THE PEOPLE, Plaintiff and Respondent, v. ROBERT CARRASCO, Defendant and Appellant, 59 Cal. 4th 924

Opinion LIU, J. Defendant Robert Carrasco was convicted of the first degree murders of George Camacho and Allan Friedman, the second degree robbery of Friedman, and escape from jail. (Pen.

Code, §§ 187, subd. (a), 189, 211, 4532, subd. (b)(1); all undesignated statutory references are to this code.) The jury also found true weapon-use sentence-enhancement allegations and special circumstance allegations that defendant committed multiple murders and that the murders were especially heinous, atrocious, or cruel. (§ 190.2, subd. (a)(3), (14), former §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) In addition, as to the Camacho murder, the jury found true the special circumstance allegation of financial gain, and as to the Friedman murder, the jury found true the special circumstance allegation of robbery murder. (§ 190.2, subd. (a)(1), (17).) The jury returned a death verdict, and the trial court entered a judgment of death.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) For the reasons that follow, we vacate the true findings on the two

section 190.2, subdivision (a)(14) special circumstance allegations (post, pt. H.B.6.C., p. 969 et seq.) and otherwise affirm the judgment. I. Facts A. Guilt Phase 1. Prosecution Case a. Camacho murder On December 16, 1994, around 1:30 a.m., George Camacho was shot and killed at the Ross Swiss Dairy (the dairy) located on Albion Street in Los Angeles. Dennis Martinez Morales testified that he lived in a camper that looked out on Albion Street and was located about 900 feet from the dairy. Between 1:30 and 1:45 a.m. on December 16, 1994, Martinez heard two to four gunshots.

He then saw a person walk up the street from the direction of the dairy. The person was about six feet tall, dressed in dark clothing, wearing a black ski mask, and carrying a gun. The person got into the passenger side of a dark-colored car with louvers in the back, and the car sped away from the dairy. Michael Fernandez testified that between 1:30 and 2:00 a.m. on December 16, 1994, he was driving his boss to her home on Albion Street. Fernandez observed a commotion by the entrance to the dairy and three people running from the area.

They were wearing dark blue shirts and dark pants, and they jumped into a “Camaro, Trans Am-type” of car. Fernandez also observed a fourth individual walk past him, a 30- to 40-year-old Hispanic male with a thick mustache who was wearing dark baggy pants, a black or blue and white muffler, and a dark sweatshirt with a hood over his head. The man got into a Toyota with louvers in the back and a driver seated inside. Fernandez heard laughter and saw the Toyota leave, with the other car behind it, driving down Albion Street away from the dairy. The headlights on both cars were off.

Defendant was linked to the murder by his statements to coworkers. On December 16, 1994, Efrain Bermudez, who worked at the dairy, saw Camacho arrive at work around 1:25 a.m. Bermudez put on his bandana, walked out the dairy gate entrance, and less than a minute later heard six to eight gunshots. Bermudez saw two men, both about six feet tall and dressed in solid black, run to a car and enter on the rear passenger side. One man had come from the dairy, and the other had come from the parking lot. The car “peel[ed] out” and left, followed by a second car located farther down the block.

Bermudez ran back into the dairy and saw Camacho bleeding from gunshot wounds. Around 1:00 a.m. the following night, defendant told Bermudez “not to speak to nobody,” and asked Bermudez, “Didn’t you see me?” Bermudez said, “No.” Defendant said, “I saw you. Uh-huh, you were putting on your bandana.” Bermudez was speechless.

Defendant also asked Bermudez if he had seen Camacho, and Bermudez said he “saw him bleeding to death.” Defendant said, “Good.” That same day, defendant bragged incessantly “about what he did.” Before the night of Camacho’s murder, Bermudez had frequently seen defendant carry a .380-caliber gun. After the murder, defendant carried what appeared to be a .45-caliber weapon. Andrew Nunez, who worked at the dairy, frequently saw defendant carry a nine-millimeter gun after Camacho’s murder.

About two weeks after Camacho’s murder, defendant pointed the gun at Nunez and said, “You think I did it.” Several months earlier, Camacho had been terminated from his job at the dairy, and defendant had assumed Camacho’s shift from 1:30 a.m. to 9:00 a.m. Camacho later regained his job and was scheduled to return to work on December 16, 1994. About a week before that date, defendant told Nunez he hated to give up Camacho’s shift because he would lose about $9,000 a month from body shop work he could no longer perform during the day and from reductions in his dairy salary.

Harry Holton testified that he had fired Camacho around October 1994. Defendant bid for and was awarded Camacho’s position. About two and a half months later, Holton learned from Robert Rios, a union representative, that Camacho had been wrongfully discharged and was going to return to his former shift. Holton told defendant this information. Defendant was “not pleased” and said losing the shift would cost him about $60,000 a year. On December 16, 1994, defendant worked from 3:25 p.m. to 11:53 p.m. and was not working at 1:30 a.m.

After Camacho died, defendant took over his shift, which was the same shift defendant had before Camacho’s return to the dairy. Anthony Morales testified that he had worked with defendant at the dairy. Defendant had carried a gun at work and was upset that Camacho was returning to work because defendant “wanted his job to do body work on cars during the day.” On December 16, 1994, after Camacho’s murder, Morales, defendant, and Mario Baltazar went to lunch. Defendant said he had shot Camacho and described the murder.

Defendant said he had waited in front of the gate about half a block from the dairy with three other men and a woman. When Camacho was inside, “they ran towards him and shot him.” They wore black hooded shirts or sweatshirts and drove two vehicles. Greg Janson, defendant’s supervisor, paged defendant to let him know Camacho was out in the yard working where defendant would be able to shoot him. After the murder, he and the woman drove to the beach, and defendant threw the guns into the ocean.

Defendant told Morales and Baltazar that “if anybody said anything, ... he has plan B.” Janson testified, and his prior statement to police was read into the record. Janson described defendant as Hispanic with black hair and brown eyes, about five feet 11 inches tall, and 39 years old in February 1996. Janson had supervised defendant for five years and often saw defendant carry a .380-caliber weapon.

After defendant was told Camacho would be returning to work, defendant said “he would make sure he didn’t come back” so that defendant did not “lose his . . . hours.” After Camacho’s murder, defendant told Janson he was responsible and threatened to also “take care of’ anyone that got “in his way.” At some point during the six to eight months after Camacho’s murder, coworker Steve Apodaca reprimanded defendant for horseplay, and defendant said, “You could be fired for horse playing, but not for shooting somebody.” The pathologist testified that Camacho was shot nine times; four of the wounds were fatal.

His blood contained 0.38 micrograms of methamphetamine at the time of death. He died three hours after he was admitted to the hospital. Seven spent .380-caliber semiautomatic casings and four .380-caliber fired bullets were recovered at the murder scene. Ballistics testing revealed that the casings had all been ejected from the same gun and that the fired bullets had all been fired from the same gun. The murder weapon was never recovered. b. Friedman murder On October 24, 1995, Allan Friedman was shot and killed during a failed drug deal on Chicopee Avenue in Los Angeles County.

Shawna Ryder testified that on October 24, 1995, she lived on Chicopee Avenue. Around 1:30 or 1:45 p.m. that afternoon she heard a sequence of “pop, pop, pop,” two men briefly arguing in muffled voices, and then another sequence of “pop, pop, pop.” She recognized the second sequence of popping sounds as gunshots and called 911 as she left her home to investigate. A blue Honda drove away with two individuals inside. A black Jeep was parked in front of her home, and a young man with long hair was hanging out of the vehicle and bleeding. Ryder and her neighbors pulled the man from the car.

One neighbor gave her the license plate number of the Honda, which she relayed to the 911 operator. The Honda was spotted and chased that night by Los Angeles Police Detective Harry Hollywood. The driver, Shane Woodland, ultimately abandoned the vehicle and fled into a home, where he was captured. Defendant’s fingerprint was subsequently found on the cap of a hair spray can in the glove compartment of the Honda. A nine-millimeter bullet casing was in the right rear seat floorboard area. The murder weapon was never recovered.

Woodland testified that on October 24, 1995, he was 17 years old and worked with defendant at Perry’s Auto Body Detail. The shop was owned by Javier “Gabby” Chacon. Woodland had lived at Chacon’s home on Gilmore Street in Woodland Hills for about two years. Chacon had a second house in Woodland Hills on Winnetka Avenue at which he, his family, and defendant lived for a time. Woodland never lived with defendant.

On October 24, 1995, Chacon told Woodland to take defendant “somewhere” to buy cocaine and “make sure he comes back with the stuff.” Chacon handed defendant a thick envelope of money, and Woodland and defendant left in a Honda Accord around 1:00 p.m. Defendant was in the passenger seat and placed a nine-millimeter gun in front of him. Defendant directed Woodland to a gas station where they saw Friedman in a black Jeep. Friedman motioned for Woodland and defendant to follow him. Friedman drove to Chicopee Avenue and pulled over, and Woodland and defendant pulled over behind him.

Defendant went to the driver’s side of the Jeep and spoke with Friedman for about 10 minutes. Woodland heard three to four gunshots and saw defendant run back to the Honda. Defendant was holding a gun and a bag, and said, “Get the fuck out of here. Let’s go.” As they passed the Jeep, Friedman’s body was hanging out of the Jeep, and defendant shot him again several times. Defendant looked through the bag and said, “Fuck. Shit. It’s not in here. Fuck.” Defendant threw the bag out of the window. Woodland asked, “What happened?,” and defendant said, “Just shut the fuck up.

Don’t worry about it.” Defendant also said that if Woodland remained silent, “[njobody’s going to kill [him] and [his] family.” Further, defendant said it was not the first time he had killed, and it was “just like popping a balloon” and was “nothing to him.” Defendant told Woodland that he had killed someone at the dairy, and “nothing happened to him.” Woodland and defendant returned to the auto shop around 1:45 p.m. Around 4:30 p.m., Woodland had the windows of the Honda tinted. Later that evening, police arrested him.

Janson, in his testimony and prior statement to police, recounted that defendant had called him the night of October 24, 1995, and asked if the police were looking for him at work. Janson said no. Defendant came to work around 1:00 a.m. and received permission to leave at 5:00 a.m. when Janson’s shift ended. Defendant described Friedman’s murder to Janson, saying that he and another person, a “kid,” had planned to give the victim a kilo of cocaine in exchange for $25,000 or $35,000 and then shoot the victim and keep both the cocaine and the money.

Around noon, after the exchange took place, the victim returned to his black Jeep, and defendant followed him and demanded the cocaine be returned. The victim started to leave, and defendant shot him and grabbed a bag containing what he thought was the cocaine; in fact, the bag contained a book. As defendant and his companion left, the victim was moaning, so defendant shot him “a bunch more times.” Defendant showed Janson a Smith & Wesson nine-millimeter gun that he had used in the murder.

Defendant and the “kid” drove away from the crime scene in a “blue Honda, or something like that.” The kid wanted to get the car windows tinted. Defendant objected, saying he did not think it would be wise to drive around in a car that had just been involved in a murder. After being stopped by police, the kid fled into a house where he was captured. Defendant asked Janson to tell police that defendant was with Janson in Green Valley that day. Defendant also told Janson that the owner of the body shop at which defendant worked was the person who “ha[d] the drugs” and owned the Honda that was the getaway vehicle.

Defendant was living with the owner at that time and was dating his wife. In defendant’s residence, police found nine-millimeter ammunition, a magazine to a nine-millimeter gun, and a gun-cleaning kit. In the truck defendant was driving at the time of his arrest, there was a loaded .380-caliber semiautomatic pistol on the right front seat floorboard. Woodland’s fingerprint was found on the outside of the passenger door of Friedman’s Jeep. Two nine-millimeter bullets were found in the Jeep, and five nine-millimeter casings were on the ground near the rear of the Jeep.

Two kilos of cocaine were found on the floor of the rear seat. A yellow knapsack containing Friedman’s driver’s license and other personal papers was recovered by a passerby one or two blocks from the crime scene and turned over to police that night. Los Angeles Police Detective Michael Coblentz testified that defendant waived his rights and gave a statement to police. Defendant said he was at work at Perry’s Auto Detailing during Friedman’s murder, not with Woodland, and that he had never been in a blue Honda. Coblentz also interviewed Delia Chacon, Javier Chacon’s wife, and she then visited defendant.

Defendant subsequently called Coblentz, and the two met again. Defendant changed his statement to say he was having an affair with Delia Chacon and was with her at the time of Friedman’s murder.

During the preliminary hearing in April 1996, defendant told Woodland “not to worry about anything because he was going to kill the witnesses,” and “there wouldn’t be witnesses by the time we go to trial.” Janson had not yet testified at the preliminary hearing, and defendant said he was going to call someone and “make sure he didn’t get on the stand.” After Janson testified at the preliminary hearing, defendant started laughing and told Woodland, “See, I told you he wouldn’t say nothing.” Woodland subsequently pied guilty to manslaughter and received a six-year prison sentence contingent on his testifying truthfully in this case.

A pathologist testified that Friedman was shot seven or eight times and died of multiple gunshot wounds. c. Escape On May 31, 1997, defendant, who was a trustee (or inmate worker), escaped from the North County Correctional Facility. He was arrested the following night about 40 miles away in West Los Angeles. 2. Defense Case a. Defendant’s background Defendant and his wife at the time, Eva Carrasco, testified to general background information about defendant. Defendant testified that he was 10 years old when his father died.

At that time, defendant lived in the Mar Vista housing project with his mother, brother, and sisters. They lived in a “very bad neighborhood” that was “[o]ne of the worst in L.A.” Although defendant was only 10 years old, he was given a .357 Magnum revolver by “[s]ome older . . . teenagers.” Defendant kept the gun away from his siblings for their protection. Since that time, he had kept firearms for protection. Around 1975, he had a .380-caliber special for which he was the registered owner. Defendant had worked in the “body and fender business” since he was 16 or 17 years old.

When he was 18 years old, he opened his own body shop in Culver City called Bert’s Custom Paints and Auto Body, which stayed in business for four to five years. Most of his customers were Culver City and Los Angeles police detectives. Defendant hired “youngsters” to work at the shop to teach them the trade and thereby offer them an alternative to selling drugs. After the shop closed, defendant went to work at the Edgemar dairy. He continued doing car body work on the side and hiring young people to teach them the trade. He “always broke even” or lost money; at one point, he was in bankruptcy proceedings.

It generally took him three months to finish work on a car, and he earned on average $1,500 for each job. Defendant and Eva separated on January 1, 1995. From then until about October 1995, defendant did his body and fender work at Big G’s, which was the warehouse for Perry’s Auto Detailing and was located about 150 yards away from Perry’s. He paid his rent by doing body work for the shop’s customers. Defendant worked on only one or two cars for his own customers, including Janson’s car.

After paying his help and utilities, he had “nothing left.” Defendant did not work on Anthony Morales’s car during this time but had previously done so when he worked out of his garage. Janson worked for defendant for about four or five months both at defendant’s house and at Big G.’s. Eva Carrasco testified that she and defendant had been married for 17 years and separated around November 1994. Before the separation, Janson came to the house about six times to help defendant work on cars. Defendant owned a firearm for many years that was small and always in a case.

She had never seen defendant carry a gun. (Defendant and Eva dissolved their marriage in December 1998.) b. Camacho murder Defendant testified that he started working at the dairy around 1989 as a driver and at that time met Camacho. Defendant “always talked” to Camacho and observed that “[h]e had a big heart” and was “the nicest guy [he] ever met.” Defendant “never had a problem with him.” After three years at the dairy, defendant began working on the dock and had greater contact with Camacho. The two had arguments at times and once almost had a fistfight, but neither threw a punch or was hurt.

Defendant and Camacho were friends, and defendant “was closer to him than anybody in that dairy.” Defendant started carrying a gun after the Los Angeles riots because the route he drove took him by buildings that had been burned. He always had a firearm with him and “never had an incident with any of them.” Defendant said he never carried a gun at the dairy while he was working. However, he recalled a time when he had the gun with him and gang members jumped the dairy fence. Janson called him over, and he told the “youngsters” to leave.

He had “never pointed a gun at anybody in [his] life.” Defendant was voted a shop steward by his coworkers and served in that position for about a year in addition to his regular job duties. During this time, Camacho was terminated, and defendant successfully bid for his position. Defendant earned 5 cents an hour less than he had in his job as a relief worker, and he worked from 1:30 a.m. to 9:30 a.m. for two to three months. After a month or so, he realized that working Camacho’s shift as well as his second job left him only three hours to sleep.

Defendant was initially upset when he learned Camacho had been reinstated. But when he learned his new

schedule would be from 4:00 p.m. to 12:30 a.m. or from 6 p.m. to 2:30 a.m., he thought working either of these shifts would have “been perfect” because he would get six hours of sleep. Defendant said it was “ridiculous ... for them to say that I. . . kill[ed] somebody for those kind of hours.” Defendant never told anyone at work he earned $7,000 or $9,000 a month doing body and fender work, or that he was upset about Camacho coming back to work because he would lose money on his side business. Defendant did not tell Harry Holton that defendant stood to lose $60,000 if Camacho returned to work.

Instead, Holton “misunderstood” when defendant said he would be “better off if [Camacho] came back and did his old job, and [defendant] went off of that job.” He did not know where Holton got the figure of $60,000 and said, “Harry just figured that out by himself.” As shop steward, defendant knew Camacho had a drug problem. Defendant was upset that the union representative had rejected his suggestion that Camacho attend a drug therapy program as a condition for returning to work. Defendant had attended such a program for a year and succeeded in quitting all drugs when he was 30 years old.

On December 16, 1994, defendant arrived at work at 1:25 a.m. because he understood that if Camacho did not show up for work, defendant would need to work his shift. Defendant, who was wearing beige pants, noticed that the front gate was wide open, which was “not right.” He heard gunshots and ducked down. He saw Brian Skolfield from the projects where he grew up, “standing right over” Camacho and “unloading in him.” Skolfield looked directly at defendant as if to say, “You better not say nothing,” and then took off running. Defendant saw no one with Skolfield.

Skolfield “went up the block and jumped in a car.” Defendant looked at Camacho, knew he was dead, and fled. Defendant had met Skolfield, who was white and 22 or 23 years old, about a year before the murder when Skolfield accompanied a friend nicknamed “Gangster” to defendant’s house to watch defendant work on Gangster’s car. Defendant did not know Gangster’s last name. Defendant had also seen Skolfield talking to Camacho before Camacho was fired. Skolfield later was housed next to defendant in jail. Skolfield was a member of the Culver City gang.

In his statements to police after Camacho’s death, defendant did not tell them he saw Skolfield murder Camacho because it would have put his life and the lives of his daughters and sisters in danger. Defendant said he had lived in the projects for 21 years and knew “the way gangs are.” While in jail, defendant asked Skolfield why he had shot Camacho, and Skolfield told defendant it was “none of [his] business” and “to keep [his] mouth shut.” Defendant never told anyone that he shot Camacho.

Anthony Morales was lying when he said defendant had laughed and talked about killing Camacho because Morales “got fired and he blames everything on me.” Efrain Bermudez also lied about defendant’s statements because he was about to be fired before he walked off the job and “because I’m the shop steward, . . . they tell me, ‘You didn’t do enough to save my job.’ ” Defendant never saw Bermudez on the night of Camacho’s murder but recalled Bermudez wore a bandana daily.

Andrew Nunez lied to “impress the family.” Defendant had never gotten into an altercation with Nunez, threatened him, or been reprimanded because of anything Nunez reported to the company. Nor had he been in a confrontation with Morales, threatened him, or pulled a gun on him. Defendant had never learned of any complaint filed against him by Nunez, Bermudez, or Morales, nor had there been any “write-up” through the dairy or union for anything he allegedly had done to these men. Nor had defendant faced any union proceedings because of something Janson had said defendant had done either to Janson or at work.

Holton did not lie, he “just misunderstood what we were talking about” and was a “little angry because Anthony Morales had said that I said that Harry knew about it.” Defendant was interviewed twice by police after Camacho’s murder. He was arrested in February 1996, waived his rights, and spoke to police for a third time for two hours. He did not know Janson had given a statement to police until after the preliminary hearing. Albert Ramirez testified that he had worked with defendant at the dairy.

Defendant was a hard worker but also “used to play around like a . . . little kid [was] in him.” Ramirez never saw defendant with a gun at work and never saw him hit anyone at work. Ramirez asked defendant if he had shot Camacho, and defendant said no. Ramirez recalled a barbecue held on a Friday after work at some point before Camacho was murdered. At the barbecue, Ramirez got into a fistfight with Bermudez, and defendant tried to break up the fight by reminding Ramirez and Bermudez that they worked together daily.

At some point during these events, a friend of Bermudez’s hit defendant on the side of the head with a gun and then pointed the gun at Janson. Mario Baltazar, who worked at the dairy, testified that on December 16, 1994, the same day Camacho was murdered, he went to lunch with defendant and Morales. Defendant did not say he had shot Camacho. Baltazar was to be laid off when Camacho returned to work, so he joked at work that day that he had shot Camacho. Other coworkers also joked that they had committed the murder.

Baltazar had never seen defendant with a gun at work, nor had defendant, who was a “nice guy,” ever threatened him. c. Friedman murder Delia Chacon, the wife of Javier Chacon, testified that on October 24, 1995, she lived in Woodland Hills on Winnetka Avenue with her family, defendant, whom she called “Bertie,” and Shane Woodland. Defendant had lived there since August 1995 and shared a bathroom with Woodland. Delia had for years purchased Rave hair spray, the brand found in the blue Honda, and “[everybody” in the household used it, including defendant.

About four or five months before Friedman’s murder, Delia’s son, Javier, Jr., or “Little Gabby,” bought the blue Honda in which Woodland was later arrested. Everyone living at the house and at the body shop used the Honda to run errands. There were also guns, including nine-millimeter handguns, in the house. Delia had seen Woodland, but not defendant, with guns. Woodland had lived with Delia’s family for about five years when he was arrested in this case, and Delia considered herself his mother.

Shane Woodland and his brothers Ryan and Brandon worked at Perry’s Auto Detailing, which was owned by the Chacons and had two locations. Defendant also worked there doing body work and painting for his own customers as well as for the Chacons. On October 24, 1995, Delia and Shane were at Perry’s Auto Detailing. Delia saw Shane with “some” kilos of cocaine. Delia left work around 11:00 a.m. and drove to Topanga. There, around noon, she met defendant, whom she described as her best friend and with whom she was in love.

The two drove for half an hour to the mountains above Pepperdine University to talk and look at the ocean. They left the mountains by 1:30 p.m. and drove back to Topanga. Although she and defendant lived in the same house, they frequently met in Topanga to go to the mountains and talk because her husband was jealous. She lied to detectives investigating Friedman’s murder and told them she had not seen defendant on October 24 so as not to “put his life in danger.” Defendant was her “significant other” and a part of her.

Delia had seen Janson at Perry’s Auto Detailing about 10 times before and after Friedman’s murder. She kept a copy of the Friedman “murder book” (a collection of investigative reports on that homicide) in the shop office, and anyone could go into the office and look at it. Delia frequently saw Janson in the office. She received the three-inch-thick murder book from Barry Woodland, Shane’s father, about two days after Shane was arrested, and placed copies in her home and both auto detailing shops.

On cross-examination, after learning that Shane’s attorney had received no discovery until November 20, 1995, Delia said it could have been as many as 10 days after Shane’s arrest that she received the murder book. Defendant testified that he had lived with Shane but had never ridden in a car with him because he was a reckless driver. Delia and Javier Chacon were like parents to Shane. Shane’s two brothers also worked at Perry’s Auto Detailing.

Defendant used hair spray at the Chacon’s house; it was found “in every bathroom.” Defendant learned that Javier Chacon was a drug dealer when he entered a Big G’s warehouse one Sunday, “found out what they were doing in there,” and decided not to renew his lease. He had moved out by January 1, 1996. Defendant testified he was with Delia on the day Friedman was murdered and recounted alibi details that were similar to Delia’s testimony.

When he made his first statement to police, he did not tell them he had been with Delia in the mountains at the time Friedman was shot because he did not want to get Delia into trouble with her husband or face retribution from him, and he did not want his wife to find out he had been with Delia. Instead, he lied to police and told them he had been at work during the murder. He loved Delia as a friend, and the two had never been intimate. Defendant did not know Friedman and had never seen him.

Defendant denied having been on Chicopee Avenue on October 24, 1995, with Shane, and Shane was lying when he said otherwise. Defendant had “never shot anybody in [his] life.” One week before Shane testified that defendant “did it,” Javier Chacon told defendant that he thought defendant was “with his wife and that he’s going to have Shane say this.” Defendant believed Shane was lying for Javier. Defendant recalled going to Janson’s house on October 25, 1995, but did not tell him about a murder that had occurred the day before.

Defendant did not carry a nine-millimeter weapon or tell Janson that he needed to get rid of the weapon because it had just been used in a murder. Defendant never told Janson he needed an alibi. Janson was a “close . . . friend.” Defendant assumed Janson lied because he had refused to pay Janson for a poor job Janson had done while working for defendant.

Defendant was not surprised by Janson’s preliminary hearing testimony because Janson was taking heavy doses of Prozac and Klonopin at that time and was “acting really strange.” Defendant recalled occasions on which he would have a conversation with Janson and the next day Janson would recall “nothing that we talked about,” but then “the next day he would remember everything.” Defendant did not tell Shane prior to the preliminary hearing that certain witnesses were not going to testify against him, because he had no way of speaking to Shane.

Thomas Cuosineau testified that on October 24, 1995, around 3:00 p.m., he heard shots fired and ran out onto Chicopee Avenue. He saw a blue Honda in the middle of the street and another car that looked similar to Friedman’s Jeep parked at the curb. Two men got into the Honda and drove towards Cuosineau. They were white, in their early 20s, and had short dark or black hair. The passenger had a mustache. Ronald Allen testified that on October 24, 1995, he lived on Chicopee Avenue. He heard three gunshots, there was a pause of several seconds, and then he heard six more shots.

Allen saw a blue Honda parked next to a black Jeep. Inside the Honda were two “clean cut” white males with closely shaven heads or very short hair and protruding ears. The back and rear windows of the Honda were tinted. d. Escape Defendant testified that while in jail he became a trustee. Once a trustee, defendant spent at least three to four months planning an escape and described to the jury the elaborate details of his plan, which ultimately included three other trustees. He planned the escape so that no one would be endangered or harmed.

Defendant would not disclose where he obtained a hacksaw and said no one picked him up after his escape. He “didn’t think about what [he] was going to do” after the escape. He escaped on a Saturday around 5:30 p.m. and was apprehended without resistance the next night around 10:00 p.m. He escaped because Javier Chacon had visited defendant’s wife, which meant he was trying to tell defendant he knew where his wife and children were, because he was incarcerated based on a fingerprint and someone merely saying he had committed murder, and because there had been dangerous race riots in jail.

Delia Chacon testified that on May 31, 1997, the day of defendant’s escape from jail, Delia visited defendant and sold her car. She did not recall what she and defendant discussed. After defendant escaped, Deha knew police were looking for her but did not contact them because she had nothing to tell them. Since defendant’s capture, he had never spoken to her about his escape, and she had never asked him why he escaped. Around the time of the escape, Delia had obtained a restraining order against her husband because of spousal abuse. 3.

Rebuttal Detective Michael Coblentz testified further about his interview with defendant. Defendant did not tell Detective Coblentz about a person named Brian Skolfield, and Detective Coblentz had only learned about him that afternoon during defendant’s testimony. Detective Coblentz asked defendant if he knew Shane Woodland. Defendant said that he barely knew Woodland, did not tell Detective Coblentz that he lived with Woodland, and said that the last time he had seen Woodland was either two weeks or two or three months before Woodland’s arrest.

When Detective Coblentz asked defendant if he had ever been in the Honda, he showed defendant a photograph of the car. Defendant said he had not been in that Honda before, and he gave no explanation for why his fingerprint was in the Honda. Within an hour after Detective Coblentz’s interview with defendant, defendant spoke with Delia Chacon and then called Detective Coblentz and asked to meet again. While interviewing defendant, Detective Coblentz did not mention Janson’s statement to police about defendant’s involvement in the murders.

Detective Coblentz did not speak to defendant after the day of his interview and, in particular, did not have a conversation with defendant after the preliminary hearing about Janson’s statement. Janson told Detective Coblentz he changed his statement to state that he did not recall anything pertinent because of fear. Detective Coblentz further testified that Woodland’s attorney had received discovery, including the police reports, on November 20, 1995. Woodland told Detective Coblentz on February 10, 1997, about his role in the Friedman murder.

Brian Skolfield testified that in 1997 he was incarcerated in the North County Correctional Facility with defendant. Skolfield was born in 1977, grew up in Culver City, and was about 17 years old on December 16, 1994. He had never been to East Los Angeles, did not know where the dairy was located, and was not at the dairy on December 16, 1994. He further testified that he did not know Camacho, was not owed any money by Camacho, and did not shoot him. 4. Surrebuttal Los Angeles County Deputy Sheriff James Ponsford testified that he had worked at the North County Correctional Facility in 1996 and 1997.

Defendant and Skolfield were incarcerated at the facility at the same time, and Deputy Ponsford recalled seeing both men in the same building. B. Penalty Phase 1. Prosecution Case In addition to relying on the circumstances of the crime presented at the guilt phase, the prosecution introduced victim impact testimony. Francisca Deleon, Camacho’s mother, testified that Camacho was her firstborn child and only son. He was a successful athlete and made the varsity football team when he was only a sophomore in high school. She described Camacho’s happiness when he learned he had gotten his job back.

Camacho was 29 years old when he was murdered. He was married. He had two children, who were five and six years old when he died. Deleon’s children were “the most important thing in [her] life,” and after Camacho’s death she “just wanted to die” because she “couldn’t stand the pain of losing” him. Camacho’s father, also named George Camacho, described attending his son’s sports practices and the constancy with which he thought about his death. Camacho’s younger sister Christine testified she was close to her brother and his children.

Camacho was murdered right before Christmas, and Christine said “[tjhere is an overwhelming sadness whenever we as a family get together” and that gathering for Christmas “is just a huge reminder.” She was “extremely proud of him for the way he loved his kids.” Shlomo Friedman, Allan Friedman’s father, testified that Allan was his firstborn son and was 28 years old when he was murdered. Allan was bom in Israel and moved with his family to the United States when he was 15 years old. “Everybody loved” Allan, and he and Allan were very close.

When Allan died, Shlomo wanted to take his own life, but his children told him they needed him. Shlomo had not told his parents in Israel that Allan had died because he did not “want them to die.” Shlomo had been unaware Allan was involved with dealing drugs. When asked how his life will be in the future, Shlomo replied, “What life? What life?” Soli Friedman, Allan’s mother, testified she owned a restaurant and had made lunch for Allan 20 minutes before he died.

They were very close and “were like friends.” His death had left her “crying for life.” She worked three jobs and spent time with “the kids, [because] that’s the only time I feel [a] little better and I don’t have to think about what happened.” Galit Friedman, Allan’s younger sister, described Allan as a very gentle and friendly person who had not had the same opportunities she had. Galit and Allan had been close, and she missed him. 2. Defense Case Martha Heredia, defendant’s mother, testified that defendant was bom in Torrance and was 41 years old.

When defendant was four years old, the family — which included defendant’s father, three sisters, and an older brother — moved to Culver City. Defendant attended St. Gerard’s Catholic School in Culver City. When defendant was 10 years old, his father died. Martha could not work and take care of her five children, but the family received some insurance money from the father’s service in the Navy. The family lived in a bad neighborhood and moved into a four-bedroom home in the projects. Defendant went to work at McDonald’s when he was 13 years old and used the money to buy his own clothes, which helped the family.

Defendant attended Venice High School. He never missed school and graduated when he was 17 years old. While in high school, he played football and worked. He did not play varsity football his senior year because he had injured his neck. Martha organized a group in the projects to help older children; the group held fairs and organized trips. Defendant helped by “getting] all the kids together.” When defendant was 17 years old and still in high school, he started a body and fender shop. The shop was in the same location for about five years. Defendant continued to perform body and fender work after it closed.

He had young people working for him “[a]ll the time.” Martha knew many of the boys. Defendant had a terrific sense of humor but laughed when he was nervous. He never displayed physical anger at home. Once, when he was about 14 years old, he was in a fight with “kids,” but it was “nothing serious.” Martha was aware of no fights that defendant had as an adult.

Defendant had a quick temper but “never did anything about it” and “would just go off by himself.” He never joined a gang, carried a gun, or upset the household in any way, except for two “scrapes.” When he was 11 or 12 years old, he and a “bunch of kids broke into” the school. Defendant was not suspended but was punished at home. When defendant was about 17 years old, he and his friends were in a drunken brawl, were taken to jail and released the next day. He had no adult felony convictions and was never in a juvenile detention center.

He would play football with the neighborhood children and was “always trying to stop” gang members and others in the neighborhood from fighting. After high school, defendant passed the written test to become a firefighter but did not pass the physical because he had suffered a broken vertebra and was considered a “risk.” He continued to live at home until he was 22 years old and was helpful and responsible. When defendant was in his early 20s, he married Eva Carrasco. The couple moved about a mile away from Martha, and she saw them every day and babysat their oldest daughter.

Small children in the couple’s neighborhood would come to their door and ask defendant to come out and play with them, and he “was like that with his daughter.” Defendant started working at the Knudsen Dairy when he was 25 or 26 years old and then moved to the Ross Swiss Dairy. Defendant’s stepfather also worked at the Ross Swiss Dairy with defendant for a short time. Leandra Kamba, defendant’s younger sister, testified that defendant moved out when she was about 16 years old.

Kamba found growing up in the Mar Vista projects “fun” and did not perceive it “was a bad neighborhood.” The area was “not that safe, but not . . . very dangerous.” The family was close. Their father died when Kamba was three years old. Defendant was “always there” for her and her sisters, “protecting] us all the time” and playing with Kamba constantly. Defendant had always been compassionate and nice to everyone. Defendant was a loving parent, and Kamba’s three children loved him. Defendant carried a gun for protection, but she had never seen him be violent or threatening.

He did not “have a mean bone in his body.” She never witnessed any fits of rage or any violent behavior. Defendant had never “laid a hand” on his wife, Eva, or on Kamba, and “he has never, that I know, in my whole life . . . hurt anybody.” On cross-examination, Kamba testified that she knew defendant had involved their sister, Frances, in his escape from jail and that, as a result, she had suffered a conviction. Kamba believed that defendant was in a “desperate situation” when he called Frances and that Frances did not understand the consequences of what she was doing.

Barbara Carrasco-Gamboa, defendant’s older sister, testified that their family was very close and happy. Barbara and her sister graduated from the University of California at Los Angeles (UCLA), and their older brother Ricardo also attended UCLA. Defendant was a straight-A student through elementary school but became distracted in high school because of his interest in auto body repair.

When their father died, defendant assumed “a father figure role” because he “felt that since our father was gone and he was a bigger guy,” he should “protect all of us.” Defendant was “a big guy” with a gruff voice but “had a real great sense of humor,” was “very intelligent,” and was a “pretty compassionate guy.” Defendant was never involved in gangs and was opposed to them.

He was “always concerned with the young guys,” and he, Barbara, and two other siblings were involved in Westside Barrios Unidos, an organization devoted to “get[ting] kids out of gangs.” The group held several successful dances, and Barbara and the others “checked everyone who went into the dance” for weapons.

Even law enforcement officers “came to know [defendant] as someone who was really trying to make an effort... to get these kids going [o]n the right path.” Barbara explained that “[w]e really didn’t like the idea that people looked at us with a lot of prejudice living in the housing projects,” because while “[m]pst of us were poor, . . . most of us had the same goals as everybody else.” Barbara recalled that “our friends’ mothers would say they don’t want our friends to come visit us in the projects because they were worried about getting into some kind of trouble.” Defendant was “always concerned [with] trying to dispel those kinds of negative stereotypes.” Barbara was diagnosed with cancer in 1995, received three years of chemotherapy, and was admitted to the hospital on several occasions.

She leaned on defendant for support during this “grueling experience,” explaining “he really believes in the Lord and he was praying a lot for me.” Barbara had never seen defendant “in a fit of rage . . . [or] having any sort of physical confrontation with anyone” while they were growing up. Nor had she ever seen defendant carry a gun. She was not aware that defendant had any arrests while he was in school and believed that he had no adult felony convictions.

On cross-examination, she testified she was unaware he had been arrested for grand theft auto in 1974, petty theft in 1975, possession of a controlled substance in 1977, carrying a concealed weapon in a car in 1984, possession of phencyclidine (PCP) for sale in 1986, or assault with a deadly weapon in 1990. Eva Carrasco testified that she met defendant in 1975 in high school. They began dating during their senior year. They started to live together around 1978 and married in 1980 when Eva was 23 years old. Eva had their first daughter when she and defendant were both 20 years old and Eva stayed home with her.

Four or five years later, defendant encouraged Eva to go back to college and supported her until she graduated. Their oldest daughter was now 20 years old and a junior at UCLA. She telephoned, visited, and corresponded with defendant. Their second daughter was eight years old, and the youngest daughter was four years old.

Eva observed that all of the “children love[d] [defendant] very much,” and defendant was “very playful with them.” The couple had separated, but they never argued or “discussed anything” in front of the children, so the children knew little more than that their father was “away now.” The couple had been in counseling in 1996 to keep the relationship “[a]s connected and as harmonious” as they could for the children. Defendant called the younger girls at least three times a week, and they always asked when he was coming home. They also had visited him.

When defendant was about 20 years old, he started a body shop in Culver City. He started with a “couple of old cars, and he did a really good job and word got around and he got a little busier.” A few years later, when the shop was busy, the building in which it was located was tom down. After the body shop closed, defendant went to work at a dairy with his stepfather. Eva had never seen defendant be violent. He was arrested for substance abuse in his 20s, but he attended a rehabilitation program and did not suffer a felony conviction.

The couple drifted apart because Eva wanted to buy a house whereas defendant “still want[ed] to help these kids” with his time and money and Eva “never saw any return[].” Eva said defendant “has always been very car[ing] of others,” a “very hard worker” who “never wanted to miss work, [and] never wanted to be late.” He was very encouraging with Eva and his sisters “to improve, [and] to do good.” He had “always been there for all of us,” he was “a compassionate guy,” a good dad and husband, and he was “always trying to help people.” 3.

Rebuttal Richard Morrison testified that he worked with defendant at the Edgemar dairy. Defendant was “just a regular, friendly fellow worker,” and the two had never had a confrontation. One night, around 9:00 or 10:00 p.m. in the fall of 1979 or 1980, Morrison was working outside in the yard. On his way back to the plant area, defendant approached, pointed a gun at Morrison, and said something like, “Get out of here.” Morrison was frightened and left work and told no one but his wife what had happened. The next day, he called the Edgemar dairy and quit because he was afraid his life was in danger. 4.

Surrebuttal Defendant testified he had worked with Morrison between 1977 and 1980. There were other Hispanic employees at the Edgemar dairy. When Morrison left the Edgemar dairy, Morrison told everyone he had a new job. Defendant did not know why Morrison would say defendant pulled a gun on him. Defendant was never written up for any misconduct at the Edgemar dairy. Defendant further testified that he had not suffered a felony conviction. He had been convicted of a misdemeanor for driving under the influence “[sjometime” in the 1980s.

He had also been arrested for possessing PCP for sale because he was carrying drugs and $800 in cash. Once defendant explained that he had just cashed his paycheck and showed officers his pay stub, they dropped the sale charge. Defendant went through a drug diversion program and was on probation for a year. Defendant also had been arrested for carrying a concealed weapon. He showed the law enforcement officers “all the money and the checks I carried from work,” and said he was the only driver who had not yet been robbed but that he expected he would be.

The officers simply returned the weapon, which was registered, and told defendant not to carry it again. The arrest for grand theft auto occurred when defendant was 14 or 15 years old; he had helped friends push a car down an alley not realizing it was stolen. No charges were pursued. On cross-examination, defendant said he did not recall being arrested for assault with a firearm. Defendant also had been arrested for being drunk in public.

He paid $50 bail, and “they just let me out.” He acknowledged he “used to have ... a drug and alcohol problem” that started when he was eight years old and “older kids would give [him] . . . reds and PCP.” Defendant tried to stop using drugs in his 20s and “for three years . . . had really bad problems in stopping” and “went through the hardest time of [his] life.” He finally stopped when he was 30 years old. Defendant was now 41 years old and had not used any drugs since he was 30. Defendant regularly called the young men who had worked for him doing body and fender work.

He observed that “they used to be drug dealers . . . and one of the biggest ones he runs his mother’s business now and . . . goes to college.” When counsel asked why he worked with these men when he was not making any money, defendant replied, “Go to the comer across the street from the police station. Tell me what you see. You see kids selling drags. You see shootings .... [This area] wasn’t like this 15, 20 years ago ....

When I had my shop when I was young, I was making a lot of money and I always had like $3,000 in my pocket cash, and I had 11 cars and I was not happy.” Defendant described seeing his friends in gangs getting shot, overdosing on drags, and getting arrested, “all being killed because of drugs.” Defendant had attended “a friend’s funeral every six months,” asked himself what he could do, and then “just started hiring them.” When he had first started his business, he had told these young men not to go to his shop because it was a business. But then he realized, “[W]hat am I doing?

I am being like everybody else, ... not caring, ... not sacrificing nothing.” II. Discussion A. Pretrial Issues 1. Right to counsel and cocounsel Defendant contends the trial court violated his right to counsel by refusing to appoint his previously retained counsel at state expense or to allow retained counsel to withdraw. Defendant also contends the court abused its discretion in denying his motion for appointment of cocounsel pursuant to

section 987, subdivision (d). We conclude that the court acted within its discretion in denying counsel’s request for second counsel, that defendant was not prejudiced even if the court erred in not appointing counsel, and that defense counsel abandoned his request to withdraw. a. Facts Defendant was arrested for Friedman’s murder in February 1996 and was represented by retained counsel, Tom Kontos. On July 17, 1996, Kontos was relieved, and Robert Beswiclc was substituted in as retained counsel for defendant.

In March 1997, defendant was indicted for the Friedman and Camacho murders and, in June 1997, charged with escape in a separate action. On July 2, 1997, the prosecution informed the trial court, and had apparently previously informed defendant, that it would seek the death penalty. On October 20, 1997, Beswiclc filed a motion for appointment of second counsel. (§ 987; see Keenan v.

Superior Court (1982) 31 Cal.3d 424, 430 [180 Cal.Rptr. 489, 640 P.2d 108] (.Keenan) [trial court has discretion under former statutes governing appointment of counsel to appoint a second attorney to assist in the defense of a capital case].) In his supporting declaration, Beswick said that the “case is a consolidation of two separate charges of murder,” involving “separate facts and circumstances,” and an escape charge.

He said, “Essentially, it is as if counsel is representing the defendant in two separate murder cases with an escape charge thrown into the mix.” He noted that “defense of this matter will involve extensive investigation, forensic work, and the use of experts. [1] . . . The investigation will require the questioning of various witnesses and persons who could provide evidence which would be favorable to the defense.

Additionally, inspection of the vehicle which was allegedly used by the defendants needs to be analyzed as well as certain items taken from the vehicle,” and Beswick said he “intend[ed] to hire forensic experts to evaluate the physical evidence.” Beswick noted he “was privately retained, however, the fee was substantially less than would be necessary to defend against a capital charge involving two separate murders.

Counsel is a sole practitioner and as such cannot devote the necessary time needed to question and investigate the facts and circumstances surrounding this case without compromising and prejudicing the remaining practice.

Moreover, because of the seriousness of the charge and the penalty it is imperative that every aspect of the case be analyzed legally to insure that the defendant is given the full protection of the California and United States Constitutions.” Beswick also observed that although he had “represented defendants in numerous capital cases” (apparently referring to cases in which special circumstances were alleged), “he ha[d] never represented a [defendant in a] capital case involving the death penalty.” On October 21, 1997, Judge Czuleger denied the application for second counsel because it “fail[ed] to provide any specific or compelling reasons requiring the assistance of additional counsel.” On November 20, 1997, defendant sought reconsideration of his motion for second counsel.

He also moved the court to appoint Beswick as counsel, meaning he would be paid by the court, and requested that Beswick be permitted to withdraw if he was not appointed. Beswick’s supporting declaration provided: “The majority of my practice is devoted to the practice of criminal law, however, I have never had to represent a defendant in a death penalty case. I have never represented an individual who has been charged with committing two murders, both of which have been combined into one trial.

I request additional counsel to [e]nsure that . . . defendant receives a complete and full defense.” Beswick estimated that he “will have to interview and/or cause[] to be interviewed approximately 60 witnesses,” review those statements, and “more than likely re-interview those individuals who[se] statements prove to benefit the defendant.” Beswick also anticipated hiring a forensic expert and investigator to aid in the preparation of the defense, and “monitoring] and supervising] these individuals.” Beswick noted that “nothing connected] the two murders,” and “each investigation and defense is in effect a separate” trial requiring him “to prepare what is essentially two different defenses,” and “two separate sentencing hearings as both murders will have distinct mitigating factors.” Additionally, “defendant has been charged with escape from a detention facility against which I will have to provide a defense.” Beswick anticipated that “the trial will last from four to six weeks,” and he “intend[ed] to make numerous pre-trial motions.” Beswick observed that although he had been retained and “received a small retainer fee at the outset of this case,” neither defendant nor his family had “the funds to pay my fees,” and he had not been paid.

He said, “To continue representing the defendant on my own will be ruinous to my practice in that I will not be able to devote my time to my other clients and I will not be able to produce income for my firm.

Additional counsel will allow me to continue my practice as well as [e]nsure that the defendant is well represented.” Beswick also observed that when he was retained, he “was neither aware of the second murder nor was I aware that the District Attorney’s office would be filing a second murder charge and alleging] special circumstances.” He said, “Given the complexity of the case and the indigence of the defendant I feel that it is appropriate that not only should additional counsel be appointed but also that I should be appointed by the court.

The burden of representing the defendant who is indigent in this matter without additional counsel and without appointment will be overwhelming. There is a genuine need for additional counsel as well as . . . for the court to appoint me.” Beswick added, “Should the court not feel that there is a need for additional counsel and for appointment of myself, then I respectfully request that the court allow me to withdraw and that a public defender take over representation.” The court again denied the motion, stating, “[C]ounsel for defendant has failed to demonstrate good cause for appointment of a second counsel.

The case is not a complex one.

Counsel’s contentions that there are two murders, counsel is a sole practitioner, he has not been fully paid, he has not represented a defendant in a death penalty case and that ‘a second attorney may lend important assistance with preparing for trial or presenting the case’ are not sufficient grounds for appointment of second counsel.” Judge Czuleger also stated that “[c]ounsel’s alternative request to be relieved from the case and the Public Defender’s Office appointed, must be brought before the bench officer who is currently hearing this matter and is therefore denied without prejudice.” (Italics added.) On December 11, 1997, Beswick informed the trial court, Judge Michael Harwin, that Judge Czuleger had denied his motion and that the order had instructed Beswick to make his request for appointment to Judge Harwin.

Beswick did not inform the trial court of his request to Judge Czuleger that he be permitted to withdraw from the case absent appointment. Judge Harwin indicated that he would consider the motion whenever Beswick made it and said that the court expected Beswick to “prepare[] for trial on [his] own.” Beswick responded, “Definitely and I am; absolutely.” On January 8, 1998, Beswick filed with Judge Harwin an application to be appointed as counsel. In Beswick’s supporting declaration, he said he was originally retained to represent defendant against one murder charge.

Counsel was paid a retainer, and defendant agreed to make periodic payments once the retainer had been exhausted. No payments had been made, and counsel had not been compensated for almost two years. After Beswick was retained, defendant had been charged with a second murder and escape, and the district attorney had decided to seek the death penalty. Beswick had “never represented a defendant charged with two murders in a death penalty case” and would undoubtedly need to spend significant time preparing.

Beswick anticipated he would need to question 30 to 40 witnesses, believed that the case would involve numerous motions, and noted that the district attorney’s office had estimated that the trial could last over two months. He said, “Essentially I [am] to remove myself from my practice of which I am the sole practitioner.

To work for the period of time required without compensation would prove disastrous to my practice and my employee.” Beswick said he could not continue to represent defendant “for the duration of the trial without compensation” and that to do so “would not only cause me great financial hardship but ... it would also impact the defendant in that I would be very hard pressed to provide the representation needed while at the same time trying to save my practice.” Beswick did not ask the trial court to allow him to withdraw from the case if he was not appointed.

On January 13, 1998, Judge Harwin informed Beswick, “You should clearly understand regardless of the ruling” on the motion for appointment “that you will be starting trial on” February 2. Beswick replied, “That I understand,” and earlier in the hearing had said, “I am ready to go.” On January 16, 1998, Beswick filed a supplemental declaration in support of the application to be appointed. Beswick explained that in mid-1996, he was approached by defendant’s sister, who was a secretary in Beswick’s suite and whom Beswick had known for many years.

Defendant’s sister indicated that defendant, who was charged with murder, was represented by counsel but that she and her family were interested in retaining Beswick. Beswick met with defendant’s family and “discussed the case. Initially the case was rather straight forward with witness statements which at best were inconclusive. The family was at this point desperate and persuaded me to represent [defendant]. Given my familiarity with the family and the nature of the case I agreed to represent [defendant] for [a] reduced fee.

Neither [defendant] nor his family had the financial resources to pay the type of fees attendant to representation in a murder case.” Beswick was paid a $15,000 retainer, which he billed against a rate of $300 an hour. “The family signed a retainer indicating they would pay my fees and any costs as they were incurred.” After the agreement was signed, the “family suffered from financial hardship and were thus unable to make any further payments towards my fee,” nor did defendant’s friends, whom defendant said would contribute, help in paying the attorney fees.

Beswick said that the case had gone from a single murder charge in which the identifications were suspect to a death penalty case involving two different murder charges and an escape charge, and that in one of the murder cases, a former codefendant now identified defendant as the shooter.

Beswick said that because the case was going to last two to three months, during which time he would receive no income, “I will be unable to maintain my practice if I am not appointed to represent [defendant].” Beswick’s declaration also stated that because Shane Woodland, the former codefendant in the Friedman case, was represented by a public defender, the court would need to appoint private counsel for defendant “in the event I was not involved in this case.” Beswick was mistaken, however. Woodland was not represented by the public defender; he was represented by Bruce Hill, who was privately retained.

On January 28, 1998, Judge Harwin denied the application to appoint Beswick, stating, “the bottom line is, you did get retained and you had been paid substantial monies, even ... if not all you would have wanted.” Beswick replied, “I appreciate the court’s consideration. Obviously, my stance was it was a single murder case, now it’s turned into a second murder case death penalty and escape. As I tried to bring to the court’s attention, I’ve got much more than I bargained for and much longer trial [than] I anticipated.” The court said, “I understand.

I don’t, in good conscience, see how I can bill the county for that.” Beswick did not request to withdraw from the case or have alternate counsel appointed. He continued to represent defendant throughout the trial. b. Analysis i. Second counsel Defendant contends Judge Czuleger abused his discretion in denying defendant’s request for second counsel.

Section 987, subdivision (

d) provides in relevant part: “In a capital case, the court may appoint an additional attorney as a cocounsel upon a written request of the first attorney appointed. The request shall be supported by an affidavit of the first attorney setting forth in detail the reasons why a second attorney should be appointed.” (Italics added; provision repealed and reenacted without substantive change, Stats. 1998, ch. 587, §§ 3, 4, pp. 3912-3913.) Here, Beswick was retained, not “appointed.” But even assuming

section 987, subdivision (

d) authorized the appointment of second counsel, Judge Czuleger did not abuse his discretion in declining to do so. “ ‘The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution.’ ” (People v. Lancaster (2007) 41 Cal.4th 50, 71 [58 Cal.Rptr.3d 608, 158 P.3d 157].) “ ‘ “The initial burden ... is on the defendant to present a specific factual showing as to why the appointment of a second attorney is necessary to his defense against the capital charges.” (People v.

Lucky (1988) 45 Cal.3d 259, 279 [247 Cal.Rptr. 1, 753 P.2d 1052].) An “abstract assertion” regarding the burden on defense counsel “cannot be used as a substitute for a showing of genuine need.” (Id. at p. 280; People v. Jackson (1980) 28 Cal.3d 264, 287 [168 Cal.Rptr. 603, 618 P.2d 149] [no abuse of discretion in denying application for second counsel when counsel merely relied on the circumstances surrounding the case].)’ ” (People v.

Verdugo (2010) 50 Cal.4th 263, 278 [113 Cal.Rptr.3d 803, 236 P.3d 1035].) “We review the trial court’s decision denying a request to appoint second counsel for abuse of discretion.” (Ibid.) “The abuse of discretion standard is used in many other contexts and reflects the trial court’s superior ability to consider and weigh the myriad factors that are relevant to the decision at hand. A trial court will not be found to have abused its discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.’ ” (People v.

Roldan (2005) 35 Cal.4th 646, 688 [27 Cal.Rptr.3d 360, 110 P.3d 289] (Roldan).) Defendant fails to make such a showing here.

Defendant relies on Keenan, in which we concluded that appointment of second counsel was justified because the trial would occur seven weeks after counsel’s appointment, the case involved complicated scientific and psychiatric testimony, and five other criminal cases were pending against the defendant and the prosecution intended to rely at trial on evidence related to those cases. (Keenan, supra, 31 Cal.3d at pp. 432-434.) Here, by contrast, Beswick had represented defendant for over a year in the Friedman case and over six months in the Camacho case at the time the motion for second counsel was made.

Although Beswick had never tried a case in which his client faced the death penalty, he had tried what he described as “numerous capital cases,” by which he apparently meant cases in which special circumstances were alleged, and the bulk of his practice was devoted to criminal law. Moreover, the factual circumstances and associated legal issues of the two murders were not complex.

The cause of death in both cases was undisputed, and defendant was implicated in both crimes by his statements to others and, in the Friedman murder, by eyewitness testimony and the presence of his fingerprint inside a vehicle associated with the crime. (See Roldan, supra, 35 Cal.4th at p. 688 [case that involved eyewitnesses who had identified the defendant as the gunman and testimony regarding the defendant’s “damaging and incriminating admissions” was “quite straightforward”].) Indeed, defendant said he was not present when Friedman was murdered and testified that he had witnessed Camacho’s murder.

Defendant also faced an escape charge, but the evidence and legal issues associated with the escape were neither extensive nor complicated. No prior convictions were alleged, and the special circumstances and penalty phase case-in-chief evidence dealt only with the charged crimes. In sum, the court’s ruling that defendant had failed to justify the appointment of a second attorney was not an abuse of discretion.

Having concluded that Judge Czuleger did not abuse his discretion in denying defendant’s motion for second counsel, we need not consider defendant’s further claim that the wrongful denial of the motion resulted in ineffective assistance of counsel. ii. Motion to withdraw Defendant contends that the trial court erred in not granting counsel’s motion to withdraw if he was not appointed.

As noted above, Judge Czuleger denied counsel’s request without prejudice, stating, “[c]ounsel’s alternative request to be relieved from the case and the Public Defender’s Office appointed, must be brought before the bench officer who is currently hearing this matter and is therefore denied without prejudice.” Beswick never renewed his motion to withdraw in the trial court and hence abandoned the motion. iii. Appointment of counsel Defendant contends the trial court abused its discretion in not appointing Beswick. We disagree. Beswick served as counsel for defendant until after filing a new trial motion.

Therefore, even assuming the trial court erred in failing to appoint Beswick, defendant was not prejudiced on the ground that he was denied his counsel of choice. Nor do we find that defendant received ineffective assistance of counsel because of the trial court’s failure to appoint Beswick. (See post, pt. II.D., p. 972 et seq.) Finally, we reject defendant’s claim that there was state interference with defendant’s right to counsel. The trial court acted within its discretion in denying the motion for second counsel, and Beswick never moved to withdraw in the trial court.

Instead, he continued to serve as defendant’s counsel despite the denial of the motion for appointment of counsel. 2. Representative cross-section a. Financial hardship Defendant asserts he was denied a jury drawn from a representative cross-section of the community because the trial court failed to provide adequate compensation for jurors and excused prospective jurors on the ground of financial hardship. We reject the claim. The parties stipulated in the trial court to excuse prospective jurors whose employers would not pay for at least 25 days of jury service.

Defendant did not object to the panel or move to quash the venire. This claim is therefore forfeited on appeal. (People v. Fauber (1992) 2 Cal.4th 792, 816 [9 Cal.Rptr.2d 24, 831 P.2d 249].) The claim is also meritless. “ ‘Under the federal and state Constitutions, an accused is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; Duren v. Missouri (1979) 439 U.S. 357, 358-367 [58 L.Ed.2d 579, 99 S.Ct. 664]; People v.

Howard (1992) 1 Cal.4th 1132, 1159 [5 Cal.Rptr.2d 268, 824 P.2d 1315].) That guarantee mandates that the pools from which juries are drawn must not systematically exclude distinctive groups in the community. [Citation.] “In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” (Duren v.

Missouri, supra, 439 U.S. at p. 364 . . . ; [citation].) ... If a defendant establishes a prima facie case of systematic underrepresentation, the burden shifts to the prosecution to provide either a more precise statistical showing that no constitutionally significant disparity exists or a compelling justification for the procedure that has resulted in the disparity in the jury venire. [Citation.]’ ” (People v.

Burney (2009) 47 Cal.4th 203, 225-226 [97 Cal.Rptr.3d 348, 212 P.3d 639].) As to the first element of the Duren test, defendant lists 127 prospective jurors he claims were excused because their employers did not pay for at least 25 days of jury service, three prospective jurors he claims were excused because they were self-employed, four who had prepaid vacations or business trips, one who had numerous business commitments, one with childcare issues, and four who were unemployed.

Based on this list, he contends that the court should “recognize poor people as a distinctive group which was systematically excluded from [defendant’s] jury because the trial court could not or would not provide adequate compensation for jurors in this long trial.” Even assuming individuals who are poor constitute a cognizable group (but see People v.

Johnson (1989) 47 Cal.3d 1194, 1214 [255 Cal.Rptr. 569, 767 P.2d 1047]), the fact that an employer would not compensate an employee for at least 25 days of jury service, or that an individual had a prepaid vacation or business trip or was experiencing childcare issues, does not reveal any information about the prospective juror’s financial status or demonstrate that he or she was poor. Indeed, the cited prospective jurors worked for a wide range of companies such as banks, insurance companies, and hospitals.

The employer of the prospective juror excused due to childcare concerns placed no limit on the number of days she would be paid for her jury service. And, as the Attorney General observes, one of the cited prospective jurors actually served on the jury. The facts here do not establish a prima facie case of systematic underrepresentation.

In this and certain other appellate claims, defendant contends the asserted error infringed upon his constitutional rights. “In those instances where he did not present constitutional theories below, it appears that either (1) the appellate claim is one that required no objection to preserve it, or (2) the new arguments are based on factual or legal standards no different from those the trial court was asked to apply, but raise the additional legal consequence of violating the Constitution. ‘To that extent, defendant’s new constitutional arguments are not forfeited on appeal.’ (People v.

Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [42 Cal.Rptr.3d 677, 133 P.3d 581].) No separate constitutional discussion is required, or provided, when rejection of a claim on the merits necessarily leads to rejection of any constitutional theory or ‘gloss’ raised for the first time here.” (People v. Loker (2008) 44 Cal.4th 691, 704, fn. 7 [80 Cal.Rptr.3d 630, 188 P.3d 580].) b. Convicted felons Defendant further claims that the exclusion of convicted felons from jury service denied him his right to a jury selected from a representative cross-section of the community.

During voir dire, a prospective juror revealed that he had previously been convicted of burglary and robbery and served a prison term. The parties stipulated to excusing the prospective juror. Defendant has therefore forfeited this claim on appeal. (See People v. DeSantis (1992) 2 Cal.4th 1198, 1216-1217 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) On the merits, we have previously rejected this claim, and defendant cites no persuasive reason to revisit our conclusion. {Id. at p. 1217, fn. 2.) B. Guilt Phase Issues 1.

Right to be present Defendant contends he was denied his right to be present at critical stages of the trial. “ ‘Under the Sixth Amendment, a defendant has the right to be personally present at any proceeding in which his appearance is necessary to prevent “interference with [his] opportunity for effective cross-examination.” ’ (People v. Butler (2009) 46 Cal.4th 847, 861 [95 Cal.Rptr.3d 376, 209 P.3d 596] (Butler), quoting Kentucky v.

Stincer (1987) 482 U.S. 730, 744-745, fn. 17 [96 L.Ed.2d 631, 107 S.Ct. 2658].) In addition, a defendant has a due process right ‘to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ (Kentucky v.

Stincer, at p. 745.) ‘Neither the state nor the federal Constitution, nor the statutory requirements of sections 977 and 1043, require the defendant’s personal appearance at proceedings where his presence bears no reasonable, substantial relation to his opportunity to defend the charges against him.’ (Butler, at p. 861.)” (People v. Lynch (2010) 50 Cal.4th 693, 745-746 [114 Cal.Rptr.3d 63, 237 P.3d 416] (Lynch).) Defendant cites 33 times in the record that he claims he was not present for discussions between the court and counsel.

The record affirmatively indicates he was present for at least a portion of two of these occasions. As to the remaining times, defendant’s absence is not noted in the record.

Even assuming he was absent, he fails to demonstrate that his presence bore a “ ‘reasonable, substantial relation to his opportunity to defend the charges against him.’ ” (Lynch, supra, 50 Cal.4th at p. 746.) The proceedings at issue were all similar to those involved in prior cases in which we rejected a claim that a defendant’s right to presence was infringed. (See, e.g., id. at pp. 745-746 [the defendant’s personal presence was not required at discussions of jury selection procedures]; People v.

Kelly (2007) 42 Cal.4th 763, 781 [68 Cal.Rptr.3d 531, 171 P.3d 548] [the defendant’s personal presence at a hallway conference not required when a prospective juror “was questioned and ultimately excused for cause because the prosecutor had personally prosecuted” a relative]; People v. Perry (2006) 38 Cal.4th 302, 312-314 [42 Cal.Rptr.3d 30, 132 P.3d 235] [the defendant’s presence was not required at a conference on whether certain spectators should be excluded from the courtroom]; People v.

Box (2000) 23 Cal.4th 1153, 1191-1192 [99 Cal.Rptr.2d 69, 5 P.3d 130] [there was no constitutional or statutory violation caused by the defendant’s absence at hearings involving discussions of whether questioning by defense counsel or codefendant’s counsel had opened the door to certain evidence or inquiry]; People v. Waidla (2000) 22 Cal.4th 690, 741-742 [94 Cal.Rptr.2d 396, 996 P.2d 46] [the defendant had no right to be personally present at hearings involving procedural, evidentiary, and housekeeping matters, including a discussion of jury instructions].) 2.

Failure to preserve evidence Defendant contends that the prosecution committed misconduct by failing to preserve a hair spray can. We reject the claim. a. Facts At trial, the prosecution presented evidence that defendant’s fingerprint was lifted from a hair spray can located in the glove compartment of the car driven by Shane Woodland to the Friedman murder scene.

Before trial, on September 10, 1996, defendant filed a motion for discovery of, among other things, “[a]ll physical evidence obtained in the investigation of this case, whether or not the People intend to and/or may use it against the [defendant.” On or about December 29, 1996, defendant filed a motion for a discovery compliance order, stating, “There is information that a certain hair spray can was seized from the vehicle driven by codefendant Woodland on which a fingerprint was discovered belonging to defendant. ...

An examination of the can was requested for the purpose[] of investigating for the presence of fingerprints.” At the February 3, 1997 hearing on the motion, the prosecutor informed the court, “I’ve indicated to counsel that what he wants is in evidence over at L.A.P.D., and I’m going to walk over with him and have another homicide detective show him what in fact he wants to see, which is the latent lifted off the can .... [H]e also wants to see the can, and I don’t have any problem with that.” The prosecutor also said, “The only discovery item that counsel indicates he wanted was the can and the latent print. ...

It is available, to my knowledge.” That day, the prosecutor learned from Detective Lopez, however, that after an evidence technician photographed the can and lifted the fingerprint, the can had been left in the car and was no longer available. The prosecutor later explained her understanding that the can had been left in the car and the car had been released to its owner. Cou

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