People v. Barnett

74 Cal.Rptr.2d 121 (1998)

954 P.2d 384

The PEOPLE, Plaintiff and Respondent,

v.

Lee Max BARNETT, Defendant and Appellant.

No. S008113.

Supreme Court of California.

May 4, 1998.

Rehearing Denied July 8, 1998.

*136 Michael A. Willemsen, Palo Alto, and Ron Parravano, Monterey, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, Justice.

Defendant Lee Max Barnett was convicted by a jury of one count of murder (Pen.Code, § 187), [1] two counts of robbery (§ 211), one count of assault with a firearm (§ 245, subd. (a)(2)), and four counts of kidnapping (§ 207). The jury found true the special circumstances that the murder was committed while defendant was engaged in the crime of robbery (§ 190.2, former subd. (a)(17)(i)), that the murder was committed while defendant was engaged in the crime of kidnapping (§ 190.2, former subd. (a)(17)(ii)), and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). It also found true allegations that defendant personally used a firearm in the commission of the robberies and kidnappings (§ 12022.5). After the jury returned a verdict of death, the trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)). [2] Appeal to this court is automatic. (§ 1239, subd. (b).)

We find no prejudicial error at the guilt or penalty phase of defendant's trial. We therefore affirm the judgment in its entirety.

I. FACTS

A. The Guilt Phase

The instant crimes occurred when two groups of people unexpectedly confronted each other on July 6, 1986, at a remote campsite in the Forest Ranch area of Butte County. The evidence at trial included testimony from those involved in the confrontation, including defendant, and from others who had contact with defendant the summer before the confrontation and immediately afterward.

1. The Prosecution Case

In 1985, defendant and Richard Eggett stayed at the remote campsite and dredged for gold together. In the summer of 1985, Christine Racowski was at the camp with the two men for a week. [3]

Tension developed when Racowski complained about defendant's belligerent language and accused him of stealing her wallet. Toward the end of the week, defendant called Racowski a "fucking bitch" and accused her of trying to sabotage the gold dredge. When Racowski denied the accusation, defendant punched her in the face. Eggett said, "That's it, I'm pulling out." Defendant grabbed his .22-caliber rifle and pointed it at Racowski, saying, "I just might as well pump some lead in her right now." Eggett intervened and the gun fired while pointed in the air. According to Racowski, Eggett was upset with defendant's aggressive behavior, and the gold dredging partnership between Eggett and defendant ended at that time.

Late in the summer of 1985, Dave McGee went to the camp at Eggett's request to help him remove a dredge. While at the dredge site, McGee observed tension between Eggett and defendant, who was also at the camp. Defendant left after Eggett said he did not need defendant's services anymore. [4] When McGee and Eggett later returned to *137 the campsite, Eggett's Jeep would not start and they had to hike out. McGee subsequently saw that the Jeep's engine had been destroyed by a screw.

A week or two later, defendant went to McGee's apartment and talked to Eggett (who had been staying with McGee) through the screen door. McGee heard defendant accuse Eggett of stealing gold from him. Eggett denied it. Defendant tore through the screen door, striking at Eggett. After Eggett chased defendant back out and off the porch, McGee saw defendant pull out a hunting knife and shake it at Eggett. Defendant fled as the police arrived, saying he would be back to kill Eggett and the others.

The following summer, in June of 1986, defendant approached Greg Kersting in Chico about the possibility of gold mining. Defendant told Kersting, who had a dredge, that he knew of a place with "lots of gold" in the Forest Ranch area. Defendant claimed that he and a partner had mined up there the year before and that the partner had "ripped him off' for "pounds of gold." After several conversations, Kersting and defendant agreed to dredge for gold together.

On the evening of July 5, 1986, defendant drove to the campsite with Kersting and his wife, Margarets Haynes, their three young children, and defendant's friend, Tom Burgess. [5] On the way to the campsite defendant told Haynes he was going to kill "Rich" (later identified as Richard Eggett). Defendant said: "I'm going to kill that fucker. I'm going to kill that sucker dog lips." Defendant later mentioned to Haynes that Eggett had stolen some gold from him.

When the group finally arrived at the campsite, a small tent and a motorcycle were there. Defendant stepped out of his truck, tied a red bandana around his head, got his gun and checked to see if anyone was there. Kersting heard defendant tell Burgess to get ready for possible trouble. Finding no one there, defendant drove his truck right through the camp, knocking over tables. [6] Haynes heard defendant call out: "Hey Rich, are you here, hey." Later, just before Haynes went to bed and also the next morning, she again heard defendant say he was going to kill that "sucker dog lips."

Prior to retiring for the night, defendant tried to turn his truck around and it got stuck in a hole. Defendant had the idea to tie some wood or logs on the truck's wheel with rope in order to get it out and turned around.

The following morning, on July 6, 1986, defendant began cutting trees to build a bridge across the creek. (See ante, fn. 6.) Defendant did not intend to stay at the campsite; he wanted to camp closer to the part of the creek where the dredging would be done. Kersting did not think the bridge was a good idea, so he walked between one and two miles, checking out the road for alternatives. Kersting returned about an hour or an hour and a half later. Soon after, he and the others heard a vehicle approach the campsite.

Defendant told Burgess to get his gun because it might be the people defendant had spoken of earlier, coming back to rob him. Defendant grabbed his .22-caliber rifle and ran up the side of a hill. Burgess stood with his loaded shotgun, waiting to see who was coming.

The approaching vehicle was Eggett's Jeep. Eggett was driving, joined by his mentally slow brother, Billy Eggett (Billy), Lloyd Curtis Hampton, and Bill Cantwell. [7] Eggett, Billy, and Hampton had initially arrived at the campsite around June 8, 1986, to dredge for gold, but had gone into town for the Fourth of July weekend and had spent the night at Cantwell's trailer. Cantwell decided to accompany them back to the campsite that morning. As they drove into the camp, they *138 saw two unfamiliar vehicles. Someone ran toward them and then up the side of the hill. Believing someone might be "ripping [them] off," Hampton and Cantwell armed themselves and went into the camp on foot.

There was a tense confrontation when Eggett's group came upon defendant's group. Eggett, Hampton and Cantwell wanted to know who was in their camp and what they were doing. Kersting and Burgess tried to explain they had gotten stuck the night before and were trying to move out. Kersting showed them his family and said they had planned to camp for the weekend and do some mining. He was told they were in the wrong place, and they had to get out of there. At one point, Kersting heard Eggett and Burgess scuffling behind him, apparently over Burgess's shotgun.

Meanwhile, defendant had run to the top of the hill. After revealing his presence, defendant shouted statements to the effect of "Rich, I'm back. I've come to get you" and "Eggett, you SOB, it's taken me a year but I've got you now." Defendant pointed his rifle and told Cantwell to drop his pistol or die. [8] He directed Eggett's group to drop their weapons and get out of there. Cantwell and Hampton put down their guns after defendant fired a warning shot and "bluffed" them by pretending others were up on the hill with him. Defendant told them to put their hands on their heads.

Eggett recognized defendant, and they started arguing about the previous year. Defendant cursed Eggett for robbing him. He also accused Eggett of having "a 300 pound nigger beat the shit out of [him] and kill [his] dog" the year before. Eggett denied everything.

After Hampton and Cantwell put their weapons down, defendant came down the hill. Eggett and defendant continued to argue, with defendant yelling that Eggett was a liar, a thief and a robber. Defendant got angry as Eggett repeatedly denied his accusations. At one point defendant told Eggett: "Hold it right there. I'm going to blow your God damn head off."

As defendant approached Eggett's group, he told Burgess to shoot if anyone moved. Defendant instructed Eggett's group to "empty [their] pockets" and place everything on the hood of Eggett's Jeep. Hampton put his gun, his knife and his wallet on the hood. Cantwell placed his pistol there, [9] along with $1,100 from a payroll check he had just cashed. A vial of gold belonging to Eggett and Hampton, worth between $700 and $1,000, was placed on the hood by Eggett. After surrendering their belongings, Eggett, Cantwell and Hampton were forced at gunpoint to place their hands behind their heads. Eggett's brother Billy stayed off to the side.

Defendant stuck Cantwell's pistol in his belt. He took Cantwell's money, saying that it would just about pay him back for what Eggett had stolen and that now Eggett owed the money to Cantwell. He also took the gold vial and Hampton's knife. When he took the gold, he told Eggett: "I got part of it that you owed me now." Defendant gave the money and gold to Burgess to hold.

Defendant then rummaged through the Jeep, warning that all the gold and ammunition should be given up or someone would be shot. When defendant found two boxes of shotgun shells in the Jeep, he became very upset and kicked Eggett. Defendant also took some pawn slips for gold from the Jeep. He indicated he was taking the items as payment or payback for what Eggett owed him.

Then in front of everyone, defendant pointed Cantwell's .38-caliber pistol toward Eggett's feet and clicked the trigger three times. The third time, the pistol fired and "snake shot" hit Eggett in the feet. Eggett, who had been wearing only thongs on his feet, cried out in pain and fell down. Although defendant initially appeared to express surprise that the pistol actually fired, he began to taunt Eggett, asking him how it *139 felt to have the shoe on the other foot and remarking that it was about time he felt some pain. He told Eggett to get up or the next shot would be in his head. Eggett got up, but complained he needed to go to the hospital. Defendant told him to quit sniveling. [10]

After the shooting, defendant seemed more "hyper" while Eggett became subdued. Defendant grew even more verbally and physically abusive toward Eggett, kicking him and hitting him in the head, face and ribs with the butt of the gun. He beat him in the head with a frying pan and threw a small stereo speaker at his head. As defendant beat Eggett, he warned Eggett to be quiet or he would "torment the hell out of you, beat the shit out of you and kill you." He also kept calling Eggett a snitch, referring to the previous year when Eggett had called the police on him for assaulting "a girl" at the camp and for putting "machine screws" into the carburetor of Eggett's Jeep. At various times defendant said he should kill Eggett and put him "through pain." At one point, Hampton and Cantwell saw defendant snag Eggett in the back with a treble fish hook and yank on it.

At defendant's direction, Eggett, Hampton and Cantwell all had their hands tied behind them and their feet bound. [11] They were put in Eggett's Jeep along with Billy. Defendant, accompanied by Burgess, drove the Jeep some distance away from the campsite while Kersting and his family remained behind.

About an hour later, defendant stopped the Jeep and pulled Eggett out. Defendant apparently started to rip Eggett's clothes off, then instructed Billy to use a knife to cut the rest off. [12] The others heard defendant say he was going to tie Eggett to a tree and leave him there a couple of days for the mosquitoes to eat. [13] After defendant walked Eggett away from Burgess and the others, Cantwell and Hampton heard Eggett yelling and screaming in pain as if being beaten. When defendant returned to the Jeep by himself, some 10 to 30 minutes later, the screaming had stopped.

When defendant returned, Hampton and Cantwell heard him tell Burgess that he had tied fishing line around Eggett's genitals "real tight" and that Eggett "won't be able to screw any other chick again." Defendant then untied Hampton's and Cantwell's hands, but not their feet. At that point, defendant said he would let Hampton and Cantwell go, but that he would find them and kill them if they said anything. He also told them to leave Eggett where he was for two or three days.

Defendant then drove Burgess, Hampton, Cantwell and Billy back to the campsite. According to Haynes and Kersting, they had been away from the camp for about one .and a half to two hours. When they returned, defendant allowed Hampton and Cantwell to untie their feet. Kersting was surprised that everyone seemed to be smiling and happy. When defendant said he was going to leave Eggett tied up to "suffer" a little more, Hampton and Cantwell nodded in apparent agreement and said, "Yes it's true." They also agreed with defendant that Eggett was "not that great of a guy." Hampton and Cantwell were scared and had decided to go along with whatever defendant said in order to save themselves.

Thereafter defendant produced some methamphetamine and offered it around. Kersting, Haynes and Burgess did not take any. Cantwell was nervous about refusing defendant, so he snorted some of the methamphetamine. Hampton injected some of it because he wanted to make defendant feel more comfortable. Defendant injected some as well.

*140 Defendant eventually returned some of the property taken from Hampton and Cantwell, including their weapons, ammunition, and about $800 of Cantwell's money. [14] The gold vial, which defendant had given to Burgess, was not returned. Burgess still had it when he was arrested.

As everyone was getting ready to leave, defendant told Kersting that he was going to park Eggett's Jeep up in the bushes, and that he would be back. He told Cantwell he was going to stash the Jeep in the woods somewhere and leave a note describing its location for Cantwell at the "slab" near Cantwell's trailer. Cantwell believed defendant said at one point that the Jeep was for Cantwell to keep.

Defendant was the first to leave the camp. While Kersting and one of his children stayed behind for defendant to return, Burgess left with Haynes and the other two children in Kersting's truck. When Kersting's truck got stuck backing out of the steep slide, defendant tried to push it with the Jeep. The truck ran into a rut, tearing off the lower radiator hose and bending the tie rod. When Haynes came back to camp to get water and a tool for the truck, Kersting decided his entire family should leave with Burgess.

Hampton and Cantwell left together on their motorcycles with Billy. Near the area where Richard Eggett had been left, they let Billy off Cantwell's motorcycle and told him to wait while they tried to find Eggett. Although defendant had warned them to leave Eggett for a few days, they thought defendant had already left.

When they got to the place where they thought the Jeep had been parked, Hampton honked his horn and Cantwell yelled for Eggett. They got off their motorcycles and started to walk, but immediately heard the motor of a Jeep start up. Figuring that Eggett would not have been able to get in the Jeep to drive it, Hampton and Cantwell believed that defendant or possibly someone else was there.

Fearing defendant and his warning to leave Eggett, Hampton and Cantwell got back on their motorcycles and went in the other direction. When their motorcycles got stuck, they abandoned them and headed to Cantwell's trailer in the dark. As Hampton and Cantwell went through the hills, trying to make sure they got away from defendant, the methamphetamine they had taken from defendant was making them hallucinate and paranoid that someone was following them.

Hampton and Cantwell eventually arrived at Cantwell's trailer around 9:00 a.m. the next morning (July 7). [15] They then drove Cantwell's Blazer back to the camp area to look for Eggett. They saw Eggett's dog and followed it to Eggett's Jeep, which was a short distance downhill from where they had heard Eggett screaming. Eggett's body was in the Jeep under clothes and sleeping bags. He had been stabbed to death.

After picking up Cantwell's wife and child, Cantwell and Hampton went to the Forest Ranch ranger station and called the police. They led the police back to the Jeep. Tied logs found on the wheels of Eggett's abandoned Jeep appeared similar to the tied logs defendant had fashioned and used on one of the vehicles the night before the confrontation with Eggett's group.

Burgess, meanwhile, had driven Kersting and his family home in Kersting's truck. They reached the Kersting home at midnight. Burgess and Kersting talked for several hours thereafter.

At approximately 10:00 a.m. the following morning (July 7), Burgess left Kersting to go to the home of Phil Enoingt and Delinda Olson. Defendant arrived at the home within 20 minutes of Burgess. Defendant said he wanted to get his hair dyed because the police were looking for him and asked Delinda if she knew how to do it. Defendant changed his clothes and shaved off his beard. Burgess, who was trying to avoid defendant, *141 observed blood on defendant's thighs when defendant changed his clothes.

That same day, defendant came by the Kersting house for his dog. Kersting noticed that defendant looked different; his beard had been shaven and his hair was slicked back. That was the last Kersting saw of defendant until the trial.

On July 17,1986, the police took defendant into custody after receiving an anonymous tip that he would be driving down from Cohassett in a pickup truck with another individual. When defendant was arrested, he identified himself as Daniel D. Osburn and had a fishing license in that name.

Forensic pathologist Dr. Gwen Hall performed an autopsy on Eggett's body on July 8,1986. She testified that Eggett had multiple stab wounds to the trunk: six in the back and two in the front. Death was caused by multiple stab wounds to the chest and abdomen. There were two life-threatening wounds: One went through the back of the rib cage and pierced the right lung; the other went through the chest wall and pierced the left lung.

Dr. Hall also found numerous injuries to Eggett's left hip and thigh, which she described as nicks and cuts caused by a sharp object puncturing the skin. There were no attendant scrapes or smaller scratches to suggest that those injuries were sustained by a fall or hitting against something. The shallow puncture wounds, as well as the eight stab wounds, appeared to be premortem as there was some bleeding into the wounds.

Dr. Hall additionally found other injuries and wounds, including a bump and a scrape on Eggett's forehead caused by a blunt object and wounds compatible with snake shot in Eggett's feet and lower legs. The shot was to tiny to be extracted. Other injuries included a number of scratches on many parts of the body, many of which were consistent with being caused by indigenous brush. Scratches on the right side underneath the arm had no bleeding and were post-mortem. Dr. Hall checked Eggett's genitals for injuries that could have resulted from fishing line. Although she did not see any, the absence of marks or injuries did not exclude the possibility that fishing line had been tied around the genitals.

Dr. Hall could not determine whether Eggett died before being placed in the Jeep. The time of death was between 40 and 48 hours prior to the autopsy, but with several hours' leeway on either side. If Eggett was alive when the non-life-threatening stab wounds were inflicted, they would have been painful. The lethal wound that fractured a rib and punctured the right lung also would have caused severe pain. In Dr. Hall's opinion, the numerous nicks and cuts caused by the sharp object puncturing the skin in the left hip and thigh area suggested that Eggett had been tortured by being poked or stabbed.

2. The Defense Case

In addition to attacking the credibility of the prosecution witnesses, defendant took the stand and testified in part as follows.

Defendant denied Christine Racowski's testimony that he punched her at the campsite in 1985 and denied that he and Eggett ended their partnership as she had described. Although defendant fired his rifle two or three times in the air to scare Racowski, Eggett did not seem too upset and did not grab the gun.

Defendant also disputed Dave McGee's version of the 1985 incident at McGee's apartment. According to defendant, he was beaten and kicked by McGee, Eggett and Cantwell when he went unarmed to the door to retrieve his share of some gold that he and Eggett had mined together. Defendant denied he had a knife. He also denied having sabotaged Eggett's Jeep.

With regard to the events of July 5 and 6, 1986, defendant denied he ever mentioned Eggett or a former partner to Haynes on the drive up to the camp. He may have mentioned the matter previously to Kersting, but did not tell him about his anger toward Eggett because he did not expect to see Eggett at the camp.

On the morning of July 6, defendant ingested two capsules of methamphetamine, which he thought were vitamins. Defendant admitted he confronted Eggett regarding a *142 "250 pound nigger" who had beaten him up, but denied he said anything about it being Eggett's turn now. Defendant also confirmed he yelled for "Sam and John" to keep the others covered when he bluffed Eggett's group into putting their weapons down. According to defendant, Sam and John were real people that he had briefly spotted in the area when he was down by the bridge, but they were not actually on the hill when he yelled their names.

Defendant claimed his shooting of Eggett was accidental. He had wanted to make sure all the weapons were empty, so he "dry fired" them. Cantwell had said that the gun was empty, so defendant was very surprised when it discharged.

Defendant admitted he took the money and gold that had been placed on the Jeep by the members of Eggett's group and gave them to Burgess. He claimed, however, there was only $863.23 in cash, not $1,100 as Cantwell had testified. Defendant took the money and gold because he felt Eggett owed him over four pounds worth of gold from the previous year. Once defendant learned the money belonged to Cantwell, he returned the money to him.

Defendant testified he had Eggett, Cantwell and Hampton tied up because he thought he was in a dangerous situation and believed that freeing the men would place him and his own group in jeopardy. Defendant claimed he previously had several violent encounters with Cantwell, fueled by Cantwell's anger that defendant had stolen 25 gallons of methamphetamine oil from his van. [16] Defendant was also wary because Cantwell and the others had lied earlier when they said the gun was not loaded and denied the existence of more ammunition. Defendant claimed his original plan was to take Eggett and his group to the top of the mountain and leave them there on a side road. He later decided to leave Eggett and take Hampton and Cantwell back to the camp. He thought they would return speedily to release Eggett if they thought Eggett was being left as mosquito bait.

Defendant denied he ever placed a fishing lure on Eggett's back or hit Eggett with his closed fist and a frying pan. He also denied striking Eggett with a rifle, but admitted slapping Eggett and throwing a small, empty tobacco can at his shoulder. He also admitted telling Cantwell and Hampton that he had tied fishing line around Eggett's genitals, but denied that he actually did so. Defendant also claimed he struck Hampton in the face with his fist after Hampton stabbed defendant twice in the leg with a folding knife.

After defendant drove back to the campsite with everyone but Eggett, he made sure that all the property was returned, including the weapons. Defendant shared some methamphetamine with Cantwell and Hampton and everyone talked about manufacturing the drug. Defendant led Cantwell to believe that he would return the 25 gallons of stolen methamphetamine oil. They agreed to cook up the methamphetamine right there in the camp; Cantwell agreed to give defendant several pounds of the finished product.

At Cantwell's request, defendant drove Eggett's Jeep to the area called the incline so that it would be available when Cantwell and Hampton went to get Eggett. When defendant returned to camp, his truck was the only vehicle there. He found that one of its tires had been stabbed and was flat. Defendant became afraid and hid for a while until he could no longer hear the sound of any engines. He then drove his truck to Highway 32, where he changed the tire. Defendant *143 admitted that he was at Phil Enoingt's and Delinda Olson's house on July 7 and that Burgess may have seen him change his pants.

Defendant admitted he identified himself as Daniel Osburn when stopped by the police, but said he did so only because the man who was with him at the time knew him by that name. He denied using the false name to confuse police. Defendant also admitted he had dyed his hair just after the confrontation with Eggett's group, but claimed he did so to avoid being recognized by Cantwell.

Crucially, defendant denied stabbing Eggett at any time. He also denied having a knife on his person on July 6 or 7, 1986, though he did carry a crevicing and dredging tool that he had obtained from Sam and John (two reclusive miners) the previous year.

Defense witnesses Jyll Bond and Kenny Clumpus testified they heard Cantwell speak of methamphetamine oil that had been stolen by defendant. According to their testimony, it was Cantwell who arranged to have Eggett killed and defendant framed for the murder.

Jeffrey Gray claimed he was with defendant on Sunday, July 6, 1986, from midafternoon to midnight and that defendant did not seem excited, scared or apprehensive.

Pathologist Bill Maduros gave his expert opinion that Eggett's wounds were homicidal, rather than torture, wounds. He also testified that if fishing line had been tied around Eggett's genitals, a residual mark would have been left, depending upon how tightly it was tied.

Licensed psychotherapist Joyce Quaytman testified generally that ingestion of methamphetamine can result in symptoms of grandiosity, hypervigilence, psychomotor agitation, delusions and hallucinations. She had no idea of the purity of the methamphetamine ingested by defendant on July 6,1986.

B. The Penalty Phase

1. The Prosecution Case

In addition to relying on the circumstances of the instant crimes, the prosecution presented evidence of defendant's prior felony convictions and evidence of his prior violent criminal activity, as follows:

In 1965, defendant was being pursued in a vehicle when he injured a state trooper in New York by running him off the road. Defendant was convicted of second degree assault, transportation of a stolen vehicle across state lines, and felony attempted prisoner escape.

In March of 1969, defendant robbed the clerk of a liquor store in New York at knife point. Prior to taking the money, defendant had proposed to the clerk that they split the proceeds. A week later, defendant robbed him again, this time claiming to have a gun in his coat. After his arrest, while the clerk was sitting near him in court, defendant repeatedly warned the clerk in a low voice to say he did not remember anything.

In September of 1970, defendant was arrested for a series of robberies in the Calgary area. At the time of his arrest, defendant was a passenger in a truck and raised a loaded handgun up off the seat with his left hand. A second officer stopped defendant from using the gun. He was convicted of five counts of armed robbery.

In December of 1971, defendant tried to rob the owner of a North Miami Beach restaurant at gunpoint. He was thwarted when the owner slammed the cash register drawer on his hand as he tried to grab the money. He fled and police pursued. During the pursuit, defendant backed his vehicle into a police officer, hitting him in the right leg. He also sideswiped a police car and ran into a fence. Defendant eventually was shot in the left leg after he pointed a gun at an officer.

April of 1972, defendant robbed the attendant of a Phoenix gas station at gunpoint. Prior to committing the robbery, defendant had tried unsuccessfully to get the attendant to set up a robbery and share the proceeds.

In September of 1973, defendant, while in custody at a medical facility, resisted being transported back to jail. He broke away from officers and started smashing at the glass door of a fire extinguisher compartment. *144 He had to be Maced before he could be handcuffed.

On October 26, 1977, defendant raped 17-year-old Mae G. when they went for a drive in his car. Defendant took her to an isolated location where he raped her, sodomized her, and forced her at knife point to perform oral sex.

In November of 1979, defendant was convicted of assault on David Sinopoli and sentenced to prison in Massachusetts.

In November of 1982, defendant met Helen T. in a bar in Albany, New York, and got her in his car on the pretext of sharing some marijuana. He took her to an isolated area and raped her.

On January 10, 1987, defendant, while incarcerated in jail, used a razor blade to slash the arm of Arthur Jordan, an inmate in the next cell, as Jordan was leaning on the bars watching television. Defendant had accused the victim of having his buddy, the former resident of the cell, moved.

On May 13, 1987, defendant caused a disturbance in the jail yard by refusing to wear his jumpsuit as required by jail rules. As he was being led back to his cell, he threw his fist towards the head of one of the officers. The fist did not connect because another officer grabbed defendant's arm with both hands.

On May 24, 1988, defendant spit at three correctional officers, hitting two in the face, as he resisted being loaded into a transportation van. Once in the van, defendant kicked out one of the windows.

On July 22, 1988, defendant tried to kick out the windows of the patrol car he was riding in. When an officer tried to grab him, he spit in his face.

2. The Defense Case

The defense attempted, through cross-examination, to cast doubt on the above events.

In addition, defendant's mother and brother testified with regard to defendant's harsh childhood in New York. The family lived on a farm in an old, uninsulated chicken coop that had no water or electricity. His father was stern and sometimes physically abusive toward defendant and his brother. The father usually hit the children with a two-by-four or a belt, but had hit defendant once with a hammer and had beaten him another time with a chain. Defendant and his brother had to work hard at tasks not normally required of young boys. The boys were mocked at school because they smelled like goats as a result of their limited washing facilities and livestock-feeding responsibilities before school.

Defendant's mother also testified that defendant worked hard for local farmers to earn money for a horse. He protected his older brother. He participated in 4-H projects and won many prizes for his vegetables and livestock. One year he worked hard to pay his way to Bible camp. Defendant was a good artist who sold a lot of pictures. Defendant was always good to his mother and she loved him very much.

William Culhane testified he had worked with defendant in defendant's logging business after meeting him at a Bible study group in the early 1980's. Defendant was a hard worker and volunteered to help Culhane dig out his septic system. Culhane did not see defendant drink or use drugs.

Linda Lorenz testified she met defendant in 1984 when he trimmed some trees at her house. Defendant helped her and her family around the house and yard. He brought them food items that he had scrounged from dumpsters. Defendant introduced them to his church.

II. DISCUSSION

A. Motions to Substitute Counsel or Allow Self-representation and Related Matters

Defendant began complaining about the performance of his appointed counsel at a very early stage, and continued to do so even after substitution of his initial counsel and throughout the trial proceedings. He makes a number of interrelated contentions with regard to the court's denials of his numerous motions to substitute counsel ( People v. Marsden (1970) 2 Cal.3d 118 , 84 Cal.Rptr. 156 , 465 P.2d 44 ( Marsden )) and motions to *145 represent himself ( Faretta v. California (1975) 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 ( Faretta) ).

1. Motions Involving Attorney Schroder

(a) Facts

On July 18, 1986, counsel was appointed and defendant was arraigned in the Oroville Justice Court. Public Defender John Schroder made his first appearance on behalf of defendant on July 21, 1986. The preliminary hearing was scheduled for July 31, 1986.

At the outset of proceedings on July 31, defendant asked the magistrate to replace Schroder and the public defender's office with other counsel on the grounds that: (1) there was some connection between Schroder and a person named Melvin Schroeder who knew the murder victim; (2) Schroder was not interested in hearing defendant's side of the story; (3) Schroder did not set aside sufficient time to prepare questions for the preliminary hearing and did not bother to read the questions prepared by defendant; and (4) the public defender could not and would not fairly and diligently pursue his case.

The magistrate promised to inquire into defendant's request after addressing other pending matters first. Apparently upset that Schroder was permitted to continue representation for such matters, defendant said: "I would make a motion to proceed pro se, then. I feel I'm adequate to handle my own case, rather than railroaded off by these gentlemen." The magistrate proceeded to deal first with the other matters, and thereafter indicated he would hear from defendant on his objections to counsel after a recess.

After the recess, Schroder confirmed in response to the magistrate's questioning that he had conversed with defendant, received all the discovery, and was prepared for the preliminary hearing. The magistrate then allowed defendant to "address the Court on your motion to have counsel relieved and appoint other counsel or represent yourself in this matter."

Both defendant and Schroder were permitted to speak at length on the matter. After reiterating his beliefs that counsel was not prepared and that counsel perhaps was connected to Melvin Schroeder, defendant specifically asked for appointment of substitute counsel. In response, Schroder indicated he had never heard of Melvin Schroeder and was not related to him. Schroder also described meeting with defendant on July 20, 1986, and going over the preliminary hearing procedure with him. Schroder explained he had witness statements and would cross-examine the witnesses on discrepancies, but would not put on a defense. Defendant questioned Schroder's motives and accused him of lying to the court and being unprepared for the preliminary hearing.

When asked if he would be willing to listen to defendant during a recess, Schroder answered no, because "[w]hat he wants to talk about are things that happened a year ago, that are not relevant at all." . After further questioning, Schroder disclaimed any feelings against defendant that would interfere with his representation and said he would be willing to listen to defendant before the preliminary hearing "[a]s long as he stays to the point, but that's the problem I have." Defendant, meanwhile, insisted he could not deal with Schroder because of a conflict of personality and a conflict of interest. He again asked that substitute counsel be appointed, and said he would not communicate further with Schroder.

After announcing he had "made an inquiry under People versus Marsden," the magistrate denied the motion to relieve Schroder and the public defender's office. When the magistrate then inquired whether there were any other motions at the time, defendant said only that he wanted the record to reflect his exception to that ruling.

Less than two weeks later, at his first superior court appearance before the Honorable Roger Gilbert on August 12, 1986, defendant again moved to remove Schroder (and his law partner Robert Mueller), complaining that Schroder failed to meaningfully represent him at the preliminary hearing. Defendant accused Schroder of selling him out and said he would never again talk to Schroder. In light of its heavy criminal calendar that day, the court continued defendant's motion to August 15.

*146 On August 15, the court held an extended in camera hearing on defendant's motion. Among other things, defendant reported a "complete breakdown in communications" with Schroder, spoke repeatedly of a conspiracy against him and confirmed he would no longer speak to Schroder or any counsel associated with him. Defendant, however, indicated he did not wish to represent himself. [17] Subsequently, the court concluded that the attorney-client relationship had "irretrievably broken down" and directed that another attorney within the public defender's office be assigned to the case. Defendant noted his exception to the court's ruling but raised no other issue.

Defendant then petitioned in propria persona for writ of habeas corpus, seeking appointment of an attorney not connected with Schroder or the public defender's office. Meanwhile, Schroder's law partner, Robert Mueller, requested to be relieved as counsel because he had represented prosecution witness Bill Cantwell on at least nine different occasions and three other potential witnesses as well. On September 16, 1986, the court granted Mueller's request and appointed Jerry Kenkel, who was not from the public defender's office, to represent defendant as secondary counsel. Approximately 10 days later, Kenkel was appointed chief counsel for defendant.

On December 4, 1986, the defense moved to dismiss the action pursuant to section 995, arguing that the magistrate erroneously failed to grant defendant's Marsden motion before the preliminary hearing. On December 29,1986, a related common law motion to dismiss was filed, incorporating by reference the section 995 points and authorities and relying also on information from the superior court Marsden hearings and Mueller's request to be relieved. The Honorable William R. Patrick ultimately denied both motions on March 20,1987.

(b) Analysis

Defendant first contends the magistrate erred in denying his Marsden motion to replace Schroder before the preliminary hearing. He next contends the superior court erred when it denied his motion for a dismissal based on the magistrate's failure to replace Schroder. The crux of his argument is this: On August 15, 1986, the superior court relieved Schroder upon finding that the attorney-client relationship had "irretrievably broken down." Because the conditions which led the superior court to find an irretrievable breakdown were no different when the preliminary hearing occurred two weeks before, the magistrate should have granted the Marsden motion at that time.

Marsden motions are subject to the following well-established rules. "'"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]'" ( People v. Memro (1995) 11 Cal.4th 786, 857 , 47 Cal.Rptr.2d 219 , 905 P.2d 1305 .) Denials of Marsden motions are reviewed under an abuse of discretion standard. ( People v. Berryman (1993) 6 Cal.4th 1048, 1070 , 25 Cal.Rptr.2d 867 , 864 P.2d 40 .) Denial "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 .)

Here, the magistrate gave both defendant and Schroder ample opportunity to be heard on the Marsden motion. Schroder confirmed he had met with defendant, received all the discovery and witness statements, *147 and was prepared to proceed with the preliminary hearing. Although the record clearly discloses strategy disagreements between defendant and Schroder, it demonstrates no failure by Schroder to provide adequate representation. [18]

Moreover, "[a] trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness." ( People v. Crandell (1988) 46 Cal.3d 833, 860 , 251 Cal.Rptr. 227 , 760 P.2d 423 .) Since defendant had rejected Schroder's assistance a mere 13 days after his appointment, at an early stage of the proceedings, the magistrate could reasonably conclude that defendant had not made sufficient efforts to resolve his differences with Schroder or given Schroder sufficient time to demonstrate he was worthy of defendant's trust. ( Ibid. ) [19] No abuse of discretion appears.

The fact that the superior court relieved Schroder two weeks after the magistrate refused to do so is not significant. The superior court did not make its determination of an irreconcilable conflict based upon the same Marsden morion and arguments that were presented to the magistrate. A separate Marsden motion was at issue, and accordingly, the superior court held a separate hearing to review defendant's complaints. That the superior court made a different determination under such circumstances did not render the magistrate's earlier decision erroneous. (See People v. Berryman, supra, 6 Cal.4th at p. 1070 , 25 Cal.Rptr.2d 867 , 864 P.2d 40 [a reviewing court focuses only on the challenged ruling and the record on which it was made].) Even though the superior court considered many of the same objections heard by the magistrate, the court did not in any way suggest that the magistrate erred in denying the earlier motion.

Defendant next argues the magistrate committed reversible error in denying his Faretta motion for self-representation before the preliminary hearing. Likewise, he contends, the superior court committed reversible error in denying his motion to dismiss based on its review of the magistrate's decision.

To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right in a timely manner. ( People v. Hines (1997) 15 Cal.4th 997, 1028 , 64 Cal.Rptr.2d 594 , 938 P.2d 388 .) "The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant's conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant's conduct or words reflecting ambivalence about self-representation may support the court's decision to deny the defendant's motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied." ( People v. Marshall (1997) 15 Cal.4th 1, 23 , 61 Cal.Rptr.2d 84 , 931 P.2d 262 .) A reviewing court, in determining whether a *148 motion for self-representation is unequivocal, is not bound by the trial court's apparent understanding that the defendant was making a motion for self-representation. ( People v. Marshall, supra, 15 Cal.4th at pp. 23-25, 61 Cal.Rptr.2d 84 , 931 P.2d 262 .)

In this case, the record reflects that an unequivocal assertion was never made. Defendant said he "would make a motion to proceed pro se, then" when the magistrate would not immediately discuss his Marsden request at the outset of proceedings on July 31,1986. But when subsequently told by the magistrate "you may at this time address the Court on your motion to have counsel relieved and appoint other counsel or represent yourself in this matter," defendant launched into his complaints and suspicions regarding Schroder and asked repeatedly for appointment of another counsel, but expressed no desire for self-representation in the alternative. When the magistrate denied the motion to relieve Schroder after stating he had conducted a Marsden inquiry and asked if there were any other motions, defendant announced his objection to that ruling but made no mention of wanting to represent himself. Under these circumstances, defendant's single reference to "mak[ing] a motion to proceed pro se" is properly viewed as an "impulsive response" to the magistrate's refusal to immediately consider his Marsden request. As such, it did not constitute an unequivocal assertion of the right to self-representation. ( Jackson v. Ylst (9th Cir.1990) 921 F.2d 882, 888 [self-representation request deemed an equivocal, emotional reaction to the trial court's denial of a motion for substitute counsel]; accord, Reese v. Nix (8th Cir.1991) 942 F.2d 1276, 1281 [defendant's statement — `"Well, I don't want no counsel then'" — deemed a mere expression of frustration in response to the trial court's denial of a request for substitute counsel]; Hodge v. Henderson (S.D.N.Y.1990) 761 F.Supp. 993, 1001-1002 , affd. per curiam (2d Cir.1991) 929 F.2d 61 .) [20]

2. Pretrial Motions Involving Attorneys Kenkel and Stapleton

(a) Facts

On September 11, 1987, defendant filed a "declaration" claiming his case had been prejudiced by Schroder's failure to promptly investigate the underlying facts and events. Defendant also asserted that Kenkel, his current counsel, had ignored his repeated requests to contact various witnesses "believed vital to the defense" and asked that Kenkel be directed to make every effort to locate the witnesses. In the alternative, defendant demanded dismissal of the charges against him.

The trial court treated defendant's declaration as a Marsden motion and conducted an in camera hearing. Defense investigator Robert Eastham testified and submitted his notes outlining his efforts to locate certain witnesses and evidence. The court observed that while the investigation was not yet complete, substantial efforts had been made on defendant's behalf. After noting that defendant was not asking for counsel to be relieved, the court offered to reopen the matter in six weeks if defendant wanted to do so.

On January 21, 1988, defendant filed a habeas corpus petition in propria persona, alleging the incompetence of Kenkel. Defendant purported to refuse all further contact with Kenkel and sought appointment of another attorney. The court treated the petition as a request for a Marsden hearing, and after several continuances, conducted an extensive in camera hearing on March 7, 1988, in which defendant was allowed more than an hour to air his grievances. [21] Defendant faulted Kenkel for not calling him to the stand to testify about the prejudice he suffered as a result of Schroder's representation. *149 Defendant also accused Kenkel of dereliction in tracking down witnesses, including two gold miners named "Sam" and "John" (last names unknown), who supposedly witnessed the events of July 6, 1986, and could attest to defendant's innocence. Defendant additionally complained of Kenkel's refusal to meet with him in jail on May 8, 1987, Kenkel's refusals to seek bail and move for a change of venue, and his failure to devote sufficient time to defendant's case due to his outside workload.

In response, Kenkel testified under oath regarding his considerable professional qualifications. He answered each of defendant's complaints point by point, describing, among other things, the defense team's efforts to locate witnesses and the reasons why he rejected defendant's proposed strategies. [22] After hearing defendant's responses to Kenkel's testimony at a subsequent hearing on March 11, 1988, the court declined to relieve counsel.

On March 31 and April 4, 1988, the court held hearings on defendant's petition for writ of habeas corpus requesting his release from custody. These hearings took place in open court after defendant was advised by counsel and the court that the proceedings were not confidential and that the prosecutor was entitled to be present. Defendant repeated his earlier claims that there were many witnesses to corroborate his version of the relevant events — most importantly, Sam and John — and emphasized he knew them only by first name or appearance and had no addresses for them. Defendant therefore wanted Kenkel to seek his release from custody so that he could help find them before the trial. Kenkel's failure to do so, defendant claimed, was depriving him of his rights to effective representation, compulsory process and a fair trial. [23]

In considering the release issue, the court heard testimony from defense investigator Douglas Nisson. Nisson explained his efforts to locate Sam and John, whom defendant had described as nomadic gold miners with no known address. Nisson had attempted to locate permits or intentions to mine but such documents did not exist. He had spoken with a fire marshal who patrolled the area, but the marshal had not heard of Sam or John. Nisson also intended to locate two other miners described by the fire marshal and to physically search the area using a map drawn by defendant. The court denied the writ, finding no basis upon which to release defendant and no substantiation for the assertions of counsel's incompetence.

Trial was scheduled to begin on May 9, 1988. On May 2, 1988, the defense requested a 30- to 60-day continuance to investigate matters recently added to the prosecution's list of aggravating evidence for the penalty phase and to follow up on recently obtained information regarding the whereabouts of Sam and John. The court denied the request, stating that jury selection would last at least 30 days and that defense investigators could continue their work during that time.

Meanwhile, on May 9,1988, defendant filed a new Marsden motion. Prior to the start of trial proceedings, the court held a hearing and directed defendant to confine his showing to new matters arising since the previous Marsden hearing. After clarifying that his motion was directed toward both Kenkel and associate counsel Stapleton (see ante, fn. 21), defendant described several pretrial motions he believed counsel should have filed and additional points he thought should have been raised. [24] Defendant also complained *150 counsel had not discussed defense strategy or the selection of trial witnesses with him and had failed to address the issues raised by defendant in some 45 letters to counsel. In response, Kenkel said the defense team had been preparing diligently for trial and was ready to proceed. He saw no basis for any of defendant's proposed motions and had tried to comply with every reasonable request made by defendant. Kenkel told the court he was reluctant to disclose defense strategies and evidence for fear that, by analogy to section 987.9, [25] the court would be forced to disqualify itself from presiding over the trial. The court denied the Marsden motion, observing that counsel had been properly representing defendant and would continue to do so. [26]

(b) Analysis

Defendant first contends the trial court erroneously denied his January 1988 request to remove Kenkel from the case. In particular, he claims the court accepted counsel's explanations and assurances without adequate inquiry. Defendant also faults the court for focusing entirely on the adequacy of counsel's work without considering whether an irreconcilable conflict between counsel and defendant had developed. Defendant appears to contend that while each of the claimed failings of counsel "might be individually excusable," their combined effect on the attorney-client relationship required counsel's removal.

Defendant cites only one decision, People v. Hill (1983) 148 Cal.App.3d 744 , 196 Cal. Rptr. 382 , to support his claim that the inquiry into counsel's performance was deficient. Consistent with established case law, that decision recognized that a court may not deny substitution of an attorney based solely on its own courtroom observations of the attorney's previous demonstrations of courtroom skill without permitting the defendant to relate alleged instances of incompetence. ( People v. Hill, supra, 148 Cal.App.3d at p. 753 , 196 Cal.Rptr. 382 , citing Marsden, supra, 2 Cal.3d at pp. 123-124, 84 Cal.Rptr. 156 , 465 P.2d 44 and other cases.) It further concluded that a court may not conduct an off-the-record investigation into the allegations of incompetence but must make its inquiry in open court in the presence of the defendant. ( People v. Hill, supra, 148 Cal. App.3d at pp. 753-755, 196 Cal.Rptr. 382 .)

That is exactly what happened here. Treating defendant's January 1988 habeas corpus petition as a Marsden request, the court allowed defendant to fully state his complaints. As part of the court's careful inquiry into the matter, Kenkel was sworn in and, in defendant's presence, asked to summarize *151 his experience in criminal law [27] and then to address each of defendant's complaints. The court then permitted defendant to respond. We perceive no deficiency in the court's inquiry.

Likewise, the trial court did not abuse its discretion in denying the Marsden request. Although defendant's frustration with counsel was clearly evident, the record reflects substantial investigative efforts by Kenkel and his anticipated readiness to proceed on the scheduled trial date. The claim of inadequate representation is not well founded.

Additionally, the record does not indicate that defendant and counsel had become embroiled in such an irreconcilable conflict that ineffective representation was "likely to result." ( People v. Crandell, supra, 46 Cal.3d at p. 854 , 251 Cal.Rptr. 227 , 760 P.2d 423 .) Notably, while defendant made clear he was "disillusioned" with Kenkel's representation, he also described Kenkel as "a great guy" and made no reference to an irreconcilable conflict. Kenkel did not join in the motion for substitution or otherwise suggest that such a conflict existed. (See People v. Young (1981) 118 Cal.App.3d 959, 967-968 , 173 Cal. Rptr. 700 .) That Kenkel refused to accede to defendant's demands on various tactical matters (such as whether to expose defendant to pretrial cross-examination by the prosecutor on the issue of prejudice resulting from Schroder's representation and whether to advance certain pretrial motions), standing alone, did not constitute sufficient cause for substitution of counsel. ( People v. Williams (1970) 2 Cal.3d 894, 905 , 88 Cal.Rptr. 208 , 471 P.2d 1008 .)

Defendant next contends the court erroneously denied his related habeas corpus petition seeking release from custody "because without the presence of [defendant] it would be extremely difficult for the defense to locate and identify Sam and John, two critical witnesses. If the court's order denying the petition was based on Investigator Nisson's assurances, then the court should have reconsidered its order when it later appeared that Nisson did not have any further leads on locating Sam and John and did not attempt to locate their operation." Defendant addresses this matter amid the Marsden issues because it involves his "dissatisfaction with counsel" and "forms the backdrop" to his subsequent Marsden motions.

In advancing these claims, defendant presents no legal analysis whatsoever regarding his eligibility for bail (See § 1270.5 [a defendant charged with a capital offense cannot be admitted to bail when the proof of guilt is evident or the presumption thereof great].) At most, defendant refers to Kinney v. Lenon (9th Cir.1970) 425 F.2d 209 as containing "strong language" regarding the right of an incarcerated prisoner to be released to help locate crucial witnesses where the circumstances make it difficult or impossible for persons other than the defendant to find, or gain the cooperation of, witnesses.

In Kinney v. Lenon, supra, 425 F.2d 209 , the appellant was a juvenile detained in a detention home pending trial on charges arising out of a schoolyard fight. The juvenile was Black and his attorneys were White. Although there were many witnesses to the fight, they, too, were Black and it was claimed that, because the juvenile could not identify them by name but only by sight, his attorneys would have great practical difficulty in interviewing and lining up the witnesses. In directing that the juvenile be released for the purpose of aiding the preparation of his defense, the appellate court remarked: "It would require blindness to *152 social reality not to understand that these difficulties [in overcoming the apathy and reluctance of potential witnesses to testify] may be exacerbated by the barriers of age and race. Yet the alternative to some sort of release for appellant is to cast the entire burden of assembling witnesses onto his attorneys, with almost certain prejudice to appellant's case." (425 F.2d at p. 210.)

Assuming arguendo the soundness of Kinney v. Lenon, supra, 425 F.2d 209 , and setting aside for the moment section 1270.5 and other issues that might warrant consideration in the proposed release of a defendant facing capital charges, we find the circumstances presented to the trial court here undeserving of parallel treatment. Unlike the situation in Kinney v. Lenon , defendant here was able to provide first names and descriptions of Sam and John, the two miners who supposedly could attest to his innocence. Moreover, defendant claimed that Sam and John would not be apathetic or reluctant witnesses once they were located; rather, in defendant's own words, they "would be only to [ sic ] happy to verify that I had done nothing wrong." Defendant also drew a map purporting to show the general location of Sam's and John's campsite and mining activities to aid the defense investigation. Investigator Nisson, using the information provided by defendant, had spoken to various persons in the area and had obtained several leads on miners who fit the descriptions. However, he had not finished pursuing those leads by the time of the hearing on defendant's habeas corpus petition and indicated he intended to search the area once the weather permitted. Since defendant's release under these circumstances did not appear necessary to preserve his right to a fair trial (see Kinney v. Lenon, supra, 425 F.2d at p. 210), no abuse of discretion has been shown.

Defendant cites no authority to support his related claim that the court was required to undertake a sua sponte reconsideration of the release matter when it later appeared that Nisson had exhausted his leads for locating Sam and John and did not attempt a physical search for their camp. The claim is rejected. To the extent changed circumstances might have supported his release, it was incumbent upon defendant to make another release request based upon that new information.

Defendant next contends that his specially appointed counsel, Rick Ortner (see ante, fn. 23), was ineffective for failing to request an in camera hearing on the release request and that the court erroneously failed to exclude the prosecutor on its own initiative. According to defendant, his federal constitutional privilege against self-incrimination and his right to effective assistance of counsel were violated because the prosecutor was able to cross-examine defense investigator Nisson and gain access to defendant's declarations detailing his defense.

We reject these contentions. As courts have recognized, Marsden hearings are held outside the presence of the prosecutor because such matters may often entail the disclosure of defense strategy or evidence to which a prosecutor might not otherwise be privy. (E.g., People v. Dennis (1986) 177 Cal.App.3d 863, 871 , 223 Cal.Rptr. 236 .) Moreover, the People generally have no interest in having the defendant represented by a particular attorney. ( Ibid. ) The People, however, have a substantial interest in the determination whether and under what circumstances a capital defendant is granted a pretrial release from custody. Accordingly, any request for such a release must be heard in a fully adversarial proceeding in which the prosecutor has notice of the grounds for the request and an opportunity to present evidence and argument. (See People v. Smith (1993) 6 Cal.4th 684, 694, fn. 2 , 25 Cal. Rptr.2d 122 , 863 P.2d 192 [any motion to withdraw the plea or for a new trial must be part of a fully adversarial proceeding, even if based upon the alleged ineffectiveness of counsel]; People v. Pinholster (1992) 1 Cal.4th 865, 930 , 4 Cal.Rptr.2d 765 , 824 P.2d 571 [motion to dismiss]; People v. Dennis, supra, 177 Cal.App.3d at pp. 872-873, 223 Cal.Rptr. 236 [motion for new trial].)

Relying upon People v. Grace (1971) 18 Cal.App.3d 292 , 95 Cal.Rptr. 688 , defendant also contends the court conducted an insufficient inquiry and erroneously denied *153 his Marsden motion to relieve Kenkel and Stapleton just before the start of trial on May 9, 1988. In particular, defendant asserts it was not refuted that Kenkel had never discussed with him the evidence he had planned to present or the strategy he would employ and that Kenkel had not responded to many of the points raised in defendant's numerous letters. Moreover, defendant argues, the court wrongly denied him the opportunity to present preliminary hearing transcripts and police reports to rebut Kenkel's conclusions that defendant's proposed strategies had no merit. At the very least, defendant urges, his complaints disclosed a serious breakdown in the attorney-client relationship.

Defendant's reliance upon People v. Groce, supra, 18 Cal.App.3d 292 , 95 Cal.Rptr. 688 , is misplaced. In that case, the Court of Appeal reversed a conviction where the trial court had made absolutely no effort to inquire into defense counsel's alleged inadequacy after the defendant complained that counsel should have produced hospital records that might support defendant's innocence. In doing so, the appellate court observed: "It is recognized that the objection is frequently made to the inadequacy of counsel. This objection seldom has merit because the decision of the attorney is normally made after due consideration on the trial tactics to pursue in the interest of his client. The court's inquiry, of course, is not to ascertain defense counsel's reasons for his decision for not following procedure requested by the defendant. The inquiry should be limited to whether the attorney made a knowledgeable election on the subject." ( 18 Cal.App.3d at p. 296 , 95 Cal.Rptr. 688 .) In other words, the court must ascertain whether counsel's action or inaction "was a matter of discretion or neglect." ( Ibid. )

We observe that at least one court has criticized the duty of inquiry articulated in People v. Groce, supra, 18 Cal.App.3d 292 , 95 Cal.Rptr. 688 , in the context of a Marsden hearing held in the presence of a prosecutor. (See People v. Huffman (1977) 71 Cal.App.3d 63, 80-81 , 139 Cal.Rptr. 264 .) But even assuming such an obligation exists where, as here, the trial court conducted the hearing in camera, no deficiency appears. After allowing defendant to speak at length regarding the instances of alleged inadequacy, the court ascertained from Kenkel that both he and Stapleton had reviewed the record and evidence in depth and that they had found no meritorious basis upon which to seek dismissal, suppression, discovery, a venue change, a gag order or any of the other actions requested by defendant. (See ante, fn. 24.) Moreover, the court received Kenkel's assurances that he and Stapleton were aware of each of the disputed subject areas raised by defendant and had tried to comply with his requests to the extent possible. Having determined that counsel's decision to reject defendant's proposed strategies was a matter of informed discretion and not neglect, the court was under no obligation to review the preliminary hearing transcripts and police reports that, according to defendant, would rebut Kenkel's evaluation of his strategies. [28]

Finally, defendant is correct in suggesting that a disagreement over trial tactics could signal such a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel. ( People v. Williams, supra, 2 Cal.3d at p. 905, 88 Cal. Rptr. 208 , 471 P.2d 1008 .) However, the trial court in this case was not faced with a record evidencing such a breakdown. Counsel affirmed at the hearing that the defense team had worked many hours, investigating and researching the case and was ready to proceed to trial. [29] Counsel gave no *154 indication that the relationship with defendant had in any way hampered defense preparations. More importantly, there was substantial evidence of cooperative efforts in that counsel in fact investigated the possibility of pursuing defendant's suggested strategies but declined to do so only after determining they would not be successful. On this record, denial of substitution was not an abuse of discretion.

In reaching this conclusion, we have not overlooked defendant's assertion that Kenkel never specifically refuted the claim that he had never discussed defense strategy with defendant. Although the court did not ask Kenkel to respond to that particular point, it knew from the previous hearings that defendant was in fact aware of counsel's strategies and areas of investigation. [30] It was also obvious that defendant simply had no interest in defense strategies that varied from his own and that his sole aim was to have the defense conducted his way, regardless whether current or substitute counsel was involved. Since defendant had no right to an attorney who would accede to all of his whims, denial of the Marsden motion did not constitute an abuse of discretion.

3. Midtrial and Posttrial Motions

(a) Facts

On June 29, 1988, after five weeks of jury selection and six days of testimony, defendant told the court: "I wish to make a Faretta motion. I wish to self-represent." The next day the court held a hearing, the first part of which was conducted in camera in light of defendant's assertion that explaining his dissatisfaction with counsel would require disclosure of what defendant perceived to be major portions of his defense. During the closed session, defendant was permitted to speak for well over two hours (approximately one hundred pages of transcript) regarding his criticisms of counsel and his reasons for wanting self-representation. In particular, defendant faulted counsel for failing to properly cross-examine various prosecution witnesses, failing to obtain discovery from the prosecution regarding inmates who were given "deals" to testify against him or bribes to not testify on his behalf, arid failing to properly respond to the prosecutor's unethical and prejudicial conduct. Defendant was also allowed to file two exhibits consisting of witness questions he had prepared for trial. One exhibit listed 324 questions for Bill Cantwell and the other contained 355 questions for Lloyd Curtis Hampton.

The court then heard from counsel. Kenkel explained why he had cross-examined certain witnesses as he did and indicated he had incorporated the questions and points raised by defendant where he thought it was appropriate. Kenkel assured the court that he had reviewed all the discovery provided, that he was working long hours on the trial, and that he had seen defendant every weekend since the trial started. He also made the observation that defendant had a very disjointed view of how the trial should proceed and a poor understanding of the rules of evidence. It was Kenkel's opinion that he could not provide effective representation by acceding to defendant's demands for an "all or nothing" approach seeking a complete acquittal.

After hearing these complaints and responses, the court reconvened in open court for further consideration of the Faretta motion. The court ultimately denied the motion after finding that: (1) defendant's statement of reasons involved merely tactical disputes; (2) the quality of counsel's representation had been of a very high caliber; (3) the trial was well underway; (4) although a continuance would not be required, granting the motion would cause at least some disruption; and (5) there had been a number of requests for substitution of counsel. (See People v. Windham (1977) 19 Cal.3d 121, 128 , 137 Cal. Rptr. 8 , 560 P.2d 1187 ( Windham ) [listing guidelines for considering midtrial Faretta motions].)

*155 On July 5, 1988, defendant filed a motion in propria persona for cocounsel status, repeating many of the same complaints he made to support his previous Faretta motion. The motion was denied.

On July 25, 1988, defendant told the court he wanted another lawyer because Kenkel was not asking the questions or putting on the defense as defendant desired. In an in camera hearing, defendant complained that Kenkel had made no further attempts to find witnesses Sam and John despite assurances he would do so, that Kenkel failed to request the standard and special jury instructions drafted by defendant, and that he failed to question witnesses about matters raised by defendant. He also claimed Kenkel refused to introduce evidence of specific prior acts of violence by Eggett which, according to defendant, would show the reasonableness of his state of mind when he had Eggett tied up. Defendant was also permitted to file as exhibits the list of jury instructions he wanted, as well as eight separate lists of questions he had prepared for the following witnesses: (1) a three-page list of questions for Tom Handy; (2) a five-page list for Tom Burgess; (3) another six-page list for Burgess; (4) an eight-page list for Greg Kersting; (5) a seventeen-page list for Cantwell; (6) a nineteen-page list for Hampton; (7) a two-page list for Jyll Bond; and (8) a three-page list for Linda Lorenz. After taking a break and reviewing defendant's lists, the court announced it would not substitute counsel.

Later in the in camera hearing, defendant continued to object to Kenkel's representation, as if a motion were still pending. By that time, defendant had decided to testify in his own defense and it appeared he soon would be called to the stand. Defendant complained he did not know if he wanted counsel questioning him because counsel was not asking his proposed questions. Defendant also expressed shock that the court would find Kenkel competent without reviewing every single one of the nearly 1,300 questions prepared by defendant, and asked the court to spend several hours on such a review so that it could exercise "proper discretion" in evaluating the questions. The court refused, explaining it had looked at many of the questions and had determined they related to trial strategy and tactics. The court also refused defendant's request for permission to question witnesses subject to his counsel's objections and advisement.

At the end of the day on July 25, 1988, the court held another in camera hearing, at Kenkel's request, pertaining to defendant's decision to testify. Kenkel said he would be calling defendant as a witness the next day, even though he had advised defendant against it because he would be subject to rigorous cross-examination and impeachment with prior felony convictions. Kenkel also informed the court he had decided, despite defendant's objections, not to make further efforts to pin down the time of death more specifically than had prosecution witness Dr. Gwen Hall or to have Eggett's body exhumed in order to impeach Dr. Hall. Additionally, Kenkel spoke of his refusal to call or recall certain witnesses.

After Kenkel, defendant was given an opportunity to speak. He stated why he believed his actions on the date of the murder would justify a jury instruction regarding lawful resistance to a public offense. He also explained his reasons for wanting certain witnesses called or recalled, his theory supporting Eggett's exhumation, and his belief that the prosecutor was attempting to "blackmail" him into not testifying by threatening impeachment with supposedly remote or constitutionally infirm prior convictions. Defendant complained he had heard no response from counsel regarding his desire to consult experts regarding the effects of methamphetamine in high dosages (in order to impeach Cantwell's and Hampton's versions of the events and to support a diminished capacity defense).

On the morning of August 2, 1988, Kenkel told the court he had just visited defendant at the jail and that defendant had yelled at him and had been "totally out of line and unreasonable." Among other things, defendant accused counsel of reneging on promises to spend at least 45 minutes with him every morning to prepare for the trial, and he again complained of counsel's refusal to impeach prosecution witnesses with their prior inconsistent statements. Believing that *156 counsel did not want to bring out the truth, defendant said he could not deal with Kenkel anymore and asked that "another counsel be appointed; preferably from out of [the] area here."

Based on defendant's erratic behavior, Kenkel expressed his doubt as to defendant's competency. According to Kenkel, he and defendant had a "very agreeable, very productive meeting" the previous night (August 1, 1988). That morning, however, defendant inexplicably "wigged out" and became "virtually uncontrollable in his anger and antipathy" toward Kenkel in the holding cell. Over the prosecutor's objection, the court appointed a doctor to examine defendant that afternoon and to advise whether there should be a full hearing on the issue of his competency to proceed with the trial. (§ 1368.) The court also appointed separate counsel for defendant on the competency issue.

The following morning, based upon the report of Dr. William Lorack, the court determined there was no objective, substantial evidence upon which to justify the finding of a doubt regarding defendant's competency. Accordingly, the court denied Kenkel's request for a full competency hearing.

Having resolved that issue, the court next permitted defendant to elaborate in camera on his Faretta motion, pending from the day before. Among other things, defendant said counsel was "railroading" him by failing to present evidence of the violent character of the victim and various witnesses including Bill Cantwell, by failing to impeach Cantwell with a prior inconsistent statement regarding whether defendant snorted or injected methamphetamine at the campsite, by bringing up defendant's prior convictions in the direct examination of defendant before the court had ruled on their admissibility, and by failing to object to or otherwise counter prosecutorial questioning on prejudicial and irrelevant matters. Kenkel specifically refuted many of the charges, pointing out that defendant's proposed strategies would have been either inconsequential or even counterproductive to the defense. After examining the Windham factors (see 19 Cal.3d at p. 128 , 137 Cal.Rptr. 8 , 560 P.2d 1187 ), the court denied defendant's "motion to relieve counsel and substitute other counsel or substitute himself in pro per." The court concluded in effect that defendant and his counsel simply differed over tactics and strategy, which were "within the province of counsel."

On August 8, 1988, after the defense had rested in the guilt phase, defendant filed a 12-page, single-spaced document entitled "Defendant's Objection to Counsel Resting the Defense. Specific Objections Noted. And Faretta Motion to Defend Self." [31] The next day, the court held an in camera hearing, summarizing some 24 issues in the document as "highlights." Several of the identified issues had already been touched upon in previous motions (e.g., defendant's desire to call certain witnesses and to impeach others, and counsel's failure to locate various witnesses including the two reclusive miners known to defendant as Sam and John [32] ), while others involved additional asserted inconsistencies *157 in witness testimony and surrebuttal evidence that defendant wanted brought out at trial. In addition, defendant faulted counsel for calling a single drug counselor to support his defense instead of experts in pharmacology, toxicology, physiology, psychology and psychiatry.

Defendant also complained about Kenkel's handling of defense investigator Eastham's concession at trial on rebuttal that he had been unable to find the supposedly stolen methamphetamine oil buried in any of the locations defendant had described. The prosecutor had used that concession to cast doubt on the defense's evidence that the theft of Cantwell's methamphetamine oil led Cantwell to frame defendant for Eggett's murder. Kenkel should have brought out the fact that defendant had previously revealed some of the locations to Burgess, who was not in custody and could have removed the oil before Eastham looked for it. After asserting deficiencies in Eastham's efforts to find the oil, defendant repeated his earlier requests to be taken to the locations himself, under appropriate security, to retrieve the oil and prove it really existed.

Although Kenkel did not respond to all of defendant's objections and claims, he explained that defendant's proposed strategy for various witnesses might be damaging to the defense and disclosed that the investigation of other leads provided by defendant proved fruitless. Kenkel also reported that methamphetamine oil had been located that Sunday in Durham at a location defendant had not disclosed until Thursday afternoon. [33] Prior to that, defendant had described only three locations, one of which was on private property. After Investigator Eastham failed to find methamphetamine oil at the two public locations, Kenkel sent Investigator Nisson to retrace Eastham's steps. Nisson was likewise unsuccessful. On Sunday night, Nisson went with prosecution investigator Tony Koester to the private property previously unsearched and found a whiskey bottle there. [34]

Finally, Kenkel indicated the defense had not physically searched the general area described as Sam's and John's campsite and had not looked for the two miners since the start of trial. Kenkel noted, however, that prior to trial the defense team had looked for Sam and John all over Butte County. The defense had advertised in the newspaper and had attempted to obtain leads in pawnshops and other places where miners would trade. In Kenkel's words, "they've all been dead ends."

In denying the Faretta motion, the court again considered the quality of counsel's representation, the length and stage of the trial, and defendant's prior proclivity to request substitution of counsel or self-representation. The court also noted that all of defendant's complaints related to trial tactics, strategy and investigation and that defendant had hampered his own defense by not supplying counsel with the location of necessary physical evidence until after the defense rested. Finally, the court found that Kenkel and Stapleton had properly represented defendant and would continue to do so, and that at no time during the trial had there been a breakdown in the attorney-client relationship that interfered with counsel's representation.

On August 10, 1988, after closing arguments, defendant announced he was firing counsel. The next day, just before the jury was instructed, defendant told the court he had a conflict of interest with counsel and was suing him. After the jury was instructed, the court directed defendant to put his reasons for wanting self-representation in writing. Defendant objected to the court's requirement for a written motion and to counsel's taking any other actions on his behalf.

On August 15, 1988, while the jury was deliberating in the guilt phase, defendant submitted a document entitled "Defendant's Objections to Having Attorney Jerry Kenkel Forced Upon Him, (and Mark Stapleton Forced Upon Him). Defendant's Objections to Certain Actions of His Attornies ( sic ) in Failing to do Certain Things, and in Doing *158 Other Things that He Should Not Have Done." This time defendant accused counsel of conflicts of interest pertaining to Stapleton's previous representation of Cantwell and James Lee Halstead and Kenkel's current representation of Dan Zurcher and relationship to Jim Skidmore. His numerous other complaints included counsel's failures to object to certain questions, evidence, and arguments; to introduce evidence regarding the amount of gold found by other miners in the campsite area, defendant's back injuries, a dollar bill from Cantwell reflecting a phone number, the lack of medical attention at the jail in 1986, and evidence regarding air conditioning venting in Cantwell's van; to present rebuttal evidence or attack inconsistencies with reference to the testimony of Hampton, Cantwell, Kersting and Sergeant Handy; to move for exhumation of Eggett's body; and to rehabilitate Jyll Bond regarding Eggett's death. Defendant also objected to the fact that Burgess was given limited immunity and to the fact that the prosecution read half the jury instructions to the jury.

Treating defendant's objections as a request for a Faretta hearing, the court held an in camera hearing on August 16, 1988, after the jury had returned a guilty verdict on all charges. Both Kenkel and Stapleton testified under oath that they had reviewed and investigated the claimed conflicts previously and had concluded there was no potential conflict or connection between their representation of the named individuals and defendant's case. Defendant disputed counsel's representations and exclaimed: "[M]y counsel has lied to the Court, my counsel lied to me, quite frankly I don't want this human piece of excrement anywhere near me and that's really the way I feel about it. Mr. Stapleton is lying here, these guys knew that I was going to be convicted cause they had it all arranged for me to be convicted." Defendant then expressed his anger at Kenkel for having suggested in his closing argument that if defendant did kill Eggett, it was in response to hostile statements by Eggett which caused defendant to become enraged in his drug-induced paranoia. Despite defendant's insistence that he wanted no further contact with counsel, the court denied his request for a Faretta hearing.

On August 22, 1988, the first day of penalty phase testimony, defendant filed a document entitled "Motion for Marsden Hearing. Defendant's Objection to Further Representation by Counsel with whom Defendant has a Conflict of Interest. Defendant Further Objects to Inaction of his Counsel which Constitutes Ineffectiveness of Counsel." In that document, defendant served "notice" he was suing Kenkel and Stapleton for malpractice based upon their alleged ineffectiveness and incompetence. Attached as exhibits were a document listing mitigating evidence for counsel to investigate, a motion to strike portions of the aggravating evidence for lack of notice, a motion for a jury trial on an unadjudicated assault, and a motion relating to the presentation of chemical evidence.

At the hearing on this matter, the court noted that defendant's objections were repetitive of previous ones dealing with trial strategy and tactics. Furthermore, it viewed defendant's notice of lawsuits as a "ploy" to obtain removal of counsel. As for defendant's list of mitigating evidence, counsel confirmed he had investigated the evidence but decided against presenting witnesses who could "end up backfiring." In light of the above, the court denied the request for a Marsden/Faretta hearing. [35]

On August 23, 1988, defendant filed another Marsden request based upon counsel's asserted deficiencies at the penalty phase. In particular, defendant complained that counsel failed to properly question and object when police and victim witnesses were on the stand, that counsel failed to locate and subpoena hospital employees to testify that in 1971 defendant was not identified by an alleged victim, and that counsel failed to challenge the constitutionality of his 1965 assault conviction. The court denied the motion after counsel briefly explained his investigation and strategies on the identified matters.

*159 On September 7, 1988, while penalty phase witnesses were still being called, defendant indicated he wanted appointment of new counsel through whom he could file a new trial motion based largely on the ground of counsel's ineffectiveness. Since the trial had not yet concluded, the court denied the requested appointment and denied the motion for a new trial without prejudice on the ground it was premature.

On September 12, 1988, defendant requested another Marsden hearing. In view of the many previous Marsden hearings, the court stated it would exercise its discretion to keep the case moving but said it would allow defendant to make a record in an in camera session after closing arguments that day. With the court's permission, defendant called his mother, Bertha Walther, to the stand. Walther testified she had informed counsel of potential mitigating evidence, including various acts of heroism and kindness by defendant. [36] Kenkel testified next, explaining his reasons for not introducing the evidence described by Walther and other matters raised by defendant. This hearing was interrupted when the jury returned with its death verdict.

At the continued hearing held on November 4, 1988, both Kenkel and Investigator Nisson testified regarding the subject of Sam and John and again described their efforts to locate the two miners. Although other claimed deficiencies were also discussed at the hearing, defendant identified the failure to conduct a physical search for Sam and John as the main gist of his ineffectiveness claim. At the end of the hearing, defendant submitted a motion for a new trial (over 130 pages in length) that he himself had prepared. The court annexed that document to Kenkel's motion for a new trial and agreed to consider the ineffectiveness claims therein as part of the Marsden motion.

On November 18, 1988, the court denied Kenkel's new trial motion. That same day, the court requested Kenkel to file a written response to the ineffectiveness arguments raised in defendant's new trial motion. Kenkel did so.

On November 30, 1988, the court denied defendant's September 12, 1988, Marsden motion as both untimely and without merit. It also denied defendant's request for another attorney to assist in presenting his motion for a new trial because defendant had not demonstrated a colorable claim of ineffectiveness of counsel. The court then denied the motion for a new trial, finding no merit to any of the grounds asserted.

(b) Analysis

Once the trial against a defendant has commenced, a Faretta motion for self-representation "is addressed to the sound discretion of the trial court, which should consider such factors as the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of such a motion." ( People v. Marshall (1996) 13 Cal.4th 799, 827 , 55 Cal.Rptr.2d 347 , 919 P.2d 1280 , relying on Windham, supra, 19 Cal.3d at p. 128 , 137 Cal.Rptr. 8 , 560 P.2d 1187 ; People v. Clark (1992) 3 Cal.4th 41, 98-99 , 10 Cal.Rptr.2d 554 , 833 P.2d 561 .)

Here, when the trial court was ready to entertain defendant's Faretta motion of June 29, 1988, defendant specifically asked to address the quality of counsel's representation in camera since he would have to reveal a "good portion of the defense" in doing so. The court granted his request, later explaining that "when you get into a Faretta motion after the trial has been started, the first part of Faretta motion is in the nature of a Marsden *160 hearing and, therefore, I'm treating the first prong as a Marsden motion, and that is why the Court has closed the courtroom to the public and the District Attorney." (Italics added.) Defendant now contends the trial court agreed to treat defendant's Faretta motion additionally as a Marsden motion, and in doing so, erroneously denied it. We disagree.

A fair reading of the record discloses that, at all times, both sides and the court assumed that only a Faretta motion was presented. It is clear from the entire proceeding that when the court said it would treat the first prong of the Faretta motion as a Marsden motion, it simply meant it would hear arguments on the first Windham factor (the quality of counsel's representation) as it would in a Marsden motion, that is, outside the presence of the prosecutor so that defendant could fully address counsel's alleged deficiencies without prejudice to his case. As there was no Marsden motion before the court, the claim of error is without merit.

Defendant next contends the June 29, 1988, Faretta motion was erroneously denied. First he asserts that the request was "timely" because he could not know before the trial started that Kenkel would refuse to ask certain questions and commit other mistakes at trial that would prejudice him. Moreover, defendant argues, all of the Windham factors pointed in his favor. Defendant is wrong on both contentions.

Because the motion was made in the midst of trial, it was not timely for purposes of invoking an absolute right of self-representation under Faretta, supra, 422 U.S. 806 , 95 S.Ct. 2525 . ( People v. Hamilton (1985) 41 Cal.3d 408, 421 , 221 Cal.Rptr. 902 , 710 P.2d 981 [motion made after jury selection but before opening statements held untimely], cited with approval in People v. Hamilton (1988) 45 Cal.3d 351, 369 , 247 Cal. Rptr. 31 , 753 P.2d 1109 .) It therefore was within the court's discretion to grant or deny the request. ( People v. Marshall, supra, 13 Cal.4th at p. 827 , 55 Cal.Rptr.2d 347 , 919 P.2d 1280 ; People v. Clark, supra, 3 Cal.4th at p. 98 , 10 Cal.Rptr.2d 554 , 833 P.2d 561 .) On review we cannot say the trial court abused its discretion in assessing the Windham factors. The court could reasonably conclude that counsel's representation at trial had been of a very high caliber notwithstanding defendant's constant complaints. The court could also reasonably find that the length and stage of the proceedings, as well as the potential for disruption and defendant's prior proclivity to seek counsel's removal, favored denial of the motion for self-representation. That defendant did not seek a continuance is not determinative. ( People v. Hamilton, supra, 41 Cal.3d at p. 421 , 221 Cal.Rptr. 902 , 710 P.2d 981 .) No error appears.

Defendant also argues the trial court erred in denying his July 5, 1988, request for cocounsel status. In conclusory fashion, he contends the request should have been granted for all the same reasons that his Faretta request of June 29, 1988, should have been granted and notes that appointed counsel's continuing involvement in the case would have resulted in even less disruption. This argument is rejected. A criminal defendant has no right both to be represented by counsel and to participate in the presentation of his own case. ( People v. Clark, supra, 3 Cal.4th at p. 97 , 10 Cal.Rptr.2d 554 , 833 P.2d 561 .) As such an arrangement is generally undesirable, a court may authorize it "only upon a `substantial' showing that it will promote justice and judicial efficiency in the particular case." ( People v. Frierson (1991) 53 Cal.3d 730, 741 , 280 Cal.Rptr. 440 , 808 P.2d 1197 ; see also People v. Kirkpatrick (1994) 7 Cal.4th 988, 1004 , 30 Cal.Rptr.2d 818 , 874 P.2d 248 ; People v. Clark, supra, 3 Cal.4th at p. 97 , 10 Cal.Rptr.2d 554 , 833 P.2d 561 .) No such showing was made here.

Defendant next asserts the trial court erroneously denied the Marsden motion of July 25, 1988. He faults the court for failing to inquire whether the differences over strategy and tactics revealed a breakdown in the attorney-client relationship that justified appointment of a new attorney. We perceive no error.

As the People point out, the record reveals that despite defendant's complaints, he and his counsel communicated and cooperated in presenting the defense. For example, defendant *161 had given Kenkel lists of witness questions he had prepared. Kenkel in fact used some of these questions, although he skipped some and asked others out of sequence. Additionally, if defendant's claim to the trial court is to be believed, counsel submitted various jury instructions at defendant's insistence. Thus, while defendant and counsel had ongoing disagreements over strategy, their relationship had not suffered an irretrievable breakdown. [37]

As his next claim of error, defendant notes that, even though the trial court had denied the July 25, 1988, Marsden motion, it continued to permit him to speak as if a motion were still pending. At one point, defendant asked that he be allowed to question witnesses and that counsel be permitted to object or advise. Defendant now claims the court erred when it answered: "The Court has previously ruled on your request of him and his co-counsel. I find after start of trial all of these requests are not timely made and that vests in the Court the total discretion whether or not the motion will be granted. In exercising my discretion I'm denying all such motions." In defendant's view, that response showed a complete misunderstanding of the law in that: (1) the rule of midtrial untimeliness applies only to Faretta motions, not to Marsden motions; and (2) in neither case does the court have total discretion.

A fair reading of the record does not disclose any misunderstanding by the court. First of all, the court appeared to have made its remarks in direct response to defendant's request for what amounted to cocounsel status in the examination of witnesses. Second, whether or not the court was also referring to Marsden motions, its mention of having "total discretion" did not suggest that such motions or others were or would be denied arbitrarily or without any exercise of discretion.

Additionally, defendant contends the issues raised at the separate in camera hearing at the end of the day on July 25, 1988, obligated the court to appoint substitute counsel. We disagree. In reviewing the record, we observe that Kenkel had requested the subject hearing to register the fact that he had advised defendant against testifying at trial. Kenkel also informed the court that, contrary to defendant's wishes, he would not be pursuing certain matters at trial because he perceived them to be unhelpful or detrimental to the defense. Defendant then explained his reasons for wanting the particular matters explored and his frustration with counsel for not doing so. Even assuming a new Marsden request may be gleaned from these discussions, defendant was permitted to speak at length concerning his complaints of counsel. Nothing new, however, had happened since the Marsden hearing earlier that day that would have compelled a substitution. [38]

Defendant next challenges the trial court's denial of the Marsden motion made a week later on August 2, 1988. As mentioned above, that motion was made the same day Kenkel moved for a competency hearing based upon his observations that defendant had become inexplicably and uncontrollably angry at him even though they had had a "very agreeable, very productive meeting" *162 the previous night. According to defendant, the combination of Kenkel's observations, his belief that defendant was mentally incompetent, and defendant's statements to the court that he had been unable to sleep or "think straight" as a result of Kenkel's performance, "removed any possible doubt about the fact that the attorney-client relationship had completely disintegrated." Not only does defendant contend the court erred in failing to recognize the breakdown of the relationship, he also asserts counsel's failure to inform the court of such a breakdown constituted ineffective assistance and placed counsel and defendant in a conflict of interest.

Contrary to defendant's contentions, the record does not reflect that the attorney-client relationship had deteriorated to the point that defendant's right to effective assistance of counsel was jeopardized. ( People v. Williams, supra, 2 Cal.3d at p. 905, 88 Cal. Rptr. 208 , 471 P.2d 1008 ; see People v. Crandell, supra, 46 Cal.3d at p. 854 , 251 Cal.Rptr. 227 , 760 P.2d 423 .) Even though counsel and defendant constantly disagreed over which defense strategies were best under the circumstances, they continued to communicate productively with each other and each appeared to be putting his best efforts into trying the case. While defendant never ceased to express his frustration with counsel's choice of strategy and tactics, that alone did not warrant counsel's substitution. ( People v. Williams, supra, 2 Cal.3d at p. 905, 88 Cal.Rptr. 208 , 471 P.2d 1008 .)

We do not subscribe to defendant's view that counsel somehow misstepped in failing to report an irretrievable breakdown to the court. The fact that defendant was cooperative with counsel the night before his sudden outburst (and previously, as well) was indicative of a functioning relationship. The outburst itself did not signal a breakdown of the attorney-client relationship such as to require counsel's removal. Rather, as noted in Dr. Lorack's report to the court, defendant acknowledged having to "find some way to release tension and anger he had since he refrained in [ sic ] doing this in the Courtroom." That counsel sought a competency hearing after the unexpected episode suggests only that counsel was concerned about his client and wanted to ascertain whether he was capable of proceeding with the trial. [39]

Defendant next claims the trial court erred in denying the two separate Faretta motions filed on August 8 and 15, 1988. He contends the court should have done more to resolve supposed contradictions between the claims of defendant and counsel over the soundness of their conflicting defense strategies (raised in both motions) and should have inquired further into the alleged conflicts of interest pertaining to Stapleton's previous representation of Cantwell and Kenkel's then current representation of Dan Zurcher (raised in the August 15 motion). Once again we find no error. For each motion, the trial court allowed defendant to explain his dissatisfaction. On both occasions, the court acted well within its discretion to deny self-representation based upon the quality of counsel's representation, the late stage of the proceedings, the potential for disruption and defendant's demonstrated proclivity to seek substitution of counsel. [40] ( Windham, supra, 19 Cal.3d at p. 128 , 137 Cal.Rptr. 8 , 560 P.2d 1187 .)

We also reject defendant's related contention that the trial court erred in denying his Marsden request of August 15, 1988. In its inquiry into the matter, the court heard counsel's detailed responses on the alleged conflicts of interests and other points, as well as counsel's representation that they had investigated thoroughly all matters raised by defendant during the course of the case. *163 Based on the record, we see no abuse of discretion in the court's failure to substitute counsel. ( People v. Webster, supra, 54 Cal.3d at p. 435 , 285 Cal.Rptr. 31 , 814 P.2d 1273 .)

Likewise, we reject defendant's claim that the court erred in denying his subsequent Faretta and Marsden motion of August 22, 1988. For one thing, the record does not reflect an unequivocal assertion of the right of self-representation. [41] ( People v. Marshall, supra, 15 Cal.4th at p. 23, 61 Cal.Rptr.2d 84 , 931 P.2d 262 .) Even assuming it did, some of the factors supporting denial of self-representation were even stronger than before. (See Windham, supra, 19 Cal.3d at p. 128 , 137 Cal.Rptr. 8 , 560 P.2d 1187 [stage of the proceedings, defendant's prior proclivity to substitute counsel].) In addition, the record once again fails to demonstrate any breakdown in the attorney-client relationship jeopardizing defendant's right to effective assistance of counsel. ( People v. Williams, supra, 2 Cal.3d at p. 905, 88 Cal.Rptr. 208 , 471 P.2d 1008 .) That this time defendant purported to serve notice of a malpractice action does not compel a different result. Given the circumstances, the court could properly reject defendant's notice of intent to sue as a ploy to create a conflict of interest. (See People v. Horton (1995) 11 Cal.4th 1068, 1106 , 47 Cal.Rptr.2d 516 , 906 P.2d 478 [defendant's filing of malpractice action against appointed counsel did not create any actual conflict of interest necessitating counsel's withdrawal]; People v. Smith, supra, 6 Cal.4th at p. 696, 25 Cal.Rptr.2d 122 , 863 P.2d 192 ["a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict"].)

We also conclude the trial court did not err in denying defendant's Marsden motion of August 23, 1988. As the record demonstrates, nothing of significance had happened to affect the attorney-client relationship since the previous Marsden motion.

With regard to his last Marsden request of September 12, 1988, defendant claims the court should have removed counsel in light of his showing that counsel abdicated their duty in conducting the defense and did not investigate or present mitigating evidence related by his mother and himself.

Viewed as a whole, the record fails to demonstrate any abuse of discretion by the court. Kenkel testified that investigators were sent to New York, San Diego and Arizona to track down the leads provided by defendant. [42] Based upon these efforts, Kenkel and Stapleton developed all penalty phase materials they felt were appropriate and would not open "any doors on cross examination that would introduce adverse evidence." To explain why certain witnesses were not called, Kenkel identified the potentially harmful consequences of eliciting testimony from them. [43] Kenkel also explained his tactical decisions to not introduce *164 evidence of defendant's 27 Bible diplomas because of their potential to inflame the jury and to not present business records from defendant's short-lived logging business because of their limited usefulness. In addition, Kenkel stated that other of defendant's claims could not be verified even after investigation, such as his claim of charity toward 40 unnamed families in transient hotels during 1983 and 1984, his claim that Sergeant Handy had lied during the guilt phase about a certain distance, and his claim that a knife assault at the jail could not have happened as the prosecutor described. Finally, in answer to defendant's complaint that no physical search for Sam and John had been undertaken as promised, counsel explained his conclusion that a physical search would not have been fruitful in view of his unsuccessful endeavors to find the miners through other avenues.

In sum, the record did not demonstrate that counsel incompetently investigated or handled the matters raised by defendant. While it is true, as defendant argues, that counsel did not attempt to locate every single potential witness identified by defendant and his mother, "[w]e have never required counsel to investigate all prospective witnesses...." ( People v. Jackson (1980) 28 Cal.3d 264, 289 , 168 Cal.Rptr. 603 , 618 P.2d 149 .) Furthermore, the record amply refuted defendant's suggestion that the penalty phase investigation was left to the investigators without counsel's meaningful involvement. [44]

Defendant next claims he was entitled to appointment of separate counsel to assist in presenting the "ineffectiveness assistance aspects of his new trial motion." He is wrong. Although a defendant may seek and obtain (upon a proper showing) substitute counsel at any stage of the proceeding in trial court ( People v. Smith, supra, 6 Cal.4th at pp. 695-696, 25 Cal.Rptr.2d 122 , 863 P.2d 192 ), a defendant is not entitled to simultaneous representation by two attorneys, one of whom is challenging the other's competence ( People v. Hines, supra, 15 Cal.4th at p. 1024, 64 Cal.Rptr.2d 594 , 938 P.2d 388 ). The court did not err in refusing appointment of separate counsel for that limited purpose.

Defendant also appears to assert he was entitled to substitution of counsel in view of People v. Stewart (1985) 171 Cal.App.3d 388 , 217 Cal.Rptr. 306 , which suggested that new counsel must be provided at the post-conviction stage when a defendant seeks a new trial based upon counsel's incompetence and has made a "colorable claim" involving counsel's conduct outside the courtroom. (171 Cal. App.3d at pp. 396-397, 217 Cal.Rptr. 306 .) Defendant emphasizes language in that opinion concluding that a "colorable claim" is shown when the defendant "credibly establishes the possibility that his trial counsel failed to perform with reasonable competence and that, as a result, a determination more favorable to the defendant might have resulted in the absence of counsel's failings." ( People v. Stewart, supra, 171 Cal.App.3d at p. 396 , 217 Cal.Rptr. 306 .)

In People v. Smith, supra, 6 Cal.4th 684 , 25 Cal.Rptr.2d 122 , 863 P.2d 192 , we concluded that the burden for obtaining appointment of substitute counsel, as expressed in Marsden and its progeny (e.g., People v. Webster, supra, 54 Cal.3d at p. 435 , 285 Cal.Rptr. 31 , 814 P.2d 1273 ; People v. Crandell, supra, 46 Cal.3d at p. 854 , 251 Cal.Rptr. 227 , 760 P.2d 423 ), applies equally preconviction and postconviction. In so concluding, we examined People v. Stewart, supra, 171 Cal. App.3d 388 , 217 Cal.Rptr.2d 306 , and rejected the notion that its "colorable claim" language supports either a greater right to substitute counsel or a reduced burden of proof *165 at the postconviction stage than at any earlier point. ( People v. Smith, supra, 6 Cal.4th at pp. 693-694, 696, 25 Cal.Rptr.2d 122 , 863 P.2d 192 ; see also People v. Memro, supra, 11 Cal.4th at p. 859, 47 Cal.Rptr.2d 219 , 905 P.2d 1305 .) [45]

In applying the Marsden standard, we conclude the court did not err in denying any separate request for substitute counsel. To the extent such a request incorporated claims made in connection with his last Marsden request of September 12, 1988, the denial was proper for all of the reasons stated above. To the extent the request also incorporated the ineffectiveness claims contained in defendant's new trial motion, those claims simply renewed previous ineffectiveness claims which the court had already inquired into and rejected. In addition, the court requested and received counsel's written responses to other allegations supposedly contained in the new trial motion. Based upon this record, we find no error in the court's refusal to appoint substitute counsel at the postconviction stage. Contrary to defendant's assertions otherwise, the court was fully capable of evaluating defendant's renewed claims and assessing counsel's competence in light of the extensive inquiries previously undertaken and its observations of the entire trial and counsel's performance throughout. No abuse of discretion appears. [46]

B. Jury Selection and Juror Misconduct Issues

1. Denial of Defense's Challenges for Cause

Defendant contends the trial court improperly denied his challenges for cause to prospective jurors Stanton Allison, Ron Costa, Everett Wilson and Melinda Caven, who he claims were prejudicially disposed in favor of the death penalty. He claims his federal constitutional right to an impartial jury was violated by the court's failure to follow the proper standard as articulated in Wainwright v. Witt (1985) 469 U.S. 412, 424 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 .

The point need not detain us long, for defendant cannot demonstrate prejudice even assuming the court erred as to all four prospective jurors. Since none of those potential jurors actually sat on the ultimate jury, none could have tainted the panel with his or her alleged bias. [47] ( People v. Gordon (1990) 50 Cal.3d 1223, 1247 , 270 Cal.Rptr. 451 , 792 P.2d 251 ; see also People v. Clark, supra, 3 Cal.4th at p. 155 , 10 Cal.Rptr.2d 554 , 833 P.2d 561 .) Moreover, when the jury was accepted and sworn in this case, the defense had 10 remaining peremptory challenges. [48] Our decisions make clear that the failure to exhaust peremptory challenges bars a defendant from attacking the trial court's decisions on appeal. ( People v. Ramos (1997) 15 Cal.4th 1133, 1158-1159 , 64 Cal.Rptr.2d 892 , 938 P.2d 950 ; People v. Raley (1992) 2 Cal.4th 870, 904-905 , 8 Cal. Rptr.2d 678 , 830 P.2d 712 ; People v. Morris (1991) 53 Cal.3d 152, 185 , 279 Cal.Rptr. 720 , 807 P.2d 949 .) We decline defendant's invitation to reconsider those decisions here.

2. Granting of Prosecution's Challenges for Cause

Defendant contends the trial court erred and violated his federal constitutional *166 rights in dismissing prospective jurors Colette Hill and Carol Thatcher for cause. He emphasizes that even though Hill expressed doubt whether she could vote to impose the death penalty, she affirmed repeatedly that she would follow the court's instructions and consider the death penalty. Likewise, defendant asserts that Thatcher's stated willingness to consider the death penalty only in a "really, really awful" case did not signify an unwillingness to follow the law or the court's instructions.

"In a capital case, a prospective juror may be excluded if the juror's views on capital punishment would `prevent or substantially impair' the performance of the juror's duties." ( People v. Price (1991) 1 Cal.4th 324, 402 , 3 Cal.Rptr.2d 106 , 821 P.2d 610 , citing Wainwright v. Witt, supra, 469 U.S. at p. 424 , 105 S.Ct. at p. 852 .) "A prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate." ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1146 , 36 Cal.Rptr.2d 235 , 885 P.2d 1 .) "On appeal, we will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous." ( People v. Mayfield (1997) 14 Cal.4th 668, 727 , 60 Cal.Rptr.2d 1 , 928 P.2d 485 ; People v. Wash (1993) 6 Cal.4th 215, 254 , 24 Cal. Rptr.2d 421 , 861 P.2d 1107 .)

The voir dire of prospective jurors Hill and Thatcher amply supports the trial court's decision to dismiss them. Although some of Hill's responses to questioning reflected a willingness to follow the law and the court's instructions, others furnished substantial evidence of her inability to conscientiously consider a death verdict. [49] Thatcher's responses also raised sufficient doubts as to whether she could impose the death penalty in light of her admittedly "strong bias against putting someone to death." [50] Given this record, we reject defendant's claims of state and federal constitutional error.

Defendant requests us to reconsider our adherence to Wainwright v. Witt, supra, 469 U.S. 412 , 105 S.Ct. 844 , because the standard it articulates is vague and readily manipulated. Defendant asserts that application of the Witt standard in California has never resulted in a reversal, and that here in particular, the court applied that standard in a discriminatory manner to produce a jury biased toward death in violation of his due process and equal protection rights. On this last point, defendant asserts that Hill and Thatcher were the exact counterparts of Allison, Costa, Wilson and Caven. He reasons that if the court refused to dismiss the latter four for cause, then it should also have refused to dismiss Hill and Thatcher.

We see no basis for rejecting the constitutional standard set by the United States Supreme Court. While there were some similarities in particular phrases used by the dismissed and the retained jurors in expressing their views toward one penalty or the other, they were not overwhelming. In addition, the court properly considered each juror's *167 particular demeanor in deciding whether to dismiss. [51] ( Wainwright v. Witt, supra, 469 U.S. at p. 428 , 105 S.Ct. at p. 854 [noting that the question of a juror's bias may turn upon determinations of demeanor and credibility that are peculiarly within a trial judge's province].)

3. Inquiry Concerning Juror Larry Field

On July 18, 1988, before the start of the defense case at the guilt phase, defense counsel alerted the court that Juror Larry Field had been at the jail visiting Ann Baxmeyer, who was incarcerated with defense witness Jyll Bond. Counsel reported that Bond said she had told Baxmeyer all about her potential testimony and that she may have told Baxmeyer that people she thought were friends of Cantwell's had threatened to kill her if she were to testify. When questioned outside the presence of the other jurors, Field said that Baxmeyer, a close friend of his, had not mentioned Jyll Bond or anything concerning defendant's case. Field agreed to not visit Baxmeyer at the jail until the trial was over.

Ten days later, Field informed the court he had received a distressing letter from Baxmeyer and requested permission to talk with her by telephone. After hearing Field's assurances that he would immediately leave or cut off the conversation if Baxmeyer started to talk about the trial, both defense counsel and the prosecutor concurred in the court's decision to permit Field to have contact with Baxmeyer.

On August 18, 1988, Field told the court he had married Baxmeyer, who was still in jail. When asked if anyone had tried to discuss the case with him, Field acknowledged he once had to "drop" a conversation when someone started to mention a letter received from defendant several years before. He also mentioned that Baxmeyer was concerned because of things said to her, and that his refusal to discuss the case was causing "some stress and conflict" between them. Field confirmed, however, that no one had told him anything about the facts of the case and that he was trying to the best of his ability not to hear or see anything about the case. [52] The court permitted Field to remain on the jury, but admonished him that he could not discuss the case with his wife or anybody else, and that he would have to be "more on guard" in light of his visits to the jail. Neither the defense nor the prosecution requested a further inquiry or moved to replace Field with an alternate juror.

Defendant now contends the court's August 18 inquiry was inadequate and violated due process because Field was not asked to relate the specific questions and responses in his conversations with Baxmeyer. In particular, he argues that Field's statement — "things have been said to [Baxmeyer] and she's been questioning me about them and I tell her I can't fully explain what's going on because of which it has to do with what I'm doing here" — established that Field had in fact received information about the case from Baxmeyer. Defendant also contends that defense counsel's failure to demand a further inquiry constituted ineffective assistance.

A trial court must conduct a sufficient inquiry when put on notice that good cause to discharge a juror may exist. ( People v. Davis (1995) 10 Cal.4th 463, 547 , 41 Cal.Rptr.2d 826 , 896 P.2d 119 ; see People v. Burgener (1986) 41 Cal.3d 505, 520 , 224 Cal. Rptr. 112 , 714 P.2d 1251 .) In this case, the court fulfilled its duty of inquiry. After ascertaining the general nature of the situation involving Baxmeyer, the court specifically asked for and received Field's assurances that he had not discussed the case with her or anyone else. Unlike defendant, we do not view the quoted statement by Field as necessarily reflecting any receipt of information about the case. Had the tenor of the statement actually been as defendant urges, it is likely that additional questioning would have been requested or undertaken. As it stood, *168 all participants to the inquiry — the court, the prosecutor, and defense counsel — appeared satisfied with Field's responses. The claim of error is rejected.

Defendant's claim of ineffective assistance is likewise rejected. Since the court conducted a reasonable inquiry, defense counsel did not render ineffective assistance by failing to demand more. We also observe that, during jury voir dire, Field had expressed certain attitudes and knowledge about the effects of drug use that might benefit the defense during trial. Thus we cannot rule out the possibility that counsel made a tactical choice to avoid a strategy that may have led to Field's dismissal. (See People v. Burgener, supra, 41 Cal.3d at p. 521, 224 Cal.Rptr. 112 , 714 P.2d 1251 .)

C. Guilt Phase Issues

1. Assault on Christine Racowski

Christine Racowski testified that in the summer of 1985, she stayed for a week at the mining camp with Eggett and defendant. When defendant accused Racowski of trying to sabotage a gold dredge and punched her in the face, Eggett said, "That's it, I'm pulling out." In response, defendant threatened to "pump some lead" into Racowski and grabbed his .22-caliber rifle and pointed it at her. Eggett stepped between them and struggled with defendant for the gun, which fired while pointed in the air. Eggett was upset with defendant's aggressive behavior toward Racowski, and the gold dredging partnership between Eggett and defendant ended at that time.

In permitting the foregoing testimony, the court concluded that evidence concerning "the break-up of the partnership" offered proof of defendant's motive'. On appeal, defendant contends the court erred in rejecting arguments that evidence of that prior act of violence was irrelevant and unduly prejudicial (Evid.Code, § 352), and that it was inadmissible evidence of character ( id., § 1101).

When a trial court overrules a defendant's objections that evidence is irrelevant, unduly prejudicial and inadmissible character evidence, we review the rulings for abuse of discretion. ( People v. Alvarez (1996) 14 Cal.4th 155, 214-215 , 58 Cal.Rptr.2d 385 , 926 P.2d 365 .)

We first consider whether the trial court abused its discretion regarding the relevance of Racowski's testimony. We think not. According to the evidence at trial, on the day of the July 6, 1986, confrontation, defendant expressed a desire to "get" Eggett for things that happened in the preceding year: At least two prosecution witnesses (Hampton and Cantwell) and one defense witness (Burgess) testified that defendant, apparently upon recognizing Eggett as part of the group entering the camp, shouted statements to the effect of "Rich, I'm back. I've come to get you" and "Eggett, you SOB, it's taken me a year but I've got you now." Although there was evidence that defendant had additional and. perhaps more significant reasons for wanting to get Eggett, Cantwell heard defendant refer to Eggett as a snitch repeatedly and complain that Eggett had "turned him in" the year before for, among other things, assaulting "a girl" that had been in camp. Burgess also recalled that defendant yelled at Eggett regarding a woman that came to the camp the year before. Consistent with that testimony, Racowski testified that, at Eggett's request, she had filled out a report for the sheriff explaining the events at the camp the previous summer. Racowski's testimony was therefore relevant for purposes of shedding light on the roots of defendant's hostility toward Eggett and demonstrating a motive for the torture and killing of Eggett.

We next examine whether the trial court abused its discretion in determining that the probative value of the evidence outweighed its potential for undue prejudice. (Evid.Code, § 352.) Again we find no error. As indicated above, evidence of defendant's assault on Racowski was probative on the issue of motive because the misconduct precipitated the breakdown of defendant's relationship with Eggett and, additionally, was known by defendant to have been reported to the sheriff. Thus, the testimony offered considerable support for the prosecution's theory that defendant tortured and killed Eggett for revenge. Conversely, the evidence was not unduly prejudicial within the meaning of Evidence Code section 352 because it did not *169 amount to "`"evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues."( People v. Padilla (1995) 11 Cal.4th 891, 925 , 47 Cal. Rptr.2d 426 , 906 P.2d 388 ; People v. Gionis (1995) 9 Cal.4th 1196, 1214 , 40 Cal.Rptr.2d 456 , 892 P.2d 1199 ; People v. Garceau (1993) 6 Cal.4th 140, 178 , 24 Cal.Rptr.2d 664 , 862 P.2d 664 .)

We now turn to defendant's third contention, that evidence of his assault on Racowski was inadmissible to prove he had the propensity or disposition to commit the crime charged. (Evid.Code, § 1101, subd. (a); People v. Guerrero (1976) 16 Cal.3d 719, 724 , 129 Cal.Rptr. 166 , 548 P.2d 366 .) Because Racowski's testimony was offered as proof of motive, the trial court correctly determined that its admission would not violate the statutory restriction on the introduction of such evidence. (Evid.Code, § 1101, subd. (b); see People v. Cummings (1993) 4 Cal.4th 1233, 1289 , 18 Cal.Rptr.2d 796 , 850 P.2d 1 .) Moreover, the court's instructions minimized any danger that the jury might rely upon Racowski's testimony for an improper purpose. [53] (See People v. Garceau, supra, 6 Cal.4th at p. 178, 24 Cal.Rptr.2d 664 , 862 P.2d 664 .) Defendant's claim of prejudicial error fails. [54]

2. Sabotage of Eggett's Jeep

During cross-examination, defense counsel asked Racowski when she gave her statement to the sheriff concerning defendant's assault. She responded: "I believe it was after [Richard Eggett's] Jeep had been sabotaged." On redirect, Racowski indicated that defendant had been suspected of vandalizing Eggett's Jeep and that Eggett had asked her to write the statement "as part of other statements about the vandalism and Mr. Barnett." Defense counsel did not object to the testimony.

Thereafter, the prosecutor called Dave McGee to testify about the vandalism. At defense counsel's request, McGee was directed to not state and conclusions as to who may have vandalized the Jeep unless based upon personal knowledge. McGee testified that late in the summer of 1985, he went to the camp at Eggett's request to help remove a dredge. While there, McGee observed tension between Eggett and defendant, who also was present. Defendant left without saying anything after Eggett said he did not need defendant's services anymore. (See ante, fn. 4.) McGee and Eggett later discovered that Eggett's Jeep would not start. McGee subsequently saw the Jeep engine had been vandalized and destroyed by a screw. Eggett and McGee reported the incident to the sheriff, and it was this written report to which Racowski's statement of the assault was appended.

While testifying on direct examination, McGee blurted out at one point that defendant "sabotaged the vehicle." The court sustained defense counsel's objection on the ground that the testimony was non-responsive to the prosecutor's question.

Defendant argues McGee should not have been permitted to describe the sabotage of the Jeep because there was no "competent" *170 proof of defendant's involvement in the incident. Without such proof, defendant contends, the sabotage evidence was irrelevant and served only to impeach his character in violation of Evidence Code section 1101. We disagree.

Whether or not defendant's involvement in the sabotage was adequately established, the relevance of McGee's testimony lay in the fact that he and Eggett attributed the sabotage to defendant in their report to the sheriff. According to Cantwell, defendant angrily complained on the day of the murder that Eggett had "turned him in" for "putting machine screws down the carburetor" of Eggett's Jeep. Thus McGee's testimony, like that of Racowski concerning the assault, supported the prosecution's theory that defendant tortured and killed Eggett for revenge.

Because McGee's testimony was relevant to the issue of motive, its admission did not violate the statutory restriction contained in Evidence Code section 1101, subdivision (b). And again, the trial court's limiting instructions minimized any danger that the jury would rely upon the evidence for an improper purpose. (See ante, fn. 53; see People v. Garceau, supra, 6 Cal.4th at p. 178, 24 Cal. Rptr.2d 664 , 862 P.2d 664 .) [55]

Defendant also argues the trial court erred in admitting Racowski's reference to the Jeep's sabotage because it was speculative and based upon hearsay. However, defense counsel's failure to make such objections bars defendant from pursuing this issue on appeal. (Evid.Code, § 353.) But even assuming counsel was ineffective on this point, defendant cannot establish prejudice. Inasmuch as McGee's more detailed testimony concerning the alleged sabotage was properly admitted, it is not reasonably probable that a determination more favorable to defendant would have resulted in the absence of Racowski's brief reference to the subject. Again we find no cause to reverse. ( People v. Roolrigues, supra, 8 Cal.4th at p. 1126 , 36 Cal.Rptr.2d 235 , 885 P.2d 1 ; People v. Zapien (1993) 4 Cal.4th 929, 981 , 17 Cal. Rptr.2d 122 , 846 P.2d 704 .)

3. Evidence Regarding Tire Tracks

Bill Cantwell and Lloyd Curtis Hampton both testified that after leaving the camp, they drove their motorcycles to the intersection between an access road and the dead-end road where Richard Eggett had been left, and went down the dead-end road to look for Eggett. Upon hearing the sound of a Jeep, they decided to leave. As they attempted to do so, however, their motorcycles got stuck so they fled on foot to Cantwell's trailer. Conversely, Burgess, who left the camp after Cantwell and Hampton, testified he saw "two motorcycle tracks going in and two motorcycle coming out" where the dead-end and access roads intersected. Burgess followed the tracks until the road crossed a creek on a cement slab. At that point he turned left (toward Highway 32) and the tracks continued to the right (toward Cantwell's trailer).

The People called Sergeant Handy to rebut Burgess's testimony. Handy testified he had been at the subject intersection twice: once in July of 1986 and once in July of 1988. He described the intersection as appearing substantially the same both times, with pine needles covering the surface area. Handy said he went to the intersection in 1988 to test whether Cantwell's motorcycle would leave tire impressions on the road. According to Handy, the pine needles prevented any impressions. Handy viewed and identified a series of photographs illustrating that fact. On cross-examination, Handy testified that Cantwell was present at the July 1988 visit to the intersection, that Cantwell's motorcycle was not operational at that time, and that no tire tracks were made when Cantwell sat on the motorcycle and pushed it along.

Defense counsel did not object to Handy's testimony concerning the 1988 visit *171 to the intersection or to his explanation of the photographs. Subsequently, however, counsel objected "as to relevancy 1988 photos" when the prosecutor asked that the photographs be received in evidence. The trial court deferred a ruling until the end of the prosecution's case, at which time it admitted the photographs "for the limited purpose of illustrating the officers testimony to the extent that they do."

Defendant now contends the trial court erred in admitting evidence of Handy's 1988 "experiment" with motorcycle tire tracks. Although defendant acknowledges the event took place at the same time of year and with the same motorcycle as the original occurrence, he claims the conditions were not substantially identical or similar because the motorcycle was pushed, not driven, in 1988. Requesting that we take judicial notice of certain scientifically based conclusions not advanced at trial, defendant seeks to show that the difference in the conditions rendered evidence of the experiment irrelevant and inadmissible. [56]

As an initial matter, we observe counsel's subsequent objection to admission of the photographs into evidence was inadequate to preserve for review the issues of admissibility concerning Handy's preceding testimony and explanation of the photographs and so-called experiment. (See People v. Zapien, supra, 4 Cal.4th at pp. 979-980, 17 Cal. Rptr.2d 122 , 846 P.2d 704 ; People v. Coleman (1988) 46 Cal.3d 749, 777-778 , 251 Cal. Rptr. 83 , 759 P.2d 1260 .) Not only was the objection untimely, but counsel made no reference to any claimed dissimilarity of conditions, other than the time factor, or to any perceived improper experiment.

Even if we assume the issues had been preserved for review (or assume counsel was ineffective in failing to properly object), defendant cannot establish either that the evidence was improperly admitted or that it resulted in any prejudice. Significantly, defendant's appellate contentions rest upon the validity of scientific conclusions not supported by any evidence in the record. (See ante, fn. 56.) Because such conclusions are reasonably subject to dispute, they are not proper matters for judicial notice (cf. Evid. Code, § 452, subd. (h)) and we decline to consider them. The claims are rejected.

k. Location of the Allegedly Stolen Methamphetamine Oil

Defendant testified on direct examination that in 1985 he stole 25 gallons of methamphetamine oil from Cantwell's van. Defendant took the oil, which he had found stored in the van in five large bucket-type containers, to Butte Creek Canyon. On cross-examination, defendant testified he hid the oil in the canyon and offered to take the prosecutor "to get some of it" in exchange for immunity on possession charges.

The prosecutor did not respond to the offer, but asked if defendant had told investigators where the methamphetamine oil was located. Defense counsel did not object. Defendant ultimately disclosed he had given defense investigator Eastham very accurate directions and had drawn a detailed map for him, but that Eastham was unable to locate the oil. Defendant also blurted out that Eastham must have been blind to have not found the oil. Defendant then identified the four locations where he claimed to have hidden the oil: "There was ... one spot right near Okie Dam; one spot down in the end of Helltown Road and one spot up near Sunflower Ranch, and then one up near that on the hillside further."

The prosecutor subsequently sought to call Eastham as a witness to ask whether he had searched the locations described by defendant. Defense counsel objected on attorney work-product and privilege grounds. Finding that defendant's testimony had waived any attorney-client privilege for communications between defendant and Eastham as to the whereabouts of the oil, the court permitted *172 inquiries into the limited area whether or not Eastham was given a map, whether he followed the directions in the map and whether he found anything, but ruled out questioning concerning the contents of the map and the locations searched. On the stand, Eastham testified he went to two of the three locations on defendant's map but avoided the third because it was on private property. He dug at the two locations but found nothing.

Defendant then requested through counsel "that he be suitably secured and the Butte County Sheriffs office directed to drive him to Chico and environs in an attempt to locate the remaining [methamphetamine] oil." After the prosecutor objected on security grounds, the court denied the request.

Several days later (and after both sides had rested), defense investigators followed a new map from defendant and found a whiskey bottle containing liquid behind a wall of a structure in one location and two more bottles with liquid buried in another location. Dave Kemp, a criminalist with the Department of Justice, tested the contents of the whiskey bottle and determined it contained a trace amount of methamphetamine but had no ephedrine or P-2-P, the two principal agents in making methamphetamine. The defense requested a one-week continuance to conduct further testing to impeach Kemp's findings. The request was denied and none of the evidence was put before the jury.

Defendant first argues that Investigator Eastham's observations in looking for the hidden methamphetamine oil were protected by Evidence Code section 912, subdivision (c), since they were made as a consequence of protected communications. (See People v. Meredith (1981) 29 Cal.3d 682 , 175 Cal.Rptr. 612 , 631 P.2d 46 .) Defendant contends the trial court erred in finding a waiver of the privilege, and that counsel was ineffective for failing to protect against disclosure of his communications to Eastham and Eastham's observations.

The People do not dispute that the foregoing communications and observations were initially protected by the attorney-client privilege. The People argue, however, that a waiver was properly found and that counsel was not ineffective in failing to object to defendant's testimony which resulted in the waiver. We agree.

Subject to statutory exceptions not implicated here, the right of any person to claim the attorney-client privilege is waived with respect to a communication protected by that privilege "if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone." (Evid. Code, § 912, subd. (a).) In this case, defendant did not claim the attorney-client privilege before giving testimony regarding the map and directions he gave to Eastham and Eastham's failure to find the allegedly hidden methamphetamine oil. Because defendant voluntarily disclosed such information without asserting the privilege, the trial court properly allowed the United questioning of Eastham with respect to whether he was given a map, whether he followed the directions in the map and whether he found anything.

To prevail on the ineffectiveness claim, defendant must demonstrate that counsel's performance was objectively unreasonable and that, but for counsel's errors, the result of the proceeding would have been different. ( People v. Ledesma (1987) 43 Cal.3d 171, 217-218 , 233 Cal.Rptr. 404 , 729 P.2d 839 .) However, "a claim of ineffective assistance of counsel will not be reviewed on appeal absent a record from which it may be ascertained that there is no reasonable tactical explanation for an attorney's alleged failure to perform in a manner to be expected of a reasonably competent attorney." ( People v. Milner (1988) 45 Cal.3d 227, 241 , 246 Cal.Rptr. 713 , 753 P.2d 669 ; see People v. Zapien, supra, 4 Cal.4th at p. 980, 17 Cal. Rptr.2d 122 , 846 P.2d 704 ; People v. Ledesma, supra, 43 Cal.3d at p. 218 , 233 Cal.Rptr. 404 , 729 P.2d 839 .)

Here the appellate record suggests no reason for counsel's failure to object to defendant's testimony, nor was counsel asked to give a reason. As defendant acknowledges, the claimed theft of valuable methamphetamine oil from Cantwell was central to the credibility of both defendant *173 and Cantwell. The record shows that defendant was eager to testify regarding his alleged theft of the oil and Cantwell's alleged anger toward defendant (and Eggett) over the theft. Since the existence of the oil was important to defendant's version of the facts, counsel may reasonably have determined that the jury wanted to hear an explanation for its whereabouts. Furthermore, counsel may reasonably have expected defendant to testify he had buried the oil in several remote places that were too difficult for defense investigators to pinpoint without defendant's presence at the locations. Such testimony would have helped the defense. Since the record sheds no light on the reasons for counsel's conduct, we must reject the claim of ineffective assistance. [57] ( People v. Zapien, supra, 4 Cal.4th at p. 980, 17 Cal. Rptr.2d 122 , 846 P.2d 704 ; People v. Milner, supra, 45 Cal.3d at p. 241, 246 Cal.Rptr. 713 , 753 P.2d 669 ; People v. Ledesma, supra, 43 Cal.3d at p. 218 , 233 Cal.Rptr. 404 , 729 P.2d 839 .)

Defendant next contends the trial court erroneously refused to release him from custody so that he could guide the police to the supposedly hidden methamphetamine oil. We disagree. The record reflects that defendant was involved in at least two attempts to escape from custody. One involved his disappearance from the county hospital in Chico in 1985. The other was reflected in his 1965 conviction for felony attempted prisoner escape in New York. In light of defendant's background, the security concerns cited by the prosecutor were sufficient to justify the court's decision in this capital case. [58]

Finally, defendant argues the court erroneously denied the defense a one-week continuance to retest the substances found after both sides had rested. He also asserts counsel was constitutionally ineffective for failing to present evidence that chemicals were in fact found at locations revealed by defendant. On the latter point, defendant claims such evidence would have countered Eastham's testimony that he had searched the locations on defendant's map and found nothing. These claims are properly rejected.

"`The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.'" ( People v. Zapien, supra, 4 Cal.4th at p. 972, 17 Cal.Rptr.2d 122 , 846 P.2d 704 , quoting People v. Laursen (1972) 8 Cal.3d 192, 204 , 104 Cal.Rptr. 425 , 501 P.2d 1145 .) In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction. ( Ibid. )

Defendant has not demonstrated any abuse of discretion. As the record shows, the trial court did grant a brief continuance to allow the criminalist from the Department of Justice to conduct testing on the newly discovered evidence. However, once the criminalist confirmed that no methamphetamine oil had been found, the court properly determined that a continuance was unnecessary.

*174 Likewise, defendant has not established any prejudice. Although the trial court directed that the evidence be preserved to allow for further testing, defendant has not cited any portion of the record showing that subsequent testing disclosed any methamphetamine oil. We have no basis for concluding, therefore, that the defense's proposed testing would have produced relevant evidence.

Because the record is devoid of any evidence that the belatedly discovered bottles contained methamphetamine oil, and because there was no probative value to the fact that other chemicals were found at the locations described by defendant, counsel cannot be faulted for making no attempt to reopen the case.

5. Impeachment of Kenny Clumpus

Defense witness Kenny Clumpus testified that in 1987, Bill Cantwell said he had gone to Butte Creek in July of 1986 to get methamphetamine oil that had been stolen by defendant and possibly Eggett. According to defendant, this testimony corroborated the claim that Cantwell wanted to revenge the theft of the oil and showed that Cantwell had a motive for killing Eggett. Over the defense's objection, the trial court permitted Clumpus to be impeached by proof of two felony convictions under section 4532 for nonviolent escape.

Defendant contends the prior convictions were inadmissible for impeachment purposes because the least adjudicated elements of a violation of section 4532 do not necessarily involve moral turpitude, that is, the readiness to do evil. ( People v. Castro (1985) 38 Cal.3d 301, 314 , 211 Cal.Rptr. 719 , 696 P.2d 111 .)

In People v. Lang (1989) 49 Cal.3d 991 , 264 Cal.Rptr. 386 , 782 P.2d 627 , we rejected an identical argument. There we concluded: "[E]scape without force or violence necessarily involves either deceit, breach of trust, or stealth to effectuate the escape and a willingness to incur the serious risk of violent injury to law enforcement officers and bystanders typically involved in the process of recapturing an escaped prisoner." ( Id. at p. 1010, 264 Cal.Rptr. 386 , 782 P.2d 627 [violation of Oregon escape statute], relying upon People v. Waldecker (1987) 195 Cal.App.3d 1152, 1158 , 241 Cal.Rptr. 650 [violation of § 4532].) We decline to reconsider the issue here.

6. Excluded Evidence of Alleged Threat by Cantwell

Defense witness Jyll Bond testified regarding three encounters she had with Bill Cantwell after Eggett's murder. The substance of her testimony was as follows. In January of 1987, Cantwell told Bond that defendant did not murder Eggett and that Cantwell knew who did. Cantwell also stated to the effect that it "served [defendant] right for stealing [liquid methamphetamine] from him, that he should be framed for it." Approximately a week later, Cantwell told Bond he had killed Eggett, showed her the "shotgun" or "rifle" he used, and said he was going to take the weapon "out of state and get rid of it." The third encounter occurred in July of 1988, less than two weeks prior to the time Bond took the stand. At that time, Bond had seen Cantwell unexpectedly while she was absent without leave from the Shasta County jail. Cantwell told Bond it was good she had left the jail because he knew she would not be on the stand.

The defense had sought to introduce Bond's testimony that while she was at the Shasta County jail, Frank Muretto, acting on behalf of Cantwell, had threatened Bond's life and the life of her daughter to discourage Bond from testifying. The court excluded the evidence on hearsay grounds.

Defendant contends the evidence of Muretto's threat was not hearsay because it had not been offered to establish that Muretto was in fact acting on behalf of Cantwell in threatening Bond. In defendant's view, the evidence was admissible for the nonhearsay purpose of rehabilitating Bond after the prosecutor attempted to impeach her credibility by showing she was an "escapee" from jail at the time of the third encounter with Cantwell. [59] In addition to claiming trial *175 court error, defendant asserts ineffectiveness of counsel in the failure to secure admission of the evidence. [60]

The People dispute the contention that the alleged escape was used for impeachment purposes. The People also point out that the prosecutor had vigorously sought to have any and all evidence concerning the escape excluded as irrelevant and that it was the defense that elicited the evidence from Bond.

We need not resolve whether the court erred or whether counsel misstepped: There could have been no prejudice with respect to Bond's credibility. While testimony regarding the threat, if believed by the jury, may have rehabilitated Bond with reference to her escapee status, her credibility was, in any event, properly impeached with a felony conviction for welfare fraud. Moreover, the reliability of her testimony incriminating Cantwell was put into serious question by her claim that Cantwell showed her the "shotgun" or "rifle" used to kill Eggett. As the jury was well aware, Eggett had been stabbed to death.

7. Defendant's Escape From the County Hospital

As just discussed, defense witnesses Clumpus and Bond gave testimony to support defendant's claim that he had stolen millions of dollars' worth of methamphetamine oil from Cantwell and that Cantwell arranged to have Eggett killed and defendant framed for the murder. Consistent with that testimony, defendant relied on his supposed fear of Cantwell to explain a number of his actions, including his use of aliases and disguises and his departures from Chico both in 1985 and again after the killing.

As relevant to the instant claim, defendant testified on direct examination that Cantwell had been after him for the theft of the methamphetamine oil and that defendant fled from Chico to San Diego in mid-September 1985 after Cantwell shot defendant in his hand and in his leg. On cross-examination, defendant stated he had been staying with Cheryl Lake, but had left Chico around mid-September and had been hiding from Cantwell.

To rebut the above testimony, the prosecutor sought to show that defendant had fled Chico to escape from the police. Initially the prosecutor tried to introduce a police report reflecting defendant's arrest or detention on September 2, 1985, and his subsequent "escape" or. "walk-away" from the Chico Community Memorial Hospital while still in police custody. The trial court overruled the defense's relevancy objection but held the report inadmissible because its disclosure was untimely under the court's discovery order. Later, however, the court allowed the prosecutor to question defendant regarding what he had told Cheryl Lake about his leaving Chico, but precluded inquiry into the hospital matter.

The prosecutor then asked defendant: "You didn't tell [Lake] that you had escaped from the police; had to get out of town?" Defendant replied: "No. I had a misdemeanor failure to identify, and that was about a week before I left town...." Defendant said he had told Lake "at one point that I had a misdemeanor failure to appear; that I had walked away from the County Hospital or where I was being treated for a medical problem.... No — to my understanding I was not arrested, but I did understand that — they probably would have like to have talked to me." Defendant denied that he had left town to avoid the police, and reiterated that he had departed to avoid Cantwell.

After defendant volunteered testimony concerning his walking away from the hospital, the court permitted the prosecutor to ask whether defendant had been arrested on September 2, 1985, and whether he had walked away from the hospital while in police custody. Defendant testified police approached him while he was unloading a van in a parking lot. He gave the name of Lee Kenneth Barrette and a false birthdate. The officer asked for documentary identification and arrested defendant when he failed to *176 provide it. Defendant claimed that after he was placed in the holding cell, he was beaten up by officers and then taken to the hospital. Defendant denied any recollection of being told at the hospital that he was cleared to return to the jail. There were no police at the hospital and defendant "finally just left" after staying for more than an hour.

The prosecutor then called Officer James Carter as a rebuttal witness. Carter testified he saw a van with an expired registration stop in a parking lot. The driver identified himself as Lee Kenneth Barrette but had no identification. After finding no match for Barrette in the California driver's license system, Carter arrested defendant and transported him to the police station.

Upon hearing this testimony, defense counsel objected that the arrest had been made under section 647, subdivision (e) and was therefore unconstitutional under Kolender v. Lawson (1983) 461 U.S. 352 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 . [61] The prosecutor responded that the arrest was under Vehicle Code section 40302, subdivision (a), a fact confirmed by Carter. Undeterred, defense counsel argued that the Vehicle Code provision was unconstitutional on the same grounds as section 647, subdivision (e) and moved to suppress the balance of the testimony regarding defendant's postarrest custody.

The trial court permitted Carter to testify, finding he had probable cause to arrest defendant for driving without a license. Carter testified that defendant, while at the police station, seemed to have a seizure and was taken to the hospital. No one had beaten defendant. Defendant left the hospital at some point although he was still in custody.

Finally, the doctor who examined defendant testified he had cleared defendant's return to jail after diagnosing him as not having had a true seizure. Defendant did not say anything about being beaten, and a small hematoma on his forehead could have been caused by falling and hitting his head. Before the police arrived, defendant was permitted to go to the bathroom and subsequently disappeared.

Defendant makes several contentions with respect to the evidence of his escape from the county hospital. None has any merit.

Defendant first argues the evidence should have been excluded under Evidence Code section 352.' As he concedes, however, counsel objected only on relevancy grounds and made no objection to the perceived prejudicial effect of the evidence. Consequently, that issue has not been preserved for review. ( People v. Kirkpatrick, supra, 7 Cal.4th at pp. 1014-1015, 30 Cal.Rptr.2d 818 , 874 P.2d 248 .)

Defendant next argues counsel's failure to object on Evidence Code section 352 grounds constituted ineffective assistance. We disagree. As discussed above, the defense had presented testimony from defendant and others to show that Cantwell was angry and violent toward defendant for stealing his highly valuable methamphetamine oil, that defendant fled Chico twice to avoid Cantwell, and that Cantwell killed Eggett and framed defendant to revenge the theft. Consequently, evidence showing that defendant had reasons other than the avoidance of Cantwell for leaving town was relevant to disprove the defense. Because such evidence was neither inflammatory nor misleading with respect to any other issue, [62] defendant *177 fails to demonstrate that an objection on section 352 grounds would have been successful. (See People v. Neely (1993) 6 Cal.4th 877, 896-897 , 26 Cal.Rptr.2d 189 , 864 P.2d 460 .)

Defendant also contends the evidence should have been excluded in its entirety because the police report concerning his 1985 arrest was not made available to the defense until late in the trial. Defendant concedes the normal remedy for noncompliance with a discovery order is not suppression of evidence, but a continuance ( People v. Robbins (1988) 45 Cal.3d 867, 884 , 248 Cal. Rptr. 172 , 755 P.2d 355 ; People v. Reyes (1974) 12 Cal.3d 486, 502 , 116 Cal.Rptr. 217 , 526 P.2d 225 ), but argues he would not have testified as to his reason for leaving town had he known at the outset of the police report's existence. We refuse to speculate as to what evidence may or may not have been introduced had the report been timely produced. Defendant had the opportunity to seek a continuance in order to develop a response. He was entitled to no more.

Finally, defendant argues the evidence of his arrest and walk-away from the hospital should have been excluded because his arrest pursuant to Vehicle Code section 40302, subdivision (a), Was unlawful. The People disagree that the arrest was unlawful, and assert that, in any event, its legality is not at issue here. We agree the validity of the 1985 arrest was and is of no significance to any issue in this case. Whether or not the arrest was legal, the circumstances of the arrest and subsequent walk-away from custody were relevant to rebut defendant's testimony that he fled Chico to avoid Cantwell. Defendant provides no authority suggesting that the validity of the arrest should determine the admissibility of such evidence.

8. Alleged Prosecutorial Misconduct

(a) References to Defendant's Past Aliases

The information as filed contained 19 aliases for defendant. The court ruled, however, that only the names "Eric Walther" (defendant's birth name) and "Lee Barnett" would be read during the jury voir dire. Prior to the trial, the court directed the prosecutor to advise all witnesses to make "absolutely no reference or any inference to anything concerning the Defendant's past" without first advising the court.

On cross-examination, the prosecutor asked defendant whether he used the names "Daniel Osborn" (or Osburn), "Lee Barrett" and "Edmond Wanke." Defendant indicated he had used the first two names for cashing checks from his tree trimming service and for tax evasion purposes. The third name he had used in Calgary, Canada in 1970. When asked about the names "Charles Bradley" and "Johnson," defendant responded he had probably used some 15 or 16 different names over the years. The prosecutor then inquired: "Sure it isn't about 23 names, sir." When defense counsel objected to the line of questioning as irrelevant and beyond the scope of direct examination, the prosecutor defended the interrogation by asserting, incorrectly, that defendant had attempted to imply that he had only changed his name recently. The court ruled it would "permit the question thus far."

The prosecutor then asked whether defendant had used the name "Bradley C. Bubb." After defendant denied doing so, counsel again objected, arguing in a bench session that the prosecutor's questioning implied a number of felony convictions and was unduly prejudicial. Although the prosecutor had made no actual references to prior convictions, the court sustained the objection. With the court's permission, however, the prosecutor inquired into defendant's reasons for having changed his name so many times. Defendant replied he wanted to make it difficult for the Internal Revenue Service to track him down, and to keep people—"IRS, police, or anyone else"—from finding him.

At the end of defendant's testimony, defense counsel moved for a mistrial based in part upon the prosecutor's questioning regarding the 23 or so aliases. The motion was denied. [63]

*178 Defendant contends on appeal that the prosecutor committed prejudicial misconduct by violating the court's pretrial order and eliciting testimony from defendant about his use of numerous aliases to evade taxes and police contact. According to defendant, the improper inferences arising from the prosecutor's tactics and the evidence of aliases undermined his state and federal rights to due process, a fair trial, and a reliable guilt and penalty determination.

In general, a prosecutor commits misconduct by using deceptive or reprehensible methods of persuasion. ( People v. Alvarez, supra, 14 Cal.4th at p. 213, 58 Cal. Rptr.2d 385 , 926 P.2d 365 ; People v. Price, supra, 1 Cal.4th at p. 447, 3 Cal.Rptr.2d 106 , 821 P.2d 610 .) It is generally not necessary for the defendant to show the prosecutor acted in bad faith because the prosecutor's conduct is evaluated in accordance with an objective standard. ( People v. Alvarez, supra, 14 Cal.4th at p. 213, 58 Cal.Rptr.2d 385 , 926 P.2d 365 .) "`To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.'" ( People v. Bradford (1997) 15 Cal.4th 1229, 1333 , 65 Cal.Rptr.2d 145 , 939 P.2d 259 and cases cited therein; see also People v. Rowland (1992) 4 Cal.4th 238, 274 , 14 Cal.Rptr.2d 377 , 841 P.2d 897 ; People v. Baines (1981) 30 Cal.3d 143, 149 , 177 Cal. Rptr. 861 , 635 P.2d 455 [applying waiver principles to misconduct claim involving prosecutor's reference to defendant's alleged use of false name].)

To the extent defendant bases his misconduct claim upon the prosecutor's questioning of defendant and other witnesses regarding the names "Daniel Osburn" or "Lee Barrett," it clearly is without merit. The trial court had specifically determined that the Osburn alias was relevant to the case because defendant had identified himself by that name to officers at the time of his arrest for Eggett's murder. That determination was proper. As for the Barrett alias, many of those who testified at the trial, including the victims, had known defendant by that name. Defendant has not shown how the prosecutor's clarification of that fact served to persuade the jury in a deceptive or reprehensible way.

As for the balance of the claim, the People do not appear to dispute that timely objections were made or that the prosecutor's questions regarding defendant's many other aliases over the years constituted misconduct, although it is claimed the prosecutor acted out of a misunderstanding of defendant's testimony and not in bad faith. Nor do the People appear to contest defendant's claim that the elicited evidence was lacking in relevance. Rather, it is the People's position that a reversal is unwarranted because defendant cannot demonstrate any prejudice from the perceived misconduct.

Even assuming for purposes of argument that the prosecutor's actions constituted misconduct, we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. ( People v. Watson (1956) 46 Cal.2d 818, 836 , 299 P.2d 243 .) Applying this standard, we agree no reversal is warranted.

Considered in combination with defendant's prior convictions for transportation of a stolen vehicle in 1966 and theft in 1970 (introduced for impeachment purposes), defendant's testimony that he had used a number of aliases since 1966 to evade taxes, the IRS, the police and others may have given the impression that defendant had a long history of theft offenses and related attempts to avoid law enforcement and theft victims. But since defendant's credibility hinged on convincing the jury that he had stolen methamphetamine oil worth between $2 and $4 million from Cantwell and had sought to avoid Cantwell, allusions to a possible background of theft offenses involving the use of aliases could not have affected the defense case adversely. The prosecutor's questioning did not suggest defendant's possible *179 involvement in violent crimes; neither did the elicited testimony.

In any event, there was overwhelming circumstantial evidence pointing to defendant as Richard Eggett's murderer. In the year preceding the murder, Dave McGee heard defendant threaten to kill Eggett. The night before the murder, Margarete Haynes heard defendant say he was going to kill "Rich." Eyewitnesses testified that when the two groups unexpectedly met each o

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