THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE WILLIAMS, JR., Defendant and Appellant, 58 Cal. 4th 197

Opinion LIU, J. Defendant Robert Lee Williams, Jr., was convicted by a jury of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated), one count of attempted murder (§§ 187, 664), and one count of sexual penetration with a foreign object (§ 289, subd. (a)). The jury found true the special circumstance allegations that defendant committed multiple murders (§ 190.2, subd. (a)(3)) and committed the murders during the commission of robbery (§ 190.2, subd. (a)(17)), burglary (§ 190.2, subd. (a)(17)), and torture (§ 190.2, subd. (a)(18)).

The jury also found true the allegations that defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)) and inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). Following the penalty phase trial, the jury returned a verdict 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. FACTS A. Guilt Phase 1.

Prosecution Case On the night of July 15, 1995, defendant and two accomplices entered the residence of Gary Williams and robbed and murdered him and his father, Roscoe Williams. (Because the victims and defendant share the same surname, we refer to the victims by their first names. The victims were not related to defendant.) The men also sexually assaulted and attempted to murder Gary’s girlfriend, Conya L., but she escaped through a bedroom window. a. Robert Scott Robert Scott testified that he and Gary, working together, had committed over 20 armed robberies of credit unions during the early 1990s.

On July 4, 1995, Scott and Gary were sitting in Gary’s truck when defendant pulled up alongside in his car. Defendant got out of his car, grabbed Gary, and pressed a black nine-millimeter semiautomatic handgun against Gary’s neck, saying, “I know you niggers out there getting licks and I want my share of the money.” Scott testified that the term “lick” describes the proceeds gained from a completed robbery. Defendant threatened that if Gary failed to meet his demand, defendant would kill Gary and his family. Gary and Scott decided to rob a credit union so they could pay defendant and make money for themselves.

On July 10, 1995, the men robbed an Orange County credit union. Gary provided the guns and acted as the lookout while Scott and another man, Curtis Jackson, entered the credit union and stole $56,000. Scott and Jackson were captured following a high-speed police chase, but Gary fled in a different car and escaped. b. Conya L. Conya L. testified that she and Gary had been romantically involved for about a year, and that she was aware Gary made his living robbing credit unions. On the evening of July 15, 1995, Conya L. and Gary went out to dinner.

As they drove back to Gary’s home in Moreno Valley, Gary informed Conya L. that he needed to hurry back to the house because he had a meeting. Conya L. understood that Gary was meeting Ronald Walker, who was known as “Boochie” or “Black,” to buy a gun. As they turned onto Gary’s street, they drove past a burgundy vehicle. Upon arriving at Gary’s house, Conya L. observed that Gary’s father Roscoe was waiting outside. The group entered the house, and Conya L. went upstairs. From the master bedroom, she overheard Gary and Roscoe talking downstairs. Roscoe said he was going to the store and asked Gary for money.

Gary gave Roscoe some money, and Roscoe left for the store. From the bedroom window, Conya L. saw three men—defendant, Ronald Walker, and a third man who was never identified or prosecuted (third perpetrator)—leave a burgundy sedan and walk across the street toward the house. Defendant was carrying a black case. As the men approached, Conya L. heard Gary say, “Man, you didn’t see me and my girl? We passed you.” One of the men replied: “Nah, nigger. I was rolling a joint.” When the three men and Gary went inside the garage, Conya L. could hear “mumbled” talking.

Shortly thereafter, Walker appeared in the master bedroom and pointed a gun at Conya L. Walker was wearing a pair of yellow dishwashing gloves but no mask. He was soon joined by defendant, who was also wearing yellow dishwashing gloves but no mask. Defendant ordered Conya L. to remove all of her jewelry, which he then stuffed into his pocket. Because the suspects were wearing gloves but not masks, Conya L. believed they intended to kill her. Defendant asked Conya L., “bitch where’s the money?” When Conya L. said she did not know, defendant directed Walker to tie her up.

Walker bound Conya L.’s hands behind her back with duct tape, and defendant used a lamp cord to tie her ankles. Defendant threatened to rape and kill Conya L. if she failed to disclose the location of the money. The third perpetrator, also wearing yellow dishwashing gloves and no mask, then came upstairs and discussed stealing Gary’s clothes and shoes. Defendant told him to go back downstairs to “stay on duty.” Defendant then ransacked the master bedroom, stealing gold chains and jewelry. Eventually Roscoe returned from the store and called for Gary to let him in.

Defendant instructed the third perpetrator to “snatch his ass in the house.” Conya L. heard the front door open and defendant command, “get the fuck in here, old man. Don’t you say a motherfucking word.” The door slammed closed. Defendant ordered his cohorts to bring Gary and Roscoe upstairs. Gary and Roscoe, with their hands and feet bound, were dragged upstairs and laid in the hallway; Conya L. observed that Gary’s eye was bloody and swollen shut. Gary disclosed that money was hidden in a cologne bag in the master bathroom.

Dissatisfied with the amount found in the bag, defendant said: “That ain’t all the money .... Gary just hit two banks back to back.” Defendant then forced Conya L. into a bathroom. He shut the door, instructed Conya L. to remove her shorts, and pulled down her underwear. He then removed one of the yellow rubber gloves and, using up to three fingers, digitally penetrated Conya L.’s vagina several times. Defendant paused when Gary called asking to speak with him.

During the encounter, Gary referred to defendant as “Rob.” Upon exiting the bathroom, defendant said to the others: “Do his old man in front of him.” The third perpetrator went downstairs and returned with brown plastic trash bags. He drew one of the plastic bags tightly over Roscoe’s head. Conya L. testified that at that juncture, Roscoe did not appear to have been gagged with duct tape. Walker placed Gary in a chokehold and began choking him. Defendant then grabbed Conya L. and placed her in a chokehold, rendering her unconscious.

Conya L. testified she felt like she was in a dream state as she lay face up on the ground with defendant leaning over her, cutting her throat with a knife. Defendant complained that the straight-edge knife was dull and ordered the third perpetrator to get him a serrated one. Defendant then began cutting Conya L.’s throat with the serrated knife. At that point, the phone rang. Conya L. saw beams from a car’s headlights suggesting that a car was in the driveway. All three men went downstairs, leaving Conya L. alone.

Conya L. dialed 911, but upon hearing the men coming back upstairs, she left the 911 connection on, climbed out the window, and jumped to the ground below. Naked from the waist down, Conya L. ran from the house. After crying for help, she eventually lay down in the street, and police found her a short time later. c. Deputy David Glen Kirkendall Riverside County Sheriff’s Deputy David Glen Kirkendall testified that he responded to the 911 call and arrived at Gary’s house just before 11:00 p.m. Upon arriving, Deputy Kirkendall knocked on the front door.

When no one responded, he opened the garage and saw a pool of blood. He contacted police dispatch to report his finding and was informed that the office had received numerous 911 calls regarding a woman in distress. Deputy Kirkendall hurried around the block and saw Conya L. naked and “covered in blood.” When Conya L. pulled her hand away from her throat, blood began pouring out. d. Michelle Contreras Gary’s across-the-street neighbor Michelle Contreras testified that on the night in question she observed four cars rapidly accelerate away from Gary’s house in the same direction of travel.

One of the cars was Gary’s Chevrolet Cavalier, and another was an El Camino that Gary had been storing for a friend. The Cavalier and El Camino were recovered by police in the following days, and yellow dishwashing gloves were found inside the El Camino. e. Sheriff’s Investigator Brian Robert Fountain Riverside County Sheriff’s Investigator Brian Robert Fountain testified that law enforcement personnel found the bound bodies of Gary and Roscoe inside Gary’s home. Both victims’ mouths were covered with duct tape. Two knives, one serrated and one with a dull straight edge, were recovered near the bodies.

An empty black gun case was found in the street in front of the house. By stipulation, the parties agreed that neither defendant’s nor Walker’s fingerprints or palm prints were found in the house or on the gun case. Nor did any of the shoeprints located in the house match any of the shoes subsequently confiscated from defendant or Walker. Additionally, neither defendant’s nor Walker’s fingerprints were found on the yellow rubber gloves that were discovered inside the El Camino. f. Forensic Pathologist Joseph FI. Choi, M.D. Riverside County Forensic Pathologist Joseph H.

Choi, M.D., conducted the autopsies of Gary and Roscoe. Dr. Choi testified that neither victim’s body exhibited defensive wounds. Gary’s neck exhibited five nonfatal superficial cuts and a single stab wound that penetrated nearly two inches. Dr. Choi opined that the cause of death was blood loss due to a partially severed jugular vein, which in turn caused cardiovascular failure. Roscoe’s neck exhibited a deep slash wound that had fully severed his jugular vein and larynx. Dr. Choi opined that the cause of death was blood loss causing cardiovascular failure. Dr.

Choi further opined that the duct tape was applied to each victim’s mouth before he was fatally slashed or stabbed. g. Homicide Investigator Phil Ricciardi Riverside County Sheriff’s Homicide Investigator Phil Ricciardi traveled to the Riverside Community Hospital the day after the murders to interview Conya L. Investigator Ricciardi first presented Conya L. with a picture of Walker, whom Conya L. had previously identified to the police by way of his moniker.

Conya L. began crying and said “he was the one that did this to her.” Investigator Ricciardi then read Conya L. a photographic lineup admonition and presented her with a lineup containing a picture of defendant. Conya L. pointed to defendant’s picture and said “he was the one that was cutting on her throat.” At trial, Conya L. provided an in-court identification of defendant, stating: “I’m a hundred percent positive. . . . There is no doubt in my mind. ... It was Rob. We were in the bathroom with the light on.” In August 1995, Conya L. was visited by Riverside County Sheriff’s Detective Gary Thompson.

Detective Thompson presented Conya L. with a photographic lineup for the purposes of identifying the third perpetrator. Conya L. identified a man named Shawn Ford, but it was later discovered that Shawn Ford had been incarcerated on July 15, 1995, and could not have been the third perpetrator. h. Detective Martin Wildeman Las Vegas homicide detective Martin Wildeman testified that after the murders, the Las Vegas Metropolitan Police Department began conducting surveillance at a motel where defendant was suspected to be staying. On July 26, 1995, defendant was seen leaving his motel room wearing a wig and hat.

After defendant returned to his room, law enforcement officers surrounded the motel and took him into custody. Upon being arrested, defendant spontaneously declared: “I guess I’m fucked because I’m going to jail behind two murders.” Defendant refused to provide his name but said to another officer: “I’m hiding out because they’re looking to pin a homicide on me.” A loaded gun was found in the nightstand of the hotel room. At trial, Conya L. testified that she was “positive” the gun was the same gun that Walker had pointed at her during the attack. 2. Defense Case The defense called several witnesses to the stand.

First, Sonya Jimmons testified that she was working as a social worker at the Riverside Community Hospital when Conya L. was admitted in July 1995. Jimmons testified that Conya L. reported to her that she had been sodomized during her attacks and that her co-victims had each been shot in the head by their attackers. Jimmons also stated that Conya L. had a visitor when Jimmons was present and that Conya L. was laughing and joking. She further testified that Conya L. had requested a pregnancy test. Second, the defense called Riverside County Sheriff’s Deputy Don Plata.

Deputy Plata testified that he had participated in the investigation of the murder scene on July 15 and 16, 1995. He spoke with neighbor Michelle Contreras, who informed him that she had seen four cars leaving Gary’s house. Third, the defense recalled Conya L. and established that she had been convicted of misdemeanor welfare fraud in 1991. Conya L. subsequently lied about that conviction on two employment applications submitted in 1992 and 1996. Conya L. signed the 1992 application under penalty of perjury. In 1994, Conya L. fraudulently used a Medi-Cal card.

The defense also attempted to impeach the credibility of Conya L. and Scott through cross-examination. With respect to Conya L, for example, the defense noted that two days after the murders Conya L. had said in a taped interview that only two men had exited the car and approached the house, while at trial she claimed there were three men. Conya L. had also said in a taped interview three weeks after the murders that defendant was five feet seven inches tall and weighed 170 pounds. Defendant was almost six feet tall and weighed 275 pounds at the time of the murders.

With respect to Scott, the defense suggested that Scott had attempted to obtain a reduction of his prison sentence in exchange for testifying against defendant. In a letter dated June 5, 2002, for example, Scott had written: “I was willing to assist you [prosecutors] in the past, and I was under the impression your office back then was going to assist me with the US Attorney and judge in the [Lake Forest robbery] case.” B. Penalty Phase 1. Evidence in Aggravation The parties stipulated that defendant had been convicted of three prior felonies.

The first conviction was for possession of cocaine in 1986, and the others were for possession of a firearm by a convicted felon in 1992. Roscoe’s brother, George Frank, testified that Roscoe was 55 years old when he was murdered. Frank testified that Roscoe was caring, funny, morally decent, and well liked. Frank said that the family missed Roscoe terribly and that Frank’s grandchildren were aware that Roscoe had been tortured and murdered. On cross-examination, Frank acknowledged that Roscoe had struggled with drug addiction and had many criminal convictions for narcotics and theft.

Roscoe’s sister, Erma Foster, testified that Roscoe had been a good brother and friend, and “was never mean to anybody.” 2. Defense Mitigation Case Abel Zaragoza testified that he had worked as a correctional group supervising counselor at the Riverside County Sherriff’s Department in 1998. Zaragoza testified that defendant had voluntarily joined and participated in an anger management program while in prison.

Daniel Johnson, a teacher who offered general education and other courses to inmates on an independent study basis, testified that defendant had earned his GED and a certificate for anger management class completion. Defendant’s 17-year-old daughter, Fantasia Williams, testified that she wanted her father’s life to be spared. Defendant’s close friend Victoria Windom testified that defendant had been like a son to her and had acted like a big brother to Windom’s children. She said that defendant had always been respectful to her and had influenced her children to stay in school.

Donna Josey similarly testified that she had known defendant since he was 13 years old and that he had been like a son to her and had made friends with everyone. Defendant had been unable to establish a bond with his father, however, because his father used marijuana and crack cocaine. Josey further testified that defendant had worked at Burger King while he was young and had been a good worker. Pearl Lee testified that she had known defendant since he was young from the “projects” and that defendant had been like a big brother to Lee’s daughters and had encouraged them to stay in school. H. DISCUSSION A.

Speedy Trial Claim 1. Procedural Background Defendant argues that the nearly seven-year delay between his arrest and the start of his trial violated his right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution. Addressing this claim requires a somewhat lengthy recitation of the pretrial proceedings in this case. Defendant was arrested on July 26, 1995, and arraigned on August 11, 1995, along with codefendant Ronald Walker. Defendant was represented at the arraignment by Riverside County Deputy Public Defender Forest Wright.

After both defendants entered pleas of not guilty, the preliminary hearing was set for September 7, 1995, before Judge Myers. Following several requests for continuances by both defense counsel and for which both defendants agreed to waive time, a new preliminary hearing date was set for November 15, 1995. On November 9, 1995, Walker’s counsel sought a 20-day continuance because he was in another trial. Wright, however, opposed the continuance, explaining that his client “preferred to have the prelim as set.” Finding good cause, the trial court continued the matter until December 1, 1995.

On November 29, 1995, Walker’s counsel requested another continuance because of a scheduling conflict. Wright withdrew his opposition to the continuance, stating that he had been ill and had been unable to meet with defendant. Defendant agreed to waive time. Prosecutor John Ruiz objected, stating that he was ready to proceed immediately. The trial court overruled the prosecution’s objection, accepted defendants’ time waivers, and continued the preliminary hearing until December 22, 1995. During a status conference on December 14, 1995, Walker’s counsel requested another continuance.

Wright opposed the continuance on behalf of his client. The prosecutor also objected to any further continuances. The trial court denied the continuance request and pushed the preliminary hearing date up one day to December 21, 1995. On December 21, 1995, Walker’s attorney requested another continuance to listen to tapes that had just been provided by the prosecution. Defendant initially refused to waive time, stating: “I don’t want to waive no time. I want to come on and do this.” He explained: “[Tjhis case is my life. And I have been in jail five months.

And it seems like nothing new has come up in five months.” The trial court advised defendant to reconsider: “You can demand your right to go to preliminary hearing. That’s fine with the Court. I’m just saying, also realize that your attorneys have indicated they need to review some of this additional information. If that’s fine with you and you don’t care, . . . because you have knowingly indicated you want to go forth whether your attorneys are prepared or not ... it is going to preliminary hearing today.” Defendant then agreed to waive time.

The preliminary hearing was held on January 4, 1996, and both defendants were held to answer. Arraignment was set for January 17, 1996. On January 17, 1996, defendant requested a Marsden hearing to express his dissatisfaction with assigned counsel. (See People v.

Marsden (1970) 2 Cal.3d 118, 124 [84 Cal.Rptr. 156, 465 P.2d 44] [holding that “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney”].) Defendant explained that he was “not trying to be a problem” but that he felt his case was “getting nowhere.” He explained: “My attorney had my case for six months, and it’s nothing—it’s like we ain’t took one step.” He requested that he be appointed “an attorney that [was] not so busy.” Wright agreed, saying: “He’s right.

I am too busy. I would like to get rid of a few cases.” Nonetheless, he assured the trial court he would be able to provide a competent defense. The trial court denied defendant’s Marsden motion and set the arraignment for the next day. On January 18, 1996, both defendants were arraigned on the information, and the district attorney gave notice that the death penalty would be sought. Counsel for both defendants sought to continue the trial date beyond 60 days. Walker agreed to waive time, but defendant refused. Walker’s counsel then moved to sever the cases, stating: “We cannot be ready within 60 days, and if Mr.

Williams forces us to be going to trial within 60 days, I think my client would be severely prejudiced . . . .” The severance motion was continued, and the continuance motion was denied. The trial was set for March 11, 1996. On February 2, 1996, Walker’s counsel filed a motion to sever his case from defendant’s because he needed more time to prepare for trial and because defendant was refusing to waive time. At the next hearing on February 23, 1996, Wright joined in the motion to sever. The motion was denied. The trial court denied defendant’s second Marsden motion on that same date.

On March 1, 1996, Wright requested a continuance of the trial date over defendant’s objection. The court asked defendant: “I take it you want to continue to object to a trial date beyond that March 11 date; is that correct?” Defendant replied: “Yes.” Despite defendant’s objection, the court found good cause to continue the trial another 60 days to May 6, 1996. Shortly thereafter, the case was reassigned to Judge McConaghy. On May 3, 1996, counsel for both defendants moved to continue the trial date. Wright indicated he would be unprepared to proceed with the trial as scheduled.

The prosecutor announced that the prosecution was ready for trial. Defendant again expressed frustration with the lack of progress in his case and said he had not spoken with his attorney a single time since the last hearing. The trial court then held another Marsden hearing, at which point Wright acknowledged that his being “in court every day, all day” was impeding his ability to work on motions.

He indicated, however, that he was proceeding “as diligently as [he could] at this point, given the staff level that [he had] among qualified persons.” The trial court denied defendant’s Marsden motion and continued the trial to October 7, 1996. The trial court explained: “And I do this, that is, grant the 1050 motion [for a continuance] reluctantly because I know [defendant] wants a speedy trial. And, as I previously said, that the Court would like to get this trial. . . starting Monday morning.

I would be more than happy to do it, but we do have conflicting constitutional issues involved . . . . [f] And as I previously stated, the constitutional right to have a competent attorney, in this Court’s opinion, far outweighs the constitutional right to a speedy trial, which does not mean that we totally ignore the right to a speedy trial.” On August 30, 1996, the trial court considered defendant’s fourth Marsden motion.

Defendant again voiced his concern over his attorney’s lack of progress in preparing for trial: “I would like to see if it’s possible to relieve my counsel and represent myself in this case, because I don’t feel that I’m going to get a fair trial .... [Everything that [defense counsel] stipulated that he needed the extra 60 days for [at the last hearing], . . . still none of them was completed.” He then clarified: “If I can have a new lawyer appointed, then I know there’s no way in the world I would try to fight a case like this myself.

But if I cannot have a new lawyer appointed, that is my desire to represent myself.” Wright responded that defendant had been “a little bit stingy with his information at times,” and that “it’s not the case that nothing’s been done, because a lot has been done in this matter.” He added that the investigation was ongoing, but noted that defendant’s “life has been very different from a lot of persons’ background, and that’s created problems in finding relatives and finding a lot of things that are necessary.” During further closed hearings held on September 4, 1996, and September 11, 1996, defendant withdrew his request to represent himself, and the trial court indicated that it “fully intend[ed] to start this trial on October 7th.” At a separate hearing on September 4, 1996, the prosecutor announced he was ready for trial but “indicate[d] for the record that [he had] received no reports from either of the defendants relating to reciprocal discovery.” On September 11, 1996, Wright said he did not anticipate being prepared for the trial and requested second counsel or “Keenan counsel.” (See Keenan v.

Superior Court (1982) 31 Cal.3d 424, 430 [180 Cal.Rptr. 489, 640 P.2d 108] [trial court has discretion under statutes governing appointment of counsel to appoint a second defense attorney to assist in defense of a capital case]; § 987, subd. (d).) At the end of the hearing, the trial court asked defendant if he would be willing to “waive [his] right to a speedy trial until October 7th, plus 60 days thereafter . . . ?” Defendant agreed. On September 20, 1996, the trial court denied Wright’s request for Keenan counsel.

On September 23, 1996, defendant filed a petition for writ of habeas corpus in the Riverside County Superior Court asserting ineffective assistance of counsel. The petition was denied. On September 27, 1996, defense counsel for both defendants moved to continue the trial until January 27, 1997.

In a written declaration, Wright said he had “not completed investigation of the ‘guilt/innocence phase’ of the case.” He explained that his “on-going duties to represent other clients . . . necessitate^] [his] diligent attention to nine felony cases ... set for jury trial before the end of November, 1996, and also to one other death penalty case.” During the hearing, Wright said that he believed that a second attorney should be assigned to the case and that he would be “in much better shape” if his office could make that accommodation.

Asked if he would be willing to waive time, defendant responded: “I’ll go ahead and waive time. It won’t make any difference, but I’ll go ahead and waive time.” He requested the trial court’s assurance, however, that the new trial date would be fixed and firm: “I’d just like to know that after the continuance, the January 27, ten days after that, after that is you going to continue this again, or is this it?” The trial court responded that its “impression of what we’re doing is that we’re picking a firm trial date with a time waiver until that date, plus ten court days thereafter, with one little exception.

If there’s some reason why either of the defense attorneys need a . . . short continuance after that, to provide all the rights you two fellows have a right to.” On November 15, 1996, the trial court instructed Wright to provide the prosecution with a list of all unresolved discovery issues by December 13, 1996. After receiving the list, the prosecution indicated that it intended to contest several of defendant’s discovery requests. The trial court scheduled a hearing on the contemplated discovery motions for January 3, 1997. This date was later continued to January 15, 1997.

On January 15, 1997, defendant was represented by Wright’s associate, Deputy Public Defender Mara Feiger, who had agreed to serve as cocounsel. Feiger, along with Walker’s attorney, requested a continuance of the January 27, 1997 trial date. The trial court granted the request, and trial was continued to April 28, 1997. Feiger indicated that she expected the new trial date to be firm. Asked to waive time, defendant said he did not believe it would assist him to refuse to waive time because the matter would be continued over his objection: “[T]he way it sounds, it don’t really make a difference if I agree or not.

It seems like everybody else agrees to it. I mean, me saying no ain’t helping me other times. I don’t see how it’s going to help me now. . . . [(0 I mean, it don’t help me none to sit here and say, no, I don’t waive my time, because the thing’s going to be continued.” The trial court accepted defendant’s comments as a valid waiver and continued the trial to April 28, 1997. The trial court held various hearings on discovery-related matters in February and March of 1997.

On March 7, 1997, the prosecutor requested that the court redact Conya L.’s address and phone number from certain documents before they were turned over to the defense. The trial court ordered the parties to brief the issue. On March 21, 1997, Feiger indicated that she anticipated requesting a continuance because she wanted to bring a motion to compel numerous discovery items. On March 24, 1997, the trial court held a fifth Marsden motion hearing.

At the beginning of the hearing, defendant stated that he “[didn’t] know if this was the proper way to address what I wanted to address,” and explained that he simply wanted to speak to the court. He first attempted to apologize for his behavior, but the trial court responded: “I’m not worried about your behavior.” Defendant then stated: “I just wanted to say this. You have been basically familiar with my attempts over and over trying to relieve Mr. Wright of counsel, and my not waiving time, trying to hurry up and rush the trial.

The reason that I was doing that was because I felt that this was just going to get against—pushed to trial. And the outcome is already set. . . . Now, since Ms. Feiger has been on my case, a lot of the things that we got continuances for a year ago just now started getting done; a lot of the investigation, a lot of—just basically preparing for my defense just started getting done since she’s been my attorney. . . . Now, I see the work that my attorney is doing, and I also know, just like I knew then, that I am facing death in this case.

So I just want, if possible, to give her whatever time she can get, or what she would need.” When asked if he wanted to relieve his two lawyers, defendant responded: “I don’t want to fire Ms. Feiger. If I can fire Mr. Wright, I would love to. But I failed on, I think, four different times so I kind of gave up on that.” On March 31, 1997, Feiger filed a motion to compel the prosecution to produce Conya L.’s address and requested a continuance. Also on that date, the prosecution indicated that it was in possession of taped jailhouse conversations between Walker and his girlfriend to which defendants were entitled.

Defendant waived time, and the trial court continued the trial to July 28, 1997. On April 29, 1997, the prosecution indicated that it had turned over to the defense the recorded conversation between Walker and his girlfriend, but that it had not yet provided a transcript of the girlfriend’s statement to the police. Also on that date, the parties revisited the question of whether the defense was entitled to disclosure of Conya L.’s address and telephone number.

After several more hearings on this question, the trial court ruled on June 6, 1997, that it would not order the requested information disclosed to the defense. Also on June 6, 1997, counsel for both defendants moved to continue the trial in light of the ongoing discovery disputes. Defendant waived time, and the trial date was continued to October 10, 1997. On August 7, 1997, the parties continued litigating various discovery issues, including defense counsel’s request for the address of another witness. The trial court ordered the prosecution to produce the address.

The prosecution was granted a two-week continuance to consider taking a writ to challenge the ruling. When no writ was filed, the trial court granted the prosecution an additional 15 days to respond to the court-ordered disclosure. On September 5, 1997, Walker’s counsel declared a conflict and sought to be relieved. The motion was granted two weeks later, and an attorney from the criminal defense panel (CDP) was appointed to represent Walker. The trial court heard multiple defense discovery motions on September 29, 1997.

On October 7, 1997, Feiger said she probably would not be prepared to go to trial for at least a year because she believed that the prosecution had failed to adhere to its discovery obligations.

Walker’s new counsel similarly indicated that he would not be prepared for trial for at least six months and “probably closer to ... 12 than six.” The prosecution objected to any continuance and claimed that the defense “was engaged in a fishing expedition.” The prosecution also argued that the trial court had “an obligation to appoint counsel, where counsel on the case can proceed in a fashion that would not disrupt the orderly administration of justice,” and that it was not appropriate for the court to grant a year-long continuance “just so CDP can keep it in-house.” The trial court acknowledged that “discovery ha[d] not been smooth in this case in either direction” but said it was not “pointing a finger” at either the defense or the prosecution.

The trial court ultimately granted the motion to continue and set a “firm” trial date for August 3, 1998. Defendant agreed to waive time. On December 5, 1997, the prosecution requested an additional two weeks to respond to a defense motion to compel disclosure of witness information. The request was granted. On January 23, 1998, Feiger said the prosecution still had not turned over the discovery items the trial court had ordered produced on September 29, 1997. The prosecution addressed each item in turn and agreed to provide the missing items.

The parties dispute whether or not the relevant materials had been provided in a timely fashion. On April 3, 1998, the public defender’s office declared a conflict with defendant. A representative of the public defender’s office, Floyd Zagorsky, said that while he was not at liberty to discuss the nature of the conflict, it was “a result ... of information that we received recently from the prosecution ... we felt should have been provided much earlier in the case.” In response, the trial court relieved Wright and Feiger.

Because of the conflict, defendant’s case was referred to the criminal defense panel, and CDP attorney Jay Grossman sought and received a 31-day continuance to arrange for another lawyer to represent defendant. A month later, on May 4, 1998, Grossman was granted a 27-day continuance as he continued to arrange for defendant’s representation. On June 2, 1998, CDP attorney Grover Porter was appointed to represent defendant. Porter requested that the trial be scheduled for February 23, 1999, so that he could have adequate time to prepare. Defendant agreed to waive time.

On September 18, 1998, Porter asked to withdraw for health reasons. The trial court granted the motion. On September 25, 1998, CDP attorney Douglas Myers was appointed as counsel. On October 1, 1998, Myers appeared and indicated that CDP attorney John Aquilina would be his cocounsel; the hearing was continued until October 20, 1998, to determine how long defense counsel would need to prepare for trial. On October 20, 1998, Myers was relieved, and Aquilina said he needed an additional two weeks to evaluate the file in order to determine when he could be ready for trial.

On November 3, 1998, stating that he had recently received “eight boxes of materials,” Aquilina requested that the trial date be pushed back seven months. The trial court found good cause to continue the trial to June 14, 1999. On January 22, 1999, Aquilina indicated that another death penalty case was “[occupying a great deal of [his] time” but that he still anticipated being ready for trial on June 14, 1999.

On April 23, 1999, Aquilina requested that the trial date be continued in order for him to conduct additional investigation and because of an issue regarding his investigator that he could only discuss in camera. The prosecutor opposed the request, highlighting the age of the case and pointing out that defendant’s investigator had been involved with the case “for years.” The trial court agreed that defendant’s case was then “the oldest one in the courthouse” but agreed to hold an in camera hearing to discuss Aquilina’s concerns.

During the in camera hearing, Aquilina informed the trial court that Grover Porter had retained an investigator in June 1998 but that neither Porter nor Aquilina had asked him to “conduct any investigation whatsoever.” About three weeks prior to the in camera hearing, the investigator had informed Aquilina that he needed to withdraw from the case to care for a terminally ill family member. As to retaining a new investigator for the guilt case, Aquilina believed that one would be available in June.

A paralegal who had worked for Wright on the penalty phase would also be available after her final exams were completed in June. Summing up the situation, Aquilina said “no investigation [to] my knowledge has been conducted since the public defender’s office was relieved in April of ’98.” At the hearing, Aquilina further commented: “I guess what distresses me the most is that the public defender was appointed to Mr. Williams’ matter, it appears, on August the 11th of 1995, was relieved in April of 1998, after declaring a conflict of interest.

And ... it would appear all an attorney would have to do is catch up to what has occurred.

Quite candidly, I don’t see that even five percent of the investigation necessary in the guilt phase of this case has been conducted.” Aquilina noted that various witnesses had not been interviewed and that “trying to locate witnesses, contact witnesses, interview witnesses” going forward would “obviously not [be] as easy as it would have been back then.” Aquilina apologized to the court that during his own representation of defendant since October 1998, he had not moved the investigation forward because his engagement on two other death penalty matters had prevented him from working on defendant’s case.

Aquilina said he did not think that “mentally, emotionally, psychologically” he could handle “three capital cases in one year in a twelve-month period.” Toward the end of the hearing, the court said to defendant: “I’ve held a few Marsden motions with you and a few motions that weren’t truly Marsden motions, but when we got to talk about what’s going on—and I think it’s safe to say it’s been your concern all along that not enough has been done in your case.” On May 13, 1999, Aquilina requested that the trial date be continued. The prosecutor opposed the request. Walker also opposed the continuance request.

Defendant waived time, and the trial court continued the trial until January 10, 2000. Four days later, on May 17, 1999, the trial court held a sixth Marsden hearing. Defendant indicated that he had been unable to communicate with Aquilina or his staff, and voiced his concern about Aquilina’s apparent failure to make any progress on the case.

Defendant also expressed his fear of going to trial “with an attorney that only knows bits and pieces of the case.” Aquilina acknowledged that defendant was “partly correct” in that he “[had] not been able to give [defendant’s] case or [defendant] the attention he needs or deserves.” Aquilina represented, however, that he would be prepared to start the trial in January 2000. Defendant’s Marsden motion was denied, and on June 25, 1999, CDP attorney Regina Filippone joined Aquilina as cocounsel for defendant. On August 30, 1999, the trial court held a seventh Marsden hearing.

During the hearing, the presiding judge left the courtroom, and Aquilina disclosed to a different judge that one of his other clients might have information that could impeach Conya L.’s testimony in defendant’s case. In light of this potential conflict of interest, defendant’s Marsden motion was granted. On September 2, 1999, CDP attorney David Gunn was appointed to represent defendant. On October 1, 1999, Gunn said he needed several weeks to determine when he could be ready for trial and also said he was in the process of securing cocounsel.

On October 22, 1999, Gunn indicated that the January 10, 2000 trial date was unrealistic and that he was still in the process of securing cocounsel. On November 22, 1999, Gunn explained to the trial court that he was still attempting to secure cocounsel and would not be prepared for trial in January.

Noting Walker’s objection to any further continuances and “recognizing that this is going to take two juries,” the prosecutor said he was “prepared to make a motion to sever the two cases.” On December 17, 1999, the trial court granted the severance motion, stating: “[I]n fact, I wish we would of thought of this at least a couple of years ago. But we didn’t. Or at least we didn’t talk about it.

It seems like it might be the only way we’re ever going to get this case to trial is to sever it and bite the bullet and actually do the case twice.” Also on that day, Gunn announced that CDP attorney Bruce Cormicle would be serving as cocounsel. On December 21, 1999, the trial court heard defendant’s eighth Marsden motion. Defendant indicated that he wanted to bring to the trial court’s attention the fact that he was having difficulty communicating with Gunn “before we get too far down the line.” He also stated: “I’m tired. I want to go to trial. I’m tired of sitting here.

As you recall, two years ago, three years ago, I didn’t want to waive no time. I wanted to go to trial then. I look at—like, you understand, my life is on the line. If I was going to lose my life, let me lose it now and not sit in here for four, five years, which looks like I ended up doing anyway. In the last two years, nothing’s been done.” The trial court denied the motion. Also on December 21, 1999, following the Marsden hearing, Gunn informed the trial court that he had “about eight murder cases still set pending for next year” and that he would therefore request a trial date of October 2, 2000.

The trial court granted the request. On January 14, 2000, GDP attorney Cormicle officially appeared as cocounsel for defendant. During an April 7, 2000 status conference, the trial court inquired if the parties would be prepared to go forward with the October 2, 2000 trial date.

Gunn said that the defense was “on track” but that he had “lost [his] investigator due to family problems” and that he was just in the process of getting new investigators “on board.” On May 12, 2000, Gunn indicated that his effort to retain an investigator had been unsuccessful and that the problem would likely affect his ability to be prepared for the upcoming trial date. On June 9, 2000, the trial court held a ninth Marsden hearing. The trial court concluded the hearing when defendant acknowledged that he did not want to “fire[]” his attorney and simply wanted to apprise the court of the status of his case.

The same day, Gunn informed the trial court that he had just gotten funding approved for an investigator and that before the funds were approved, he had experienced “a period of time of about two months where we kind of lost our ability to have investigative work done.” On July 14, 2000, the trial court heard defendant’s 10th Marsden motion. Defendant voiced his concerns as follows: “I would like counsel dismissed on my case, due to the fact that from day one ... to the present date, me and counsel does not have no opportunity to sit down, and he actually know anything in this case. Ask him about the case.

Time and time again he told me that he would get caught up with the case. That’s all been a lie. We referred to the Court four months ago we didn’t have an investigator. We got an investigator three months ago.

To the present date, no investigator has been to talk or—the case been at a stand still for 10 months since Dave Gunn been on the case.” In response, Gunn acknowledged that because of his problems finding an investigator and obtaining the requisite funding, he had lost “three to four months, in terms of actual preparation of the investigation.” He also acknowledged that the investigator had not met with defendant since funding had been approved because of “vacations” and that the investigator had been “working on a death penalty case in Rancho Cucamonga that was just concluded.” After hearing both sides, the trial court issued the following ruling: “I’m going to deny the motion. . . .

The bottom line, as I see it . . . is to have adequate representation and be prepared for trial is a must. Whether or not that gets done on a full-time basis working from sun up to sundown for a short period of time, or anything in between that, and working an hour all day for 10 years I don’t think is what’s important. [][] What’s important is, is there adequate representation at the time we get started at trial? And so I can’t even pretend that I know enough or that I have the power or authority to tell Mr. Gunn you must work ex number of hours this week on this case, because he has to manage his calendar.

He’s got other clients he is also working for. ...[][] I understand from your stand point, Mr. Williams, that you’re the person that’s on the line here. You have been—this is an old case in many respects. This case should have been to trial a good long time ago. No one is going to quibble about that. If we would have bifurcated a good long time ago, perhaps we would have had part of it to trial already and had been done. Didn’t do so. That’s neither here nor there. That’s just a fact of life, [f] I see no reason why this one won’t get to trial in a timely manner now.

And I’m just—I don’t see any reason to grant the motion.” On August 11, 2000, defendant moved to represent himself. (See Faretta v. California (1975) 422 U.S. 806, 819 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta).) On August 16, 2000, the trial court granted defendant’s Faretta motion, but directed Gunn to remain as “standby counsel.” At defendant’s request, the trial court continued the trial date to February 5, 2001. At a hearing held on October 6, 2000, defendant voiced concerns regarding Gunn’s role as standby counsel.

Defendant further noted that he had filed a malpractice suit against Gunn and said he did not “know if that would declare a conflict or not.” Defendant also claimed that his court-appointed investigator would not take his calls and failed to visit him in jail. On October 13, 2000, the trial court considered defendant’s motion to compel disclosure of various discovery items.

The trial court indicated that it would “handle that [motion] like I would any other discovery motion” and “order that ... the defendant and the district attorney ... get together and narrow the list down to items that one side still thinks they have a right to.” The trial court also informed defendant that it had no role to play in defendant’s request for funds. On November 3, 2000, Attorney John Davis filled in for Prosecutor John Ruiz and requested that the hearing on defendant’s discovery motions be postponed until Ruiz’s return.

Davis noted that Ruiz “would ... be the person to argue on [defendant’s] current motion, which appears to be a discovery motion for six or eight . . . audio tapes and 911 logs . . . that normally we don’t object to, but we probably have not provided to him previously. And they probably should have been.” The trial court continued the hearing until November 9, 2000. On November 9, 2000, Ruiz was “still ill,” and the trial court again postponed the hearing.

On November 22, 2000, Davis informed the trial court that Ruiz would likely “be ill for probably another three or four weeks.” Defendant stated for the record: “[I]t seems like it’s getting impossible to get investigation and discovery issues. And I just hope it don’t be difficult when that time come to go to the next phase, as far as you understand having to fight for a continuance and not look like it’s my reason why I need the continuance.” The hearing was continued until January 4, 2001. On January 4, 2001, Ruiz was still ill.

The trial court expressed its concern with Ruiz’s continued absence and suggested that Davis be prepared to take over the case: “I’m a little bit concerned that we’re—Ruiz can try this case easily enough because he tried [Walker’s] companion case earlier. . . . But we don’t know what his health is. ... I don’t want Davis to think I’m trying to run the DA’s office, but Davis can try this case. . . . Davis is a good enough lawyer.

He’s got enough time that he can be ready. . . . [Ruiz is] the best candidate to try it because he’s tried the other half of it, but I don’t want to get into a position where [defendant] is caught between a rock and a hard spot because the DA’s office is not ready.” The hearing was continued until January 12, 2001. Ruiz returned for a hearing on January 12, 2001. During the hearing, defendant claimed that the prosecutor had failed to provide him with discovery; the prosecutor, in turn, responded that some of the requested items had been turned over to the defense long before.

The trial court ordered the parties back on January 26, 2001, to consider a new trial date. The trial court also denied defendant’s request that the trial court “appoint a second counsel.” On January 26, 2001, defendant filed a motion to disqualify the trial judge pursuant to Code of Civil Procedure

section 170.1. On the same day, the prosecutor informed the court that his office had made copies of several of the tapes defendant had requested but that “[defendant] doesn’t get these until they are paid for.” Defendant responded that he had no investigator and that he did not know if funding had been approved. On January 30, 2001, the trial court denied defendant’s

section 170.1 motion. On January 31, 2001, defendant stated that he needed a six-month continuance, explaining that he was “starting from scratch” and needed time to prepare. The prosecutor objected to further delay, represented the prosecution was ready to proceed to trial immediately, and complained that defendant was utilizing his in propria persona status to cause delay. The trial court granted defendant a two-month continuance until April 2, 2001. On February 23, 2001, the prosecutor told the trial court that he had given his investigator’s phone number to defendant.

Defendant responded that the investigator never picked up the phone to accept his collect calls. Also on February 23, 2001, defendant filed another motion to disqualify the trial judge pursuant to Code of Civil Procedure

section 170.1. The motion was denied. On March 7, 2001, defendant filed a motion to disqualify the prosecutor pursuant to Penal Code

section 1424, another motion to disqualify the trial judge pursuant to Code of Civil Procedure

section 170.1, and a motion for a change of venue pursuant to Penal Code

section 1033. The motions were all denied. On March 16, 2001, defendant waived time, and his motion for a continuance was granted over the prosecutor’s objection. The trial was continued until June 4, 2001. On March 20, 2001, defendant claimed that tests had been performed on his clothing but that the results had never been produced; the trial court put the matter over at the prosecutor’s request. On April 5, 2001, Ruiz turned over the clothing and test results, which revealed that no blood had been found on the clothing.

Also on that date, defendant indicated that some of the tapes the prosecution had provided contained no audio; Ruiz responded by promising to have copies made and to turn them over to defendant once they were paid for. The trial court also granted defendant’s request that his wife, Sharon Williams, be appointed as his unpaid legal runner.

On April 17, 2001, the prosecutor told the court that defendant had been provided additional copies of discovery that he did not believe to be in his files, and said defendant had refused to reimburse the district attorney’s office for the cost of photocopying the requested documents. On May 1, 2001, standby counsel Gunn indicated that standby cocounsel Cormicle would be unavailable in June and therefore requested that the trial date be pushed back into July 2001.

The court stated that the reason it “appointed standby counsel [was] because [it believed] there [was] a better than even chance [standby counsel would] end up trying the case” and that it would therefore be prudent to allow standby counsel adequate time to prepare in case they were called upon to take over the defense. Defendant said he did not oppose the request and waived time. Over the prosecutor’s objection, the trial court continued the trial until July 30, 2001. On May 18, 2001, the trial court denied defendant’s motion to remove Gunn as standby counsel.

During a June 15, 2001, trial readiness conference, the trial court noted that it had received a letter from defendant’s court-appointed investigator notifying the court that the investigator was “no longer” on the case and asking for his appointment to be terminated. In the letter, the investigator stated: “I find it impossible to work with Mr. Williams.” The trial court granted the investigator’s request and relieved him from the case. On June 28, 2001, the trial court heard defendant’s motion to remove Gunn as standby counsel.

Citing the civil litigation he had filed against Gunn, defendant argued that Gunn would not do his “best” because a guilty verdict would provide Gunn with a defense to defendant’s pending civil suit. Gunn indicated that he was “concerned enough” about the potential conflict that he had “called the State Bar,” but stated that he still believed he could serve as standby counsel. The court denied the motion. Also on June 28, 2001, the prosecutor argued that defendant was engaged in delay tactics. The prosecutor stated: “The court knows how long I have sat back and waited. But ... the letter by Mr.

Evans [(defendant’s investigator)]—you know, thank God a non lawyer addressed this court because this non lawyer told you in no uncertain terms what the problem is. And that’s symbolic of what the problem has continued to be. As he states in his letter, he asked to be relieved from his position, appointed as his investigator, quote, T find it impossible to work with Mr. Williams.’ This letter lays out how Mr. Williams has done everything to delay the proceedings in his dealings with the investigator.

He takes a hostile attitude with his own investigator and refuses to cooperate with him.” The trial court noted at this point that defendant had chosen and hired this investigator himself. The prosecutor agreed and added: “The record has shown that this defendant has tried to fire every lawyer he has ever had.” When defendant interrupted by saying, “Not Mara Feiger,” the prosecutor said that “the only reason he did not try to fire Mara Feiger is because he saw in Mara Feiger a lawyer who was going to tell him to violate Court orders that you just laid down in the courtroom in that very session. . . .

This is only going to delay the proceedings and stretch it out. So the only attorney he never tried to fire was Ms. Feiger. And she did him the favor, after representing him for a year and a half, of declaring a conflict of interest, knowing that that was going to delay the trial another year, playing right into the defendant’s hands. So no wonder he wants to put her up on an alter [sz'c]. She did his bidding. “What do we see here in the letter? We see a non lawyer addressing the Court letting us know what’s going on with Mr. Williams. “He tried to fire Forest Wright so many times I can’t count them.

Then he was given Grover Porter. Mr. Porter’s health did not allow him to take the aggravation that we now see that Mr. Williams dishes out to the people that are forced unfortunately to deal with him. He fired—or he Marsden’d John Aquilina, [f] Your honor has done so many Marsden motions on Mr. Gunn as counsel, I think it says something. When you look back—this is a conservative estimate—he’s made 25 Marsden motions.

Now, at some point the world says, ‘Is it us or is it him?’ And it’s him.” The prosecutor then urged the trial court to relieve defendant of his Faretta status: “Your Honor has the basis today for relieving the defendant of his pro per status by finding that the defendant has used and manipulated his pro per status to delay these proceedings. Because if the Court enjoys discretion in anything, it is to effect the orderly administration of justice in this courtroom. “Your Honor, Mr. Williams—I want to add to that how long we’ve been on this case. We arrested Mr.

Williams two weeks after the murders on July 15th of 1995. In two weeks, we’ll celebrate the sixth anniversary of the murders in this case. And he has done everything he can to stretch it out, to delay it, to avoid this day, in the hopes that Conya dies, that the other witnesses are unavailable. There has been evidence of the defendant’s attempts to have Conya killed from years ago. “Your Honor, I think the appellate courts are going to say, ‘Mr. Williams, six years is long enough.’ He is no closer to trial today than he was a year ago. He doesn’t even have an investigator. No investigator will work with him.

How is he going to serve subpoenas? ... No subpoenas served. I haven’t seen one witness list from him. I’ve got no discovery from him. [f] Judge, enough is enough. Please grant the motion.” When asked if he wished to be heard, defendant explained that he had had a dispute with his investigator over funding, and that the reason he liked Mara Feiger but not his other attorneys was that she was the only attorney who had made progress on his case. He then stated: “I—at this point, I’m kind of, like, fed up. Whatever y’all want to do. . . . This is your house. I’m burnt out. [][] But the—I will say this here.

You give this man the case. The man don’t know nothing about the case. ... If I have the case, I’m not asking for no continuance. I’m not asking for . . . you to put it off. As far as our trial date stands now, I am ready to go to trial. ... I know my case. I feel I know my case better than any other attorney to have my case besides Mara Feiger. I feel the only reason I want to fight my case—I know I’m in over my head, but the only reason I want to fight my case, because I don’t want to go to trial with somebody like Mr. Gunn that don’t have no knowledge of the case, and go through arguments like this. ...

So if you want to take my pro per status, fine. This is your courtroom. Do what you want to do. I don’t care. But don’t give it to this man. That’s the whole thing I’ve been fighting. That is why I filed the motion to remove him as standby counsel, because when he was counsel he ain’t doing nothing.” When asked by the trial court if he had retained a new investigator, defendant stated: “No. I do plan on, yes.” The trial court then made the following findings: “that Mr. Williams has had—and I do not know the number of Marsden motions. I can’t even count the number of lawyers that he’s had.

And I agree with him, the only one he liked was Ms. Feiger. And I think it was probably for the reason, as Mr. Ruiz said, because she was—as a trial attorney, she was a hand-holder for defendants. And that’s what Mr. Williams has been looking for all along, somebody that will come through here anytime he wants to be seen, [f] I find that I agree with Mr. Williams, he’s in over his head. And that all of these have been delay tactics. And I’m going to remove him from his pro per status. And Mr.

Gunn has become the lead attorney.” On July 30, 2001, the date set for trial, Gunn represented to the trial court that the defense required an additional 30-day continuance because he needed more time to prepare for trial. When asked if he would agree to a continuance, defendant stated: “I don’t agree to nothing.” Finding that there was a “15-court day waiver beyond today’s date,” the trial court continued the matter to August 10, 2001. On August 10, 2001, the trial court found good cause to continue the matter until August 20, 2001.

On August 20, 2001, Gunn declared a conflict because of the pending lawsuit filed by defendant. Gunn also cited communication problems and defendant’s failure to cooperate with defense preparations. The trial court said: “[I]t’s another way of him delaying this trial by suing you. [(][] Next thing, Mr. Cormicle is going to be sued for malpractice. Where does it end?” But Gunn informed the court that “Mr. Williams does cooperate with Mr. Cormicle” and “[w]ill communicate with him, cooperate in his defense,” and that the breakdown appeared specific to the relationship between defendant and Gunn.

The trial court therefore relieved Gunn and appointed Cormicle as lead counsel. Finding good cause, and without a time waiver from defendant, the trial court granted Cormicle’s request to continue the trial date and set a trial readiness conference for September 20, 2001. On September 20, 2001, Cormicle requested a continuance because he was having difficulties securing investigative funds on behalf of the defense. Defendant refused to waive time. Finding good cause for a continuance, the trial court continued the trial to March 4, 2002.

During a January 23, 2002 trial readiness conference, Cormicle requested a trial continuance because he had yet to receive some federal documents that he had subpoenaed regarding bank robberies committed by victim Gary Williams. Defendant waived time, and the trial was continued to April 8, 2002. A hearing set for March 8, 2002, was postponed for a week at the request of the prosecutor. On March 15, 2002, the prosecutor requested an additional two-week continuance to give him “time to finish [another] jury trial.” The trial court granted the request.

On March 29, 2002, the trial court heard and denied defendant’s 11th Marsden motion. The trial court told defendant that “[p]art of the reason this case is old” is that “[w]hen the case gets ready for trial and gets near the time for trial, we fire a lawyer or we represent ourselves ...” Later that same day, Cormicle requested a continuance of the trial date. Cormicle said that the FBI had granted him access to its files four days earlier regarding 15 separate bank robberies committed by Gary and his associates, and that he needed more time to review these materials.

Defendant waived time, and the trial court continued the matter until June 10, 2002.

On April 23, 2002, Cormicle represented to the trial court that he was “still receiving additional reports, significant reports, that should have been turned over seven years ago but were not.” Specifically, Cormicle indicated that he had only recently received “a four-page report from the FBI that was in the possession of the district attorney pertaining to Robert Scott.” According to Cormicle, the report contained statements that were inconsistent with Scott’s prior statements and identified witnesses that had not previously been identified.

In response, the prosecutor claimed that “[t]he problem with why that was not turned over earlier is because of the revolving door of defense attorneys” who failed to “follow through” with discovery. He also claimed that the new material was “independently obtainable by defense counsel.” Cormicle responded that the prosecution had an obligation to turn over the material under Brady v.

Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] (Brady) and that “there had been a demand for reports from my client during the time that he was pro per.” During an ex parte hearing held on April 25, 2002, Cormicle represented that he had “basically started from scratch” because “nothing had been done for the past six years . . . .” He also said he had recently come across a one-page document titled “Gary and 100 bandits” that “was an outline of . . . 15, 16, or 17 bank robberies that Gary Williams was believed to have orchestrated and organized.” The defense had only recently received about “700 pages” of information regarding these prior bank robberies and the associates of Gary Williams who may have had reason to rob or kill him.

Cormicle also clarified that the four-page document he had referred to two days earlier was a “proffered statement” from Robert Scott “where he’s presumably looking to cut a deal with the US Attorney.” On May 1, 2002, Cormicle requested that trial be continued until August 2002 in order to give him time to explore issues regarding third party liability and complete his investigation.

At the request of the prosecutor, Conya L. addressed the trial court and explained that she felt threatened and wanted to “get this out of the way.” The prosecutor urged the court to reject any further requests for delay and argued that defendant or his counsel had successfully manipulated the pretrial process over the past six years. The prosecutor asked the court to consider “the length to which Mr. Williams will go to thwart your will and break your will, that this case ever get to trial.” The court responded: “Mr.

Ruiz, he’s not going to break my will,” and “I don’t like lawyers insinuating that any defendant’s going to control what I do.” When the prosecutor pushed back and suggested that the court had not sufficiently challenged the reasons given by defense counsel for seeking continuances over the past six years, the trial court said: “You’re wrong. I’m telling you that you’re wrong so move on to something else.” Noting that the pretrial history of the case read “like a horror story as far as delays,” the trial court then continued the trial date to July 1, 2002, over the prosecutor’s objection.

Defendant agreed to waive time. The trial court heard and denied defendant’s 12th Marsden motion on June 7, 2002. Jury selection began on July 1, 2002. 2. Analysis The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial . . . .” “[T]he right to a speedy trial is ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” (Barker v. Wingo (1972) 407 U.S. 514, 515 [33 L.Ed.2d 101, 92 S.Ct. 2182] (Barker), quoting Klopfer v.

North Carolina (1967) 386 U.S. 213, 223 [18 L.Ed.2d 1, 87 S.Ct. 988].) The speedy trial guarantee “is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” (United States v.

Ewell (1966) 383 U.S. 116, 120 [15 L.Ed.2d 627, 86 S.Ct. 773].) In Barker, the high court explained that the Sixth Amendment right to a speedy trial “is genetically different from any of the other rights enshrined in the Constitution for the protection of the accused” in several important ways. (Barker, supra, 407 U.S. at p. 519.) First, “there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” (Ibid.) Lengthy pretrial incarceration “contributes to the overcrowding and generally deplorable state” of local jails, “ ‘has a destructive effect on human character,’ ” and imposes significant “cost[s]” on society in the form of maintenance expenses and lost wages. (Id. at pp. 520-521.) Second, unlike other constitutional rights afforded the accused, deprivation of the right to a speedy trial “may work to the accused’s advantage,” as “[djelay is not an uncommon defense tactic.” (Id. at p. 521.) “Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused’s ability to defend himself.” (Ibid.) Third, “the right to speedy trial is a more vague concept than other procedural rights” in that it is impossible to “definitely say how long is too long in a system where justice is supposed to be swift but deliberate.” (Ibid.) Accordingly, “any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case . . . .” (Id. at p. 522.) Finally, “[t]he amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. . . .

Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.” (Ibid., fn. omitted.) Because “[t]he speedy-trial right is ‘amorphous,’ ‘slippery,’ and ‘necessarily relative,’ ” the high court in Barker “refused to ‘quantify]’ the right ‘into a specified number of days or months’ or to hinge the right on a defendant’s explicit request for a speedy trial.” (Vermont v.

Britton (2009) 556 U.S. 81, 89-90 [173 L.Ed.2d 231, 129 S.Ct. 1283] (Britton), quoting Barker, supra, 407 U.S. at p. 522.) Rather, to determine whether a speedy trial violation has occurred, Barker established a balancing test consisting of “four separate enquiries: whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay’s result.” (Doggett v.

United States (1992) 505 U.S. 647, 651 [120 L.Ed.2d 520, 112 S.Ct. 2686] (Doggett)) None of these four factors is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.

In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” (Barker, supra, 407 U.S. at p. 533.) The burden of demonstrating a speedy trial violation under Barker's multifactor test lies with the defendant. (See id. at p. 532.) Based on the overall balance of factors in the present case, we conclude that defendant’s speedy trial claim fails. In reaching that conclusion, we address the four Barker factors in the following order: length of the delay, prejudice, defendant’s assertion of the speedy trial right, and who is to blame for the delay. a.

Length of the delay The first Barker factor, the length of the delay, encompasses a “double enquiry.” (Doggett, supra, 505 U.S. at p. 651.) “Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay, [(Barker, supra, 407 U.S. at pp. 530-531)], since, by definition, he cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.

If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. [Citation.] This latter enquiry is significant to the speedy trial analysis because ... the presumption that pretrial delay has prejudiced the accused intensifies over time.” (Id. at pp. 651-652; see id. at p. 652, fn. 1 [“We note that, as the term is used in this threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.”].) In this case, defendant was arrested on July 26, 1995, and brought to trial on July 1, 2002. (See United States v.

Marion (1971) 404 U.S. 307, 325 [30 L.Ed.2d 468, 92 S.Ct. 455] [6th Amend, speedy trial right attaches when the defendant is “accused,” i.e., when he is “arrested, charged, or otherwise subjected to formal restraint prior to indictment”].) This delay of nearly seven years clearly qualifies as “ ‘presumptively prejudicial’ ” within the meaning of Barker. (See Doggett, supra, 505 U.S. at p. 652, fn. 1 [noting that “the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year”]; see also United States v.

Loud Hawk (1986) 474 U.S. 302, 304 [88 L.Ed.2d 640, 106 S.Ct. 648] (Loud Hawk) [90-month delay]; Serna v. Superior Court (1985) 40 Cal.3d 239, 252 [219 Cal.Rptr. 420, 707 P.2d 793] [four-and-a-half-year delay].) In a complex case, delay will weigh less heavily against the state because the significance of the delay “is necessarily dependent upon the peculiar circumstances of the case” and because “the delay that can be tolerated for an ordinary street crime is considerably less than for a serious . . . charge.” (Barker, supra, 407 U.S. at pp. 530-531.) In the present case, the charges were serious and complex.

Defendant was charged, along with a codefendant, with a double homicide and attempted murder for which the prosecution sought the death penalty. This case certainly differs from the routine prosecution of an ordinary street crime.

However, in denying defendant’s request for Keenan counsel, the trial court opined that the case was “not necessarily a more complicated case than any other [capital] case.” After taking into account “the seriousness of the offenses,” the “nature of the offenses themselves,” and “the number of motions that allegedly need[ed] to be filed,” the trial court concluded that second counsel was unnecessary to assist in what it believed to be a relatively straightforward death penalty case. Once trial finally began, it concluded within seven weeks.

Moreover, even considering the gravity of the charges, a delay of seven years is “extraordinary.” (Barker, supra, 407 U.S. at p. 533 [“It is clear that the length of delay between arrest and trial—well over five years—was extraordinary.”]; see Doggett, supra, 505 U.S. at p. 652 [noting “the extraordinary 8 1/2-year lag between [defendant’s] indictment and arrest”].) At oral argument, neither the Attorney General nor counsel for defendant was aware of any other capital case in California with a pretrial delay longer than what occurred here.

In sum, the delay in this case “clearly suffices to trigger the speedy trial enquiry.” (Ibid.) We address further below the significance of the extent to which the delay exceeded the minimum needed to trigger the Barker inquiry. b. Whether defendant suffered prejudice as a result of the delay Whether defendant suffered prejudice as a result of the delay must be assessed in light of the interests the speedy trial right was designed to protect: “(

i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” (Barker, supra, 407 U.S. at p. 532.) We have no difficulty concluding, even in light of the complexity of the case and the need for adequate preparation, that being jailed without a trial for seven years is “oppressive.” (See Barker, supra, 407 U.S. at pp. 532-533 [“The time spent in jail is simply dead time.”].) Further, although being charged with a capital crime is bound to cause anxiety and concern under any circumstances, here defendant expressed anxiety and concern about the pretrial delay on the record.

There can be no question that the length of pretrial incarceration in this case is a “serious” restraint on liberty with “detrimental impact[s] on the individual.” (Id. at p. 532; see United States v.

Marion, supra, 404 U.S. at p. 320 [arrest and pretrial incarceration “seriously interfere with the defendant’s liberty” and “may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends”].) As to whether defendant suffered the “most serious” type of prejudice, the inability to adequately prepare his defense (Barker, supra, 407 U.S. at p. 532), defendant contends that the delay led to “two specific and concrete losses over and above the generalized problems inevitable in such a lengthy pretrial delay.” First, defendant argues that “any meaningful investigation into the third parties motivated to kill Gary Williams was dealt a severe if not fatal blow by the significant time delays.” He says, “the number, identities, and motivations of those individuals who wanted to kill or harm Gary Williams came to light very late in the arduous pretrial process,” with “[t]he first inkling” of Gary’s past surfacing only in March 1997 and the full extent of his criminal activities revealed only in January 2002.

According to defendant, had “trial occurred in 1997 or 1998, instead of 2002, ... the identity and whereabouts of those third parties would much more likely have been ascertained.” Second, defendant argues that the delay allowed the state to “stabilize the testimony of [Conya L.].” He observes that Conya L. offered varying accounts in the weeks and months following the murders, but that she “testified with unfailing certitude” at the trial seven years later.

Defendant argues that “[t]he passage of so much time inevitably impacts a person’s recall and perception, such that they can crystallize and bring forth certitude from initial uncertainty and equivocation.” The record indicates that Conya L.’s testimony at trial differed in some respects from the account she had provided seven years earlier, a point explored during cross-examination by the defense. (Ante, at pp. 213-214; post, at pp. 262, 266-267.) The Attorney General contends that defendant’s claims of prejudice are vague and speculative. We agree.

Defendant has not specifically identified what witnesses might have eluded the defense or what testimony might have been lost or distorted as a result of the delay in this case. Defendant has not made any particularized showing of evidentiary prejudice.

The high court has said, however, that “consideration of prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of particularized prejudice is not essential to every speedy trial claim.” (Doggett, supra, 505 U.S. at p. 655.) “Barker explicitly recognized that impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony ‘can rarely be shown,’ ” and “we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” (Ibid.) In explaining “the role that presumptive prejudice should play” in the speedy trial analysis, the high court in Doggett said that “its importance increases with the length of delay.” (Doggett, supra, 505 U.S. at p. 656.) The court then discussed how the importance of presumptive prejudice varies with the reason for the delay.

On one hand, delay occasioned by diligent prosecution would be “wholly justifiable” and would not support a defendant’s speedy trial claim absent a showing of “specific prejudice to his defense.” (Ibid.) On the other hand, “official bad faith in causing delay will be weighed heavily against the government” and, in a case of extraordinarily lengthy delay, “would present an overwhelming case for dismissal”

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