Full opinion text
Opinion WERDEGAR, J. Defendant was convicted of the first degree murder of George Martinez with jury findings that he had used a firearm in the commission of the crime and that the murder was committed while he was engaged in the commission or attempted commission of a robbery. (Pen. Code, §§ 187, 12022.5, subd. (a), 190.2, subd. (a)(17)(A); unless otherwise specified, all further statutory references are to the Penal Code.) Defendant was also convicted of second degree robbery, kidnapping for the purpose of robbery, and vehicle taking, all with the finding he had used a firearm in the commission of the crimes (§§ 211, 209, subd. (b), 12022.5, subd. (a); Veh. Code, § 10851), and petty theft with a prior (§ 666). Defendant admitted having suffered two prior serious felony convictions and having served four prior prison terms. (§§ 667, subd. (a), 667.5, subd. (b).) Following the jury’s return of a death verdict and the trial court’s denial of defendant’s automatic motion to modify the verdict (§ 190.4, subd. (e)), defendant was sentenced to death for the murder conviction, imprisonment for life for the kidnapping for robbery conviction, and an aggregate determinate term of 21 years’ imprisonment; both the indeterminate and the determinate terms were to be served consecutively to the sentence for murder. This appeal is automatic. (§ 1239, subd. (b).) The judgment is affirmed. I. Facts A. Guilt phase 1. Petty theft at F. W. Woolworth About 3:00 p.m. on November 19, 1992, Donald Gallagher was working as the assistant manager of the F. W. Woolworth store at 1000 K Street in downtown Sacramento. While conversing with the store manager near the front of the store, Gallagher heard the security alarm sound, signifying that someone had attempted to leave the store with an inventory item still retaining the magnetized tag that is normally demagnetized at the time of purchase. Gallagher approached defendant, who, after having set off the security device, had stepped back inside the store, and asked him if he had purchased anything that might have set off the alarm. Defendant denied having done so. Gallagher asked to look inside the plastic Payless bag defendant was carrying; defendant consented. Inside the bag Gallagher saw several items bearing Woolworth’s tags, including a jar of coffee, a hair trimmer set and an umbrella, along with some items not from Woolworth. The store manager asked defendant if he had a receipt for the Woolworth’s items in his bag. Defendant replied in the negative, but said he had purchased them earlier in the day and had just returned to the store. Defendant claimed he had paid for the items at register No. 9. Store personnel checked the day’s detail tapes for that register, as well as the previous day’s tapes, but found no entry corresponding to the $12.99 hair trimmer set in defendant’s bag. Police were summoned, and defendant was cited and released on his promise to appear. 2. Crimes at Volunteers of America apartments a. Prosecution evidence On December 23, 1992, McLean Currie worked the graveyard shift as a security monitor at the Volunteers of America Independent Living and Readiness Pilot Project (the Project) at 254 Cleveland Avenue in Sacramento. The aim of the Project was to take persons, many of them drug addicts and alcoholics, from nonfunctional environments and prepare them for life in mainstream society. Participants resided in two-bedroom apartments; defendant and the victim, George Martinez, shared apartment 9. Between 5:00 and 5:15 a.m. on that date, Currie, who worked from an office located in apartment 5, saw Martinez enter the office and noted his entrance in the logbook. Soon thereafter, defendant followed Martinez into the office. Currie, who was not acquainted with defendant, asked who he was. Defendant replied, “My name’s Herb.” Currie noted his entrance in the logbook. Defendant and Martinez went into the kitchen of apartment 5, which served as a common area for Project participants, and Currie heard “low talking.” Martinez came out of the kitchen and walked back down the hall toward Currie’s office with defendant following him. Defendant said, “Let’s go back to the apartment, we can figure this out.” Martinez said, “No, I don’t want to go.” Martinez and defendant walked back and forth in the hallway several times. Finally, Martinez entered the office; defendant stood in the doorway. Currie realized there was some problem between the two men: Martinez appeared scared, and defendant looked irritated. Currie asked what was going on. Martinez said, “I don’t have to put up with this shit this early in the morning.” Currie asked what he was talking about. Defendant said, “I got a little gas.” Currie asked the two men to sit down. When neither moved after 30 seconds to a minute, Currie took out a red incident folder and told them that if they did not help him resolve the problem, he would have to write an incident report. Defendant said, “All right, I’ll settle it.” Defendant entered the office, locked the door, pulled a handgun from the waistband of his pants and demanded Martinez’s car keys. Martinez shook his head. Defendant then shot Martinez in the abdomen and said, “Goddamn Mexican’s been bugging me ever since I have lived here.” Martinez fell backward into a chair in the office. Defendant again asked Martinez for his car keys; Martinez said he did not have them. Currie wanted to call an ambulance for Martinez. Still holding the gun in his hand, defendant answered: “Shut the fuck up. We are doing things my way now.” He drew another gun from the waistband of his pants, saying he had five more rounds in the gun he had used to shoot Martinez, and the other was loaded. As Currie was about to call an ambulance, defendant told him to pull the phone out. Currie pulled the phone to the edge of the desk. Defendant grabbed it by the cord, ripped it out of the wall, and threw it onto Martinez, saying, “Let him call.” Defendant asked if Currie had a car in the parking lot. Currie said he did, to which defendant responded, “Give me your keys.” Currie retrieved his keys from his jacket pocket and placed them on the desk. Defendant asked which keys unlocked the car and started it; Currie gave him the information and told him it was necessary to push a button underneath the steering column. Defendant said, “That’s not going to work.” He told Currie they were going to get Martinez’s keys and directed him to get up from the desk and walk to defendant’s apartment. Defendant and Currie walked the 25 to 35 yards down the sidewalk from the office to apartment 9. Still brandishing a gun, defendant directed Currie to enter, and Currie complied. Defendant told him to wait in a comer of one of the bedrooms. Defendant pulled out a knapsack and laid it on the bed. He began to pull clothes from the closet; Currie packed them into the knapsack. When Currie finished packing, defendant told him they were going to look for George’s keys. They then went into the other bedroom. While Currie stood in the comer of the room, defendant searched for the keys. Not finding them anywhere, defendant said, “George must have the keys on him.” Still holding a gun, defendant walked behind Currie back to apartment 5. There, Martinez was lying prone in the same position as when they had left. Defendant instructed Currie to search Martinez’s pockets for the keys. Currie found them in a pocket of Martinez’s coat. Currie found no weapons on Martinez, who by this time was silent. Currie handed the keys to defendant, who said, “No, you’re going to come out and start the car.” Defendant and Currie then walked out to the parking lot. Currie got into Martinez’s car and eventually succeeded in starting it. He backed the car out of the parking space and, at defendant’s direction, turned the headlights on. After Currie scraped some ice off the windshield, defendant got into the car and drove away. Meanwhile, Robert Edwards was coming out of apartment 6 on his way to work, when he heard someone calling for help. As he approached apartment 5, he realized the person calling out was inside. Edwards entered and found Martinez lying on his back at the entrance to the family room with a Christmas tree pulled over on top of him. Martinez asked Edwards to call 911; Edwards did so and reported that Martinez, who was holding his chest, may have suffered a heart attack. After ending the phone call, Edwards returned to Martinez, who had passed out. Edwards administered cardiopulmonary resuscitation (CPR). He smelled no alcohol on Martinez’s breath. When Martinez regained consciousness, Edwards asked him what had happened. Martinez said he had been shot by his roommate. Opening Martinez’s shirt, Edwards saw a bullet hole in his abdomen. Edwards went outside to seek help and saw Currie returning to the office from the parking lot. A car, which Edwards recognized as Martinez’s, was driving out of the lot. Currie told Edwards to get back inside, as the man in the car had a gun. Currie and Edwards returned to apartment 5. Martinez asked Currie for a glass of water; Currie and Edwards helped him sit up. After Currie left to get the water, Martinez fell over. Edwards again administered CPR. A few minutes later, fire department emergency personnel arrived and began to treat Martinez. They found no weapons in the area. Ultimately, Martinez was transported by ambulance to a hospital, where he later died. Sacramento Police Officers Frank Reyes and Currina Pendleton arrived at the crime scene around 6:00 a.m. Officer Reyes obtained a brief statement from Currie, who was quite upset, and then broadcast information regarding defendant and Martinez’s vehicle. Reyes searched Martinez’s clothing, finding no weapons. Officer Pendleton secured the scene, accompanied Martinez to the hospital in the ambulance, and collected his effects after he was declared dead; she found no weapons in Martinez’s clothing, but did retrieve Martinez’s uncashed Blue Diamond Growers paycheck. An autopsy established that Martinez had died as a result of a gunshot wound to the abdomen, which severed the aorta, resulting in extensive internal hemorrhaging. Analysis of Martinez’s blood was negative for cocaine, methamphetamine, morphine, PCP and alcohol; his blood was not tested for marijuana. A subsequent search of apartment 9 by Sacramento Police detectives yielded a live .38-caliber round in defendant’s nightstand. No weapons, bullets, alcohol, drugs or paraphernalia were found in Martinez’s room. An expended slug was retrieved from apartment 5. Between 4:00 and 5:00 p.m. the same day, California Highway Patrol Officer William Sullivan, working out of the Buttonwillow Office in Kern County, received two citizens’ calls about a driver on Interstate 5. A dispatcher who checked the license number given by one of the callers informed Sullivan that the car had been involved in a homicide. Officer Sullivan observed the suspect vehicle, a silver Buick, driving southbound at 70 miles per hour and weaving from side to side in the lane. The car abruptly pulled into the Buttonwillow rest area and stopped. Officer Sullivan and fellow California Highway Patrol Officer Bill Waterhouse ordered the driver to exit the car, toss the keys out of the car and raise his arms. Defendant slowly got out of the car and eventually extended his arms after reaching several times toward his waist. As Officer Sullivan trained his rifle on defendant, Officer Waterhouse ordered defendant to kneel on the ground. After being ordered several times to kneel down, defendant finally complied. Defendant appeared intoxicated; his breath smelled of an alcoholic beverage, his speech was slurred, and he was unsteady on his feet. After defendant had been handcuffed, the officers searched him. Inside a pocket of his jacket was a loaded .32-caliber derringer pistol. In the rear passenger compartment of the Buick was a knapsack containing a blue steel Smith and Wesson .38-caliber revolver with four live rounds and one expended round in it. Ballistics testing established that the revolver had fired the expended slug found in apartment 5. b. Defense evidence Testifying at trial in his own behalf, defendant denied stealing anything from the Woolworth store and sought to establish that he shot Martinez in self-defense after Martinez assaulted him with a knife. Defendant began his testimony by recounting how he had arrived in Sacramento a few months after being released from prison on parole. According to defendant, he was hit on the head at the Greyhound bus terminal in downtown Sacramento and robbed of his “paperwork,” job leads, auto mechanic course certificates, and other belongings. He then went to a halfway house for recovering drug abusers and alcoholics on Bannon Street in Sacramento, but he felt he did not belong in that environment. Thereafter, defendant went to various social services agencies and volunteered his services. He also worked odd jobs on the weekends. Defendant eventually moved into the Volunteers of America apartments, with George Martinez assigned to be his roommate. Defendant testified he and Martinez got along well in the beginning, but over time they began quarrelling. When Martinez drank, he became a “mean drunk.” Defendant purchased meat and cheese at a local flea market and stored it in the refrigerator in the apartment he shared with Martinez. Later, he noticed some of it was missing and confronted Martinez. Martinez threatened him with a knife and said, “Don’t make me use this on you.” Defendant claimed he had forced Martinez to back down with a pan of boiling water he was using to prepare oátmeal. He did not report the incident because he was not a “snitch.” A second similar incident occurred a few days later, when defendant again noticed meat missing from the refrigerator; defendant confronted Martinez, who, smelling of alcohol, again threatened him with a knife. Defendant testified he picked up a kitchen knife and Martinez left the apartment. A few days before December 23, 1992, defendant testified, he bought two handguns from a woman at the flea market; defendant claimed he did not want the weapons, but the woman was insistent because she needed money. Defendant planned to resell the weapons at the flea market the following weekend at a price double what he had paid for them. Defendant kept the guns in an old shoulder bag and often carried them with him because he walked through very tough neighborhoods at night, where he would encounter gang members. Late on the night of December 22, 1992, defendant went to visit some friends, intending soon to sell the two guns and move out of the Volunteers of America apartments. At his friends’ house the lights were out, so he turned around and walked back downtown. At the Greyhound bus station, he took a taxi to a nearby restaurant. About an hour later, he took another cab ride back to his apartment. Entering the apartment, defendant testified he tossed his backpack onto his bed and went to turn on the wall heater. Martinez, who smelled of alcohol, came out of his bedroom and said, “I am tired of this shit, you always turn on the gas.” Martinez was holding a knife in his hand. When defendant pulled a gun, Martinez backed away and put his knife back in his jacket pocket; defendant likewise put his gun back. As Martinez was about to leave the apartment, he threatened defendant, saying, “I am going to get you, I am going to cut you in half.” Martinez walked out the front door of the apartment. Defendant followed him to the office where Currie was sitting at a desk writing in a logbook. Defendant testified that when he entered the office, Martinez was looking at a bulletin board. Suddenly, defendant claimed, Martinez “rushed” him. Defendant grabbed and hit Martinez in self-defense, causing Martinez to fall into a Christmas tree, knocking it over. Defendant backed away, knowing that, with a gun, he held an advantage in the fight. Currie asked defendant who he was, and defendant identified himself. Martinez picked up the fallen Christmas tree and again threatened defendant. Martinez then walked into the office; defendant followed, trying to calm him down. Martinez continued to repeat his threats. Currie said he smelled alcohol and would have to separate the two men. Defendant testified that when he took his eyes off Martinez to tell Currie he did not drink, Martinez suddenly rushed defendant with a knife, and defendant shot him. Martinez stopped, but said nothing and did not look like he was hurt. He put his knife back in his pocket and sat on a nearby chair, still looking red and angry. According to defendant, Currie said: “I am a white man. You are not going to shoot me, too, are you?” Defendant replied that he had put the gun back in his waist, that he had another in his pocket, and the guns were going to stay there, as he had no fight with Currie. Defendant asked Currie for the keys to his car. According to defendant, Currie said all he had was a little truck, but he offered to get Martinez’s keys. Defendant denied pointing any guns at Currie and claimed he followed Currie to the apartment he shared with Martinez. They did not find any keys there and, after putting some clothes in defendant’s pack, returned to the office. Martinez had moved to the floor and was holding his wound. He appeared to be in pain, although defendant still did not think he had been badly hurt. Defendant admitted throwing a telephone on the floor, but denied throwing it on Martinez. Defendant testified that Currie reached into Martinez’ s coat pocket and removed his car keys. Defendant told Currie to start the car. Defendant asserted he was not guilty of stealing any car because Currie had taken the keys and started the car. Defendant had not wanted Martinez’s car because, as a certified mechanic, he knew it was worthless. When defendant drove away, he did not call the police because he was preoccupied with thoughts of getting a lawyer. He was heading to Riverside for that purpose; he knew an attorney there. Defendant soon encountered problems with Martinez’s car. Although the digital fuel gauge showed three gallons, the car ran out of gas and stalled on the freeway. Defendant claimed a California Highway Patrol officer stopped and asked him, “What’s the trouble, Sarge?” The officer asked him if he had any money, and defendant showed him three $100 bills. The officer then called a tow truck operator, who sold defendant three gallons of gas for $20. Later, just outside Bakersfield, the electrical system failed when defendant tried to start the car. Another highway patrol officer came along, and a second tow truck driver was able to start the car. Defendant paid him with a $100 bill. After getting back on the freeway, defendant saw a sign for a rest area. It was cold, and he pulled in to get some coffee. It was there he was arrested. Defendant explained that he had initially refused to kneel on the ground when ordered to do so by highway patrol officers because it was cold. Defendant denied reaching toward the pocket containing the derringer. On cross-examination, defendant acknowledged his prior felony convictions for burglary in 1963, assault with a firearm in 1967, receiving stolen property in 1978, a “felony involving dishonesty” in 1982, and robbery in 1983. Patrick O’Farrell testified for the defense that Martinez had stabbed him on August 16, 1992. O’Farrell, who admitted having been convicted of various felonies, testified he was sitting on Del Paso Boulevard drinking with two friends on that date; one of the men, named Steve, asked Martinez about repaying some money he owed him. Martinez became embroiled in a verbal argument over the money. O’Farrell stood up and struck Martinez in the face with a whiskey bottle. Martinez then stabbed O’Farrell in the abdomen, turned, and walked away. c. Rebuttal Craig Wire, the safety coordinator for the Volunteers of America, opined that Martinez did not have a reputation for violence, but rather was generally soft-spoken and timid. Defendant, according to Wire, had a reputation for aggressive behavior. Anthony Kotko, Martinez’s supervisor at Blue Diamond Growers, testified he had never observed any type of aggressive or violent behavior by Martinez. B. Penalty phase 1. Prosecution evidence It was stipulated that defendant was in custody in prison during the following periods: July 19, 1957, to April 17, 1959; November 5, 1959, to November 5, 1962; June 11, 1963, to June 13, 1966; April 26, 1968, to May 18, 1977; October 23, 1978, to September 18, 1980; November 20, 1980, to March 30, 1981; and October 28, 1983, to April 30, 1992. Selected pages from the court records of the underlying convictions, including a 1968 conviction for assault with intent to commit murder and a 1983 conviction for armed robbery, were admitted into evidence. The prosecution presented evidence that defendant had committed various sexual offenses in an incident that occurred in 1983. In February of that year, Wanda B. was living in an apartment complex on what was then called Sacramento Boulevard in Sacramento; defendant was the apartment manager. Late in the evening of February 19, 1983, Ms. B., who did not have a telephone in her apartment, went to defendant’s apartment to use his. There she encountered two heavyset White males, Elvis Wakefield and his cousin, Allen Wade Wakefield, who told her defendant was not at home. Ms. B. then left. Later, she returned to defendant’s apartment; when she knocked and asked to use the telephone, defendant invited her in. Once she was inside, defendant grabbed her by the arm and pulled her into his bedroom. The Wakefields remained in the living room, and once Ms. B. was in defendant’s bedroom, the volume of the television set went up. In the bedroom, defendant ripped open his shirt, causing buttons to fall off. Defendant proceeded to rip open Ms. B.’s jeans and threw her to the floor. She noticed a handgun stuck in the front of his pants. He put his penis in her mouth and held the gun to her head. After pulling off her jeans, defendant inserted his penis into her vagina. He attempted to sodomize her and said he was “going to let his friends do it” when he was through. Ms. B. managed to escape when defendant dozed off. She returned to her own apartment and related what had happened to her boyfriend, Jose, who called the police. A search of defendant’s bedroom yielded a shirt missing several buttons, along with the corresponding buttons; in a drawer to the right of the kitchen sink, police found a loaded blue steel .22-caliber handgun. Ms. B. admitted having been convicted of possessing cocaine for sale but denied having been arrested for drug use. She acknowledged her boyfriend had previously stabbed her out of jealousy. She denied ever having spent the night with defendant in his apartment and denied telling another witness, Harold Newman, she had done so. 2. Defense evidence Allen Wade Wakefield, who admitted having been convicted of robbery and receiving stolen property, testified that Ms. B. had come to defendant’s apartment several times during the day on February 20, 1983, to see defendant about getting some “crank” (methamphetamine). He also testified that Ms. B. had voluntarily accompanied defendant to his bedroom. Elvis Wake-field testified he heard “a lot of giggling” coming from the bedroom while defendant and Ms. B. were there together. Defendant testified that Ms. B. “came on” to him because she wanted him to talk some people into giving her drugs on credit. He testified that he and Ms. B. had consensual sex in his apartment and that when her boyfriend looked in defendant’s bedroom window and saw them engaged in intercourse, the boyfriend began screaming and Ms. B. ran from the room. Defendant denied seeing a gun in his apartment that evening, but testified he had had many houseguests and had previously seen guns there. H. Analysis A. Competency and self-representation issues 1. Defendant’s asserted incompetency to stand trial; trial court’s failure to hold hearing on competency Defendant contends his conviction was obtained in violation of his right to due process (U.S. Const., 14th Amend.; Cal. Const., art. I, §§ 7, 15) because he was incompetent to stand trial and the trial court nevertheless failed to hold a hearing, pursuant to section 1368, on the question of his competency. Trying him while he was incompetent, he further contends, deprived him of numerous other state and federal constitutional rights, including the rights to a fair trial, trial by jury, confrontation and cross-examination, presentation of a defense, effective assistance of counsel, equal protection, and reliable guilt and penalty phase verdicts as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and their California counterparts, article I, sections 7, 15 and 17. To restate general principles applicable to this issue: “A person cannot be tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Ibid.) When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. (People v. Stanley (1995) 10 Cal.4th 764, 804 [42 Cal.Rptr.2d 543, 897 P.2d 481]; Pate v. Robinson (1966) 383 U.S. 375, 377 [86 S.Ct. 836, 837-838, 15 L.Ed.2d 815].) ‘Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competence to stand trial.’ (People v. Danielson (1992) 3 Cal.4th 691, 726 [13 Cal.Rptr.2d 1, 838 P.2d 729], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].)” (People v. Lawley (2002) 27 Cal.4th 102, 131 [115 Cal.Rptr.2d 614, 38 P.3d 461].) When there exists substantial evidence of the accused’s incompetency, a trial court must declare a doubt and hold a hearing pursuant to section 1368 even absent a request by either party. (See People v. Aparicio (1952) 38 Cal.2d 565, 568 [241 P.2d 221]; § 1368, subd. (a).) Claiming that that condition is met here, defendant asserts he was unable to cooperate with and assist his original appointed counsel in his defense and that after becoming his own counsel, he was unable to competently prepare and present his own defense. Prior to trial, defendant fired several investigators, being unable—he now contends—to interact with them in a rational manner. Defendant characterizes his trial as a travesty, punctuated with fits of his incoherent rambling and nonsensical statements, an irrational defense based on self-defense against a nonexistent knife and a delusional belief that the shot he fired into the victim’s abdomen did not really hurt him, as well as an untenable suggestion that the paramedics actually killed the victim by negligent treatment. Defendant further asserts that he presented a number of witnesses in his defense who were either not helpful or damaging to the defense. Examination of the record fails to support defendant’s claim of incompetency to stand trial. Even supposing defendant is correct that the various examples of his rambling, marginally relevant speeches cited in his briefing may constitute evidence of some form of mental illness, the record simply does not show that he lacked an understanding of the nature of the proceedings or the ability to assist in his defense. To the contrary, defendant (who, it will be recalled, had had extensive prior experience with the criminal justice system) put on evidence, conducted cross-examination and testified on his own behalf. Despite his early difficulties in working with former appointed counsel and investigators, by the time of trial he apparently enjoyed a good working relationship with his investigators. That his witness list expanded as his investigation progressed is hardly proof that his defense was based on delusion. And, although the jury ultimately credited the prosecution’s evidence over defendant’s version of the shooting, his story contained no bizarre content, as opposed to mere exaggeration or lies. Defendant’s case thus is distinguishable from Howard v. State (Miss. 1997) 701 So.2d 274, on which he relies. In Howard, the Mississippi Supreme Court reversed a murder conviction and death sentence on the basis, inter alia, that the trial court had erred in failing to declare a doubt as to the defendant’s competency and, without ordering proceedings to determine his competency, in permitting him to act as his own attorney at trial. When, after some two years of pretrial delay, Howard insisted his appointed counsel be granted no further continuances, the trial court informed him he would have to cooperate with his attorneys and accept their judgment as to the timing of the trial, or else he could represent himself. Howard elected the latter course. He proceeded immediately to trial without filing any pretrial motions or exercising any challenges during voir dire, even as he objected to the prosecutor’s offer to excuse prospective jurors who clearly were biased against Howard. Although the prosecution’s case rested almost entirely on forensic bite-mark evidence, Howard made no attempt to challenge or counter that evidence. His questioning of witnesses rarely had any relevance to the issues in the case. (Id. at pp. 278-279.) “For example, Howard questioned the firemen who discovered the victim’s body on the subject of the fire department’s hiring practices. While apparently hoping to elicit information about an imagined conspiracy so complicated that it never took shape even in his own mind, he questioned a witness as to whether it was unusual for an elderly person such as the victim to have a driver’s license.” (Ibid.) Howard’s theory was that Howard’s own family members had killed the victim and were framing him; he even suggested one of the jurors might have committed the crime. (Ibid.) During the one-hour sentencing phase, Howard refused to say anything to the jury. The trial judge never ordered a competency hearing, although prior to trial he did enter an order requiring that Howard undergo a mental examination, with which Howard refused to cooperate. On various occasions each of the four attorneys appointed to represent or assist Howard articulated to the court their concern that he was incompetent to stand trial. The Mississippi Supreme Court concluded the trial judge was thus apprised of information that should have raised a doubt about Howard’s competency and that the court erred in permitting Howard to represent himself without first determining his competency. (Id. at pp. 280-284.) In the present case, prior to defendant’s exercise of his right to self-representation, his appointed counsel never raised any question concerning defendant’s competency. Unlike Howard, defendant took an active role in pretrial proceedings and voir dire. Moreover, he questioned witnesses concerning the facts of the case and the character of the victim, although his shaky grasp of the concept of legal relevancy did not well serve his cause. Defendant testified and presented argument on his own behalf, although he did not, as a competent attorney would, attempt to develop a persuasive case in mitigation. These deficiencies in his self-representation suggest not incompetency to stand trial but, rather, the lack of legal training common to most pro se defendants. Defendant’s appellate briefing makes much of his oral references, at trial, to “unfairness” in the proceedings and his accusations of misconduct against the prosecutor; defendant labels this behavior paranoid and insists it demonstrates incompetency to stand trial. The briefing, however, overlooks the context of the cited remarks: When he complained of unfairness, defendant was undergoing cross-examination by the prosecutor and the course of trial evidently was not proceeding entirely to his liking. The record before us lacks substantial evidence demonstrating defendant was incompetent to stand trial. Defendant contends Magistrate Goff, who heard and decided his motion to waive the assistance of counsel and to represent himself pursuant to Faretta, supra, 422 U.S. 806, unequivocally expressed a doubt regarding defendant’s competency, yet erroneously failed to suspend proceedings to have him evaluated pursuant to section 1368. Contrary to defendant’s claim, we do not read the record as showing the magistrate doubted defendant’s competency to stand trial; rather, although the magistrate used the term “competency,” he seems only to have been expressing his reservations about defendant’s intellectual capacity to provide adequate self-representation. The question arose in the following context: As noted (see ante, fn. 3), at the preliminary hearing on the homicide charge, defendant was represented by Attorney Vincent O’Brien. After the prosecution presented its case, Magistrate Goff held defendant to answer and, in his capacity as cross-designated judge in the county’s superior and municipal courts, deemed the complaint on file to be an information. Attorney O’Brien waived arraignment on the information, and defendant entered not guilty pleas and denied the enhancement allegations. The magistrate then asked defendant whether he was able to hire a private attorney, to which defendant replied: “Oh, I’d like to go pro per, your Honor. And I’d like to make another motion at this time.” Defendant stated, “I make a motion for representing myself.” On inquiry by the court, the prosecutor commented: “As foolish as it may be, it is my understanding he has a right to do that. If I had any say in it, I’d oppose it.” The court responded: “I don’t know how you can oppose. You may have some information I don’t have.” The court inquired into the possibility of appointing Attorney O’Brien as advisory counsel, but O’Brien noted (and defendant confirmed) he wished to represent himself without the benefit of advisory counsel. The court proceeded to advise defendant of his right to the appointment of counsel and the perils of self-representation, and permitted defendant to discuss his legal training. Defendant stated: “I was a member of National Lawyers Guild at Folsom Prison. We have a charter there. I specialized in appeals. Helped some men get out. And my exact specialty was motions, over twenty motion[s] to the court. I only had one denied. And lot of times I was harassed by the guards. So I had to use a paper and pencil. Was able to make trips from Folsom Prison to the courts on just a piece of paper and pencil. Quoted as having unusually legible handwriting. I have a two years—on average, I’m literate; not a dummy. And my reason for this is I’m not getting, huh, the kind of defense that I need. And I need the freedom to give my side more than yes or no answers.” Defendant apologized to the court for earlier having made a “slight outburst” and sought to elaborate on why he wished to represent himself. The court discouraged him, saying: “I would suggest that you say as little as possible. [¶] You have a very able lawyer over there. DO Mr. Maguire [the prosecutor], obviously you have seen him operate. He’s a pro. Knows exactly what he’s doing. And it’s his job to prosecute you for this. And he will ask for the death penalty. I would suggest, if you really are competent to represent yourself, you wouldn’t say anything about the case.” Defendant persisted in commenting on the evidence just presented in the preliminary hearing. The court warned: “Before you go any further, if you are competent to represent yourself, you would know that the matter of your preliminary hearing, probable cause, has been decided. It’s submitted.” The court told defendant there was no use continuing to discuss the preliminary hearing evidence: “So what, now, if you are demonstrating your knowledge of the law, what you are doing right now is telling me you really don’t know anything, where you are not competent to represent yourself. That’s what you are telling me at this point.” (Italics added.) Defendant retorted, “It requires very little competency in this particular case.” Thus, up to this point in the hearing on defendant’s Faretta motion, the context establishes that, in using the term “competent,” the court clearly was referring to defendant’s legal knowledge or ability, rather than to any mental disability or disorder. The court then inquired further into defendant’s legal training, understanding of the current charges and criminal history. This exchange concluded in the following manner: “The [court]: In 1983, said you were sentenced to sixteen months—or sixteen years in state prison for 211. And—you had done your sixteen years, Mr. Martinez would still be alive, wouldn’t he? DQ The Defendant: Mr. Martinez shouldn’t attack me with a knife, your Honor. For the third time, it was justifiable. And that’s my defense.” The court then commented: “Mr. O’Brien, I have serious questions about the—the defendant’s mental capacity. Looking at this rap sheet, I don’t think there is any question that, well, no question has entered my mind about the insanity defense. I don’t think there is a—appears to be one here. However, I think there is—obviously appears to be a pretty severe mental problem because he’s certainly unable to function socially.” Evidently anticipating an adverse ruling, defendant stated he would appeal the court’s decision. After some further discussion of defendant’s educational history, the court said: “Well, I’m prepared at this point to grant the motion of self-representation for the sole reason I don’t think I have any choice. [¶] Mr. Maguire, do you think I have any choice?” The prosecutor answered in the negative and asked that defendant be admonished he would not be allowed to delay the case by seeking an attorney on the eve of trial. The court accordingly advised defendant he was entitled to counsel, but that no judge would delay the trial to allow an attorney to represent him. Defendant interjected: “I waive that. [10 Every time, I have waived no time.” The court replied: “I’m not talking about that. I’m—” Defendant interrupted, “I [want] to get this over.” The court finished: “I’m talking about something entirely different. [¶] Now I have serious reservations about Mr. Koontz’ mental capacity to represent himself. And I feel a moral responsibility to point that out on the record. Although, as I say, there’s no indication that he has a defense of insanity, that being the legal, medical, term. I’m certain that I would feel more comfortable in making a ruling if I could be assured he’d be examined by a competent analist [sic] to determine whether he’s in fact competent. I think the test would be far different for a legal test of insanity. I understand the law doesn’t provide for that. So we are—in any event, I have to grant the motion. Do so with reservations I put on the record.” Defendant contends the court’s “serious questions” about his “mental capacity to represent himself’ constituted the expression of a doubt as to his competency to stand trial, requiring the institution of proceedings under section 1368. We disagree. Each instance in which the court questioned defendant’s “competency” or “mental capacity” occurred immediately after some exchange in which the court highlighted deficiencies in defendant’s legal abilities that cast doubt on the wisdom of his motion for self-representation. The court observed that nothing suggested defendant had a claim of legal insanity, and the sole reference to defendant’s “mental problems” occurred in relation to a survey of defendant’s extensive criminal history and apparent inability to “function socially.” While we find it unclear how an order for defendant’s examination by an analyst might have caused the court to feel more “comfortable” in granting defendant’s Faretta motion, we are unwilling to assume—as defendant would have us do—that, in so ruling, the court used the term “competency” in a sense different from every other instance in which it had used the same word, and without acknowledging the statutory obligation to suspend proceedings, of which it may be presumed the court was aware. Indeed, in repeatedly inviting the prosecutor to articulate some legal basis for denial of the Faretta motion, the court seems implicitly to have been asking him to put on the record any information he possessed, such as mental health history, that might obviate the need to permit defendant to represent himself. And, as the Attorney General observes, as of the date of the hearing on defendant’s Faretta motion, defense counsel had reported no particular conflicts or difficulties in dealing with defendant that might have been the product of a mental illness. Consequently, on this record we find no error in Magistrate Goff’s failure to institute competency proceedings under section 1368. 2. Defendant’s asserted incompetency to waive his right to the assistance of counsel and to represent himself Defendant contends his conviction and sentence are constitutionally infirm because the trial court improperly allowed him to waive the assistance of counsel and to represent himself at trial despite his asserted incompetency to do so. As we have observed: “A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant has the right to be represented by counsel at all critical stages of a criminal prosecution. (United States v. Wade (1967) 388 U.S. 218, 223-227 [87 S.Ct. 1926, 1930-1932, 18 L.Ed.2d 1149]; Gideon v. Wainwright (1963) 372 U.S. 335, 339-345 [83 S.Ct. 792, 793-797, 9 L.Ed.2d 799, 93 A.L.R.2d 733]; Powell v. Alabama (1932) 287 U.S. 45, 71 [53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527].) At the same time, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendant possesses the right to represent himself or herself. (Faretta v. California, supra, 422 U.S. 806, 819 [95 S.Ct. 2525, 2533] . . . .) “The United States Supreme Court has concluded in numerous cases and a variety of contexts that the federal Constitution requires assiduous protection of the right to counsel. The right to counsel is self-executing; the defendant need make no request for counsel in order to be entitled to legal representation. (Carnley v. Cochran (1962) 369 U.S. 506, 513 [82 S.Ct. 884, 888-889, 8 L.Ed.2d 70].) The right to counsel persists unless the defendant affirmatively waives that right. (Johnson v. Zerbst (1938) 304 U.S. 458, 464-465 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 146 A.L.R. 357].) Courts must indulge every reasonable inference against waiver of the right to counsel. (Brewer v. Williams (1977) 430 U.S. 387, 404 [97 S.Ct. 1232, 1242, 51 L.Ed.2d 424].)” (People v. Marshall (1997) 15 Cal.4th 1, 20 [61 Cal.Rptr.2d 84, 931 P.2d 262].) The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. (Godinez v. Moran (1993) 509 U.S. 389, 400-401 & fn. 12 [113 S.Ct. 2680, 2687-2688, 125 L.Ed.2d 321]; People v. Lawley, supra, 27 Cal.4th at p. 139.) The trial court may not determine a defendant’s competency to waive counsel by evaluating his ability to present a defense. (Godinez v. Moran, supra, at pp. 399-400 [113 S.Ct. at p. 2687]; U.S. v. Arlt (9th Cir. 1994) 41 F.3d 516, 518.) On appeal, we examine de novo the whole record—not merely the transcript of the hearing on the Faretta motion itself—to determine the validity of the defendant’s waiver of the right to counsel. (People v. Marshall, supra, 15 Cal.4th at p. 24.) Defendant essentially contends that mental illness rendered him unable to make a knowing and voluntary waiver of his right to counsel because he could not appreciate how an attorney might be of assistance in his defense. Contrary to defendant’s claim, however, we fail to perceive in this record evidence, “overwhelming” or otherwise, undermining his stated assent to self-representation after due admonition. That defendant later took missteps in his self-representation or occasionally expressed some perplexity at courtroom procedure appears to reflect his lack of legal knowledge, not necessarily mental illness or incompetency. 3. Asserted inadequacy of admonitions regarding risks of self-representation In order to make a valid waiver of the right to counsel, a defendant “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.]” (Faretta, supra, 422 U.S. at p. 835 [95 S.Ct. at p. 2541].) No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. (People v. Stansbury (1993) 4 Cal.4th 1017, 1048 [17 Cal.Rptr.2d 174, 846 P.2d 756], revd. on another point in Stansbury v. California (1994) 511 U.S. 318 [114 S.Ct. 1526, 128 L.Ed.2d 293].) In People v. Lopez (1977) 71 Cal.App.3d 568 [138 Cal.Rptr. 36] (Lopez), the court enumerated a set of suggested advisements and inquiries designed to ensure a clear record of a defendant’s knowing and voluntary waiver of counsel. First, the court recommended the defendant be cautioned (a) that self-representation is “almost always unwise,” and the defendant may conduct a defense “ ‘ultimately to his own detriment’ ” (id. at p. 572); (b) that the defendant will receive no special indulgence by the court and is required to follow all the technical rules of substantive law, criminal procedure and evidence in making motions and objections, presenting evidence and argument, and conducting voir dire; (c) that the prosecution will be represented by a trained professional who will give the defendant no quarter on account of his lack of skill and experience; and (d) that the defendant will receive no more library privileges than those available to any other self-represented defendant, or any additional time to prepare. Second, the Lopez court recommended that trial judges inquire into the defendant’s education and familiarity with legal procedures, suggesting a psychiatric examination in questionable cases. The Lopez court further suggested probing the defendant’s understanding of the alternative to self-representation, i.e., the right to counsel, including court-appointed counsel at no cost to the defendant, and exploring the nature of the proceedings, potential defenses and potential punishments. The Lopez court advised warning the defendant that, in the event of misbehavior or disruption, his or her self-representation may be terminated. Finally, the court noted, the defendant should be made aware that in spite of his or her best (or worst) efforts, the defendant cannot afterwards claim inadequacy of representation. (Id. at pp. 572-574.) As indicated above, the purpose of the suggested Lopez admonitions is to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a threshold of competency to waive counsel. (See People v. Stansbury, supra, 4 Cal.4th at p. 1048; Godinez v. Moran, supra, 509 U.S. at pp. 399-400 [113 S.Ct. at p. 2687].) In the present case, defendant asserted his right of self-representation at the conclusion of the preliminary examination. The trial court then warned defendant in the following terms: “If the jury believes what [McLean Currie] just testified to—if there was ever a just case for imposing the death penalty, this is the case. And I would be very careful, sir, because you are dealing in a highly technical area, and you need all the help you can get. [¶] Now, I don’t know whether you are guilty or not. I haven’t heard all the case. But I’m telling you, you are in serious trouble, serious trouble.” The trial court went on to advise defendant: “First, you have the right to be represented by a lawyer at all stages of this case. In any case which you are a defendant in, if you cannot afford your own lawyer I’ll appoint one to represent you. That’s already been done. [¶] Second, it is generally not a wise choice to represent yourself in a criminal matter. I think I just said that as strongly as I could say it. [¶] The penalty for the offense of violating [section] 187 of the Penal Code, that is, murder, in this case of Mr. Martinez, is [the] death penalty. . . . [T]he district attorney is telling you right now, that if the jury finds you guilty of murdering Mr. Martinez, that he will ask that jury to impose a death penalty. HQ And, fourth, I cannot help you present your case. No judge can help you present your case or grant you any special treatment because you are representing yourself. You must know that. HQ . . . [Y]ou will be opposed by a trained prosecutor. There is no question about that. Mr. Maguire has already, I’m sure, convinced you of that. [IQ You must comply with all the rules of criminal procedure and evidence just as an attorney must. And I will tell you that very few judges and attorneys know all of those. And, I mean, unless you have been practicing law for some time, you wouldn’t know many of them. HO . . . [Fjurther, if you are convicted, you cannot appeal based on the claim that you were not competent to represent yourself. You must know that I have serious questions about that.” The court also warned defendant that if he was disruptive, he would be removed from the courtroom and an attorney would be appointed to finish the case. Defendant explained he had assisted a number of inmates in preparing pro se motions while at Folsom Prison, and that he was literate and able to write legibly. When the court inquired whether he knew what the charges were, defendant initially stated “a self-defense case” and “[t]he charges are irrelevant,” but, on being pressed, correctly responded: “Murder in the first degree. Murder, robbery, kidnapping.” Defendant indicated his defense would be that the homicide was justifiable because the victim had attacked him with a knife. Defendant complains the warnings he received fell short of the Lopez recommendations in various respects. (See Lopez, supra, 71 Cal.App.3d at pp. 572-574.) Defendant notes that, although the court cautioned that self-representation is generally not a wise choice, it did not warn him that he might conduct a defense “ultimately to his own detriment.” The latter warning, however, clearly was implicit in the former. Defendant acknowledges that the court cautioned he would have to comply with all the rules of criminal procedure and evidence, but he complains that the court said nothing about having to follow substantive rules of law and did not specify that this requirement applied to motions and objections, the presentation of evidence, voir dire and argument. We conclude, however, that the warning given sufficed to put defendant on notice of what would be expected of him. Defendant acknowledges that the court mentioned he would be opposed by a trained prosecutor, but complains the court did not sufficiently elaborate on the unfairness of such a mismatch. Again, however, we find the admonition sufficient and the failure to comment further on the prosecutor’s superior training and experience to be inconsequential. Next, defendant observes the court gave no warning at all that he would be entitled to no more library privileges than any other self-represented defendant and that he would not have a staff of investigators, in the words of the Lopez court, “at his beck and call.” (Id. at p. 573.) Of course, defendant did have a staff of investigators and repeatedly expressed satisfaction with the two investigators under appointment at the time of trial. Moreover, while defendant complained to the trial court on a number of occasions that he was not getting sufficient time in the law library to prepare his case, the court did attempt to address his dissatisfaction, and defendant cites nothing in the record suggesting either that his decision to waive counsel was predicated on a misunderstanding about the extent of his in propria persona library privileges or that he was somehow prejudiced by lack of access to the law library. Defendant’s central argument with respect to the asserted inadequacy of the admonitions seems to be that his asserted mental illness rendered him unfit to comprehend the risks of self-representation. He points to the court’s statement that it had “serious questions about [defendant’s] mental capacity” and that defendant “appeared] to [have] a pretty severe mental problem because he’s certainly unable to function socially,” evidently referring to defendant’s lengthy criminal history. Alluding to various occasions during the trial when he gave disorganized speeches in open court, defendant contends he was not in fact “literate,” contrary to his own representation to the court. Defendant further asserts that he made “delusional” claims, such as an assertion that he possessed an Associate of Arts degree and had attended the University of California at Davis, that the trial court—aware that defendant had spent most of his adult life in prison—should have realized indicated he was mentally unfit to stand trial. But a proclivity to boast or exaggerate, a tendency to digress in argument, a shaky grasp of the legal concept of relevancy, even a certain tangentiality in speech patterns does not necessarily mean that a defendant lacks a rational and factual understanding of the proceedings, the basic criterion for competency. (See Dusky v. United States (1960) 362 U.S. 402, 402 [80 S.Ct. 788, 788-789, 4 L.Ed.2d 824].) Finally, defendant notes that, at one point, he asserted self-representation had been “forced upon [him].” The assertion, however, flies in the face of the trial court’s careful admonitions, as quoted above, and seems to have been bom of midtrial disappointment at the course the proceedings had taken. Defendant fails to show that mental illness rendered him unable to validly elect self-representation. 4. Asserted unreliability of death judgment due to self-representation Defendant contends his sentence of death is invalid because his self-representation at trial renders the judgment unreliable by the standards of the Eighth and Fourteenth Amendments to the United States Constitution. Arguing that the absence of counsel detrimentally affected his exercise of all other constitutional rights (see Menefield v. Borg (9th Cir. 1989) 881 F.2d 696, 698), defendant asks tMs court to hold the Sixth Amendment right of self-representation guaranteed by Faretta, supra, 422 U.S. 806, inapplicable to capital trials. We have previously declined the invitation. “ ‘Notwithstanding the state’s significant interest in a reliable penalty determination, a determination best made by a fully informed sentencer, a defendant’s fundamental constitutional right to control his defense governs. [Citation.] The defendant has the right to present no defense and to take the stand and both confess guilt and request imposition of the death penalty. [Citations.] It follows that the state’s interest in ensuring a reliable penalty determination may not be urged as a basis for denying a capital defendant his fundamental right to control his defense by representing himself at all stages of the trial.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365 [65 Cal.Rptr.2d 145, 939 P.2d 259], quoting People v. Clark (1990) 50 Cal.3d 583, 617-618 [268 Cal.Rptr. 399, 789 P.2d 127], fn. omitted.) Other states considering the question have answered it similarly. (E.g., People v. Coleman (1995) 168 Ill.2d 509 [214 Ill.Dec. 212, 660 N.E.2d 919, 937-938]; Bridges v. State (Nev. 2000) 6 P.3d 1000, 1012; State v. Reed (1998) 332 S.C. 35 [503 S.E.2d 747, 750].) B. Guilt phase issues 1. Consolidation of petty theft with homicide and related charges Defendant contends the trial court erred in granting the prosecution’s motion to consolidate the charge of petty theft from Woolworth with those for the murder, robbery and vehicle taking committed at the Volunteers of America apartments. The error, he asserts, deprived him of his rights to due process of law, a fair trial, trial by jury, confrontation and cross-examination, presentation of a defense, assistance of counsel, equal protection, and reliable guilt and penalty phase verdicts in a capital case, guaranteed under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution, and article I, sections 7, 15 and 17 of the California Constitution. An accusatory pleading may charge two or more different offenses connected together in their commission, or two or more different offenses of the same class of crimes. (§ 954.) Offenses falling within this description, but charged in separate pleadings, may be consolidated for trial in order to promote judicial efficiency (see People v. Mason (1991) 52 Cal.3d 909, 935 [277 Cal.Rptr. 166, 802 P.2d 950]), and a trial court’s rulings on joinder are reviewed for abuse of discretion (People v. Cummings (1993) 4 Cal.4th 1233, 1283-1284 [18 Cal.Rptr.2d 796, 850 P.2d 1]). Defendant complains the requirements of section 954 were not met in his case because petty theft and murder are offenses of different classes, and the Woolworth’s theft and the Martinez homicide were not connected in their commission. Further, he argues, evidence of the two offenses was not cross-admissible, and the theft charge served only to prejudice him in the jury’s eyes by casting doubt on his veracity. He contends that had the trial court denied joinder, it is reasonably probable he would have achieved a more favorable result at trial. Defendant was charged, inter alia, with robbery and vehicle taking in the Volunteers of America incident, and petty theft in the Woolworth matter. Although no case directly so holds, we may reasonably conclude these offenses fall within the same class, in that they share the common characteristic of the wrongful taking of another’s property. (See People v. Leney (1989) 213 Cal.App.3d 265, 269 [261 Cal.Rptr. 541] [interpreting § 954 to permit joinder of offenses possessing common characteristics or attributes]; cf. People v. Bradford (1997) 14 Cal.4th 1005, 1055 [60 Cal.Rptr.2d 225, 929 P.2d 544] [theft as lesser included offense of robbery].) As such, their joinder was proper. Defendant, therefore, can establish error only on a clear showing of prejudice. (People v. Mason, supra, 52 Cal.3d at p. 933.) This he fails to do. Although the evidence of the two sets of offenses was not cross-admissible, the petty theft was of relatively minor seriousness, and nothing about the incident suggested defendant readily engaged in criminal violence. The trial court, moreover, instructed the jury in the language of CALJIC No. 17.02 to decide each count separately. Although defendant complains the petty theft charge served only to cast doubt on his veracity with respect to the murder charge, in light of the extensive criminal history defendant acknowledged on cross-examination, the petty theft could not have affected significantly the jury’s assessment of his credibility. Defendant complains the robbery charge was only “secondary” to the murder charge, but he fails to cite a