THE PEOPLE, Plaintiff and Respondent, v. ANDRE STEPHEN ALEXANDER, Defendant and Appellant, 49 Cal. 4th 846

Opinion CHIN, J. On June 4, 1980, Julie Cross, an agent of the United States Secret Service, was murdered in the line of duty. Over a decade later, defendant Andre Stephen Alexander was charged with Cross’s murder. In 1996, a jury convicted him of first degree murder (Pen. Code, § 187), and found true allegations that he personally used a firearm and that a principal was armed with a firearm (§§ 12022.5, subd. (a), 12022, subd. (a)).

The jury also found true special circumstance allegations that defendant previously had been convicted of murder (§ 190.2, subd. (a)(2)) and that the murder of Cross had been committed in the course of a robbery (§ 190.2, subd. (a)(17)). At the penalty phase of the trial, the jury returned a verdict of death. The trial court denied a motion for a new trial and the automatic motion to modify the penalty verdict (§ 190.4, subd. (e)), and it imposed the death sentence. Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Guilt Phase 1. Prosecution Evidence a.

Commission of the Murder On the evening of Wednesday, June 4, 1980, Secret Service Agents Julie Cross and Lloyd Bulman were part of a team of agents planning to serve a search warrant on a suspected counterfeiter’s residence. The two were partners whose role was to prevent the suspect’s escape should he try to flee when the warrant was served. They were seated in an unmarked car near the comer of Belford Avenue and Interceptor Street near the Los Angeles International Airport; Bulman was in the driver’s seat, and Cross was in the front passenger’s seat. Both were dressed in civilian clothes.

The agents’ vehicle contained a police radio and a 12-gauge shotgun with the standard Secret Service modifications of a shortened barrel, a pistol grip, and a folding stock. A guard attached to the barrel inhibited a person from placing a hand in front of the muzzle when firing the gun. This guard was unique to shotguns the Secret Service used because it was permanently, as opposed to temporarily, attached. On the night of the murder, the shotgun was loaded with four rounds: the first and third were slugs; the second and fourth were buckshot.

Bulman testified that, at some point before it became dark, a large, brown, two-door car with a lighter-colored roof and mst spots on the body slowly drove past the agents. The two African-American men in the car looked at the agents as they drove by. The driver was neatly groomed and had a mustache. The passenger wore a stocking cap and also had a mustache. Several minutes later, the same car with the same occupants again slowly drove by, this time parking a short distance away. The two men left the car and walked out of sight between an apartment building and a garage.

Two to three minutes later, they returned to the car and drove away. A short time later, after it was dark outside, Cross told Bulman she saw someone coming up behind the agents’ car. The agents drew their sidearms from their holsters, and Cross got out of the car. As Bulman turned to open his door, he saw someone approach the rear of the car on the driver’s side. Before Bulman could exit the car, the person opened the door and pointed a revolver at Bulman’s head. Bulman recognized the man, who was wearing a black leather jacket, as the driver of the brown car. The driver told Bulman to raise his hands.

After putting his pistol on the seat, Bulman raised his hands and identified himself as a police officer. The driver said he also was a police officer, but refused Bulman’s request to allow Bulman to show his badge. He ordered Bulman to tell Cross to drop her weapon; instead, Bulman told Cross not to do so. While the driver had the revolver pressed against Bulman’s temple, forcing his head toward the seat, Bulman heard Cross say, “What are you doing? Get your hands back up on the car.” Bulman could not see what was happening on the other side of the car.

Several seconds later, another man appeared at the driver’s door. Bulman could not see clearly who he was. While bent over, Bulman tried to use the police radio, but it did not work because the car’s ignition was not turned on. Bulman again identified himself as an officer and mentioned the police radio as proof. Saying, “He’s got a radio,” the second man reached into the car, removed the keys from the ignition, and knocked the radio’s microphone from Bulman’s hand. That man then noticed the shotgun on the floor in the front of the car, said something like, “What do we have here,” and took the shotgun.

Bulman testified that, almost immediately after the man with the shotgun left the driver’s door and went behind the car, Cross jumped into the car through the front passenger’s door. She went over the seat into the back, a panicked look on her face. A shotgun blast then came through the open passenger’s door, the shot traveling across Bulman’s lap and out through the driver’s door. Bulman grabbed the revolver pressed to his head and wrestled his way out of the car. As he did so, the driver fired the gun, but the bullet did not hit Bulman.

While Bulman and the driver struggled on the street, Bulman heard two more shotgun blasts coming from the agents’ car. The driver fired several more shots from the handgun during the struggle, but again Bulman was not hit. The struggle continued for three or four car lengths in front of the agents’ car in the middle of Interceptor Street until the driver said, “Shoot the son of a bitch.” After Bulman heard another person say, “I can’t. You’re in the way,” Bulman saw the passenger aiming the agents’ shotgun at him. The passenger was wearing a dark stocking cap and a dark-colored jacket.

Bulman and the driver next wrestled in the opposite direction, behind and past the agents’ car, each trying to put the other’s body towards the shotgun as the passenger tried to get a clear shot at Bulman. Near the comer of Interceptor and Belford, Bulman lost his balance and fell. As Bulman tried to get up, the passenger ran over and put the shotgun muzzle about six inches from Bulman’s head. The passenger fired the weapon, but the shot missed Bulman and hit the pavement. The assailants then ran off. When he realized he had not been shot, Bulman went to the car to get his pistol and check on Cross.

She was lying on the backseat and had no pulse. Bulman ran to a Secret Service surveillance van parked nearby. He and Agent Terry Torrey, who was stationed in the van, then drove back to the car. Bulman did not see the shotgun, the keys to the agents’ car, or Cross’s pistol again. Bulman was interviewed by agents that night and on numerous occasions in the following days, months, and years. He worked with a police sketch artist on June 6, 1980, and completed composite drawings of the suspects that were introduced into evidence at trial.

Several of the interview sessions involved attempts to hypnotize Bulman in the hope of helping him to remember other details of the crime. At a live lineup conducted on June 27, 1980, Bulman identified one subject, Terry Brock, as looking similar to the driver, the man with whom Bulman had struggled, except the person in the lineup had a beard. Bulman was unable to identify defendant Alexander as the passenger who fired the shotgun during a live lineup conducted on April 19, 1990, at the preliminary hearing, or at the trial.

However, at trial, Bulman testified a picture of defendant Alexander taken around 1980 looked “closest” to the person with the shotgun, who was depicted on the left side of the composite sketch trial exhibit. Agent Torrey testified that, minutes before Bulman ran to the surveillance van, he had seen a medium- to dark-colored car speeding on Belford Avenue with its lights off. Wayne Dhaler was driving his car at the intersection of Belford and Interceptor at 9:00 p.m. the night of the murder.

He testified he saw two men, one wearing a tan or brown jacket, leaning into the driver’s side door of a car parked on the street. Alvin Borges drove by the same area about the same time. He testified he saw two African-American men fighting with a White man who was on the ground. Borges saw one of the men shoot the man on the ground at almost pointblank range with a shotgun. The shooter, who used his right hand to pull the trigger and his left to hold the barrel, was wearing a brown, waist-length jacket.

Borges testified the jacket later seized from defendant’s parents’ home “could be consistent” with the one the shooter had worn. Harry Zisko testified he heard shots that evening while in his Belford Avenue apartment. He saw two men running down the street, one carrying a two-inch-diameter cylinder that was between one and one and a half feet long. Zisko heard metal hitting metal as they ran. Ten to 20 seconds later, a car waiting near the curb with its lights on pulled into the street, briefly went out of control, and then sped away with its lights off.

Frank Kerr, who lived on Belford Avenue, testified that, at approximately 9:00 p.m., he heard shouting, gunfire, and two people running on his street. Kerr then saw Bulman at the Secret Service car. When Bulman left, Ken-checked on Cross, saw she had been shot in the chest, and unsuccessfully tried to find any sign of life.

Kerr stated that a person could go through a breezeway between apartment buildings on Interceptor and wind up at an ivy-covered chain-link fence that was “next to where the Secret Service car was on the night of June 4th.” Kerr added that a person could “come around” the fence onto the street where the Secret Service car had been parked. b. Crime Scene Evidence Analysis of the crime scene, the agents’ car, and Cross’s body indicated the first round fired from the shotgun, a slug, entered the front passenger door and exited through the driver’s door.

Cross was then shot with a round of buckshot likely fired from outside the front passenger’s door. She next was shot in the chest at close range with the third round, another slug, which exited her back and traveled through the seat and floorboard. This shot probably was fired while the shooter leaned over the front seat and shot almost straight down. Each shotgun wound Cross suffered would have been fatal. Los Angeles Police Detective Marvin Engquist testified there was a fine mist of blood splattered on the back of the front seat that was not captured on the crime scene photographs of the dark upholstery.

Rod Englert, a crime scene reconstruction and bloodstain expert, testified the shotgun and the person who shot Cross would have been splattered with a fine mist of blood caused by the close-range shot into her chest. Eyeglass frames, a broken eyeglass lens, and an eyeglass case were found in the street 57 feet in front of the agents’ car and 13 feet from the curb. Agent Torrey interviewed people living in buildings nearby, but was unable to find anyone who owned the recovered eyeglasses.

The parties stipulated that on June 20, 1980, a Secret Service agent using a metal detector found a .38-caliber bullet buried in the ground between the sidewalk and chain-link fence on Interceptor, some distance in front of where the agents’ car had been parked. They also stipulated that the custodian of records at the Los Angeles County Coroner’s Office determined there was no other reported homicide near the Los Angeles International Airport on June 4, 1980. c.

Search of Defendant’s Parents’ House On November 12, 1990, Los Angeles Police Detective Richard Henry served a search warrant at the home of defendant’s parents. He found a brown leather jacket (the jacket) and a knit cap in a closet that defendant’s mother said contained defendant’s belongings. Henry also found a 1987 postcard addressed to defendant that reminded him to pick up his eyeglasses from an optometrist.

Bulman testified the cap found in the closet was similar to the one worn by the passenger; “presumptive tests,” providing a preliminary indication whether or not blood might be present on the hat, were negative. Los Angeles Police Department Crime Laboratory technicians also conducted two presumptive tests, a phenolphthalein and a luminol test, for the presence of blood on the jacket. The tests resulted in positive reactions on a stain on the left sleeve and small pinpoint spots in the chest area.

The parties stipulated the jacket was sent to another laboratory for further tests to confirm the presence of blood, that one “vigorous” swabbing of the sleeve’s stain again resulted in a positive result in a presumptive test, but that other tests to confirm the presence of human blood on the jacket were negative. The parties stipulated the negative results in the confirmation tests could mean the jacket had (1) nonhuman blood on it, (2) only a trace amount of blood insufficient to yield a confirmatory result, or (3) no human blood on it.

The parties also stipulated that a Federal Bureau of Investigation analyst determined there was insufficient DNA on the jacket for testing. The owner of the company that manufactured the jacket testified it was made no later than 1976, and would have been sold soon afterwards. Harold Ross, the optometrist who prepared defendant’s eyeglasses in 1987 and sent the reminder postcard, testified defendant’s prescription was to correct nearsightedness.

Another optometrist, Richard Hopping, examined the glasses found at the scene and determined the lens prescription corrected nearsightedness and would be especially helpful for driving at night. Both optometrists testified a change in a person’s lens prescription like the difference between the lens found at the scene and defendant’s prescription seven years later would be possible. d. Defendant’s Refusal to Stand in a Lineup On April 3, 1990, defendant was directed to stand in a live lineup related to the Cross murder investigation.

A deputy at the jail testified that defendant, who refused to stand in the lineup and became “boisterous” and “belligerent,” signed a refusal form notifying him that the lineup was for the purpose of either eliminating or identifying him as a suspect involved in a crime and that his refusal to participate could be used in court to indicate “guilty knowledge.” The form provided a space for defendant to explain his refusal.

Defendant told the deputy he was refusing on “the advice of his attorney.” Bernard Rosen, defendant’s attorney in another matter, testified he had advised defendant to refuse to stand in the lineup but had added that defendant would have to participate if a judge so ordered. On April 19, 1990, pursuant to a court order, defendant did participate in a lineup at which Bulman failed to identify him. e.

Terry Brock Defendant’s sister, Darcel Taylor, testified defendant and Terry Brock, the person whom Bulman identified as looking like the driver suspect in the murder, knew each other around the time of the Cross murder. The Brock and Alexander families had been neighbors when Taylor was young, and defendant and Terry became “associates” after defendant and Jessica Brock had a child together. Taylor did not know whether defendant and Terry were “close associates” in 1980; she saw Terry “very seldom[ly]” in 1980 and 1981.

In February 1991, Taylor wrote to Terry asking whether he had been talking to the police about defendant. She did so because defendant had told her he was concerned that Terry was talking to the police about him, and he wanted Taylor to try to contact Terry to learn if that was true. April Watson, who had been Terry’s girlfriend for several years, told Detective Henry that defendant contacted her in August and October of 1990, concerned that Terry might be talking to police.

Defendant wanted Watson to find out where Terry was and to tell him to “stay strong.” Henry confirmed that he and other officers had transported Terry from the Los Angeles County jail on several occasions in August and September of 1990. Yvette Curtis, Terry’s girlfriend from approximately 1977 to 1982, testified she met defendant through Terry around 1978 and had a brief affair with defendant in 1978 or 1979. During the affair, Curtis took a trip with defendant in which he drove a large truck north of Los Angeles to a place where the truck was unloaded. Defendant had worn glasses when driving at night.

The frames of those glasses and their case were similar to the frames and case found at the crime scene. About a month after the trip, Terry confronted defendant about the affair and repeatedly hit defendant in the head with the butt of a gun. Despite that altercation, Curtis continued to see Terry and defendant together on occasion, and she knew they were associates at the time Cross was murdered. Curtis testified that, just before 11:00 p.m. on June 4, 1980, Terry came to her apartment, looking nervous or excited.

He said he needed “to watch the news” about the female Secret Service agent who was murdered “by the airport.” Curtis added that she had seen Terry with a .38-caliber revolver two weeks before the murder. Defendant’s address book, recovered by law enforcement in May 1991, contained a telephone number for Terry Brock and April Watson. f. Defendant’s Employment at Swift Foods Both Arthur Jackson and defendant drove trucks for Swift Foods in Los Angeles in 1980.

Jackson testified defendant drove a particular tractor-trailer truck for deliveries to San Francisco and that the truck would be gone on Monday and Thursday mornings when Jackson came to work. On a few occasions, Jackson was at work when defendant returned from San Francisco on Tuesday and Friday evenings. Jackson had seen defendant driving a medium-sized faded brown car with a lighter-colored top.

Richard Lamirande, warehouse manager at Swift Foods from 1977 to 1979, testified that, during those years, defendant usually left Sunday night to make a delivery to San Francisco and returned Tuesday afternoon, left Thursday morning to make another delivery and returned Friday afternoon. Lamirande said the seized jacket looked like one defendant wore while they worked at Swift Foods. g. Jessica Brock Jessica Brock, Terry’s sister, had a child by defendant in May 1978.

Her testimony varied between direct and cross-examination and was inconsistent with her various prior out-of-court statements to police and the defense. The version most helpful to the prosecution was based primarily on a statement she gave police in 1990. In that version, Jessica said defendant came to her apartment after midnight the night of the Cross murder with “blood spatters, little specks of blood” on his chest and left arm and was carrying a bag containing what looked like a dark “crowbar” and a wooden object that could have been the butt of a handgun.

He washed blood off of the crowbar-like object, was very concerned about whether police were outside the apartment, and told Jessica he had had to “take somebody out” near the airport, that “it was either him or them.” When police later showed Jessica the barrel of a Secret Service shotgun with its unique handguard, she said it was “exactly” the same item she had seen defendant carry and clean that night. She said around 1980 defendant often wore knit caps similar to the one seized from his parents’ house. Jessica testified her relationship with defendant ended because he had an affair with Eileen Smith.

Jessica felt pressured by defendant’s family and her own family not to testify. She testified defendant’s mother told her she was the prosecution’s star witness and there was no case against defendant without her testimony. 2. Defense Evidence Beverly Perry and Luis Jimenez, both employees of Swift Foods, testified they did not see defendant wearing eyeglasses around 1980. Carlos Jimenez also worked at Swift Foods; he testified he did not recall seeing defendant wear glasses around 1980. In 1980, Nina Miller was the girlfriend of Charles Brock, brother of Terry and Jessica.

Miller testified, and earlier had given a statement to police to the same effect, that in the early morning hours of June 5, 1980, she, Charles, and others picked up a friend at the Venice police station and returned to the friend’s apartment. Terry was waiting at the apartment building, lying in his car. Once inside, Terry participated in sawing off the barrel of a shotgun and demonstrated shooting that gun, saying, “This is how I shot it.” Miller said that, at a later date, she heard Charles say “the Secret Service agent must have played dead” because the agent had not picked Charles out of a lineup.

She added that Charles once described to her a shotgun with a folding stock like the Secret Service shotgun. Eileen Smith had a romantic relationship with defendant and lived with him in 1980. She testified she never saw defendant wear prescription glasses before 1981, when she helped him buy a pair. She said in 1980 defendant drove a black Buick Park Avenue and that he sometimes had made deliveries for Swift Foods in the middle of the week and was gone on Wednesdays.

She said there were other jackets in the closet Detective Henry searched, and that some clothes in it belonged to her, her son, and defendant’s brother. Smith testified that defendant did not “hang out” with Terry after Terry hit defendant in the head with a gun. Defendant’s father testified Jessica Brock told him she had lied in her statements to police after they had threatened her but that she would tell the truth at trial.

He denied ever having contacted witnesses to pressure them not to testify or to change their testimony, although the prosecutor cross-examined him regarding his contacts with various witnesses in the case. He also denied previously trying to “pay off’ a witness in a case against defendant involving a person named Dorothy Tyre. Former Los Angeles Police Detective Michael Thies testified that, in Bulman’s statements to police after the murder, Bulman did not say the struggle with the driver initially occurred in front of the agents’ car.

Bulman’s description of the suspect with the shotgun contained in Thies’s report and the all-points bulletin Thies issued did not include that that suspect had a mustache, although the final composite of that individual did. Thies said he believed Bulman told him during their initial interview that the suspect with the shotgun had a mustache, but he agreed that he normally would have included such an important detail in his notes and the bulletin if Bulman had so stated.

Secret Service Agent Frank Renzi testified his notes of Bulman’s description of the suspect with the shotgun similarly did not include mention of a mustache, but he added that he might not have heard that part of Bulman’s description of that suspect. Renzi’s notes indicated that Bulman did describe the other suspect as having a neatly trimmed moustache. 3. Prosecution Rebuttal Evidence Kevin McHugh worked at Swift Foods between 1977 and 1980. He testified he twice saw defendant wearing eyeglasses while reading.

Detective Henry testified that, in a call intercepted pursuant to a court-authorized wiretap, defendant’s mother told Eileen Smith that, at defendant’s request, she was listing things she wanted Smith to remember for her testimony that might help defeat a pending motion in the case. Henry also testified that the closet he searched appeared to contain only defendant’s clothes.

Henry added that, shown the barrel of a Secret Service shotgun, Jessica Brock told him it was the object she had seen defendant “washing the blood off of.” Henry also testified Jessica described a square wooden bottom of the “gun butt” of a revolver as the object she saw protruding from the bag defendant brought to her apartment on June 5, 1980. Dorothy Tyre testified defendant took coins, checks, a purse, and a wallet from her on December 17, 1972. Tyre said she pressed charges against defendant despite his parents’ attempts to persuade her not to do so. 4.

The Special Circumstances Allegations During a bifurcated portion of the guilt trial, the prosecution, in support of the prior-murder special-circumstance allegation, presented defendant’s certified prison records and fingerprint records, which established that on July 19, 1990, he was convicted of three counts of first degree murder. Detective Henry, the investigating officer in that case, testified he was in court when the jury convicted defendant of those murders.

During this part of the trial, the prosecution did not present any new evidence related to the robbery-murder special circumstance, and no defense evidence was presented. B. Penalty Phase 1. Prosecution Evidence The prosecution presented evidence concerning six prior incidents of defendant’s criminal behavior. On April 8, 1970, defendant was stopped for driving an unsafe car that was too low to the ground. Defendant was verbally abusive to the police officers. He was arrested after he tried to run away when they issued him a ticket.

On December 17, 1972, defendant and another person, both armed with revolvers, entered Dorothy Tyre’s home and robbed her of several items. This incident led to defendant’s conviction on July 17, 1973, for first degree robbery and first degree burglary, with an enhancement for being armed with a firearm. On May 30, 1977, defendant was part of a crowd of bystanders who interfered with police officers in the process of arresting two men. Defendant had to be handcuffed and placed in a patrol car so that the officers could complete the arrest safely.

On July 25, 1984, defendant shot James Williams in the arm for no apparent reason. The two men lived in the same apartment complex. On April 9, 1988, while incarcerated in a Los Angeles County jail, defendant struck a sheriff’s deputy and held him in a chokehold. Other deputies had to physically subdue defendant. The prosecution also presented several photographs of the crime scene and the victims in the triple murder of which defendant was convicted in 1990. Two of the victims had been shot in the head.

Cheryl Meyers, a San Diego Police Department captain who had worked with Julie Cross before she joined the Secret Service, Cross’s older brother, and Agent Bulman testified about Agent Cross and the impact her death had on them. Bulman then testified about how he personally was affected by the events of June 4, 1980. 2. Defense Evidence Deputy Sheriff Dave Sher testified defendant caused no problems and served as spokesman for inmates on his row while confined in the county jail during the trial proceedings.

Lazaro Simone, a jail inmate, testified defendant was helpful and generous toward other inmates and was respectful toward jail staff. Defendant’s parents, two siblings, four children, current and former girlfriends Debra Edwards and Eileen Smith, and a family friend testified consistently with each other concerning defendant’s history. They described him as a loving and supportive son, brother, and father who fell into trouble due to drug use and associating with the wrong people. Defendant voluntarily entered a drug treatment program in approximately 1984.

These witnesses, and an officer of the Swift Foods corporation while defendant worked there, described defendant as a hard and conscientious worker. Defendant’s family members testified that, in their view, defendant did not deserve the death penalty. Defendant recounted his personal history and tried to explain or minimize his culpability in the criminal incidents the prosecution presented in aggravation. He denied committing the triple murder and the murder of Agent Cross. II. Discussion A. Pretrial Claims 1.

Denial of Motion to Appoint Madelynn Kopple as Trial Counsel Defendant contends the trial court abused its discretion by denying his request to continue Madelynn Kopple’s appointment as his attorney and thereby violated his state and federal right to the assistance of counsel. In response to the People’s claim that review of this decision is barred by the “law of the case” doctrine, he claims the doctrine does not apply because “exceptional circumstances” justify review, namely that the Court of Appeal’s decision is “manifestly unjust.” (See England v.

Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795 [97 P.2d 813].) a. Background On October 1, 1992, defendant was remanded into custody for the Cross murder. He asserted his rights under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], and was granted leave to proceed in propria persona. Attorney Madelynn Kopple was appointed as advisory counsel. On March 10, 1993, she submitted an attorney substitution form, seeking to have herself appointed as attorney of record.

She withdrew her request once told she could not be appointed and receive payment for her services without following local requirements for capital appointments, including that the public defender and alternate defense counsel first decline appointment and that the appointment must be filled by an attorney on the Central District’s death penalty “bar panel.” The preliminary hearing was set for July 13, 1993.

Kopple filed four motions prior to that date: a motion to continue the hearing; a 45-page motion to strike the prior-murder special-circumstance allegation; an 11-page motion to suppress testimony of witnesses who were hypnotized during the police investigation; and a 10-page motion to dismiss the case for prejudicial prearrest delay. Kopple signed these motions as defendant’s “advisory counsel.” Defendant did not sign them. The motion to continue was based on the fact that Kopple was scheduled to be in trial on an unrelated case.

At the May 24, 1993 hearing on that motion, Kopple said she was appearing “on behalf of’ defendant, and she referred to this motion and the motion to strike as motions that “I filed.” Other than agreeing to the continuance, defendant said nothing at that hearing. At a hearing on July 7, 1993, Kopple appeared without defendant and said he would be making a motion to substitute her as attorney of record. She presented declarations from the public defender and alternate defense counsel stating they would not represent defendant because of conflicts of interest.

Despite acknowledging what the court described as a “hullabaloo” regarding her qualifications, Kopple represented that she was on the “bar panel” and qualified to receive a special circumstances appointment, and that she understood it was “mandatory” that the court appoint her because she had been advisory counsel for over six months. She added, “I’m thoroughly familiar with the case,” defendant “wants me as lead counsel,” and, if she were not appointed as counsel of record, defendant would not be ready to proceed with the preliminary hearing scheduled to start the following week.

On July 12, 1993, defendant filed a motion to substitute Kopple as counsel of record; the next day, the court indicated it had told the court clerk that Kopple “would qualify to serve as counsel,” granted the motion, and terminated defendant’s in propria persona status. Kopple represented defendant during the preliminary hearing, after which the court denied the motion to strike the prior-murder special-circumstance allegation and denied, without prejudice, the motion to dismiss for delay. The court excluded no testimony based on a witness’s having been hypnotized.

Defendant was bound over to superior court and, on August 2, 1993, he was arraigned before Judge Ito. Kopple appeared with defendant but did not mention that she had been appointed as counsel in municipal court. Judge Ito assigned the matter to Judge Horan for trial. Later that morning, when Judge Horan questioned her status as appointed counsel, Kopple said she had been appointed in municipal court and assumed her appointment would continue.

Judge Horan returned the matter to Judge Ito to clarify Kopple’s status because she was “not on the list,” presumably a reference to “the Superior Court’s approved list of death penalty case attorneys.” That afternoon, Judge Ito commented that he had assumed Kopple “was privately retained since she had announced ready to proceed with the arraignment and did not request to be appointed to represent [defendant].” Kopple reiterated that she had not mentioned her status as appointed counsel because she assumed the appointment automatically would continue.

Judge Ito relieved her because, he said, given the charge, “this is something I have to refer to our contract,” presumably another reference to the arrangements for appointments in special circumstances cases. Kopple then produced written opposition to her removal as defendant’s attorney. When Judge Ito took the opposition under submission and set a hearing for the next day, Kopple noted that she had filed a motion for the appointment of Attorney Barry Levin as cocounsel and asked the court to consider that motion as well.

Judge Ito conducted an in camera hearing on August 3, 1993, after which he appointed Attorney Penelope Watson as defendant’s counsel, subject to her evaluation of whether she could accept the appointment and to Judge Ito’s continued consideration of defendant’s opposition to Kopple’s removal.

Judge Ito issued a written order declining to appoint Kopple as defendant’s attorney, noting that she had applied for, but was denied, admission to “the Superior Court’s approved list of death penalty case attorneys.” The order expressed concern that Kopple had acted inappropriately as de facto counsel of record in municipal court, by improperly “billing for services not necessary or authorized,” including filing the motion to strike a special circumstance allegation, and generally preparing for trial, when she had been appointed only as advisory counsel for the preliminary hearing.

The order noted that Kopple submitted bills totaling over $50,000 for work as advisory counsel for the period up to one month before the preliminary hearing, an amount Judge Ito found to be “excessive.” Judge Ito found that Kopple’s actions “operated as a subterfuge to allow [defendant] to retain the in custody privileges” afforded a self-represented defendant while having counsel “present [his] case.” The order noted that defendant based his preference for Kopple’s appointment on no “specific or unique reason” other than his trust and confidence in her.

Finding no indication that “Kopple alone possesses a quality or talent necessary to represent [defendant],” and that the credibility and substance of the “claim of preference” was “undermine[d]” by his agreeing to the motion to appoint Cocounsel Levin, who had “no prior contact with either the case or [defendant],” Judge Ito continued Watson’s appointment and referred the case to the trial court. On August 17, 1993, defendant challenged Judge Ito’s refusal to continue Kopple’s appointment by filing a petition for writ of mandate in the Court of Appeal.

That court denied the writ because the supplied record was insufficient for adequate review, and because, based on the record provided, defendant failed to demonstrate an abuse of discretion. We granted the petition for review and transferred the matter to the Court of Appeal with directions to vacate its order denying mandate and to issue an alternative writ to be heard before that court. After briefing and oral argument, the Court of Appeal denied the petition, concluding the trial court had not abused its discretion. (Alexander v.

Superior Court (1994) 22 Cal.App.4th 901 [27 Cal.Rptr.2d 732].) The Court of Appeal denied defendant’s petition for rehearing, and, on May 19, 1994, we denied defendant’s petition for review and request for depublication of the decision. While the mandate petition was under review, defendant filed two motions in the trial court pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden), to have Watson removed from serving as his attorney. After those motions were denied, defendant filed a new motion to proceed in propria persona, which was granted on March 30, 1994.

On April 13, 1994, Attorney Robert Gerstein was appointed for the limited purpose of filing a motion for reconsideration of the order removing Kopple, and Attorney Rowan Klein was appointed as advisory counsel for defendant in the trial proceedings. The motion for reconsideration was supported by new declarations by Kopple, defendant, his father and sister, Attorneys Richard Millard, Howard Gillingham, Barry Levin, and Gigi Gordon, and a report by Dr. Samuel Miles, a psychiatrist who “explore[d] [defendant’s] motivation” for wanting Kopple to represent him.

After a hearing on the motion, in a written order filed June 13, 1994, Judge Ito denied the motion because the “purported cost savings, while usually an important factor, does not override the court’s previously expressed concerns for the integrity of the [appointment] process in this particular case under these unique circumstances.” The court considered that, at the time of its original ruling removing Kopple, she made “unprofessional” comments about the trial court and Court of Appeal, and that she unsuccessfully had applied for admission to the Orange County Superior Court’s capital case attorney panel.

Judge Ito also found that the new report and Dr. Miles’s comments amounted to “an embellishment of comments already made” and failed to demonstrate special circumstances that “require[d]” him to appoint Kopple. On July 26, 1994, at defendant’s request, Klein was appointed as counsel of record. Klein represented defendant through the completion of the trial. b.

Discussion “The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . , and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ [Citations.]” (Kowis v.

Howard (1992) 3 Cal.4th 888, 892-893 [12 Cal.Rptr.2d 728, 838 P.2d 250].) The doctrine “can apply to pretrial writ proceedings. When the appellate court issues an alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion. The resultant holding establishes law of the case upon a later appeal from the final judgment.” (Id. at p. 894.) Here, defendant sought review of the initial order removing Kopple from the case by filing a pretrial petition for writ of mandate.

An alternative writ issued, the Court of Appeal decided the matter in a published opinion, and we denied review. The Court of Appeal’s conclusion that the trial court’s initial order was not an abuse of discretion is law of the case. The claim that we should nonetheless revisit this order based on “exceptional circumstances” fails because defendant, in essence, simply asks us to reweigh the evidence presented below. (See People v.

Martinez (2003) 31 Cal.4th 673, 683-688 [3 Cal.Rptr.3d 648, 74 P.3d 748] [law of the case doctrine applies unless existing principles have been manifestly misapplied, resulting in substantial injustice, or intervening decisions have clarified the law].) However, the law of the case doctrine does not bar review of the trial court’s denial of the motion for reconsideration, which addressed new evidence and arguments and was not the subject of review. (Boyer, supra, 38 Cal.4th at p. 442 [“the law-of-the-case doctrine governs only the principles of law laid down by an appellate court, . . . and it controls the outcome [in subsequent proceedings] only to the extent the evidence is substantially the same”].) We therefore review the denial of the motion to reconsider for abuse of discretion. (Drumgo v.

Superior Court (1973) 8 Cal.3d 930, 934-935 [106 Cal.Rptr. 631, 506 P.2d 1007] [“appointment of counsel to represent an indigent rests ... in the sound discretion of the trial court . . .”]; see also Harris v. Superior Court (1977) 19 Cal.3d 786, 799 [140 Cal.Rptr. 318, 567 P.2d 750] (Harris) [trial court abused its discretion when considerations in support of appointment “heavily outweighed” contrary factors, such that “only one conclusion [was] possible”]; People v.

Cole (2004) 33 Cal.4th 1158, 1187 [17 Cal.Rptr.3d 532, 95 P.3d 811] [trial court does not abuse its discretion when nothing in the record demonstrates “the relationship between defendant and [requested counsel] ever approached the depth of the relationship between the petitioners and their requested counsel in Harris”].) Although, under the law of the case, we do not directly review the initial decision to remove Kopple, our review of the denial of the motion for reconsideration requires that we evaluate the reasons underlying the initial order to the extent the court weighed defendant’s new evidence and arguments against its “previously expressed concerns for the integrity of the process.” As we recently stated, the Sixth Amendment to the federal Constitution guarantees the right to the assistance of counsel for a defense, but this guarantee “is subject to an important limitation, however: ‘[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.’ [Citation.]” (People v.

Noriega (2010) 48 Cal.4th 517, 522 [108 Cal.Rptr.3d 74, 229 P.3d 1].) Similarly, the “ ‘state Constitution does not give an indigent defendant the right to select a court-appointed attorney,’ but a trial court may abuse its discretion in refusing to appoint an attorney ‘with whom the defendant has a long-standing relationship.’ [Citation.]” (Id. at p. 523.) In deciding whether a particular attorney should be appointed to represent an indigent defendant, a trial court considers subjective factors such as a defendant’s preference for, and trust and confidence in, that attorney, as well as objective factors such as the attorney’s special familiarity with the case and any efficiencies of time and expense the attorney’s appointment would create. (People v.

Chavez (1980) 26 Cal.3d 334, 346 [161 Cal.Rptr. 762, 605 P.2d 401].) Defendant was not asking to retain counsel of his own choosing. However, even in cases involving the defendant’s constitutional right to retain an attorney of his choosing, that right can be forced to yield if the court determines the appointment at issue will result “in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” (People v. Crovedi (1966) 65 Cal.2d 199, 208 [53 Cal.Rptr. 284, 417 P.2d 868]; see People v.

Jones (2004) 33 Cal.4th 234, 244-245 [14 Cal.Rptr.3d 579, 91 P.3d 939] [removal, against a defendant’s wishes, of defense counsel because of potential conflict of interest does not violate our state Constitution].) A trial court has “wide latitude in balancing the right to counsel of choice against the needs of fairness [citation] and against the demands of its calendar [citation].

The court has, moreover, an ‘independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ [Citation.]” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152 [165 L.Ed.2d 409, 126 S.Ct. 2557].) Here, it was apparent to Judge Ito that, although Kopple had planned to become counsel of record since at least March 10, 1993, she did not pursue appointment at that time and chose to continue as “advisory counsel” because payment for her services as lead counsel was not guaranteed.

The court reasonably found that Kopple nonetheless prepared the case as though she would represent defendant as lead counsel at the preliminary hearing and beyond, billing an inordinate number of hours for her advisory role in proceedings prior to that hearing. A week before the scheduled hearing, Kopple renewed her request for appointment as lead counsel, having taken steps to ensure she would be paid, while notifying the municipal court that defendant, who on the record was his own attorney, would be unprepared to proceed if she were not appointed.

Judge Ito reasonably was concerned that Kopple had acted as de facto counsel of record without seeking permission, and perhaps had done so to allow defendant to maintain his in propria persona status in jail while being represented. In addition, Judge Ito reasonably considered Kopple’s conduct at defendant’s arraignment and subsequent hearings the same morning that called into question her ethics and honesty as an officer of the court. Judge Ito also reasonably questioned Kopple’s fitness for the appointment based on events that occurred after her removal from the case.

Although the record does not contain the “unprofessional” comments Kopple made after denial of defendant’s mandate petition, defendant’s counsel for the motion to reconsider described them as “very unfortunate” and regrettable. The court similarly reasonably recognized that the denial of Kopple’s application for admission to Orange County Superior Court’s capital case appointment panel weakened her claim of fitness for appointment, as did the fact that she previously had been denied admission to the capital case panel in the Los Angeles County Superior Court.

The court reasonably found the evidence assertedly showing that defendant personally preferred Kopple as his attorney, and that her appointment would create time and monetary savings, did not outweigh concerns about the integrity of the judicial process in this case.

That finding revealed no “ ‘arbitrary determination, capricious disposition or whimsical thinking.’ ” (Harris, supra, 19 Cal.3d at p. 796.) The court correctly noted that, unlike the circumstances in Harris, Kopple’s claim of special familiarity with the charges against defendant did not extend beyond this very case; it also pointed out that to give weight to the fact Kopple was familiar with the evidence and allegedly could proceed to trial more quickly and at less cost than newly appointed counsel could reward her for improperly acting as de facto lead counsel while appointed only as advisory counsel.

Furthermore, the court properly found nothing in the record to indicate defendant’s trust and confidence in Kopple or her role in preparing his defense was so unique that his right to effective assistance would be affected negatively if Kopple did not represent him. In addition, as the court noted, the fact that defendant acquiesced in Kopple’s request for the appointment of Cocounsel Levin, an attorney with whom defendant had no apparent prior relationship, weakened his claim that he could trust only Kopple to handle his defense.

In that regard, we note that defendant’s supposed difficulty in trusting and cooperating with any attorney other than Kopple appears to have evaporated once the issue of her representation was not being pursued and Attorney Klein was appointed as lead counsel at defendant’s request. We conclude the trial court did not abuse its discretion by denying the motion to reconsider its order removing Kopple.

Because we conclude there was no abuse of discretion, we do not consider whether defendant was prejudiced by Kopple’s absence from the case or whether any error in removing her would have been reversible without showing prejudice. 2. Denial of Motion to Dismiss Based on Delay in Bringing Charges Agent Cross was murdered on June 4, 1980, but defendant was not charged with this crime until October 1, 1992.

He contends the trial court violated his state and federal rights to due process and a fair trial by denying his motion to dismiss the charges because of this delay. “Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay.

The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 107 [109 Cal.Rptr.2d 31, 26 P.3d 357].) “ ‘In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]’ ” (People v.

Morris (1988) 46 Cal.3d 1, 37 [249 Cal.Rptr. 119, 756 P.2d 843].) On appeal defendant challenges the trial court’s finding that the loss of three types of evidence due to the delay in filing the charges did not prejudice him. The lost evidence included audio recordings of interview sessions at which investigators tried to hypnotize Agent Bulman and other witnesses; medical records from an unknown optometrist who may have prescribed defendant glasses in 1981; and swabs used in the presumptive phenolphthalein blood test on the seized jacket.

The challenged finding of no prejudice was made after a hearing on the motion to dismiss at which defendant and other witnesses testified. With regard to the items addressed on appeal, we conclude substantial evidence supports the trial court’s finding that defendant failed to prove prejudice, and the trial court therefore properly denied the motion as to those items. (See People v. Hill (1984) 37 Cal.3d 491, 499 [209 Cal.Rptr. 323, 691 P.2d 989] [prejudice, a factual question for the trial court, is reviewed for substantial evidence].) a.

Audiotapes of Hypnosis Sessions Various witnesses involved in this case, including Agent Bulman, attended interview sessions conducted by the Los Angeles Police Department during which an interviewer attempted to hypnotize them. The parties disputed whether any such attempt at hypnosis was successful, particularly focusing on whether Bulman ever was hypnotized. (See, post, pt. II.A.4.) Audio recordings of the sessions were made.

Police Captain Michael Nielsen testified at the pretrial motions hearing that he was in charge of periodically reviewing the department’s inventory of recordings of hypnosis sessions and deciding whether to retain or erase the tapes. In 1984, Nielsen decided the tapes of hypnosis sessions from this case should be erased because the reports indicated that no information not already known from prior interviews had resulted from the sessions, and, in Nielsen’s view, the tapes were of no evidentiary value because investigators present at the sessions would have taken notes and prepared reports of what transpired.

Nielsen did not listen to the tapes before ordering their destruction. Defendant contends the destruction of the tapes prejudiced him because they contained statements about what witnesses saw or heard about the murder, and the tapes of Bulman’s sessions may have helped show that Bulman had been hypnotized, which would have aided defendant’s motion to preclude Bulman from testifying at trial. Neither contention is persuasive.

To the extent defendant argues the tapes may have included statements not contained in, or that contradicted, the investigators’ reports or witnesses’ testimony at the preliminary hearing or trial, his claim is based on speculation, not proof of actual prejudice. To the extent the tapes contained the same statements contained in the reports and testimony of the witnesses, they would have been cumulative. To the extent the reports and witness testimony conflicted, defendant was able to point out the inconsistencies to the jury without the tapes.

Although, as even Nielsen testified, it might have been preferable to save the tapes, defendant has not demonstrated that he actually was prejudiced by their destruction. b. Record of 1981 Eyeglass Prescription Defendant testified at the hearing that he did not wear prescription eyeglasses before 1981 or 1982, when he went to an eye doctor on Van Nuys Boulevard. Defense investigators testified they were unable to locate any records regarding defendant’s 1981 or 1982 prescription for eyeglasses from any optometrist who practiced in that area during that time period.

Defendant argues he was prejudiced because the optometrist’s records may have indicated the glasses he received in 1981 or 1982 were his first prescription eyeglasses, from which he could argue that those found at the murder scene could not have been his. Defendant’s claim that the missing records might establish his first eyeglass prescription was in 1981 or 1982 is based on speculation. It is questionable whether defendant sufficiently established that these records ever existed, whether or not they confirmed when he first wore prescription eyeglasses.

The only evidence supporting a claim that he bought prescription eyeglasses in 1981 or 1982 was his own testimony, and the triple-hearsay testimony of a defense investigator that defendant’s girlfriend, Eileen Smith, told him she talked with a doctor who was in the area during that period and who told her she accurately had described his office interior. Although Smith also testified at trial that defendant bought prescription eyeglasses in 1981, defendant never presented corroboration of his or her testimony through receipts or other records.

In any event, if there were optometrist records from those years stating that defendant previously had not worn prescription eyeglasses, such information, as defense counsel acknowledged at the hearing, would be based on defendant’s statements to the doctor, not the doctor’s personal knowledge. Even if records of defendant’s treatment generally would have been admissible under the business records exception to the hearsay rule (Evid. Code, § 1271), any statement by defendant in the missing records that this was his first eyeglass prescription would have been inadmissible in light of its double-hearsay nature.

Defendant has not explained how the records otherwise could have led to admissible evidence on the issue. (People v. Hamilton (1963) 60 Cal.2d 105, 131 [32 Cal.Rptr. 4, 383 P.2d 412] [the business records exception, under then effective § 1953f of the Code Civ. Proc., did “ ‘not make the record admissible when oral testimony of the same facts would be inadmissible’ ”]; see also People v. Williams (1960) 187 Cal.App.2d 355, 365 [9 Cal.Rptr. 722] [a medical history given to a physician is not admissible “as substantive proof of the facts so stated” by the patient]; cf. Evid.

Code, §§ 1251 [statement of declarant’s previously existing physical state only admissible if declarant is unavailable and the physical state is itself an issue in the action and is not offered to prove any other fact], 1252 [statements for purpose of medical diagnosis or treatment are admissible only when made by a minor describing

an act of child abuse].) We also note that at trial defendant presented testimony of several witnesses who said he did not wear prescription glasses at the time of the murder. Accordingly, substantial evidence supports the trial court’s finding that defendant’s inability to locate the alleged optometrist’s records did not actually prejudice his defense. c. Swabs from the Presumptive Blood Test on Defendant’s Jacket Gregory Matheson, a Los Angeles Police Department laboratory forensic chemist, performed the phenolphthalein test on the stain on the seized jacket.

Matheson testified at the motion hearing that, if there is blood on a swab taken from a stain on an item, there will be an immediate change in color when chemical reagents used in the test are added. Matheson explained that all swabs subjected to the test turn the same color within five minutes even if there is no blood, and that the reagents destroy the substance on the swab being tested. Thus, Matheson discarded the swabs once he had observed the immediate color change that presumptively indicated the presence of blood.

This testimony established that swabs generated in the phenolphthalein test were not lost through delay in bringing the charges; rather, they were discarded soon after the test was complete because their evidentiary value dissipated within minutes of the test. Even if defendant had been charged or brought to trial on the day the tests were performed and the swabs still were available, they would have been of no apparent evidentiary value.

Similarly, to the extent defendant contends Matheson’s failure to photograph the reaction constitutes prejudicial loss of evidence, even assuming such photographs could have served any evidentiary purpose, no connection exists between the absence of photographs and the delay in bringing the charges. We also observe that defendant has provided no evidence to indicate that preserving the test results would have been helpful to him, other than speculation that perhaps the results were inconsistent with Matheson’s testimony.

The likelihood that defendant’s speculation is accurate is lessened by the fact that the second lab also reported a positive phenolphthalein test result on the same jacket stain. For these reasons, the trial court’s finding that defendant failed to show prejudice from prearrest delay regarding the “loss” of the swabs was supported by substantial evidence. 3. Denial of Motion to Dismiss for Failure to Preserve Evidence In the trial court defendant also filed a motion to dismiss pursuant to California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528] (Trombetta) and Arizona v.

Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281, 109 S.Ct. 333], for violation of his due process rights based on the police department’s failure to preserve exculpatory evidence. The motion encompassed the June 6, 1980 tape recording of the attempted hypnosis session with Agent Bulman, the original composite drawings Bulman and the police sketch artist created, and the blood test swabs. The trial court denied the motion, finding defendant had not shown that the missing evidence had any exculpatory value. Defendant challenges this ruling.

The police sketch artist who prepared the composite drawings testified at the preliminary hearing that they were completed before Bulman’s hypnosis session on June 6, 1980. Following the artist’s normal procedures, those drawings were photocopied, and then minimal modifications may have been made to them after the hypnosis session. The original drawings could not be found at the time of the preliminary hearing, but photographs of the original drawings were admitted at trial.

Defendant presented the two photocopies of the original composites, and he contended the possible lack of a mustache in the prehypnosis session drawing supported his claim that Bulman was hypnotized during the later interview session and had recalled the mustache while hypnotized. However, as the trial court noted, the defense’s proffered prehypnosis composite of the suspect who fired the shotgun had no chin or

section under the nose, besides not having a mustache, which supported the prosecutor’s explanation that what defendant proffered was merely a bad photocopy. On appeal, defendant contends the procedure of altering the original drawings after the hypnosis session, rather than preserving them for comparison with any posthypnosis session versions, inhibited his ability to establish Bulman was, in fact, hypnotized during the session and recalled the mustache while under hypnosis.

Due process requires the state preserve evidence in its possession where it is reasonable to expect the evidence would play a significant role in the defense. (People v.

Beeler (1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 607, 891 P.2d 153].) The evidence must “possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Trombetta, supra, 467 U.S. at p. 489.) As we discussed regarding defendant’s motion to dismiss because of precharging delay, his claim that the erased audiotape had exculpatory value is based on speculation that something on it would have contradicted the evidence and testimony tending to show that Agent Bulman was not hypnotized.

Similarly, any supposed exculpatory value lost by the failure to preserve the original composite drawings is based on speculation that the mustache was added later, despite the fact that the evidence before the trial court, including testimony of the percipient witnesses, contradicted that claim. Bulman at all times described the shotgun-wielding suspect as having a mustache and attributed the differences in the copies defense counsel showed him to poor photocopying.

Bulman’s testimony is consistent with the sketch artist’s explanation of his procedures and the fact that, if any changes had been made to the original composite sketch on June 6, 1980, they were so minor as to have been joked about after the session. Finally, as the trial court noted, the only evidence in the record was that the presumptive blood tests were inculpatory.

Defendant speculates that the swabs and photographs of the results might have contradicted what the analyst reported, but he has not shown failure to preserve the test results, to the extent possible, resulted in destruction of exculpatory evidence.

We agree with the trial court that defendant failed to sustain his burden of proving the threshold requirement that the unavailable evidence had any exculpatory value, and therefore the exculpatory value of these items could not have been apparent before they were “destroyed.” As the trial court noted, it appears the failure to preserve these items more likely could have tended to harm the prosecution’s case. Because defendant failed to prove the destruction of the items made his trial fundamentally unfair, the failure to preserve them became an issue for the jury to weigh in its decision. 4.

Denial of Motion to Preclude Agent Bulman’s Testimony Because of the Use of Hypnosis Agent Bulman participated in five interviews during which an interviewer tried to hypnotize him in an attempt to obtain new information about the murder. Three sessions occurred in June and July of 1980; two were in May of 1987. In 1982, we concluded in People v. Shirley (1982) 31 Cal.3d 18, 23 [181 Cal.Rptr. 243, 723 P.2d 1354] (Shirley), that the use of hypnosis for the purpose of “refreshing” a witness’s memory generally was not accepted as a reliable practice in the scientific community.

We held that, because of the strong likelihood that hypnosis would lead to false memories and an inability effectively to explore the veracity of the witness’s recollections upon examination at trial, “the testimony of a witness who has undergone hypnosis for the purpose of restoring his memory of the events in issue is inadmissible as to all matters relating to those events, from the time of the hypnotic session forward.” (Id. at pp. 66-67.) In 1984, however, the Legislature enacted

section 795 of the Evidence Code, which allows the admission of testimony of a witness who has been hypnotized if certain conditions are satisfied. Thereafter, we decided in People v. Hayes (1989) 49 Cal.3d 1260 [265 Cal.Rptr. 132, 783 P.2d 719] that a witness who had been hypnotized before January 1, 1985, when

section 795 became effective, would be permitted to testify about prehypnotic memories that are found to have been recalled and related to others before the witness was hypnotized, and that the additional requirements

section 795 imposed would not be applied retroactively when the witness was hypnotized before its effective date. (Hayes, at pp. 1273-1274.) Pursuant to Shirley and Hayes, defendant made a motion to preclude Bulman from testifying at trial. In response, the prosecution argued Bulman had not been hypnotized at the sessions, but that, if he had, his testimony was admissible nonetheless. The trial court heard testimony from Bulman, those who attempted to hypnotize him, and prosecution and defense hypnosis experts; it also watched the video recording of the 1987 sessions.

In general, Bulman, the officers who tried to hypnotize him in 1980, and the prosecution’s expert testified that Bulman was not hypnotized to any meaningful extent during any of the sessions. Dr. Harley Stock, the hypnotist who conducted the 1987 sessions, testified Bulman was in and out of a hypnotic state at various points in the sessions, but Dr. Stock did not believe Bulman’s memory of the events could have been affected. Defendant’s expert testified Bulman had been hypnotized when he recounted the murder in 1987, and that his memory may have been affected by the hypnosis.

The trial court resolved the conflicting evidence in favor of the prosecution.

Finding “there was no hypnosis” of Bulman as that state is “described in Shirley,” the court suggested that what had happened was “the mere attempt to hypnotize a witness.” Noting that experts could not “agree as to what took place” and that it carefully had watched the available tapes and listened to extensive testimony on the issue, the court found “nothing to convince [it] . . . that Agent Bulman was placed ... in that mental status that Shirley is concerned about.” With regard to each session, it concluded there “is absolutely no evidence” of “any success in putting Agent Bulman in that state known as hypnosis under Shirley.” On appeal, defendant contends the trial court’s decision was wrong as a factual matter, the court violated

section 795 because it based its decision on an improper legal

interpretation of the provision, and its application of the holding of Hayes, that

section 795 did not apply retroactively to the 1980 hypnosis sessions, violated his right to equal protection of the law under the federal and state Constitutions. Subdivision (

a) of

section 795 provides, in part, that “[t]he testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events that are the subject of the witness’s testimony, if all of the following conditions are met. . . .” Subdivision (a)(1) through (4) sets forth conditions on the type of testimony permitted and procedures that must be followed during the hypnosis session in order for the testimony to be admissible. Subdivision (

b) of

section 795 provides that “[n]othing in this

section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness.” There is no question that, were it not for the trial court’s finding that Bulman had not been hypnotized, Bulman’s testimony would be subject to Shirley and Hayes because, as the trial court noted, a law enforcement officer was present during the sessions, contrary to

section 795, subdivision (a)(3)(D). Defendant contends the trial court erroneously interpreted the term “undergone hypnosis” in

section 795, subdivision (a), as requiring that the attempt to hypnotize the witness be successful. This contention is without merit.

Section 795 does not, by itself, exclude any evidence. Its plain language makes evidence meeting its requirements “not inadmissible,” i.e., it allows the use of evidence that otherwise would be excluded. The use of the double negative is significant. Our decision in Shirley prohibited the admission of all future testimony by a witness who had been hypnotized.

Section 795’s enactment two years later tempered Shirley’s effect by allowing some witnesses who had been hypnotized to testify under certain conditions. (People v. Guerra, supra, 37 Cal.3d at p. 430, fn. 1 (conc. opn. of Kaus, J.) [§ 795 “modifies Shirley by authorizing a witness who has previously undergone hypnosis to testify to matters which the witness recalled and related prior to the hypnosis, so long as a number of specified safeguards are followed”].) It is the holding of Shirley, not

section 795, that is the basis for excluding a previously hypnotized witness’s testimony, a situation somewhat akin to the operation of the hearsay rule and the statutory exceptions to that rule. (See People v. Alcala (1992) 4 Cal.4th 742, 773, fn. 10 [15 Cal.Rptr.2d 432, 842 P.2d 1192] [§ 795 sets forth conditions “which, if met, permit a trial court to determine that the testimony of a previously hypnotized witness is not rendered inadmissible by ‘the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witnesses] testimony’ ”]; Evid.

Code, §§ 1200, subd. (b) [hearsay evidence is inadmissible, except as provided by law], 1220 [an admission of a party “is not made inadmissible by the hearsay rule”].) Defendant’s claim on appeal that the trial court misinterpreted

section 795 has no relevance here because, having never found that Bulman’s testimony was subject to exclusion under Shirley, the trial court did not decide whether

section 795 nonetheless would permit Bulman to testify. The issue we must decide is whether the trial court’s decision conflicts with Shirley. Our holding in Shirley, that use of hypnosis to “refresh” a witness’s memory was not accepted generally as a reliable practice in the scientific community and that a witness who had undergone hypnosis therefore should not be permitted to testify regarding the subject of the hypnosis, rested on the rule for the introduction of scientific evidence set forth in Frye v. U.S. (D.C. Cir. 1923) 54 U.S.

App.D.C. 46 [293 Fed. 1013], (Shirley, supra, 31 Cal.3d at p. 66.) The touchstone of the Frye test, and our holding in Shirley, is the “reliability” of the proffered scientific evidence. (People v. Kelly (1976) 17 Cal.3d 24, 40 [130 Cal.Rptr. 144, 549 P.2d 1240].) When a witness actually has not been hypnotized in any meaningful way, despite attempts to do so, the concerns expressed in Shirley regarding reliability of the witness’s testimony, namely, introduction of false memories and the tendency for the witness to develop unjustified confidence in recollections, are not at issue.

The reliability of such a witness is that of any other witness, and the ensuing testimony similarly would be subject to a credibility attack based on circumstances surrounding the witness’s recollections.

The trial court noted that determining whether a witness actually has been hypnotized can be difficult, but it then properly addressed the foundational question whether Bulman had been hypnotized as that state is “described in Shirley.” It found Bulman never had been hypnotized for purposes of Shirley, i.e., he never, had been placed in a state of “heightened suggestibility,” and therefore he was never questioned about the murder in a state in which false confidence in his recollections or false memories were likely to occur.

Defendant disputes the trial court’s resolution of the conflicting documentary evidence, lay witness testimony, and expert opinions, but, as with other types of factual findings, “ ‘[o]n appeal all presumptions favor proper exercise . . ” of the trial court’s power to “ ‘judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences’ ” and its “ ‘findings—whether express or implied—must be upheld if supported by substantial evidence.’ ” (People v.

James (1977) 19 Cal.3d 99, 107 [137 Cal.Rptr. 447, 561 P.2d 1135] (James).) Here, each witness involved in the 1980 sessions testified Bulman never was hypnotized during them; the only contrary evidence consists of somewhat ambiguous statements in written reports of the sessions. Although, as the trial court noted, the destruction of the recordings of those sessions could be viewed as suspicious, we agree with the trial court that any implication arising from this circumstance is insufficient to overcome the evidence that Bulman never was hypnotized as we envisioned that state in Shirley.

Evidence concerning the 1987 sessions was closer. Bulman gave conflicting statements about whether he thought he had been hypnotized. He said he did not believe he was hypnotized in a way that affected his memory of the murder, but he thought he may have been hypnotized when, while he concentrated on raising his arm in response to Dr. Stock’s suggestions, his arm did rise, and when he had a particularly strong “flashback” of the shotgun being fired at his head.

The experts more or less agreed that Bulman was hypnotized to some degree at some point or points during the sessions, especially during the arm raising, but they disagreed about whether Bulman was in an altered mental state when questioned about the murder, such that false memories or false confidence in existing memories might have occurred. Dr. Stock testified first that he did not believe Bulman’s memory had been affected, but later stated that Bulman’s “state of consciousness” “fluctuated” during questioning about the murder. In Dr.

Spiegel’s opinion, Bulman was in a very light hypnotic state during the preliminary “induction” stage of the sessions, but was not hypnotized at all when questioned about the murder. Dr. Karlin was of the opinion that Bulman was in a hypnotic state of varying degrees throughout the questioning about the murder. The experts disputed, based on Bulman’s extremely low scores on two tests that measure “hypnosis susceptibility,” whether, as Dr. Spiegel believed, Bulman psychologically was unable to be hypnotized to any significant degree, or, as Dr.

Karlin believed, simply was unwilling to be hypnotized when the tests were conducted. On appeal defendant essentially claims the evidence supports a finding that Bulman was hypnotized at the 1987 sessions when questioned about the murder, implicating the dangers detailed in Shirley. Our role, however, is not to reweigh the evidence, but to determine whether substantial evidence supports the trial court’s choices between conflicting evidence and reasonable inferences arising from such evidence. Here, Bulman’s testimony, the testimony of those who witnessed the 1980 sessions, and Dr.

Spiegel’s expert testimony amply support the trial court’s determination that Bulman was not hypnotized within the meaning of Shirley. Finding substantial evidence supports the trial court’s decision, we uphold it on appeal. (James, supra, 19 Cal.3d at p. 107.) Accordingly, we conclude the trial court did not err by permitting Agent Bulman to testify. 5.

Denial of Motion to Dismiss Due to Prosecution’s Interception of Conversation Involving Defendant, Defendant’s Mother, and a Defense Investigator Defendant contends the monitoring and recording of a telephone call involving himself, his mother, and a defense investigator violated his state statutory rights and his state and federal constitutional rights. We perceive defendant as raising five distinct possible grounds for claims of error: (1) a statutory violation of Evidence Code

section 954, the attorney-client privilege; (2) a violation of his federal Sixth Amendment right to counsel; (3) a violation of his federal Fifth Amendment due process right to a fair trial; (4) a violation of his federal Fifth Amendment right to substantive due process; and (5) a violation of his state constitutional right to counsel. After setting forth the factual background, we address each ground in turn.

Before jury selection began, the prosecution obtained a warrant authorizing law enforcement agents to monitor and record conversations from several telephones, including the one at the home of defendant’s parents.

The warrant’s justifications were to attempt to prevent intimidation or dissuasion of witnesses in defendant’s case and, to the extent any conversations concerning attempts to influence witnesses might be intercepted, to bolster the prosecution’s case against defendant by demonstrating his consciousness of guilt. (See CALJIC No. 2.06; CALCRIM No. 371.) During jury selection, after the wiretap operation had ended and the prosecution had provided the defense transcripts of the intercepted calls, defendant moved to dismiss the charges based on the prosecution’s having intercepted and recorded a call involving himself, his mother, and a defense investigator.

During that call, several subjects concerning the trial were discussed, including potential defense witnesses and how the defense might respond to the prosecution’s evidence. The prosecution argued the call was not privileged due to the participation of defendant’s mother, but that, in any event, the charges should not be dismissed because the prosecution gained no advantage from the intercepted call, as shown by declarations of the prosecutors and law clerks working on the case stating that they never read the transcript of the call.

The trial court sealed that transcript and continued the hearing on the motion until after trial; after the penalty phase verdict, it unsealed the transcript over defendant’s objection. On the date of sentencing, the trial court heard testimony regarding the motion from defendant, Detective Henry, and Gene Salvino, the district attorney’s investigator who recorded the call. Henry testified he supervised the wiretap operation and was present when the call was intercepted.

During the call, he sought advice from the district attorney’s office concerning whether it should be monitored and recorded, and, for the first time during the wiretap operation, attorneys from that office told Henry he should be “careful” about intercepting any call in which trial strategy was discussed. The next day, Henry sought similar advice from the judge who issued the warrant, who told Henry he “should probably be concerned” with intercepting calls involving defense investigators.

Henry then decided to “minimize” all calls involving defense investigators, meaning the recording apparatus was turned off once the person monitoring the call determined a defense investigator was participating. Henry made this decision because he doubted he adequately could explain to those involved in the wiretap operation, most of whom did not know the particulars of defendant’s case, how to determine whether a particular call involved trial strategy. All such calls were minimized for the remainder of the operation.

Henry testified he heard parts of the intercepted conversation while seeking legal advice, and he most likely later read the investigator’s log summarizing it. He could not recall whether he listened to the tape of the call near the time it was recorded; he did listen to it after the trial to prepare for the hearing on the motion to dismiss. Both Henry and investigator Salvino testified they never communicated the call’s contents to anyone on the prosecution team.

The trial court asked Henry, “And in terms of the information contained in Exhibit A, did you make any attempt to exploit or profit from that information and investigate the people mentioned in [it]?” Henry responded, “I had interviewed most of the people that I heard on these conversations prior to this conversation, but nothing related to this conversation.” Henry added that he did not use anything he heard to investigate people mentioned in the call.

Stating it was giving defendant the benefit of the doubt, the trial court found defendant had made a “prima facie showing” that the call was a privileged communication under Evidence Code

section 952. The court reasoned that, because defendant’s mother participated in the call to further his interests, her presence did not destroy the confidentiality of the conversation. The court, however, then denied the motion to dismiss because the evidence demonstrated that the interception of the call did not prejudice defendant or benefit the prosecution. The court observed that Detective Henry was confronted with an “unusual situation” when he had to decide w

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