 Cal.Rptr. 410, 447 P.2d 650].) We would risk encouraging interference with the attorney-client relationship were we to hold that a trial court must conduct a Marsden hearing when a third party complains concerning the representation received by a defendant. Practical considerations support the conclusion we reach.

A third party does not owe a duty of loyalty to the defendant, whereas a party’s attorney owes the highest fiduciary duty to his or her client. (1 Witkin, Cal. Procedure, supra, Attorneys, § 90, pp. 125-127; id., § 101, p. 138.) The intervention of a person who is not under such a duty could impair the defendant’s interests, especially because third parties may have motives that are inimical to the defense position. And when the nonparty is not a lawyer, even a well-intentioned person adversely could impact the defendant’s position because of ignorance of the law. (See J.W. v.

Superior Court (1993) 17 Cal.App.4th 958, 969 [22 Cal.Rptr.2d 527].) In addition, because communication between attorney and client is confidential and privileged, third parties are unlikely to have complete information concerning the attorney-client relationship. Accordingly, third parties ordinarily lack a reliable basis upon which to allege ineffective assistance of counsel. Finally, there is no necessity to impose a duty upon the court to entertain Marsden motions made by third parties, because even incarcerated defendants can speak for themselves in various ways.

There is no indication in the present record that defendant was unable to communicate with the court except through his sister. Defendant, like his sister, could have mailed a letter to the court. He also could have complained concerning the representation afforded to him at the first opportunity when he ultimately did appear in court. For all these reasons, we perceive no cause to deviate from principles recognizing the personal nature of the right to counsel and protecting the attorney-client relationship from third party interference.

We decline to impose upon the court a duty to conduct a hearing or respond to criticism of appointed counsel that has been levied by a nonparty. c. Asserted obligation to intervene on the court’s own motion Defendant contends that trial courts are under an obligation to protect the defendant’s right to effective assistance of counsel through inquiry initiated in the first instance by the court, once the court knows or should know that the adequacy of counsel’s representation is in question.

Defendant claims the court, at the least, should have “acknowledged” his sister’s letters, permitted defendant to appear before the court, and “follow[ed] up on Mr. Mintz’s promise to furnish the court with a ‘communication’ to ‘close up the matter.’ ” To the extent defendant claims the court is under an obligation to conduct a Marsden inquiry on its own motion, we are not persuaded. On the contrary, as suggested by the many decisions of this court requiring some indication from the defendant (or defense counsel) (see People v.

Carter (2005) 36 Cal.4th 1114, 1194 [32 Cal.Rptr.3d 759, 117 P.3d 476]) that the defendant wishes to substitute counsel (People v. Valdez, supra, 32 Cal.4th at p. 96; People v. Dickey, supra, 35 Cal.4th at pp. 920-921), we agree with the decisions of the Courts of Appeal holding specifically that the trial court is not required to conduct a Marsden hearing on its own motion. (People v. Lara (2001) 86 Cal.App.4th 139, 150 [103 Cal.Rptr.2d 201]; People v. Leonard (2000) 78 Cal.App.4th 776, 787 [93 Cal.Rptr.2d 180]; People v. Gay (1990) 221 Cal.App.3d 1065, 1070 [270 Cal.Rptr. 747]; see also People v.

Montiel (1993) 5 Cal.4th 877, 906 [21 Cal.Rptr.2d 705, 855 P.2d 1277].) To the extent defendant’s claim is based upon an asserted general duty on the part of the trial court to supervise appointed counsel, any obligation that may rest upon the court to uphold a proper standard of representation by appointed counsel (see McMann v. Richardson (1970) 397 U.S. 759, 771 [25 L.Ed.2d 763, 90 S.Ct. 1441]; People v. McKenzie (1983) 34 Cal.3d 616, 630 [194 Cal.Rptr. 462, 668 P.2d 769], disapproved on another point in People v.

Crayton (2002) 28 Cal.4th 346, 364-365 [121 Cal.Rptr.2d 580, 48 P.3d 1136]) is circumscribed and must be understood in light of the countervailing duty of the court to respect the inviolability of the attorney-client relationship and to permit the defendant to present his or her defense in the manner deemed appropriate by counsel in consultation with the defendant. (See Smith v. Superior Court, supra, 68 Cal.2d at pp. 559-561; see also People v.

Jones, supra, 33 Cal.4th at pp. 242-244.) Thus, the trial court’s authority to discharge an appointed attorney for misconduct or incompetence on its own motion is limited. (See People v. Jones, supra, 33 Cal.4th at p. 243, citing Cannon v.

Commission on Judicial Qualifications, supra, 14 Cal.3d at p. 697.) In any event, whatever may be the obligation of a court to initiate a hearing when the defendant complains to the court concerning appointed counsel’s performance, or when the court, in person, has observed an attorney’s apparent disregard for his or her client’s interests, no such obligation falls upon a court simply because a third party has suggested that appointed counsel — long before the commencement of trial — has neglected a client who is equally capable of lodging such a complaint.

We also acknowledge that the trial court does bear a duty of inquiry on its own motion when it knows or should know of a potential conflict of interest between a defendant and his or her counsel. Specifically, “[w]hen a court ‘ “knows or reasonably should know that a particular conflict exists,” ’ it should inquire into the conflict even in the absence of objection by the defendant or his or her counsel.” (People v. Cornwell (2005) 37 Cal.4th 50, 75 [33 Cal.Rptr.3d 1, 117 P.3d 622], disapproved on another point in People v.

Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11]; see also People v. Rundle (2008) 43 Cal.4th 76, 176 [74 Cal.Rptr.3d 454, 180 P.3d 224], disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Nonetheless, “the duty to inquire is not triggered merely because of ‘a vague, unspecified possibility of conflict.’ ” (People v.

Cornwell, at p. 75 [noting that not every instance of an attorney’s representation of multiple defendants charged with the same crime gives rise to a duty of inquiry].) But, as with defendant’s doubtful assertion that the court has a general obligation to supervise counsel to ensure adequate representation, even assuming some such limited duty under certain circumstances, the cited decisions fall far short of suggesting a duty to initiate a hearing whenever the court receives any indication, even one made by a third party, that appointed counsel has failed to communicate adequately with the defendant — a complaint that, by itself, ordinarily is not a sufficient basis to require a court to grant even the defendant’s own request to substitute counsel. (See People v.

Cole (2004) 33 Cal.4th 1158, 1192 [17 Cal.Rptr.3d 532, 95 P.3d 811].) Defendant asserts that the special need for reliability existing in capital trials requires courts to conduct an inquiry or take some further action to ensure diligent and competent assistance of appointed counsel under circumstances such as occurred in the present case. Indeed, as defendant contends, high court decisions state as a general proposition that the Eighth and Fourteenth Amendments to the United States Constitution prescribe heightened reliability for proceedings in capital cases. (See Zant v.

Stephens (1983) 462 U.S. 862, 874-879 [77 L.Ed.2d 235, 103 S.Ct. 2733]; Beck v. Alabama (1980) 447 U.S. 625, 637-638 [65 L.Ed.2d 392, 100 S.Ct. 2382].) Defendant offers no authority, however, supporting the view that this general rule requires trial courts to intervene in the attorney-client relationship on the basis of complaints concerning attorney-client communication brought by third parties. d.

Asserted error in conducting hearing in defendant’s absence Defendant contends his rights to counsel and to be present at critical stages of the proceedings were violated when the trial court conducted the trial-setting hearing on June 1, 1995, and discussed defendant’s sister’s letters with counsel, but failed to order that defendant be brought to court for the hearing.

He contends that his attorney failed to represent him at the hearing, leaving him “totally without representation at a crucial hearing.” Indeed, trial courts ordinarily should not enter into a discussion of a defendant’s Marsden motion with defense counsel when the defendant is absent. (People v. Hill, supra, 148 Cal.App.3d at p. 755; 5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 222, p. 347; see also People v.

Perry (2006) 38 Cal.4th 302, 313 [42 Cal.Rptr.3d 30, 132 P.3d 235] [“We do not dispute that a defendant may be entitled to be present at a conference called to consider whether to remove his counsel for conflict of interest or any other reason, because the removal of counsel will affect the defendant’s representation at trial, and is a matter on which the defendant’s views should be heard.”].) Defendant’s trial-setting hearing, however, did not constitute a hearing on a Marsden motion, and the court did not consider at the trial-setting hearing whether to substitute counsel.

With respect to defendant’s claim that he had a right to be present at the trial-setting hearing, “[u]nder the Sixth Amendment’s confrontation clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross-examination. ’ [Citations.] [][] Similarly, under the Fourteenth Amendment’s due process clause, a criminal defendant does not have a right to be personally present at a particular proceeding unless he finds himself at a ‘stage . . . that is critical to [the] outcome’ and ‘his presence would contribute to the fairness of the procedure.’ [Citation.]” (People v.

Waidla (2000) 22 Cal.4th 690, 741-742 [94 Cal.Rptr.2d 396, 996 P.2d 46].) We need not discuss the boundaries of defendant’s right to be present at pretrial hearings, or whether defendant effectively waived his presence at the trial-setting hearing, however, because any error in failing to secure his presence was harmless beyond a reasonable doubt. (See Rushen v. Spain (1983) 464 U.S. 114, 117-118, fn. 2 [78 L.Ed.2d 267, 104 S.Ct. 453]; see also Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1172-1173; People v. Romero (2008) 44 Cal.4th 386, 419 [79 Cal.Rptr.3d 334, 187 P.3d 56]; People v.

Ayala (2000) 24 Cal.4th 243, 268-269 [99 Cal.Rptr.2d 532, 6 P.3d 193]; People v. Bradford (1997) 15 Cal.4th 1229, 1357 [65 Cal.Rptr.2d 145, 939 P.2d 259]; People v.

Wright (1990) 52 Cal.3d 367, 403 [276 Cal.Rptr. 731, 802 P.2d 221].) As noted, the court did not conduct a Marsden hearing or reach any decision at the trial-setting hearing of June 1, 1995; the court did not interpose any obstacle to defendant’s expressing dissatisfaction with Mintz by letter or at a later hearing actually attended by defendant; and the proceedings of which defendant complains occurred approximately two years prior to the commencement of the trial, leaving him multiple subsequent opportunities to express — for himself — any reservations he entertained concerning his defense counsel. B.

Exclusion of Prospective Jurors for Cause Defendant contends the trial court improperly sustained the prosecutor’s challenges for cause against two prospective jurors, in violation of his state and federal constitutional rights to due process of law, a fair and impartial jury, and a reliable penalty verdict. (U.S. Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art.

I, §§ 7, 15, 16 & 17.) He contends these two prospective jurors did not express views concerning capital punishment that warranted their exclusion from the jury, that the trial court employed an incorrect standard in making its ruling, and that the court displayed bias against prospective jurors who had reservations concerning the death penalty. As we shall explain, we conclude the trial court did not abuse its discretion and did not apply an incorrect standard or display bias. 1.

Governing principles The state and federal Constitutions guarantee a criminal defendant the right to a trial by an impartial jury. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct. 844] (Witt); People v. Wilson (2008) 44 Cal.4th 758, 778 [80 Cal.Rptr.3d 211, 187 P.3d 1041].) Decisions of the United States Supreme Court and of this court make it clear that a prospective juror’s personal views concerning the death penalty do not necessarily afford a basis for excusing the juror for bias.

As the high court observed, because “ ‘[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State ...,’” it follows that “ ‘a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty ....’” (Uttecht v.

Brown (2007) 551 U.S. 1, 6 [167 L.Ed.2d 1014, 127 S.Ct. 2218].) Rather, when a juror is challenged for cause because of his or her views concerning capital punishment, the trial court must apply the following standard: “To achieve the constitutional imperative of impartiality, the law permits a prospective juror to be challenged for cause only if his or her views in favor of or against capital punishment ‘would “prevent or substantially impair the performance of his [or her] duties as a juror” ’ in accordance with the court’s instructions and the juror’s oath.” (People v.

Blair (2005) 36 Cal.4th 686, 741 [31 Cal.Rptr.3d 485, 115 P.3d 1145], quoting Witt, supra, 469 U.S. at p. 424.) As we have explained in many decisions, “ ‘ “[t]here is no requirement that a prospective juror’s bias against the death penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient that the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law in the case before the juror.” ’ ” (People v.

Abilez (2007) 41 Cal.4th 472, 497-498 [61 Cal.Rptr.3d 526, 161 P.3d 58].) The trial court’s determination is reviewed for abuse of discretion. (People v. Abilez, supra, 41 Cal.4th at pp. 497-498.) Reviewing courts defer to the trial court on the essentially factual question of the prospective juror’s true state of mind. (People v.

Lewis (2008) 43 Cal.4th 415, 483 [75 Cal.Rptr.3d 588, 181 P.3d 947].) Indeed, “the [trial court’s] finding may be upheld even in the absence of clear statements from the juror that he or she is impaired because ‘many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.’ [Citation.] Thus, when there is ambiguity in the prospective juror’s statements, ‘the trial court, aided as it undoubtedly [is] by its assessment of [the venireman’s] demeanor, [is] entitled to resolve it in favor of the State.’ ” (Uttecht v.

Brown, supra, 551 U.S. at p. 7.) In sum, even when “ ‘[t]he precise wording of the question asked of [the venireman], and the answer he gave, do not by themselves compel the conclusion that he could not under any circumstance recommend the death penalty,’ the need to defer to the trial court remains because so much may turn on a potential juror’s demeanor.” (Id. at p. 8.) The deference owed to the trial court’s determination bears emphasis.

As explained in a recent decision by the United States Supreme Court, “[deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.” (Uttecht v.

Brown, supra, 551 U.S. at p. 9.) The trial court’s determination whether a prospective juror entertains disqualifying bias “ ‘is based upon determinations of demeanor and credibility that are peculiarly within a trial judge’s province.’ ” (Id. at p. 7.) Our own decisions are in accord: “[Ajppellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person’s responses (noting, among other things, the person’s tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record.” (People v.

Stewart (2004) 33 Cal.4th 425, 451 [15 Cal.Rptr.3d 656, 93 P.3d 271].) Jurors commonly supply conflicting or equivocal responses to questions directed at their potential bias or incapacity to serve. When such conflicting or equivocal answers are given, the trial court, through its observation of the juror’s demeanor as well as through its evaluation of the juror’s verbal responses, is best suited to reach a conclusion regarding the juror’s actual state of mind (People v.

Hamilton (2009) 45 Cal.4th 863, 890 [89 Cal.Rptr.3d 286, 200 P.3d 898]), and its determination “ ‘ “as to [the juror’s] true state of mind is binding on an appellate court” ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 416 [127 Cal.Rptr.2d 544, 58 P.3d 391], italics added). The trial court’s resolution of conflicts on the question of juror bias is binding on the reviewing court if supported by substantial evidence. (People v.

Hamilton, supra, 45 Cal.4th at p. 890.) In applying these precepts, however, we must keep in mind that a prospective juror who is firmly opposed to the death penalty is not disqualified from serving on a capital jury. “[N]ot all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart v.

McCree (1986) 476 U.S. 162, 176 [90 L.Ed.2d 137, 106 S.Ct. 1758]; see People v. Stewart, supra, 33 Cal.4th at p. 446.) As this court has stated, “a prospective juror’s personal conscientious objection to the death penalty is not a sufficient basis for excluding that person from jury service in a capital case .... ‘. . . The real question is whether the juror’s attitude will “ ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”...

A juror whose personal opposition toward the death penalty may predispose him to assign greater than average weight to the mitigating factors presented at the penalty phase may not be excluded, unless that predilection would actually preclude him from engaging in the weighing process and returning a capital verdict.’ ” (People v. Stewart, supra, 33 Cal.4th at p. 446, citations & italics omitted; see People v. Kaurish (1990) 52 Cal.3d 648, 699 [276 Cal.Rptr. 788, 802 P.2d 278].) 2. Discussion a. Prospective Juror B.S.

In her questionnaire, Prospective Juror B.S. stated she was “strongly against” the death penalty, but she also checked a box indicating she did not “hold any religious, moral feelings or philosophical principles that would affect [her] ability to vote for the death penalty in this case.” She repeated that she was “strongly against” the death penalty and would vote against a ballot measure authorizing capital punishment, explaining that she believed such punishment “serves no useful purpose; makes killers out of us.” At the same time, she added that she could “see some circumstances where society would have to put an end to someone’s life.” During voir dire, the court explained to Prospective Juror B.S. that it would determine whether prospective jurors would “truly have an open mind to both penalty choices,” permitting them to “realistically and practically, not as a matter of theory, . . . seriously consider imposing either ... the death penalty or life in prison without possibility of parole.” The court inquired: “What’s your . . . bottom line judgment here on yourself?

You have some very strong views you expressed in your questionnaire. Do you think as a practical realistic matter both of these penalty alternatives are really available to you?” B.S. responded: “I have some very strong views against the death penalty. And I feel I could listen to the evidence and make a determination based on the evidence.

It’s not something that I would look forward to doing, but I feel I could do it.” When the trial court noted that Prospective Juror B.S. “generally opposed the death penalty,” she corrected the court, stating, “I would change that to strongly” in lieu of “generally.” The court referred to her stated view that capital punishment serves no useful purpose and “makes everyone a killer,” but that there might be circumstances in which “society would have to put an end to someone’s life.” The court commented: “Now bear in mind the decision the jury would be asked to make here is not a decision by society, it’s a decision that you personally would have to make.

So my question [is] do you . . . realistically and practically feel that you could ever vote for the death penalty, you yourself personally vote for the death penalty?” B.S. responded: “I think I probably could if the evidence warranted it. I would not do so lightly. And I would be more inclined not to.” As defendant points out, in spite of her philosophical views Prospective Juror B.S. did assert on several occasions that she could impose a sentence of death.

When the prosecutor asked whether there was a realistic possibility she could “vote to end [defendant’s] life,” B.S. responded that “I’d [say] that I could do it if I had to do it.” Her explanation introduced some ambiguity into her response, however: “Even though I am philosophically opposed to the death — I’m strongly opposed to the death penalty — I also have thought long and hard about this during these last weeks and I would rather have me on a jury than somebody who has no opinion or somebody who is vociferously for the death penalty.” When the prosecutor inquired as to which circumstances might lead her to vote for the death penalty despite her belief the penalty “makes killers out of us,” she referred to “particularly heinous” crimes, to recidivists, “or if it seemed like this is the kind of person he was before this time as well, I’m just kind of talking off the top of my head, I don’t know.

I really have to . . . hear the evidence, hear the facts . . . .” The prosecutor commented that some persons might be unable to impose the death penalty for crimes such as those charged against defendant, that is for a murder in the course of a child molestation.

The prosecutor continued: “Just knowing yourself . . . and the fact that you feel that the death penalty serves no purpose other than making killers out of us all, . . . is it realistic that you would vote for the death penalty in this case that we have here?” B.S. responded: “It is not realistic that I would, but it is realistic that I can, that I could. I’m sorry, I’m a writer.” When the prosecutor asked her to elaborate, she responded: “Well, I don’t think I can say more about it than I already have. I take this seriously. There is a possibility that I could vote for the death penalty.

I would have to have all the evidence, all the facts, and it would have to be something that would push me beyond the way I normally feel about the death penalty. But. . . that could happen.” The prosecutor pursued the point made by the prospective juror that she could vote in favor of the death penalty only if something “pushed her beyond” her established views, asking whether she meant that although it was possible that certain evidence could cause her to vote for the death penalty, it was not “realistic” that she would.

B.S. parried this question with the comment that she believed the prosecutor was “trying to get [her] to say that [she] would never vote for the death penalty.” The prosecutor explained that a person who automatically would reject the death penalty would not afford the People a fair trial. He asked: “[I]s this an appropriate case for you as far as the nature of this case [and] the imposition of the death penalty . . . given what you have written in your questionnaire?” B.S. responded: “I think I can hear the evidence and I think I can make a good decision according to the law. I am not looking to be on this jury.

I don’t especially want to, but if I am chosen for the jury I think I would make a good decision.” The prosecutor challenged Prospective Juror B.S. for cause. In the prosecutor’s view, B.S. had “engage[d] in verbal gymnastics,” was evasive, and lacked candor. By contrast, defense counsel opposed the challenge and argued that a juror who is strongly opposed to the death penalty and would be disinclined to reach a verdict of death nonetheless may serve on a jury if his or her ability to follow the law is not impaired.

In making its determination, the trial court commented that B.S. held the strongest views opposing the death penalty of any of the prospective jurors who had been questioned, and that “no one ha[s] articulated with such a precise and devastating impact the depth of her feeling against capital punishment wherein she brands anyone who would impose capital punishment a killer.” Referring to the prosecutor’s question whether it was realistic to suppose B.S. would vote for a sentence of death, the court commented that her initial statement in response to the prosecutor — that “[i]t is not realistic that I would” impose a sentence of death — rendered the second part of her answer — “it is realistic that I . . . could” — “essentially irrelevant. ...

I think what she’s telling me in the context of all the statements she’s made here, especially in the statement in the questionnaire ... is that she would never vote for the death penalty under any circumstances.” (Italics added.) The court expressed “a definite impression that she would be unable to fulfill and impartially apply the law,” and “a definite impression based on her questionnaire and based on what she said here in court that her views are such that [they] would prevent or substantially] impair her performance [of her] duties in accordance with . . . instructions [and] . . . her oath. . .

The trial court’s impression of the prospective juror’s true state of mind is entitled to deference under the circumstances apparent in the present case. This court has considered the extensive transcript documenting the voir dire of B.S. The trial court “supervised a diligent and thoughtful voir dire” (Uttecht v. Brown, supra, 555 U.S. at p. 20), taking pains to state and apply the correct standard and to explain the overall impression it received from the entire voir dire of B.S.

As required by our decisions, the court “engage[d] in a conscientious attempt to determine [this] prospective juror’s views regarding capital punishment . . . .” (People v. Wilson, supra, 44 Cal.4th at p. 779.) Although the juror declared a theoretical possibility that she could vote for the penalty of death, the court legitimately could infer from the strength of the juror’s views, her verbal fencing with the prosecutor, and her equivocal statements, that she was substantially impaired in her ability to perform her duties as a juror.

Defendant claims that deference to the trial court is unwarranted because, in his view, the prospective juror did not equivocate on any significant point during her voir dire. We disagree.

She equivocated when the trial court inquired whether she “realistically and practically” believed she could “personally vote for the death penalty,” to which she replied, “I think I probably could if the evidence warranted it.” (Italics added.) It appeared she proposed to hold to her views unless something “push[ed] [her] beyond the way [she] normally [felt] about the death penalty.” Finally, when the prosecutor legitimately inquired whether it was realistic to suppose she would vote in favor of the penalty of death for a murder committed in connection with a child molestation (see People v.

Hill (1992) 3 Cal.4th 959, 1003 [13 Cal.Rptr.2d 475, 839 P.2d 984], disapproved on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618]; People v. Pinholster (1992) 1 Cal.4th 865, 917-918 [4 Cal.Rptr.2d 765, 824 P.2d 571]), her response — that it was “not realistic that I would, but it is realistic that I can, that I could’ impose the death penalty (italics added)— appeared to the court in the context of the questioning to be “verbal gymnastics,” as the prosecutor alleged, rather than an exercise in grammar, as defendant claims. (See People v.

DePriest (2007) 42 Cal.4th 1, 21 [63 Cal.Rptr.3d 896, 163 P.3d 896] [noting the significance of a prospective juror’s avoidance of the prosecutor’s questions].) The trial court explained that the response persuaded it that B.S.’s actual state of mind was such that there was no realistic possibility she ever would vote in favor of a penalty of death. (The court evidently paid attention to the demeanor of prospective jurors throughout the voir dire, stating later in the proceedings that “I’m very sensitive to . . . such things as body language, unspoken pauses . . . .” (See p. 444, post, see also pp. 442-443, post.)) The court’s determination concerning the prospective juror’s true state of mind is entitled to deference.

Defendant objects to the trial court’s reliance upon the strength of the prospective juror’s opposition to the death penalty. As defendant urges, jurors who are firmly opposed to the death penalty are qualified to serve if they “state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.” (Lockhart v. McCree, supra, 476 U.S. at p. 176; see also People v. Wilson, supra, 44 Cal.4th at pp. 785-786.) Prospective Juror B.S. did not make such a statement, however.

Indeed, she said on five occasions that she was “strongly” or “very strongly” opposed to the death penalty, and confirmed that she believed “philosophically” that capital punishment “serves no useful purpose” and “makes killers out of us.” In the absence of a clear indication that she was willing to set aside those views and apply the law, the trial court legitimately took into account her insistent, repeated, and forcefully worded references to her strong opposition to the death penalty when it considered the equivocal nature of some of her responses. (See People v.

Hamilton, supra, 45 Cal.4th at p. 891 [trial court referred to the excused juror as “ ‘a man of pretty strong convictions’ ” who did not wish to appear closed-minded but who would, in actuality, always vote against the penalty of death]; People v. Avila (2006) 38 Cal.4th 491, 531 [43 Cal.Rptr.3d 1, 133 P.3d 1076] [referring to jurors’ having disclosed views against the death penalty “so strong as to disqualify them for duty on a death penalty case”]; see also U.S. v.

Fell (2d Cir. 2008) 531 F.3d 197, 213.) Defendant also points to statements made by the prospective juror indicating she was not opposed to imposition of the death penalty in every case, contending these established her qualification to serve. The court legitimately could view these statements, however, as in tension with her view that a vote in favor of the penalty of death would serve no purpose and would render the prospective juror a killer. (See People v. DePriest, supra, 42 Cal.4th at pp. 21-22; see also People v.

Salcido (2008) 44 Cal.4th 93, 133 [79 Cal.Rptr.3d 54, 186 P.3d 437].) When a prospective juror has made statements that tend to support the trial court’s conclusion that the juror is not qualified, “[t]he fact that [the juror] also gave statements that might have warranted keeping [her] as [a juror] does not change [the] conclusion” that substantial evidence supports the trial court’s ruling. (People v.

Thornton (2007) 41 Cal.4th 391, 414 [61 Cal.Rptr.3d 461, 161 P.3d 3].) The trial court was justified in concluding that the prospective juror’s responses, rather than suggesting she could set aside her own personal views, constituted merely a grudging acknowledgment that those views might include some narrow exception — or at least an abstract possibility she would consider the statutory penalty of death. But the mere theoretical possibility that a prospective juror might be able to reach a verdict of death in some case does not necessarily render the dismissal of the juror an abuse of discretion. (People v.

Wharton (1991) 53 Cal.3d 522, 588-589 [280 Cal.Rptr. 631, 809 P.2d 290]; see also People v. Lancaster (2007) 41 Cal.4th 50, 80 [58 Cal.Rptr.3d 608, 158 P.3d 157].) Excusal for cause is not limited to a juror who “ ‘zealously opposes or supports the death penalty in every case.’ ” (People v. Riggs (2008) 44 Cal.4th 248, 282 [79 Cal.Rptr.3d 648, 187 P.3d 363].) Defendant, objecting that the trial court employed an incorrect standard, asserts the court failed to understand that a person who is opposed to the death penalty nevertheless may be qualified to serve.

Defendant contends the prospective juror’s responses merely demonstrated she had a high threshold for imposing the death penalty — a circumstance we acknowledge does not necessarily mean the juror is substantially impaired within the meaning of Witt, supra, 469 U.S. 412. (People v. Stewart, supra, 33 Cal.4th at p. 447; People v. Kaurish, supra, 52 Cal.3d at p. 699.) We are not persuaded. The court did not limit its inquiry to whether B.S. was opposed to the death penalty.

Rather, the court correctly enunciated the Witt standard and inquired of B.S. and other prospective jurors whether there was a realistic, practical possibility the juror could consider either penalty option — a formulation we have concluded satisfies the standard set forth by the high court in Witt. (People v. Mason (1991) 52 Cal.3d 909, 954 [277 Cal.Rptr. 166, 802 P.2d 950]; see also People v.

Lancaster, supra, 41 Cal.4th at p. 80.) Defendant counters that the trial court must have employed an erroneous standard, because it believed B.S.’s views concerning capital punishment were “far stronger, far more compelling than any of the answers that the Supreme Court reviewed and upheld as constituting a valid challenge for cause” in People v. Hill, supra, 3 Cal.4th 959, whereas the jurors in that case stated they “probably” could not or “didn’t think” they could, or “would feel uneasy about” imposing the death penalty.

By contrast, defendant points out, B.S. affirmed that there was a possibility she could vote for the maximum penalty. Unlike B.S. in the present case, however, the prospective jurors in the Hill case did not stress their strong opposition to the death penalty and did not state that the death penalty serves no purpose and “makes killers out of us” all — a view that cast doubt upon B.S.’s claim she could vote to impose the penalty of death in an appropriate case.

In sum, in the circumstances of the present case it is appropriate to defer to the trial court, which conducted a careful voir dire and was able to observe the prospective juror’s demeanor. Substantial evidence supports the trial court’s conclusion that Prospective Juror B.S. held views that would render her unable “ ‘realistically and honestly’ ” to give the prosecution “ ‘a fair hearing and a fair opportunity to at least persuade [her] to [vote for] the death penalty.’ ” (People v. Hamilton, supra, 45 Cal.4th at p. 891; see also People v.

DePriest, supra, 42 Cal.4th at p. 22 [jurors properly excused who would experience “extreme difficulty imposing capital punishment, even in an appropriate case,” and whose responses and demeanor produced a “ ‘definite impression that [their] views on the death penalty would substantially impair the performance of [their] duties’ ”].) b. Prospective Juror E.H.

In her response to the juror questionnaire, when asked to describe her general feelings regarding the death penalty, Prospective Juror E.H. wrote: “I used to be strictly against it — particularly because it was applied to poor or minority persons more so than others.

Now — I might be able to vote for the death penalty — if a crime was really, really awful.” She added that her views had moved from “strongly against” to “moderately against” capital punishment, “based on hearing of awful crimes and repeat offenders.” Her questionnaire also noted that she would vote against a ballot measure authorizing the penalty of death, because “it’s applied more often to minority and poor” defendants.

She nonetheless checked the box on the questionnaire indicating that she did not “hold any religious, moral feelings or philosophical principle that would affect [her] ability to vote for the death penalty in this case.” During voir dire, the trial court inquired whether, in light of her views, both the punishment of death and the punishment of life in prison without the possibility of parole “are realistically available to you?” E.H. responded in the affirmative, explaining: “I just mean because there are the two choices, I’m more inclined to go for life [in prison] without [the possibility of parole], instead of the death penalty, but there could be situations where I could vote for the death penalty.” The court inquired whether in “the situations that you are contemplating, are they the kind of thing that you would call realistic and practical possibilities, or do you think they fall into the category of something that is theoretically available but not really realistic, practical, common sense.” E.H. responded; “No I think they’re realistic for a . . . crime or crimes that were — had such aggravating, is that the word, circumstances.” Under questioning by the prosecutor, E.H. acknowledged that she was philosophically opposed to the death penalty and that if the choice were hers, the state would not authorize capital punishment.

The prosecutor asked in what circumstances E.H. envisioned being able to impose a sentence of death, and she responded: “I guess it would be ... if there were lots of people killed ... I guess if you can’t take into account someone’s previous history, so I guess you’re just looking at the current case, so I guess it would be just how awful ... the current situation was.” The prosecutor stated: “The nature of the case that we have here does not fit what you’ve described.

So I ask . . . is this one that raises its level ... to really, really awful, where you could consider imposing the death penalty?” E.H. responded that “[i]t might.” She agreed when the prosecutor added, “you’ve told me that you haven’t thought too much about it because it’s unpleasant to you.” When asked whether she could impose the ultimate penalty, she replied: “I’d have to . . . hear the case.

I didn’t want to think about it in the abstract.” The prosecutor explained that “in order for the punishment of the death penalty being realistic for a — juror, they have to actually be capable of voting to end another person’s life. And if they can’t do that, if they couldn’t bring themselves to do that because they couldn’t live with themselves, or for any number of reasons, then the reality is that the death penalty isn’t an option for them because they couldn’t actually vote for it, no matter what [t]he evidence was.

HQ So I ask . . . knowing yourself and given your philosophical base, and that you oppose the death penalty and don’t think we should have death penalty on the books, do you really believe that you could actually vote to end the life of another person?” E.H. responded: “Depending on the facts of the case, that’s a possibility that I could.” The prosecutor inquired what facts she was referring to, and E.H. responded: “It just seems strange to discuss this because we’re discussing the end of the case, and we haven’t even . . . heard the evidence.” The prosecutor explained that just as the law provides that the jury in a capital case should not be composed of persons who automatically would vote in favor of death for all murders, the law also provides that the jury should not be composed of persons who never could vote for the death penalty because “realistically, the option of the death penalty doesn’t exist for them.

W But if we don’t ask these questions, we can’t get to those people to confront the issue as to whether this is something that they could actually do.” The prosecutor noted E.H.’s emotional state, asking: “Now, does that upset you? I get a sense that this is very, very uncomfortable for you, and you know, it[’s] very . . . irritating.” E.H. confirmed that the prosecutor’s observation concerning her emotional state was correct.

The prosecutor remarked further on the prospective juror’s apparent unease during voir dire: “And the idea of being in the situation of being asked, could I actually vote to kill another human being, given the fact that you don’t think we should have a death penalty, sort of makes the situation even more uncomfortable?” E.H. answered in the affirmative.

The prosecutor inquired whether “realistically, is this an appropriate case for you . . . given your attitudes and your feelings about the death penalty?” E.H. responded that she “probably” did not agree “with the philosophy that people that are opposed to the death penalty . . . should be excluded from the case.

But I think, besides that, that given the case, that I would consider the case, and there is a possibility I could vote for the death penalty in certain cases.” She confirmed that she had “strong feelings” against the rule that a person who could never impose the death penalty should be excluded from a capital jury. The prosecutor asked whether E.H. believed that capital punishment is “applied more often to minorities and the poor,” and she confirmed she held that belief, and that it applied to persons of Hisp

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