Full opinion text
Opinion THE COURT. A jury found defendant David Esco Welch guilty of six counts of first degree murder in a single incident during the morning of December 8, 1986. It also found him guilty of two counts of attempted murder in connection with the same incident, and one count of concealing a firearm as a felon. It found true a multiple-murder special-circumstance allegation. (Pen. Code, § 190.2, subd. (a)(3).) At the penalty phase, it fixed his sentence at death. The trial court sentenced him accordingly. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety. I. Statement of Facts A. The Prosecution’s Case In the morning hours of December 8, 1986, defendant and his girlfriend at the time, Rita Lewis, broke down the front door of Barbara Mabrey’s home in Oakland, and killed six persons as they were sleeping in various rooms. Among the dead were Dellane Mabrey, the 16-year-old daughter of Barbara Mabrey and former lover of defendant, Sean and Darnell Mabrey, Barbara Mabrey’s 21-year-old and 22-year-old sons, Catherine Walker and her 4-year-old son, Dwayne Miller, and Valencia Morgan, Dellane Mabrey and Leslie Morgan’s 2-year-old daughter. Four people survived the attack: Barbara Mabrey escaped through the back door; her son Stacey Mabrey avoided detection by hiding in a bedroom closet; Leslie Morgan, though shot in the arm, feigned death and later escaped through the back door; and Dexter Mabrey, a nine-month-old child, was only grazed by one of the bullets that killed his mother and sister. Dellane and Valencia had been shot in the head at close range. Sean had been shot in the chest and head while sleeping on the living room couch. His wounds were fatal, puncturing the aorta. Darnell Mabrey had also been fatally shot in the head while sleeping. Catherine Walker and Dwayne Miller had been shot while sleeping on the sofa in the den. They, too, had both been shot in the head at close range while asleep. Defendant and the Mabreys had serious difficulties with each other in the few months before the shooting. Barbara Mabrey had met defendant in early 1986. Her daughter, Dellane, was dating defendant and said that defendant was Dexter’s father. Around September 1986 Barbara and defendant had an argument over Dellane, with Barbara telling him to stay away. On October 9, 1986, shortly after Dexter was born, defendant broke into the house and at gunpoint took Dexter away from Barbara. Dellane and her daughter Valencia went with defendant and were gone for three days. A few days later, when Barbara was going to the store, defendant drove up to her and spat at her from the car window, yelling “Bitch, you are dead.” He followed her home, striking her in the knee with his car as she tried to flee into her home and laughing as he did it. A day later he told one of Barbara’s friends to stay out of his business and to tell Barbara that she is a “dead bitch.” On October 20, 1986, he confronted her again at a neighborhood market, throwing a liquid into her face. After cursing at her, he knocked her down and kicked her several times as she was on the ground. He escaped from the police on his motorcycle. On October 29, 1986, defendant entered the Mabrey house about 3:00 a.m. with a friend named Kenny and confronted Leslie Morgan and Dellane, slapping the latter in the face. He pointed the pistol at Barbara, telling her not to get near him and saying that she “better not go to court and testify against him or his people” or else they were going to “take care of’ her, and that she would be killed slowly, shooting her arms off first and then her legs. He also ordered Leslie Morgan to leave, forcing him to flee in his underwear. He pointed a .45-caliber pistol towards the floor as he left Dellane’s room. He told Darnell Mabrey “don’t do anything” as he pointed the gun in Darnell’s direction. He left the residence. Defendant was arrested for the October 29th incident, and wrote Barbara a letter from jail requesting that she drop the charges. He was eventually released on bail. While at home with Dellane, Darnell, Sean, Stacey, Valencia and Dexter, Barbara received a visit from defendant on December 6, 1986, who apologized to her, although Barbara did not accept the apology. He came over with his two pit bull puppies, which had been placed in the yard, and, when he discovered one of them to be missing, angrily began accusing Darnell, Sean and Steve Early (who was also at the house) of taking the puppy. Denying he had taken the dog, Early left in his car with defendant close behind. As defendant left he told those present they had better find his dog or they would all be dead. Defendant then shot through Early’s back window, all the while saying, “you stole my dogs, you motherfucker.” He also said, as he was leaving, that they had better find his dog or they would all be dead. Early the next day, on December 7, 1986, defendant and Rita Lewis went to the Mabrey house, asking Barbara not to testify against him in court, where she was scheduled to appear on December 9. He also talked about Barbara’s involvement in taking his dogs. Later that evening, Stacey’s car was hit by a car driven by Vanessa Walker. A car with defendant, Dolores Walker, and two men, “Billy the Kid” and William Henderson, drove up to the scene. Defendant got out of the car with a pistol in his hand and pistol-whipped Stacey’s friend Perry. He kicked Dolores out of the car, saying something about a dog. Barbara heard him say that “you Stone City niggers”—referring to the Stonehurst area of Oakland—“better get my dog or somebody’s going to die.” Later he told Dolores Walker that “its [sic] going to be some bullshit tonight.” In the early morning hours of December 8, 1986, defendant returned to the Mabrey house. Stacey, Barbara and Leslie Morgan all identified defendant as the shooter that morning. They all identified Lewis as his accomplice. According to this testimony, defendant was carrying an Uzi carbine in his hand and Lewis was holding a .38-caliber revolver. Stacey Mabrey went to his room and hid near the closet as defendant looked past him in the room and asked, “where’s Chuck,” Stacey’s younger brother, who normally slept in the room. Stacey heard several more shots. Urged by Lewis to leave, defendant left the house, limping and holding on to Lewis and another person who helped him into a car. Barbara also woke up to gunshots and heard Dellane screaming, “no, Moochie,[] don’t.” She saw Lewis pointing a gun and telling defendant to get out of the way. Lewis had a pistol in her hands and Barbara heard more gunfire before she escaped out of the house by the rear. Leslie Morgan testified that defendant stood at close range as he shot Dellane, saying, “this is for you, bitch.” He also shot Valencia in the head. Leslie grabbed him and struggled with him, knocking his Uzi to the ground. Rita Lewis shot Leslie in the shoulder as they struggled. After defendant found his gun, he shot Leslie twice more in the arm and Leslie played dead. Leslie did, however, see defendant straddle Dellane’s body and heard another gunshot. Defendant and Lewis went to Beverly Jermany’s residence at 2116 103d Avenue in Oakland shortly after the murders, about 5:00 a.m. Defendant, who was a second cousin of Jermany’s, was lying on the porch and could not walk. He was in pain and only semiconscious. Lewis told Jermany that she had accidentally shot him. She was carrying a pillowcase. Jermany asked Lewis whether it contained drugs and she said it did not. She took the pillowcase outside and did not return with it. Jermany eventually notified the police that defendant was at her house, and he and Lewis were apprehended. The murder weapons were found in a pillowcase in the backyard of Jermany’s house. There was an Uzi, a Smith and Wesson .357 handgun and a .38-caliber Taurus revolver. The Uzi had a twenty-five-round capacity and was loaded with one round in the chamber and four rounds in the magazine. The .357 handgun was loaded and contained three live rounds and three spent rounds. The .38-caliber revolver was loaded with two live rounds and four expended cartridges. One slug recovered at the murder scene was fired from a Smith and Wesson .357. Other bullet fragments could have been fired by either a Smith and Wesson or a Taurus. Burned clothing was recovered from the fireplace. Blood found on tennis shoes recovered from 2116 103d Avenue matched Leslie Morgan’s blood. One of the tennis shoes could have made a shoe print found on Barbara Mabrey’s front door. B. The Defense The defense was characterized by differing strategies by trial counsel and by defendant. Defendant was the first witness for the defense. Taking the stand without a recess, and over defense counsel’s protest that he wanted time to speak with him to find out what questions to ask, defendant testified generally that he did not commit the murders. He declined to answer questions about who had shot him, and testified that he was shot in the leg between midnight and 5:00 a.m. in an incident at Scotty’s liquor store, rather than at Barbara Mabrey’s home. Defendant claimed that he had nothing to do with the shooting at the house the morning of December 8, 1986, and never threatened any of the Mabreys. He had gone to his cousin’s house after being wounded because he believed there might be warrants for his arrest related to other matters. He also testified that he was a victim of mistaken identity, and that it must have been some other “Moochie” who had committed the murders. The thrust of the defense presented by trial counsel, on the other hand, was that defendant’s mental impairment from drug and alcohol intoxication at the time he committed the murders was such that he lacked the premeditation and deliberation necessary for a first degree murder conviction. A urine screen and qualitative blood analysis had been performed on blood drawn from defendant on December 8, 1986. Defendant had alcohol in his blood, and cocaine and morphine, a metabolite of heroin, in his urine. A quantitative analysis was never performed, so the exact amounts of alcohol, heroin, and cocaine defendant had consumed could not be estimated. Dr. Paul Herrmann explained the effects that these substances can generally have on the central nervous system. Alcohol and heroin, both depressants, and cocaine, a stimulant, whether consumed separately or in combination, can have a deleterious effect on motor skills and mental functioning, even at very low levels. Testimony to the same effect was provided by Dr. Fred Rosenthal, who also listed sleep deprivation as an additional factor affecting coherent thought processing. Trial counsel also presented a number of witnesses acquainted with defendant for the apparent purpose of demonstrating that he tended to act impulsively. C. Penalty Phase 1. Prosecution Evidence in Aggravation The prosecution introduced evidence that defendant had been convicted of three prior felonies: assault with a deadly weapon, in violation of section 245, subdivision (a), on May 8, 1981; receiving stolen property, in violation of section 473, on August 5, 1981; and assault on a police officer in violation of section 243, subdivision (c), on April 7, 1983. Evidence of a number of instances of uncharged violent conduct was also introduced. While in juvenile hall in October 1973, defendant hit a counselor and spit on him as he was trying to run away from the facility. He had just been brought down for disciplinary problems from one of the camps to a more secure facility. Defendant, when he was a juvenile, discharged a shotgun into Faye McPherson’s residence on December 26, 1975. The McPhersons had been his neighbors for 11 years and had not previously had any problems with him. The blast damaged the walls above her child’s crib. On March 20, 1979, defendant was involved in a high-speed chase with several San Francisco police officers. When the police finally stopped his motorcycle, he got off and a struggle ensued, with defendant punching and kicking the officers. He hit one of the officers with clenched fists and kicked him as well. He also tried to run over another officer with his motorcycle, getting within three to five feet before the officer jumped out of the way. On December 20, 1979, defendant assaulted Oakland Police Officer Rosemary Dixon while she was working at the warrant division at the station house; she suffered serious injuries as a result of the assault. Defendant raped and sodomized Jaunell T., a former lover, on May 21, 1980. On January 22, 1985, while in maximum security custody, defendant got into a fight with another inmate. He did not stop fighting when ordered and eventually had to be subdued with Mace. On July 12, 1985, he fought with another inmate while they were being transported to jail from court. On December 16, 1987, while in custody for this case, defendant refused to go to court and started swinging at one of the correctional officers. He gave Deputy Charles Utvick a glancing blow to the side of the head. He made a statement to Deputy Mark Johnson that he was going to kill him or have him killed, and that he would have the rest of the deputies taken care of as well. Several instances of violent behavior while defendant was incarcerated at state prison were introduced. On December 9, 1981, while in a visiting room, he grabbed his wife, Terry West, by the neck and threw her against the wall. On February 19, 1982, defendant struck a correctional officer in the jaw. On June 24, 1982, he spit on Correctional Captain Steven D. Lawrence several times after Lawrence meted out a 30-day loss of privilege following a disciplinary hearing. Shortly thereafter when he got back to his cell from the disciplinary hearing he threw some fecal matter at Correctional Officer Roy Wade Gowin, hitting Gowin in the face. He then started hitting Gowin and another officer, swinging the handcuffs during the struggle. Gowin was struck twice by the handcuffs during the struggle and required medical treatment for the cuts on his forehead and eyebrow. Defendant also bit him. On September 25, 1982, while in jail, defendant struck a deputy sheriff in the face with a closed fist. After the deputy sprayed defendant in the face with Mace, the defendant hit the deputy again in the face with his fists. The deputy suffered lacerations of his chin and left eye and several cracked ribs, and lost time from work for about two weeks. 2. Defense Mitigation Evidence Defendant told the trial court that he did not want to put on any mitigating evidence. Over his protest, trial counsel indicated that he had, and would put on, two mitigation witnesses to show that defendant was under the influence of extreme mental or emotional disturbance at the time of the murders and that he lacked the ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental disease or defect, or the effects of intoxication. Dr. William D. Pierce, a clinical psychologist, and Samuel Benson, Jr., a psychiatrist, testified in mitigation. Defendant did not. Dr. Pierce reviewed defendant’s school records, juvenile court records, adult criminal history records, and records relating to the murders. He opined that defendant was mentally ill and had been so for a long time, suffering from delusional paranoid disorder, psychoactive substance abuse disorder, paranoid schizophrenia, impulsive personality disorder, and an organic personality syndrome of an explosive type. His delusional paranoid disorder was of a persecutory type. His mental problems started as early as kindergarten, and were characterized by uncontrolled behavior. Defendant never received any treatment for his disorders, either in or outside of custody. His behavior was characterized by mistrust, paranoia, and the inability to control aggressive acting out. Alcohol, cocaine and heroin abuse intensified these effects, further reducing his ability to control his impulses and behavior. His condition was chronic. Dr. Benson similarly opined that defendant was suffering from a mental defect and from a mental illness at the time of the commission of the murders. His basic problems, which included an intermittent explosive personality disorder, organic personality disorder, persecutory delusional disorder, and cocaine-induced delirium, were aggravated by intoxication. Defendant was paranoid and delusional in the courtroom, and perceived “the Judge, the district attorney, his attorneys, [and] Dr. Pierce ... as being against him.” II. Competency and Self-representation Issues A. Marsden Motions Defendant had his first appointed counsel removed after a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) Defendant made several subsequent Marsden motions before and during trial. He also on several occasions informally expressed displeasure with his counsel and asked for substitution. He states on appeal that “while the record of any particular Marsden motion does not by itself indicate a specific conflict between counsel and defendant, the record of the entire trial reveals an essential conflict between the defendant and his counsel resulting in a complete breakdown of the attorney-client relationship .... At the heart of the conflict was a fundamental disagreement as to the defense to be presented.” As noted above, defendant wanted a defense of actual innocence and mistaken identity, whereas counsel pursued the defense that defendant acted impulsively, in part under the influence of drugs and alcohol, and lacked premeditation and deliberation. Under the Sixth Amendment right to assistance of counsel “1 “[a] defendant is entitled to [substitute another appointed attorney] 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.” ’ ” (People v. Memro (1995) 11 Cal.4th 786, 857 [47 Cal.Rptr.2d 219, 905 P.2d 1305] (Memro).) Furthermore, “ 1 “When a defendant seeks to discharge 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.” ’ ” (Ibid.) “We review the court’s rulings for an abuse of discretion.” (Ibid.) A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. (See People v. Hamilton (1989) 48 Cal.3d 1142, 1162 [259 Cal.Rptr. 701, 774 P.2d 730].) Tactical disagreements between the defendant and his attorney do not by themselves constitute an “irreconcilable conflict.” “When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.” (People v. Carpenter (1997) 15 Cal.4th 312, 376 [63 Cal.Rptr.2d 1, 935 P.2d 708].) In the present case, trial counsel decided, in light of the overwhelming evidence against defendant on the question of his guilt for the six murders, to argue lack of premeditation. Counsel likely “ ‘was trying to enhance his credibility with the jury by [all but] conceding his client’s guilt of the offense of which the evidence was overwhelming, and to focus his efforts on the weakest link in the state’s case’ ” (Memro, supra, 11 Cal.4th at p. 858). That tactical choice was not ineffective representation on counsel’s part. Defendant does not assert on appeal that the trial court failed to permit him adequate opportunity to present his Marsden motions. Nor, from our review of the record, is there evidence that counsel lacked diligence or competence in other respects. We conclude that the trial court did not abuse its discretion in denying defendant’s various Marsden motions. B. Denial of Faretta Motion A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta); People v. Marshall (1997) 15 Cal.4th 1, 20 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall).) A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. (Faretta, supra, at p. 835 [95 S.Ct. at p. 2541]; People v. Gallego (1990) 52 Cal.3d 115, 161 [276 Cal.Rptr. 679, 802 P.2d 169]; People v. Bloom (1989) 48 Cal.3d 1194, 1224-1225 [259 Cal.Rptr. 669, 774 P.2d 698].) Second, he must make his request unequivocally. (Faretta, supra, at p. 835 [95 S.Ct. at p. 2541]; People v. Clark (1992) 3 Cal.4th 41, 98 [10 Cal.Rptr.2d 554, 833 P.2d 561] (Clark).) Third, he must make his request within a reasonable time before trial. (Marshall, supra, at pp. 20-21; Clark, supra, at p. 98; People v. Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187].) Faretta error is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [104 S.Ct. 944, 950, 79 L.Ed.2d 122] (McKaskle); People v. Joseph (1983) 34 Cal.3d 936, 948 [196 Cal.Rptr. 339, 671 P.2d 843].) Defendant made a motion to represent himself on October 3, 1988, some three and one-half months before the start of jury selection. The matter was continued and eventually came before the trial judge, Stanley Golde, on November 9, 1988, when defendant was given a Faretta questionnaire. The trial court on November 16, 1988, appointed Dr. Joseph Statten pursuant to Evidence Code section 730 to evaluate defendant on the sole issue of “whether he had the mental capacity to waive his constitutional right to counsel with a realization of the probable risks and consequences of his action.” Defendant indicated that he would refuse to speak to Dr. Statten and apparently did not speak to him. On November 21, 1988, the trial court denied defendant’s motion to represent himself. It made extensive oral findings in support of its ruling and offered several reasons for denying the motion. The trial court initially stated: “The question the Court has to decide is whether the defendant has the mental capacity to waive his constitutional right to counsel with a realization of the probable risks and the consequences of his action. “The ability to waive must further be deemed to embody some minimal ability to present a personal, competent defense. If unable to present such effective defense, the defendant would lack capacity to stand trial without benefit of counsel even though the court finds and this court does find that he is capable of actually standing trial. “This Court determines that the defendant is not mentally competent to waive counsel and represent himself for the following reasons: [H] The defendant’s mental condition in the Court’s opinion precludes realistic assessment of the need for assistance and risk of waiving counsel. HQ Mr. Welch alleges conspiracy between the parties to the judicial system. . . .[] “The Court—defendant further the Court finds engaged in court disruption. The defendant engages in verbal displays and interrupts and interferes with the conduct of the courtroom proceedings. He constantly interrupts the court and counsel.” In connection with that determination, the trial court relied not only on the preliminary proceedings that had been conducted before it, but also on defendant’s conduct in the two Marsden-related hearings before two other judges. (See fn. 3, ante.) The trial court noted that in its presence, defendant accused the bailiff of tampering with his legal papers, asked the court to have his attorneys sit in the jury box due to a conflict of interest, was reluctant to respond to the court’s questions while repeating that his civil rights were being abused, and interrupted the proceedings on the Faretta motion by requesting that the court and various individuals be served with a civil complaint in a federal matter. Despite defendant’s repeated interruptions in the course of the court’s rendering of this part of its findings, the court further explained that defendant had in previous court appearances engaged in disruptive physical displays, made nonsensical motions, and stated his own inability to appear in court due to stress or mental breakdown, as well as his inability to proceed. The court noted that, despite defendant’s having been granted the right to represent himself in a prior proceeding involving assault charges, subsequently during jury voir dire in that case, defendant had requested the reappointment of his attorneys because he allegedly had not adequately understood “the problems that would be incident to representing himself and realized it is imperative that he have competent attorney to represent him.” A mistrial resulted in those prior proceedings, and a retrial was set to trail the trial of the present capital proceedings. In the present case, after further interruptions by defendant, the trial court continued as follows: “I find Mr. Welch is a defendant who does not appreciate the extent of his own disability and, therefore, cannot be fully aware of the risk of self-representation. I find the disability of Mr. Welch significantly impairs his capacity to function in a courtroom. fl[] I further find that one of the defendant’s reasons he wishes to dispense with [his] defense attorney is a paranoid distrust of everyone connected with the judicial system. This is further evidence to this court that he lacks the mental capacity to truly waive his right to counsel. [^] Further, the defendant’s history of improper if not irrational behavior in speaking in the courtroom in the Marsden hearing, 995 hearing further indicates doubt to this Court that he has the mental capacity to waive counsel. Further, as I have indicated, in [the case presently trailing the capital case], when given the opportunity to be his own attorney, he could not continue, asked for counsel.” After defendant interposed a request for advisory counsel pursuant to Faretta, the trial court denied the request, concluding: “You have failed in your showing, and I have decided that a defendant facing the potential death sentence requires the assistance of competent counsel. You do not have the mental capacity to waive. [Defense counsel] are your attorneys.” Defendant contends that, having found defendant competent to stand trial, the trial court erred in imposing upon him a higher standard of competence to waive the assistance of counsel. As the United States Supreme Court has made clear, the two standards of competence are the same. (Godinez v. Moran (1993) 509 U.S. 389, 400-401 [113 S.Ct. 2680, 2687-2688, 125 L.Ed.2d 321] (Godinez).)- In Godinez, the court rejected the proposition “that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights.” (Id. at p. 399 [113 S.Ct. at p. 2686.) The high court further clarified by stating: “A finding that a defendant is competent to stand trial, however, is not all that is necessary before he may be permitted to plead guilty or waive his right to counsel. In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. [Citations.] In this sense there is a ‘heightened’ standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence.” (Id. at pp. 400-401 [113 S.Ct. at pp. 2687-2688], fn. & italics omitted.) Accordingly, pursuant to the equivalent standards of mental competence to waive the right to the assistance of counsel and to stand trial, as set forth in Godinez, the trial court herein erred in its determination that a higher standard of competence to waive counsel applied and that defendant had not met that higher standard. The trial court’s determination set forth above reveals that it relied upon the circumstance that defendant was not competent to present an adequate defense and therefore not competent to waive his right to the assistance of counsel—or did not knowingly and intelligently waive his right to such assistance. In Faretta, supra, 422 U.S. at page 835 [95 S.Ct. at page 2541], the high court stated: “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ [Citation.]” It is apparent that several decisions contemporaneous to the trial court’s ruling and considered by it concluded that Faretta had not eliminated the required evaluation of the ability of a defendant to represent himself or herself—either on the theory that such an evaluation properly was undertaken in assessing the defendant’s competence to waive counsel, or in assessing the knowing and intelligent nature of defendant’s waiver of counsel. (See, e.g., People v. Burnett (1987) 188 Cal.App.3d 1314, 1324-1325 [234 Cal.Rptr. 67] [concluding the rule in Massey v. Moore (1954) 348 U.S. 105, 108 [75 S.Ct. 145, 147, 99 L.Ed. 135], that competence to waive counsel includes the ability to present an elementary defense, survives Faretta', also declaring the existence of “a threshold of competence to present a defense below which one cannot genuinely realize the risk of doing so,” and further declaring that “[a] defendant who does not appreciate the extent of his own disability cannot be fully aware of the risk of self-representation where the disability significantly impairs his capacity to function in a courtroom” (italics added)]; People v. Monago (1990) 220 Cal.App.3d 982, 986-988 [269 Cal.Rptr. 819] [applying the Burnett standards in the context of a Faretta motion, to conclude that an undereducated and inarticulate defendant lacked the minimal ability necessary for self-representation].) As the United States Supreme Court further clarified in Godinez, however, the trial court may not ascertain a defendant’s competence to waive counsel by evaluating the ability to represent himself or herself. (Godinez, supra, 509 U.S. at pp. 399-400 [113 S.Ct. at pp. 2686-2687].) In explaining the difference between the competence and waiver requirements, the high court stated: “The focus of a competency inquiry is the defendant’s mental capacity; the question is whether he has the ability to understand the proceedings. [Citation.] The purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. See Faretta v. California, supra, [422 U.S.] at [page] 835 [95 S.Ct. at page 2541] (defendant waiving counsel must be ‘made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open” ’)...; Boykin v. Alabama [(1989)] 395 U.S. [238,] 244 [89 S.Ct. 1709, 1712-1713, 23 L.Ed.2d 274] (defendant pleading guilty must have ‘a full understanding of what the plea connotes and of its consequence’).” (Godinez, supra, 509 U.S. at p. 401, fn. 12 [113 S.Ct. at pp. 2687-2688].) Godinez “explicitly forbids any attempt to measure a defendant’s competency to waive the right to counsel by evaluating his ability to represent himself.” (U.S. v. Arlt (9th Cir. 1994) 41 F.3d 516, 518.) When we examine, in light of the clarification of those standards offered in Godinez, the trial court’s reliance upon the standard that defendant must possess some minimal ability to represent himself in order to be granted that right, it is apparent that the trial court erred in this respect as well. Nonetheless, the trial court based its ruling upon the additional ground that defendant was disruptive. Defendant suggests that the trial court relied upon defendant’s disruptive behavior following its ruling on the Faretta motion, and upon the trial court’s mere conjecture that defendant might continue to be disruptive. It is clear, however, that the trial court also relied extensively upon the circumstance that defendant repeatedly had been disruptive during the course of the Faretta proceedings and during hearings on prior motions in the present case. Faretta itself warned that a trial court “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46 [95 S.Ct. at p. 2541].) We assume the same rule applies to the denial of a motion for self-representation in the first instance when a defendant’s conduct prior to the Faretta motion gives the trial court a reasonable basis for believing that his self-representation will create disruption. “The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.” (Ibid.) The high court reiterated this point in McKaskle, supra, 465 U.S. 168, noting “an accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol.” (Id. at p. 173 [104 S.Ct. at p. 948], italics added.) This rule is obviously critical to the viable functioning of the courtroom. A constantly disruptive defendant who represents himself, and who therefore cannot be removed from the trial proceedings as a sanction against disruption, would have the capacity to bring his trial to a standstill. Thus, a trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendant’s right to self-representation and the exercise of that discretion “will not be disturbed in the absence of a strong showing of clear abuse.” (People v. Davis (1987) 189 Cal.App.3d 1177, 1201 [234 Cal.Rptr. 859]; see also Clark, supra, 3 Cal.4th at p. 116 [decision to revoke self-representation status entitled to deference]; McKaskle, supra, 465 U.S. at pp. 177-178, fn. 8 [104 S.Ct. at pp. 950-951] [calling for “the usual deference” to the trial judge when making these “judgment calls”].) We see no reason not to use the same deference when it comes to deciding whether a defendant’s motion for self-representation should be granted in the first instance. Turning to the present case, we conclude that the trial court did not abuse its discretion in denying defendant’s Faretta motion based on the disruptive behavior he had exhibited in the courtroom prior to making that motion. A review of the record of pretrial proceedings prior to deciding the Faretta motion does indeed reveal a number of instances in which defendant engaged in disruptive behavior: He belligerently denied awareness of a calendar date that was set in his presence; he turned his back on the trial court when addressing it; he interrupted the trial court several times to argue what the court had declared to be a nonmeritorious point; he accused the court of misleading him; he refused to allow the court to speak and he refused several times to follow the court’s admonishment of silence. We are also aware that the extent of a defendant’s disruptive behavior may not be fully evident from the cold record, and that one reason for according deference to the trial court is that it is in the best position to judge defendant’s demeanor. Thus while no single one of the above incidents may have been sufficient by itself to warrant a denial of the right of self-representation, taken together they amount to a reasonable basis for the trial court’s conclusion that defendant could not or would not conform his conduct to the rules of procedure and courtroom protocol, and that his self-representation would be unacceptably disruptive. We therefore conclude that the trial court did not abuse its discretion in denying the Faretta motion. Defendant also contends that the trial court committed prejudicial error in authorizing a “hybrid” arrangement, whereby defendant, although represented by counsel, was allowed to make motions pro se each Friday morning. He cites our admonition that a trial court should not permit a defendant to participate as cocounsel except “ ‘on a substantial showing . . . that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court’s business will not thereby be substantially hindered, hampered, or delayed.’ ” (People v. Hamilton, supra, 48 Cal.3d at p. 1162.) Defendant claims the court abused its discretion in this case by allowing him time to argue his own motions. But defendant does not show how he was prejudiced by such an arrangement, since these arguments occurred outside the presence of the jury. It is true, as defendant points out, that he sought to present a different defense theory than his counsel and that therefore, defendant’s testimony during the guilt phase of the trial may have been inconsistent with the case trial counsel sought to prepare. But such inconsistency was not caused by the hybrid arrangement chosen by the trial court. A defendant who does not qualify under Faretta for self-representation does not have the right to dictate strategy to his counsel. (See People v. Hamilton, supra, 48 Cal.3d at p. 1162.) Accordingly, we conclude that the persistent conflict between defendant and his trial counsel is not a basis for reversing defendant’s conviction. C. Trial Court’s Failure to Declare a Doubt About Defendant’s Competence Defendant contends that there was substantial evidence before the trial court indicating he was not competent to stand trial, and that therefore the trial court erred in not declaring a doubt as to his competence pursuant to section 1368, subdivision (a). Defendant asserts that the evidence presented to the trial court in the context of the Faretta hearing led it to determine that defendant was not competent to waive his right to counsel, and that, having made that determination, the court should have declared a doubt as to defendant’s competence to stand trial and should have ordered a hearing to determine his competence pursuant to section 1368. As reflected in the record described above, the. trial court expressly found defendant competent to stand trial. We do not agree that, nonetheless, the evidence supporting the trial court’s finding that defendant was incompetent to knowingly and intelligently waive his right to the assistance of counsel does, or must be deemed to, constitute substantial evidence that defendant was incompetent to stand trial, or that the court’s finding of incompetence to waive counsel as a matter of law must be equated with a finding of incompetence to stand trial. In Dusky v. United States (1960) 362 U.S. 402 [80 S.Ct. 788, 4 L.Ed.2d 824], the United States Supreme Court defined competence to stand trial as a defendant’s “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” and “ ‘a rational as well as factual understanding of the proceedings against him.’ ” As explained above, in Godinez, supra, 509 U.S. 389, the court defined competence to plead guilty or to waive the assistance of counsel, equating it with competence to stand trial. (Id. at p. 398 [113 S.Ct. at p. 2686].) In Godinez, the high court also stated that the standard for competence to plead guilty or to waive the assistance of counsel is not constitutionally required to be higher than or different from, the standard it enunciated in Dusky (509 U.S. at p. 398), and that although the states are free to adopt competence standards for waiving the assistance of counsel that are more elaborate than the Dusky formulation, “the Due Process clause of the federal Constitution does not so require.” (509 U.S. at p. 402 [113 S.Ct. at p. 2688].) Our state statute provides that a person is mentally incompetent to stand trial if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (§ 1367.) Our state statutes do not separately define competence to waive the assistance of counsel. Section 1368 provides in relevant part that “(a) If . . . a doubt arises in the mind of the trial judge as to the mental competence of the defendant, he or she shall state the doubt on the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. ... At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings ... to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. [1] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing,” and even if “counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing.” In People v. Stankewitz (1982) 32 Cal.3d 80, 91-92 [184 Cal.Rptr. 611, 648 P.2d 578, 23 A.L.R.4th 476], we observed that even though section 1368 is phrased in terms of whether a doubt arises in the mind of the trial judge and is then confirmed by defense counsel, as this court recognized in People v. Pennington (1967) 66 Cal.2d 508, 516-517 [58 Cal.Rptr. 374, 426 P.2d 942], once the accused has come forward with substantial evidence of incompetence to stand trial, due process requires that a full competence hearing be held as a matter of right. (Pate v. Robinson (1966) 383 U.S. 375, 384-386 [86 S.Ct. 836, 841-843, 15 L.Ed.2d 815].) In that event, the trial judge has no discretion to exercise. (People v. Pennington, supra, 66 Cal.2d at pp. 518-519.) As we also have noted, substantial evidence of incompetence is sufficient to require a full competence hearing even if the evidence is in conflict. (People v. Stankewitz, supra, 32 Cal.3d at pp. 92-93.) We have concluded that where the substantial evidence test is satisfied and a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed. (Ibid.) “Substantial evidence” has been defined as evidence that raises a reasonable doubt concerning the defendant’s competence to stand trial. (People v. Frye (1998) 18 Cal.4th 894, 951-952 [77 Cal.Rptr.2d 25, 959 P.2d 183]; People v. Davis (1995) 10 Cal.4th 463, 527 [41 Cal.Rptr.2d 826, 896 P.2d 119].) In People v. Pennington, supra, 66 Cal.2d at page 519, we enunciated the following standards regarding what would constitute substantial evidence of incompetence to stand trial: “If a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.” In the present case, neither defendant nor defense counsel presented substantial evidence of defendant’s incompetence to stand trial. Defendant contends nonetheless that the trial court, in giving its reasons for denying defendant’s request for self-representation, itself acknowledged the presence of a prima facie showing of substantial evidence requiring that the court declare a doubt as to defendant’s competence to stand trial and proceed to a hearing pursuant to section 1368. Defendant further contends that the trial court’s failure to do so, despite having noted this substantial evidence, requires reversal of the judgment. Defendant relies specifically upon the trial court’s findings regarding defendant’s “paranoid distrust of the judicial system” and its related comments that defendant’s beliefs in that regard disabled him from representing himself. Viewed in light of the standard that the trial court believed applicable to the decision whether defendant could competently, knowingly, and intelligently waive the assistance of counsel, it is evident that the trial court found that defendant’s disposition to distrust and to act contrary to the dictates of the judicial system amounted to a disability to represent himself effectively. The record is replete with instances demonstrating defendant’s knowledge of case authority, courtroom procedure, and other aspects of legal representation. It is apparent that the trial court did not regard defendant’s thoroughgoing distrust of the judicial system as an indication that defendant lacked “ ‘a rational as well as factual understanding of the proceedings against him’ ” or “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” (Dusky v. United States, supra, 362 U.S. at p. 402 [80 S.Ct. at p. 788]). Instead, the trial court viewed defendant’s words and actions as evidence that he would not be willing to cooperate, compromise, or negotiate with the participants in that system, to the detriment of his legal representation. In asserting that substantial evidence existed of his mental incapacity to stand trial, defendant also relies upon the psychiatric expert testimony presented by the defense at the penalty phase describing his considerable mental problems. We review the correctness of the trial court’s ruling at the time it was made, however, and not by reference to evidence produced at a later date. (See People v. Turner (1984) 37 Cal.3d 302, 312 [208 Cal.Rptr. 196, 690 P.2d 669]; People v. Greenberger (1997) 58 Cal.App.4th 298, 336 [68 Cal.Rptr.2d 61].) The trial court did not have this evidence before it at the time of its ruling on the Faretta motion, and indeed did not have any expert evidence at that time because, having requested to represent himself, defendant refused to speak with a psychiatrist appointed to determine whether defendant was capable of self-representation. In view of these considerations, we may not conclude that the trial court’s review of the evidence of defendant’s competence at the hearing on the Faretta motion revealed substantial evidence of present incompetence that would trigger a duty on behalf of the court to declare a doubt as to defendant’s competence to stand trial, and to institute competence proceedings under section 1368. Thus, the trial court was not required to declare a doubt on this basis as to defendant’s competence to stand trial. As described above, although we have determined that the trial court’s failure, in a case in which substantial evidence of incompetence appears, to declare a doubt as to the defendant’s ability to stand trial subjects the judgment to reversal, “[w]hen the evidence casting doubt on an accused’s present sanity is less than substantial. . . only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge’s determination be disturbed on appeal.” (People v. Pennington, supra, 66 Cal.2d at p. 518; People v. Merkouris (1959) 52 Cal.2d 672, 678-679 [344 P.2d 1], disapproved on another point in People v. Pennington, supra, 66 Cal.2d at p. 518.) Therefore, we next decide whether a doubt as to defendant’s sanity may be said to appear as.a matter of law. If the trial court, in determining the competence of defendant to represent himself, in effect declared a doubt as to defendant’s competence to stand trial, then doubt as to sanity would exist as a matter of law. It was in 1988 that the trial court was presented with, and ruled upon, defendant’s Faretta motion. At that time, the decisional law in this state held that mental competence to stand trial is not equated with competence to waive the assistance of counsel. (People v. Burnett, supra, 188 Cal.App.3d at p. 1321 [“[Sjince the standard for determining competence to stand trial is lower than the standard for determining competence to waive counsel, the fact that a person has been found mentally competent to stand trial with the assistance of counsel . . . therefore does not necessarily mean he or she is competent to waive the right to counsel and proceed to trial unassisted.”]; People v. Powell (1986) 180 Cal.App.3d 469, 482-483 [225 Cal.Rptr. 703]; People v. Leever (1985) 173 Cal.App.3d 853, 864 [219 Cal.Rptr. 581]; People v. Zatko (1978) 80 Cal.App.3d 534, 541-543 [145 Cal.Rptr. 643]; see also People v. Canfield (1992) 2 Cal.App.4th 1357, 1361 [3 Cal.Rptr.2d 825] [finding the standard of competence to waive counsel not necessarily higher than, although “related but distinguishable” from, the standard of competence to stand trial]; 5 Witkin and Epstein, Cal. Criminal Law (2d ed. 1989) Trial, § 2818, p. 3429; cf. People v. Hightower (1996) 41 Cal.App.4th 1108, 1114-1116-[49 Cal.Rptr.2d 40] [disapproving Canfield, Burnett, and other decisions in light of Godinez].) As explained above, in 1993, in Godinez, supra, 509 U.S. 389, the high court clarified that under the federal due process clause, a defendant who wishes to waive counsel need not be more competent than a defendant must be to stand trial or to waive other rights. It is appropriate to apply the Godinez decision retroactively to hold, as we have in the preceding discussion of the Faretta motion, that the trial court, having found defendant competent to stand trial, erred in determining nonetheless that defendant was not sufficiently competent to waive his right to the assistance of counsel. (As discussed above, we uphold the trial court’s denial of defendant’s motion to represent himself, on grounds other than his competence to do so.) We may not, however, also apply the Godinez decision retroactively to conclude that because the trial court found defendant incompetent to waive counsel in ruling on the Faretta motion, it necessarily also had a doubt, or should have had a doubt, as to his competence to stand trial and should have conducted a competence hearing pursuant to section 1368. Two reasons preclude such a holding. First, to do so in effect would elevate the standard of mental capacity to stand trial to the higher level of mental capacity that the trial court obviously believed necessary for defendant to be permitted to represent himself. The trial court specifically stated that it found defendant competent to stand trial. As we have seen, the trial court’s discussion of defendant’s competence in the context of the Faretta motion, relied upon by defendant to establish substantial evidence of incompetence to stand trial, emphasizes the court’s determination that defendant was not capable of presenting an adequate defense. Although the trial court erred in requiring that defendant possess some minimal legal ability in order to be allowed to represent himself, that error precludes our equating its findings regarding “competence” in that sense, with findings regarding competence to stand trial—because it is clear the trial court applied a standard of actual competence to represent oneself that was higher than that deemed necessary for competence to stand trial. Additionally, as explained above, the trial court’s examination of defendant’s competence in the context of the Faretta motion suggests it was simultaneously examining whether defendant had a “realization of the probable risks and consequences of his action,” that is, whether “the waiver of his constitutional rights is knowing and voluntary.” (Godinez, supra, 509 U.S. at p. 400 [113 S.Ct. at p. 2687].) Because the trial court’s findings clearly suggest that the court was assessing these additional factors, its ultimate determination that defendant was not competent to represent himself reflected a more demanding standard and a wider set of factors than was appropriate for the determination of defendant’s competence to stand trial. Second, for us to apply the Godinez decision simultaneously to conclude that the trial court erred in imposing upon defendant an elevated standard of competence to waive the assistance of counsel, and that the trial court erred in failing to declare a doubt as to defendant’s competence to stand trial based upon its own erroneously elevated standard of competence, would be to improperly derive two distinct conclusions of error from a single erroneous determination. Accordingly, we may not conclude as a matter of law that the trial court’s determination that defendant was incompetent to waive his right to the assistance of counsel must be equated with a determination that a doubt existed as to defendant’s competence to stand trial. Thus, we next consider whether the trial court abused its discretion in declining to declare a doubt as to defendant’s competence to stand trial, in light of the evidence before it. When the evidence casting doubt on an accused’s present competence is less than substantial, the following rules govern the application of section 1368. It is within the discretion of the trial judge whether to order a competence hearing. When the trial court’s declaration of a doubt is discretionary, it is clear that “more is required to raise a doubt than mere bizarre actions (People v. Kroeger (1964) 61 Cal.2d 236, 243-244 . . .) or bizarre statements (People v. Williams (1965) 235 Cal.App.2d 389, 398 . . .) or statements of defense counsel that defendant is incapable of cooperating in his defense (People v. Dailey (1959) 175 Cal.App.2d 101, 108-109 . . .) or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense (People v. Jensen [(1954)] 43 Cal.2d 572, 579).” (People v. Laudermilk (1967) 67 Cal.2d 272, 285 [61 Cal.Rptr. 644, 431 P.2d 228].) In the present case, the circumstances noted by the court— that defendant and his counsel did not agree on which defense to employ, and that defendant had a paranoid distrust of the judicial system and had stated his counsel was in league with the prosecution—while suggesting the trial court could have ordered a hearing on competence to stand trial, do not establish that the trial court abused its discretion in failing to do so, justifying reversal on that basis. For all of these reasons, we conclude that the trial court’s determination that defendant was incompetent to knowingly and intelligently waive his right to the assistance of counsel may not be equated with a determination that a doubt existed as to defendant’s competence to stand trial. We conclude that the trial court’s findings in determining that defendant was incompetent to waive counsel do not constitute substantial evidence of defendant’s incompetence to stand trial, mandating a hearing under section 1368. We also conclude that the trial court did not abuse its discretion in not declaring a doubt as to defendant’s competence to stand trial. Defendant urges that, at this juncture, his trial counsel rendered ineffective assistance of counsel by failing to seek a determination of his client’s competence to stand trial. A defendant who asserts he has received ineffective assistance of counsel must establish both that “counsel’s representation fell below an objective standard of reasonableness” and that the defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [104 S.Ct. 2052, 2064, 2067-2068, 80 L.Ed.2d 674].) In the present case, prior to determination of the Faretta motion, defense counsel referred to the possibility of pursuing a motion pursuant to section 1368. The trial court subsequently specifically remarked that it found defendant competent to stand trial. In view of the circumstances that the trial court was not required to order a competence hearing based merely upon counsel’s perception that his or her client may be incompetent to stand trial (People v. Frye, supra, 18 Cal.4th at p. 953), as well as the absence of substantial evidence of defendant’s incompetence, defendant cannot establish prejudice from the failure of his attorney to seek a determination of defendant’s competence. Defendant, citing Ake v. Oklahoma (1985) 470 U.S. 68, 82-83 [105 S.Ct. 1087, 1095-1096, 84 L.Ed.2d 53] (requiring that access to psychiatric assistance be provided to indigent defendants upon a threshold showing that it will be necessary for an adequate defense or that insanity will be an issue), urges that the failure to offer psychiatric evidence of defendant’s incompetence denied him his constitutional right to psychiatric assistance. As is apparent, defendant was afforded access to psychiatric assistance. III. Jury Selection/Venue Issues A. Change of Venue Motion The defense moved for a change of venue prior to voir dire of prospective jurors, claiming that due to extensive pretrial publicity, defendant would not be able to obtain a fair trial in Alameda County. In support of this motion, it called Joie B. Hubbert, a venue specialist, who testified that a poll she had conducted disclosed that 65 percent of jury-eligible individuals in Alameda County had heard of the case, and that of those approximately 78 percent, or about 50 percent of all those polled, had prejudged defendant to be guilty. The trial court denied the motion, but left open the possibility that it would reconsider the motion after voir dire was completed. The defense renewed the motion after voir dire and the trial court again denied it. Defendant now contends that the trial court erred. A change of venue must be granted when the defendant shows a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. “Whether raised on petition for writ of mandate or on appeal from a judgment of conviction, ‘the reviewing court must independently examine the record and determine de novo whether a fair trial is or was obtainable.’ ” (People v. Douglas (1990) 50 Cal.3d 468, 495 [268 Cal.Rptr. 126, 788 P.2d 640].) “The de novo standard of review applies to our consideration of the five relevant factors; (1) nature and gravity of the offense; (2) nature and extent of the media coverage; (3) size of the community; (4) community status of the defendant; and (5) prominence of the victim.” (People v. Sully (1991) 53 Cal.3d 1195, 1236-1237 [283 Cal.Rptr. 144, 812 P.2d 163].) Applying these factors to the present case, we conclude that the trial court did not err in refusing to grant the change of venue motion. The first factor, the nature and gravity of the offense, does indeed weigh in favor of granting the motion. The other factors do not. Although the media coverage was substantial at the time of the murders, two years had passed by the time that the change of venue motion was made. “ ‘Through the passage of time, any potential prejudice was thereby significantly reduced.’ ” (People v. Sully, supra, 53