Full opinion text
Opinion BAXTER, J. Defendant Lee Max Barnett was convicted by a jury of one count of murder (Pen. Code, § 187), 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)). 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. 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. When McGee and Eggett later returned to 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, Margarete Haynes, their three young children, and defendant’s friend, Tom Burgess. 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. 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. 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 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. 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, 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 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. . 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. 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. 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. 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. Defendant eventually returned some of the property taken from Hampton and Cantwell, including their weapons, ammunition, and about $800 of Cantwell’s money. 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). 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 Belinda 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 Belinda if she knew how to do it. Defendant changed his clothes and shaved off his beard. Burgess, who was trying to avoid defendant, 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. Osbum 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 bird shot in Eggett’s feet and lower legs. The shot was too 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 postmortem. 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 “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. 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 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 Osbum 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 midaftemoon 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. In 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. 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 stem 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 át 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 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. 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. 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 Mars-den 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, 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. 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.) 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 motion 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 [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 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.) 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.) 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. Defendant faulted Kenkel for not calling him to the stand to testify about the prejudice he suffered as a result of Schroder’s representation. 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. 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. 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. Defendant also complained 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, 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. (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, citing Marsden, supra, 2 Cal.3d at pp. 123-124 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.) 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 his experience in criminal law 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.) 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 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 [szc] 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 c