Full opinion text
Opinion THE COURT. Prentice Juan Snow was convicted in 1990 in Los Angeles County Superior Court of the first degree murder of Alfred J. Koll. (Pen. Code, § 187; all further statutory references are to this code unless otherwise specified.) The jury also sustained a special circumstance allegation that defendant intentionally killed Koll to prevent his testimony in another criminal proceeding (§ 190.2, subd. (a)(10)) and an allegation that defendant personally used a firearm in the commission of the murder (§ 12022.5). The jury set the penalty at death. (§ 190.3.) This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. Facts Guilt Phase Evidence: Prosecution Overview Alfred J. Koll was shot to death in his Pasadena pharmacy on November 3, 1980. Although several witnesses saw the assailant, who wore a motorcycle helmet with a dark visor, or bubble shield, over his face, none were able to identify him. The evidence linking defendant to the killing was circumstantial: in addition to evidence of motive (defendant was facing trial for robbing Koll) and opportunity (the killing occurred during the lunch recess of the robbery trial, a short distance from the courthouse), there was evidence defendant owned a motorcycle and helmet, one of defendant’s fingerprints was found on a bubble shield police recovered from a Pasadena street on the day of the killing, and the phone number of the Koll pharmacy was found in a notebook in defendant’s car. The Robbery Trial On August 27, 1979, two men robbed Koll of cash at his pharmacy, located at 939 East Walnut Street in Pasadena. Defendant and James Phillips were charged with the robbery and with felony assault. At the preliminary examination, Koll identified defendant as one of the robbers. On November 3, 1980, the robbery case was scheduled for trial in a department of the Los Angeles County Superior Court located in the Pasadena courthouse. Koll had been subpoenaed as a witness and was on call if needed. During the morning session, before court and counsel started to select a jury, the prosecutor, Gerald Haney, and defense counsel, Adolfo Lara, discussed a disposition by plea. Haney offered to drop the assault charge if defendant pled guilty to robbery. According to Haney, Lara left the room to talk to defendant, then returned and said, “My guy wants to think about it over—during the lunch hour.” Around 11:30 or 11:45 a.m., court recessed until 1:45 p.m. At the beginning of the lunch break, a bailiff saw defendant make a telephone call from the hallway just outside the courtroom. Brother Ed Bryant, an acquaintance of defendant, saw him sometime between 11:30 a.m. and noon in the hallway. Bryant invited defendant to join him for lunch, but defendant declined, saying he had something else to do. While in his office during the lunch hour, Haney learned that Koll had been shot and killed. He returned to the courtroom around 1:25 p.m. When defendant and his attorney, Lara, entered, Haney asked Lara whether his plea offer had been accepted. Lara answered that his client wanted to go to trial. Haney then told Lara and defendant that Koll had been killed. While Lara reacted with incredulity, defendant had no reaction at all, “not a flicker of emotion.” A Pasadena police officer who witnessed the conversation agreed that Lara reacted with surprise and disbelief, while defendant had “no reaction whatever.” Police arrested defendant later that afternoon, during a recess in the robbery trial. When officers sought to test defendant’s hands for gunshot residue in a conference room just outside the courtroom, defendant asked to use the bathroom first and, when he was refused, became agitated, yelling, “I got to take a piss, I got to take a piss.” The residue test proved negative, but, according to an expert, this result was inconclusive as to whether defendant had fired a gun; residue would be absent if a shooter wore gloves while firing, and could be washed off the hands or removed by incidental rubbing. Eyewitnesses Roll’s pharmacy, at 939 East Walnut Street, was near the comer of Walnut and Mentor Avenue. Two witnesses who worked in the Pacific Telephone training center at 959 East Walnut were eating lunch outside their building about 12:20 p.m. on November 3, 1980. They noticed a man walking by who, despite the hot weather, was wearing a denim jacket and pants, gloves, and a blue motorcycle helmet with a smoky-colored shield covering the man’s face. The man was about five feet eight inches tall, and the skin of his wrist, which one witness saw, was dark. The man crossed Mentor and turned the comer onto Walnut. A few minutes later, these witnesses saw the same man running in the opposite direction, holding his hand to the helmet as if to keep it from falling off. In the same building as the pharmacy were a dentist’s office and, directly across the hall from the pharmacy, a hearing aid center. Between 12:15 and 12:30 p.m. on the day of the killing, the dentist, Loran Kitch, and his secretary-bookkeeper, Donne Rogers, returned from lunch. They stopped briefly to speak to Koll, then went into the hearing aid center to talk to Carmen Saad, who worked there. As they stood talking, Rogers saw a man of medium height wearing a denim jacket and pants, gloves, and motorcycle helmet she described as green or bluish-green walk from the elevator area into the pharmacy. Immediately thereafter she heard gunshots. The shots were in two groups of two or three, with a pause in between. The witnesses took cover, but Saad, looking into the pharmacy, was able to see the gunman’s extended arm and the gun; the man’s wrist had “dark skin but not real black.” Kitch, while getting a phone with which to call the police, glanced at the pharmacy and saw an arm extended over the pharmacy counter. After a few minutes, Kitch and Saad ventured into the pharmacy. Koll was lying on the floor behind the counter, his legs tangled in a stool. Kitch could find neither a pulse nor respiration. He called the police again. The Crime Scene The police dispatcher reported shots fired at the pharmacy between 12:30 and 12:40 p.m. At the pharmacy, responding officers found Koll lying on the floor behind the counter, dead of multiple gunshot wounds. There were bullet holes in the plywood door separating the customer area from Koll’s work area, and splintered wood on Koll’s shirt. Koll held a prescription bottle in his hand, and capsules were scattered on the floor. The cash register was closed, though the safe door was ajar. However, Koll’s wife, Gladys Koll, testified that she examined the pharmacy premises after her husband’s death, checked inventory and cash against records, and determined that neither money nor any controlled pharmaceuticals were missing. Investigators at the scene recovered bullets or fragments under Koll’s leg and on shelves. Two bullets were recovered from Koll’s body in the autopsy. He had been shot seven times, including three shots to the back and one to the chest. An investigator trained in crime scene reconstruction opined, based on the condition of the crime scene, that one or more shots had been fired from the entry of the pharmacy, followed by several other shots from a point closer to Koll. A firearms examiner testified that the projectiles found at the scene and in the autopsy had all been fired from the same revolver. The bullets recovered from Roll’s body were identified as .35- or .38-caliber hollow points. Police later found a .38-caliber bullet casing in defendant’s car and four rounds of .38-caliber target shooting ammunition in defendant’s apartment. The Bubble Shield and Helmet Liner While driving from another part of Pasadena to the crime scene around 12:40 p.m., Pasadena Police Officer John Krayniak noticed a bubble shield from a motorcycle helmet and a cloth hood or liner lying in the street near the intersection of Mountain Street and Mar Vista Avenue. When he arrived at the pharmacy, a sergeant told him to go back and retrieve the items. Krayniak and his partners located the shield and liner about 50 feet from where they had previously seen them. Krayniak put them each in a brown paper bag and returned to the pharmacy, where he gave the bags to investigator David Harris. He did not take the shield to the courthouse at any time that day. On cross-examination, Officer Krayniak testified that later on the day of the killing, he helped prepare an affidavit for a search warrant and reviewed it before it was presented to the judge. The affidavit, signed by investigator Harris, stated that Krayniak had brought the bubble shield to the police department, where Harris examined it. Krayniak testified, however, that that statement was erroneous; he gave Harris the shield at the pharmacy, not at the police department. Investigator Harris testified he received the bubble shield and liner from Officer Krayniak at the pharmacy about 2:30 p.m. He took the shield back to police headquarters shortly after 3:45 p.m. and gave it to Joseph Downs, a police fingerprint technician. Downs confirmed that Harris had given him the shield, in a brown paper bag, at 3:30 or 3:45 p.m. Downs found that a latent fingerprint lifted from the inside of the shield matched an exemplar of defendant’s left middle finger. The identification was verified by fingerprint experts for the Los Angeles County Sheriffs Department and the Los Angeles Police Department. The bubble shield, which was designed to snap onto a helmet, had small amounts of blue paint on its snaps. Pasadena Police Officer John Knebel, who had arrested defendant on unrelated charges in May 1980, testified that at that time defendant was wearing a motorcycle helmet whose blue color matched that on the shield snaps. Pat Booker, who had been living with defendant for several years in the period before the crime, testified that defendant had owned a motorcycle and a helmet with a bubble shield attached, and that he had at some point spray painted the helmet, as well as the motorcycle gas tank, blue. The painting was done outside the rear stairwell of their apartment building, near a metal post set in concrete. The top of the post was covered in blue paint, which Officer Knebel testified was similar to the color of the helmet defendant was wearing when arrested in May 1980. Stephan Schliebe, a criminalist, compared the blue paint specks found on the bubble shield snaps with the blue paint on the metal post from defendant’s apartment building. From microscopic examination and spectroscopic testing, Schliebe concluded the two paints had similar physical and chemical properties and could have come from the same source. The Spiral-bound Notebook Pursuant to a warrant, police searched defendant’s Buick Riviera automobile. In the visor above the front passenger seat, they found a small spiral-bound notebook. On one page was written the telephone number of Roll’s pharmacy. On another page was written the name and address of a store run by defendant’s stepmother, Jacquelyn Snow, who testified she had given defendant that information the Sunday before November 3, 1980, and had urged him to come see her new store. Although at trial Mrs. Snow could not remember whether she had written the information for defendant or given it to him orally, she told an investigator prior to trial that she saw defendant as he drove by her church, told him about the new store, and saw him write the name and address in a small notebook. A document examiner compared the telephone number and store address with an exemplar of defendant’s writing, finding “very good indications” that defendant had written the telephone number and store address. Downs, the fingerprint technician, recovered latent prints from the inside of the front and back covers of the notebook; they matched defendant’s exemplar fingerprints. Travel Time Between Locations Police investigator Harris testified to distances and travel times between various points in Pasadena. From the courtroom where the robbery trial took place (in the courthouse at 300 East Walnut Street) to the supermarket parking lot where defendant’s car was found by police later that day,was about 150 yards and took three minutes on foot. From the supermarket to a parking spot near the pharmacy (at Locust Street and Wilson Avenue) took about four minutes by automobile at posted speed limits. Walking from that spot to the pharmacy building (at Walnut Street and Mentor Avenue), ascending to the pharmacy on the second floor by the stairs, descending by elevator, and walking back to Harris’s car at Locust and Wilson took seven and a half minutes. By car from Locust and Wilson to defendant’s apartment building on Washington Boulevard near El Molino Avenue was 1.9 miles and took about six and a half minutes. From defendant’s apartment building back to the supermarket parking lot took four minutes to drive. Including a walk back to the courthouse, the total travel time was 28 minutes. In addition, Harris timed a route from his parking spot at Locust Street and Wilson Avenue north on Wilson to Mountain Street, west to Los Robles Avenue, and south back to the supermarket parking lot. This took seven minutes to drive. Defendant’s Prior Testimony Over defense objection, the prosecution introduced parts of defendant’s testimony from his first trial as part of its case-in-chief. Defendant denied killing Roll or being at the pharmacy on November 3, 1980. He testified that his robbery trial recessed about 11:45 a.m. on that day. He talked to his attorney, to Brother Ed Bryant, and to another acquaintance, Curtis Moore, before finally leaving the building around 12:10 p.m. He walked to his car, which he had parked in the supermarket lot diagonally across from the court building. During the afternoon, defendant was asked to take a gunshot residue test and agreed. While in the conference room for the test, an officer (Rnebel) took a bubble shield from a paper bag and thrust it at defendant, asking if it was familiar to him. Defendant said it was not and pushed it away. The bubble shield introduced at trial did not belong to him. Defendant testified he had owned a blue motorcycle helmet, but it was stolen months before Roll’s killing. The helmet was blue when he acquired it; he did not paint it. The spiral-bound notebook was his, but he did not write the Roll pharmacy telephone number in it. Guilt Phase Evidence: Defense Defendant’s attorney in the robbery case, Adolfo Lara, testified that he had advised defendant that, based on the photographic lineups he had seen, there was a “misidentification issue” in the case. On the morning of the Roll killing, defendant wore dress slacks, a sports coat, and a shirt and pullover sweater to court. Before the lunchtime recess, Lara discussed Prosecutor Haney’s plea offer with defendant, but they reached no final decision. Lara suggested to Haney that they wait until the afternoon before determining whether the case would be resolved by plea or trial. He denied, however, telling Haney “[his] man wants the noon hour to think it over.” After lunch defendant was dressed as before and was not disheveled or perspiring. According to Lara, defendant was not present when Prosecutor Haney told Lara of Roll’s death. After learning of it from Haney, Lara told defendant privately, outside the courtroom. On the day of the homicide, Joe Ingber, an attorney, was trying a criminal case in the courtroom adjacent to that in which the Roll robbery case was being tried. During the afternoon, Ingber saw a Pasadena police officer, Eugene Gray, confer with another officer, and perhaps another person, at the back of the courtroom. One of the people took a dark motorcycle helmet, with visor, out of a paper bag. The helmet had nothing to do with the case Ingber was trying. Two women who worked in the Pacific Telephone training center testified that on the day of the homicide they went to lunch at a deli across the street from the pharmacy. As they were returning, around 12:20 or 12:30 p.m., a motorcycle sped in front of them. The driver, who one witness said was a White male, was wearing a white helmet with a smoked face shield and a blue windbreaker. Another woman, who worked on Locust Street about a block from the pharmacy, saw a man walk by during the noon hour wearing a blue motorcycle helmet. She told the police she did not think he was Black; he could have been White or Mexican. Pasadena Police Officer Denis Petersen was riding with Officers Rrayniak and Gregory Gray when they saw, and then returned to retrieve, the bubble shield and helmet liner. At a previous hearing, Petersen testified that the officers had found a face shield and helmet. Renneth Carson’s prior testimony was read to the jury. On November 3, 1980, around 6:00 p.m., he went to the Pasadena Police Department with Pat Booker (defendant’s cohabitant) and another friend. After Booker spent about 30 minutes in the police department building, the three drove to the nearby supermarket where defendant had parked his car. It was not yet fully dark. The doors and trunk of defendant’s car were open, and two people were in the backseat. Carson and his companions abandoned their effort to retrieve the car and left. Pat Booker was unable to remember details of the day of the homicide. At a previous hearing, however, she testified that when she came home to the apartment she shared with defendant on that day, before police arrived to execute the search warrant, the apartment was in disarray and someone else had been there. The defense presented Ramesh Kar, a materials scientist, to challenge the paint comparison tests performed by the prosecution expert, Stephan Schliebe. Based on differences in the amounts of zinc, magnesium, silicon and titanium in samples of paint from the bubble shield snaps and the metal post, Kar concluded they were not the same paint. Testifying on his own behalf, defendant denied having either robbed or killed Koll. On the morning of November 3, 1980, he parked his car in the supermarket lot across from the courthouse and attended the morning court session. Just before court recessed, Defense Attorney Lara and Prosecutor Haney retired to the judge’s chambers. Lara came out and told defendant the prosecutor had offered a plea bargain. Court then recessed at 11:45 a.m. or noon, and Lara told defendant to meet him at his office at 1:00 p.m. Defendant telephoned his home, then talked with Brother Ed Bryant and Curtis Moore for a few minutes. He went to the supermarket at 12:15 or 12:20 p.m., bought some food and ate it in his car, staying there for 20 or 30 minutes. About 12:45 p.m., he left on foot for Lara’s office. After they talked, he went up to the courtroom hallway and waited for court to resume. During the afternoon session, Lara informed him privately that Koll had been killed over the lunch hour. Later, he was asked to take a gunshot residue test and agreed; he did not ask to use the bathroom first. While defendant was in the attorney conference room for the test, Sergeant Lynn Froistad came in with a paper bag, which he handed to Officer Rnebel. Knebel took out a bubble shield and pushed it at defendant, asking if it looked familiar. Defendant pushed it away with his left hand. Defendant further testified that prior to November 3 Lara had told him that Koll had identified two or three other people as the robber. Defendant had therefore thought the prosecution had a weak case and had wanted to go to trial for that reason. Defendant testified he bought a motorcycle in April 1980 and gave it to his nephew in August or September of that year. He spray painted the gas tank blue. His helmet was also blue, but he never painted it; it was blue when he bought it. Sometime between June and August 1980, the helmet, with its smoky bubble shield, was stolen from behind defendant’s apartment building. Defendant did not remember having a .38-caliber cartridge casing in his car. He did, however, have some such casings, as well as some .38-caliber target shooting rounds; he collected these at the firing range, kept them in a locking ammunition bag, and traded them back to the range for .22-caliber ammunition. Defendant acknowledged owning the small spiral-bound notebook; it was of a type he used in his home darkroom to record color formulas. He never put any of the notebooks in his car, however, and he never wrote the telephone number of the Koll pharmacy in the notebook. On cross-examination, defendant was impeached with three felony convictions: his 1984 conviction for the Koll pharmacy robbery, another robbery conviction in 1971, and an attempted second degree burglary conviction in 1975. Penalty Phase Evidence The three felony convictions introduced to impeach defendant’s guilt phase testimony, as well as a felony assault conviction arising from the 1979 Koll robbery incident, were also introduced at the penalty phase. In taking notice of the 1984 robbery conviction, the court also took notice that the personal firearm use allegation in that case was found not true. The underlying facts of the 1971 robbery conviction and the 1979 Kollincident assault were proven. In a 1970 robbery, defendant and another man held up a Fresno motel at gunpoint, taking money from the till as well as from the night clerk’s wallet. Defendant, who did not display a gun, cut the clerk with a knife. In the 1979 incident, the preliminary hearing testimony of Edwin Dillhoffer, who had died by the time of trial, was read. Dillhoffer was in the lobby outside Koll’s pharmacy. A large man jumped over the pharmacy counter and hit him in the head with what appeared to be a black sock. He was immediately followed by a smaller man, who knocked Dillhoffer down, breaking his hip. Evidence was also introduced of an unadjudicated 1980 incident of violence. Leroy Smith testified that after defendant’s sister had an argument with Smith’s daughter, defendant left in his car, going to another sister’s house. Smith followed in his own car. Smith parked in the driveway and started to get out of his car, but defendant started shooting a handgun in his direction. Smith got back in the car, took cover behind the dashboard, and backed out. He was not injured, but several shots hit his car. The defense introduced no evidence at the penalty phase. Discussion Guilt Phase Issues I. Sufficiency of the Evidence Defendant contends the evidence at trial was insufficient to justify his conviction for Roll’s murder and that his conviction therefore violated the due process clause of the Fourteenth Amendment to the United States Constitution. The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 2788-2790, 61 L.Ed.2d 560]; People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) “ ‘[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal.Rptr.2d 23, 864 P.2d 103].) “The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 461, 760 P.2d 996].) ‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.’ ” (People v. Stanley (1995) 10 Cal.4th 764, 792-793 [42 Cal.Rptr.2d 543, 897 P.2d 481].) The evidence, though circumstantial, amply supported defendant’s conviction for murder. Roll was killed in a deliberate manner, suggesting execution, not a robbery attempt, indicating his assailant had strong preexisting reasons for wanting him dead. Defendant had such a motive, for Roll had been the only person to identify him as a robber of the pharmacy at the preliminary examination. The only other person who the evidence showed had a motive to kill Roll, James Phillips, was at an all-day family funeral on the day of the killing. Defendant had no corroborated alibi for the time of the killing, and there was sufficient time during the noon recess for defendant to have driven from the supermarket parking lot to the pharmacy, shot Roll, and driven to his apartment and back to the supermarket lot. According to prosecution witnesses, defendant appeared unsurprised when told of Roll’s death shortly after it happened and demanded an opportunity to use the washroom before taking a gunshot residue test. The killer hid his face behind a blue motorcycle helmet with a smoky bubble shield, both items defendant had owned and used in the recent past. While fleeing the scene, the killer was seen to hold one hand to the helmet as if to keep it on. Shortly after the crime, a smoky bubble shield with defendant’s fingerprint on it was found in the street, along a route lying generally between the pharmacy and defendant’s apartment. In addition to defendant’s fingerprint, the bubble shield was linked to defendant through evidence that he had painted his helmet blue and that paint found on the snaps of the shield was the same color as, and in some physical respects similar to, paint found on a metal post near where defendant had painted the helmet. Although the .38-caliber revolver with which Roll was killed was not found, defendant possessed .38-caliber ammunition, suggesting he owned or had access to a handgun that could fire such ammunition. Perhaps most damning, the telephone number of Roll’s pharmacy was written in defendant’s spiral-bound notebook. Although defendant denied having written it, a prosecution handwriting expert found good indications he had, and the defense offered no other explanation for the number’s presence in the notebook. Defendant notes that he and his attorney in the robbery case, Lara, testified that Roll’s identification of him as one of the robbers was vulnerable to challenge at trial; he argues the evidence of motive was therefore insufficient. Nonetheless Roll did identify him at the preliminary examination and was the only witness to do so. The jury could reasonably conclude that defendant did not want to take the risk that Roll’s identification would be credible to a jury. Similarly, defendant emphasizes that his fingerprints were not found at the scene of the crime and that he offered an explanation for his fingerprint on the bubble shield. But the jury was not obliged to believe that explanation and could reasonably have concluded that the bubble shield belonged to defendant. Along the same lines, the evidence was in conflict as to whether defendant was present when Prosecutor Haney told Defense Attorney Lara that Roll had been killed, giving Haney an opportunity to observe defendant’s lack of a visible reaction. The jury, again, could reasonably credit Haney’s recollection of this event over Lara’s and defendant’s. This court cannot reweigh such questions of credibility. The two cases defendant cites as similar to his, People v. Trevino (1985) 39 Cal.3d 667 [217 Cal.Rptr. 652, 704 P.2d 719] and People v. Blakeslee (1969) 2 Cal.App.3d 831 [82 Cal.Rptr. 839], are readily distinguishable. In People v. Trevino, there was no evidence of a motive for murder on the part of the defendant (Rivas), who was a friend of the victim; the conviction rested entirely on an equivocal eyewitness identification and a fingerprint from the defendant in the victim’s apartment, where he had previously been a guest. (Trevino, supra, at pp. 676, 696-697.) Here, the evidence of motive was strong, there was no innocent explanation for the presence of the pharmacy telephone number in defendant’s notebook, and defendant’s explanation of his fingerprint on the bubble shield was contradicted by several prosecution witnesses. In People v. Blakeslee, the evidence established only that the defendant and her brother had both quarreled with the victim, who was their mother (the brother having done so on the night of the killing), that both had access to a rifle (belonging to the brother), and that the defendant had offered police a false account of her movements (intended, she testified, to protect the brother). The evidence was thus at least as consistent with the brother’s guilt as with the defendant’s. (Blakeslee, supra, 2 Cal.App.3d at pp. 837-840.) Here, defendant had a virtually unique combination of motive and opportunity to kill Roll and was connected by other circumstantial evidence (the notebook and fingerprint, and ownership of a blue helmet and smoky bubble shield) to the crime. A reasonable jury could find beyond a reasonable doubt that the circumstantial evidence proved defendant’s guilt. II. Defendant’s Faretta Motion On April 18, 1988, defendant moved to relieve his appointed attorneys, Halvor Miller and H. Clay Jacke, and represent himself. On April 22, before the court ruled on the motion, defendant withdrew it. Defendant now maintains the withdrawal was ineffective because it was motivated by confusion over whether the court was willing to appoint one of his current attorneys as advisory counsel and by counsel’s unfulfilled promise to try to get him cocounsel status. He contends he was thereby deprived of his right of self-representation under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562], Defendant first moved for self-representation on April 18, 1988, but the request was put over to April 21. At a hearing on that day, defendant explained that although he wanted to proceed in propria persona, he wished to keep Attorney Jacke as advisory counsel. The court indicated that if it relieved Miller and Jacke, it was unlikely to appoint either as advisory counsel. The court stated it was “not reasonable to be relieved, the attorneys, then have him come back as advisory counsel.” If advisory counsel were needed, the court would decide whom to appoint, and “[i]t may or may not include these two attorneys.” The matter was continued to the next morning. On April 22, the court stated, inconsistently with the previous day’s record of proceedings, that it had told defendant the previous day that “in the event that he represented himself and he wished advisory counsel, that I would appoint advisory counsel and it would be between Mr. Jacke and Mr. Miller. It was up to him to decide.” The court, however, noted it was unlikely to reappoint them if, at a later time, defendant decided he again wanted an attorney. Defendant thanked the court for “making it clear to me what its intentions were,” but stated he now “would like to withdraw the motion to proceed in pro per.” A short time later, the court again assured defendant that if he did represent himself and wanted advisory counsel, the court would appoint Jacke or Miller as such. The court would not, however, reappoint Jacke and Miller as defendant’s attorneys. Defendant said he understood, though the court’s intentions regarding advisory counsel appeared different than on the previous day. Defendant continued, “nevertheless, my feeling is the court has determined it would not appoint Mr. Jacke or Mr. Miller as my attorney. That’s when I decided not to continue with pro per status.” The record makes plain that defendant’s decision to withdraw his Faretta motion was not the product of confusion regarding the court’s willingness to appoint Jacke as advisory counsel. Though on April 21 the court had suggested such an appointment was unlikely, on April 22 the court twice expressly stated that if defendant represented himself he could choose either Jacke or Miller as advisory counsel. Defendant twice indicated that he understood the court, but nonetheless wished to withdraw the motion. It was the court’s unambiguously expressed unwillingness to consider future reappointment of Jacke and Miller as defendant’s attorneys should he desire to terminate his self-representation, rather than its intentions regarding advisory counsel, to which defendant alluded in explaining his decision not to seek in propria persona status. In withdrawing his motion, defendant also noted that he understood from counsel that the court had indicated it was amenable, as an alternative to self-representation, to “providing [him] some material to help prepare the case.” The court agreed that appointed counsel could obtain “certain law textbooks” and other unspecified materials and that the court, or the department that had appointed counsel, could make an order allowing defendant to have such materials. Counsel subsequently sought, and in part received, permission from the court for defendant to have law library access and to keep research materials and a typewriter in his jail cell. Later—after the Faretta motion was withdrawn—defendant said that, in addition, he “was under the impression that I was entitled to some type of legal status considering I was a sentenced prisoner . . . .” The court observed that he was a state prisoner only as to his robbery conviction, since the murder conviction had been reversed and was to be retried. This issue was not resolved; the discussion ended with defense coúnsel stating they would “file the appropriate motion at the appropriate time.” It appears no motion for special legal status was filed. Defendant claims the withdrawal of his Faretta motion was invalid because it was induced in part by counsel’s misrepresentation. We disagree. The record shows defendant twice stated he wished to withdraw his motion before counsel indicated they would file a motion regarding prisoner status. Defendant in no way indicated that he intended to condition the withdrawal on obtaining such status, and the record does not reflect any attempt to renew his Faretta motion when counsel failed to file a motion. Defendant may have been satisfied with the order allowing him access to research materials, or he may have become convinced that he was not entitled to state prisoner status because his conviction had been reversed. There is thus no indication in the record that the possibility of such status induced defendant to withdraw his request for self-representation. III. Denial of Defense Continuance Requests Defendant contends the trial court’s denial of defense requests for continuances prior to and during trial deprived him of the effective assistance of counsel (in violation of the Sixth Amendment to the United States Constitution), a fair and reliable penalty verdict (Eighth Amendment), and a fair trial (Fourteenth Amendment). We disagree. Continuances in criminal cases may only be granted for good cause. (§ 1050, subd. (e).) While a trial court may not exercise its discretion over continuances so as to deprive the defendant or his attorneys of a reasonable opportunity to prepare (People v. Sakarias (2000) 22 Cal.4th 596, 646 [94 Cal.Rptr.2d 17, 995 P.2d 152]; People v. Fudge (1994) 7 Cal.4th 1075, 1107 [31 Cal.Rptr.2d 321, 875 P.2d 36]), the court’s rulings in this case had no such effect. Defendant complains of the trial court’s treatment of defense motions for continuance on four occasions before, during and after trial. We consider each occasion separately. A. Pretrial continuance denied March 27, 1990 This court’s remittitur, upon reversal of defendant’s first conviction, was filed in the superior court on January 26, 1988, and the matter was placed on calendar for March 7, 1988. On that date, the court reappointed Halvor Miller and Elizabeth Harris, defendant’s attorneys in the first trial, to represent him on retrial. The case was continued to March 30 for pretrial conference. On March 30, Ms. Harris was relieved, and H. Clay Jacke was appointed as Miller’s cocounsel. The next day, at defense request, the case was continued to April 18 for further pretrial proceedings. On April 18, 1988, the parties made their first appearance before the Honorable Jack B. Tso, who would be the trial judge. Judge Tso indicated he was in trial on another capital case and would not be available until the end of May. Defendant made his Faretta motion, which was withdrawn on April 22 as discussed ante, in part II., and, with the agreement of both parties, the court set a pretrial conference date of June 24. On June 10, June 24, July 22, August 19, and September 9, 1988, various defense motions were made and heard. On September 9, the court denied defendant’s motion to recuse the district attorney’s office and, with the agreement of both parties, set a further pretrial/trial setting conference for December 13, 1988, anticipating that jury voir dire would begin early in January 1989. On November 29, 1988, the defense made a written motion for continuance, asserting that counsel needed more time for factual investigation. At the hearing on December 13, Attorney Miller asked for a March 24, 1989, date, which he thought “would be ample time” to complete the defense preparation. With agreement of both parties, the court set a readiness conference date of March 1, 1989, which, with a 20-day time waiver, would mean beginning jury selection on March 21. On March 1, 1989, defendant moved for a further continuance, asserting that Attorneys Miller and Jacke expected to be engaged in other trials through April and June, respectively. Miller suggested July 28 as a trial date. Although disturbed that counsel had allowed other trial commitments to interfere with the agreed date for trial in this case, the court granted the continuance to July 10, 1989, with a 10-day time waiver. The court ordered defense counsel not to become engaged in any other proceedings that would interfere with this trial. On May 26, 1989, the court held a status conference. The prosecutor stated that the People would be ready to begin trial proceedings on July 10, the date previously set. Defense Attorney Miller, however, stated the defense would not be ready because (1) the guilt phase investigation was not complete, (2) the penalty phase investigation had not been started, (3) Cocounsel Jacke was “continuously engaged” in other trials and had been unable to assist, and (4) Miller and Jacke had planned a joint vacation (at a legal conference in China) for late August through early September. Jacke said he was representing a defendant in the “Ninja murder case” who would not waive time; he did not expect to finish that trial until late November 1989. The court suggested that Jacke consider resigning as counsel and that Miller consider obtaining new cocounsel. The court ordered counsel back for a trial setting conference on June 28. On June 28, 1989, Miller stated he was still not ready because Jacke had been unable to help with trial preparation. Jacke not being present, the matter was put over to June 30. On that date, Jacke again explained that he had unexpectedly had to go to trial in another case, which he expected to be finished by November. Miller suggested a “firm date” for trial would be sometime in January 1990, and Jacke suggested the court hold a trial setting conference in November 1989. The court granted the continuance, setting a date of November 17, 1989, for the trial setting conference. Counsel were ordered not to become engaged in any other trials after November 17. On November 17, 1989, the court filed and read a letter from defendant complaining of the delay in beginning his retrial and indicating that another attorney might be willing to take over for Jacke. Both attorneys then asked to be relieved of their appointments, though Miller indicated he could begin trial in four or five months with the prospective new cocounsel, Charles Maple. Jacke explained that he would not be done trying his current capital case until February or March of 1990. The court relieved Jacke, agreed to Maple’s appointment, and continued the matter to February 27, 1990. Miller was ordered not to become engaged in any other case. On February 27, 1990, the court pushed counsel to begin trial in March. Miller protested that he had a conflict with another case {People v. Louis) in which he was also being ordered to trial, and that he could not be ready to try Snow’s case by March 13. Cocounsel Maple suggested March 27 or March 30. The court set trial to begin with jury selection on March 27 and ordered the clerk to notify the jury commissioner that the court would need 100 potential jurors on March 27. On March 13, 1990, Miller moved for a continuance, asserting that he and Maple needed additional time to prepare for trial. On the same day, he filed letters to Judge Tso and to the Honorable Judith Chirlin, also of the Los Angeles County Superior Court, the trial judge in People v. Louis, complaining that because of “competing orders” in the two cases he was being forced to try to prepare both at once. On March 21, Maple filed a continuance motion, asserting that more time was needed because the prosecution apparently had some photographs, taken in connection with the paint analysis, that had not been provided to the defense, and because the defense wished to conduct its own analysis of the paint samples. On March 23, 1990, the court observed that Judge Chirlin had continued her capital case, so Miller was available to try the Snow case. The court also ordered the prosecution to give defense counsel access to any “lab photos and results.” On March 27, 1990, the date set for trial, Miller announced “not ready.” He declined the court’s invitation to elaborate on his claim that he needed more time for preparation. The court denied Miller’s motion, ruling that the “blanket statements” in Miller’s written motion as to the need for further preparation time were inadequate to justify a further continuance. After eliciting the prosecutor’s assurance that all paint photographs in his possession had been given to the defense and that the defense could contact the prosecution expert to determine if there were more photographs, the court also denied Maple’s motion; the court observed that the defense could continue its investigation of the paint samples, as to which the court would appoint an expert if the defense desired, and that if necessary a short continuance in connection with the expert analysis would be considered. We conclude the denial of continuance motions on March 27, 1990, was not an abuse of the court’s discretion, good cause for the requested continuance not having been shown (§ 1050, subd. (e)), nor did it deprive counsel of a reasonable opportunity to prepare the defense. On that date the case had been pending in the superior court for 26 months. The court had already granted numerous and lengthy continuances at defense request. Defendant had repeatedly waived his right to a speedy trial, but had also expressed frustration at counsel’s continual need for continuances. Attorney Miller, who had previously defended defendant on these same charges, had been reappointed over two years before, on March 7, 1988. Miller had previously stated that he expected to be ready for trial in March 1989 and again in July 1989. In November 1989, he stated that he could be ready with new cocounsel, Maple, in March or April 1990. The court did not abuse its discretion in failing to credit Miller’s bare assertion, which he declined to explain further, that he needed more preparation time. Attorney Maple was more recently appointed, but had had several months to acquaint himself with the evidence. Maple did not indicate that he was personally unprepared for trial; rather, his motion rested on the assertion that the paint samples, of which the prosecution had obtained an expert comparison analysis, and related photographs, had not yet been made fully available to the defense. The court ordered all results and photographs produced; indicated it would, if desired, appoint a defense expert to analyze the samples; and would consider a request for a short continuance on these grounds if and when the issue arose. In the absence of concrete information as to the length of time a defense expert analysis would take, the court did not abuse its discretion in beginning the lengthy capital jury selection process on March 27. Defendant cites Little v. Superior Court (1980) 110 Cal.App.3d 667 [168 Cal.Rptr. 72] for the proposition that a trial court may not lawfully require counsel to proceed to trial unprepared. In Little, the deputy public defender assigned to represent the defendant was unable to appear at the preliminary hearing because of a calendaring error. (Id. at p. 670.) A supervising deputy appeared, explained the problem, and moved for a continuance. The prosecutor, who had witnesses summoned for that date, objected, and the court denied the continuance despite the supervisor’s representation that he had never talked to the defendant and was completely unfamiliar with the case. (Ibid.) Little is obviously not on point; defendant here began trial with two attorneys, one of whom had defended him before on the same charges and had been reappointed more than two years earlier, the other of whom had been appointed four months earlier. ' Nor does Hughes v. Superior Court (1980) 106 Cal.App.3d 1 [164 Cal.Rptr. 721], upon which defendant also relies, support his position. In Hughes, the appellate court overturned a contempt order made against a defense attorney who refused to participate in a trial for which he was unprepared. The attorney, a deputy public defender, had been assigned to two cases set for trial on the same Monday. He guessed incorrectly which trial would actually go forward, used the weekend to prepare that case, and then was denied a continuance on the other, unprepared case. (Id. at p. 3.) The limited record before the appellate court did not indicate why he had announced ready on both cases when he was not prepared on one of them; nor, as far as the appellate opinion reflects, did it indicate whether he had had a significant period of time prior to the weekend before trial in order to prepare. (See id. at pp. 5-6.) In the present case, Attorney Miller had more than two years to prepare to represent defendant. He had repeatedly been warned not to take on other trial obligations and was not in fact forced to trial in two cases simultaneously; rather, he was granted continuances in the Louis case, which freed him to finish preparation for, and go to trial on, defendant’s case. The trial court was not obliged to credit his claim that because he did not know which case was actually going to trial he could not prepare either. The court did not abuse its discretion, or deny Miller a reasonable opportunity to prepare for trial, in refusing to grant an additional continuance on March 27, 1990. B. Trial continuance denied April 19, 1990 On April 19, 1990, during jury selection, defense counsel moved orally for a continuance, asserting they needed 45 to 60 days to finish the expert paint comparison work. In an in camera hearing, counsel asserted that the prosecution expert who had previously compared the bubble shield and post paints, Stephan Schliebe, had been uncooperative as to providing his data and samples to the defense and that, once the defense had these materials, their own examination would take up to 30 days. The court suggested Schliebe be subpoenaed to appear the next day in order that the court could order him to produce any needed materials. The court further indicated that it considered excessive the defense estimate of time needed to complete the expert examination and that no continuance would be granted on that basis. After the conclusion of this confidential hearing, defense counsel stated that they intended to seek writ relief in the Court of Appeal. Later that day, as voir dire was completed and the court prepared to swear in the jury, defense counsel moved to defer swearing the jury until the defense writ petition was heard. The court denied that motion. The court also denied a prosecution request for a three-day continuance to “get my witnesses and coordinate the evidence,” noting that “you’ve had two years to be able to get them.” The court did not, by these rulings, abuse its discretion or deprive the defense of a reasonable opportunity to prepare. Counsel’s bare assertion that they would need 30, 45, or 60 days to complete their examination of the paint samples did not constitute good cause for such a lengthy continuance, especially as the prosecution had not even begun to present its own case. Nor does the record indicate the defense was actually prejudiced by the denial of a lengthy continuance for examination of the paint materials. Nor, finally, has defendant even attempted to demonstrate he was prejudiced by the trial court’s swearing in the jury panel before his writ petition was heard and decided. C. Trial continuance granted June 12, 1990 The' jury returned its guilt verdict and special circumstance finding on June 4, 1990. On request of defense counsel, the court ordered the penalty trial to begin on June 12. On June 11, however, Attorney Miller filed a continuance motion asserting that counsel needed additional time for penalty investigation and consultation. At a hearing on June 12, Miller estimated they needed 30 to 45 days to complete their investigation. Despite its “astonish[ment] ” that counsel, having previously represented defendant in a penalty trial and having been reappointed for more than two years, was still unprepared, the court granted the motion for continuance, setting July 17 for the start of the penalty trial. The penalty trial began on July 17, 1990, with presentation of the People’s opening statement and evidence. After the prosecution rested, the defense also rested without giving a statement or presenting any evidence. Defense counsel did not at either time seek an additional continuance or assert they were unprepared for the penalty trial. But on appeal, apparently claiming he should have received a longer continuance before the penalty phase, defendant attributes his trial attorneys’ inaction during the penalty phase to the court’s earlier denials of continuances for trial preparation. We must reject this contention as completely unsupported by the record. In addition to the more than two years Counsel Miller had already represented defendant, the defense was given 42 days (from June 5 to July 17) after the close of the guilt trial to prepare for the penalty trial. That time included a continuance requested by the defense and granted by the court. At the penalty trial, counsel did not request more time, nor did counsel claim that their failure to call any penalty witnesses or present other mitigating evidence was due to lack of preparation. There is thus no basis for the claim that the court’s earlier denial of continuances deprived counsel of a reasonable opportunity to prepare for the penalty phase. D. Posttrial continuances denied September 21 and 25, 1990 The jury returned its penalty verdict on July 19, 1990. The court indicated it would set August 16, 1990, as the date for hearing the automatic motion for modification of verdict and for sentencing, but at the request of defense counsel set those matters instead for August 23, a week later. On August 10, 1990, asserting that the defense needed additional time to prepare a motion for new trial based on the discovery of new evidence, Defense Counsel Miller filed a motion for continuance of the sentencing and modification hearing. On August 23, the court granted that motion, setting a new date of September 21. On September 20, Miller again filed a motion for continuance, again asserting, without particulars, that more time was needed to investigate newly discovered evidence. On September 21, the court denied the motion for failure to give two days’ notice and for lack of specific facts showing good cause. Because Miller was absent due to a fire in his office building, however, sentencing and the modification motion were continued to September 24. On September 24, however, Miller was again absent, this time because of a family emergency. Attorney Maple declared himself unprepared to make the motion for new trial. The court put the matter over to the next. day. On September 25, Maple renewed the earlier continuance motion. Maple explained that in order to corroborate the defense theory of a police conspiracy to frame defendant (apparently by getting his fingerprint on a bubble shield similar to that worn by the killer), the defense had been seeking, but had had difficulty obtaining, Pasadena Police Department reports and hospital records relating to automobile accidents discussed on a police dispatch tape. These reports and records would, the defense hoped, show the true origin of the bubble shield introduced at trial. The court again denied the continuance. We conclude the court’s ruling did not deprive the defense of a reasonable opportunity to prepare a new trial motion. As the prosecutor noted in opposing the continuance, the defense theory of a police scheme to plant evidence against defendant was of long standing (see People v. Snow, supra, 44 Cal.3d at p. 220), and counsel failed to explain why the records now under investigation had not been investigated in preparation for defendant’s first trial or in the two and one-half years since Miller was reappointed to defend defendant in the retrial. Nor did counsel’s explanation demonstrate that a continuance was likely to be useful (see People v. Frye (1998) 18 Cal.4th 894, 1013 [77 Cal.Rptr.2d 25, 959 P.2d 183]); it was far from clear, that is, that a reasonable continuance would allow the defense to obtain records tending to show that the police officers’ testimony about finding the bubble shield was false and that the shield actually had been obtained from some accident scene. There was no good cause to continue the modification and sentencing hearing. IV. Appearance of Judicial Bias Defendant contends that the trial court’s hostile and disparaging comments during trial exhibited such a degree of bias against defense counsel, and so interfered with counsel’s examination of witnesses, as to deprive defendant of a fair trial, the effective assistance of counsel, and a reliable penalty determination. We disagree. First, because counsel failed to object to, or seek a jury admonition regarding, any of the instances of alleged judicial intemperance, the issue is waived on appeal. (People v. Fudge, supra, 7 Cal.4th at p. 1108; People v. Wright (1990) 52 Cal.3d 367, 411 [276 Cal.Rptr. 731, 802 P.2d 221].) Moreover, the claim is without merit; though the trial judge, the Honorable Jack B. Tso, was sometimes impatient with the attorneys for both parties, and though a few of his exchanges with defense counsel were especially contentious, neither separately nor together do these instances of harsh language amount to an unconstitutional display of judicial bias. Although the trial court has both the duty and the discretion to control the conduct of the trial (People v. Fudge, supra, 7 Cal.4th at p. 1108), the court “commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution” (People v. Carpenter (1997) 15 Cal.4th 312, 353 [63 Cal.Rptr.2d 1, 935 P.2d 708]). Nevertheless, “[i]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior.” (U.S. v. Donato (D.C. Cir. 1996) 99 F.3d 426, 434.) Indeed, “[o]ur role ... is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.” (United States v. Pisani (2d Cir. 1985) 773 F.2d 397, 402.) Defendant cites several minor instances assertedly showing the court’s impatience with, or irritation toward, counsel. But such manifestations of friction between court and counsel, while not desirable, are virtually inevitable in a long trial. The trial court frequently addressed the prosecutors in an equally brusque manner. Defendant maintains the court “frequently disparaged and upbraided defense counsel” during counsel’s examination of witnesses. Upon examination, we conclude that, whether or not the court’s evidentiary ruling in each cited instance was correct, in no case did the court display overt bias against the defense so as to deprive defendant of a fair trial. In asking defense counsel whether a line of questioning, on recross-examination of the prosecution fingerprint examiner, was within the scope of redirect, the court neither disparaged counsel’s efforts nor prevented counsel from pursuing cross-examination. Similarly, when the court told counsel not to “argue” with a police investigator, defense counsel rephrased and re-posed his question without objection or court interference. Again, when the court interrupted counsel’s cross-examination of a prosecution witness who had heard the gunshots, urging counsel to “get right to the issue,” counsel complied but eventually returned to the interrupted line of questioning. Whether or not the court’s rulings on cross-examination of Stephan Schliebe, the prosecution paint expert, were correct (see post, pt. VII), the court, contrary to defendant’s claim, did not “berate” counsel in making them. Counsel’s cross-examination was extensive, technical, and at points confusing, and the court’s occasional impatience with repetitious or vague foundational questions did not convey a judicial bias against the defense. On redirect examination of Adolfo Lara, defendant’s attorney in the robbery trial, confusion arose over two aspects of the prosecutor’s cross-examination: On cross, Lara had been confronted with prior testimony in which he described his reaction to the news of Koll’s death as “disbelief,” and had also been denied an opportunity to explain why, once he was convinced Koll really had been killed, he was not “shocked.” On redirect, defense counsel attempted to read additional prior testimony going to the question of what Lara meant by “disbelief.” The court, apparently misrecalling the cross-examination, thought Lara had wanted to explain his “disbelief’ but had been denied that opportunity; the court told defense counsel, instead of reading the testimony, simply to ask Lara what he meant by “disbelief.” Lara then eliminated the source of the confusion by testifying that he was using “shock” and “disbelief’ in the same sense, i.e., to convey that when the robbery prosecutor, Haney, told him Koll had been killed, Lara at first thought Haney was either joking or testing his reaction. The court’s repeated direction that counsel ask Lara what he meant rather than read his prior testimony betrayed judicial confusion—which was soon dispelled by Lara’s testimony—rather than bias. Defendant complains of the court’s treatment of counsel during the direct examination of Ramesh Kar, the defense’s paint comparison expert. Kar’s testimony begins on page 4306 of the reporter’s transcript. Not until page 4394 did defense counsel ask Kar to give his opinion as to whether the paints on the metal post and bubble shield matched each other. Part of the intervening testimony involved the effect of “Bremstrahlung radiation” on electron m