THE PEOPLE, Plaintiff and Respondent, v. GERALD ARMOND GALLEGO, Defendant and Appellant, 52 Cal. 3d 115

Opinion LUCAS, C. J. Defendant appeals from a judgment of guilt and sentence of death. A jury found him guilty of two counts each of first degree murder and kidnapping, and found he was armed with, and used, a firearm in the commission of those crimes. It also found true two special circumstances as to each killing: (

i) multiple murder and (ii) murder in the commission of kidnapping. I. Facts After venue was moved from Sacramento County to Contra Costa County, defendant elected to represent himself at the guilt trial. The following evidence was presented. Guilt phase 1. The prosecution case After drinking at the Sports Room bar in Sacramento until the early morning hours of November 2, 1980, defendant told his pregnant wife, Charlene, he was “getting that feeling” and wanted her to “get [him] a girl.” Charlene drove defendant in his car to a nearby shopping center where they noticed a young couple entering a car.

Defendant gestured toward them, but Charlene told him, “No, that’s a couple.” Soon defendant noticed another couple—victims Craig Miller and his date, Mary Beth Sowers—entering their car. He ordered Charlene to stop the car, got out, and brought Miller and then Sowers to the car at gunpoint. Charlene saw Miller throw his own car keys out the window, and mentioned this to defendant. On defendant’s order, Charlene got out and looked for the keys, but could not find them. The keys were found in the parking lot the next morning.

Soon thereafter Andy Beal (a friend of Miller) approached, recognized Miller and Sowers, and walked to defendant’s car. Miller told Beal that he did not belong there, and swore at him, telling him to leave; Charlene slapped Beal and told him to go. Beal noted the car’s license number as it left the parking lot, and immediately recounted these events to his friend Mike Wasserman, who happened on the scene as defendant’s car departed. Defendant directed Charlene to drive north toward a lake, and then ordered her to stop the car.

He took Miller’s wallet, and asked Sowers, “What are you doing with a bum like this?” He asked Charlene if she “wanted” Miller, and when she said, “No,” defendant forced Miller to remove his shoes, ordered him out of the car, and shot him three times in the head. Defendant entered the back seat with Sowers and told Charlene to drive to his apartment. He embraced Sowers, and told her she was going to be his “Mary Ellen tonight.” As explained below, defendant’s daughter’s name is Mary Ellen. At his apartment, defendant took Sowers into the bathroom and then the bedroom.

Charlene heard arguing, and the sounds of a headboard hitting the wall. Thereafter defendant and Sowers emerged, and defendant told Charlene to get her coat and follow him. They put Sowers in the back of the car, tied her hands behind her back with ribbon, and drove north on a route different from the one they had taken previously that evening. Again, Charlene drove and defendant gave directions. Finally, as daylight was breaking, they stopped. Defendant took Sowers into a field and shot her three times. They drove back to defendant’s apartment and on defendant’s orders Charlene cleaned the car.

They then drove to a park where defendant threw his gun and some of Sowers’s jewelry into a river. Defendant told Charlene he loved her, that he did not want to “let her go,” and that he’d never let anything happen to her. The two then went out for doughnuts. Back in the apartment, defendant told Charlene to gather up the laundry, change the linen on the bed, and put the coat he had worn the previous night in a dumpster. They then left for the house of Mercedes Williams (Charlene’s mother), and on the way discarded Miller’s shoes in another dumpster.

They arrived at the Williamses’ house and entered through the back door. The police had been notified by Beal of the previous night’s events, and were in the living room, interviewing Charlene’s parents. Defendant put the laundry bag on the back step, told Charlene to say nothing, and left. Charlene entered the house wearing a T-shirt reading, “I’m the very best,” which she had taken from defendant’s apartment. Charlene told the police she had been with her boyfriend (whom she called Steven Feil) at a movie the night before.

While the police were interviewing her, defendant telephoned, and told Charlene to meet him at a nearby ice cream store. Charlene continued to talk with the police. She gave conflicting accounts of which car they had driven the previous evening, and then gave the police permission to search the car that had been driven. The interior was quite clean, and the officers found nothing. When the police left, Charlene drove to meet defendant, who had decided to return to the lake area to move Miller’s body. After purchasing a blanket in which to wrap the body, they drove to the lake but could not locate the body.

The police went to defendant’s apartment but returned to the Williamses’ home after finding no one. While there they were notified that Miller’s body had been found. Additional officers were dispatched to defendant’s apartment. Defendant and Charlene returned, saw the police outside both the Williamses’ home and defendant’s apartment, and decided to flee. They arranged to meet the Williamses in a bar, drove to Reno, and then traveled by bus to Salt Lake City. Defendant called Mrs. Williams and told her she could find the car in Reno and should change its tires.

In Salt Lake City, Charlene dyed her hair, stole a purse to establish a new identity, and asked the Williamses to send money. Thereafter the two traveled to Denver, then Pueblo, Colorado, where they obtained false birth certificates for themselves. On defendant’s direction, Charlene prepared a list of topics to discuss with her mother by phone.

The list read in part as follows: “1) Lawyers fool, save money. 2) Try to gain release in any property (in) car, you have power of attorney. 3) Say nothing about anything to the police or the D.A. 4) Don’t pay anything you don’t have to. [This apparently referred to payments on Charlene’s ring, which they had earlier pawned in Denver.] 5) Lawyer has not done anything that has been asked of him. 6) Please send money. 7) If need be, we will arrange for you to take care of the baby for awhile.” At some point, they spoke again by telephone to Charlene’s parents, as well as an attorney; the Williamses and the attorney apparently balked about sending more money.

Eventually defendant and Charlene went to Omaha, where they used the names Steve Calloway and Charlene Rae Bell. They discussed several stories to tell the police if caught. In one, they would say Charlene met Sowers in a restaurant lounge at the shopping center, the four then went to a certain bar, and Miller and defendant left the bar before the women did. Alternatively, they would say they dropped Miller and Sowers at the parking lot and never saw them again. Defendant and Charlene were arrested in Omaha when they attempted to retrieve money wired to them by the Williamses.

As noted, Miller’s body had been discovered hours after the killing, on Sunday morning. He was fully clothed, but his shoes were missing. He had been shot three times in the head at point-blank range, and there was no sign of struggle. His wallet was found near the body, along with three .25-caliber Winchester Western shells. Sowers’s body was discovered three weeks later. It was badly decomposed, but it appeared that she had been fully clothed at death, and that her hands had been tied behind her back with ribbon. She had been shot twice in the head and once in the neck.

Because of decomposition, it could not be determined if she had been sexually assaulted before she died. Two .25-caliber brass casings were found near the body. Beal, Miller’s friend, identified defendant in a police photographic lineup. The police conducted a warrant search of defendant’s apartment, and found some .25-caliber ammunition, but no .25-caliber weapon. The ammunition was found in a partly full Winchester Western ammunition box.

The police discovered that defendant had worked as a bartender at a local bar, and had on two occasions fired his gun—a Baretta automatic—into the ceiling, and afterward patched the holes. A detective went to the bar and recovered five slugs located in the area where defendant had fired his gun. Experts determined that the recovered slugs and those from the victims’ bodies were fired from the same weapon, and that the cartridge casings found near the two bodies came from the same weapon. The casings matched substantially the casings of the bullets found in defendant’s apartment. Charlene’s mother, Mrs.

Williams, visited defendant in jail at various times before his trial. He admitted to her that he encountered Miller and Sowers in the parking lot and that he owned the gun used in the killings.

He told her his defense would be “diminished capacity,” because he had taken LSD, and that he would willingly plead to second degree murder and take a sentence of 15 years “in a minute.” He noted that his story had to be planned carefully, not “halfway,” and that it had to be “done” with “realistic thoughts in mind.” He told her, “The only thing that they could prove for fact is that it was my gun that did it and that they were in my car that night for fact, that’s all . . . .” Meanwhile, Charlene approached the police through the first of her attorneys.

She fabricated a story in which defendant introduced her to both victims in the parking lot and they later went to defendant’s apartment. She claimed she slapped Miller’s friend Beal in the face because he stepped on her foot. She said she last saw the victims after they all shared cocaine in defendant’s living room, and defendant left with them both. According to her story, defendant returned the next morning with blood on his jacket and ordered her to throw it away. Thereafter Charlene obtained new counsel, recanted the above story, and gave the police another statement.

She pleaded guilty to two counts of first degree murder, with the understanding that she would be sentenced to sixteen years, eight months in prison, but that if the Board of Prison Terms did not agree to the sentence, she could go to trial on the original charges or plead guilty to some related charges and receive a sixteen-year, eight-month prison term. Under this agreement with the prosecutor, Charlene was required to testify truthfully, and enjoyed no immunity for perjury. She testified at trial as set out above. 2.

The defense case As noted above, defendant represented himself at the guilt phase, and testified in his own defense. He described meeting Charlene in 1977 when she was almost 21 and he was 31, and had been married 5 times. He worked in a cardroom, where he cheated his customers. He denied ever striking Charlene, but he admitted pulling her hair once when she used a word that he felt was inappropriate. He explained that although he sometimes wanted to hit her, he generally treated her with consideration and care. He testified that Charlene became pregnant, and that they agreed she should have an abortion.

Later, in 1978, they were married in Reno, and he obtained false identification papers and began using the name “Stephen Feil,” the name of one of Charlene’s relatives. Defendant disputed the prosecution’s theory that a Baretta was used in the murders. In an apparent attempt to discredit Charlene’s testimony by throwing doubt on whether he used a Baretta to commit the killings, he presented evidence showing that in 1977 Charlene bought an FIE (Firearms Import-Export Company) gun at a local sporting goods store, for protection from a rapist who had been haunting the neighborhood.

He trained her to use the gun for her protection when he was away, and he had the gun chromed so it would be more “ladylike” for her. He also took the gun to work when he expected trouble. This, he claimed, was the gun he used to fire the shots into the ceiling of the bar. Later, he asserted, Charlene bought him another FIE—“a kind of matching set”—but he had her return it for a Baretta.

He admitted keeping the Baretta at the bar, but claimed he traded it for a .22-caliber automatic when he quit working there because he was getting out of “the bar business.” He described his frequent marital infidelities, noting that Charlene was jealous, but with good reason, because he was not a faithful husband. He stated that although he took drugs before he met Charlene, he used more drugs and alcohol afterward. He then moved to Oregon with another woman—his “mistress”—and she became pregnant. He moved back to Sacramento; Charlene, too, was pregnant.

He did not know what to do, so he lived with neither of them, and rented an apartment. Around November 1980 he “us[ed] drugs a lot.” Both Charlene and his mistress wanted to move in with him. He selected Charlene, and because they were both out of work, they went out together on Saturday, November 1, to cheat at cards. As was their custom in such enterprises, he “pack[ed] a . . . small gun,” so that if they were caught they could “leave peacefully.” He stated that he had used no drugs that day, and was not drunk. They entered the Sports Room bar about 7 p.m.

They went outside and smoked marijuana with two others, one of whom, Ernie Wakefield, was the previous owner of the bar. Wakefield introduced defendant to the new manager, Dennis Botelho, and defendant asked Botelho for permission to cheat in return for a cut of the take. Botelho declined, saying he was trying to run a legitimate cardroom. Back inside, defendant began to play pool for shots from a “pony glass,” i.e., three and one-half ounces of liquor. He became very drunk, and does not even remember with whom he played pool.

The next thing he remembered “for clear” was waking up in his apartment—still feeling drunk—as Charlene cleaned blood off his face with a wet towel. He went to the bathroom, noticed cuts on his face, and proceeded to the kitchen. Charlene was distressed, and told him what had happened the previous night. She told him they had set out to commit a robbery but it somehow turned into a kidnapping. They were both armed—defendant with the FIE, and she with a .38-caliber revolver.

She said they had taken the victims away from town to leave them for a long walk back, but that when Miller attacked defendant, he jumped up and shot Miller from behind. She said she had later killed Sowers to cover up the crime and “protect [their] future.” Defendant explained they then cleaned the car and attempted to cover the crime by discarding various items, including Sowers’s jewelry. He said he believed Charlene’s story, but felt he had to see for himself, so he had her drive him to the scene of the Sowers killing.

When he saw Sowers’s body, he was angry: “it was bad enough for one of us to be a murderer, and now we were both murderers.” They drove back to his apartment and prepared to leave. Charlene went to her parents’ house, and defendant called her there. She told him the police were there on a “missing persons report,” but not to worry because they knew nothing. They went out driving again, this time to look for Miller’s body, but it became dark and they could not find it. He spoke with Charlene’s mother, told her they were leaving, and they departed for Reno to start a new life.

They called Charlene’s mother for more money. She wired them money under Charlene’s maiden name, and they were eventually arrested when Charlene’s mother cooperated with the FBI and disclosed their location. On cross-examination defendant said he “believed” he shot Miller with his FIE, but he denied shooting Sowers. He claimed he could not remember clearly what happened that night (he asserted that in addition to the marijuana and alcohol, he remembered taking PCP and LSD on the evening in question), but he did remember intending to rob, and he thought he remembered exiting the car and confronting Miller.

This, defendant asserted, was consistent with his and Charlene’s one previous robbery: in 1979, they abducted a man in parking lot, robbed him, and left him elsewhere. Defendant denied he was looking for someone to rape. He could not explain why, if Charlene killed Sowers to cover his own killing of Miller, Sowers was killed far away from where Miller was killed. He theorized that Charlene must have “dr[iven] around . . . trying to figure out what ... to do.” After they were arrested, defendant and Charlene rehearsed some alibis.

One centered around a story that defendant knew Miller and was engaged in a drug deal with him, and that the four met willingly in the parking lot and returned to defendant’s apartment, and “we just went wherever.” On cross-examination defendant was confronted with numerous transcripts and reconstructed torn notes of jailhouse conversations and messages between him and, inter alios, Mrs. Williams, in which he appeared to be fabricating various alibis. He admitted he knew that the jailhouse visits were monitored and taped. He claimed that at various points he, Charlene, Mrs.

Williams, and others had fabricated numerous, sometimes conflicting, false alibis, and that, among the various stories disclosed by the jailhouse transcripts and notes, he could not remember which ones he had originated and which ones were invented by others. He did remember that he initially planned to shoulder the blame to protect Charlene and, at the same time, construct an alibi that would relieve him from as much responsibility as possible.

And, he stated, he “coordinated” the development of an alibi involving a friend of his who would testify that she saw defendant leave his apartment with the two victims and return alone only twenty minutes later—insufficient time to have driven to the sites where the bodies were located. When he discovered Charlene had begun to “create her own alibi stories,” however, he decided no longer to protect her, but to abandon all stories and tell his attorneys the truth.

He admitted he had told various jailhouse visitors that, as a last resort, he would put on a diminished capacity defense, but he insisted that he in fact did suffer diminished capacity on the evening in question. The prosecutor pressed defendant on whether his motive on November 1 and 2 was to kidnap and rape, or merely to rob. Defendant maintained that he believed the motive was robbery, and denied any intent to rape. Defendant then called a number of witnesses. Tina Bulgar, who had been married to defendant’s half-brother, said Charlene had never told her of defendant’s violent sexual fantasies.

On cross-examination, however, she admitted she did not know Charlene very well. They had not spoken about personal problems concerning their respective husbands, and she had not seen Charlene in the two years before the killings. Dennis Botelho, the manager of the Sports Room bar, testified defendant was sober when he arrived on the Saturday evening in question, that defendant smoked marijuana with the former owner, Wakefield, and that defendant was “pushy” and persistent in asking him (Botelho) for permission to cheat at cards.

Botelho testified he left the bar about three hours later—at 10 p.m.—and that defendant was playing pool and was loud, but was not stumbling or having difficulty walking. A defense investigator testified that Botelho had told him defendant was “pretty intoxicated” and boisterous. A former patron of the bar at which defendant worked testified that the gun used to shoot one of the bullets into the ceiling was silver, and not dark.

A store clerk stated his records showed Charlene Williams purchased an FIE gun on March 26, 1980, and returned two days later with a dark-haired woman to arrange to purchase a Baretta instead. His records also showed Charlene Williams purchased a box of Winchester .25-caliber automatic ammunition on August 22, 1980. A firearms expert testified that although he could not connect the cartridge casings found near both of the bodies to the bullets found in the bodies, he could determine that the casings from both scenes were fired from the same weapon.

He also testified that the cartridge casings and bullets found at the two scenes could have been fired from an FIE gun. Pamela David, defendant’s cousin, testified that in 1980 Charlene showed her a chromed FIE gun. On cross-examination she admitted that defendant had only recently asked her about that occasion, that she had. not mentioned the chromed FIE to investigators previously, and that her mother— who had also assertedly seen the chromed FIE—was unable to testify because she was at work at a Sacramento hospital, and was ill.

Richard Dangler, who lived at the lake near where Miller’s body was found, testified he heard three gunshots about 7:20 a.m. on Sunday, November 2, 1980. Miller’s body was discovered about 1,800 feet from Dangler’s house. An expert testified that Miller could not have been facing his assailant when he was shot. There was no evidence of a struggle at the scene, nor was there such evidence on Miller’s body. The body showed two superficial abrasions, but no significant trauma to the hands or face. Dr.

Delbert Wilcox, a forensic psychiatrist, testified that based on defendant’s use of drugs and alcohol since childhood, and on defendant’s frequent amnesia from drug and alcohol use, he believed defendant was very intoxicated on the night of the killings, and possibly under the influence of marijuana, LSD and PCP. He did not believe defendant was able to premeditate and deliberate on the night in question.

He admitted on cross-examination, however, that when he first examined defendant he came to the opposite conclusion, i.e., nothing preventing defendant from premeditating and deliberating on the night in question. Wilcox conceded that after his first interviews with defendant, he found no grounds for concluding that, at the time of the crimes, defendant lacked the capacity to premeditate, deliberate, and intend his actions.

About six days later, after telling defendant of his conclusion, and after further interviews in which defendant explained that he had consumed alcohol and drugs on the night in question, Wilcox concluded otherwise.

He conceded that defendant had a “strong bias in exaggerating the amount of alcohol that he consumed and the drunkenness that he actually experienced at that time.” Taking that into consideration, however, and in view of the prosecutor’s opening statement, which according to Wilcox corroborated defendant’s story that he was very drunk on the night in question, as well as evidence that defendant was seen smoking marijuana in the bar, Wilcox concluded that he could not say beyond a reasonable doubt that defendant was able to deliberate or premeditate in a mature and meaningful way on the night of the offenses.

Wilcox also conceded that a number of facts, if true, supported the conclusion that defendant was able to think rationally on the evening in question: he held both victims at bay while Charlene drove; the drive provided ample time within which to premeditate and deliberate a killing; and Miller’s shoes were removed at the scene, apparently to reduce the chance of escape.

Wilcox also admitted that, given the evidence, defendant was capable of forming the intent to kill Miller, and he could not rule out the possibility that the events in question were the product of paraphilia, a disorder involving imaginary and fantasy sexual behavior. 3. The prosecution’s rebuttal evidence In response to Dr. Wilcox’s testimony, the People presented Dr. Lee Coleman, who testified that psychiatrists have no special skills for determining a person’s state of mind at a given point in time.

Instead, he asserted, a judge or jury could make such determinations just as accurately, simply by considering evidence of the actor’s behavior and speech at the time of the acts in question. He stressed the difference between psychiatry practiced for the purpose of therapy, and forensic psychiatry. Coleman asserted that a person cannot commit

an act without also having the intent to commit that act, and that a person cannot be intoxicated to such an extent that he can commit the acts necessary for a crime without also having the specific intent to commit the crime. He stated that a person so debilitated by drugs that he could not form the requisite intent would also be unable to perform the physical acts constituting the crime. He also asserted that defendant’s claim of amnesia was medically inconsistent with his ability to remember how many drinks he consumed, but nothing else, on the night in question.

Finally, he stated that, even assuming a person has amnesia concerning certain events, that does not mean the person lacked the capacity to form intent at the time he participated in those events, and he found nothing in the facts supporting a conclusion that defendant lacked the ability to premeditate or deliberate. To the contrary, he stated, the facts—including Charlene’s testimony about defendant’s statements to Miller and Sowers during the car drive—supported the opposite conclusion.

In order to rebut, inter alia, defendant’s claims of diminished capacity and lack of intent to rape or kill, the prosecutor moved to introduce evidence of defendant’s involvement in two similar killings. After extensive in camera hearings the court agreed to allow the evidence, but granted defendant a three-week continuance to prepare his defense to the “other crimes” evidence. When trial reconvened, Charlene resumed the stand.

The court instructed the jury that it was about to hear evidence of other crimes by defendant, but that it was to use that evidence only to help determine defendant’s intent at the time of the charged crimes, and not as evidence of defendant’s character. The following story unfolded: Charlene first testified she last saw the FIE automatic in September 1978, when defendant threw it in the river after killing two young women on the previous evening.

She explained that in mid-September 1978—two weeks before she married defendant, and two years before the commission of the crimes charged in the present case—she drove with defendant in their van to a shopping mall. On defendant’s orders, she searched for a young woman to lure into the van in order to fulfill defendant’s violent sexual fantasy. In the late afternoon defendant pointed out two girls, Kippi Vaught and Rhonda Scheffler, and ordered Charlene to get them. Charlene approached the girls, invited them to a party, and brought them back to the van.

Defendant entered the van, pulled the FIE automatic pistol from Charlene’s purse, and told the girls they were being kidnapped. He taped their ankles and hands with white adhesive tape, and drove up Highway 80 to a frontage road near the Sierra foothills town of Baxter. He took the girls and a blanket from the van, and told Charlene to return to Sacramento and make sure she was seen, to clean the van, and to return about midnight with their other car. Charlene went back to Sacramento, visited a friend, and cleaned out the van.

She returned to the Baxter area early—about 10:30 p.m.—and gave a signal by honking the horn and flashing the car lights. Defendant emerged from a clearing and said he was glad to see her because he was cold. He walked back to the clearing and returned with the two girls, put them in the backseat, and directed Charlene to drive to another area south of Sacramento, near the town of Sloughhouse. There, he ordered Charlene to stop the car and to turn up the radio. Outside the car he hit each girl with a tire iron, shot each in the head, and returned to the vehicle.

He remarked that one of the bodies was “still wiggling,” so he got out and fired more shots. They returned to their apartment. The next day, after removing cash from the girls’ purses, they threw the remaining items, as well as the FIE gun and the tire iron, in the river. Defendant told Charlene that he “did not touch” Vaught, who was the heavier of the two.

On extensive cross-examination that lasted well over three days, defendant attempted to impeach Charlene by questioning the accuracy of her initial statements about the various killings, suggesting she had something to gain by implicating him in the various crimes, and questioning why she had waited four years to disclose the Vaught/Scheffler killings. He revealed that Charlene’s initial plea bargain proposal was refused by the prosecution, and suggested that she had fabricated the “other crimes” stories with the assistance of her own attorneys in order to obtain a more favorable plea agreement.

He spent considerable time establishing that Charlene “had a pretty rough idea [about where Vaught and Scheffler were killed],” but that she did not know “the exact spot.” In addition, he questioned Charlene about whether she first stated defendant used a crowbar, instead of a tire iron, to beat the two girls. This and similar questioning was apparently designed to discredit Charlene’s testimony by suggesting that her memory was imperfect.

The prosecution presented rebuttal testimony from Charlene’s attorneys to counter defendant’s theory that Charlene’s attorneys had obtained information on the Vaught/Scheffler killings and had given that information to Charlene so she could fabricate additional evidence against defendant. The prosecution then presented additional testimony to show defendant’s participation in the Vaught/Scheffler killings. That testimony presented the following picture. Vaught and Scheffler’s bodies were found two days after they were killed.

Both victims’ hands were tied behind their backs with string, and there were remains of adhesive tape on their ankles and forearms. There were lacerations on Scheffler’s scalp consistent with being struck by a blunt instrument such as a tire iron. She died from three gunshot wounds, inflicted by a gun that was fired while in contact with her head. Vaught had likewise been shot in the head at point-blank range, and had been struck with a similar blunt instrument. The pathologist found semen in Scheffler’s vagina and panties, but not in Vaught’s.

Experts testified that the bullet casings discovered at the scene and the bullets found in the bodies came from the same weapon, and the markings were “consistent with” an FIE firearm. In addition, the seminal stains were “Type A” antigen of the AOB system from a “positive” secreter. Scheffler had “Type O” antigen and her husband was a “Type O positive” secreter. Defendant is a “Type A positive” secreter; accordingly, his semen type is consistent with that found on Scheffler. Another expert testified that fibers recovered from Scheffler’s clothing matched fibers from the carpet of defendant’s van.

Finally, a plant taxonomist testified that although remnants of Bracken Fern were found on the victims’ socks, Bracken Fern does not grow in the Sloughhouse area where the victims’ bodies were found. Bracken Fern is a common ground cover in the Baxter area, however. All of this evidence strongly supported the prosecution’s theory that defendant transported the victims from Baxter to Sloughhouse, where he killed them. 4. Defense rebuttal Defendant presented a third party defense to the Scheffler/Vaught killings.

An employee of a drug store at the mall from which Charlene claimed she lured Scheffler and Vaught testified that Scheffler and Vaught were in the store about 3 p.m. on the day they disappeared. According to the employee, they accompanied a Mexican male who purchased four cans of motor oil. The employee later saw Scheffler and Vaught in the parking lot with the Mexican man, standing near a red Firebird automobile with Michigan bicentennial license plates; the three appeared to be friends.

An employee of another store testified that about 3:15 p.m., as he was leaving work to drive home, a maroon Firebird with a light interior and red, white and blue out-of-state license plates was in front of him. The occupants—two Black men—slowed down in an intersection and started a conversation with two White teen-age girls, whom the witness identified as Scheffler and Vaught. At that point the witness drove away. Four other persons, some of whom knew Scheffler and Vaught, were driving past in a truck at approximately the same time. Initially, two of these persons testified.

They saw a maroon or “burgundy” Firebird with Michigan bicentennial license plates and two Black men inside. They noticed the two Black men speaking to Scheffler and Vaught, saw the car passenger open his door, and watched as the two girls prepared to enter the car. At this point one person in the truck yelled “nigger lover.” The girls turned to look at the truck, then got in, and the Firebird was driven away. Later in the trial a third occupant of the truck, Jodie Anderson, testified to the above events as well. She believed these events occurred after 3:30, but certainly before 4 in the afternoon.

She recalled that she had called out to the two girls by name as they got into the car, and that once inside the car, Vaught appeared fearful. It appeared to her, however, that the girls entered the car voluntarily, so Anderson did not then think to call the police. Between 5:30 and 8 p.m. a married couple saw a red Firebird with out-of-state license plates drive slowly past their barn near the town of Galt, which is about five miles from Sloughhouse, where the bodies were found. They noticed that the driver and passenger in the front were Black males, and that two young girls were in the back of the car.

Later—after 8 p.m.— another couple, John and Virginia Keyes, were driving to their home in Galt when a very slow maroon Firebird or Camaro entered the road in front of them. Mr. Keyes was forced to brake hard, and came within 10 to 20 feet of the car. He noticed that the car’s interior light was on and that two Black men in the front seats were acting “funny.” He eventually saw the car turn onto Meiss Road, near the Sloughhouse Restaurant. Virginia Keyes saw the same events. She recalled the car had out-of-state license plates, and also described one or possibly two White girls in the back of the car.

She also stated that it appeared the light was on in the car in order to allow the front passenger to read a map. She admitted that two days after the event—after news of the discovery of the bodies had broken—she was interviewed by sheriff's investigators, at which time she told them she could not be sure, but she “may have seen” a third “person” in the backseat of the car. She did not mention seeing two persons in the backseat. One of the sheriff’s investigators who interviewed Mrs.

Keyes testified that she never told him she had seen even one girl in the car, and she did not tell him that the car had turned onto Meiss Road. About 8:30 p.m., Robert Silva, while working on his father’s Sloughhouse ranch, saw car headlights near the Meiss Road entrance to his father’s property in the area where the bodies were eventually found. Because of the darkness he could not tell what kind of car it was.

He did not bother to go to the area to investigate or ask the occupants to leave because it was not unusual to see cars on the property, and when he next looked the lights were not on, so he assumed the car had departed. In order to rebut defendant’s suggestion that Scheffler and Vaught were kidnapped and murdered by the two Black men in the Firebird, the People presented the testimony of the assistant manager and manager of a shoe store at the shopping mall where Charlene testified she had found the girls.

They recounted that Scheffler entered the store at 2:30 p.m. on September 11, asking for a cash refund for a pair of shoes. She was told she needed a receipt in order to obtain a cash refund. She returned between 4 and 5:30 p.m. with the receipt, and received the refund. Penalty phase evidence Near the conclusion of the guilt phase, defendant decided that if a penalty phase were necessary, he would not represent himself, but would accept appointment of counsel. He was represented at the penalty phase by Richard G. Fathy. 1.

The People’s case The People presented evidence that defendant had committed two additional murders, and various other crimes. Charlene, several police officers, and others provided the following testimony. a. Linda Aguilar. In June 1980—five months before the Miller/Sowers killings—defendant and Charlene drove through Oregon on the coast highway. There they met Linda Aguilar, five months pregnant, hitchhiking to a nearby town.

After she accepted defendant’s offer of a ride defendant pulled a gun, tied her hands behind her back, placed her on a bed in the rear of the van, and drove to a meadow where he ordered Charlene to walk away. Fifteen or twenty minutes later, when he ordered Charlene to return, she noticed that Aguilar was dressing. Defendant retied Aguilar’s hands and drove to a beach. Despite telling Charlene he would not “do anything” to Aguilar because she was pregnant, he took her from the van, knocked her unconscious, and strangled her. He buried her in the sand, using a hubcap to dig the grave.

The body was discovered two weeks later. She was dressed in clothing described by Charlene, and her ankles and wrists were bound by yellow nylon rope. She had been killed by a blow from a blunt object. Because of decomposition, it could not be determined if she had been strangled or sexually assaulted. After her arrest, Charlene directed police officers to the area where Aguilar had been killed and buried. b. Virginia Mochel. A month later—in mid-July 1980—defendant and Charlene stopped at the Sail Inn bar after spending the day fishing in the Sacramento Delta.

Defendant told Charlene he wanted to rob the bar and get “her too,” referring to the bartender, Virginia Mochel. After the bar closed they kidnapped Mochel and took her to defendant’s home. On the way she pleaded with him, saying she was concerned for her children. Defendant ordered Charlene to go inside, and he stayed in the van with Mochel. When Charlene eventually returned they all drove to where defendant and Charlene had fished earlier in the day. Defendant went to the back of the van, ordered Charlene to turn up the radio and not watch him, and strangled Mochel. They drove back home.

Mochel’s body was discovered three months later near a fishing area, her hands bound by fishing line. The body was severely decomposed, so it could not be determined if she had been sexually assaulted. A detective investigating Mochel’s killing contacted defendant and asked him if he had been at the Sail Inn on the night of Mochel’s disappearance. Defendant admitted he had been there, but claimed he had been drunk and remembered nothing of the evening’s events. When the detective later tried to contact defendant, Charlene falsely told him defendant was a truck driver and was often out of town.

After her arrest, Charlene led police officers to the exact spot where Mochel’s body had been found. c. The escape plan. While incarcerated in jail awaiting trial, defendant conspired with another inmate, Andrew Brice, to escape. Sheriff’s deputies found under Brice’s mattress a torn note reading, “Could be a ticket out of here. Lay dead. There is a snitch on the tier but I don’t know who. Can you get it. Put it under the heater outside your cell.” In a hidden location in front of Brice’s cell deputies found a jail-made shank, and in defendant’s cell they found mattress covers in torn strips.

A handwriting expert testified that in his opinion defendant wrote the note found in Brice’s cell. d. Mary Ellen Gallego. The jury learned by stipulation that defendant had committed acts of sexual intercourse, oral copulation and sodomy on his daughter, Mary Ellen Gallego, from the time she was 6 or 7 until she was 14. When Mary Ellen resisted, defendant told her the sex acts were “only natural.” He also beat her, and once chipped her tooth by hitting her in the jaw. Mary Ellen reported these incidents to the police in 1978.

In addition, a stipulation to defendant’s prior criminal record—including an adjudication for lewd conduct when he was 13 and an adjudication for armed robbery when he was 16—was entered in evidence. 2. Defense evidence An attorney from Mississippi, Frank J. Hammond, Jr., testified that he had represented defendant’s father in a murder case in the mid-1950’s. He stated that defendant’s life closely paralleled that of his father, and that the similarities between the two men were both eerie and shocking.

On direct examination Hammond read to the jury a lengthy letter written to him by defendant’s father, who was at the time in jail awaiting trial for killing a police officer. The letter described the writer’s state of mind at the time he killed the officer, and read in part as follows. “He was afraid and he kept begging me not to kill him, but I knew I was, and that thought made me feel good inside .... I told him I wouldn’t, but I knew I was, and I could hardly wait to kill him ....

I knew they would find out who killed this cop, but that didn’t matter to me because I was going to have a good time killing this cop. Still he begged me not to kill him, said he had a wife and children, but I never really heard him for I only had one thought in mind .... I made him start walking, and he knew then I meant to kill him .... I fired the first shot, and he fell to the ground moaning, I fired again but missed, so I walked over to him and put the barrel of the gun to his head and shot again. He laid still after that, and I turned around and got into his car, lit a smoke and drove off.

In killing him I felt no guilt at all. What I did I was justified in doing .... When I killed this cop, it made me feel real good inside. I can’t get over how good it did make me feel, for the sensation was something that made me feel elated to the point of happiness, for I had achieved in putting to death one of my tormentors. After killing him, I wanted to kill some more . . . .” Hammond explained he had attempted to prove defendant’s father was not guilty by reason of insanity, but was unsuccessful.

After defendant’s father was convicted of murdering a police officer, he threatened to kill the district attorney and the judge as well. While the case was on appeal, he escaped and killed another police officer. Defendant’s father was eventually executed in 1955. Defendant’s mother testified by telephone. She recalled defendant suffered physical and emotional abuse as a child. She testified she married defendant’s father (her third husband) at age 18, and contracted rheumatic fever and uremic poisoning during her pregnancy.

Defendant’s father left before defendant was born, and defendant never met or communicated with him. His mother remarried a fourth time but that stepfather beat defendant and would not allow him to show affection toward his mother. Defendant’s mother asserted his troubles could be traced to Charlene. She admitted, however, that she knew he had mistreated and sexually molested his daughter Mary Ellen before meeting Charlene, and that between the ages 13 to 17 he was incarcerated much of the time—the first occasion for a sexual offense committed on a 7-year-old girl.

She also testified defendant suffered head injuries from a car accident in 1968 or 1969. Dr. Charles Golden, a clinical psychologist with a specialty in clinical neuropsychology, testified defendant was not insane and had normal intelligence, but the right frontal lobe of his brain was damaged, and this condition was aggravated by alcohol and drugs. Dr. Golden felt defendant’s brain damage most likely stemmed from the late 1960’s car accident, after which defendant was in a coma for a week, but he noted that defendant had suffered numerous prior head injuries dating back to when he was five and fell from a tree.

The result of this frontal lobe brain damage, Dr. Golden stated, was that defendant did not see the world the way others did. Persons with such damage have difficulty discriminating one emotion from another; are typically manic-depressive; and, because they may feel others are conspiring against them, attempt to manipulate others. A psychiatrist, William Reed, testified defendant suffered from a severe personality disturbance, the primary feature of which was the persistence into adulthood of infantile characteristics. He “trusted” Dr. Golden’s conclusion that defendant suffered organic brain problems.

After exploring defendant’s family history, he also believed defendant had inherited various “antisocial personality traits” from other family members who had severe personality disturbances. He felt defendant’s emotional development had been retarded: although he had wished for a strong and protective father, he was angry with his own father, whom he never met; also, defendant wished for his mother’s love and attention, and he was furious with her for hurting him. He felt defendant’s victims were viewed by defendant as extensions of his mother, and his feelings toward his mother were displaced to them.

He felt that defendant’s own son—Gerald Armond Gallego, Jr., might face similar problems if, like defendant, he was unable to at least receive letters and communications from his father. Finally, Reed agreed that defendant was not insane but that he was severely disturbed. Hans Zeisel, a professor at the University of Chicago, testified that in his view (and the consensus view of other experts) the death penalty has not been shown to have a deterrent effect.

He pointed out that the present case demonstrates the death penalty apparently had no effect on defendant, who had not been deterred from committing his crimes even though he knew his own father had been executed. Finally, Dr. Craig Haney, a psychologist with a law degree who specialized in the psychology of imprisonment, described the physical security that would face defendant if he were sentenced to life in prison without the possibility of parole.

He testified specifically about the intensive security conditions at San Quentin, and asserted that a person sentenced to life without possibility of parole would never be able to leave the walls of the prison. Six months after the guilt phase trial began the jury heard closing arguments, was instructed by the court, and retired to deliberate. About two and one-half hours later it returned a verdict of death. II. Guilt phase issues 1.

The trial court’s rulings on defendant’s self-representation and related motions Defendant makes numerous challenges relating to the trial court’s rulings on his various counsel and self-representation motions. In order to analyze these claims we must set out in some detail the procedural history. Defendant was arraigned in Sacramento County, and he thereafter moved for a change of venue. In late March 1981, before that motion was resolved, he filed the first of many motions for a Marsden hearing (People v.

Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]), asserting that his counsel, Deputy Public Defender Donald Manning, had failed to file requested motions or secure the services of an investigator. Pursuant to Marsden, supra, defendant asked the court to discharge Manning and/or to appoint a different attorney. When a hearing was held, however, defendant told the court he was satisfied with Manning, and would withdraw his Marsden motion. Three months later defendant filed another Marsden motion, seeking substitution of Manning for his failure to file, inter alia, a suppression motion.

Defendant’s concerns were resolved to his satisfaction after discussing the matters with the court. In September 1981, however, defendant again raised the counsel issue, claiming a conflict of interest had arisen between him and Manning because Manning had made promises that he had not fulfilled. At a hearing on these matters defendant requested new counsel. After a subsequent in camera hearing the court denied defendant’s motion to relieve Manning.

Defendant then wrote to the court, claiming a “complete and total breakdown in communication” between himself and Manning, filed a declaration of conflict between attorney and client, and formally requested substitution of counsel. At a later hearing, however, defendant elected not to pursue his counsel motions, in favor of waiting for a ruling on a previously filed change of venue motion. Still later—in early 1982—defendant filed another declaration of a conflict with Manning.

After a hearing the court denied defendant’s request for substitute counsel, stating it had heard no new evidence establishing a true conflict. In March 1982, on Manning’s motion and pursuant to Penal Code

section 1095, the court appointed Richard G. Fathy as second counsel for defendant. In June of that year defendant filed a Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]), seeking to discharge both counsel and proceed in propria persona. Defendant agreed the court could defer ruling on the Faretta motion until after it ruled on his pending motion for change of venue. When the court granted the change of venue, the case was transferred to Contra Costa County, where defendant immediately renewed his Faretta motion.

Judge Spellberg, who eventually presided over defendant’s trial, conducted the Faretta hearing. After hearing defendant in camera, the court posed the question whether defendant should be examined by a psychiatrist pursuant to Penal Code

section 1368 (all further statutory references are to this code unless otherwise stated) to determine if he was competent to stand trial. Defendant, his counsel, and the prosecutor all opposed the court’s suggestion, and defendant asserted he would not participate in any such interview. After further discussion the court decided an examination would not be appropriate; it found defendant’s responses to be intelligent, alert and bright, and proceeded to consider the Faretta motion. The court questioned defendant thoroughly and advised him of the consequences of representing himself.

The court specifically advised defendant that “if you are dissatisfied with the counsel you have presently and may wish to substitute counsel, the court would entertain that as an alternative to your representing yourself.” Defendant asserted he did not want substitute counsel, he knew his case better than anyone else, and he wanted to represent himself. The court gave defendant a day to reconsider his request, and then brought in Justice Channell, then a superior court judge, to help explain to defendant the pitfalls of proceeding in propria persona.

After Justice Channell described his experiences with defendants who represented themselves in major cases, and after the trial court again advised defendant of the dangers of self-representation, defendant stated he had considered the matter carefully and still wanted to represent himself. The court advised defendant that he would not be able to stop the case in the middle of trial by announcing that he had changed his mind and wanted a lawyer. Defendant stated he understood, and the court, concluding defendant appeared competent to represent himself, granted his Faretta motion.

The court also appointed a third attorney—Thomas Maddock—as “advisory” and “standby” counsel for the guilt phase, and stated that it would appoint Fathy to handle the penalty phase if circumstances warranted. During voir dire defendant refused to communicate with Maddock, and repeatedly objected to the court in chambers about Haddock’s presence. After voir dire was completed defendant successfully moved to have Mad-dock dismissed. After the trial began defendant complained to the court that he was having difficulty making appropriate objections.

Approximately two months after jury selection commenced, and about one month into the prosecution’s case-in-chief, defendant—after failing to cross-examine Charlene’s mother and experiencing difficulty cross-examining Charlene—told the court in chambers, “The bottom line is I don’t know if I can continue .... I would respectfully request . . . that my lawyers be reassigned to my case.” He explained that he had not wanted to impeach his former mother-in-law, and that he had “emotional” problems cross-examining Charlene. The trial court responded, “I can’t reassign a lawyer at this particular point in the case.

If you wish me to get advisory counsel to come in, I will get advisory counsel. But I warned you when we started this case that I was unprepared to allow the case to be stopped in the middle, [fl] I cannot conceive of any lawyers willing to come in at this point. If Mr. Manning and/or Mr. Fathy wish to come into this case at this point and take it up at this point, I will assign them. But I know they are going to be unwilling to do so.

But I will certainly contact them.” Defendant stated that if Manning or Fathy refused to return he would continue to represent himself, and that he refused to allow Maddock to assist him. The court told defendant that it could attempt to locate other attorneys willing to enter the case if Manning and Fathy declined, and defendant responded he doubted any other lawyer would be willing to do so. The court contacted both Manning and Fathy and asked them to return to the trial after being granted a continuance.

Both attorneys declined, saying that because they had not participated in jury selection or heard the prior testimony, they would not return unless the court granted a mistrial. The court explained to defendant that in light of his earlier warnings about defendant’s changing his mind in the middle of trial, the court would not grant a mistrial. The trial resumed with defendant continuing to represent himself. At various later times defendant complained in chambers that he was having difficulty cross-examining Charlene.

When the prosecution proposed to introduce, as “other crimes” evidence, testimony about the Vaught/ Scheffier killings, defendant again asked the court to appoint Manning and/or Fathy. The court again contacted Manning and Fathy, but again each refused to reenter the case unless a mistrial was granted, and again the court stated it saw no grounds for so doing. Finally, for the third time— during the prosecution’s rebuttal—defendant announced, “this trial is not how I expected trial to be,” and asked the court to order Manning to return to the case.

The court reminded defendant that it had spoken numerous times with both Manning and Fathy, and that both refused to reenter the case unless a mistrial was granted, which the court refused to do. The court noted that it had attempted to find other attorneys willing to enter the case without a mistrial being granted, but was unable to locate any such counsel. The court allowed defendant to telephone Manning personally to attempt to convince him to return, but Manning held firm and refused to do so. As noted above, Fathy eventually agreed to return to the case to represent defendant at the penalty phase. a.

Waiver of counsel. Defendant asserts he did not make a knowing or intelligent waiver of counsel. (Faretta, supra, 422 U.S. 806, 835 [45 L.Ed.2d at pp. 581-582].) The record as a whole belies his claim, and demonstrates that the court cautiously and at length informed defendant of the dangers of self-representation, and that defendant freely elected his course despite all advice to the contrary because he felt he could present his case better than anyone else. (See People v.

Bloom (1989) 48 Cal.3d 1194, 1225 [259 Cal.Rptr. 669, 774 P.2d 698].) In his reply and supplemental briefs defendant cites numerous examples of his confusion over legal and other matters during the course of the six-month trial. It is hardly surprising that a lay person granted self-representation rights would find various aspects of trial confusing, and might present aspects of his case to his own detriment, but it is also irrelevant to the question whether the waiver of counsel was knowing and intelligent. (See Ferrel v.

Superior Court (1978) 20 Cal.3d 888, 891 [144 Cal.Rptr. 610, 576 P.2d 93].) As defendant himself stated to the court during the Faretta hearing, “Your honor, my knowledge of the law is not one of the factors that qualifies me for Faretta .... Whether I stumble through Witherspoon or sail through like a Supreme Court Justice would not be a qualification.” In a related argument, defendant, citing cases in which defendants elected to proceed in propria persona in the face of trial courts’ erroneous refusals to consider appointment of substitute counsel (People v.

Cruz (1978) 83 Cal.App.3d 308 [147 Cal.Rptr. 740]; People v. Hill (1983) 148 Cal.App.3d 744 [196 Cal.Rptr. 382]), also suggests the court should have interpreted his Faretta motion as a Marsden (supra, 2 Cal.3d 118) motion for substitution of counsel. He concludes the court erred in failing to determine whether defendant merely sought appointment of different counsel. As explained above, however, the Sacramento Superior Court addressed and resolved defendant’s Marsden concerns.

Six months later, after the matter was transferred to the Contra Costa Superior Court, Judge Spellberg expressly asked defendant whether he sought replacement counsel, and told defendant the court would be willing to entertain such a request. Defendant plainly responded he did not seek replacement counsel, and that he wanted only to represent himself because he felt he was the best advocate for his cause. We conclude, as we have in other recent cases, that the court did not err in failing to treat the Faretta claim as a Marsden motion for substitution of counsel. (See People v.

Crandell (1988) 46 Cal.3d 833, 854-855 [251 Cal.Rptr. 227, 760 P.2d 423] [“A request for self-representation does not trigger a duty to conduct a Marsden inquiry . . . or to suggest substitution of counsel as an alternative.”]; People v. Burton (1989) 48 Cal.3d 843, 855 [258 Cal.Rptr. 184, 771 P.2d 1270].) b. Defendant's competence to waive counsel. Defendant suggests that because the court at first considered requiring defendant to undergo a competency or psychiatric examination under

section 1368, it erred in later accepting defendant’s waiver of counsel. The record discloses, however, that the court was simply being cautious in suggesting the need for an examination, and it later stated that its initial concerns about defendant were incorrect. Indeed, the court concluded defendant did not appear to be any less competent than “anyone else in this courtroom.” The record plainly establishes that defendant had the mental capacity to realize the probable risks and consequences of self-representation. c. Failure to order a competency hearing. In a related argument, defendant suggests the court abused its discretion in failing to order a

section 1368 competency hearing. First, contrary to defendant’s view, People v. Hale (1988) 44 Cal.3d 531 [244 Cal.Rptr. 114, 749 P.2d 769] and People v. Marks (1988) 45 Cal.3d 1335 [248 Cal.Rptr. 874, 756 P.2d 260] are plainly inapposite; in those cases, the trial courts ordered hearings under

section 1368, but the hearings were never held. Here, as noted above, the trial court never ordered such a hearing. The record reveals the court’s preliminary concerns about defendant’s competency to stand trial were resolved to its satisfaction after discussions with defendant and both counsel. Because there was no “substantial evidence” (such as a sworn statement of a mental health professional that defendant was incapable of understanding the purpose and nature of the proceedings) of defendant’s incompetence to stand trial, the decision to order such a hearing was left to the court’s discretion. (People v.

Pennington (1967) 66 Cal.2d 508, 518 [58 Cal.Rptr. 374, 426 P.2d 942].) On this record we do not find the court abused its discretion. d. Conduct of “standby counsel." As noted above, Attorney Mad-dock was appointed standby counsel at the start of trial, but was relieved at the conclusion of voir dire. Defendant refused to speak or communicate with Maddock, objected to Maddock’s passing a note to him, and at various points complained to the court that he did not want the jury to receive the impression that Maddock was assisting him.

To this end the court granted defendant’s request that Maddock be instructed to sit far away from him, and that when it became necessary to hold discussions in chambers, Mad-dock should not enter the judge’s chambers with defendant, but rather should use a side door. Despite these precautions defendant insists Maddock’s presence was so intrusive he was denied his right to self-representation, citing McKaskle v. Wiggens (1984) 465 U.S. 168 [79 L.Ed.2d 122, 104 S.Ct. 944].

In that case the standby counsel was considerably more visible to the jury than was Maddock, and yet the high court rejected a claim of excessive interference with self-representation rights. For example, counsel in McKaskle, at the trial court’s request, questioned one of the defendant’s witnesses in order to lay a foundation for introduction of a document, and the defendant then resumed his examination of the witness.

The court found “irreproachable” this and other aspects of standby counsel’s involvement in the “basic mechanics” of jury trial. (Id., at p. 185 [79 L.Ed.2d at pp. 137-138].) In contrast, Maddock was not even introduced to the jury, defendant never consulted with him in front of the jury, and he was instructed to sit away from defendant. We conclude McKaskle provides no support for defendant’s claim of unreasonable interference. e. The court's rulings on defendant's motions to change from self-representation to counsel representation.

Defendant asserts the trial court failed to exercise discretion or judgment in the face of his midtrial requests for appointment of counsel, and that reversal is required. In People v. Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187], we set out various factors a trial court should consider when faced with a midtrial request to change from counsel representation to self-representation.

We expressed no opinion about the inquiry needed in the opposite situation, i.e., when a self-represented defendant seeks appointment of counsel midtrial. (See id. at p. 131, fn. 7.) Subsequent Court of Appeal decisions have addressed that issue. In People v. Elliott (1977) 70 Cal.App.3d 984 [139 Cal.Rptr. 205], the court held: “Some of the factors to be considered are similar to the factors involved in the exercise of discretion by the trial court in ruling on a defendant’s request to change from counsel-representation to self-representation.

Relevant factors should include, among others, the following: (1) defendant’s prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney, [fi] As in Windham, a trial judge must establish a record based upon the relevant factors involved and then exercise his discretion and rule on defendant’s request for a change from self-representation to counsel-representation.” (Elliott, supra, 70 Cal.App.3d at pp. 993-994; see also People v.

Cruz, supra, 83 Cal.App.3d 308, 321.) In People v.

Smith (1980) 109 Cal.App.3d 476, 484 [167 Cal.Rptr. 303], the court accepted the Elliott-Cruz factors, but added: “While the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.” We agree with Smith, and conclude that viewing “the totality of the facts and circumstances" the trial court here properly exercised its discretion.

As noted above, before trial defendant made numerous motions and declarations concerning his conflict with Manning and Fathy. Subsequently, however, he wanted only them to represent him. This history militates against defendant’s midtrial request. Defendant stated he changed his mind because he felt he could not adequately cross-examine Charlene and her mother. By that advanced stage of trial, however, he had exhibited considerable knowledge of both trial tactics and trial procedure.

In this setting, the court could have legitimately discounted defendant’s protestations, and concluded his future effectiveness would not be impaired. The request came late in the guilt phase trial, after a substantial part of the prosecution case had been presented, and after defendant had a chance to perceive that things were not proceeding as smoothly as he had envisioned.

Contrary to defendant’s claim that the court blindly held to its pretrial “warning” that defendant would not be allowed to change his mind about self-representation midtrial, the record shows the trial court on three occasions attempted, at defendant’s request and on his behalf, to bring former counsel back into the trial. And, contrary to defendant’s suggestion, the record does not suggest the trial court confined its search for appropriate counsel to Manning and Fathy and no one else.

In fact, the record demonstrates the court attempted, unsuccessfully, to locate other counsel willing to enter the case and accept a continuance. The court’s refusal, on these facts, to accede to counsel’s demand of a mistrial as the price of their return, does not render the trial court’s decision an abuse of discretion. The court was apparently willing to allow a continuance, and hence a delay of the trial, but was not willing to allow a mistrial, which the court felt was unwarranted under the circumstances.

Although the court might have simply ordered Manning and Fathy to return to the trial on threat of contempt (see People v. McKenzie (1983) 34 Cal.3d 616 [194 Cal.Rptr. 462, 668 P.2d 769]), we are not prepared to say in these circumstances that the court abused its discretion in failing to do so. In sum, we perceive no abuse of discretion in the trial court’s rulings. f. Defendant's presence during discussions with previous counsel.

In his supplemental brief defendant asserts the court erred by conducting in-chambers discussions by telephone with Manning and Fathy without his presence and without his express waiver of presence.

He asserts, inter alia, “[t]he proceeding was exceedingly important, as it determined whether counsel would reenter the case and what their specific reasons were for not reentering the case.” “As a general rule, the accused is not entitled to be personally present during proceedings which bear no reasonable, substantial relation to his opportunity to defend the charges against him, and ‘[t]he burden is upon defendant to demonstrate that his absence prejudiced his case or denied him a fair and impartial trial.’ ” (People v.

Hovey (1988) 44 Cal.3d 543, 573-574 [244 Cal.Rptr. 121, 749 P.2d 776].) In Hovey we held the defendant had no right to be present at an in-chambers hearing on his trial counsel’s competence. The People suggest defendant waived his presence by acceding to the court’s stated plans to telephone former counsel and to solicit other counsel as well, apparently without defendant’s presence.

We need not decide whether defendant waived his presence, however, because it is clear that in any event defendant cannot show that the telephone discussions between the court and former counsel bore a substantial relation to his opportunity to defend against the charges.

Nor can he show that his absence from such discussions would have altered his former counsel’s decisions (we note that the court had offered defendant the opportunity to telephone former counsel personally), much less that his absence prejudiced his case or denied him a fair trial. 2. “Death qualification” and “fair cross-section” requirement Defendant asserts the court erred by denying his motion for separate guilt and penalty phase juries, and in allowing voir dire “death qualification” of the jury. We have repeatedly rejected these claims (see, e.g., People v.

McLain (1988) 46 Cal.3d 97, 106 [249 Cal.Rptr. 630, 757 P.2d 569]), and for the same reason do so here. 3. Wheeler error Defendant, citing People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748], asserts the trial court committed prejudicial error by failing to make inquiry into his claim that the prosecutor was using his peremptory challenges to remove Blacks from the jury. As the People point out, however, the issue is waived because defendant failed to raise it at trial. (Cf. People v.

Carrera (1989) 49 Cal.3d 291, 331, fn. 29 [261 Cal.Rptr. 348, 777 P.2d 121].) At the start of a December 1982 hearing on defendant’s Buford motion (People v. Buford (1982) 132 Cal.App.3d 288 [182 Cal.Rptr. 904]; see also People v. Morales (1989) 48 Cal.3d 527, 545-549 [257 Cal.Rptr. 64, 770 P.2d 244]), the prosecutor clarified the scope of the hearing: “Your honor, I assume that this hearing is addressing itself to the limited issue of the so-called Buford motion.

And from the defendant’s written motion he, as I understand it, is limiting his objections to the fact that he claims there was an underrepresentation of Negroes in the panels that were sent to this department and of ex-convicts. He claimed they were systematically excluded .. . .” The court asked, “Is that correct, Mr.

Gallego? . . .” Defendant answered, “yes.” Now defendant points to his comment some 55 transcript pages later—at the end of the Buford hearing—to the eifect that the prosecution had disqualified all Blacks who “did hit the jury box.” He asserts the court’s failure to inquire into his comment requires reversal under Wheeler, supra, 22 Cal.3d 258. Defendant failed even to raise a Wheeler claim, let alone establish a prima facie case of misuse of peremptory challenges. No error appears. 4. Motions for a second change of venue or to sequester the jury a. Change of venue.

As noted above, the Sacramento Superior Court granted defendant’s change of venue motion. Both defendant’s counsel and the prosecutor agreed the trial should be held in neighboring Contra Costa County, approximately 50 miles from Sacramento, but defendant wanted the trial moved to Southern California. After the case was transferred to Contra Costa County, and after his successful Faretta motion, defendant moved for a second change of venue. He asserts the trial court erroneously denied his motion.

When faced with a colorable claim that a trial court’s denial of a change of venue motion may have denied the defendant a fair trial, the reviewing court must independently examine the record to determine “whether, in light of the failure to change venue, it is reasonably likely that the defendant in fact received a fair trial.” (People v. Williams (1989) 48 Cal.3d 1112, 1125-1126 [259 Cal.Rptr. 473, 774 P.2d 146].) In making this assessment we are guided by the following factors and principles.

First, we consider “the nature and gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim.” (Id., at p. 1125, and cases cited.) Second, we have also frequently recognized that review of such matters on appeal—as opposed to pretrial review by writ—affords the reviewing court the opportunity to analyze and consider the voir dire of the jurors actually selected. “ ‘[V]oir dire may demonstrate that pretrial publicity had no prejudicial effect,’ or conversely may corroborate the allegations of potential prejudice.” (Williams, supra, 48 Cal.3d at p. 1125, and cases cited.) We proceed to determine, based on these factors and guidelines, whether it is reasonably likely defendant did not have a fair trial. (Williams, supra, at p. 1126.) The charged offenses were obviously grave, and of a nature likely to attract much press attention.

There was in fact substantial coverage, both print and electronic, but the coverage occurred mostly in late 1980—two years before the trial—and in Sacramento, about fifty miles from Contra Costa County, which was at the time the ninth-largest county in the state. Defendant, although painted as a sex molester and an ex-convict in the Sacramento community by the Sacramento press, had no particular status in the Contra Costa community. Likewise, the victims, although presented as likable all-American college students in the Sacramento press, were not prominent in the Contra Costa community.

These factors, considered as a whole, do not lead us to doubt that defendant received a fair trial. Moreover, the voir dire of the actual jurors does not establish a reasonable likelihood that defendant did not have a fair trial. Of the 12 jurors who decided defendant’s case, 10 had not been exposed to any pretrial publicity. Of the two who had (Appel and Youngman), both stated their impartiality and ability to reach decisions based on courtroom evidence. Appel vaguely recalled reading an

article about college students in the Sacramento area who disappeared after going to a party. She remembered nothing more. She did not read any Sacramento newspapers, nor did she watch any television news. Youngman remembered reading one recent

article in a San Francisco newspaper about the charges involved in the case, the fact that defendant’s wife would testify against him, and defendant’s prior record. At first she said she remembered nothing specific from the article, but then stated she may have remembered something about a prior robbery. She then stated that if it was true defendant had suffered a prior robbery conviction, she would not hold it against him, because he would already have “paid his debt” to society for that offense.

Both jurors were subjected to individual voir dire on the impact of pretrial publicity, but defendant challenged neither for cause. (See People v. Jurado (1981) 115 Cal.App.3d 470, 491 [171 Cal.Rptr. 509].) Although we have noted that a juror’s declaration of impartiality is not conclusive (e.g., Williams, supra, 48 Cal.3d at p. 1129), here we have no basis to doubt the two jurors’ assertions that they would not be persuaded by the brief news accounts they had seen. We also observe, as we held in People v.

Harris (1981) 28 Cal.3d 935, 949-950 [171 Cal.Rptr. 679, 623 P.2d 240], that “ ‘juror exposure to information about a . . . defendant’s prior convictions or to news accounts of the crime with which he is charged’ ” does not “ ‘presumptively deprive[] the defendant of due process.’ [Citation.] ‘It is not required . . . that jurors be totally ignorant of the facts and issues involved.

In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion of the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard.

It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.’ ” Having reviewed the record independently, we are convinced there is no reasonable likelihood that defendant did not receive a fair trial. b. Sequestration of the jury. Defendant asserts the court erred in denying his alternative request to sequester the jury during deliberations. He raises a similar point concerning the penalty phase, post, in

part IV. 9. Whether to sequester the jury is a matter left to the sound discretion of the trial court. (§ 1121.) The record shows that after selection of the jury, and after the court denied defendant’s second change-of-venue motion, defendant asked the court to consider sequestering the jury during deliberations. The court responded that it “might consider” sequestering the jury during deliberations, and defendant responded he “would request that of the court.” The court replied, “Let’s wait till we get to that point.

We are a couple of months away from that.” Because defendant offers no showing that he raised the matter when the trial approached the time for deliberations, we could justifiably consider the point waived. In any event, on these facts, no abuse of discretion appears. The court frequently admonished the jury not to discuss or read or listen to reports about the case.

Defendant contends that “although no juror reported he or she disobeyed the court’s orders, it stretches the imagination to believe the jury could have been successfully insulated from the extensive media coverage,” and hence the court abused its discretion in failing to sequester. We decline to find an abuse of discretion based on defendant’s speculation. For similar reasons we also reject defendant’s apparently separate claim that publicity during the trial so contaminated the jury that a fair trial was not had. Defendant offers no credible support for his theory. 5.

Jailhouse tape recordings The police recorded various conversations between defendant and his visitors while defendant was in jail. Defendant asserts on various grounds that these recordings were illegally obtained and used against him at trial. a. Statutory-right-to-privacy claim. More than a year after the recordings were made in this case, we decided De Lancie v. Superior Court (1982) 31 Cal.3d 865 [183 Cal.Rptr. 866, 647 P.2d 142].

Relying on statutory grounds, we held for the first time that the police may not monitor the conversations of pretrial detainees for the sole purpose of discovering information to use against them at trial. (Id., at pp. 867-868.) We explained, however, that the police may monitor conversations to the extent “necessary to insure the security of the prison and the protection of the public.” (Id., at p. 868.) We subsequently held in Donaldson v.

Superior Court (1983) 35 Cal.3d 24 [196 Cal.Rptr. 704, 672 P.2d 110], that De Lancie was not retroactive, and did not require exclusion of evidence obtained before that decision was filed. (35 Cal.3d at p. 39.) Defendant asserts Donaldson was wrongly decided and we should apply De Lancie retroactively, and that the recordings here were not necessary to jailhouse security and should have been suppressed. We disagree on both counts. First, defendant offers no compelling reason to depart from our retroactivity analysis in Donaldson v. Superior Court, supra, 35 Cal.3d 24. Griffith v.

Kentucky (1987) 479 U.S. 314 [93 L.Ed.2d 649, 107 S.Ct. 708] notwithstanding, we have previously held that for questions of retroactivity concerning matters of state law we adhere to the test employed in Donaldson. (People v. Carrera, supra, 49 Cal.3d 291, 326-328.) In any event, and without belaboring the point, the record amply establishes that defendant was a major security risk while awaiting trial, that he made various plans to escape, and thus the recordings would have been permissible even under De Lancie, supra, 31 Cal.3d 865, to assist in jailhouse security. b. Fifth Amendment claim.

Defendant suggests the recordings violated his Fifth Amendment right to remain silent in the face of custodial interrogation. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) As the People observe, defend

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