THE PEOPLE, Plaintiff and Respondent, v. FRED HARLAN FREEMAN, Defendant and Appellant, 8 Cal. 4th 450

Opinion ARABIAN, J. —In January 1984, Donald Koger was killed during the robbery of a bar in Berkeley. Following trial of defendant and a coparticipant, Paul Gutierrez, the jury convicted defendant of several crimes arising out of the incident, including murder, five counts of robbery and three counts of attempted robbery, all with the personal use of a firearm. The jury also found true the special circumstance that the murder was committed in the commission of robbery. Outside the presence of the jury, defendant admitted three prior felony convictions. After the penalty trial, the jury imposed the death penalty.

The court denied defendant’s automatic motion to modify the verdict, and sentenced defendant to death. This appeal is automatic. We affirm. I. Facts A. Guilt Phase 1. Prosecution Evidence The Gilman Street Exit, a neighborhood bar in Berkeley, was open for business as usual the evening of January 11, 1984. Paul Urone was the bartender, and Julie Gray was in charge of the kitchen. Most of the patrons were regulars. That night they included the victim, Donald Koger, a gardener nicknamed “Cowboy.” Seated next to Koger was a psychiatrist, Darol Rice.

Also in the bar were Dottie Hansen, a friend of Drone’s, and, seated next to her, Norwood Square. At one end of the bar were Verna Ratterman, Bob Rideout and Jean Lipari. Around 11 p.m., a man identified as the codefendant at trial, Paul Gutierrez, entered the bar wearing a baseball cap, and sat down about three stools away from Koger. Gutierrez ordered a beer. About 10 or 15 minutes later, 2 other men entered and sat down at the far end of the bar. One, identified as defendant, ordered a beer. The other, who has never been identified, went to the men’s room, then returned and also ordered a beer.

After serving these two, Urone continued his bartending duties, and walked in front of Gutierrez. Suddenly, Gutierrez stood up and “put a gun” on Urone. Urone understood that it was a “hold up.” He told the others to be “cool,” and told Gutierrez not to hurt anyone. He then saw the two men who had just entered the bar also stand up wielding guns and realized that “it was a party of three.” He started to go to the cash register to get the money, but Gutierrez said, “Not yet, freeze.” Defendant approached Koger.

Rice and Ratterman heard Koger say, “Fuck you.” Defendant shot Koger in the left side of the head, killing him. Koger “keeled over” onto the floor. Just before or just after defendant shot Koger, Gutierrez fired a shot into the bar. Gutierrez then demanded that Urone put the money from the cash register into a shoulder bag. Urone complied. Gutierrez and the unidentified gunman then left. Defendant remained behind. He stepped over Roger’s prone body and took a wallet out of Roger’s pocket.

Then, one by one, he stole property, generally wallets, from other patrons at gunpoint, placing it into a small plastic garbage bag. He took $1,500 from Norwood Square. When he finished, he too left the bar. As he was leaving, Ratterman heard him say, “Anybody move, you’re dead.” After defendant left, Urone called the police. Carmen Maria Horton testified after being granted immunity that as of January 1984, she had known Gutierrez a long time and defendant a few months. The night of the robbery, she saw both defendant and Gutierrez in her motel room in Richmond.

Defendant told her that they went to the bar to “rob” it. He said he shot the victim, and showed her the gun he used. Horton later sold the gun. Gutierrez and Horton were together in a motel room when Gutierrez was arrested. Paul Urone, the bartender, worked with the police to prepare an “IdentiKit” composite of the suspects, and later helped a police artist sketch them. He made no selection from a photographic lineup that did not include either Gutierrez or defendant. About a month after the crime, Urone selected Gutierrez’s photograph from a lineup as that of the gunman wearing the baseball cap.

A few days later, he chose defendant’s photograph as that of the “shooter.” The next day, he identified defendant from a physical lineup. He put a question mark on the card because, he explained at trial, “I just felt that at the time, the seriousness of the crime, I didn’t know, he might have had a look alike, a twin, so I just put a question mark . . . .” Urone later attended another physical lineup that included Gutierrez. He initially identified a person other than Gutierrez, but then felt he had made a mistake, and changed his identification to Gutierrez. He identified both Gutierrez and defendant at trial.

Julie Gray told police that one photograph in a lineup that did not include Gutierrez or defendant resembled, but was not, the shooter. Later she identified defendant from a physical lineup as the one who shot Koger. She placed an “X” and a question mark by her identification, the latter because defendant wore a hearing aid at the lineup and his hair appeared darker at the time of the shooting. She also placed a question mark by another person (not one of the suspects) as similar to the gunman with the baseball cap. Later she identified Gutierrez from another lineup.

She also identified defendant and Gutierrez at trial. Verna Ratterman, who was a security manager at the time of the crime, helped the police prepare the artist’s sketch of the suspects. At the first physical lineup that included defendant, all the suspects wore hats. Because of this, Ratterman assumed they were looking for the gunman who wore a hat, not the shooter. She chose a person other than defendant with an “X” and a question mark as looking like Gutierrez. Later, she positively identified Gutierrez from another lineup. She identified Gutierrez and defendant at trial.

Norwood Square could not identify anyone at trial, but his memory had been adversely affected by illness and surgery that postdated the robbery. He attended a physical lineup that included defendant, and placed question marks by two positions, including that of defendant. Right after the lineup, he made the following statement to the police explaining his selections: “I’m 95 percent sure that number four [defendant] in the lineup was the one of the two robbers that I saw at The Gilman Street Exit and possibly the one that got my wallet. In parenthesis, not sure.

This is based on his facial features, coloring of his hair, his physical size, but particularly his face. [^Q I placed a question mark on number three because he appeared to be the right size and complexion for one of the robbers, possibly the one with the hat. He had the same general demeanor. His face seemed similar, but I am less certain about him being one of the robbers than I am about number four.” No one else in the bar the night of the robbery identified either defendant or Gutierrez. Berkeley Police Officer Alec Boga investigated the crime.

At one point a warrant had issued for the arrest of Gutierrez, but the police did not know who the other two gunmen were. While searching for Gutierrez, Officer Boga spoke with defendant at a home in Richmond. Defendant said he had met Gutierrez about a month earlier and had helped bail “him out of the Martinez jail.” During the interview, Officer Boga noticed a black holster. Defendant said “the holster was his, but he no longer owned the gun.” After defendant’s arrest, and possessing a search warrant, Officer Boga searched a car parked in front of a residence where defendant said he stayed part of the time.

Horton testified the car belonged to defendant. Inside the car, Officer Boga found a white plastic garbage bag. 2. Defense Evidence Counsel for defendant elicited on cross-examination of Horton that defendant told her he did not intend to shoot the person at the bar during the robbery; the shooting was an accident. Defendant called two witnesses. Jean Lipari viewed the lineup that included defendant. She placed question marks after the numbers of two of the subjects, neither of them defendant.

She testified that she “didn’t put a X on anybody because I wasn’t sure and they said if there was anybody who looked something like them, you thought it reminded you of him, to put a question mark on them.” During the robbery, she saw only the hand of one of the persons with a weapon. Carol Mickey testified that she had lived with Koger from time to time. Koger often got into bar fights. When he drank, Koger would “get mad or angry at the slightest little thing.

He misinterpreted somebody’s talking with him and punch him out.” The codefendant, Gutierrez, also called several witnesses, including David McGuire, who testified among other things that he was with defendant at a Mexican restaurant at the time of the robbery, and Dr. Elizabeth Loftus, who testified about factors affecting the reliability of eyewitness identifications. B. Penalty Phase James Peters testified for the prosecution that in 1961, defendant and another person robbed him at gunpoint while he worked as a gas station attendant in Berkeley.

The prosecution introduced records showing that defendant was convicted of robbing Peters and that defendant was also convicted of another armed robbery in 1968. The defense called four witnesses. Sharon Freeman, defendant’s former wife, introduced their two daughters to the jury. Mary Freeman, defendant’s mother, identified some paintings by defendant. He was trying to make a living by painting, and had business cards labeled “Freeman’s Art Studio.” In 1979, defendant received a certificate and a trophy for taking a “mechanics course.” Defendant was bom in 1939, the second of seven children.

Alta Ruark, defendant’s sister, testified that their father had voiced doubts about defendant’s parentage. When defendant was about five or six years old, their house was damaged by fire, and they lived with an uncle and aunt for awhile. Once the uncle beat defendant and Ruark for eating a lemon pie. Defendant’s father often beat defendant with a belt and once forced him to stand on one leg for an hour. Defendant has difficulty hearing, as do other members of the family. Defendant lived in a foster home for about three years beginning when he was about twelve years old.

He was once hit in the ear with a stick, requiring surgery. Alan Glasscoe, the director of the Berkeley Chess Club, testified that defendant used to play chess at the club. At the time of trial, defendant’s name appeared on the mailing list of the California Chess Journal. Defendant once wrote Glasscoe a letter asking about playing correspondence chess. II. Discussion A. Guilt Phase 1.

Defendant’s Hearing Defendant contends he is “functionally deaf,” and that this “impairment compromised his right to participate in his defense and to hear and be personally present at all stages of the proceedings.” As the record does not support the contention, we disagree. (

a) The Record In August 1984, near the end of the preliminary hearing, defense counsel Spencer Strellis, one of the defense attorneys who represented defendant throughout the trial, stated, “I have heard from my client . . . that his hearing aid batteries, the batteries in his hearing aid have died, and I wonder if the Court would order the sheriff to provide him with new batteries so he once again can hear and partake in whatever.” (Italics added.) The court responded, “Can I do that through a [Penal Code section] 4011.5?” An off-the-record discussion ensued, and the matter was not again referred to at the preliminary hearing.

On October 31, 1984, at a hearing in superior court, Strellis stated that defendant “has a severe hearing problem,” and, although defendant had been provided with a hearing aid, he needed a new battery. “Otherwise,” counsel stated, “he is in a position where he cannot hear the judicial proceedings and I think he has a Constitutional Right to hear them.” The court agreed and ordered a new battery for defendant. The question next arose on April 19, 1985, during another hearing in superior court. A different attorney representing defendant stated that defendant “has a hearing problem” and requested batteries.

The court noted the problem, and stated a belief that defendant simply had to ask for batteries. The problem was apparently not resolved that easily, for it came up again at a hearing a week later, on April 26, 1985.

Strellis stated that defendant had not gotten a new battery in the last two weeks, and that when defendant does not have a battery for his hearing aid, “he is unable to confer with counsel and it reaches Constitutional dimensions.” The court stated that they “should buy a supply of batteries,” and ordered the bailiff to “check that out.” At the beginning of a hearing on May 16, 1985, the bailiff told the court, “He can’t hear.” The court asked defendant, “You can’t hear me, Mr.

Freeman?” Defendant responded, “I can hear you now.” During the short hearing, defendant responded to questions posed by the court, and nothing more appears in the record of that hearing relevant to defendant’s hearing. On August 22, 1985, the superior court issued a written order, “Defendant to be taken to the hearing clinic or be provided with batteries.” Despite periodic hearings in court, the record reflects no further problems about defendant’s hearing until October 1986. During that time, on May 16, 1986, defendant filed three pro se lawsuits in federal court, all of which were subsequently dismissed.

Pursuant to defendant’s request, we have judicially noticed those records. In the pleadings, defendant voiced numerous and detailed complaints about his representation and his treatment by the authorities.

The only reference to hearing difficulties in any of the pleadings is this statement in the middle of a lengthy complaint about his treatment in jail: “Defendants [i.e., the ones sued in the pro se lawsuit] deny pre-trial detainees the opportunity to personally consult with their attorneys in private at North County Jail, and I have a hearing problem and everybody else can hear my lawyer before I can.” During this time, defendant filed various pro se pleadings in state court complaining about his attorneys and other matters.

One, filed October 14, 1986, contained detailed complaints about defendant’s medical and dental care. None mentioned a hearing problem. On October 24,1986, defendant signed a declaration in which he stated, “I am deaf and have grave difficulty hearing. It is important that I hear in order to confer with my counsel. I would like to see an ear specialist to remove the build up of wax in my ear, because at the present time I am not able to confer and participate in my own defense.” This was attached to a “motion for medical treatment” filed on November 14, 1986, by Strellis.

Among other things, the motion requested defendant be provided with an “Ear, Nose and Throat specialist.” On November 26, 1986, the court ordered defendant referred for medical examination and treatment for “Eye ear nose & throat (teeth) also for Hearing problem.” Defendant received treatment that day and was “sent to Ear-Nose-Throat specialist for audiogram to place hearing aid in right ear.” The medical notes indicate defendant already had a hearing aid in his left ear. In December 1986, the case was assigned for trial to Judge Golde.

At the first hearing before Judge Golde, on December 15, 1986, Strellis stated he could not “even talk to my client, and he can’t hear what we’re saying.” The court ordered batteries for defendant’s hearing aid. On January 15, 1987, a hearing was held on a peremptory challenge to Judge Golde that defendant filed pro se. Strellis stated the defense wished to withdraw the challenge. Defendant personally agreed. When the court indicated it would grant the challenge unless it was withdrawn, defendant personally stated, “Yes I would like to withdraw it, please.” The same day, defendant moved for medical treatment.

The court signed an order requiring that defendant be transported to Highland Hospital, “where he shall be seen by an ear doctor; first to have his ears cleaned and secondly to determine whether a second hearing aid would be helpful in allowing Mr. Freeman to hear.” On January 21, 1987, the court asked if “They take care of the doctor?” Defendant personally stated, “Not yet.” The court ordered the bailiff to “see this guy gets to the doctor for that ear examination.” They discussed how best to proceed.

When asked what had to be done for his ears, defendant personally responded, “Clean them, and they have to fit it for hearing on this ear here.” At one point the court stated, “I’ll go with you to the doctor.” The next day, January 22, the court postponed a hearing from the next Monday to Tuesday so defendant could receive his medical treatment. It ordered that “defendant be seen by an Otolaryngologist for his ears.

Further Court orders that his ears be cleaned and a determination be made whether defendant needs a second hearing aid for right ear and that the hearing aid for the left ear be checked and have batteries replaced, if necessary.” The same day, a doctor from the Alameda County Health Care Services examined defendant and scheduled him for an appointment the next day. A notation on the paper work indicates the doctor spoke with Judge Golde. On January 23, 1987, defendant signed a declaration stating, “My hearing is impaired in both ears. I used to wear two hearing-aids.

My hearing is even worse than it was then, 1983, while living in Las Vegas, Nev. My hearing-aid for my right ear went out. I was never able to replace it.” The problem had apparently not been resolved by January 27, and Strellis requested another order. The next day, January 28, the court issued a written order that defendant be transferred to a hospital by the morning of January 30 for a “hearing test” conducted by a specified person in a specified room. “If it is determined,” the order continued, “as a result of these tests, that Mr.

Freeman needs a hearing aid, the appointment for the next step should be made on Monday, February 2nd or Friday, February 6th, and the sheriff shall report back to Department 9 of Alameda County Superior Court on Monday, February 2nd, the date of the next appointment.” Pretrial hearings motions were also heard on January 28. At one point, Strellis stated, “We’re going to have a daily on this; is that correct?” The court shook its head. It then said, “You can have a daily on the trial.” An unreported bench conference followed at Strellis’s request.

Immediately after the conference, Strellis stated: “For the record, Your Honor, the discussion we just had, the Court Reporter will create a transcript, not on a daily at this stage, though, later. [‘JD If we can have one extra copy of that made so I can give it to Mr. Freeman because of his hearing problem. We will at least let him read and make sure that he heard what was going on.” The court ordered the extra copy. The settled statement for the unreported conference states that this “conference related to the defendant’s hearing problem.

Previously, the Court had ordered that he be fitted with two hearing aids. Because of continuing auditory problems, the Court ordered that Mr. Freeman be provided with a daily transcript.” After the bench conference on January 28, defendant stated he could hear the district attorney but not the particular witness. Strellis suggested the witness speak louder, and the bailiff apparently adjusted the microphone. The hearing continued with no further hearing difficulties apparent from the record.

Prior to adjourning, the court stated it needed the defendants the following Monday, and said to “make sure the hearing thing came through.” Strellis stated they would only have the test on Friday, so it would not “come through,” but thought that by Monday they would know if he had had the test. At a hearing on February 3, 1987, defendant personally admitted three prior convictions and denied one, with no apparent difficulty understanding the court. At the end of the court day on February 5, 1987, Strellis stated that defendant’s “batteries are run down” and requested new ones.

Defendant personally expressed difficulty obtaining them. An off-the-record discussion ensued. The settled record states, “The defendant was having continued difficulty hearing all of the proceedings. It was assumed that this was because of the batteries in his two hearing aids.

In an effort to rectify this, the Court directed the bailiff to maintain extra hearing aid batteries in his courtroom desk drawer.” During jury selection, on February 9 and March 12, 1987, the court twice issued written orders for defendant to be transported for appointments, the first “for the fitting of a hearing aid,” and the second “to get his hearing aid adjusted.” At one point near the end of the day on February 24, 1987, the court commented outside the presence of prospective jurors, “Even Freeman heard that, Quatman.” Defendant responded, “I heard that.” During trial, defendant filed additional pro se pleadings in the superior court and federal court voicing many complaints, none related to his hearing.

One time, shortly before the penalty phase, defendant personally stated in court that he wanted the transcript of the day’s proceeding. It appeared he generally did not receive the daily transcripts for at least a day. Nothing more relating to defendant’s hearing appears on the trial record.

Long after trial, during hearings to settle the record and to determine whether there had been unreported discussions relating to defendant’s hearing, Strellis stated he “would be the last one to say that [defendant] could hear all the proceedings.” The district attorney said defendant “got a daily, so he wouldn’t miss out on what had gone on.” Strellis added, “We got a hearing aid.

I replaced the batteries every time he needed them, and we had his ears cleaned. [*][] To answer your precise question, I was fairly careful I think to put on record everything that related to his hearing because it was an ongoing struggle as to who was going to pay for batteries and things like that.” The court said, “Everything is on the record because we were not getting an enormous amount of cooperation from the sheriff,” and that, “There are no chamber conversations other than just kidding around.” At a hearing to settle the record of the unreported bench conference of January 28, 1987, the court stated, “The conference concerned obtaining an extra copy of the daily transcripts for Mr.

Freeman, who had a hearing loss, and we felt it would be necessary to make certain he could comprehend exactly what was said in case he had some difficulty hearing the voir dire of prospective jurors . . . and testimony of witnesses.” The court and Strellis also agreed that the daily transcript had been provided because of a concern that defendant “might not be able to hear because of his hearing loss.” In discussing the availability of medical records of defendant’s treatment, the court stated, “There is no medical record. ...

All they do is fill out like a half sheet of paper saying cleaned his ears, malingering, didn’t do anything, did do something. It’s a form . . . kind of like a printed form.” Strellis said, “The problem is they don’t always send a form. They may have flushed his ears and sent him back a verbal message, we don’t think two hearing aids will be better than one . . . .” The court added, “As a practical matter . . . they test, they examine, the guy cleans his ears, and they tell you. They don’t give him a—that good a test. It’s not very good medical service. You only get that which they did.

I’d be shocked if they gave them a test. But it’s possible." (

b) Analysis Defendant contends that although he was physically present during trial and pretrial proceedings, he was effectively not present because he could not hear what was going on and therefore could not participate. A similar contention was presented in People v. Guillory (1960) 178 Cal.App.2d 854 [3 Cal.Rptr. 415, 80 A.L.R.2d 1077]. There, on the day of trial, the defendant, who had been released from custody on bail, complained he could not hear what was being said. He did not bring a battery for his hearing aid. At defense request, the court allowed defendant to stand next to the witness to hear.

At the afternoon session, defendant indicated he had a hearing aid and could hear some things and not hear others. The trial proceeded. “No objection was made to proceeding further or effort made to change the seating arrangements in any manner. Nor did defendant appear to have any difficulty in following the proceedings.” (Id. at p. 859.) The Court of Appeal recognized that the trial court “should afford to a defendant who is handicapped by deafness, blindness or other affliction, such reasonable facilities for confronting and cross-examining the witnesses as the circumstances will permit.” (People v.

Guillory, supra, 178 Cal.App.2d at p. 861.) We agree. Indeed, the Legislature has taken steps to protect the deaf or hearing impaired. (Evid. Code, § 754; Civ. Code, § 54.8.) Nevertheless, the Guillory court held that the “record does not support the claim [that defendant was denied due process because he could not hear] factually or legally.” (People v. Guillory, supra, 178 Cal.App.2d at p. 858.) “The trial judge showed the appellant every reasonable consideration. No objection to the adopted procedure was made in the trial court.

When equipped with his hearing aid appellant seems to have had no difficulty in following what was said. When he came to court without live batteries in the hearing device any handicap he may have suffered was self-imposed, and hence gave no ground for complaint. The record leaves no doubt that defendant had a fair and considerate trial and that he is guilty beyond a peradventure.” (Id. at p. 862.) The record here also does not support defendant’s contention. It shows, indeed, that defendant had hearing difficulties, and that not all attempts to solve them were immediately successful.

But it also shows that defense counsel and the court were solicitous of the problem, and took repeated steps to resolve it. The court ordered medical treatment when and as defendant requested. If multiple orders were needed, the court issued them. When defendant needed new batteries for his hearing aids, the court made sure he got them. In light of the repeated motions and requests regarding defendant’s hearing up to that point, by counsel and defendant personally, which consistently met with action by the court, defendant’s silence thereafter is significant.

Moreover, except for a few scattered early occasions, whenever defendant was spoken to he responded with no apparent hearing difficulty. To the extent defendant argues his counsel acted incompetently regarding his hearing difficulties, the record similarly does not support the contention. Defendant argues that providing a daily transcript to defendant was not a sufficient remedy, and that a “qualified interpreter” or “preferable visual substitutes, such as real-time transcription or CAT (computer assisted transcription),” should have been provided.

However, no such action was requested; nor does the record demonstrate it was necessary. As Strellis stated when the court ordered the daily transcript, the purpose was to “make sure that he heard what was going on.” The transcript augmented other steps taken to ease the problem, and supplemented defendant’s own ability to hear; it was never intended to be a remedy for a defendant who could hear nothing.

Even if we assume that defendant occasionally failed to hear something, there is no reason to further assume that anything of significance was missed, or that defendant’s ability effectively to participate in the proceedings or assist his attorney was compromised. Even total physical absence from a hearing is not reversible unless the defendant’s presence bears a reasonably substantial relation to the fullness of the defendant’s opportunity to defend against the charges. (People v.

Medina (1990) 51 Cal.3d 870, 902-903 [274 Cal.Rptr. 849, 799 P.2d 1282].) Nothing in the record indicates that the hearing difficulties adversely affected the defense, or prejudiced defendant in any way. Because he fails to demonstrate how he was prejudiced or denied a fair trial, we reject his claim of constitutional error. (Id. at p. 903.) 2. “Marsden” Claim On August 7, 1986, a few months before the case was assigned to Judge Golde for trial, defendant filed one of his several pro se pleadings, a “Petition for Writ of Habeas Corpus,” on a standard form approved by the Judicial Council.

Defendant stated the following grounds upon which he based his allegation that his “imprisonment or detention is illegal”: “I have a [sic] attorney I do not trust and conflict of interest. [<fl] My attorney wants me to plead guilty.” In response to the form question why he had not previously presented the ground, defendant stated: “I did not know how to get another attorney. See [Harris v.

Superior Court (1977) 19 Cal.3d 786 (140 Cal.Rptr. 318, 567 P.2d 750)].” On August 13, 1986, without holding a hearing, the superior court issued a minute order denying the petition for writ of habeas corpus because there were “no grounds alleged upon which relief may be granted.” Defendant contends that the document, although “styled as a petition for writ of habeas corpus,” was, “in essence, a ‘Marsden motion’ ” (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]), and that the trial court erred in failing to hold a hearing before denying it. We disagree. In People v.

Marsden, supra, 2 Cal.3d at page 124, we held 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.” Because of this, “[w]hen a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate. Thereafter, substitution is a matter of judicial discretion.

Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel. [Citations.]” (People v. Webster (1991) 54 Cal.3d 411, 435 [285 Cal.Rptr. 31, 814 P.2d 1273].) “[A] trial court’s duty to permit a defendant to state his reasons for dissatisfaction with his attorney arises when the defendant in some manner moves to discharge his current counsel.” (People v.

Lucky (1988) 45 Cal.3d 259, 281 [247 Cal.Rptr. 1, 753 P.2d 1052].) “We do not necessarily require a proper and formal legal motion, but at least some clear indication by defendant that he wants a substitute attorney.” (Id. at p. 281, fn. 8.) The Attorney General argues that the habeas corpus petition was not a Marsden motion because it “sought [defendant’s] release from confinement, not substitute counsel.

If [defendant] had desired the appointment of a new attorney, the record fully demonstrates that he was capable of making that desire known to the court.” We need not decide that question, however, for even if we assume that the petition was the equivalent of a Marsden motion, the court properly acted upon it without further inquiry. Defendant did not orally request new counsel in court, but chose instead to file a formal written petition. The form he used permitted him to state all reasons for the relief requested.

The question on the form immediately after defendant stated the grounds for his allegations asked defendant to state “the facts which support each of the grounds.” Defendant left this question blank, which indicated he was relying on the grounds he had already stated. There was no reason for the trial court to suppose defendant withheld his reasons or supporting facts, or wished to state further examples of counsel’s inadequate representation. He certainly did not “offer to relate specific instances of misconduct.” (People v. Marsden, supra, 2 Cal.3d at p. 124.) The petition was a self-contained document.

In People v. Wharton (1991) 53 Cal.3d 522 [280 Cal.Rptr. 631, 809 P.2d 290], in a prior case, the defendant had “sent a detailed letter to the trial judge explaining why he was unhappy with his trial attorney . . . .” (Id. at p. 580.) We found no error in the court’s denial of new counsel without further inquiry. “When the basis of a defendant’s dissatisfaction with counsel is set forth in a letter of sufficient detail... a full-blown hearing is not required.” (Ibid.) A full-blown hearing was not required here either.

The only reason stated for the lack of “trust” and the “conflict of interest” was that defendant’s attorney wanted him to plead guilty. The petition was filed months before trial; defendant did not claim that counsel would be unprepared if the case went to trial, as it eventually did. Defense counsel is obligated to advise the defendant regarding plea offers and possible guilty pleas. In light of this, defendant did not state an adequate basis for substitution of counsel. (People v. Smith (1993) 6 Cal.4th 684, 689, 696-697 [25 Cal.Rptr.2d 122, 863 P.2d 192]; People v.

Terrill (1979) 98 Cal.App.3d 291, 299-300 [159 Cal.Rptr. 360]; see also People v. Wharton, supra, 53 Cal.3d at pp. 580-581 [citing Terrill with approval].) People v. Lloyd (1992) 4 Cal.App.4th 724 [6 Cal.Rptr.2d 105], cited by defendant, is distinguishable. There, the defendant wrote a letter to the superior court requesting a new attorney. The letter contained specific claims of defense counsel’s alleged malfeasance which, if well-founded, may have warranted the appointment of new counsel. The trial court was apparently unaware of the letter, and took no action regarding it.

The Court of Appeal found the court erred in not even considering the “Marsden motion,” although the error was cured by later events. (Id. at p. 731-732.) Here, by contrast, the court did consider and deny the petition. Defendant stated neither sufficient grounds for substitution of counsel nor anything requiring further inquiry. There was no error. 3. Jury Selection Defendant challenges the jury selection process on several grounds. Each lacks merit.

Defendant’s primary complaint is that defense counsel and the prosecutor disclosed to the first panel of prospective jurors that defendant had prior convictions for armed robbery. The issue arose in the following factual context. Prior to examining the first panel, the court, anticipating that defendant would admit the prior convictions, stated that it would not read the allegations regarding them to the prospective jurors. Thereafter, while “death-qualifying the jury,” the court and parties questioned the prospective jurors individually, as mandated in Hovey v.

Superior Court (1980) 28 Cal.3d 1, 80 [168 Cal.Rptr. 128, 616 P.2d 1301]. During this individual questioning, defense counsel Strellis often referred to the prior convictions. For example, in questioning the first prospective juror, he asked, “Let us suppose that. . . you were to find that on four prior occasions some other time, years earlier, days earlier, months earlier, Mr.

Freeman had been convicted of robbery, based on the fact that you have convicted him of murder, that you’ve convicted him of nine counts of, I think, attempted robbery, if I’m going to characterize it correctly, and that he has four prior robbery convictions, would you automatically come back with a verdict of death?” The answer was “no.” Later that day, defendant admitted the priors, which actually included two robberies and being an ex-felon in possession of a firearm on the occasion of one of the robberies. Starting the next day, the district attorney also sometimes referred to the priors.

A few days later, outside the presence of the prospective jurors, counsel for the codefendant Gutierrez, who did not face capital charges, objected that referring to defendant’s priors “tainted” Gutierrez with “guilt by association.” Strellis responded: “. . .1 intend to ask every single juror, unless Mr. Quatman [the district attorney] does it, whether they would automatically return a death penalty based in part on the fact that my client has got two prior robbery convictions for which he has served separate prison terms. [ID And I think I would be derelict in my duty to him if I did less than that.

HQ I can’t do it hypothetically. They’re his priors, and the one thing I do not want is for a surprise to the jury in the penalty phase, if we should get there, where suddenly they’re evenly balanced, and we throw in two priors they never thought about.” On March 12, 1987, more than a month after the defense began referring to the priors, the court indicated that it would not allow either the defense or the prosecution to mention the priors to the second panel that would be called after the first had been exhausted.

In light of this, Strellis moved to withdraw defendant’s admission of the priors for the express purpose of placing them at issue so he could question the second panel of jurors about them. The court expressed the view that “in retrospect” it should not have allowed Strellis to question even the first panel about the priors, but took under submission Strellis’s motion to withdraw the admission. That afternoon, the court determined that there had not been “a proper voir dire on the priors,” and allowed the defense to withdraw their admission.

It also allowed defense counsel to ask prospective jurors about the priors if desired, but ordered that the district attorney could prove them only “after the guilt phase is decided,” and could not mention them unless the defense did first. Shortly after this ruling, Strellis advised the court that defendant “just told me as of right now he would prefer there be no mention of the priors.” Defendant then again admitted the prior convictions. They were not thereafter mentioned to any prospective jurors. The two prior robbery convictions were mentioned during voir dire of three of the actual jurors.

On April 22, 1987, defendant filed a handwritten pro se motion to dismiss the first jury panel and for a mistrial because the prior robbery convictions were mentioned to the first panel “without defendant’s permission.” The next day, Gutierrez also moved for a mistrial because defendant’s prior convictions were mentioned “without co-defendant’s permission.” The court denied the motions.

In argument to the jury at the penalty phase, Strellis referred to the prior robberies, and stated they “should have come as no shock to most of you because we talked about it when we were selecting the jury.” Defendant argues that “defense counsel and the prosecutor made it impossible for [defendant] to receive a fair trial” by disclosing his prior convictions. In effect, he claims Strellis was ineffective, and the district attorney committed misconduct, in this regard. The claim of misconduct has been waived.

Not only did the defense fail to object to the district attorney’s reference to the priors but, as noted, defense counsel referred to them first. (People v. Visciotti (1992) 2 Cal.4th 1, 47-48 [5 Cal.Rptr.2d 495, 825 P.2d 388]; People v.

Ashmus, supra, 54 Cal.3d at p. 976.) Defendant has not demonstrated ineffectiveness of counsel. “To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v.

Kelly (1992) 1 Cal.4th 495, 519-520 [3 Cal.Rptr.2d 677, 822 P.2d 385].) “A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.” (Id. at p. 520.) Defense counsel Strellis explained his tactical decision on the record. Recognizing the possibility of an eventual penalty phase at which the priors would be proven to the jury, counsel wanted to blunt their effect by educating the jury about them in advance. We have already recognized the validity of such a tactical decision. In People v.

Lanphear (1980) 26 Cal.3d 814, 826-831 [163 Cal.Rptr. 601, 608 P.2d 689], defense counsel failed to object at the guilt phase to evidence of other crimes because he believed the evidence would be admitted at a possible penalty phase. We found such a decision reasonable. “Defense counsel was caught in a cruel dilemma: If the prior murders were introduced for the first time when the jury was considering penalty alone, the impact would be such as to make the penalty of death a foregone conclusion. . . .

We cannot say that the trial counsel’s actions were not the product of informed tactical choice within the range of reasonable competence.” (Id. at p. 831, as quoted in People v. Kelly, supra, 1 Cal.4th at p. 522.) This rationale applies here.

Defense counsel had to make a decision; he had to weigh the possible prejudice at the guilt phase of informing the jurors of the priors against the possible prejudice of the jury hearing of them for the first time at the penalty phase. “[C]ounsel may reasonably treat the entire trial as a whole, and consider what effect a tactical decision at one phase will have on a later phase.” (People v.

Kelly, supra, 1 Cal.4th at p. 522 [counsel reasonably failed to object to the guilt phase admission of a confession that might aid the defense at the penalty phase].) Counsel did so here; he made his decision and acted upon it. He followed through in his penalty phase argument to the jury. “This is precisely the type of tactical decision defense counsel must be allowed to make without fear of appellate second-guessing ‘ “in the harsh light of hindsight.” ’ ” (Id. at p. 523; see also People v.

Visciotti, supra, 2 Cal.4th at pp. 47-48, fn. 17 [Counsel “may well have believed that this method of acquainting jurors with the evidence they were to hear would blunt its eventual impact.”].) Defendant complains that counsel acted without his permission. His permission was not required. “[C]ounsel is captain of the ship. . . . ‘When the accused exercises his constitutional right to representation by professional counsel, it is counsel, not defendant, who is in charge of the case.

By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics.’ ” (In re Horton (1991) 54 Cal.3d 82, 95 [284 Cal.Rptr. 305, 813 P.2d 1335] [counsel can agree to trial by a commissioner], quoting People v. Hamilton (1989) 48 Cal.3d 1142, 1163 [259 Cal.Rptr. 701, 774 P.2d 730], italics in Hamilton.) Once defendant made known to counsel his desire that prospective jurors not be informed of his record, counsel stopped mentioning it.

Until then, he was entitled to voir dire the prospective jurors in the manner he felt was best for his client. Defendant also argues that his attorneys were ineffective in their voir dire of the prospective jurors. Specifically, he claims the “defense voir dire examination of all prospective jurors on death penalty/capital punishment issues was superficial and lacking in perception.” (Italics by defendant). He also claims his attorneys were ineffective in exercising only 15 of 26 joint defense peremptory challenges and none of the individual challenges.

We have repeatedly rejected similar contentions. “Because the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetence in this process.” (People v. Montiel (1993) 5 Cal.4th 877, 911 [21 Cal.Rptr.2d 705, 855 P.2d 1277].) The record reveals nothing suggesting incompetence in the questioning of prospective jurors. Defendant’s attorneys participated fully in the process, and did so intelligently; they also had the benefit of the questions posed by the other attorneys and by the court, and the answers to those questions.

Counsel asked no questions of some of the prospective jurors, which may be the best tactic for a number of reasons. For example, questioning by other parties may convince counsel that the juror would be favorable for the defense, and that further questions might only antagonize the juror or give the prosecution a reason to use a peremptory challenge or even grounds for a challenge for cause. Defendant “has not demonstrated that the manner of conducting this portion of voir dire resulted from other than an informed strategic decision.” (People v.

Cox (1991) 53 Cal.3d 618, 658 [280 Cal.Rptr. 692, 809 P.2d 351]; see also People v. Lewis (1990) 50 Cal.3d 262, 290 [266 Cal.Rptr. 834, 786 P.2d 892] [“Defendant’s assumption that a short voir dire could not have been competent is not supported by the authorities he cites.”].) We also find no incompetence in the exercise of peremptory challenges. “In complaining that counsel should have exercised more peremptory challenges, defendant selects isolated juror responses that do not give the full picture.

Our review of the record does not support defendant’s claim that counsel acted unreasonably in failing to exercise more peremptory challenges.” (People v.

Lewis, supra, 50 Cal.3d at p. 290.) To use a concrete example, defendant is particularly strident in arguing that the defense should have excused one juror who said that he could vote for execution “If it was proper.” Defendant complains, “The court did not ask the companion question of ‘If you felt it was proper to give life without possibility of parole could you vote for life?’ Thus, without presenting the other side of the coin, the court’s questions, in general, wrongly focused on the death penalty.” Defendant simply ignores the record.

Just before the portion he cites came these questions and answers: “[Question by the court]: [I]f you felt that life without possibility of parole was appropriate, could you vote for life without possibility of parole? “[Answer]: Would I? “[Question] Could you if you felt it was appropriate? “[Answer]: Sure. “[Question]: If you have felt the death penalty were appropriate, could you vote to impose death? “[Answer]: Possibly.” (Italics added.) The italicized language suggests the juror might have been good for the defense.

The follow-up questioning that defendant focuses exclusively on showed only that the juror, although ambivalent about the death penalty, could vote for it if appropriate. Defendant claims his attorneys were incompetent for not questioning this juror themselves about the death penalty. The reason they did not is apparent. Why take a chance on him saying something that might get him disqualified or cause the district attorney to challenge him peremptorily when his views were established by the other questioning?

Defendant cites selected information about the juror that he claims shows he would favor the prosecution, and argues, “Just how or why a competent lawyer would accept this juror—with 16 challenges remaining—unless he was not listening, escapes us.” This is equally meritless. Defense counsel no doubt listened to the juror’s tentative answer “possibly” when first asked whether he could vote for death, and the unqualified answer “sure” when asked whether he could vote for life, and no doubt considered all the circumstances, not a selected few.

In short, competent counsel could reasonably have concluded that a peremptory challenge should not be expended on this juror. Defendant has also failed to show prejudice. Nothing in the record suggests the actual jury was biased, or that it is reasonably probable a different jury would have been more favorably disposed towards defendant. (People v. Lewis, supra, 50 Cal.3d at p. 291; see also People v. Cox, supra, 53 Cal.3d at p. 659; Singleton v. Lockhart (8th Cir. 1989) 871 F.2d 1395, 1400; United States v.

Taylor (10th Cir. 1987) 832 F.2d 1187, 1195-1196.) Defendant also complains that the “trial court repeatedly risked prejudicing jurors during voir dire by presenting individual jurors with possible scenarios, none of which mentioned that defendant might be innocent.” (Italics by defendant.) “Defendant’s failure to object at trial, however, particularly where (as here) such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal.” (People v.

Mitcham (1992) 1 Cal.4th 1027, 1053 [5 Cal.Rptr.2d 230, 824 P.2d 1277].) The contention also lacks merit. The court carefully explained to the jury panels that questions regarding the death penalty are relevant only if the jury found defendant guilty of murder with special circumstances, and that it was not suggesting that the jury would or should make those findings. The conditional nature of the questions regarding death was repeated during the individual voir dire, including the voir dire of the very prospective juror that defendant uses as a “[t]ypical” example supposedly supporting his position.

The court told the juror, “If you find Mr. Freeman guilty of first degree murder and you find the special circumstance true, that he intentionally killed during the course of a robbery, the law says the punishment for that offense is either death or life without possibility of parole. . . .” (Italics added.) Defendant purports to quote this language, but deletes the critical word “If.” 4. Testimony of Witness Horton Carmen Maria Horton testified under a grant of immunity that defendant told her he was the one who shot the victim during the robbery, and that the shooting was an accident.

Defendant contends she should not have been allowed to testify without a prior hearing as to her “competency as a witness,” and that the prosecution improperly withheld the terms of her immunity. Defendant did not seek a hearing on Horton’s competence, or make any objection or motion relevant to this contention, thus waiving the claim. (People v. Sully (1991) 53 Cal.3d 1195, 1216 [283 Cal.Rptr. 144, 812 P.2d 163].) Moreover, the claim lacks merit. The order granting immunity, issued in 1984 at the time of the preliminary hearing and signed by Judge Golde, was not originally part of the appellate record.

The record has now been augmented to include it. It ordered Horton to “answer the questions with respect to her knowledge in” this case, and further ordered unconditionally that she “shall not be prosecuted or subjected to penalty or forfeiture for or on account of any fact or act concerning which, in accordance with the Order, she was required to answer.” Nothing suggests the terms of the grant of immunity were withheld from the defense. No conditions were attached to the grant, and no reason appears to question Horton’s competence to testify.

Defendant also claims that the district attorney committed misconduct by “implying to the jury that the judge vouched for [Horton’s] credibility.” The district attorney concluded his direct examination of Horton as follows: “[Question]: Now, prior to coming to court today back in August the 9th of 1984, you appeared in this courtroom; correct? “[Answer]: Yes, I did. “[Question]: And Judge Golde, the judge present here, granted you immunity? “[Answer]: Yes, he did. “[Question]: That was requested by the prosecution as to any offenses you may have committed in your involvement in this? “[Answer]: Yes.” This questioning, defendant contends, was a “bold insinuation to the jury that the trial judge had vouched for Carmen Horton’s credibility by granting her immunity” and, as such, was a “foul blow." Again, the claim has been waived by the failure to object. (People v.

Ashmus, supra, 54 Cal.3d at p. 976.) Moreover, there was no misconduct. The questions merely informed the jury that Horton had received immunity for her testimony. No reasonable juror would interpret the questions as implying that the judge, or anyone else, had vouched for her credibility. (People v.

Price (1991) 1 Cal.4th 324, 445 [3 Cal.Rptr.2d 106, 821 P.2d 610] [“A reasonable juror would be unlikely to view the statement that immunity was ‘not contrary to the public interest’ as an endorsement of [the witness’s] credibility.”].) Defendant also argues that the terms of the grant of immunity were stated differently in the 1984 written order (Horton “shall not be prosecuted or subject to penalty or forfeiture for or on account of any fact or act concerning which, in accordance with the Order, she was required to answer,” i.e., “her knowledge” in this case) and in the direct examination of the witness at trial (immunity “as to any offenses you may have committed in your involvement in this”).

Although slightly different language was employed, the substance was the same. Horton was required to testify about her knowledge in the entire case, so, in effect, she was granted immunity as to any offenses she may have committed in the case. Defendant claims the 1984 order did not grant immunity from prosecution as an “accomplice,” while the 1987 formulation would have. We disagree. Horton’s compelled testimony implicated her as an accessory under Penal Code

section 32, although not as a principal; that “fact or act” was clearly covered by the 1984 order. Moreover, even if, hypothetically, the prosecutor had stated the terms of immunity more broadly in front of the jury than in the written order, that would not aid defendant. Both formulations granted unconditional immunity; neither suggests any reason to doubt Horton’s competence to testify. In addition, the broader the grant of immunity the greater tendency it has to cast doubt on the credibility of the witness.

Defendant argues that Horton refused to testify at the preliminary hearing, and that before trial, the prosecutor expressed doubts that she would testify at all. This is correct, but again does not suggest in the slightest she was incompetent when she did testify. He also argues the prosecutor said, “I will alert this Court ahead of time if she’s coming and any possible problems.” Although there was no “alert” on the record before she testified, this may merely mean there were no problems. There is no showing Horton was incompetent to testify, or that the prosecutor committed any form of misconduct.

Defendant finally argues his attorneys were incompetent in not asking for a competency hearing and in their limited cross-examination of the witness. There is no reason apparent in the record for counsel to have requested a hearing on Horton’s competence. Moreover, as discussed below regarding counsel’s alleged “concession of guilt,” defense counsel had difficult tactical decisions to make as a result of Horton’s testimony. The cross-examination was brief, and limited to eliciting evidence that defendant told Horton the shooting was an accident, testimony obviously beneficial to the defense.

Counsel left it to counsel for the codefendant to cross-examine Horton on questions of credibility. We see no incompetence. 5. Evidence of the Plastic Bag Two of the eyewitnesses, Urone and Ratterman, testified that defendant placed the property he stole from the robbery victims into a “plastic small garbage bag” (Urone) or a “[w]hite plastic garbage bag” (Ratterman). Without objection, Officer Boga testified that he found a “white plastic garbage bag” in a car Horton said belonged to defendant. Strellis elicited on cross-examination testimony that the Berkeley Police Department had lost the bag.

It should have been placed in the “central property room” but Officer Boga could not locate it. Implicitly recognizing that because there was no objection to the testimony about the bag, he cannot directly challenge its admission (Evid. Code, § 353, subd. (a)), defendant contends the district attorney committed misconduct by eliciting the evidence, his attorneys were ineffective in not objecting, and the trial court should have stricken the testimony on its own motion. The claim of misconduct has been waived by the failure to object. (People v.

Ashmus, supra, 54 Cal.3d at p. 976.) The trial court also has no sua sponte duty to exclude evidence or to remedy misconduct. (People v. Montiel, supra, 5 Cal.4th at p. 918.) We also find no misconduct and no incompetence. Because the decision whether to object is inherently tactical, the failure to object to evidence will seldom establish incompetence. (People v. Ghent (1987) 43 Cal.3d 739, 772 [239 Cal.Rptr. 82, 739 P.2d 1250]; People v.

Frierson (1979) 25 Cal.3d 142, 158 [158 Cal.Rptr. 281, 599 P.2d 587].) Defendant claims the evidence of the bag in the car was irrelevant because no one identified it as the bag used in the robbery, and an “infinite” number of people “must possess such common, unremarkable articles as plastic bags” in their cars. We disagree. Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid.

Code, § 210.) “While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.” (People v.

Slocum (1975) 52 Cal.App.3d 867, 891 [125 Cal.Rptr. 442].) Evidence that defendant possessed a plastic garbage bag shortly after the crime, coupled with the evidence that the shooter in the bar used a plastic garbage bag, tended to show that defendant was the shooter, which is a material fact in the case. Standing alone the inference may have been weak, but that does not make the evidence irrelevant. The fact that many persons may similarly have possessed such bags may diminish the strength of the evidence, but it does not make it irrelevant. In People v.

De La Plane (1979) 88 Cal.App.3d 223 [151 Cal.Rptr. 843], the court admitted over a relevance objection evidence of a sawed-off axe handle found in the bathroom of the house in which the defendant was arrested. No evidence connected the handle to the crimes of that case except for expert testimony that it “could have caused” the victim’s wounds. {Id. at p. 239, italics in original.) The Court of Appeal upheld admission of the evidence: “If a victim’s wound could have been caused by a specific type of weapon or instrument, such a weapon or instrument found in defendant’s possession is admissible in evidence.

Such a weapon or instrument is considered relevant on the theory that a trier of fact may reasonably draw an inference from defendant’s possession of the weapon or instrument to the fact that he used the weapon or instrument to commit the offense—a disputed fact of consequence in the action.” {Ibid., italics in original.) Similarly, here the jury may reasonably infer that defendant used the bag in the robbery, and thus was the shooter, a disputed fact of consequence in the action.

Contrary to defendant’s contention, the inference was not speculative, but was based on the similarity of the bag used in the robbery to the one found in defendant’s car. In People v. De La Plane, supra, 88 Cal.App.3d at page 240, the appellate court suggested the trial court could have excluded the evidence of the axe handle under Evidence Code

section 352 because of its prejudicial nature. Here, there was nothing prejudicial about the plastic bag. No reason appears to have excluded it. Defendant assumes Strellis was unaware the bag had been lost before his cross-examination of Officer Boga, and therefore that he had not adequately investigated the facts. Nothing in the record supports such an assumption. On the contrary, Strellis’s focused cross-examination suggests that he knew the situation exactly, and carefully elicited precisely the testimony he wanted in an attempt to discredit the investigation into this crime.

Defendant argues the evidence should have been excluded, or sanctions should have been imposed, because the bag was later lost. In order to obtain sanctions for the loss of evidence, the defendant must show that it possessed an exculpatory value that was apparent before it was destroyed, and that the police acted in bad faith. (People v. Webb (1993) 6 Cal.4th 494, 519 [24 Cal.Rptr.2d 779, 862 P.2d 779].) Defendant can show neither. It is hard to imagine how the bag could have had an exculpatory value or how that value could have been apparent to the police. There is also no suggestion of bad faith.

The jury heard all the facts surrounding the bag and its loss, and could draw its own conclusions. That was sufficient to protect defendant. (People v. Cooper (1991) 53 Cal.3d 771, 811-812 [281 Cal.Rptr. 90, 809 P.2d 865].) Defendant also suggests the issue regarding the bag was somehow related to an earlier “Hitch” motion (People v. Hitch (1974) 12 Cal.3d 641 [117 Cal.Rptr. 9, 527 P.2d 361]) defendant made pro se, and argues that his attorneys acted ineffectively regarding that motion.

The motion, handwritten by defendant, was labeled “Notice of motion and motion to dismiss (Hitch motion),” and requested the charges be dismissed “based upon the suppression and/or failure to preserve evidence.” The motion was couched entirely in general terms; it never specified what evidence was supposed to have been suppressed or not preserved, and does not mention the plastic bag. The closest the motion came to being specific was a statement that the prosecutor “must provide names of all informants.” When the motion was first filed, Strellis had not yet read it. As he stated, “It’s in pro per.

I’m not entitled not to file the motion.” He asked to put the motion over so he would be in a position to argue it. When the motion was considered on the merits, Strellis stated in general terms that defendant was only asking for what he was entitled to, that the district attorney provide him with all exonerating evidence. The district attorney stated there was none that had not already been provided. When the defense presented no evidence to the contrary, the motion to dismiss was denied. The court properly denied the motion.

Defendant made no showing whatsoever that any evidence had been withheld, and did not even specify what he was complaining about. As the trial court noted, it appeared the motion was copied from a form book. Defense counsel was not incompetent in not pursuing the motion more vigorously. 6. Other Crime Evidence During the defense portion of trial, codefendant Gutierrez called as a witness David McGuire. McGuire supplied an alibi for defendant. On cross-examination, the district attorney elicited that McGuire had two prior felony convictions, including a robbery committed in California in 1961.

McGuire testified that he knew defendant in 1961, and had a “special relationship” with him at that time. The district attorney then asked, “Did you have another individual on that armed robbery with you in 1961?” Defendant objected. The court initially sustained the objection, but then there was an unreported bench conference.

According to the settled statement, the court ruled that the testimony regarding the “ ‘special relationship’ ” was admissible “based on the fact that he had been called by the defense as an alibi witness and that the nature of their prior relationship was a proper question evidencing bias and interest.” At the hearing to settle the record, the court also indicated it said it “would instruct the jury it goes to the question of bias, interest, or motive of the witness.” The district attorney elicited testimony that defendant was the “co-defendant” in the 1961 robbery.

He then asked, “Now, during the course of that particular event you were armed with a firearm, were you not?” Defendant objected that the district attorney “has no right to go into the underlying facts of that.” The objection was sustained, and the matter was not pursued. Later, outside the presence of the jury, defendant moved for a mistrial on the basis that the “District Attorney had no right to go into the specifics of whether or not it was an armed robbery or guns were used.” The court responded, “He didn’t.

He asked him was there a gun used, you objected, I sustained. [<¡0 Going into the robbery to show he was a crime partner is perfectly proper when it’s offered as an alibi.” When counsel for defendant noted the witness was not called by defendant, the court responded, “What difference does it make?

He testified.” Defendant argues: (1) the court erred in allowing evidence regarding the 1961 robbery; (2) the court should have given a limiting instruction; (3) the district attorney committed misconduct during the cross-examination and in the later argument to the jury; and (4) in light of McGuire’s testimony, the court should have granted an earlier severance motion. Sprinkled throughout are related claims of ineffective assistance of counsel. All contentions lack merit.

Evidence that the alibi witness and defendant were crime partners in 1961 was admissible on the question of credibility. “The existence or nonexistence of a bias, interest, or other motive” may be considered in judging the credibility of a witness. (Evid. Code, § 780, subd. (f).) The evidence was admitted for that purpose, and therefore did not violate the general proscription in Evidence Code

section 1101, subdivision (a), against the use of other crimes evidence. (People v. Lang (1989) 49 Cal.3d 991, 1017 [264 Cal.Rptr. 386, 782 P.2d 627].) Defendant argues that there was other evidence of bias, mainly that he and McGuire celebrated McGuire’s birthday together the night of the robbery in this case. Therefore, he argues, evidence of the earlier robbery was merely cumulative, and should have been excluded under Evidence Code

section 352. However, evidence that the witness and defendant had known each other at least since 1961, and had been partners in crime, was far more probative to show the witness might be willing to perjure himself to aid defendant than the mere fact they celebrated a birthday together. The evidence was properly admitted. Defendant cites People v. Holt (1984) 37 Cal.3d 436 [208 Cal.Rptr. 547, 690 P.2d 1207], where the trial court admitted evidence of gang membership of certain witnesses.

Although recognizing that a “witness may be cross-examined about the group membership he shares with a party to the action” to show bias, we doubted whether the evidence was properly admitted in that case because there was no evidence the defendant belonged to any such gang. (Id. at p. 456.) Here, the evidence did link the witness and defendant. Defendant also contends the court failed to expressly weigh the probative value against the prejudicial effect. (See People v.

Green (1980) 27 Cal.3d 1, 25 [164 Cal.Rptr. 1, 609 P.2d 468].) “[H]owever, the record does not show an objection on these grounds to this line of questioning. [Fn. omitted.] Accordingly, the trial court was not obligated to make such an explicit ruling.” (People v. Fierro (1991) 1 Cal.4th 173, 238 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) Moreover, the fact the court disallowed questions regarding the specific facts of the 1961 crime suggests the court did weigh the probative value against the prejudicial effect. Given the importance of allowing evidence that shows bias (People v.

Dyer (1988) 45 Cal.3d 26, 47 [246 Cal.Rptr. 209, 753 P.2d 1]), the court’s rulings were well within its discretion. Although the court apparently offered to instruct the jury on the purpose for which it could consider this evidence, it never did. Defendant did not, however, request such an instruction, which waives the issue. The court has no sua sponte duty to so instruct. (People v. Collie (1981) 30 Cal.3d 43, 64 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776]; People v.

Milner (1988) 45 Cal.3d 227, 251-252 [246 Cal.Rptr. 713, 753 P.2d 669].) Nor was counsel ineffective in failing to request the instruction. Counsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose it was being admitted. (See People v.

Collie, supra, 30 Cal.3d at p. 64 [“Evidence of past offenses may not improperly affect the jury’s deliberations if . . . the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced.”].) Defendant contends the prosecutor committed misconduct by asking whether McGuire was armed with a firearm. The court sustained an objection to the question, and it was not pursued. Defendant did not ask the jury be admonished to disregard the question, which, in any event, referred only to McGuire and not defendant. The issue has thus been waived. (People v.

Carrera (1989) 49 Cal.3d 291, 319 [261 Cal.Rptr. 348, 111 P.2d 121].) The court instructed the jury at the conclusion of the guilt phase that as “to any question to which an objection was sustained, you must not conjecture as to what the answer might have been or as to the reason for the objection.” (See ibid.) Moreover, merely asking a question to which an objection is sustained does not itself show misconduct. Since the objection was sustained, counsel may have felt it best not to emphasize the matter in front of the jury. His failure to request a specific admonition was therefore not incompetent. (People v.

Ghent, supra, 43 Cal.3d at pp. 772-773.) Defendant also contends the prosecutor committed misconduct in suggesting to the jury during argument that McGuire may have been the unapprehended third man. Other prosecution evidence indicated that the identity of this third person was unknown. There was no objection, however, thus waiving the claim. (People v. Ashmus, supra, 54 Cal.3d at p. 976.) In any event, the argument merely commented on the evidence, and came within the broad range of permissible argument. The jury could decide the matter for itself.

There was no implication the prosecutor had information not available to the jury. (People v. Edwards, supra, 54 Cal.3d at p. 839.) Defendant argues that because of McGuire’s testimony, the court should have granted his pretrial motion to sever his trial from that of the codefendant. The motion, which was denied, was based upon nonspecific grounds that had nothing to do with McGuire’s testimony. Since the correctness of a ruling on a severance motion must be judged on the facts known and the showing made at the time of the motion, McGuire’s later testimony is irrelevant to the ruling. (People v.

Mitcham, supra, 1 Cal.4th at pp. 1048-1049.) Defense counsel was also not incompetent for failing to renew the severance motion. As discussed in the next part, by this stage of the trial, defense counsel may have believed that the codefendant was useful to defendant in carrying the burden of trying to raise a reasonable doubt regarding identity, allowing counsel for defendant to concentrate on the issue of intent to kill.

Moreover, given the Legislature’s preference for joint trial of jointly charged defendants, and the advantages of such a trial, McGuire’s testimony alone would not have been sufficient to justify severance of an otherwise proper joint trial. (People v. Keenan (1988) 46 Cal.3d 478, 499-501 [250 Cal.Rptr. 550, 758 P.2d 1081].) 7. Defense Counsel’s Alleged “Concession of Guilt” In his opening statement to the jury, counsel for defendant suggested that the identity of the robbers as well as intent to kill on the part of the gunman would be issues at trial.

During the evidence portion of the guilt phase, counsel cross-examined witnesses and presented one defense witness on identity. After all the evidence had been presented, however, and it came time to argue the case, counsel Strellis discussed solely the question of intent to kill. He did not expressly concede defendant’s identity as the gunman, and in discussing the gunman he referred, not to defendant, but to the “accused robber.” But he never argued that defendant was not the gunman, and he phrased the issue as whether defendant intended to kill.

Counsel for the codefendant argued extensively the question of identity, attacking the eyewitness identifications and the credibility of witness Horton. Defendant contends that his attorney’s “concession” of guilt was tantamount to a guilty plea requiring a knowing and voluntary waiver of constitutional rights, and that counsel failed to provide effective representation in this regard. We disagree on both counts. Citing Boykin v.

Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct. 1709] and In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449], defendant argues that he had to be admonished of and personally waive his rights against self-incrimination, to a jury trial, and to confront adverse witnesses before counsel could “concede” his guilt of everything but the special circumstance. Counsel did not, however, concede guilt; he merely did not argue the question of identity. The jury still had to find defendant was the gunman beyond a reasonable doubt.

But even if counsel had expressly conceded identity, admonitions and waivers would not have been necessary. In People v. Hendricks (1987) 43 Cal.3d 584 [238 Cal.Rptr. 66, 737 P.2d 1350], defense counsel presented no closing argument at all. Pointing out that defendant did receive a jury trial, exercise his right against self-incrimination, and confront witnesses, we held that the admonitions and waivers were not necessary. (Id. at pp. 592-594; see also People v.

Griffin (1988) 46 Cal.3d 1011, 1029 [251 Cal.Rptr. 643, 761 P.2d 103] [no waiver needed even though defense counsel expressly “conceded defendant’s responsibility for the killing”]; People v. Murphy (1972) 8 Cal.3d 349, 365-366 [105 Cal.Rptr. 138, 503 P.2d 594].) Defendant correctly argues that in People v. Hendricks, supra, 43 Cal.3d at page 592, the record expressly reflected that the defendant agreed with counsel’s actions. Here, the record reflects neither agreement nor disagreement. That makes no difference. “The plurality opinion in People v.

Frierson (1985) 39 Cal.3d 803 [218 Cal.Rptr. 73, 705 P.2d 396] made it clear that although counsel does not have authority to override his client’s express objection to conceding guilt, there is no requirement of a Boykin/Tahl waiver. (Id. at p. 818, fn. 8.) Here, unlike in Frierson, the record shows absolutely no indication that defendant disagreed with his attorney’s tactical approach.” (People v. Griffin, supra, 46 Cal.3d at p. 1029.) Defendant cites Brookhart v. Janis (1966) 384 U.S. 1 [16 L.Ed.2d 314, 86 S.Ct. 1245].

There, the defense agreed that the state need only prove a “prima facie case,” and that the case would not be contested and the defendant would not cross-examine witnesses. (Id. at p. 3 [16 L.Ed.2d at pp. 316-317].) The high court held this procedure required a waiver of constitutional rights. There was, however, no comparable agreement here, thus making that decision inapposite. (People v. Hendricks, supra, 43 Cal.3d at p. 593.) In People v.

Hendricks, supra, 43 Cal.3d at page 594, footnote 1, we noted, “The decision on the part of counsel not to present a defense does not involve a question of waiver but rather the issue of effective assistance of counsel.” Defendant claims his attorneys were ineffective. To prevail, defendant must overcome the strong presumption that counsel’s actions were sound trial strategy under the circumstances prevailing at trial. (Strickland v. Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694-695, 104 S.Ct. 2052]; People v.

Bunyard (1988) 45 Cal.3d 1189, 1215 [249 Cal.Rptr. 71, 756 P.2d 795].) He cannot overcome that presumption on this record. The decision of how to argue to the jury after the presentation of evidence is inherently tactical; counsel’s approach comes within the permissible range of competent representation. Recognizing the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt. (People v. Mayfield (1993) 5 Cal.4th 142, 177 [19 Cal.Rptr.2d 836, 852 P.2d 331]; People v.

McPeters (1992) 2 Cal.4th 1148, 1186-1187 [9 Cal.Rptr.2d 834, 832 P.2d 146] [counsel conceded defendant’s presence at the crime scene, thus repudiating defendant’s alibi testimony, but under the “circumstances, we cannot say counsel was constitutionally ineffective in his attempt to make the best of a bad situation”]; People v.

Mitcham, supra, 1 Cal.4th at pp. 1060-1061 [“good trial tactics often demand complete candor with the jury, and ... in light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client’s innocence”]; People v. Breaux (1991) 1 Cal.4th 281, 306-307 [3 Cal.Rptr.2d 81, 821 P.2d 585]; People v. Jackson (1980) 28 Cal.3d 264, 292-293 [168 Cal.Rptr. 603, 618 P.2d 149].) The same applies here. It is true, as defendant argues, that counsel indicated in the opening statement that identity was one of the issues.

But much happened between the opening statement and the closing argument, namely the presentation of evidence. During the evidence portion of trial, counsel for both defendants cross-examined witnesses and presented evidence on the question of identity. When the time came to argue the case to the jury, however, counsel had to base the tactical decisions on how the trial actually went, not how it might have gone. At the beginning of trial, it was uncertain whether Horton would testify. She had refused to testify at the preliminary hearing, and the district attorney expressed doubt that she would testify at trial.

In fact, she did testify, and presented evidence that was devastating to both defendants on the question of identity. However, counsel for defendant elicited from her on cross-examination that defendant told her shortly after the robbery he did not intend to shoot the victim, and that the shooting was an accident. Thus, at the time of argument, the evidence of identity was stronger than counsel might have anticipated at the outset. There were three positive and one tentative eyewitness identifications, plus the testimony of Horton, which was essentially unimpeached.

There was no apparent reason why Horton would perjure herself to incriminate the defendants. On the other hand, Horton’s testimony helped defendant on the question of intent to kill. Because of this, counsel had difficult decisions to make regarding the argument. It is inherently difficult to argue to a jury that the defendant did not do it and if he did he did not intend to. In addition, attacking Horton’s credibility, which would be necessary to challenge identity, would also effectively attack the helpful portion of her testimony.

Counsel could reasonably be reluctant to launch a full attack on her credibility and then try to rely on her testimony regarding intent. Another factor existed in this case: the codefendant. Counsel for Gutierrez did not have the dilemma facing defendant. Because there was no evidence that Gutierrez intended to kill Koger, no special circumstance was charged as to him. He was charged with murder under the felony-murder rule. The sole issue as to him, therefore, was identity; there was no question of intent. No part of Horton’s testimony was useful to Gutierrez.

Therefore, counsel for Gutierrez could, and did, fully attack the identity evidence without worrying about losing his credibility. The evidence of identity was largely the same as to both defendants. Except for Norwood Square’s tentative identification of defendant, but not Gutierrez, those who identified one defendant identified both. Horton incriminated both. As indicated by the fact Gutierrez called a wit

[…]