Full opinion text
Opinion CHIN, J. A jury convicted defendant Gregory Calvin Smith of murdering (Pen. Code, § 187), raping (§ 261), and kidnapping (§ 207, subd. (a)) Ai Toyoshima, an exchange student from Japan. It found the murder to be in the first degree and under the special circumstances of rape murder and kidnap murder, and that defendant kidnapped the victim for the purpose of rape. (§§ 190.2, subd. (a)(17), 667.8, subd. (a).) The jury also convicted defendant of other crimes committed the same day against other victims, specifically, attempted robbery (§§211, 664), first degree burglary (§§459, 460), and two counts of felony false imprisonment (§§ 236, 237). As to all counts, it found that defendant personally used a firearm. (§ 12022.5, subd. (a).) The jury found defendant not guilty of sodomy and found not true the related special circumstance allegation of sodomy murder. (§§ 190.2, subd. (a)(17), 286, subd. (c).) After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Guilt Phase 1. Prosecution Evidence On June 16, 1989, Ai Toyoshima, a Japanese student who had come to the United States to learn English, went to a movie with some friends, including her boyfriend, Mitsuhiro Fukumoto, another exchange student. She and Fukumoto then went to a park in Los Gatos and, that evening, got on a bus to go home. Defendant entered the bus at the same time. Around 9:00 p.m., Fukumoto got off at his stop, leaving Toyoshima on the bus. Toyoshima got off near an elementary school in San Jose. Defendant followed her. Defendant accosted Toyoshima and forced her at gunpoint to go to the elementary school, where he raped her. While raping her, he shot her in the chest with a Raven Arms .25-caliber semiautomatic pistol. After shooting Toyoshima, defendant attempted to steal a car parked in front of a nearby liquor store. The store owner, John Ajlouni, tried to stop him. Defendant pointed a gun at Ajlouni, told him to go back into the store, then entered the car. A San Jose police car drove onto the parking lot. Ajlouni told the officers that defendant was trying to rob him and he had a gun. Defendant got out of the car and ran. One of the officers chased him, but he got away. After fleeing the liquor store, defendant entered the home of Roy and Jean Gritter. He pointed a gun at Roy and said, “I shot someone. I can also shoot you.” He said he was looking for a “safe place” inside a home. He stayed for hours, forcing the Gritters to remain at gunpoint. About half an hour after entering the home, defendant made a telephone call to Hilda Ang, the victim’s host parent while she was staying in the United States. Ang was concerned because Toyoshima was late coming home. Defendant told Ang, “You know that park down the way from your house, she’s there,” and hung up. He left the Gritters’ house sometime that night. Ang called the police after receiving the telephone call. A short time later, the police found Toyoshima lying on her back in the school yard, conscious but partially paralyzed. She was dressed but wearing no underwear. She was pale, wet, and cold. It appeared the sprinklers had gone on automatically, drenching her. Paramedics took her to the hospital where, despite emergency medical treatment, she died the next morning. The cause of death was a gunshot wound to the chest. Delay in treatment and hypothermia caused by her getting wet contributed to her death. The bullet had passed through a lung, perforated the left subclavian artery and vein, fractured a vertebra, and partially severed the spinal cord, paralyzing her lower body. Sperm was found on vaginal and anal swabs. There was no other physical evidence of forcible sodomy. Some evidence indicated the vaginal swab may have contaminated the anal swab. Following defendant’s arrest two months later on unrelated charges, he confessed to these events to two sheriffs deputies who were with him in a holding cell while waiting for a lineup. He said he was confessing because it was “eating [him] up inside.” He also said he “didn’t mean to kill her,” and he was “trying to rape her” when “he shot her accidentally.” He said the “girl was struggling with him as he was trying to rape her,” and that “he grabbed her by the throat and started choking her.” She stopped struggling, so he put the gun down. He started penetrating her. As he did so, she reached for the gun and a struggle ensued. She tried to kick him in the groin but missed. In the process, the gun discharged. Defendant started to run away but soon returned. The girl was still alive. She asked him to write down a telephone number so he could call for help. He said he did not want to touch anything because he did not want to leave fingerprints, but if she told him the number he would memorize it. She told him a number and, after he “dressed her,” he ran away. Defendant told about his trying to take the car at the liquor store and then entering the couple’s house. In the house, he called the number the girl had given him and told the person at the other end that “the girl was bleeding in the park and they should call an ambulance.” Eventually, he left the house and managed to elude the police and make his way home, arriving around 3:00 a.m. Defendant said he was not a “violent person,” but that rape was a “power trip” for him and that “the power is what got him excited.” Defendant showed the police where he had hidden Toyoshima’s underpants in some juniper bushes near the school. The police recovered the underpants, which contained semen. Defendant also described where he had disposed of the gun after he left the Gritters’ house. Using this information, the police found the weapon, with the safety on, in a woodshed about two blocks from the Gritters’ house. Ballistics testing established that a shell casing found at the scene of the shooting came from that gun, and the bullet from the body could have been fired from the gun. A firearms expert testified that the trigger pull on the gun was about five and one-half pounds, and the gun was fired between 12 and 15 inches from the body. In defendant’s home in San Jose, the police found a knife, a .38-caliber double-barrel derringer, and some ammunition that did not fit the derringer or the gun used to shoot Toyoshima. 2. Defense Evidence The defense presented expert testimony relating to the sodomy charge of which the jury acquitted defendant, including that there might have been “contamination from the vagina to the anus.” It also presented evidence of police interviews with the Gritters. In addition, defendant testified. Defendant testified that he had an “evil nature,” a portion of himself that he did not like but that had “gotten out of control.” “There’s a part of me stronger at times, and sometimes I overcome it, but it’s there.” He sometimes had a “strong battle, and I needed help to defeat it.” “[Ajfter trying to defeat it for such a long period of time and losing, sometimes winning, and always do [sic] what the urge led me to do, sometimes I would beat myself, but sometimes I wouldn’t, and after losing the battle [that] night, ... I attacked Ai Toyoshima.” Defendant said he went outside that evening “to look for a girl,” not necessarily to rape her but to see “whatever the situation presents.” “[A] strange, funny urge came over me to, like, just go outside and see what happens.” He took a gun that was loaded, he said, with only one bullet. He took it to intimidate or scare, but not actually to shoot. He chose that gun because it was small and easy to conceal. He owned another gun for which he had no ammunition, but he did not take that one. He “noticed Ai Toyoshima that night in a vulnerable situation, and all of a sudden that evil urge, almost like adrenaline[,] kicked in” and drove him to follow her. “The urge was so strong and it overcame me, my better judgment.” He showed the gun to Toyoshima, but only to scare her. He took her to the park and raped her, holding the gun in his hand. At one' point she reached for the gun and kicked at him, and the gun discharged. Defendant denied sodomizing or intending to shoot or kill her. Defendant admitted trying to take the car to make his escape but said he did not intend to deprive the owner of it permanently. He said he intended to “get rid of the car” as soon as he was safe. He also admitted entering the Gritters’ home. He said he was looking for a place to hide. From the house, he called the telephone number that Toyoshima had given him, which he had memorized. Defendant testified that when he was arrested two months later on a different incident, he confessed freely to these crimes. He wanted to “take the responsibility” for what he had done and also to be stopped from doing “something crazy again,” since he could not stop himself. So he gave himself “up on a silver platter.” He “told the officers that I wanted to clear my conscience. I wanted to come clean and [say] that I was sorry for what I had done and that it was an accident. The murder part.” He wanted “the truth to be known.” B. Penalty Phase 1. Prosecution Evidence The prosecution presented evidence that defendant committed additional crimes in 1988 and 1989 that had originally been charged with these crimes but later were severed (and, after the death verdict, dismissed). On September 7, 1988, defendant assaulted a 16-year-old girl as she was walking home from school. He tried to kiss her and put his hand around her throat, threatening to break her neck if she screamed. He tried to force her into some bushes, but a neighbor observed them and called out. Defendant ran away. On November 13, 1988, defendant entered a woman’s apartment as she was watching television, put a knife to her throat, choked her, and threatened to kill her if she screamed. He took about $50 from her purse and left. On November 21, 1988, defendant, armed with a knife, entered the apartment of the mother of the 16-year-old girl he had earlier assaulted. He put a sock in her mouth, blindfolded her, tied her with telephone wire, raped her, and took between $300 and $325, which had been hidden in a pillow. On December 7, 1988, a woman observed defendant standing on her apartment patio behind a partially open sliding glass door and holding a semiautomatic handgun. He told her to open the screen door, which was locked. She managed to close the glass door. He demanded that she open that door. Instead, she got on the floor, crawled into her bedroom, and summoned the police. On December 8, 1988, defendant, armed with a handgun, approached a woman in the garage of her apartment and demanded money. They entered her apartment where she showed him her purse. A friend of hers then arrived. Defendant forced both to lie on the floor while he looked around. He tied both up and later forced the friend into a closet. He blindfolded the woman, took her into the bedroom, hit her in the face, then raped her. At one point, he held the gun to her head and threatened to shoot her. He tied her up again, put her into the closet with her friend, then left, taking $65 to $70 from her purse. In March 1989, defendant entered a woman’s apartment as she was watching television, put a knife to her throat, put his hand over her mouth and nose, and told her not to scream. He forced her onto her bed and tied her hands together. He looked around the house, then raped her and eventually left. On March 24, 1989, defendant approached a 19-year-old girl who was sitting in her car, stuck a knife through the car window, pointed it at her neck, demanded money, took some from her purse, got into the car by forcing the girl onto the other side, cutting her finger in the process, drove the car several miles, and then dropped her off and left with the car. On April 14, 1989, defendant stabbed a woman in the abdomen while she was in the laundry room of her apartment complex. The wound entered the liver and injured a major vein. The woman was critically injured and had to endure two surgeries to save her life. On April 21, 1989, defendant, armed with a gun, approached a 16-year-old girl as she was walking home from high school, threatened to shoot her, forced her to a nearby park, and, when she told him she was having her period, forced her to orally copulate him. Also on April 21, 1989, defendant robbed two gas station attendants at gunpoint of money in the station cash register. On April 27, 1989, defendant assaulted a 17-year-old girl in the bathroom of the same high school, put his hand over her mouth, pushed her into a toilet stall, and put a knife to her neck. On April 28, 1989, defendant grabbed a 16-year-old girl as she was riding a bicycle at the same high school, covered her mouth with his hand, pointed a knife at her, threatened to stab her, forced her to climb a fence, took off her pants and underpants, tied her pants around her face so she could not see, and tried to rape and sodomize her. When someone appeared, he ran away. On August 13, 1989, defendant approached a 14-year-old girl on a bus and spoke with her. Later, off the bus, he approached and spoke with her again, then held onto her. He choked her and started pulling her towards an apartment garage, telling her that she was lucky because he usually carried a “blade.” After a few minutes, the girl managed to break away and escape. On August 14, 1989, defendant approached a 15-year-old girl outside the same high school, tried to kiss her, grabbed her by the neck, said he had a knife, forced her to a more secluded area, and raped her. The prosecution also presented evidence of two incidents of violence in jail. In 1990, defendant threw a chair at his defense attorney at the time, Barbara F., hitting her. In 1991, he assaulted another jail inmate, hitting him and rendering him unconscious. Defendant had a conviction in Nevada for credit card fraud. Previously, during defendant’s guilt phase testimony, the jury had learned that he also had felony convictions for forgery and possession of stolen property. Shintaro and Mieko Toyoshima, Ai’s parents, testified about the impact of their daughter’s death. Ai Toyoshima was 16 years old when she died. 2. Defense Evidence The defense presented substantial evidence in mitigation. Various witnesses, including family members, testified about his childhood and adulthood and his family life. Many expressed their love for him and testified that he was good to his family and others. He loved and cared for his twin daughters. Some witnesses testified that defendant expressed remorse for his crimes. Barbara F., his original attorney, the one at whom he had thrown the chair, testified that she thought that life without the possibility of parole would be the appropriate punishment. One witness testified that defendant once helped rescue passengers in a car accident, at some risk to himself. The defense also presented evidence that before his arrest, there were many suspects in the various crimes, and the victims’ descriptions of their assailant varied. It then played to the jury a tape recording of a statement defendant made on August 16, 1989, in which he confessed to these crimes (a different confession than the one presented in the prosecution’s case-in-chief). The purpose was to show that defendant did not confess because he had been caught, but because he was truly remorseful. II. Discussion A. Jury Selection Issues Defendant contends the court erred in excluding for cause five prospective jurors because of their views on the death penalty, in violation of his state and federal constitutional rights. The applicable law is settled. The trial court may excuse for cause a prospective juror whose views on the death penalty would prevent or substantially impair the performance of that juror’s duties. (People v. Mayfield (1997) 14 Cal.4th 668, 727 [60 Cal.Rptr.2d 1, 928 P.2d 485].) “On appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.” {Ibid.) We have reviewed the record as to each of the five prospective jurors and find no basis on which to overturn the trial court’s rulings. All gave conflicting and sometimes ambiguous statements, but all also made statements supporting the court’s findings that their views would at least substantially impair the performance of their duties. The first twice answered in the affirmative when the court asked whether her views would prevent or substantially impair her ability as a juror. The second time, she stated, “I guess I would have to say it would prevent or somehow impair ... on the knowledge I have right now.” The second answered in the affirmative when the district attorney asked whether the knowledge that the case might require a decision on the death penalty would “substantially impair [her] ability to act as a juror in this case.” She later told the court that her views “could” interfere with her ability to perform her duty as a juror. The third said, “I always thought I couldn’t [return a death verdict], so probably when it came right down to saying that, I probably couldn’t.” When the court asked whether she would automatically vote against the death penalty, she answered, “Yeah, I think so.” The fourth stated, “No,” when asked whether she could “ever possibly choose the death penalty.” The fifth said he would automatically return a verdict of life without the possibility of parole. When the court asked whether his feelings would substantially impair his ability to follow the law, he responded, “I’m afraid it would.” Defendant cites other statements by these prospective jurors that would have supported keeping them as jurors. The question before us as a reviewing court, however, is whether the evidence supports the actual rulings, not whether it would have supported different rulings. Here the record supports the trial court’s findings that these prospective jurors’ views would substantially impair the performance of their duties. Defendant also contends the district attorney committed misconduct during jury selection. In questioning one of the prospective jurors that the court later excused for cause, the prosecutor asked: “You can walk by Tiffany’s and you can look in the window and you can meaningfully consider this $15,000 stone and that gold Rolex watch; right? And you can think, well, I’d rather have this one with the rubies in it or that with the stones in it or this beautiful diamond ring. But there is a difference between considering and choosing. Could you ever possibly choose the death penalty?” Defendant contends the question “undermined the seriousness of the imposition of the death penalty.” The contention fails for several reasons. First, defendant did not object, thus making the claim not cognizable on appeal. (People v. Medina (1995) 11 Cal.4th 694, 740 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Second, the question merely illustrated the difference between considering and actually choosing; it did not suggest that the penalty decision was no more important than selecting jewelry. The prospective juror responded that she could never choose the death penalty, so she continued to take the penalty decision seriously despite the question. Finally, because the prospective juror did not become an actual juror, defendant suffered no prejudice. This final point also disposes of another of defendant’s arguments—that a comment the prosecutor made (over objection) to this prospective juror improperly impugned the integrity of defense counsel. The comment was innocuous but, in any event, no actual juror ever heard it. Defendant also complains of questions the district attorney asked to determine whether the prospective jurors could actually impose the death penalty if they found it appropriate. Defendant objected to one early question. The court permitted the questions as long as they were conditional, that is, if they contained “the proper ‘if s,’ ” and did not simply ask the prospective jurors to return a death verdict. Accordingly, the prosecutor asked similar questions repeatedly during jury selection. Defendant contends the questions improperly asked the jurors “to commit to return a verdict of death before they heard any of the evidence.” We disagree. It would be improper to try to commit the jurors to vote in any particular way. These questions, however, did not do so. They merely sought assurance that the jurors would properly perform their duty and return a death verdict if the prosecution proved capital charges beyond a reasonable doubt and they believed the death penalty was appropriate. The questions were proper. (People v. Riel (2000) 22 Cal.4th 1153, 1178 [96 CaI.Rptr.2d 1, 998 P.2d 969]; People v. Fierro (1991) 1 Cal.4th 173, 209 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) Defendant also contends the questions were inflammatory. He argues, “Asking a prospective juror if he or she could return a death sentence and then pointing to appellant Smith invited the juror to decide the case based upon emotion and not upon fact.” We disagree. The prosecutor’s specific reference to defendant “was an acceptable means of impressing upon each prospective juror that the verdict of death would affect a real person who would be in the courtroom at that time, and sought to elicit whether, under these circumstances, the prospective juror nevertheless would be able to vote for death.” (People v. Samayoa (1997) 15 Cal.4th 795, 853 [64 Cal.Rptr.2d 400, 938 P.2d 2].) B. Denial of Defendant’s Motions for New Counsel Three times during trial, defendant expressed concerns outside the presence of the district attorney about the representation he was receiving from his attorney, David Johnson. On the latter two occasions, he asked the court to appoint new counsel to represent him. The court denied both requests. Defendant argues the denials violated his state and federal constitutional rights to counsel. When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44])—the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 603 [85 Cal.Rptr.2d 132, 976 P.2d 683].) Defendant first complained about his attorney on the second day of the prosecution’s guilt phase case-in-chief. He complained about what he considered inadequate cross-examination of prosecution witnesses, but he also said he did not “really want to fire my attorney, because there’s no personal conflict.” The court told defendant that he had the right to request new counsel and explained what showing he would have to make. It also expressed concern that substitution at that time would “impact the normal, orderly process of the trial that we are now undertaking.” The court made no ruling because defendant made no motion, but it made clear that defendant could later move for new counsel if he wished. Defendant’s first actual Marsden motion, in which he did seek new counsel, occurred after the jury had reached its guilt verdict and before the penalty phase began. Defendant stated a number of specific complaints about his attorney’s representation, and the court allowed the attorney to respond. Defendant also stated, “I think our relationship has broken down.” He had no “trust” or “confidence” in counsel and complained that counsel did not follow his advice. The court asked the attorney to ponder whether the relationship had broken down such that he could no longer provide proper representation, but otherwise it found no basis on which to discharge counsel. It explained to defendant that his objections “boil down to differences of opinion as to tactics . . . which are the sole responsibility of’ counsel. Defense counsel then stated that, based on what defendant had said, he “can’t disagree” that the “relationship [has] broken down to the extent that I can no longer competently represent [defendant].” He asked for more time to consult with other attorneys to decide what he should do in this situation and how much information he should give the court. The court continued the hearing to the next day. The next day, defense counsel merely submitted the matter without further comment. The court then denied the motion for new counsel in a detailed ruling. It discussed defendant’s specific complaints and found them insufficient because tactical decisions are within the “sole prerogative of counsel, and [do] not in any way constitute grounds for dismissal on the basis of incompetency.” It found that counsel “was not only entirely competent, but [he] gave [defendant] an excellent representation presented in an understandable way, the only defenses which would be reasonably accepted to the jury. The evidence against the defendant was overwhelming, the record is free of prejudicial error.” It also found “that the apparent breakdown of the relationship” was not “controlling,” because defendant “could not have reasonably expected, based upon the law and the facts of this matter, defense counsel to have done anything other than what was done to this stage of the proceedings.” Defendant made his second motion for new counsel after the presentation of evidence at the penalty phase and before jury arguments. The court permitted defendant to state further reasons why he believed counsel was providing inadequate representation. The court stated it needed no response from counsel as to all but one complaint because it had had the opportunity to observe counsel in court. It asked counsel to respond to defendant’s complaint that he had failed to call certain “character witnesses.” Counsel stated it was his judgment that these witnesses would have been insufficiently beneficial to call them, and that in his professional opinion, he presented the best case in mitigation that the circumstances allowed. The court denied the motion. We find no abuse of discretion. Defendant asserts he “was denied the opportunity to develop a record sufficient for this court to review the error in light of all of the evidence.” On the contrary, the court gave defendant full opportunity to air all of his complaints, and counsel to respond to them. Defendant’s specific complaints merely showed a disagreement as to tactics, not deficient performance. Disagreement concerning tactics, by itself, is insufficient to compel discharge of counsel. (People v. Hart, supra, 20 Cal.4th at p. 604.) Defendant cites his claim that his relationship with counsel had “broken down” and counsel’s statement that he could not disagree that the “relationship [has] broken down to the extent that I can no longer competently represent [defendant].” However, counsel’s statement was based on what defendant had told the court and does not itself compel the court to grant new counsel. A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney. (People v. Berryman (1993) 6 Cal.4th 1048, 1070 [25 Cal.Rptr.2d 867, 864 P.2d 40].) Moreover, the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness. (People v. Barnett (1998) 17 Cal.4th 1044, 1086 [74 Cal.Rptr.2d 121, 954 P.2d 384].) Defendant did not show that defense counsel did anything to cause any breakdown in their relationship. “[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.” (People v. Smith (1993) 6 Cal.4th 684, 696 [25 Cal.Rptr.2d 122, 863 P.2d 192].) “The denial of a motion to substitute counsel implicates the defendant’s Sixth Amendment right to counsel. . . .” {Bland v. California Dept, of Corrections (9th Cir. 1994) 20 F.3d 1469, 1475, overruled on other grounds in Schell v. Witek (9th Cir. 2000) 218 F.3d 1017, 1024-1025 (in bank); see People v. Hart, supra, 20 Cal.4th at p. 603.) On direct review of the refusal to substitute counsel, the Ninth Circuit Court of Appeals considers “the following three factors: ‘(1) timeliness of the motion; (2) adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense.’ ” (Bland v. California Dept, of Corrections, supra, at p. 1475; see Schell v. Witek, supra, at pp. 1024-1025.) It found, and we agree, that these elements are consistent with California law under People v. Marsden, supra, 2 Cal.4th 118, and its progeny. (Bland v. California Dept, of Corrections, supra, at pp. 1475-1476.) These factors demonstrate the court acted within its discretion. First, defendant’s efforts to replace counsel came during trial. To grant the motion “would have required either a significant delay or a mistrial.” (Hudson v. Rushen (9th Cir. 1982) 686 F.2d 826, 831.) “It is within the trial court’s discretion to deny a motion to substitute made on the eve of trial where substitution would require a continuance.” (Bland v. California Dept, of Corrections, supra, 20 F.3d at p. 1476.) This is even more true if the motion is made during trial. In this case, it is hard to imagine the trial court could have found new counsel who could have prepared for the capital penalty phase quickly enough to proceed with the same jury. Granting defendant’s motion would no doubt have necessitated not just a continuance but a mistrial, which would have required selecting a whole new jury. A court may not automatically deny a motion for new counsel during trial no matter what the showing, but it should grant such a motion only when the defendant demonstrates that counsel is truly providing inadequate representation or that a total breakdown in the relationship has occurred that the defendant did not cause. Second, as we have seen, the court conducted a full inquiry into defendant’s complaints. It allowed defendant to express himself fully. Its inquiry was “as comprehensive as the circumstances reasonably would permit.” {Hudson v. Rushen, supra, 686 F.2d at p. 831.) “The court invited defendant to make a statement, listened to defendant’s reasons for desiring new counsel, and found them to be without merit.” {Ibid) Finally, defendant did not make such a compelling showing of a conflict between himself and counsel that the court had to grant the motion. In Hudson, after the trial court denied a motion for new counsel, the defendant refused to cooperate with counsel or participate further in the trial and simply remained in his holding cell. (Hudson v. Rushen, supra, 686 F.2d at p. 829.) Nevertheless, the reviewing court found no abuse of discretion. “The reason for this complete breakdown was the voluntary conduct of defendant, not any failure by the trial court to adequately inquire into the reasons for the conflict.” {Id. at p. 831.) “In sum, the record is clear that the trial court provided defendant with repeated opportunities to voice his concerns, and upon considering those concerns reasonably found them to be insufficient to warrant relieving trial counsel. We therefore find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in declining to substitute counsel.” (People v. Hart, supra, 20 Cal.4th at p. 604.) C. Guilt Phase Issues 1. Admitting Preliminary Hearing Testimony of a Witness Defendant contends the trial court erred in admitting the preliminary hearing testimony of Mitsuhiro Fukumoto, Toyoshima’s boyfriend who had been on the bus with her and defendant, in violation of his state and federal constitutional rights to confront and cross-examine witnesses. The prosecution and defense had arranged to take Fukumoto’s preliminary hearing testimony on April 16, 1990, about two months before the rest of the preliminary hearing, so that he could testify before he left the country. He testified that he was a foreign exchange student from Tokyo, Japan, and expected to be in the United States until his graduation from high school in June 1991. The attorney who represented defendant at the time cross-examined Fukumoto at length. At trial in February 1992, the district attorney sought to have Fukumoto’s preliminary hearing testimony read to the jury because he was unavailable within the meaning of Evidence Code section 240. The district attorney represented that he had received a telephone call from Fukumoto’s host parent in San Diego saying that Fukumoto had left the country. The court accepted the district attorney’s representation as an officer of the court without requiring him to testify formally. The district attorney also offered to call a witness to show that Fukumoto was no longer in the country, partly “to support the fact that the prosecution made a good faith effort to secure the attendance of this witness.” He called Grant Cunningham, an investigator for the district attorney’s office. Cunningham testified that about six days previously, in an attempt to locate Fukumoto, he had called what the district attorney’s records indicated was Fukumoto’s telephone number in Japan. He asked to speak to Mitsuhiro Fukumoto. A male voice answered, “Yes, this is me.” When defendant objected that the testimony was hearsay, the court admitted it to show what the investigator did, but not for the truth of the matter asserted. The district attorney argued that a “good faith effort” relates to the “information that this witness had available to him,” and thus the testimony had a nonhearsay purpose. On questioning by the court, Cunningham testified that he felt he was unable to compel Fukumoto’s presence in court because he was in Japan. After the hearing, the court found that Fukumoto was unavailable as a witness within the meaning of Evidence Code section 240. Fukumoto’s preliminary hearing testimony was then read to the jury. A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. (Barber v. Page (1968) 390 U.S. 719 [88 S.Ct. 1318, 20 L.Ed.2d 255]; People v. Enriquez (1977) 19 Cal.3d 221, 235 [137 Cal.Rptr. 171, 561 P.2d 261, 3 A.L.R.4th 73], disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; Evid. Code, § 1291.) The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must “have made a good-faith effort to obtain his presence at trial.” (Barber v. Page, supra, at p. 725 [88 S.Ct. at p. 1322], quoted in People v. Enriquez, supra, at p. 235; see also Ohio v. Roberts (1980) 448 U.S. 56, 74 [100 S.Ct. 2531, 2543, 65 L.Ed.2d 597].)' The California Evidence Code contains a similar requirement. As relevant, it provides that to establish unavailability, the proponent of the evidence, here the prosecution, must establish that the witness is absent from the hearing and either that “the court is unable to compel his or her attendance by its process” (Evid. Code, § 240, subd. (a)(4)) or that the proponent “has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process” (Evid. Code, § 240, subd. (a)(5)). The constitutional and statutory requirements are “in harmony.” (People v. Enriquez, supra, at p. 235.) The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. (People v. Price (1991) 1 Cal.4th 324, 424 [3 Cal.Rptr.2d 106, 821 P.2d 610].) Defendant does not dispute that if Fukumoto were in Japan, he would have been unavailable. But defendant argues the prosecution showed that he was in Japan only by hearsay, which is not competent evidence. The Attorney General responds that defendant did not object on hearsay grounds to the district attorney’s representation that Fukumoto’s host parent had told him that Fukumoto had left the country. We disagree. Defendant objected on hearsay grounds repeatedly throughout the hearing. It was clear he was objecting to all hearsay. The court admitted the hearsay evidence merely to show what the prosecution did, but not for the truth of the matter asserted. The Attorney General also argues that Fukumoto’s preliminary hearing testimony that he intended to leave the country in June 1991 was admissible as a statement of intent to do a future act under Evidence Code section 1250. (See Assem. Com. on Judiciary com., 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foil. § 1250, p. 280 [“[A] statement of the declarant’s intent to do certain acts is admissible to prove that he did those acts”]; People v. Alcalde (1944) 24 Cal.2d 177, 185-188 [148 P.2d 627].) We need not decide whether the testimony was admissible for that purpose or was sufficient to sustain a finding that he was, in fact, out of the country at the time of trial. This is because the prosecution did not have to prove Fukumoto was actually out of the country. It only had to prove that it had exercised reasonable or due diligence (the terms are interchangeable; People v. Cromer, supra, 24 Cal.4th at p. 898) or, as stated in the equivalent federal constitutional language, had made a good faith effort to obtain the witness’s presence at trial. As relevant, Evidence Code section 240 provides two closely related but slightly different ways in which a person may be shown to be unavailable. In this case, the prosecution could either show that Fukumoto was absent “and the court is unable to compel his . . . attendance by its process,” i.e., that he was in Japan, or that he was absent and it “has exercised reasonable diligence but has been unable to procure his . . . attendance by the court’s process.” (Evid. Code, § 240, subd. (a)(4), (5).) As this case demonstrates, trying to prove a person is, in fact, outside the country can raise substantial practical difficulties because of the hearsay rule. But the due diligence requirement is different. That requirement focuses on what the proponent of the evidence, here the prosecution, did, that is, whether it made reasonable efforts to obtain the witness. The statements by the host parent and the male voice at the end of the line at the Japanese telephone number were admissible on this question, not to prove the truth of the matter asserted, but to show what efforts the prosecution made to ascertain Fukumoto’s whereabouts. At trial, the prosecution and court treated these two portions of Evidence Code section 240 somewhat interchangeably. In its ruling, the court referred to both provisions, although its ultimate finding was that Fukumoto “is a resident of the country of Japan and therefore is not subject to the process of this court to compel his attendance.” The court did not specifically find the prosecution had exercised due diligence to try to procure Fukumoto’s attendance. When, as here, the facts are undisputed, a reviewing court decides the question of due diligence independently, not deferentially. (People v. Cromer, supra, 24 Cal.4th at pp. 900-901.) In this case, reviewing the record independently, we conclude the prosecution satisfied its burden of showing due diligence. The prosecution obtained three important pieces of information: (1) Fukumoto testified at the preliminary hearing that he was a Japanese national and intended to leave the country several months before the trial occurred, (2) Fukumoto’s host parent told the district attorney that Fukumoto had left the country, and (3) the district attorney’s investigator had called the telephone number in Japan that the records showed was Fukumoto’s number and heard a voice at the other end say he was Fukumoto. This information may have been legally incompetent, due to the hearsay rule, to show that Fukumoto was actually in Japan. But it sufficed to show that the prosecution made reasonable efforts to locate him and that further efforts to procure his attendance would be futile. The prosecution must take reasonable steps to locate an absent witness, but need not do “a futile act.” (Ohio v. Roberts, supra, 448 U.S. at p. 74 [100 S.Ct. at p. 2543].) The prosecution did locate Fukumoto, but in Japan, outside the court’s jurisdiction. In the functioning world outside the courtroom, people often rely on hearsay and, under the circumstances of this case, the prosecution reasonably did so. The prosecution met its burden of showing due diligence, and the court properly found Fukumoto was unavailable as a witness. Defendant also argues that the court erred in admitting the preliminary hearing testimony because of the differences between a preliminary hearing and a trial. To admit prior testimony of an unavailable witness, the party against whom it is offered, here the defendant, must not only have had the opportunity to cross-examine the witness at the previous hearing, he must also have had “an interest and motive similar to that which he has at the [subsequent] hearing.” (Evid. Code, § 1291, subd. (a)(2); see People v. Zapien (1993) 4 Cal.4th 929, 974-975 [17 Cal.Rptr.2d 122, 846 P.2d 704].) Defendant argues that a defendant has less incentive to cross-examine at the preliminary hearing than at trial. However, we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness. (E.g., People v. Zapien, supra, at p. 975.) Here, defendant had even greater incentive to cross-examine Fukumoto at the preliminary hearing than is normally the case. The whole point of the early testimony was to allow Fukumoto to testify before he left the country. At that time, defendant knew the witness would likely be unavailable at trial, and the prosecution would seek to use the preliminary hearing testimony. Defendant finally argues that defense counsel failed to ask certain questions while cross-examining Fukumoto. This argument can always be made, as one can always think of additional questions. However, it is the opportunity and motive to cross-examine that matters, not the actual cross-examination. “As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity.” (People v. Zapien, supra, 4 Cal.4th at p. 975.) Accordingly, we find no error in admitting Fukumoto’s preliminary hearing testimony. 2. Other Evidentiary Issues a. Evidence of the victim’s medical treatment Over defense objection, the court permitted the doctor who treated Toyoshima at the hospital to testify about her condition and the treatment she received before she died. Defendant contends the evidence was irrelevant and, even if relevant, was unduly prejudicial. The district attorney offered the testimony, in conjunction with the autopsy evidence, to show “that she died as a result of a combination of several different factors.” The court found the evidence relevant and that its probative value outweighed its prejudicial effect. A determination of relevance and undue prejudice lies within the discretion of the trial court, and a reviewing court reviews that determination for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 264 [14 Cal.Rptr.2d 377, 841 P.2d 897].) We find no abuse of discretion. The evidence was not of great significance, but it had some relevance. Evidence of the efforts to save Toyoshima’s life helped the jury to understand how and why she died. For example, the doctor testified that hypothermia and bleeding over time were significant factors in her death, which meant that the delay in giving her care greatly lessened her chances of survival. That evidence was, in turn, relevant to help the jury to evaluate the significance of defendant’s delay in calling her host parent. The evidence did not have great probative value, but we also see little prejudicial effect. Defendant claims the testimony was “sensational,” but it was not. It was merely a factual recitation, unaccompanied by photographs or other visual images, of her condition and the efforts to save her. The jury would certainly expect the doctor to make extensive efforts to save her, as he did. We see nothing that would inflame the jury. Moreover, any error would have been harmless. Defendant admitted kidnapping and raping Toyoshima and shooting her during the rape. Because defendant was the actual killer, intent to kill was not an element of the felony-murder special circumstances. (People v. Anderson (1987) 43 Cal.3d 1104, 1147 [240 Cal.Rptr. 585, 742 P.2d 1306].) Thus, defendant essentially confessed to her first degree felony murder and the kidnapping and rape special circumstances. The only truly contested issue regarding the charges involving Toyoshima was whether he sodomized her. The jury acquitted him of sodomy and found not true the related sodomy special circumstance. This shows the jury considered the evidence dispassionately in reaching its verdict. The challenged evidence would clearly have been admissible at the penalty phase even if not at the guilt phase (People v. Hovey (1988) 44 Cal.3d 543, 576 [244 Cal.Rptr. 121, 749 P.2d 776]), thus obviating any possible prejudice at that phase. b. Evidence that defendant owned a derringer and ammunition Over defense objection, the court admitted evidence that the police found in defendant’s house a derringer and ammunition that fit neither the murder weapon nor the derringer. Defendant contends the court erred under People v. Riser (1956) 47 Cal.2d 566 [305 P.2d 1] because the evidence established that neither the derringer nor the ammunition was used in the killing. In Riser, we held that “[w]hen the prosecution relies ... on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.” (Id. at p. 577.) The Attorney General responds, first, that defendant did not separately object to the ammunition. We disagree. Reasonably viewed, defendant’s objection extended to both items. The major discussion at trial involved the derringer, but when the court admitted that evidence, admission of the ammunition was a logical consequence. When the court said the ammunition would come in as well as the derringer, defendant did not renew his objection, but the court no doubt understood the original objection extended to both. On the merits, we find no error. This evidence did not merely show that defendant was the sort of person who carries deadly weapons, but it was relevant to his state of mind when he shot Toyoshima. In his confession and opening statement to the jury, defendant claimed the shooting was an accident and he did not intend to kill her. In his later testimony, he said he took the gun to intimidate but not to shoot, and he chose the murder weapon because it was small and easy to conceal. Evidence that he possessed another small, easily concealed but unloaded gun and no ammunition that fit it, and that he chose instead to take a loaded gun, was relevant to defendant’s credibility on this point. An unloaded gun fully serves to intimidate; a loaded gun is necessary only to actually shoot. Thus, although the ammunition and derringer were not used in the killing, “[t]heir circumstantial relevancy . . . seems clear,” and they were, accordingly, properly admitted. (People v. Lane (1961) 56 Cal.2d 773, 785 [16 Cal.Rptr. 801, 366 P.2d 57]; see also People v. Neely (1993) 6 Cal.4th 877, 896 [26 Cal.Rptr.2d 189, 864 P.2d 460].) c. Cross-examination of defendant Defendant contends that the trial court erroneously permitted the district attorney to cross-examine him in certain respects. “When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (People v. Cooper (1991) 53 Cal.3d 771, 822 [281 Cal.Rptr. 90, 809 P.2d 865].) Under this standard, we find no error. Defendant first complains that the district attorney questioned him about two rapes that postdated the charged crimes. On direct examination, defendant testified that he had freely confessed to ease his conscience, to be stopped from doing “something crazy again,” and to let the truth be known. Whether he confessed solely for these noble reasons, or because he had been caught and was trying to make the best out of a bad situation, was relevant to the motivation behind, and hence to the credibility of, the confession and defendant’s subsequent testimony. The credibility of defendant’s confession and testimony was, in turn, relevant to a number of issues at trial. Although defendant essentially confessed to some of the charges, he did not confess to every element of every charge. He denied sodomizing Toyoshima. He denied intending to deprive the car owner of the car permanently, which, if believed, would negate guilt of the attempted robbery charge. (See People v. Guerra (1985) 40 Cal.3d 377, 385-386 [220 Cal.Rptr. 374, 708 P.2d 1252].) He implicitly denied entering the Gritters’ home with the intent to commit false imprisonment or any other crime, which, if believed, would negate guilt of the burglary charge. (People v. Frye (1998) 18 Cal.4th 894, 954 [77 Cal.Rptr.2d 25, 959 P.2d 183].) He also claimed he did not intend to kill Toyoshima; accordingly, although intent to kill was not legally required for any of the charges, the prosecution was also entitled to challenge this assertion. For these reasons, the district attorney properly cross-examined defendant on his motivation to confess. At one point, he sought permission to ask questions about whether defendant had confessed only after he had committed two recent rapes and had already been arrested. He argued that these questions were relevant to show that defendant was merely “trying to put things in the best light, and that’s the reason that he made this self-serving statement, that confession that states that this was an accidental killing.” The court ruled that the district attorney could go into a “very limited area of the reasons that he was arrested.” It did not permit questions about the earlier crimes, but it allowed questions about “the circumstances of why he was a suspect and brought in on these charges [so] as to refute his claim that he would have volunteered this confession in absence of any other actions pending against him.” The district attorney then elicited the testimony that defendant did not confess until after he had committed two additional assaults, one on a 14-year-old girl and one on a 15-year-old girl (i.e., the assaults of August 13 and 14, 1989). Defendant still insisted that he did not confess merely because he knew he had been caught. The district attorney did not elicit details of the assaults or mention any of the earlier crimes. This limited cross-examination was permissible in light of defendant’s testimony on direct examination. Evidence that defendant did not confess until he had been arrested for two more assaults and was a suspect in this case was probative on why and under what circumstances he confessed, and thus to the credibility of that confession. Defendant next complains that the district attorney questioned him about the attention he had been giving to a “young, small, Asian woman” reporter who had occasionally been in the courtroom. Defendant admitted that he liked “Asian women” but denied that he had paid special attention to this person. Defendant contends this questioning was irrelevant and should not have been permitted. However, he failed to object to the questions, thus making the issue not cognizable on appeal. (People v. Cooper, supra, 53 Cal.3d at p. 822.) After this questioning, defendant objected to another line of questions, which the court sustained. In arguing the point outside the presence of the jury, defense counsel argued that the questions to which he objected had no bearing on the case, “anymore so than asking him about the Japanese reporter [obviously referring to the same person].” But counsel never objected to the earlier questions or asked that anything be stricken. In any event, the questioning was surely harmless. Defendant denied paying particular attention to this reporter and, as the trial court noted, “the incident regarding the Japanese reporter, I presume is something the jury could have observed.” Defendant also complains of questioning about his sexual relationship with his wife. Defendant testified on cross-examination that he raped “for the sexual satisfaction, not for the power trip.” The district attorney asked, if that were the case, why did he not just go home to his wife. Defendant responded that sometimes she “was on her period” and sometimes they were fighting. He denied that he sometimes raped a woman so he could then go home and have sex with his wife. When the district attorney asked about an inconsistent statement he had made to a police officer, defendant objected and moved for a mistrial. The court denied a mistrial. Noting that on direct examination defendant had “virtually described himself as a serial rapist,” it permitted questions regarding defendant’s motive for rape while prohibiting questions about specific uncharged crimes. Defendant admitted that earlier he had stated, “[Wjhat’s weird is my wife was right here and she’s willing to make love to me any time, and sometimes I didn’t want to make love to her until I made love to another lady.” These limited questions regarding defendant’s motive for rape were also permissible. The prosecution did not elicit details about other crimes or even suggest they were numerous. On direct examination, defendant had made clear that sometimes his “evil” side had prevailed, and he had raped on other occasions. Accordingly, we see no error and no prejudice. Defendant contends the questioning was impermissibly prejudicial at the penalty phase. We disagree. Defendant’s motivation for raping Toyoshima was clearly relevant to the penalty determination as a circumstance of the crime. (§ 190.3, factor (a).) 3. Alleged Prosecutorial Misconduct Defendant contends the prosecutor committed misconduct while cross-examining him. The district attorney questioned him extensively about the relative positions he and Toyoshima had occupied when he shot her. He also asked how defendant’s testimony could be reconciled with the evidence regarding the bullet’s trajectory. Defendant admitted he could not explain it and said “this thing happened fast.” During this questioning, the prosecutor also asked if she had been kneeling in front of him and had bitten him, and whether he had been forcing her to orally copulate him, eliciting denials in each instance. Later, defendant moved for a mistrial, contending that these latter questions were improper. In response, the prosecutor argued that the physical evidence did not support defendant’s version of what had happened but did make it “entirely plausible that she was shot kneeling before somebody.” Therefore, he asked defendant “about the possibility of the oral copulation.” The court denied a mistrial, finding the questions not improper because “it’s an issue for the jury to determine.” The court did not abuse its discretion in denying a mistrial. (People v. Silva (2001) 25 Cal.4th 345, 372 [106 Cal.Rptr.2d 93, 21 P.3d 769].) “Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide.” (People v. Dennis (1998) 17 Cal.4th 468, 522 [71 Cal.Rptr.2d 680, 950 P.2d 1035]; see also People v. Bolton (1979) 23 Cal.3d 208, 212 [152 Cal.Rptr. 141, 589 P.2d 396].) Here, the prosecutor simply drew an inference from the evidence and asked defendant about it. As defendant argues, it is misconduct for the prosecutor to state facts not in evidence or to imply the existence of evidence known to the prosecutor but not to the jury. (People v. Bolton, supra, at pp. 212-213.) The prosecutor, however, did not do so. It was clear to the jury that the questions were based solely on the evidence it had heard. As the trial court correctly noted, it was up to the jury to determine the reasonableness of the inferences. The record contains no evidence that the prosecutor asked the questions in bad faith. Accordingly, we see no misconduct. Additionally, we see no prejudice under any standard. Defendant argues that the jury deliberated “in an unfairly emotionally charged environment created by the prosecutor’s baseless oral copulation questions.” On the contrary, as noted, the jury reviewed the evidence dispassionately, as shown by its acquittal of the sodomy charge. 4. Instructional Issue The trial court gave the standard jury instruction on weighing circumstantial evidence, including in part that if “one interpretation of such evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (See CALJIC No. 2.01.) Defendant argues that the instruction impermissibly lowered the reasonable doubt standard of proof and created an impermissible mandatory presumption of guilt. We have repeatedly rejected these' arguments and continue to do so. (People v. Seaton (2001) 26 Cal.4th 598, 667-668 [110 Cal.Rptr.2d 441, 28 P.3d 175]; People v. Ray (1996) 13 Cal.4th 313, 347-348 [52 Cal.Rptr.2d 296, 914 P.2d 846].) D. Penalty Phase Issues 1. Late Notice of Aggravating Evidence and Denial of a Continuance Defendant contends the court prejudicially erred in permitting the prosecution to file a late notice of aggravating evidence and denying him a continuance to prepare for the newly noticed evidence. The record does not support the contention. The original notice of aggravating evidence, which the prosecutor filed long before trial, provided notice of all but one of the aggravating incidents later presented at trial. On March 9, 1992 (all further specific dates in this subpart are to the year 1992), at the end of the prosecution guilt-phase case-in-chief, the district attorney filed an amended notice of aggravating evidence, adding six new incidents of alleged criminal conduct, all involving incidents in jail in 1990 and 1991. Ultimately, only one of these new incidents was actually presented at trial, the one in which defendant threw a chair at Barbara F., his attorney at the time. On March 18, after the guilt verdict, the court held a hearing on the admissibility of this eviden