THE PEOPLE, Plaintiff and Respondent, v. FRANKLIN LYNCH, Defendant and Appellant, 50 Cal. 4th 693

Opinion BAXTER, J. Defendant Franklin Lynch was convicted of the first degree murders of Pearl Larson, Adeline Figuerido, and Anna Constantin; the residential burglary of Larson, Figuerido, Constantin, Bessie Herrick, and Ruth Durham; and robbery of Figuerido, Constantin, Herrick, and Durham. (Pen.

Code, §§ 187, subd. (a), 189, 211, 459.) The jury also found true the special circumstance allegations of burglary murder and robbery murder as to all three murder victims, the multiple-murder special-circumstance allegation, and allegations that defendant personally inflicted great bodily injury on Herrick and Durham, who were persons 60 years of age or older. (§ 190.2, subd. (a)(3), (17); former §§ 1203.075, 1203.09, subd. (a), 12022.7.) The jury returned a death verdict, and the trial court entered a judgment of death. This appeal is automatic. (Cal. Const., art.

VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. Factual Background A. Guilt Phase 1. Prosecution evidence Between the months of June and August 1987, defendant beat and robbed, or attempted to rob, five elderly Caucasian women in their homes. Three of the victims died as a result of the attacks. (

a) Death of Pearl Larson Late in the evening on June 24, 76-year-old Pearl Larson was found dead in her home. She had lived in a comer house on Wake Avenue in San Leandro with her teenage grandson. Larson was found lying on a bed, with the card holder portion of a wallet and some coins next to her. Her hands were bound with nylon stockings. Her housecoat was pulled up over her head, and she was not wearing underwear. Subsequent investigation revealed no evidence of a sexual assault.

An autopsy revealed Larson died by asphyxia caused by a garment that was tied around her head, covering her face and part of her neck. There was bmising on her face, particularly around her left eye, caused by blunt trauma. She had a contusion on the back of her head that “went deeply into the skin of the scalp down to the bone.” The skin on her left ring finger was significantly abraded and bmised around the area of her ring. Earlier that day, between 11:30 and 11:45 a.m., Jolevia Jones, Larson’s gardener, and his cousin had arrived to work at Larson’s house.

Jones, who was approximately 80 years old, spoke with Larson for a few minutes. About 11:00 a.m. on June 24, Jacqueline Brown, who lived across the street from Larson, observed Larson’s grandson leave on a skateboard. At 11:20 a.m., she saw a man, whom she later identified as defendant, standing in Larson’s yard. Defendant walked along the side of the house, went to some bushes and appeared to be urinating, and carefully looked around. He then walked to the front of the house and Brown lost sight of him. Around noon, Brown saw defendant jump over the bushes, which were about five feet high, and run away.

Larson typically parked her car under a tree each summer morning to get it out of the sun. Between 7:30 and 8:00 p.m. on June 24, Brown observed Larson’s vehicle still parked under the tree. Bettie Agliano, a friend of Larson’s, had plans to meet with her on June 24. Agliano called Larson at home at 12:15 p.m., and at various times during the rest of the afternoon, but no one answered the telephone. (

b) Death of Adeline Figuerido On July 28, 89-year-old Adeline Figuerido was killed in her home. She lived on 143d Avenue in San Leandro with her two daughters, Marie and Olivia Figuerido. Her house was separated from the next building on the left by an undeveloped half-acre lot and Bay Area Rapid Transit tracks. Marie and Olivia made lunch for their mother around noon each day. On July 28, they left her at the house around 10:30 a.m. and returned around 11:45 a.m. to discover their mother’s body in the dining room. She was covered with a bedspread and her hands were tied behind her back with an electrical cord.

A different bedspread was wrapped around her head. The house had been ransacked, and fine jewelry and cash were missing. An autopsy revealed numerous blunt trauma injuries to Figuerido’s face, head, and neck. The bones in her face near and around her right eye, and her mandible on the left side, were fractured. There was extensive hemorrhaging in the neck area, indicating sufficient force was applied to stop circulation to the brain and to interfere with her breathing. She died from blunt trauma to the head and neck.

Between about 11:15 and 11:30 a.m. on July 28, Jan Morris, who worked across the street from the Figuerido residence, saw a man whom she later identified as defendant standing on the Figueridos’ driveway. Defendant walked down the driveway toward the front of the house, looked in both directions, turned around, and walked rapidly to the back of the house. On July 27, the day before Figuerido’s murder, between 11:00 and 11:30 a.m., Irma Casteel observed a man whom she later identified as defendant walk to the end of the dead-end street, stand there, and then turn around and walk back.

There were two comer houses at the end of the street, one of which was occupied by an 89-year-old woman, and the other by a similarly aged couple. Casteel lived about one block from the Figuerido residence. (

c) Death of Anna Constantin On August 13, 73-year-old Anna Constantin was attacked in her home. Constantin lived with her daughter, Vickie Constantin, in a home at the comer of Blossom Way and Bancroft Avenue in San Leandro. When Vickie arrived home from work that evening about 5:45 p.m., she discovered her mother had been beaten so severely she was almost unrecognizable. Some rooms were “messier” than others, items were out of place, and the back screen door had been cut. A gold bracelet, gold chains, and cash were missing from the home. Constantin was taken to Eden Hospital. Her treating physician, Dr.

Chuc Van Dang, testified that her face was swollen and braised, and she had braises on her shoulders, back, and other parts of her body. Her left maxilla, or cheekbone, and a right rib were fractured. These facial injuries and bruising were caused by blunt trauma. In addition, Constantin had an open scalp wound two inches long that extended down to the skull. The wound became infected and grew larger over time, so that eventually Constantin’s skull was visible. Dr.

Dang saw Constantin about 6:00 p.m. on August 13, and opined that her injuries had been inflicted “very recently],” and no more than six hours before 6:00 p.m. Adele Manos, who had been driving down Bancroft Avenue around 3:15 or 3:20 p.m. that day, saw a man, whom she later identified as defendant, come out from the hedges about a block from the intersection of Bancroft and Blossom, and look around. The man walked down Bancroft toward Blossom. Around 5:00 p.m., defendant sold a bracelet identified as belonging to Vickie Constantin to a secondhand dealer.

A few days later, he gave Mackie Williams, an acquaintance, two necklaces that were also identified as belonging to Vickie Constantin. Anna died on September 28 of pulmonary emboli due to deep leg vein thromboses or blood clots. Constantin’s thromboses were the result of treatment for and complications from her August 13 injuries. (

d) Attack on Ruth Durham Eighty-eight-year-old Ruth Durham lived alone on Alden Road in Hayward. Her daughter and son-in-law lived next door in a corner house at the intersection of Alden Road and Boston Road. In the late afternoon of August 15, Durham left her daughter’s house and returned home. She sat down in a chair in her living room, and shortly thereafter was struck on both sides of her face. She remembered nothing further about the attack. About 5:30 p.m., after being alerted by a neighbor, Durham’s son-in-law discovered her sitting bloody and beaten on the steps of her front porch.

She was taken to Eden Hospital. Dr. Kenneth Miller, an emergency room physician at the hospital, testified Durham had massive swelling deformities of her face. Both sides of her jaw and her right maxilla were fractured. Miller opined that Durham’s injuries were the result of blunt trauma. After leaving the hospital, Durham needed to live with her daughter because she was no longer capable of caring for herself. The screen on Durham’s back door had been tom just above the handle. Her house was ransacked, and cash and personal belongings were missing.

A man later identified as defendant had been seen by neighbors at the intersection of Alden and Boston Roads across the street from Durham’s house at about 4:30 p.m. on the day of the attack. (

e) Attack on Bessie Herrick Around 3:30 p.m. on August 17, 74-year-old Bessie Herrick and her husband, Frank Herrick, returned to their home at the comer of Royal and Bartlett Avenues in Hayward. About 10 to 15 minutes later, Frank went outside to water the garden. While engaged in this activity, he observed a man, whom he later identified as defendant, jogging on Royal Avenue. Five minutes later, Frank returned to the house, peered inside through a window, and saw defendant hitting his wife, who was lying on the floor near the fireplace. Frank entered the house through the garage, but defendant had fled.

Bessie’s purse was on the floor, and her wallet was outside the purse. An emerald ring kept in a dish in the room was missing. Bessie was taken to Eden Hospital. Her treating physician, Dr. Edwin Whitman, testified that her nose was broken, her face was swollen, and she had puncture wounds around the left eye. Her orbit and maxilla bones near her left eye were also fractured. She had suffered blunt trauma around the head and neck, and had lost nearly half a pint of blood. She identified defendant as her attacker.

Eric Hoak, an acquaintance and neighbor of the Herricks’, was a passenger in a vehicle driving on Royal Avenue around 3:00 p.m. that day and observed a man, whom he later identified as defendant, standing on the Herricks’ front porch. The man was looking around as if he were nervous. John Wulf testified that he was driving down Bartlett Avenue toward Royal Avenue around 4:30 p.m. and saw a man, whom he later identified as defendant, run at an angle across the street about 50 feet in front of Wulf’s car.

The jogger ran from the side of the street on which the Herricks’ home was located to the other side of the street, looking back over his shoulder toward the house. Wulf proceeded to his destination near the house, and shortly thereafter observed police activity at the house. (

f) Other evidence Lavinia Harvey, who was in her early 80’s, lived in a comer house on Medford Avenue in Hayward. Around 3:00 p.m. on August 12, while her husband was away from home, Harvey noticed someone walking beneath their window. Harvey grabbed an iron rod, went outside, and confronted a man she later identified as defendant. She asked defendant what he wanted, and defendant asked, “Was there a Black kid come out this garden?” Harvey said no, gave defendant permission to check a different location in the yard while she observed him, and then instructed him to leave.

Defendant did so, and Harvey reported the incident to police that day. Defendant was apprehended in Los Angeles in October 1987. In a statement to police, defendant denied involvement in these crimes. He admitted selling Constantin’s bracelet, but claimed he had obtained it in a drug deal. Defendant said he fled in August 1987 after he read in the paper that he had been connected to the theft of the bracelet. He was concerned about going to jail and thought the police were trying to kill him. 2.

Defense evidence Kurt Foell, a gemologist-appraiser, testified that the gold bracelet, identified as belonging to Vickie Constantin, was a man’s bracelet mass produced in Russia after 1945. Barbara Sullivan testified that around 4:30 p.m. on August 15, the day Ruth Durham was attacked, Sullivan saw an approximately 19-year-old Black man, wearing a red plaid flannel shirt and brown work boots, walking down the street on which Durham lived. Sullivan was unable to identify the individual she saw on the street in either a photo array containing defendant’s photograph, or a physical lineup including defendant.

Thomas Ivory testified that on July 28, the date of Figuerido’s murder, he saw a Black male walking on 143d Avenue away from Figuerido’s house about 11:45 a.m. The man tossed an object like a rock or a bottle cap as he walked. Ivory was unable to identify the man he saw in a photographic lineup or in a physical lineup including defendant. Detective Robert Dekas of the San Leandro Police Department testified that on August 19 he and Officer Jouvanicot searched the area where Ivory said he saw an object tossed. They found a fingernail file, rocks, and bottle caps. Jouvanicot took the file for laboratory testing.

Defendant also introduced evidence of inconsistent statements by victim Bessie Herrick regarding the circumstances under which she first encountered defendant. The parties stipulated to dates between June 1987 and June 1988 on which descriptions of the suspect in the crimes, or photographs or likenesses of the suspect or defendant, appeared in the Hayward Daily Review newspaper. Sergeant Kitchen of the San Leandro Police Department testified that after the murders of Larson and Figuerido, a description of the suspected killer was disseminated.

Kitchen also testified that on July 29, Lieutenant Hull of the San Leandro Police Department held a press conference to provide information regarding these murder cases and descriptions of any suspect. Dr. Elizabeth Loftus testified as an expert on eyewitness identification regarding certain general limitations on the accuracy of such identification. B. Penalty Phase 1. Prosecution evidence The prosecution introduced evidence that defendant had been convicted of burglary in 1973 and robbery in 1982. It also introduced evidence of the circumstances of the robbery.

On January 18, 1982, about 10:00 a.m., Palo Alto police responded to a woman’s cries for help coming from a residence located on Palo Alto Avenue. Police Agent Jack Schindler noticed a man, whom he later identified as defendant, inside the house, and told him to open the door. Defendant refused, and broke a window to escape. After a chase, he was arrested. A glove and a woman’s ring were found in his pocket. A second glove and a “watchcap-type hat” were found on the chase route. The victim was Rose Nimitz, an approximately 70-year-old Caucasian woman.

She was not wearing a ring, and had a cut or abrasion and swelling on her left ring finger. The ring found on defendant was later returned to her. The prosecution also introduced evidence of defendant’s misconduct in jail. On June 26, 1988, defendant had two visitors, a woman and a child. At the conclusion of the 15-minute visiting period, Alameda County Deputy Sheriffs Stephen Chiabotti and Herb Walters told defendant his time was up. Defendant continued speaking with his visitors. Chiabotti attempted to handcuff defendant for the walk back to his cell.

Defendant told Chiabotti not to handcuff him in front of his child. When Chiabotti persisted in attempting to handcuff defendant, defendant pushed Chiabotti in the chest, moving him backward several feet. Chiabotti and Walters struggled with defendant for two or three minutes before subduing him. Following the incident, defendant told Walters, “You guys fucked up. You should have killed me when you had a chance.” Three days later, on June 29, 1988, Deputy Chiabotti and another officer removed defendant from his cell, apparently in preparation for a court appearance.

Defendant, who was not handcuffed, was carrying an accordion file. He threw the file on the ground and punched Chiabotti several times in the face, knocking him into a wall. In addition, the prosecution introduced evidence of the unadjudicated murder of Agnes George. George, a Caucasian female in her late 70’s, was found dead in her Richmond home around noon on October 15, 1987. She was covered with a blanket, and her hands and feet were tied with electrical cord and rope. She had suffered blunt trauma, including a broken jaw and cheekbones, and her death resulted from traumatic head and neck injuries.

Her home had been ransacked, and a box in which she kept cash was empty. On October 7, 1987, about 1:00 p.m., a neighbor had observed a man she later identified as defendant walking very slowly down the street on which George lived, and “looking all around the neighborhood.” On October 15, between 8:30 and 9:00 a.m., Darlene Fleming, who lived across the street from George and was a close friend, heard George’s front door shut. About 9:50 a.m., Fleming saw a man she later identified as defendant standing next to George’s house.

The prosecution also introduced evidence of an unadjudicated battery on San Jose Police Officer Michael Raboum. Between 6:30 and 6:45 p.m. on January 4, 1983, Raboum, who was in uniform, observed a man he later identified as defendant walking across several front lawns. Raboum approached defendant and asked for identification. Defendant backed away and Raboum took hold of his arm. Defendant struck Raboum in the face, knocking him off balance. Defendant ran and, after a brief chase and struggle, was arrested. 2. Defense evidence Defendant presented several character witnesses.

Irish Shepherd testified that she and her husband were involved with a gospel singing group in the 1970’s. Defendant was a member of the group from 1974 to 1976, was faithful in attending rehearsals and performances, and sang a solo on their record album. Billie Rachal testified that she met defendant, who was acquainted with her son, when both boys were teenagers. In 1977, when defendant was 21 years old, Rachal’s husband died. She experienced financial difficulty, and defendant gave her $100 as a gift. In 1987, defendant stopped Rachal as she got out of her car, and asked to borrow $10.

She said she did not have the money. Defendant offered to carry in her groceries, but she declined the offer. Defendant’s mother, father, and brother testified. Defendant was bom on July 21, 1955, and had an older brother, who was a program analyst with the Internal Revenue Service as well as a minister, and a younger sister. Defendant’s parents had been married for about 39 years. His father had been a supervisor in a machine shop in Oakland before retiring. Defendant attended church regularly while growing up and was well cared for.

Defendant moved out when he was about 17 years old, got married, and had six children. His parents asked the jury to spare his fife. II. Discussion A. Pretrial Issues 1. Asserted absence of counsel at lineup Defendant contends that he was deprived of his own counsel at the live lineup in violation of the Sixth and Fourteenth Amendments to the federal Constitution, and therefore all evidence obtained as a result of the lineup should have been suppressed. We disagree. (

a) Factual background On January 22, 1988, defendant filed a motion to suppress evidence obtained in the November 4, 1987, lineup. The municipal court held an evidentiary hearing on the motion. After a complaint against defendant had been filed, and at the time the November 4 lineup was scheduled, defendant was represented by the Office of the Alameda County Public Defender. On November 2, however, the public defender announced an intention to file, and on November 3 filed, a declaration of conflict of interest.

Also on November 3, the supervising public defender filed a letter requesting that the court appoint two counsel—because of the large number of witnesses expected at the lineup—for the limited purpose of attending the lineup. Assistant Public Defender Allan Hymer, who had been assigned to defendant’s case, contacted the jail to leave a message for defendant that he would no longer be representing him, but he anticipated another attorney would be appointed.

Thomas Surh, who administered the local bar association’s court-appointed attorneys program, testified that the municipal court called his office on November 2 to notify it of the public defender’s conflict, and then again on November 3 to request two attorneys for the lineup. Valerie West and Joseph Stephens were appointed for this purpose. Subsequently, on November 6, Michael Ciraolo was appointed to represent defendant. Stephens and West met with defendant shortly before the lineup on November 4, and informed him that the public defender’s office no longer represented him.

Stephens testified that his role was to “see that the lineup was conducted in a fair fashion.” West testified that had she observed irregularities in the lineup she would have noted them in her report. Both attorneys said that in their view they did not represent defendant. The lineup was videotaped, and the videotape was reviewed by the municipal court. The court denied the motion to suppress, finding that the lineup was not suggestive or unfair, and there was no violation of defendant’s Sixth and Fourteenth Amendment rights.

Defendant later unsuccessfully filed in superior court a motion to dismiss the information under

section 995 because of his asserted lack of counsel at the lineup, and a motion to suppress any identification evidence from the lineup at trial. Both motions relied on the testimony adduced in the municipal court evidentiary hearing. (

b) Analysis A defendant has a right to counsel at a lineup conducted after the adversary judicial process has commenced. (United States v. Wade (1967) 388 U.S. 218, 236-237 [18 L.Ed.2d 1149, 87 S.Ct. 1926]; see Montejo v.

Louisiana (2009) 556 U.S. _, _ [173 L.Ed.2d 955, 129 S.Ct. 2079, 2085].) In Wade, the high court observed that in the absence of counsel, an accused lacks the ability to effectively “reconstruct at trial any unfairness that occurred at the lineup,” and that this inability “may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ courtroom identification.” (United States v.

Wade, at pp. 231-232; see id. at pp. 236-237.) Although the court left open the question whether “the presence of substitute counsel might not suffice where notification and presence of the suspect’s own counsel would result in prejudicial delay,” it also stated that “provision for substitute counsel may be justified on the ground that the substitute counsel’s presence may eliminate the hazards which render the lineup a critical stage for the presence of the suspect’s own counsel.” (Id. at p. 237, fn. 27; see People v.

Nichols (1969) 272 Cal.App.2d 59, 64 [76 Cal.Rptr. 846] [no constitutional violation when a qualified attorney, who could not serve at trial, “is appointed by a local judge where a lineup is about to take place”].) Indeed, we have observed that “counsel plays only a limited role at the lineup itself . . . .” (People v. Bustamante (1981) 30 Cal.3d 88, 99 [177 Cal.Rptr. 576, 634 P.2d 927].) Thus, “counsel ‘cannot rearrange the personnel, cross-examine, ask those in the lineup to say anything or to don any particular clothing or to make any specific gestures.

Counsel may not insist law enforcement officials hear his objection to procedures employed, nor may he compel them to adjust their lineup to his views of what is appropriate.’ ” (Id. at p. 99, fn. 7.) Rather, the “rules requiring the presence of counsel ‘were adopted for two primary reasons: to enable an accused to detect any unfairness in his confrontation with the witness, and to insure that he will be aware of any suggestion by law enforcement officers, intentional or unintentional, at the time the witness makes his identification.’ ” (People v.

Carpenter (1997) 15 Cal.4th 312, 368 [63 Cal.Rptr.2d 1, 935 P.2d 708].) Those purposes were satisfied here. Stephens and West were present at the lineup to detect any unfairness or suggestiveness, and indeed, defendant does not assert that any unfairness or suggestiveness occurred. In sum, defendant’s Sixth Amendment right to counsel at the lineup was not violated. Defendant further contends that at the time of the lineup, he was still represented by the public defender because no substitution of counsel had been approved by defendant or the court. Not so.

Surh testified that the municipal court called his office on November 2 to notify it of the public defender’s conflict, and then again on November 3 to request two attorneys for the lineup. Under these circumstances it is apparent that the court had removed the public defender from the case based on the declaration of conflict. (See former § 987.2, subd. (a), as amended by Stats. 1986, ch. 1310, § 2, p. 4640; Code Civ. Proc., § 284, subd. 2; People v. Sapp (2003) 31 Cal.4th 240, 256 [2 Cal.Rptr.3d 554, 73 P.3d 433].) 2.

Denial of Faretta motions Defendant contends the trial court erroneously denied his motions to represent himself. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta).) We conclude the trial court properly denied his motions on the basis they were untimely. (

a) Factual background Defendant appeared for arraignment in municipal court on October 27, 1987. On November 6, 1987, Michael Ciraolo was appointed to represent defendant, and on November 18, 1987, Michael Berger was appointed as cocounsel. Ciraolo and Berger represented defendant at trial. James Anderson, the prosecutor at trial, also appeared on November 18, 1987. The preliminary examination started on December 29, 1987, and was held on various dates over the ensuing eight-month period, ultimately concluding on August 15, 1988. On June 10, 1991, defendant filed a Marsden motion. (People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) At the June 12, 1991, hearing on the motion, defendant said due to limitations on his ability to perform legal research in jail he would need “a couple of weeks at the most” to articulate the areas in which he found counsel’s performance inadequate. The court granted the continuance, and because of the court’s and counsel’s schedules, the hearing was ultimately held on August 1, 1991. At the August 1 hearing, defendant said that he had been incarcerated for nearly four years.

Despite defense counsel’s statements to defendant when they began representing him that they would work closely with him on tactical decisions, this had not occurred, and defendant had not been informed of defense counsel’s strategies and preparation. As a result, defendant lacked confidence about proceeding to trial with his present attorneys. Defendant noted that Mr. Ciraolo had only met with him a few times during his nearly four years of incarceration, and refused his telephone calls.

Counsel did not adopt defendant’s suggestion made during the preliminary hearing of hiring a Black investigator, which he believed would make Black witnesses less reluctant to be interviewed.

He further observed that at the preliminary hearing defense counsel had failed to call any of defendant’s suggested witnesses or expert witnesses, had not presented an affirmative defense despite defendant’s request to do so, and had failed to promptly investigate evidence presented at the hearing which could have resulted in “that charge being dropped.” Defendant further expressed concern that defense counsel had refused to let him testify and did not call his other suggested witnesses at the

section 995 hearing regarding the assistance of counsel at the lineup. Nor had they “exhausted] all avenues on getting that matter resolved” because they “felt we were jeopardizing preserving that [issue on] appeal.

But I don’t expect to be convicted of crimes I didn’t do.” Ciraolo had told defendant that “if we were to start trial we would have about a week[’s] worth of motions to deal with before trial,” but defendant felt “even that is not a sufficient amount of arguments or motions to be dealt with in a case . . . such as mine.” He expressed the view that “if there was any concern for me as a client,” Ciraolo would not have told defendant he would probably have to withdraw from the case if “the court appointed agency doesn’t agree to pay him more.” Defendant characterized his attorneys as surrogate prosecutors, who appeared to be working against his interests.

Mr. Ciraolo responded that he had been engaged in three capital cases at the same time for a long period of time, and had recently completed in the spring of 1991 a 16-month capital trial with multiple defendants. He said, “[M]y understanding with all my clients, including Mr.

Lynch, is that the case that occurred first would have the priority.” Ciraolo said that defendant had been informed at the trial-setting conferences what the priorities and tentative dates were and “had no opposition to those dates and procedures.” He had met with defendant throughout the preliminary hearing, and on three occasions in the nearly three years since then.

Ciraolo also noted that the defense case had not been presented fully at the preliminary hearing to avoid giving the prosecutor an opportunity to negate it at trial, and that defense counsel had been successful in having several counts dismissed after the preliminary hearing. He further observed that at the hearing the parties were “dealing with very elderly alleged victims and witnesses who for a variety of reasons were not expected to be present at the time of trial.” The prosecution was entitled to and did preserve this testimony, a circumstance the defense could not prevent.

Moreover, the complexity of the case and the realities of the calendaring system required a certain cooperation with the prosecutor. Co-counsel Mr. Berger said that he met with defendant promptly whenever defendant called their office and requested a meeting, had written defendant at least twice, and had not been previously aware of defendant’s dissatisfaction with counsel.

The court denied the motion, concluding that counsel had properly and adequately represented defendant, and observing that most of defendant’s complaints about counsel related to the preliminary hearing, which had concluded nearly three years earlier. On September 4, 1991, defendant personally withdrew “his previously-entered waiver of his right to a speedy trial” and “demand[ed] to be brought to trial in this action within sixty days of the filing of this document.” The matter was transferred for trial setting.

On September 11, 1991, the case was assigned to Judge Delucchi for trial, or to “such other judge on the team as he may designate.” That same day the parties appeared before Judge Delucchi. Counsel informed the court that they had agreed to have the case put over until October 7 for either trial setting or reassignment to a different judge. They also informed the court that the statutory time to bring defendant to trial would run on November 1, 1991.

(1) Defendant’s first Faretta motion On September 27, 1991, defendant filed a typed motion to represent himself. The motion was supported by a memorandum of points and authorities and a sworn declaration. In his declaration, defendant stated he was “knowingly and in free will . . . waiving my right to appointed counsel.” Defendant further stated, “I understand the nature of [the] charges and that I am facing the possible sentence of death if convicted.” “I understand ...

I will have to abide by the rules of the court, filing motions on a timely basis and having to direct my own defense,” and “take action to hire private investigators, co-counsel, [and] ancillary defense services . . . .” “I further understand that I can[]not base an appeal for ‘ineffective assistance of counsel’ . . . upon my own performance as acting for my own counsel, unless circumstances force my ‘pro-per’ defense into being ‘ineffective’ otherwise I am fully responsible for my defense.” “I believe that as the court held in [Faretta], that I do not need to explain my background to the court nor is it the court’s duty to inquire as to why I am electing to exercise my right of self-representation. ...

I believe that I only need to fulfill the requirements of ‘knowingly and intelligently’ doing so. At this time, I am requesting to have the court honor my rights of self-representation. ... I believe I have met the requirements as outlined by Faretta.” In his memorandum of points and authorities, defendant made fewer but similar points, and “pray[ed] to the court to grant ‘Pro-Per Status’ and to order along with [my] status the use of fif[]teen (15) hours telephone time (non-collect), plus twenty (20) hours use of the typewriter[] (both to be per-week).

And all the ‘Pro-Per’ privileges accordingly so as to facilitate [my] defense as outlined in this motion.” On October 7, 1991, the parties appeared for the trial setting or reassignment conference, and for defendant’s Faretta motion. Judge Delucchi stated he would be the trial judge. At the Faretta hearing in chambers, Judge Delucchi said, “Mr.

Lynch, you’ve decided you want to go pro per on your capital case[,] correct?” Defendant replied, “Yes.” The court read at length from defendant’s declaration, including defendant’s statements that he requested self-representation and believed he had met Faretta’s requirements.

The court further recited defendant’s statements that he believed he needed only to fulfill the requirements of a knowing and intelligent exercise of his right of self-representation, and did not believe he was required to explain his legal or educational background to the court or fill out the court’s self-representation form, nor that the court had a duty to inquire as to the reason why defendant was exercising his right of self-representation. The court said, “I assume that’s still your position, Mr. Lynch[,] right?” Defendant replied, “Yes, it is.” The trial court then questioned Mr.

Ciraolo about how long he had represented defendant, and what work had been performed on the case. The court then asked defendant why he wanted to represent himself. As defendant began to respond, the court interrupted and said, “You know, your life is at stake here, man. You know.” Defendant replied, “Yes, I’m aware of that. I’m also aware of [the] charges that I’m facing. I’m also aware of, you know, the consequences that ... I may possibly suffer due to the fact that I . . . represent myself.

But my main reason is . . . because I feel that by representing myself, I can sort of somewhat guide my case ... in the direction that I feel it should be going in when . . . [defense counsel] Mr. Ciraolo has set up certain strategic . . . ideas or whatever in relation to my case. I’m not in charge.

He is in charge.” The court said, “That’s right.” Defendant continued, “So, therefore, actually, I don’t have the say-so that I feel I should have . . . within my case because, as it is, my life on the line, . . . this is what I’m trying to seek ... as far as representing myself, exercising my Sixth Amendment.” The court said, “Now, let me ask you a couple of questions in that regard. If you were granted pro per status, I notice here that you were talking about you want to take action to hire private investigators.

Correct, you want the Court to appoint private investigators in order for you to—.” Defendant interjected, “I’m not saying that I wouldn’t use or continue to use the one that I already have.” The court said, “But you need some time; right?” Defendant said, “Yes.” The court said, “Now, you’re talking about at least you either want a new private investigator or you want to use the one you already have. So, you want to avail yourself of that. You’re talking about having co-counsel represent you?” Defendant replied, “Possibly, yes.” The court said, “And you’re talking about ancillary defense service[s].

So, what are you talking about there?

You want the pro per privileges in the jail?” Defendant said, “Of course, yes.” “You want phone calls?” “Yes.” “You want a runner?” Defendant replied that he would like “[u]se of [a] typewriter and law library, whatever else is available to a—.” The court interjected, “How much time are we talking about here?” Defendant said, “Actually, I hadn’t considered any time as far as . . . how long it would take for me to go over . . . some of the . . . evidence and, you know.” The court said, “But [defense counsel] is talking about boxes, boxes of discovery.” Defendant said, “That’s what I’m saying.” The court said, “You’re going to have to review all that stuff[,] right?” Defendant said, “Yes, and there is no way that I could say exactly how long that would take.

You know.” The court said, “You’re talking about months?” Defendant said, “Yeah. I’m not sure.” The court said, “Okay,” and defendant started to speak. The court said, “Go ahead. I’m not trying to cut you off.” Defendant said, “I was just going to say I would like ... to have the right to review or to see for myself what has to be . . . gone over, ... in order to determine ... the outcome of what . . . I’m going to do.” In a question apparently directed at defense counsel, the court inquired, “Can you tell me roughly how many hours you’ve spent just reviewing the police reports?” Mr.

Ciraolo responded, “Your Honor, I think it would be better if you mention in weeks.” Ciraolo described the prosecution’s theory that the crimes contained a unique modus operandi, and noted that apparently other law enforcement agencies had sought to link defendant to similar crimes in their areas. He stated that there were “at least four boxes of reports,” and that review, categorization, and consultation with an expert “has been the accumulation of four years of preparation.” The court inquired whether Ciraolo had received the factors in aggravation from the district attorney.

He replied that he had not, but that the district attorney had informally discussed the subject matter. Ciraolo was familiar with some of the factors, but others were new to him. The court asked defendant whether he had seen any of the material regarding other cases mentioned by Mr. Ciraolo. Defendant said, “No.” The court said, “So you would need time to review all that stuff, too[,] right?” Defendant said, “Yes.” The court said that it assumed that once the prosecution filed its statement of aggravating factors, defendant would need time to review that also.

Defendant replied, “Possibly.” Defendant subsequently added, “But still, after reviewing [the] material, then I would be able to . . . say whether or not definitely I would need any additional time.” The court said, “Yeah. Well, it’s going to take you some time to review the material; right?” Defendant replied, “I’m not sure.” The court said, “Well, I mean, [defense counsel] spent weeks and weeks reviewing it. . . . You can’t get involved in this case when you’re talking about your life, Mr. Lynch, . . . just on a shoestring. Otherwise, ... it’s not a level playing field.

You know what I’m talking about?” Defendant said, “I understand. I’m just saying—.” The court interjected, “I don’t want to sit up there and have some guy just beat you to death because you don’t know what you’re doing. You know what I’m saying?” Defendant said, “Yeah.” The court said, “All right.” The court then observed the prosecution estimated trial for its case would take three to four weeks. In response to its inquiry, defense counsel said its case would take two to three weeks, and that he was not in a position to comment on any defense there might be for the penalty phase.

Defendant said, “What I want to ask you is, I seem to get that everyone beside[s] myself is sort of somewhat pushing or ready as of now ... to go to trial. I’m trying to figure out for what reason are we all of a sudden . . . ready to proceed now that, you know, I’m requesting to exercise my Sixth Amendment rights.” The court replied, “I’ll give you two reasons. One, the case is four years old . ... HD ... HD ... . Also, you withdrew your time waiver, so you get everybody jumping around here putting this case together.

HD • • • HD • • • Everybody is ready to go to trial now.” Defendant said, “But, see, actually by me requesting to represent myself, that’s somewhat in a sense requesting to vacate that time waiver.” The court said, “I understand that. . . . H[] ■ • • HD Because you’re going to need more time. I understand that.” Defendant said, “Because, truthfully, actually, the time waiver wasn’t my idea.

It was my attorney’s idea because of some strategic move or whatever.” The court said, “Whoever’s idea it is, . . . when that happens, everybody . . . gets ready to go; witnesses start getting subpoenaed; I make time in my court, I move cases out of here. So when you say, hey, I want my trial, we’ve got to give you a trial plan. So . . . that’s been started now. You see? So this is all going toward the trial. . . . [Tjhis is sent here. I didn’t say, send me [defendant]. ...

I didn’t pick you out of the hat and say, I want to try this guy tomorrow.” Defendant responded, “Yeah, well, and actually, also, before now, I’ve tried several times before now to file this motion in the court we [were] in before this, and that judge . . . put it off ... . So, it’s just now actually being heard.” The court asked, “When did you try to file this?” Defendant said, “The last time on whatever date, the last time we [were] here, the time before that we [were] in Judge—.” The court asked if defendant was referring to Judge Agretelis. Defendant said, “I guess that’s his name.” Mr.

Ciraolo was uncertain if defendant had appeared before Judge Agretelis, and wondered if defendant was referring to Judge Goodman at the August 1 Marsden hearing. Defendant did not say whether this was correct, but continued, “He says at that time that he didn’t want to hear the particular motion that I was ready to file.” The court asked if defendant meant the September 11, 1991, hearings. Defendant did not respond.

The court then said, “Okay,” and asked defendant if there was “anything else you want to tell me.” Defendant said, “That about covers it.” The court said, “You made it clear you want to rely on this,” apparently referring to the Faretta motion.

Defendant said, “Yes.” When the court asked if defendant would refuse to fill out a pro. per. form, defendant said that he would review the form, but added that “my motion itself pretty much covers everything that’s in the form.” The court subsequently inquired, “[Y]ou don’t think it’s anybody’s business to inquire as to your past education or legal expertise[,] right?” Defendant said, “To a certain degree, yes, to make sure that I’m competent, . . . and able to understand and conduct myself. . . .” The court asked, “[H]ave you ever represented yourself before?” Defendant replied, “No I haven’t.” The court then asked defense counsel how many Marsden motions had been filed in the case.

Mr. Ciraolo said “just one,” and added that there might have been one in municipal court. The court asked, “Now you’re ready to go to trial[,] right?” Ciraolo answered, “We’re tooled up for it, yes, Your Honor.” The remainder of the hearing was held in the presence of the prosecutor. The court stated that it had treated defendant’s “motion as sort of a quasi Marsden motion, including a Faretta motion.” The court added, “I think it’s apparent that he’s asking that Mr. Ciraolo be removed as attorney and to substitute Mr.

Lynch in himself as his own attorney.” After colloquy with the prosecutor, the court observed that the waiver of the right to a speedy trial had been withdrawn on September 4, 1991, which “requires this Court to bring this case to trial no later than” November 1, 1991. It stated that although the court had pending matters, given the “no-time waiver posture,” it was prepared to start pretrial motions on October 21, 1991. The prosecutor observed that he anticipated calling at least 65 witnesses during the guilt phase.

The court and the prosecutor discussed the circumstance that the surviving victims and certain other witnesses were elderly, and the prosecutor observed some witnesses resided outside the San Francisco Bay Area. The prosecutor also stated that more than four years had passed since defendant’s arrest. He subsequently observed that victim Bessie Herrick and her husband Frank had expressed concern about dilatory tactics. The prosecutor said he had assured file Herricks that defense counsel was not engaging in such tactics. However, the prosecutor expressed the view that “this eleventh hour request by Mr.

Lynch is a cruel blow to all the victims in this case. And I would urge the Court to deny this motion by him to represent himself and deny him the fruits of his dilatory tactic.

Justice delayed is justice denied.” The prosecutor also observed that he had videotaped the testimony of the elderly witnesses at the preliminary hearing, and that if trial was delayed, “I’m not so certain that we won’t be seeing cinema testimony as opposed to live bodies.” In response to the court’s inquiry as to whether these witnesses were “all available, they are all alert, ready to come in and testify,” the prosecutor stated, “They are ready.” The court denied defendant’s Faretta motion. Citing People v.

Frierson (1991) 53 Cal.3d 730 [280 Cal.Rptr. 440, 808 P.2d 1197] (Frierson), it observed that defendant had been represented by Mr. Ciraolo for over four years, and that “because of the advanced age of the victims,” and “because of the possible delay in the proceedings which might arise in the event I granted Mr. Lynch his pro per status, the Court’s going to rule that this motion is not timely made. We’re on the eve of the trial. The trial is to begin within two weeks. There was a time waiver [szc]. The Court’s made space and time available for the trial of this case. Both sides are prepared to proceed.

And so it’s the Court’s feeling that it’s not timely made, so the petition to proceed in pro per will be denied for the reasons I’ve stated on the record.” The court then informed counsel that it expected to begin pretrial motions on October 21, 1991, which it understood would take approximately three weeks, and that afterward jury selection would begin.

(2) Defendant’s second Faretta motion On October 16, 1991, defendant filed a second Faretta motion, which was essentially identical to his first motion, discussed above. He also filed a Marsden motion and a motion to disqualify Judge Delucchi. On October 17, 1991, the court denied the disqualification motion as untimely.

It also denied the Faretta motion as untimely, noting it had denied defendant’s earlier Faretta motion on the same ground, and “this is even later because we are going to start the pretrial motions on Monday in this case.” After denying the motion, the court said, “Also, I think it’s a dilatory motion.

It doesn’t have any merit at all except just to postpone the proceedings, an attempt to postpone the proceedings further.” Regarding the Marsden motion, the court stated that it was defendant’s third such motion, because defendant had filed a motion in June 1991, and defendant’s Faretta motion heard on October 7, 1991, “was essentially a Marsden motion that was in conjunction with his Faretta motion.” At the in camera hearing on the Marsden motion, defendant expressed concern that at the October 7, 1991, hearing on his Faretta motion, “blame was shifted to me as far as trying to delay this trial.

I haven’t been in charge of this case for the last four years.” The court responded, “I shifted it to you. I said that your motion wasn’t speedy, wasn’t timely made.” Defendant said, “You shifted it, but after the [district attorney] changed gears ... .[][].. . [f] He sat there, and he specifically . . . stated that he [was] sure it wasn’t Mr. Ciraolo’s dilatory tactics, that he’s trying to imply to delay the trial—.” The court interjected, “That’s what the [district attorney] said, man. You believe everything he says? I made the ruling .... You’ve got to understand. You heard. You were out there.

You heard what the record was. It’s too late, man. These people are old. You withdrew your time waiver[,] right? You say, I want a trial right now, within 60 days. [][] ... [][].. . So they assign the case to me. Right? It’s all on the record from last time. I’m all ready to try this case. Mr. Ciraolo is ready to try this case. The [district attorney] is ready to try this case. Now, we’ve got victims in this case that are old people, . . . and they have a right to have a speedy trial, too. ... All this is doing is you’re trying to do—in my opinion is just to postpone this some more, and it’s not timely made.

There is law on it. I cited the case, People v. Frierson.” Defendant responded, expressing concern that his attorney had not disputed the district attorney’s statement. He observed, “I haven’t been in charge of this case for the last four years. It’s not my fault they’re just now arriving or coming at a trial date. [][]... [f] He’s been busy with other cases, with other clients. The [district attorney] has been tied up. So, it’s not my fault.

It’s just now that I’ve recently seen that what I have been seeing [makes] ... me want to exercise my Sixth Amendment rights.” The court said, “And you did.” Defendant continued, “And it wasn’t untimely. We haven’t even started pretrial motions. We haven’t started selecting the jury.

We haven’t set a trial date.” The court said, “If it wasn’t untimely and I made a mistake and you get convicted, we’ll start all over again.” Defendant said, “I can’t see how the motion was untimely.” The court said, “Well, there is no point in arguing with you . . . .” Defendant said, “If you bring up the old age clause, you had four years to worry about the old age clause. [1] . . . [1] You didn’t even inquire [into] the fact of why [it is] .. . that the trial is” just now occurring. The court denied the Marsden motion.

(3) Judge Sarkisian’s ruling on defendant’s Faretta motion On October 23, 1991, Judge Delucchi informed the parties that he had reconsidered his earlier ruling, and now found defendant’s motion to disqualify him was timely made. The court deemed itself disqualified, and as a result set aside its October 17, 1991, rulings on defendant’s second Faretta motion and his Marsden motion. Defendant attempted to withdraw his disqualification motion, but the court stated it was too late. On October 28, 1991, the parties appeared before Judge Goodman.

The court stated its understanding that defendant was “willing to enter a time waiver so that this matter can be assigned to Judge Sarkisian for trial with the understanding that the trial will commence ... by way of pretrial motions on November 18 . . . .” Mr. Ciraolo said, “That’s correct,” and that defendant was “willing to give a limited time waiver up to and including November 18th.” Defendant agreed.

The court asked defendant if he understood his “time will then start by way of the submission of pretrial motions on November 18th or a date sometime before that?” Defendant said, “Yes.” Also on October 28, 1991, the parties appeared before Judge Sarkisian, who eventually presided over the trial. They stipulated that defendant’s Faretta and Marsden motions would be submitted to Judge Sarkisian “on the transcripts of the proceedings that were held before Judge Delucchi.” On October 31, 1991, the court denied both motions.

As to the Faretta motion, it stated: “[Ijt’s my independent conclusion from a review of the recordQ that this request is untimely. Among the factors that I have considered in assessing the defendant’s request are his prior proclivity to attempt to substitute counsel, the stage of the proceedings, and in particular the disruption and the delay that might reasonably be expected to follow the granting of his motion. This record indicates that many of the witnesses in this case are elderly. I will note that Mr. Lynch has been represented by present counsel for a number of years.

Accordingly, in the exercise of my discretion, I am denying the defendant’s motion for self-representation.” The matter was continued to November 12, 1991, for pretrial motions. (

b) Discussion A trial court must grant a defendant’s request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently. (People v. Welch (1999) 20 Cal.4th 701, 729 [85 Cal.Rptr.2d 203, 976 P.2d 754]; People v. Windham (1977) 19 Cal.3d 121, 127-128 [137 Cal.Rptr. 8, 560 P.2d 1187] (Windham).) As the high court has stated, however, “Faretta itself and later cases have made clear that the right of self-representation is not absolute.” (Indiana v.

Edwards (2008) 554 U.S. 164, 171 [171 L.Ed.2d 345, 128 S.Ct. 2379, 2384]; see Jones v. Barnes (1983) 463 U.S. 745, 751 [77 L.Ed.2d 987, 103 S.Ct. 3308], citing Faretta, supra, 422 U.S. 806 [“we have held that, with some limitations, a defendant may elect to act as his or her own advocate . . .”].) Thus, a Faretta motion may be denied if the defendant is not competent to represent himself (Indiana v. Edwards, at p. 178 [128 S.Ct. at p. 2388]), is disruptive in the courtroom or engages in misconduct outside the courtroom that “seriously threatens the core integrity of the trial” (People v.

Carson (2005) 35 Cal.4th 1, 6 [23 Cal.Rptr.3d 482, 104 P.3d 837]; see id. at p. 8; Faretta, at p. 834, fn. 46), or the motion is made for purpose of delay (People v. Marshall (1997) 15 Cal.4th 1, 23 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall)).

Likewise, we have long held that a self-representation motion may be denied if untimely. (Windham, supra, 19 Cal.3d at pp. 127-128.) Under Windham, a motion is timely if made “a reasonable time prior to the commencement of trial.” (Id. at p. 128, fn. omitted.) “[0]nce a defendant has chosen to proceed to trial represented by counsel,” a defendant’s motion for self-representation is “addressed to the sound discretion of the court.” (Windham, at p. 128.) We observed that our imposition of a timeliness “requirement should not be and, indeed, must not be used as a means of limiting a defendant’s constitutional right of self-representation.” (Id. at p. 128, fn. 5.) Rather, the purpose of the requirement is “to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.” (People v.

Burton (1989) 48 Cal.3d 843, 852 [258 Cal.Rptr. 184, 111 P.2d 1270] (Burton).) The high court has observed that lower courts generally require a self-representation motion to be timely, a limitation that reflects that “the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer.” (Martinez v.

Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162 [145 L.Ed.2d 597, 120 S.Ct. 684].) Despite this tacit approval of the timeliness limitation on the self-representation right, the high court has never delineated when a motion may be denied as untimely. Nor has this court fixed any definitive time before trial at which a motion for self-representation is considered untimely, or articulated factors a trial court may consider in determining whether a self-representation motion was filed a reasonable time before trial.

Along these lines, we have held on numerous occasions that Faretta motions made on the eve of trial are untimely. For example, in Frierson, supra, 53 Cal.3d at page 742, the case relied on here by the trial court, we held that a self-representation motion made on September 29, 1986, when trial was scheduled for October 1, 1986, was made on “the eve of trial” and was untimely. (See People v. Valdez (2004) 32 Cal.4th 73, 102 [8 Cal.Rptr.3d 271, 82 P.3d 296] [Faretta motion made “moments before jury selection was set to begin” deemed untimely]; People v.

Horton (1995) 11 Cal.4th 1068, 1110 [47 Cal.Rptr.2d 516, 906 P.2d 478] [self-representation motion made on the date scheduled for trial untimely]; People v. Clark (1992) 3 Cal.4th 41, 99-100 [10 Cal.Rptr.2d 554, 833 P.2d 561] (Clark) [case had been continued day to day after Aug. 10 “in the expectation that the motions would be concluded and jury selection set to begin at any time,” and hence the defendant’s Aug. 13 motion was “in effect the eve of trial” and untimely].) Likewise, we have concluded that motions for self-representation made long before trial were timely. (People v.

Halvorsen (2007) 42 Cal.4th 379, 434 [64 Cal.Rptr.3d 721, 165 P.3d 512] [Faretta motion made seven months before penalty retrial jury selection commenced was timely]; People v.

Stanley (2006) 39 Cal.4th 913, 932 [47 Cal.Rptr.3d 420, 140 P.3d 736] (Stanley) [self-representation motion made one year before the preliminary hearing and nearly two years before trial was timely].) Nevertheless, our refusal to identify a single point in time at which a self-representation motion filed before trial is untimely indicates that outside these two extreme time periods, pertinent considerations may extend beyond a mere counting of the days between the motion and the scheduled trial date. Indeed, in People v.

Hamilton (1985) 41 Cal.3d 408, 419-420 [221 Cal.Rptr. 902, 710 P.2d 981] (Hamilton 7), we deemed untimely a self-representation motion made about a month before trial. In Hamilton I, the parties had been engaged in a protracted

section 1538.5 and

section 995 hearing from March 24, 1980, to May 21,1980. (Hamilton II, supra, 45 Cal.3d at p. 363, incorporating Hamilton I, at p. 419.) At that time, trial was scheduled for June 23, 1980. (Ibid.) On May 1, 1980, the defendant moved for self-representation, but on May 9 he withdrew the motion and sought cocounsel status.

That request was granted. (Ibid.) On May 20, the defendant sought to have his “counsel relieved and new counsel appointed. [The] [defendant stated that if that motion were denied, he would then renew his motion” for self-representation. (Ibid.) Finding that the “defendant did not have ‘a legitimate objection, but [was] only grasping at anything he can think of to delay the proceedings,’ the court denied the motion.” (Hamilton II, supra, at p. 366.) On appeal, we held that the self-representation motion made on May 20 was “untimely within the context of this protracted

section 1538.5/995 hearing,” and the trial court acted within its discretion in denying it. (Id. at p. 363, incorporating Hamilton I, at p. 420.) Thus, in Hamilton II, we concluded that the defendant’s pretrial self-representation motion, made about a month before trial, was untimely in light of the surrounding circumstances. Similarly, in People v. Ruiz (1983) 142 Cal.App.3d 780, 791 [191 Cal.Rptr. 249], the Court of Appeal concluded that a motion made six days before trial was untimely “under the circumstances surrounding” the defendant’s request.

The “motion was made on a Friday!,] the hearing was held on the following Monday and trial was scheduled to begin Thursday, with both defense and prosecution counsel ready to proceed and with a serious witness problem at hand.” (Ibid.) The prosecutor noted he had had “great difficulty” securing the presence of one witness, who was under subpoena, and other witnesses had expressed fear of testifying. (Id. at p. 785.) As Hamilton II and Ruiz demonstrate, timeliness for purposes of Faretta is based not on a fixed and arbitrary point in time, but upon consideration of the totality of the circumstances that exist in the case at the time the self-representation motion is made.

An analysis based on these considerations is in accord with the purpose of the timeliness requirement, which is “to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.” (Burton, supra, 48 Cal.3d at p. 852.) Some Ninth Circuit cases contain dicta suggesting that “requests made ‘weeks before trial’ ” are invariably timely, purporting to divine such a rule from Faretta itself. (Marshall v.

Taylor (9th Cir. 2005) 395 F.3d 1058, 1061.) It is true that the particular request for self-representation in Faretta was made “weeks before trial” (Faretta, supra, 422 U.S. at p. 835), and the high court did characterize this as being “[w]ell before the date of trial.” (Id. at p. 807.) But Faretta nowhere announced a rigid formula for determining timeliness without regard to the circumstances of the particular case. Indeed, the timeliness of the request was not even contested in Faretta.

Moreover, the defendant there was charged with grand theft (ibid.)—not, as here, with three counts of capital murder and two additional counts of attempted murder. Although of course Faretta applies in a capital case, nothing in Faretta or its progeny either expressly or implicitly precludes consideration of factors other than the number of weeks between the self-representation motion and the trial in determining timeliness in this more complex and serious scenario.

Rather, the high court’s statement in Faretta that the defendant’s motion was “weeks before trial” implies a recognition that a motion that interferes with the orderly process of a trial may be denied. (Id. at p. 835; see id. at p. 836 [“forcing Faretta, under these circumstances, to accept [counsel] against his will . . . deprived him of his constitutional [self-representation] right . . .” (italics added)].) Indeed, in the related context of the Sixth Amendment right to select counsel of one’s choice, which is also subject to automatic reversal if erroneously denied, the high court has “recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness [citation], and against the demands of its calendar.” (United States v.

Gonzalez-Lopez (2006) 548 U.S. 140, 152 [165 L.Ed.2d 409, 126 S.Ct. 2557]; see Morris v. Slappy (1983) 461 U.S. 1, 11 [75 L.Ed.2d 610, 103 S.Ct. 1610] [“Trial judges necessarily require a great deal of latitude in scheduling trials.”].) Thus, a trial court may “make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel.” (United States v.

Gonzalez-Lopez, at p. 152.) We perceive no principled basis on which to deny a trial court the opportunity to similarly consider the needs of fairness and the demands of its calendar in ruling on a request for self-representation, or to accord the defendant seeking self-representation any greater liberty to do so than the defendant seeking to select retained counsel. Nor do our prior cases preclude a trial court from considering the totality of the circumstances in assessing the timeliness of a request for self-representation.

Thus, in Marshall, supra, 15 Cal.4th 1, where the defendant’s self-representation motion was made on February 23, 1988, and trial was set to begin on March 28, 1988, we stated that the high court “has not spoken on the question whether the trial court may deny a timely request for self-representation if the motion is insincere, ambivalent, or unconsidered . . . .” (Id. at p. 21.) We did not decide whether this request was timely, however, since we upheld the trial court’s denial of the defendant’s Faretta motion on the independent ground that the request was equivocal. (Id. at p. 27.) In People v.

Wilks (1978) 21 Cal.3d 460, 463-464 [146 Cal.Rptr. 364, 578 P.2d 1369], trial was set for October 14, 1975, but the prosecutor was not ready to proceed on that date.

The defendant moved for self-representation, and the trial judge transferred the case to a different department “for hearing ‘forthwith’ on the motion regarding representation and for trial on November 20th.” (Id. at p. 464.) On appeal, we rejected the defendant’s claim that the trial court erred in granting his self-representation motion noting, “A trial court has no discretion to deny an accused’s valid motion for self-representation.” (Id. at p. 467.) Although it is not clear from our opinion in Wilks whether the trial had been scheduled for November 20 before the defendant’s self-representation motion, we later stated that “[i]n Wilks ... the court granted a motion for self-representation made over a month before trial was scheduled to begin. [Citation.] We did not [thereby] establish a hard and fast rule that any motion made before trial—no matter how soon before—was timely.” (Clark, supra, 3 Cal.4th at p. 99.) As noted above, the defendant in Clark filed his motion essentially on “the eve of trial.” (Clark, supra, 3 Cal.4th at p. 100.) In distinguishing such a late motion from the motion made in Wilks, we did not conclusively determine in Clark that a motion made over a month before trial was timely, but merely observed that Wilks was not persuasive authority for the defendant’s eve-of-trial motion. (Clark, at p. 99.) As can be seen, the high court’s cases and those of this court guide us to the conclusion that a trial court may consider the totality of the circumstances in determining whether a defendant’s pretrial motion for self-representation is timely.

Thus, a trial court properly considers not only the time between the motion and the scheduled trial date, but also such factors as whether trial counsel is ready to proceed to trial, the number of witnesses and the reluctance or availability of crucial trial witnesses, the complexity of the case, any ongoing pretrial proceedings, and whether the defendant had earlier opportunities to assert his right of self-representation. Here, we conclude the trial court properly denied as untimely defendant’s September 27, 1991, and October 16, 1991, motions for self-representation.

As noted above, this case involved three counts of murder and two counts of attempted murder. Each of these counts involved a separate incident. Concomitant with these counts were charges of burglary and robbery, allegations that defendant personally inflicted great bodily injury on the elderly attempted murder victims, and special circumstance allegations of burglary murder, robbery murder, and multiple murder, which if found true subjected defendant to a possible death sentence. The prosecutor anticipated calling at least 65 witnesses at the guilt phase.

Discovery was voluminous, and trial preparation inherently complex. Moreover, this case involved crucial witnesses, as well as victims, who were elderly. The victims and the prosecution had a right to a speedy trial. (Cal. Const., art. I, § 29; see Morris v. Sloppy, supra, 461 U.S. at p. 14 [“[I]n the administration of criminal justice, courts may not ignore the concerns of victims.”].) Although the testimony of these witnesses had been preserved on videotape, the presentation of live witnesses is the preferred form of evidence. (See People v.

Reed (1996) 13 Cal.4th 217, 225 [52 Cal.Rptr.2d 106, 914 P.2d 184] [“The fundamental purpose of the unavailability requirement is to ensure that prior testimony is substituted for live testimony, the generally preferred form of evidence, only when necessary.”].) In addition, on August 1, 1991, Mr.

Ciraolo had informed Judge Goodman that there was an October 7 “date to set for trial,” and that the parties’ understanding with the presiding judge was that they would be given a trial date about “two weeks of the 7th.” On September 4, 1991, defendant personally withdrew his time waiver and demanded he be brought to trial within 60 days. At the October 7 hearing on defendant’s first self-representation motion, the defense said it was ready for trial. Pretrial motions were expected to begin two weeks later, and trial to commence about three weeks after that.

A case that had endured significant delay was finally nearing resolution. Although our review of the record demonstrates that the nearly four-year delay in this case cannot be attributed to defendant, he did not thereby escape any responsibility for timely invoking his right to self-representation.

We note that at the August 1 hearing on defendant’s first Marsden motion, he gave no explanation for why he had waited nearly three years to express concern about counsel’s perceived deficiencies at the preliminary hearing; and that defendant inexplicably waited until after his disqualification motion had been granted by Judge Delucchi to seek to withdraw it.

Similarly, defendant, who had been represented by the same counsel nearly since his arrest, gave no explanation at the hearings on his self-representation motions why he had waited nearly four years, or until the parties were prepared to proceed to trial, to seek self-representation. He simply announced at the October 7, 1991, hearing that because his life was “on the line,” he should be in charge.

Clearly this was a circumstance of which he was aware well before the filing of his first motion on September 27, 1991, but, at the October 17 hearing on his second motion, he offered only the feeble explanation that “[i]t’s just now that I’ve recently seen that what I have been seeing [makes] ... me want to exercise my Sixth Amendment rights[] [][]... [f] .. . to represent myself.” Moreover, at the October 7 hearing on his first self-representation motion, defendant did not dispute that he would need time to investigate and prepare, and replied both “Yeah” and “not sure” when asked if he was “talking about months” of time to do so.

Indeed, he said he needed rime to review the discovery and other materials before he could tell the court how much additional time he would require, expressed confusion that “everyone beside[s] myself is . . . ready as of now ... to go to trial,” and characterized his self-representation motion as “vacating]” his recent withdrawal of his time waiver. The reasonable import of these comments is that if the self-representation motion had been granted, defendant would have required an undetermined amount of time to investigate and prepare for trial.

A trial court may properly consider the delay inherently caused by such uncertainty in evaluating timeliness. (See Morris v. Slappy, supra, 461 U.S. at p. 11 [“Trial judges necessarily require a great deal of latitude in scheduling trials.”]; cf. United States v. Gonzalez-Lopez, supra, 548 U.S. at p. 152 [recognizing a “trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness [citation], and against the demands of its calendar”].) In light of all these circumstances, defendant’s self-representation motions were properly deemed untimely.

Thus, the trial court had discretion to deny the motions, and acted well within its discretion in doing so on the grounds that certain witnesses including the surviving victims were elderly, the parties were otherwise prepared to proceed, defendant had offered no justification for his untimely request to represent himself, and granting the motion was reasonably likely to result in substantial delay and disruption of the proceedings. 3.

Excusing prospective jurors for cause due to their views concerning the death penalty Defendant contends the trial court erroneously excused four prospective jurors because of their views regarding the death penalty in violation of his rights under the Sixth and Fourteenth Amendments to the federal Constitution. We disagree. (

a) Factual background

(1) Excusal of Prospective Juror K.M. In Prospective Juror K.M.’s questionnaire, when asked her feelings about the death penalty, she wrote, “If the crime was of the nature to warrant the death penalty I believe it should be done.” During voir dire, the court inquired whether K.M. would “automatically vote for the death penalty regardless of what evidence might be presented” at the penalty phase. She responded, “I do believe in the death penalty, but I don’t know if I could be the person who says, okay, this is it, you have to decide whether this person gets it or not.

I don’t know if I could really do it.” The court subsequently inquired, “I want you to assume that you, personally, have decided that the factors in aggravation are so substantial that you personally do believe in your heart that the death penalty is the appropriate punishment. . . . [f] . . . [*][] If that was your decision, the law then would require you to come down into this courtroom, sit where you are and, basically, say so, yes, that is my decision, it is my decision that death is the appropriate penalty under all of the circumstances. Could you do that?” K.M. responded, “I think so.

FID • • • Ffl] There would have to be absolutely elimination of everything to the point that that is the only thing left to do.” The court asked what she meant by “elimination of everything.” K.M. responded, “[A]ny other thoughts, thinking there is a chance that he should have life rather than death. I would have to just clear it out in my mind completely.” The prosecutor asked K.M., “If you think the death penalty is appropriate, . . . you are going to have to come down and announce in open court, in front of Mr.

Lynch, in front of his defense attorneys, Judge Sarkisian, in front of me and maybe a packed courtroom, that you, [K.M.], are voting to impose the death penalty, knowing that that is going to be the first step which leads to his execution by lethal gas, strapped in a chair in the gas chamber in San Quentin sometime in the future, do you understand that?” K.M. responded, “Yes, I do.” The prosecutor then asked, “Your vote for death, you are one-twelfth of the thing that’s going to put him in that gas chamber, you realize that?” K.M. said, “Yes.” The prosecutor said, “Okay. My question to you is: Can you do that?

Can you be part and parcel of a panel of people which sends somebody to their death?” K.M. responded, “No, I honestly cannot give a direct answer to that because I don’t know how I could live with myself. Can I actually be part of a group that would say this man has to die?” After further colloquy, the prosecutor said, “We have to know.

Can you do it?” K.M. responded, “[W]hen you think something in your mind one way and then when it comes right down to it, like you say, I don’t know, so I guess the answer would have to be, no, wouldn’t it?” In response to questioning by defense counsel, K.M. said, “I don’t want to be . . . the final person to say, okay, do it.” K.M. also agreed with defense counsel, however, that there were circumstances in which she could return a death penalty verdict, and that she would keep an open mind and hear all of the facts and circumstances before she decided.

The court told K.M. that she “sounded like a different person” when she answered defense counsel’s questions than when she answered the prosecutor’s questions, but explained, “I have to make sure I understand your views. My sense of your views [is]—and I want you to correct me if I am wrong—that you do believe in the death penalty, and you think there are certain cases that warrant the death penalty, but that your views are such that even if you personally determined that death was the appropriate penalty under all of the circumstances in this case, you could not come down into open court, face Mr.

Lynch, and announce that that is your vote, knowing that that is going to cause him to be put to death in the gas chamber, ... am I correct?” K.M. responded, “Yes.” The prosecutor challenged K.M. for cause. Defense counsel opposed the challenge. The trial court sustained the challenge, stating: “I was carefully listening to her answers. I was carefully observing her demeanor as she answered the questions.

She gave, at least arguably, I think more than arguably, inconsistent or equivocal answers, and I’m satisfied that her views on capital punishment would prevent or substantially impair the performance of her duties as a juror in accordance with the court’s instructions and her oath.”

(2) Excusal of Prospective Juror O.C. In Prospective Juror O.C.’s questionnaire, when asked her feelings about the death penalty, she wrote, “I feel that the death penalty should be imposed on certain individual^] but not all.

Also I’m not against or in favor of it.” On voir dire, the court asked O.C. whether the crimes in this case were “serious enough where the death penalty is a possibility or not.” It observed that some individuals would say that “this type of crime, it’s terrible, but it’s not so terrible that I would . . . ever vote for death, life in prison is always going to be fine.” O.C. responded, “I would say probably life in prison.” The prosecutor challenged her. Defense counsel inquired whether O.C. would vote for the death penalty if it were on the ballot. She said, “I don’t know. I don’t believe so.

I don’t think.” Defense counsel also asked whether the facts and circumstances of this case were such that she could vote for the death penalty. O.C. responded, “Possibility.” Defense counsel asked, “Think about it and do it?” She said, “Possibility, yes.” “Do you think you could?” “Probably so.” Defense counsel then opposed the challenge.

The prosecutor asked O.C., “Do you think you could ever personally vote to send somebody to die in the gas chamber?” O.C. responded, “I don’t think so.” The prosecutor said, “Because if you sit in judgment in this case, you and the other jurors are going to have to make that choice.

And if you think that the death penalty is appropriate, you are going to come down here in open court and you are going to have to say I, [O.C.] [am] voting to send that man at the end of the table to die in prison, in the gas chamber, could you do that?” O.C. responded, “I don’t believe so.” The trial court sustained the challenge, stating: “I have been observing this prospective juror, her demeanor and listening to her responses, . . . and I’m satisfied that her views on capital punishment would prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and her oath.”

(3) Excused of Prospective Juror L.K. In Prospective Juror L.K.’s questionnaire, when asked her feelings about the death penalty, she wrote, “I do believe in the death penalty if warranted.” On voir dire, in response to the trial court’s question regarding whether L.K. would invariably vote for the death penalty, L.K. stated, “[T]o be perfectly honest, I don’t know exactly what kind of verdict I would give. I don’t feel comfortable with either penalty. ... I don’t want to have to be put in the position to make that decision. If I’m going to have to, I’m going to have to.

But I’d rather not say at this point.” The trial court assured L.K. that “[n]o one is going to ask you this afternoon which punishment you would vote for.” L.K. subsequently responded, “Yes” when asked by the court if she honestly believed that she would be “open to the possibility of voting for either punishment, depending upon the totality of the evidence presented.” The prosecutor asked L.K. to explain her statement that she was not comfortable with either penalty. L.K. responded, “I’m not comfortable making a decision for somebody else.

That’s all.” He also asked, “Let’s assume you and the 11 others . . . feel the death penalty is warranted. You are going to have to come down to open court and announce that verdict in open court that you are voting for the death penalty. You realize that?” L.K. responded in the affirmative. The prosecutor then asked, “Do you know what the ramifications of that death penalty vote are going to be?” “No. I don’t understand.” “Well, if you vote for the death penalty, you and 11 others, you are going to be one-twelfth, you, yourself, are one-twelfth of a panel of people which are recommending (hat Mr.

Lynch be put to death in the gas chamber, you realize that?” L.K. responded, “Yes.” The prosecutor said, “And if you vote for death, it’s going to happen sometime in the future.” L.K. said, “Yes.” The prosecutor subsequently described individuals who said they believed in the death penalty if it was called for, but then were unable to choose the death penalty as a verdict even though they believed the defendant deserved that penalty. He asked L.K., “Do you have any feelings as to that?” She

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