Full opinion text
Opinion KENNARD, J. A jury convicted defendant Gary Dale Hines of two counts of murder (Pen. Code, § 187), with these special circumstances: robbery murder (§ 190.2, former subd. (a)(17)(i)), burglary murder (§ 190.2, former subd. (a)(17)(vii)), and multiple murder (§ 190.2, subd. (a)(3)). The jury also convicted him of robbery (§ 211), burglary (§ 459), grand theft of an automobile (§ 487, former subd. 3), and possession of a firearm by a convicted felon (§ 12021), and found that he was armed with a firearm in the commission of the robbery, the burglary, and the two murders (§ 12022.5). At the penalty phase, the jury returned a verdict of death. Defendant’s appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Facts A. Guilt Phase—Prosecution’s Case In 1985, Lawrence “Bud” Roberts, his wife Kathryn, and their daughters, Donna and Michelle, moved from Grand Ronde, in Oregon, to the North Highlands area of Sacramento County, California. In the summer of 1986, when Donna was 15 years old and Michelle was 10, the family moved from North Highlands to a house at 4840 Priscilla Lane in south Sacramento. At that time, Rebecca Palanuk, a friend of Donna Roberts from Grand Ronde, stayed with the Roberts family for three weeks, and helped them move to their new home. Palanuk had a brief romance with defendant, Gary Dale Hines. Defendant had visited Palanuk once at the Robertses’ North Highlands house and saw her three times at the south Sacramento house. When defendant noticed Bud Roberts’s pink fiberglass replica of a 1923 Ford Model-T roadster in the garage, he told Palanuk that he was going to “get” the roadster “one way or another.” After defendant spent a night in a motel with Palanuk and Donna Roberts, Palanuk told defendant she did not want to see him again. About the same time, defendant’s probation officer told him not to see Palanuk. In September 1986, at the request of a mutual friend, Viola DuCoing and Justin Comer gave defendant and two companions, Jamie Pyle and Mary Ann Poindexter, a ride from Auburn to Sacramento. During the drive, DuCoing, Comer, Pyle, and Poindexter all heard defendant say that the next time he went to court, he would go in a pink roadster. Defendant also told an acquaintance, Terri Wilson, that he was going to “repossess” a “real nice roadster” from “a friend.” Jamie Pyle spent the night of September 14, 1986, at the Sacramento home of Steve Tabor. Also present were defendant and several other people. During the evening, defendant played with a pearl-handled pistol. Early the next morning (September 15), Pyle and two others drove defendant and Randal Houseman to a location in south Sacramento that was unfamiliar to Pyle, and dropped them off. About 10:30 that morning, Donna Roberts called Jiy Williams, a friend who had lived next door to the Roberts family when they lived in Grand Ronde, Oregon. According to Williams, Donna sounded “(k]ind of nervous, scared.” Williams heard two and possibly three male voices in the background; near the end of the conversation, he heard one of the voices tell Donna, “Hurry up and get off the phone.” Williams asked who was present, and Donna told him. That afternoon, Michelle Roberts came to the home of a neighbor, Steven Mejia, crying, and told him that she thought her mother had been killed. Mejia called the police. At the Roberts home, the police found the bodies of Kathryn and Donna Roberts. Both victims had suffered multiple gunshot wounds. Donna had been blindfolded, her mouth gagged with socks, and her hands and feet bound with shoestrings and a telephone cord. The master bedroom had been ransacked. Missing from the home were the pink roadster, the purses of Kathryn and Donna, and several rifles and pistols kept in a gun case. In addition, a videocassette recorder (VCR) had been moved from the living room to the garage. Nine separate witnesses saw two White males driving Bud Roberts’s pink roadster through the streets of Sacramento between noon and 1:30 p.m. on September 15, the day that Donna and Kathryn Roberts were killed. Most of the witnesses testified that the men were in their late teens or early 20’s. (Defendant was 20 years old at the time; Houseman was 16.) Four witnesses (Jeffrey Doyle, George Perez, Lynette Douke, and James Quirk) identified Randal Houseman as the passenger in the car. Another witness (William Johnson) identified defendant as the driver. That afternoon, defendant and Houseman drove the roadster to Steve Tabor’s home, arriving about 2:00 p.m. A neighbor of Tabor’s, Diane Mallett, tentatively identified defendant as the driver of the roadster, and identified Houseman as the only passenger. At Tabor’s home, defendant told his friends Terri Wilson and Mary Ann Poindexter that the roadster belonged to him. Around 3:00 p.m., defendant and Houseman drove the roadster to the nearby home of Viola DuCoing, where defendant told Justin Comer that the roadster belonged to him. Defendant and Houseman left 15 minutes later and returned to Tabor’s home. That evening, defendant and Houseman drove the roadster to the home of Terri Wilson. According to Wilson, defendant and Houseman brought shotguns or rifles into the house, which they claimed were theirs. Defendant asked Wilson for sheets and blankets to cover the car. That same evening, two of Wilson’s neighbors, James Carpenter and his daughter Christie, noticed the roadster at Wilson’s home. Early the next morning, September 16, 1986, James Carpenter read a newspaper story about the murders and the roadster; after determining that the car was still at the Wilson home, he called the police. Police officers placed Wilson’s home under surveillance. When an old pickup truck left the residence, police officers tried to detain it, but the driver took off at high speed. The police pursued the truck until it crashed into a fence, and arrested the two occupants: Frank Hiler (Terri Wilson’s boyfriend), and Cyndi Wilson (Terri’s sister). In the cab of the pickup, police found five rifles that had been stolen from the victims’ home, and were wrapped in a quilt from the victims’ bed. Also in the truck was a purse belonging to Cyndi Wilson, which contained a .22-caliber bullet and a list of the guns found at the Roberts house. At 9:30 that morning, Officer Ken Walker arrested defendant at Terri Wilson’s home. The officer found defendant sitting in a living room chair. Next to the chair was a tote bag belonging to murder victim Donna Roberts. The bag contained the ignition switch from the Robertses’ roadster, a starter pistol and pocket knife belonging to Bud Roberts, some plastic baggies, and a loaded .22-caliber High Standard revolver. Jamie Pyle identified the revolver as the pearl-handled pistol she had seen defendant playing with the night before the murders, and she said that defendant had also been holding it on the morning of his arrest. On a small table in front of the chair where defendant had been sitting were two handwritten notes, each containing a list of the guns stolen from the Roberts home, with a price next to each gun. David Crowe, an examiner of questioned documents for the California Department of Justice, testified that defendant had written one of the notes and that Randal Houseman had written the other. Houseman was also in Terri Wilson’s living room when defendant was arrested. Beneath the couch on which Houseman was sitting was a loaded handgun that belonged to Bud Roberts. Behind Wilson’s house, police found the stolen roadster partially covered with blankets and cardboard. Robert Springer, a supervising identification technician for the Sacramento Police Department, testified that a palm print on a wall of the entry hall of the Roberts home matched defendant’s, as did fingerprints on the roadster, on the lists of stolen guns, on the baggies found in Donna Roberts’s tote bag, and on the VCR in the Robertses’ garage. Springer also found finger and palm prints made by Houseman on the entryway to the Roberts home, the baggies in the tote bag, the roadster, and the gun lists. Criminalist Robert Garbutt testified that bullets found at the scene of the murders had rifling characteristics similar to test shots fired from the .22-caliber High Standard revolver that was found in Donna Roberts’s tote bag, the gun defendant had been playing with the night before the murders. Garbutt could not, however, conclusively identify the revolver as the murder weapon. He also testified that he found tiny spots of blood on the pants and shoes defendant was wearing at the time of his arrest, and blood on the shirt Houseman was wearing when he was arrested. A pathologist, Dr. Thomas Amott, testified that Donna Roberts had been shot four times: in her right eye, her left thigh, the middle of her back, and a close-range shot behind her right ear. The gag on her mouth had been tied so tightly that it had caused tears of the frenulum, the tissue connecting the tongue to the floor of the mouth. Kathryn Roberts, like her daughter Donna, had been shot behind the right ear at close range; she also had been shot in her left wrist and twice in the back. In addition, she suffered these injuries: two head lacerations that were inflicted by a blunt object such as a crowbar or pistol butt; several stab wounds to her neck, possibly inflicted by scissors; several large bruises; defensive wounds on her hands that broke bones in a thumb and two fingers; and purplish hemorrhages in the skin of her neck that could have been caused by forcefully applied fingertips. B. Guilt Phase—Defense Case Defendant, testifying in his own behalf, admitted that he participated in stealing the Robertses’ pink roadster, but he denied playing any role in the murders of Donna and Kathryn Roberts. Defendant said that on the day the murders took place, he had gone with Randal Houseman to the Roberts home to talk to Rebecca Palanuk to find out whether she was pregnant, as he had heard. (Defendant claimed he was unaware that Palanuk had returned to Oregon and was no longer staying with the Roberts family.) At defendant’s request, Houseman went to the door to see if Palanuk was home, while defendant, who had been warned by his probation officer to stay away from the home, waited at a nearby bus stop. After waiting for more than half an horn: for Houseman to return, defendant walked up to the house. He saw Houseman in the garage; “a whole bunch of stuff’ was in the pink roadster. While defendant “hot-wired” the car, Houseman entered the house. When Houseman returned, he and defendant drove away in the roadster. Defendant denied telling prosecution witnesses DuCoing, Comer, Pyle, and Poindexter that the next time he went to court he would go in a roadster, denied entering the Roberts home on the day of the murders, and denied any knowledge of the killings. On rebuttal, the prosecution introduced a tape recording of a conversation between defendant and Randal Houseman that took place in a holding cell at the jail after their arrest, in which defendant made statements contrary to his trial testimony. (The contents of the tape recording will be discussed in pt. II.L., post.) C. Penalty Phase—Prosecution’s Case David Frye testified that on April 27, 1984, he telephoned the home of Teresa Smith, his former girlfriend and the mother of his son. When defendant answered, Frye told him to leave the house; defendant responded with profanities. Frye then drove to Smith’s house and walked up to the front door, where defendant was standing. Defendant cocked a sawed-off shotgun, pointed it at Frye and said, “I will blow your fucking head off.” Frye entered the house, telling defendant he was going to call the police. Defendant left. Larry Wilson, a visitor at the Smith home, confirmed Frye’s account of this incident. He said that defendant had loaded the gun before Frye arrived, and that Frye, who was over six feet tall and weighed over two hundred pounds, was very angry and was ready to fight defendant when he arrived at the house. Deputy Sheriff Earl Warren III, assigned to the Sacramento County jail, stated that defendant, on the day after his arrest, used profanity, threatened to throw soap bars at Warren and to kick him in the face, and physically resisted Warren’s efforts to force him to stand facing the wall. Later that day, defendant said to Warren: “I am going to kill you. This is a threat. You’re dead.” Six months later, while Deputy Warren was searching defendant’s belongings in his jail cell, defendant told Warren, “Stop going through my stuff or I will kick you in the face.” Deputy Sheriff James Cooper testified that he and defendant had several “verbal altercations” while defendant was in custody awaiting trial and that on one occasion defendant told him, “I am going to fuck you up.” Scott French, a reserve deputy with the Sacramento County Sheriff’s Department who worked at the jail, testified that on August 28, 1987, he heard defendant say of Deputy Cooper that defendant would “beat his ass down” and that “his days are short.” Cooper was not present at the time. Deputy Sheriff Steve Linebarger stated that on February 15, 1988, while searching defendant’s jail cell, he found in defendant’s mattress a six-inch plastic knife, bound with cloth on one end and sharpened on both edges. D. Penalty Phase—Defense Case Frita Hines, defendant’s aunt, testified that she had known defendant since he was nine years old. When defendant was approximately 14 years old, his father moved to another state with defendant’s sister and 2 brothers, leaving defendant in the custody of his mother. Defendant’s mother, an alcoholic who was hospitalized frequently for alcohol-related illnesses, was unable to care for defendant and allowed him to do whatever he liked. She died three years after defendant’s father had left. Defendant often visited Frita Hines while he was a teenager and lived at her home for some time. Defendant behaved well at Hines’s home, and took care of her in 1985, when she had emergency surgery. Hines expressed her love for defendant, and asked the jury not to sentence him to death. Denise Nicol testified that she had dated defendant for a few months and broke up with him in August 1986, shortly before his arrest in this case. At first, defendant treated her well, but later their relationship deteriorated, largely because of their use of drugs. She, too, asked the jury to spare defendant’s life. Richard O’Toole, a teacher, stated that defendant was one of his students at a Rio Linda continuation school from the seventh or eighth grade until the tenth grade. Defendant was not a disciplinary problem and often talked to O’Toole about his broken home. Dr. Edward Grover, a staff psychologist at Camarillo State Hospital, interviewed defendant and gave this opinion: Defendant suffers from an “antisocial personality disorder,” which is associated with poor bonding between mother and child in the early stages of development. If sentenced to prison, defendant would at first rebel against the prison’s “authority structure,” but would “mellow out” within 10 years. Ultimately defendant could have a productive life in prison, a conclusion Dr. Grover based in part on his experience as an intern at the California Men’s Colony, a prison in San Luis Obispo. To rebut the testimony of prosecution witnesses David Frye and Larry Wilson that defendant had assaulted Frye with a sawed-off shotgun, defendant called Lisa Smith, Wilson’s sister. Smith said she was present on the day the confrontation between defendant and Frye occurred. Frye had threatened to “beat the hell out of’ defendant. She described Frye as a violent man; he once broke her jaw and he kicked her sister in the stomach when she was pregnant. Defendant was simply defending himself when he pointed the gun at Frye. She claimed the gun was a flare gun, not a sawed-off shotgun. To counter Deputy Warren’s testimony that defendant had threatened to kill him on the day after defendant’s arrest, defendant called Joe Tinker, an inmate at the county jail on the day of the alleged threats. On that day, according to Tinker, Deputy Warren and other deputies came to defendant’s jail cell and asked defendant to remove his clothes so that they could take photographs of him. Tinker then heard sounds as if the officers were beating defendant. Inmates, Tinker said, commonly use threats and profanity against the jailers. II. Pretrial and Guilt Phase Issues A. Marsden Motions 1. Background On three occasions (twice before trial and once during jury selection), defendant moved, under People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44], for the discharge of his appointed attorneys and for appointment of other counsel to represent him. Each time, the trial court denied the motion after conducting an in camera hearing on the issue. Defendant made his first Marsden motion on December 18,1986, when he was arraigned in superior court before Judge Ronald W. Tochterman. When the court asked defendant why he wanted his attorneys replaced, defendant replied that lead counsel Bradley Holmes was “not doing his job.” Asked by the court to be more specific, defendant complained that Holmes had not kept him informed as to what was taking place in court, had not shown him a discovery motion before filing it, and had not kept his promise to send an investigator to the jail to talk to him. The court asked Attorney Holmes to comment. Holmes said that earlier in the day he had given defendant all of the discovery furnished by the prosecutor. He had as yet been unable to have defendant listen to 18 or 20 tape-recorded statements of witnesses that had been furnished in discovery, but he was trying to find a means to do so. Although Holmes had been appointed to represent defendant in September 1986, it was not until November that defendant had provided sufficient facts for Holmes to start an investigation. Holmes had retained an investigator who would begin work as soon as he had finished going through defendant’s file. Holmes had visited defendant at the jail on a number of occasions, had talked to him frequently on the telephone, had given him copies of all motions filed, and had interviewed some witnesses. Defendant then complained that he had not received copies of all of the police reports turned over to the defense by the prosecution. Attorney Holmes replied that he had given defendant copies of all the reports, and that defendant’s mistaken belief that some were missing was caused by the confusing manner in which the district attorney’s office had numbered the pages of the reports. The court denied the motion. Defendant made a second Marsden motion on June 19, 1987. On that day, the trial court, after denying the prosecutor’s motion to join defendant’s case for trial with that of his accomplice, Randal Houseman, asked if defendant would waive time so that his trial could be held after Houseman’s. Defendant refused to waive time, and asked for a new attorney. Judge Tochterman conducted a second in camera hearing, again asking defendant to state his reasons for wanting counsel removed. Defendant replied that he and lead counsel Holmes “cannot communicate with each other,” and that every time he attempted to say anything to Holmes, Holmes interrupted him. He also complained that Holmes had not filed a motion to suppress evidence under section 1538.5 and other unspecified motions. In response, lead counsel Holmes explained that he had prepared a motion to suppress evidence, but had not yet filed it for tactical reasons, and that he intended to file it just before trial. He believed that communication between defendant and himself had been “pretty good” and that much of defendant’s discomfort with him arose from the court’s request that defendant waive time until after the trial of his accomplice, Houseman. Defendant, Holmes said, was eager to go to trial and was therefore reluctant to waive time. Before this particular appearance in court, Holmes had not discussed with defendant the possibility that a time waiver of this length might be appropriate. Holmes expressed confidence that if given a chance to discuss the situation with defendant more fully, the problem could be worked out. Defendant confirmed that he had been reluctant to waive time. In response to further inquiries from the court, he asserted that he lacked a relationship of trust with Holmes, but he did not specify any other problems between them. The court denied the motion, finding that Attorney Holmes had given defendant no reason not to trust him, and that any lack of cooperation was attributable to defendant, not to his counsel. On March 2, 1988, during jury selection, defendant made a third Marsden motion, this time before Judge Rothwell B. Mason, who was assigned to hear the trial. When defendant asserted that “confusion” between him and his attorneys had been “erupting,” the trial court asked defendant to elaborate. Defendant said he could not do so immediately, so the court suggested that defendant “give it some thought,” and “sit down with a pad and pencil” and come up with specific reasons for his dissatisfaction with his counsel. Once defendant had done so, the court stated, it would hold a formal hearing. Defendant agreed. Jury selection then continued. Five days later, on March 7, the court held a formal hearing on defendant’s Marsden motion. Defendant explained that he had difficulty communicating with Attorney Holmes and that Holmes’s attitude had changed for the worse after defendant had made his most recent Marsden motion. Defendant added that he had written to the California Appellate Project and the Northern California Coalition Against the Death Penalty asking for help, and he showed the court the letters he had received in response. He offered no particulars of the alleged difficulties in communicating with lead counsel Holmes. The trial court denied the motion. 2. Duty of inquiry Defendant faults the trial court for not conducting a more extensive inquiry into defendant’s dissatisfaction with his trial counsel. In Marsden, we held that “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” (People v. Marsden, supra, 2 Cal.3d at p. 124.) Thus, “[w]hen a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate.” (People v. Webster (1991) 54 Cal.3d 411, 435 [285 Cal.Rptr. 31, 814 P.2d 1273].) That occurred here. As set forth in the preceding section, the first two in camera Marsden hearings conducted by the court were quite thorough. On each occasion, the court repeatedly asked defendant to clarify the reasons for his dissatisfaction with counsel, and thereafter questioned defendant’s lead attorney at length to determine whether defendant’s allegations warranted counsel’s replacement. Although the third hearing was not as thorough as the first two, the court again made great efforts to have defendant explain the nature of the difficulties defendant was having with counsel. When defendant was unable to do so, the court gave defendant as much time as he needed to formulate his reasons for wanting different counsel, In short, at each of the three Marsden hearings the trial court fully complied with its duty to ascertain the nature of the problems defendant claimed he was having with his appointed counsel. 3. Appointment of independent counsel Defendant faults the trial court for not appointing independent counsel to assist him in arguing that he was entitled to replacement of his appointed counsel. He argues that because he was young (21 years old at the time of trial) and not well educated (a high school dropout, according to the probation report), he could not clearly articulate the reasons why he believed his attorneys should be replaced. He points out that a trial court must appoint counsel to assist a defendant moving for a new trial on the grounds of ineffective assistance of counsel whenever “a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. . . .” (People v. Smith (1993) 6 Cal.4th 684, 696 [25 Cal.Rptr.2d 122, 863 P.2d 192]; see also People v. Stewart (1985) 171 Cal.App.3d 388 [217 Cal.Rptr. 306].) But Smith holds only that in such situations the trial court should replace the defendant’s existing counsel with a new attorney; it does not suggest that a defendant should ever be simultaneously represented by two attorneys, one of whom is challenging the other’s competence. Defendant, moreover, did not ask the trial court to appoint independent counsel to assist him in making his Marsden motion, and the trial court acted properly when it did not appoint such counsel on its own initiative. Unlike a hearing on a motion for a new trial, a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement. Appointment of independent counsel to assist a defendant in making a Marsden motion is likely to cause unnecessary delay, and may damage the attorney-client relationship in those cases in which the trial court ultimately concludes that the motion should be denied. We see no need for trial courts to appoint independent counsel to assist defendants making such motions. (See People v. Smith, supra, 6 Cal.4th at p. 695 [“We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant.”]; People v. Daniels (1991) 52 Cal.3d 815, 848 [277 Cal.Rptr. 122, 802 P.2d 906].) According to defendant, the trial court’s failure to appoint independent counsel to assist him in making his Marsden motion denied him the right to counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by article I, section 15 of the California Constitution. Defendant, however, was represented by counsel, albeit by counsel with whom he had expressed dissatisfaction and hence was seeking to have discharged. Defendant cites no authority holding that an accused has a constitutional right to the assistance of a separate attorney to argue that appointed trial counsel is ineffective and should be replaced, and we decline to so hold. 4. Denial of the Marsden motions Defendant contends that the trial court erred when it denied each of his three Marsden motions. He argues that the hearings conducted on those motions demonstrated a “significant disagreement as to tactics and strategy” between defendant and his trial counsel, and that there was a “substantial deterioration” of the attorney-client relationship. We perceive no error. A trial court should grant a defendant’s Marsden motion only when the defendant has made “a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation” (People v. Crandell (1988) 46 Cal.3d 833, 859 [251 Cal.Rptr. 227, 760 P.2d 423]), or stated slightly differently, “if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result” (People v. Smith, supra, 6 Cal.4th at p. 696). Defendant made no such showing here; rather, he merely made vague, unsubstantiated allegations that he and his lead attorney had trouble communicating. Defense counsel’s explanations at the Marsden hearing, set forth earlier, showed that the asserted communication problems were not insoluble and had not given rise to such an irreconcilable conflict that ineffective representation was likely to result. Under the circumstances, the trial court properly concluded that there was no need to replace defendant’s counsel. Defendant faults the trial court for its comments, made in the course of denying defendant’s third Marsden motion, that counsel’s courtroom performance had been “superb” and that the court’s “own subjective perception” was that defendant “couldn’t be further wrong” in believing that counsel’s voir dire during the previous few days demonstrated a negative attitude about the case. These comments, defendant contends, indicate that the trial court improperly based its denial of defendant’s Marsden motion on its personal observations of defense counsel’s performance. We disagree. Underlying defendant’s complaint is this statement from Marsden: “The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four comers of the courtroom. Indeed, ‘[w]hen inadequate representation is alleged, the critical factual inquiry ordinarily relates to matters outside the trial record . . . .’ [Citation.] Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney.” (People v. Marsden, supra, 2 Cal.3d at pp. 123-124, italics added.) In this case, however, defendant’s dissatisfaction with his counsel was based in part on matters that occurred within the courtroom, such as defendant’s assertion that counsel’s manner of questioning prospective jurors displayed counsel’s negative attitude toward defendant’s case. Because the trial court had personally observed defense counsel’s conduct, it could properly comment on the quality of his performance. 5. Alleged prosecutorial interference Defendant argues that the prosecutor improperly “interfered” with the trial court’s consideration of his first Marsden motion. He states that the decision whether to replace a defendant’s appointed counsel is a matter for the court, the defendant, and the defendant’s attorney (see People v. Madrid (1985) 168 Cal.App.3d 14, 19 [213 Cal.Rptr. 813] [trial court should generally honor timely defense request to exclude prosecutor from Marsden hearing]; People v. Dennis (1986) 177 Cal.App.3d 863, 871 [223 Cal.Rptr. 236] [same]), and that here the prosecutor committed misconduct by advising the court of his “personal views” on whether defendant’s attorney should be replaced. We find no impropriety. The prosecutor was not present during defendant’s first Marsden hearing. Before the hearing, the prosecutor made this statement to the court: “Your honor . . . this is the first I heard there was going to be a Marsden motion. I don’t have the applicable essence of the Marsden criteria right on the tip of my tongue. I don’t know if it’s [a] complete breakdown in the relationship or whatever the standard is. I know the Court is aware of it. I would simply request, your Honor, since I cannot be present, that the Court even though this is a capital case not rule from the posture of abundance of caution or bend over backwards or any such posture but instead apply Marsden in the strictest sense, and that [if] the defendant is not entitled to it to simply deny the motion.” In essence, the prosecutor merely asked the court not to be swayed by extraneous factors in considering defendant’s Marsden motion, but instead to follow the law. We see no impropriety in these remarks. B. Defendant’s Motion to Represent Himself Defendant contends that the trial court improperly denied his motion for self-representation. The relevant facts are these: On March 7, 1988, the seventh day of jury selection, the trial court held a hearing on defendant’s third motion under People v. Marsden, supra, 2 Cal.3d 118, to have his appointed counsel discharged and replaced. (See pt. II.A., ante.) After defendant described the difficulties he was having with defense counsel, the court asked if he had anything more to say. Defendant stated: “I would be asking that if—if I can’t get this granted that I would like to proceed in pro per if possible, you know. If I can’t get this granted or I know it’s the Court’s discretion to be co-counsel.” The court warned defendant at length of the risks and pitfalls of self-representation, but stressed that if defendant insisted upon representing himself, he had an “absolute right” to do so under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562]. After urging defendant to “think about it” and denying his Marsden motion, the court took a short recess. Thereafter, jury selection continued, and no further mention was made of defendant’s desire for self-representation that day. The next day, just before the noon recess, defense counsel inquired about the status of defendant’s motion for self-representation, or Faretta motion. (Faretta v. California, supra, 422 U.S. 806.) The trial court replied that no such motion was pending before it. The court explained that in response to defendant’s “chance comment” about wanting to represent himself, which was made in the course of the Marsden hearing, the court had suggested to defendant that he “think about that overnight." The court then asked defendant, “You wouldn’t seriously be making a Faretta motion to have your attorneys fired, would you?” Defendant replied, “The thought is deeply in mind, let’s put it that way.” The court told defendant that “it’s not in your best interest to do it,” added that it would not permit defendant to use the threat of a Faretta motion to “blackmail” the court into granting defendant’s Marsden motion (which it had previously denied), and praised defendant’s attorney. It concluded, “I do not deem to have a Faretta motion before me at the moment.” Defendant voiced no disagreement, and jury selection continued that afternoon. Defendant now argues that the trial court improperly denied his Faretta motion. Not so. Criminal defendants who wish to act as their own attorneys have a constitutional right to do so. (Faretta v. California, supra, 422 U.S. 806; People v. Jones (1991) 53 Cal.3d 1115, 1141 [282 Cal.Rptr. 465, 811 P.2d 757].) To invoke that right, however, a defendant “‘“should make an unequivocal assertion of that right within a reasonable time prior to the commencement of trial.” ’ ” (People v. Horton (1995) 11 Cal.4th 1068, 1107 [47 Cal.Rptr.2d 516, 906 P.2d 478], italics in original.) In this case, defendant never made such an assertion. As mentioned earlier, defendant made his request for self-representation at the Marsden hearing, stating that “if’ the court was going to deny his Marsden motion, he would like to act as his own attorney “if possible,” with the assistance of advisory counsel to be appointed by the court. The next day, when the issue of self-representation was again discussed, defendant told the court that he had the “thought” of self-representation “deeply in mind,” indicating that having been warned by the trial court the previous day of the perils of self representation and told to give the matter serious thought, he was still considering the matter. Defendant’s comments do not represent an unequivocal request to act as his own attorney. Lending support to this conclusion is the lack of any attempt by defendant to correct the trial court when, following the just-described comments by defendant, the court said, “I do not deem to have a Faretta motion before me at the moment.” (See Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888 [self-representation request that was an “impulsive response” to the trial court’s denial of the defendant’s motion for substitute counsel and was not renewed at a later court date was not unequivocal].) Later that day, after jury selection proceedings, the trial court told defendant that, after researching the matter, it had concluded that under People v. Windham (1977) 19 Cal.3d 121 [137 Cal.Rptr. 8, 560 P.2d 1187], a defendant who made a Faretta motion after trial had begun was not automatically entitled to self-representation. The court did not state whether it would permit defendant to represent himself were he to move for self-representation, and defendant did not say he wanted to do so. Defendant argues that the trial court misled him by comparing his case to Windham “in an attempt to convince [defendant] that he would not prevail on the Faretta motion.” He contends that Windham is factually distinguishable, for in that case the Faretta motion was untimely because it was made on the last day of trial, whereas here defendant raised the issue of self-representation during voir dire, before the jury had been sworn and thus before the commencement of trial. The trial court, however, did not tell defendant that his case was factually identical to Windham, and it accurately described Windham’s holding. (See People v. Marshall (1996) 13 Cal.4th 799, 827 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) Thus, the court’s remarks did not mislead defendant. C. Conflict of Interest Defendant accuses his two trial attorneys of having an irreconcilable conflict of interest with him, because they were appointed by the trial court and received compensation from the State of California, which had an interest in convicting defendant of the crimes charged. This circumstance, defendant asserts, may have prevented defense counsel from vigorously objecting to any errors by the trial court, because of their desire to receive appointments in future cases. Defendant suggests that in the future any appointments of counsel and provisions for their fees “should be managed by some entity such as local and/or the State Bar Association rather than the Courts before whom the appointed counsel is appearing.” We find no conflict of interest. The interest of the State of California is not to secure the convictions of every person charged with a crime, but rather to assure that every criminal defendant receives a fair trial, so that only the guilty will be convicted. Defendant’s bald assertion that the courts are reluctant to reappoint attorneys who have vigorously represented their clients is nothing more than an accusation unfounded by anything in the record before us and unsupported by any citation of authority. For similar reasons, we reject defendant’s conflict of interest argument pertaining to his appointed counsel on this appeal. D. Trial Court’s Description of Defendant’s Prior Convictions Defendant had two prior convictions for burglary. During voir dire, pursuant to a stipulation by the parties, the trial court told the prospective jurors about one of these prior burglary convictions. After the jury had been selected, but before the prosecutor made his opening statement, the court read the information to the jury. Included in the charges against defendant was the offense of possession of a firearm by a convicted felon. (§ 12021.) While explaining this charge to the jury, the trial court stated: “At the . . . request of both counsel, you have . . . learned . . . that the defendant had previously been convicted of a charge of robbery and possession of a firearm by a previous conviction.” (Italics added.) Defendant, however, had no prior convictions for robbery or possession of a firearm. The prosecutor immediately pointed out the court’s mistake, saying, “No, previous conviction of burglary.” The court then stated, “Previously been convicted of a count of burglary. Strike that, I have no information about a previous conviction for robbery.” As defendant points out, although the trial court’s clarifying statement to the jury properly stated defendant had no prior robbery conviction, it failed to correct the court’s erroneous statement that defendant had a prior conviction for possession of a firearm. Thus, the court’s words could well have confused the jury with regard to whether defendant had also suffered a prior conviction for possession of a firearm. Any such confusion, however, could not have affected the jury’s verdict, given the overwhelming evidence of defendant’s guilt: his fingerprints were found in incriminating locations at the victims’ house, he left the murder scene in the victims’ roadster, and when arrested he was sitting next to Donna Roberts’s tote bag, which contained a gun that displayed the same rifling characteristics as bullets found at the murder scene. Defendant also contends that defense counsel was ineffective for failing to object to the trial court’s misstatement of his prior convictions. Given the overwhelming evidence of defendant’s guilt, any ineffectiveness on the part of defendant’s trial counsel was harmless. E. Prior Burglary Convictions After defendant testified in his own defense, the prosecutor impeached him by eliciting from him the fact that he had two prior felony convictions for burglary. Defendant now contends that the prosecutor should not have been permitted to use these convictions to impeach him. Because defendant did not object at trial, he is precluded from raising this issue on appeal. (People v. Stewart (1983) 140 Cal.App.3d 11, 16 [189 Cal.Rptr. 141]; see People v. Rollo (1977) 20 Cal.3d 109, 116 [141 Cal.Rptr. 177, 569 P.2d 771].) F. Testimony by Defendant Defendant contends that certain acts by his trial counsel denied him the right not to testify at his own trial. A discussion of the pertinent facts follows. On the morning of April 6, 1988, just before the defense presented its case, defense counsel asked the trial court for, and received, a 15-minute continuance because of “a last-minute change with regard to whether [defendant] would testify or not.” Thereafter, counsel told the court that any differences with defendant had been resolved. In his opening statement to the jury, lead counsel Bradley Holmes mentioned that defendant would testify on his own behalf. That afternoon, defendant asked the trial court for a hearing in camera. There he complained that by mentioning during the opening statement that defendant intended to testify, counsel had in effect coerced him to do so. Counsel responded that he had discussed the matter with defendant before making his opening statement. He had explained that the decision whether to testify was entirely up to defendant, but had recommended that defendant take the witness stand. The court commented that counsel had acted properly in mentioning to the jury that defendant would testify. The court also told defendant that if he ultimately decided not to do so, it would explain to the jury that this was his right and that the jury should draw no adverse inferences from counsel’s earlier statement to the jury that defendant would testify. The court then suggested that counsel discuss the matter further with defendant. Trial did not resume until April 12, 1988. In the meantime, defendant had sent the trial court a letter complaining that his attorneys were unprepared, were lying to him, had not visited him at the jail in several months, and only once had discussed with him whether he should testify. The court held another in camera hearing on the matter on April 12. Attorney Julian Macias (defendant’s second counsel) told the court that he had visited defendant the night before the defense began its case, and had explained that defendant was under no compulsion to testify, but that certain defense evidence could be presented only if defendant did so. He denied coercing defendant into testifying. Lead attorney Holmes said that defendant had originally agreed to testify, but had vacillated on the morning of defense’s counsel’s opening statement. Just before the opening statement, Holmes had leaned over the counsel table and asked defendant, “Are you sure you’re going to testify?” Upon receiving defendant’s assent, Holmes made his opening statement in which he mentioned defendant’s intent to take the witness stand. Only later did defendant have second thoughts about his decision. The trial court reiterated what it had told defendant before: If defendant chose not to testify, the court would instruct the jury to draw no adverse inferences from defendant’s failure to do so. Later that day, defendant did testify on his own behalf. Defendant complains that his counsel’s opening statement to the jury coerced him into testifying. We disagree. “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” (Harris v. New York (1971) 401 U.S. 222, 225 [91 S.Ct. 643, 645, 28 L.Ed.2d 1].) The defendant’s “absolute right not to be called as a witness and not to testify” arises from the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution. (Cramer v. Tyars (1979) 23 Cal.3d 131, 137 [151 Cal.Rptr. 653, 588 P.2d 793].) Although tactical decisions at trial are generally counsel’s responsibility, the decision whether to testify, a question of fundamental importance, is made by the defendant after consultation with counsel. (People v. McKenzie (1983) 34 Cal.3d 616, 631, fn. 9 [194 Cal.Rptr. 462, 668 P.2d 769]; U.S. v. Martinez (9th Cir. 1989) 883 F.2d 750, 755, vacated on other grounds (1991) 928 F.2d 1470; see also People v. Robles (1970) 2 Cal.3d 205, 215 [85 Cal.Rptr. 166, 466 P.2d 710].) Here, as discussed above, it was only after defendant had told counsel of his willingness to testify that counsel so informed the jury in his opening statement. This was an appropriate tactical decision. Although counsel’s tactical decision made it more difficult for defendant to reconsider his decision to testify, it did not unfairly coerce him or deprive him of his right to decide whether to testify. We also reject defendant’s contention that his trial counsel was ineffective for failing to adequately “prepare” defendant to testify. Assuming for the sake of argument that competent counsel has such a duty, the record in this case does not show what steps counsel took to prepare defendant for taking the witness stand (see People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212]), or that defendant’s testimony would have been different had there been greater preparation (U.S. v. Mealy (7th Cir. 1988) 851 F.2d 890, 909). G. Telephone Conversation Between Donna Roberts and Jiy Williams 1. Background Outside the jury’s presence, Jiy Williams, a friend and former neighbor of Donna Roberts, testified that Donna telephoned him on the day she was murdered. During the conversation, Williams heard voices in the background and asked, “Who’s there?” Donna replied that “Gary” was present. Williams said, “Gary Hines?” Donna replied, “Yes.” Before trial, defendant moved to exclude the conversation between Williams and Donna Roberts. At the time of the prosecutor’s opening statement, the trial court had not yet decided how to rule on the motion. The court told the prosecutor: “You better protect your flank, careful on your opening statement that you don’t go too far out on a limb. There is the distinct possibility I will rule that you may not get in the identification of the name on that telephone call.” In his opening statement, the prosecutor, after telling the jury that Donna had called Williams on the day she was killed, said: “While they were talking, [Williams] could hear a male voice in the background, and he inquired. [*][] And based on information that [Williams] got from Donna, he called the Palanuks when he learned about the murders, and told them what he knew. They called the police and told the police what Jiy had told them. And, with that information the police then go out to where they now know that roadster is at, 1245 Ascot. They get that information, and the information where the roadster is right about the same time, and they go out there. [<]D And Lieutenant Ken Walker has a photograph of Gary Hines now before they ever enter that house . . . .” Defendant asked the trial court to instruct the jury to disregard the prosecutor’s comments. The court refused to do so. After the prosecutor’s opening statement, but before Williams testified, the trial court ruled that Williams could testify generally about the conversation between Donna Roberts and himself, but that Donna’s statement that defendant was present during the conversation was inadmissible hearsay. Thereafter, Williams testified that he had received a call from Donna at 10:30 on the morning she was killed, that in the conversation Donna told him that she missed him and would visit him soon, that while talking to her he had heard two or more male voices in the background, and that the conversation was ended after Williams heard a male voice say, “Hurry up and get off the phone.” The prosecutor asked Williams whether in his telephone conversation with Donna Roberts he had asked her who else was present at the Robertses’ house; Williams said he had. On redirect examination, the prosecutor, following up on this earlier question, asked Williams: “I want you to answer the next question yes or no, okay. When you asked her who was in the background there, okay, did she tell you?” Williams answered. “Yes.” Defendant did not object. After asking three other questions of no importance here, the prosecutor concluded his examination of Williams, and the court took a short recess. During the recess, defendant moved for a mistrial, arguing that by asking Williams whether Donna Roberts had told him who was present during the conversation, the prosecutor had circumvented the trial court’s ruling excluding Donna’s answer that defendant was there. The court denied the mistrial motion, but offered to give the jury “an appropriate admonition.” Defendant asked the court not to do so because “that would have the affect [sic] of waving a flag in their face.” He also explained that he had not objected when the question was asked because he feared that the objection would enhance the prejudicial effect of the question. Honoring defendant’s request, the court gave no admonition. The day after Williams’s testimony, one of the jurors submitted to the court this written question: “On 9/16 the police had Mr. Hines already as a suspect. What clues or evidence did the police have on the 15th that lead [szc] them to suspect Mr. Hines?” After consultation with counsel, the court read the question to the entire jury. The court admonished the jury not to speculate about what evidence the police had when it arrested defendant: “[T]he police are allowed to rely on things including hearsay to establish probable cause to go into a home or to make an arrest that fall far short of the regular requirements of what a jury may hear in a courtroom trial. . . . I am satisfied that the hearsay evidence that has brought [defendant’s] name to the forefront and caused [the police] to get a picture of him and check him out was legally done there. . . . That’s not any evidence that you should convict the man of murder or any or [sic (other?)] charge, [f] You’re not going to know specifically why the police went out there because it involves some hearsay, and I ruled that this jury cannot hear that. I didn’t write the California Evidence Code. The Legislature did.” 2. Admissibility of Donna Roberts’s telephone call to Jiy Williams Defendant contends that the trial court should have excluded the telephone call between Jiy Williams and Donna Roberts in its entirety. The call, defendant asserts, had no relevance except for Donna’s statement to Williams that defendant was present, a statement which the trial court ruled to be inadmissible hearsay. We reject defendant’s contention that the entire telephone conversation was inadmissible. At trial, the defense argued that it was Randal Houseman alone who had committed the murders of Kathryn and Donna Roberts, and that defendant never entered the Roberts home on the day of the murders. Williams’s testimony that, in his telephone conversation with Donna Roberts, he heard more than one male voice in the background was obviously not hearsay, and tended to disprove defendant’s claim that Houseman had acted alone in perpetrating the murders. With respect to defendant’s assertion that the voices Williams heard could have come from the radio or television, that was a matter for the jury to decide. The trial court should, however, have excluded Williams’s inquiry of Donna Roberts, “Who is there in the house with you?” The mere fact that Williams asked the question was irrelevant, and telling the jury he had done so might have led it to speculate that Donna Roberts had answered by telling Williams that defendant was present. In the in limine hearing held before Williams testified, the court explicitly gave permission for the prosecutor to ask this question. The prosecutor thereafter followed up this question with one that implied even more strongly that Roberts had identified defendant, asking: “When you asked her who was in the background there, okay, did she tell you?” Williams responded affirmatively. Although defendant cites this question as misconduct, it was permitted by the trial court’s erroneous ruling at the in limine hearing, which allowed the prosecutor to ask any question short of eliciting the fact that Donna Roberts had told Williams that defendant was present. Defendant argues that the error violated his right to confront and cross-examine witnesses, guaranteed by the Sixth Amendment to the federal Constitution. He did not, however, object on this ground at trial, and therefore has not preserved the issue. (People v. Alvarez (1996) 14 Cal.4th 155, 186 [58 Cal.Rptr.2d 385, 926 P.2d 365]; People v. Gordon (1990) 50 Cal.3d 1223, 1254, fn. 6 [270 Cal.Rptr. 451, 792 P.2d 251].) In any event, we find no violation of the confrontation clause. Admission of Donna Roberts’s statement identifying defendant would not have violated the federal Constitution, as it would be admissible in the federal courts and most states under the “present sense exception” to the hearsay rule. (See Fed. Rules Evid., rule 803(1) (28 U.S.C.) [Hearsay exception for “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”]; Booth v. State (1986) 306 Md. 313 [508 A.2d 976, 979] [a “majority of states” have adopted the present sense exception]; see also Fed. Rules Evid., rule 804(b)(5) (28 U.S.C.) [Hearsay exception for statement by unavailable witness “if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.”].) “[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.” (White v. Illinois (1992) 502 U.S. 346, 356 [112 S.Ct. 736, 743, 116 L.Ed.2d 848].) Thus, the trial court did not violate the confrontation clause when it permitted the prosecutor to ask questions from which the jury could infer that Roberts had identified defendant, and the error is one of state law only. Examined under state law, the error was harmless. Before the murders defendant told numerous people that he intended to obtain a pink roadster, and at trial he admitted that he stole the victims’ pink roadster immediately after they were killed. His fingerprints were found in the hallway of the victims’ house and on the underside of a VCR that the killers moved from the victims’ living room to their garage. When arrested, he was seated next to victim Donna Roberts’s tote bag, wearing pants and shoes stained with blood. In the tote bag was a gun that witness Jamie Pyle saw defendant playing with the night before and the day after the murders. Bullets test-fired from this gun had rifling characteristics similar to bullets found at the scene of the murders. Defendant also had written a list of the guns stolen from the victims’ house, along with prices at which they could be sold. Defendant’s account of the episode—that he remained outside the victims’ home while Randal Houseman went to the door because he did not want to disobey the orders of his probation officer, but that he willingly joined Houseman in stealing the victims’ roadster—was inherently implausible. His claim that only Houseman entered the victims’ house was contradicted by Jiy Williams’s testimony that when Donna Roberts telephoned him on the morning of her death he heard more than one male voice in the background. In short, the evidence of defendant’s guilt was overwhelming, and there is not a reasonable probability that the trial’s outcome would have been different if the court had excluded Williams’s question to Donna Roberts. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) 3. Prosecutor’s opening statement In the portion of his opening statement quoted above, the prosecutor never explicitly told the jury that Donna Roberts, in her telephone call to Jiy Williams, had identified defendant as one of the persons who was present during the call. Nevertheless, defendant argues, the prosecutor implied that Donna had identified defendant, and therefore was guilty of misconduct. As noted above, defendant objected to the prosecutor’s comments and asked the trial court to admonish the jury to disregard them. The court denied the request. We agree with defendant that the jury might have inferred from the prosecutor’s comments that Donna Roberts had identified defendant in her conversation with Jiy Williams. The prosecutor told the jury that Williams had “inquired” about the “male voice” he heard during the conversation; that Williams told the Palanuks about the conversation, that the Palanuks told the police, and the police immediately went to the house “where they now know that roadster is at,” with defendant’s photograph. The jury might have inferred from the prosecutor’s comments that Donna Roberts had identified defendant in her conversation with Williams and that Williams had passed this information on to the Palanuks, who in turn had told the police, as a result of which the police brought defendant’s picture with them when they went to seize the roadster. The situation was not improved by the trial court’s response when a juror, perhaps because of the prosecutor’s comment in his opening statement, asked what evidence led the police to suspect defendant of committing the murders. The court should simply have told the jury that there was no evidence on this point, and reminded it not to speculate about matters as to which there was no evidence. Instead, the court improperly told the jury that the police had hearsay evidence of defendant’s guilt (“I am satisfied that the hearsay evidence that has brought [defendant’s] name to the forefront . . . was legally done”), and improperly implied that information was withheld from the jury because of technical rules of which the court disapproved (“I didn’t write the Evidence Code. The Legislature did.”). Any misconduct by the prosecutor was, however, harmless. As explained in the preceding section, the evidence of defendant’s guilt was overwhelming. There is no reasonable probability that the outcome of the trial would have been different if the prosecutor had not mentioned the telephone call in question in his opening statement. (People v. Watson, supra, 46 Cal.2d 818, 836.) 4. Mistrial After Jiy Williams testified that in his telephone conversation with Donna Roberts, she had answered his question about who was with her at the hou