Full opinion text
Opinion MORENO, J. A jury convicted defendant Alfredo Reyes Valdez of the first degree murder of Ernesto Macias (Pen. Code, § 187, subd. (a)) and of escape from custody (§ 4532, subd. (b)). The jury found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)) and that defendant personally used a firearm (§§ 12022.5, subd. (a), 1203.06, subd. (a)(1)). The jury also found true that defendant had previously suffered three serious felony convictions. (§ 667, subd. (a).) After a penalty trial, the jury returned a verdict of death. This appeal from the resulting judgment is automatic. (§ 1239.) We affirm the judgment in its entirety. I. Facts and Proceedings At approximately 3:15 a.m. on Sunday, April 30, 1989, the body of Ernesto Macias was found lying on a curb a few houses from his home. He had been shot from close range multiple times in the head and upper body. One of the pockets of his pants was turned inside out, and bloodstains were discovered on the interior of that pocket. His jewelry was undisturbed and approximately $80 was found in his other pocket. Defendant was the last person seen with the victim. A. Guilt Phase 1. Prosecution Evidence a. The Crime The victim lived in Pomona in a house he shared with his cousin Arturo Vasquez. Vasquez and his friend, Rigoberto Perez, spent the day—a Saturday—prior to the murder at the house drinking beer. Later that night, Gerardo Macias (Macias) arrived at the victim’s house to pick up Perez, who was his cousin. Macias testified that upon entering the house, the victim, Perez, Vasquez, and defendant were in the small living room, which also functioned as the bedroom. The victim was lying on a mattress, covered with blankets, and had a Jennings .22-caliber semiautomatic handgun at his side. Perez was lying on a second mattress, with Vasquez sitting next to him. Defendant was standing near the front door. Awake and relaxing, the victim said he wanted to go to sleep because he was leaving early in the morning to catch a plane to Mexico to attend his sister’s wedding. He said he was taking $3,000 with him. Defendant was present during this conversation. Macias drank one or two beers after his arrival, and had been drinking beer earlier in the day as well. Approximately 10 minutes after Macias’s arrival, at Vasquez’s suggestion, Vasquez, Macias, and Perez drove to the nearby house of a friend, Andreas “Pato” Gutierrez to “party.” As they were leaving the house, Macias heard the victim tell defendant in Spanish, using a “kind of mad” voice, to wait outside. Macias did not see defendant leave the house. It took the three men approximately one minute to travel to Gutierrez’s house. Finding that Gutierrez was preparing to go to sleep, they returned to the victim’s house to drop off Vasquez. The round trip took approximately 10 minutes. Macias drove into the driveway of the victim’s house and Vasquez got out of the car. Vasquez walked up to the front door, opened it, and noticed a lot of blood inside. He yelled, “Hey, hey,” and Perez got out of the car and joined Vasquez at the door. Visibly frightened, they ran back to the car and told Macias that they had seen “all kinds of blood.” Because it was the victim’s house, and the gun had been near the victim when the three men last saw him, they thought the victim might have shot defendant. The three men proceeded to drive around the area looking for the victim and defendant. After quickly checking with the victim’s cousin, who lived “down the street,” Macias drove around the block a couple of times, and then noticed a bloody body lying on the curb a few houses away from the victim’s house. Macias was unable to identify the body, but Vasquez recognized it as the victim. Macias drove around the block to a telephone booth, dialed 911, and reported the location of the body. He then drove Vasquez to Gutierrez’s house, drove himself and Perez home, and did nothing further. He testified that he did not wait for the police because he was frightened and had outstanding arrest warrants. b. The Crime Scene Pomona Police Sergeant David Johnson entered the victim’s house with two other officers and observed “blood everywhere.” A broken trail of blood and bloody bare footprints led from the victim’s front concrete porch to the victim’s body. The victim was not wearing shoes and his feet were bloody. Detective Frank Terrio surmised that the victim left the bloody footprints when he walked out of his house bleeding to death. The victim’s left pants pocket was turned inside out and there were bloodstains on the interior of the pocket. He was wearing jewelry and approximately $80 was found in his undisturbed, right pants pocket. Detective Terrio also observed two different shoe prints made in blood on the concrete porch outside the victim’s house. It was clear that the same shoe did not make both prints. One of the shoe prints was only a partial print of the midsole area, and therefore it could not be determined if it was made while the person was entering or leaving the house. This print was consistent with those made by Adidas jogging shoes or Nike walking shoes. The larger shoe print indicated that it was made while the person was leaving the house. Detective Temo testified on cross-examination that the two shoe prints were consistent with two people leaving prints in blood. He also surmised that any officer at the scene could have left one of the prints, but noted that officers generally do not wear tennis shoes to crime scenes. A police work boot, however, exists that has a pattern similar to the one found on the porch. Detectives searched the victim’s house and discovered a Jennings .22-caliber semiautomatic handgun underneath the kitchen sink. They did not find a wallet, money, plane tickets, or a bank savings book. One expended .22-caliber long rifle cartridge casing was found in the victim’s house, along with one .22-caliber “Super X” long rifle cartridge and one .25-caliber cartridge. The Jennings .22-caliber handgun fires .22-caliber long rifle ammunition and holds a total of seven rounds. c. The Investigation The prosecution introduced evidence that on January 12, 1989, 1988 state and federal tax forms were prepared for the victim, requesting a federal tax refund of $1,203. On Friday, April 28, 1989, two days before the murder, a United States Treasury check for $1,203 payable to the victim was cashed at a Bank of America branch office in Pomona. Given the bank’s policy requiring two forms of identification to cash a check, a bank manager opined that the victim cashed the check. A police check and credit fraud expert compared signatures on the victim’s Department of Motor Vehicles handwriting exemplar with that on the Treasury check. The analysis was inconclusive, but similarities existed as to the signatures. An autopsy revealed that the victim was shot four times. An entry wound just below the victim’s left eye likely was fatal, and a wound below the right ear indicated that the victim had been shot from less than 18 inches away. It was possible that the victim sustained the injuries inside the house and collapsed some distance away. Unrelated to the murder investigation, in the early morning hours of May 1, 1989, approximately 24 hours after the murder, Pomona Police Lieutenant Larry Todd was monitoring a group of individuals who were suspected of preying on people visiting certain convenience stores. He observed the group near a Monte Carlo automobile parked outside one of the targeted convenience stores. Intending to warn the occupants of the vehicle about the group, Lieutenant Todd drove up to the Monte Carlo. As he did this, the driver of the vehicle got out and walked to the front of the vehicle. Lieutenant Todd got out of his patrol vehicle and walked toward the driver. When he approached the driver’s side door he spotted a small-caliber gun protruding from under the front seat of the car. He pulled out his weapon and ordered the driver and defendant, who was standing next to the passenger side door, to stand still. Lieutenant Todd called for assistance and was joined by Officer Joseph Pallermino. Officer Pallermino seized the gun, a Jennings .22-caliber semiautomatic handgun, and a magazine containing bullets, from the driver’s side interior of the car. The three bullets seized consisted of two “Super X” .22-caliber long rifle cartridges, and one “Federal” .22-caliber long rifle cartridge. Officer Pallermino also noticed dried blood on the grip of the gun. The defendant and the driver of the car, who was identified at trial only by the name of Morales, were arrested. When defendant was booked, he had $100 in cash on his person. It was stipulated that defendant was unemployed at the time. Seven “Super X” .22-caliber long rifle cartridges, along with one “Federal” .22-caliber long rifle cartridge, were subsequently found in the Monte Carlo. Detective Terrio, who is a latent print expert, examined a bloody palm print that was detected on the left side of the grip of the Jennings .22-caliber handgun found in the Monte Carlo and compared it to defendant’s palm print. In Detective Terrio’s opinion, the latent palm print was made by defendant, and could only have been made when the blood was wet. On cross-examination, Detective Terrio stated that he could not determine the age of the print, and agreed that defendant’s palm print might have gotten on the grip of the gun without defendant’s gripping the gun while shooting it. Deputy Sheriff Linda Arthur, a latent fingerprint expert with the Los Angeles County Sheriff’s Department, opined but was not sure that the palm print was from a left hand. Serologist Richard Catalani examined the blood on the grip of the Jennings .22-caliber handgun found in the Monte Carlo and compared it to blood from the victim and defendant. Catalani opined that the blood on the gun could not have come from defendant, but that it was consistent with the victim’s blood type. He added that approximately 16.4 percent of the population has the same phosphoglucomutase subtype as the blood found on the gun. Criminalist James Roberts examined the bullets removed from the victim’s body to determine whether they could have been fired from the Jennings .22-caliber handgun found in the Monte Carlo or the identical Jennings .22-caliber handgun found in the victim’s kitchen. He stated that he was unable to conclusively link the bullets to either gun because the bullets could have been fired from any Jennings .22-caliber semiautomatic handgun. d. Defendant’s Statements On April 19, 1990, about a year after the murder, Pomona Police Detectives Allen Maxwell and Greg Collins interviewed defendant. Defendant waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602],'but refused to allow the interview to be tape-recorded. Defendant stated that he was at the victim’s house around the time the victim was killed, and recalled that there were three other people in the house that evening. He went to the victim’s house “quite often” to buy drugs, but he did not buy any that night because the victim said he did not have any drugs to sell. Initially, defendant said he left the victim’s house shortly after the other three men left, but then said he' left the house at the same time as the others. He said he argued with the victim as to whether he should leave, but their argument was not violent. Defendant stated he did not have a gun while he was at the house. Defendant told the officers that the day after the murder, he went to a convenience store to buy beer. When he came out of the store, officers were detaining Morales. Feeling that he had nothing to fear, he walked up to the car and was subsequently arrested. When questioned further about the Monte Carlo, defendant gave contradictory answers as to how he and Morales obtained the car. Defendant first said he went with Morales to the apartment of the owner of the Monte Carlo, and even though the owner did not like him, the owner lent them his car. Defendant then said Morales went to the owner’s apartment, borrowed the Monte Carlo, drove around the corner, picked up defendant, and the two of them drove around looking for drugs. Defendant told the detectives that he did not know there was a gun in the Monte Carlo and did not know how his bloody print got on the gun. He said he never touched the gun. When questioned about inconsistent and confusing statements he made during the interview, such as how he and Morales obtained the Monte Carlo, defendant became “[defensive [and ejxtremely agitated.” The interview ended when defendant became upset over questioning regarding both his inconsistent statements and his print on the gun found in the Monte Carlo. e. The Escape On April 8, 1991, while in custody on unrelated charges, defendant appeared in court and pleaded not guilty to the murder and special circumstance charges. While being escorted back to “lock up” in a “four-man chain,” defendant broke free from his handcuffs and fled out of the courthouse. Deputy marshals and sheriffs pursued him and subsequently found him hiding in a women’s bathroom in a building across the street. 2. Defense Evidence Defendant did not testify. Vasquez testified that on the day prior to the murder, the victim was at home around 11 a.m. That day, or a day earlier, he loaned a gun to Gutierrez that was identical to the Jennings .22-caliber caliber handgun found at the victim’s house under the kitchen sink and the one seized from the Monte Carlo. Sometime in the afternoon, the victim, carrying a suitcase, left to catch a flight to Mexico. He told Vasquez he was going to his brother Roberto’s house and that Roberto was going to take him to the airport. Vasquez spent the afternoon drinking beer at the house with Perez and Gutierrez. The victim unexpectedly returned home at approximately 9 p.m. Vasquez did not see the victim with a plane ticket, a wallet, cash, or luggage upon his return. Nor did he notice a bulge in the victim’s pants pockets. Later that night, Gutierrez arrived at the house, and for the next hour or so, the victim, Vasquez, and Gutierrez drank beer and talked. Gutierrez went home after approximately one hour. Defendant, who was Vasquez’s friend, arrived at the victim’s house sometime after Gutierrez left. Approximately 10 minutes after defendant’s arrival, Macias and Perez arrived, and were a “little bit drunk.” Vasquez never heard the victim brag about having large sums of money or discuss his trip to Mexico. The victim and defendant were friendly to each other and did not argue. Vasquez, however, admitted on cross-examination that he concentrated more on a television program than on the conversation between the victim and the others, and further admitted he was a “little drunk.” Defendant remained in the house when the three men left. At the time, the victim was wrapped in a blanket on his mattress near the television and defendant was sitting next to Vasquez’s mattress. Vasquez, like Macias, testified that the trip to Gutierrez’s house was short, both spatially and temporally, and that they returned to the victim’s house because Gutierrez was preparing to go to bed. His testimony was also consistent with Macias’s testimony regarding the discovery of the victim’s body. It was stipulated that: (1) defendant was right-handed; (2) if the victim’s brother were called to testify, he would say the victim gave a gun to Gutierrez on the evening of April 29, 1989; and (3) Gutierrez owed the victim about $250 and the victim needed the money “so that he could attend a wedding in Mexico and have more money with him.” The defense also introduced evidence that on April 14, 1989, approximately two weeks before the murder, nine cases of Jennings .22-caliber semiautomatic handguns, a total of 324 guns, were stolen from a truck in Pomona. The guns found in the Monte Carlo and in the victim’s kitchen were among the stolen guns. Detective Greg Guenther was called by the defense. He testified that he arrived at the crime scene at approximately 3:30 in the morning, and while surveying the scene, he noticed shoe impressions left in dry dirt in the side yard of the victim’s house. The impressions seemed to lead toward the alley north of the victim’s house. Detective Guenther pointed out that the prints did not seem to originate from the porch area because there was a gap between the porch and where the prints began. He further opined that anyone walking in the area could have left the shoe prints. He did not try to make a visual comparison of the prints left in the dirt to the prints that were left on the concrete porch. At some point later in the investigation, Detective Guenther became aware of witness statements indicating that the victim had given a gun to Gutierrez. But he stated that there were no reports of any search or attempted search of Gutierrez’s house in pursuit of that gun. B. Penalty Phase 1. Prosecution Evidence The prosecution presented evidence that defendant was convicted of aggravated robbery in Texas on January 28, 1983, and was convicted in California of five counts of first degree residential burglary on August 3, 1983. In addition, the prosecution presented evidence that defendant committed four violent acts while in prison and jail. The first incident occurred on May 8, 1984, at Deuel Vocational Institution in Tracy, California. Correctional Officer Steven Espinoza observed an inmate, who was wearing a black bandana, stab a fellow inmate while another inmate held the victim. Once the victim fell to the ground, the inmates walked across the prison yard and mingled with another group of inmates who were lined up against a wall as a result of an alarm sounding. Officer Espinoza approached the group of inmates and noticed that defendant was wearing a black bandana. He took and reported defendant’s prison number. Officer Espinoza, however, could not positively identify defendant as the assailant and he did not know if defendant was charged, disciplined, or reprimanded for the stabbing. The victim suffered head injuries and stab wounds, and had blood coming out of his ear. Two “inmate manufactured stabbing weapons” were subsequently found under a pallet near the wall where defendant and the other inmates were standing. Officer Donald Karvonen also discovered a bloody “state jacket” and sweatshirt in the yard. Although he testified that two inmates were the subject of a disciplinary report, he did not believe anyone was found culpable. The second incident occurred on September 22, 1984, in Soledad Prison. Correctional Officers Steve Valentine and Michael Wright observed defendant chasing another inmate with a metal baseball bat. Defendant ignored Officer Valentine’s order to drop the bat, and instead continued chasing the other inmate. Officer Valentine called for assistance and then chased after defendant and the other inmate. Defendant eventually stopped running and threw the bat down after Officer Wright, who was working as a tower gunman, “chambered” his weapon as a warning, and ordered defendant to stop running and to drop the bat. While defendant was not observed striking the inmate, the bat was held in a raised position, and Officer Wright believed defendant was going to strike the inmate. Defendant told Correctional Officer Donald Polanshek, who investigated the incident, that he would have beaten to death the other inmate had he caught him because the inmate had disrespected him. The third incident occurred on March 10, 1991, while defendant was in jail in Los Angeles. Defendant approached fellow inmate Javier Rodriguez, took a bag containing $80 from Rodriguez’s neck, and with the help of other inmates assaulted Rodriguez. Defendant punched Rodriguez three times in the face with a closed fist, while the other inmates kicked him. Rodriguez identified defendant as one of his attackers. The fourth incident occurred on October 21, 1991, while defendant was in county jail. Deputy Sheriff Douglas Shive observed defendant walk “straight towards” inmate William Robinson. Robinson looked “extremely scared,” as he was backpedaling with his hands in the air. Deputy Shive intervened and searched defendant, finding a 10-inch shank in his pants pocket. While Deputy Shive was detaining defendant, defendant told him, “I don’t have anything against you. I’m not after you.” Deputy Sheriff John Whipple contacted Robinson at Deputy Shive’s direction. He noticed blood on Robinson’s T-shirt, as well as a bleeding puncture wound on the back of his arm and another puncture wound on his back. The prosecution also presented evidence that on January 18, 1991, defendant met with Francisco Banuelos at defendant’s apartment. Defendant told Banuelos that he had some tires he wanted to sell. Banuelos replied that he wanted to buy the tires, but because he only had $100 he would perhaps buy them the next day. Banuelos then agreed to give defendant a ride in his truck. When they reached their destination, they got out of the truck and walked toward a garage. At that point, defendant grabbed Banuelos by the hand, put a knife to his chest, and demanded that Banuelos give him the $100 and the keys to the truck. Banuelos handed defendant the money and keys and ran away. Later that day, Pomona Police Officer Bradley Elliot spotted Banuelos’s truck. Defendant was in the driver’s seat. As the officer approached the track, defendant and another man got out of the track and ran. After a chase, defendant was caught and handcuffed following a 30- to 40-second straggle with three police officers. With respect to the April 8, 1991, courtroom escape, the prosecution offered evidence that defendant kicked and struck Los Angeles County Deputy Sheriff John Guise when he attempted to apprehend defendant when he was hiding in the bathroom. 2. Defense Evidence Nine witnesses testified for the defense. Eight of them were family members or friends and one witness was a retired correctional officer. Defendant’s father, Antonio Valdez, testified that defendant was bom in Mexico and moved with his family to Pomona when he was 10 years old. Defendant had two brothers and two sisters, but one brother died. Defendant dropped out of school at the age of 14 or 15 and worked with his father. Prior to dropping out of school, defendant worked part-time with his father. Mr. Valdez said defendant was a good worker. Defendant was also obedient and respectful to his parents. Mr. Valdez thought that perhaps defendant took the wrong path because life was very hard in Pomona. Mr. Valdez told the jury his wife was very ill and might die in a month or a year. He said that if defendant was sentenced to death, “I don’t believe that my wife will live.” Rosa Valdez, defendant’s mother, testified that the family was poor and she worked all of her life. She did not believe defendant committed the murder and asked the jury for “mercy for my son.” Victoria Valdez, defendant’s sister, testified defendant was helpful with her children and had not been a violent child. She asked the jury to sentence him to life without the possibility of parole. Defendant’s other sister, Graciela Valdez, testified that defendant was not a violent person and felt that he should not be sentenced to death because she needed to speak to him for advice. Leticia Belmar, defendant’s aunt, lived in Mexico when defendant was bom. As a child she took care of him on a daily basis. He was well behaved and attended church. She told the jury that when defendant was six or seven years old, he spent money that his mother had given him on toys for the baby Belmar was expecting. She testified further as to defendant’s generous nature as a child and also told the jury that when defendant was eight years old, he saved a child from drowning. She did not want defendant to receive the death penalty. Enedina Garcia and her husband, Jose Garcia, were defendant’s friends. Enedina Garcia had known defendant and his family for 17 years, and said she had never seen defendant act violently. She was aware of defendant’s prison record, but believed he became religious while in prison. She asked the jury to spare defendant from the “gas chamber.” Jose Garcia testified he had spoken with defendant about religion and that defendant had helped keep his children out of trouble. He stated he never observed defendant with a gun. He said that defendant should be sentenced to life without the possibility of parole. Carolina Reyna, another close friend, testified that she did not think defendant was capable of killing anyone and never saw defendant behave in a violent manner. Even though defendant’s father always yelled at him and his siblings, defendant listened and obeyed. She believed defendant could help others even if he remained in prison for the rest of his life. James Park, a retired correctional officer with the California Department of Corrections, who once served as an associate warden at San Quentin, described general housing conditions for inmates serving sentences of life without the possibility of parole. Park explained that an inmate sentenced to life without the possibility of parole would “most certainly go to one of the . .. four maximum security level 4 prisons.” He testified that the security at these prisons was impregnable and that searches were conducted frequently to minimize possession and use of weapons. Prisoners who violate any rules are sent to security housing units and spend up to 23 hours a day in a cell. Park said that he opposed the death penalty. He had seen first hand the irrevocability of the gas chamber. 3. Prosecution’s Rebuttal Robert Leach testified that he had been working for the California Department of Corrections for 27 years. He was currently working in a level 4 maximum-security unit, but the prison itself was classified as a level 3/4. He stated that a person who is sentenced to life without the possibility of parole is given enough points to be housed in a level 4 unit. But a prisoner serving a sentence of life without the possibility of parole does not necessarily stay at level 4 throughout his stay in state prison. When an inmate seems to be doing well, the prisoner’s points can drop and the prisoner can become a level 3 and enjoy all the advantages of that classification. In his experience, inmates frequently make weapons and assault each other. It was stipulated that if Roger Kumar, defendant’s parole agent, were called to testify, he would state that defendant’s parole terminated on February 13, 1989, and that defendant remained unemployed throughout his almost 12-month parole period. II. General Issues A. Denial of Marsden Motions Defendant contends that the trial court erred in denying his three separate motions (two pretrial and one during the penalty phase) for substitution of counsel under People v. Marsden (1970) 2 Cal.3d 118 [84 CaLRptr. 156, 465 P.2d 44] {Marsden). He claims that, as a result, he was denied his state and federal constitutional rights to effective assistance of counsel. 1. The February 10, 1992 Hearing The first Marsden hearing occurred on February 10, 1992, after a year of representation and several weeks before the jury was seated. Defendant and his counsel met with the judge in chambers, outside of the presence of the district attorney. After explaining to the court his concerns with counsel, including counsel’s failure to (1) communicate with him about the case, (2) speak with numerous witnesses, and (3) file pretrial motions on his behalf, defendant stated: “I’d just like to ask if I could have a Marsden hearing on this matter because there’s nothing—there is nothing being done on my case.” Counsel responded that he was ready to proceed to trial and described in detail the evidence that would be presented by the prosecution. He informed the court that he intended to file a motion under section 995 to set aside the indictment with respect to the robbery-murder special circumstance, and that he had informed defendant of his intention to file such a motion. Counsel stated that he would be able to interview local witnesses and related a discussion he had with defendant with respect to potential penalty phase witnesses residing in Texas and in Juarez, Mexico. Counsel informed the court that defendant had only recently mentioned these witnesses. The judge asked defendant if he wanted counsel to investigate the people in Juarez, and defendant responded, “Yes, I do want him to.” The judge then asked, “Is there anything else either side wants to put on the record now?” Counsel indicated that he intended to bring a motion in limine to bifurcate the murder charge from the escape charge. The court then denied defendant’s Marsden motion, stating that it found counsel was properly handling defendant’s case. Defendant again argued that his counsel had not filed any motions. The court informed defendant that counsel made the ultimate determination whether or not to file certain motions. Again, defendant’s Marsden motion was denied. Defendant told the court that he had met too infrequently with his counsel and that he wanted his counsel to interview additional witnesses. The court concluded the hearing by informing defendant that “capable counsel” was representing him. 2. February 26, 1992 Hearing On February 24, 1992, defendant filed a 16-page handwritten Marsden motion claiming that he was “entering a conflict of interest” with his counsel. He claimed that his counsel “had ex-parte with D.A.,” that there were “numerous” witnesses to be interviewed, that he had not seen his attorney as often as he had requested, that counsel “has made false statements to my relatives,” that his attorney had not filed certain motions, that counsel “has been representing me on two other cases, and no motions [have] been declared,” and that defendant had not met with the private investigator retained by his counsel. Two days later, on February 26, the court held a hearing outside the presence of the district attorney. The court informed defendant that it had read Ms motion and asked defendant if- he had “any additional facts” supporting his motion or “if there is anything further that you wish to tell the court that’s not contained in your motion?” Defendant informed the court that he believed his counsel only began investigating the case because defendant informed counsel that he wanted a Marsden hearing. He reiterated complaints about counsel’s performance that were raised in his brief and in his previous Marsden motion. The court asked defendant whether his attorney had contacted any witnesses to the 1989 shooting, and defendant stated that he believed that Ms attorney had not. In response, counsel explained that he had investigated whether there were witnesses who heard the shots being fired. He noted, however, that this case was not brought until 1991, whereas the murder had occurred in 1989. As a result, it was difficult for neighbors to remember if they had heard shots. Counsel indicated that he had filed a motion under section 995 to dismiss the special circumstance allegation. Counsel stated that he found defendant’s request for an identification expert to be meritless. Counsel acknowledged that he had discussed the case with the prosecutor out of defendant’s presence, but that he did not believe such discussions were improper. He reassured the court that he was diligently working on the case and that he was prepared. The court then gave defendant a chance to respond. Defendant argued that counsel had just begun locating potential penalty phase witnesses in Mexico and Texas and that he did not believe there was sufficient time to locate such witnesses. Trial counsel responded that he recently learned of such witnesses and that he had subsequently retained an investigator to interview several witnesses. The court denied the Marsden motion. After defendant inquired as to the reasons for the demal, the court replied, “There are no grounds that have been articulated to the court. The court has heard the evidence, heard your argument.” 3. March 27, 1992 Hearing During the penalty phase, after the prosecution had presented its case and defense counsel had examined four witnesses, defendant filed a two-page handwritten letter requesting a hearing outside the presence of the prosecutor. This request occurred after counsel informed the court that defendant intended to testify, against counsel’s advice. In the letter to the court, defendant stated: “Before I go on with this case ‘as of taking the stand’ I’d like to give you a written testimony of this whole case.” He began, “I did give you a few things to consider on a Marsden hearing! And as I did say my attorney didn’t surround tMs case to his best.” Defendant attempted to rebut the prosecution’s penalty phase evidence. He concluded, “my testimony would consider of letting the jury know how a life in prison can be. Out of 5 years I got in trouble only ones.” In a “PS.” section, he wrote, “Can we have a meeting without the prosecutor !? being present?” At the hearing, counsel responded to defendant’s attempt in his letter to rebut the prosecution’s penalty phase evidence. Counsel informed the court that he had discussed the various incidents with defendant. As a result of these conversations, in which defendant had admitted much of what the prosecutor was seeking to prove, counsel concluded that there was not much he could do because “the events basically took place in sum and substance.” Defendant responded by denying the prosecutor’s allegation that he had stabbed someone in county jail. At this point the following colloquy took place: “The Court: Mr. Valdez, excuse me for just a minute. What’s your motion? Is your motion one to relieve Mr. Robusto so that you can proceed to represent yourself in this matter? “The Defendant: My thing here is that I didn’t have witnesses. “The Court: Have you given—All right. In regard to witnesses, have you given to Mr. Robusto or to his investigator the names or any identifying information whereby they could talk to any witnesses? “The Defendant: This is short notice. “The Court: I didn’t ask you that. Have you done that? “The Defendant: No, I haven’t.” After a continued discussion about witnesses, the court again asked defendant why he requested a hearing. “The Court: What’s your specific motion? What do you want the court to do? “The Defendant: Well, first of all, I asked for a mistrial on the detective. He got up there and mentioned about the prison to the jury, and I asked for a mistrial on that. “The Court: We’re not talking about that. You gave me a letter this morning. We’re only talking about the contents of the letter. [f] Why did you give me the letter? What did you do you want the court to do? “The Defendant: I wanted the court to take into consideration that I haven’t had a fair trial in this, that I didn’t have the surrounding of this case, the defense that I was supposed to have. “The Court: That motion is denied. The court finds quite to the contrary, that you have had one of the best defenses that this court has seen, that the comments raised in your letter that’s been identified as number 66 are incorrect, that they are misleading and insufficient.” 4. Analysis The governing legal principles are well settled. “Under the Sixth Amendment right to assistance of counsel, ‘ “ ‘[a] defendant is entitled to [substitute another appointed attorney] if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ ” ’ [Citation.] Furthermore, ‘ “ ‘When a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.’ ” ’ ” (People v. Welch (1999) 20 Cal.4th 701, 728 [85 Cal.Rptr.2d 203, 976 P.2d 754]; see also Marsden, supra, 2 Cal.3d at pp. 124-125.) “ ‘[Substitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603 [85 Cal.Rptr.2d 132, 976 P.2d 683].) “A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ” (People v. Welch, supra, 20 Cal.4th at pp. 728-729.) At the first two Marsden hearings, on the 10th and 26th of February 1992, the trial court afforded defendant the opportunity to set forth his complaints regarding his representation by counsel. Defendant argues that the trial court conducted a “feeble and incomplete inquiry.” We disagree. The record demonstrates that the court provided defendant with ample opportunity to detail his concerns and state the grounds for his motion. After hearing defendant’s complaints, the trial court allowed counsel to respond. Trial counsel addressed defendant’s specific concerns by describing what he had done in the case and what he planned to do. Although counsel did not agree with all of defendant’s suggestions, he maintained that he was prepared to go to trial and would be able to work with defendant to address his concerns. As we have said, “When a defendant chooses to be represented by professional counsel, that counsel is ‘captain of the ship’ and can make all but a few fundamental decisions for the defendant.” (People v. Carpenter (1997) 15 Cal.4th 312, 376 [63 Cal.Rptr.2d 1, 935 P.2d 708].) It is clear from the record that the trial court conducted a sufficient inquiry during both of the pretrial Marsden hearings. (See People v. Silva (2001) 25 Cal.4th 345, 367 [106 Cal.Rptr.2d 93, 21 P.3d 769] (Silva).) As we have said, “a Marsden hearing is not a full-blown adversarial proceeding, but an informal hearing in which the court ascertains the nature of the defendant’s allegations regarding the defects in counsel’s representation and decides whether the allegations have sufficient substance to warrant counsel’s replacement.” (People v. Hines (1997) 15 Cal.4th 997, 1025 [64 Cal.Rptr.2d 594, 938 P.2d 388].) Defendant additionally argues that the trial court relied on an incorrect standard in ruling on the Marsden motions. We disagree. The record amply supports the trial court’s conclusion that counsel’s representation was adequate and that there was no irreconcilable conflict between defendant and his counsel. Defendant complained at both hearings that he had not been able to speak with counsel as often as he would have liked. However, “ ‘[t]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence.’ [Citation.]” (People v. Hart, supra, 20 Cal.4th at p. 604.) At the first hearing, defendant complained that his counsel had failed to locate and interview potential penalty phase witnesses in Juarez, Mexico, and in Texas. By the time of the second hearing, counsel had retained an investigator to locate and interview such witnesses. The record supports the trial court’s conclusion that defendant failed to make a substantial showing of conflict. In sum, we 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. Defendant contends that the third hearing, which took place during the penalty phase on March 27, 1992, did not satisfy his request for a Marsden hearing. We conclude that the court was under no duty to hold a Marsden hearing. Defendant’s letter to the judge merely indicated that he desired to meet with the judge out of the presence of the prosecutor. It did not state the basis for this request. The trial court, after granting defendant’s request, repeatedly asked defendant why he had requested the hearing. The trial court specifically asked defendant if his “motion [was] one to relieve [counsel] so that you can proceed to represent yourself in this matter.” Defendant did not respond in the affirmative; in fact, during the entire course of the hearing defendant neither requested a Marsden hearing by name nor did he ask for counsel to be replaced. Instead, defendant merely complained about his defense and argued that additional witnesses should be questioned. “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 157 [99 Cal.Rptr.2d 485, 6 P.3d 150], quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 [247 Cal.Rptr. 1, 753 P.2d 1052].) “The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing.” (Lucky, at p. 281.) Here, defendant did not indicate that he wanted to replace his attorney, even when asked directly by the trial court. While a defendant need not specifically request a Marsden hearing by name, we note that this defendant was capable of doing so. Since we conclude that defendant’s comments were insufficient to indicate that he was requesting a Marsden hearing, “the trial court was under no obligation to conduct an inquiry into any dissatisfaction defendant might have with his appointed counsel so as to necessitate substitution of counsel.” (People v. Mendoza, supra, 24 Cal.4th at p. 157.) Moreover, even were we to find that defendant had requested a Marsden hearing, we find that the trial court conducted a sufficient inquiry and acted within its discretion in declining to replace appointed counsel. The court allowed defendant to state his concerns, permitted counsel to respond, and concluded that defendant “had one of the best defenses that this court has seen” and that defendant’s complaints were “misleading and insufficient.” B. Denial of Faretta Motion Defendant alleges that he was denied his right to represent himself, in violation of the Sixth Amendment to the United States Constitution. He asserts that he made two timely, unequivocal requests to represent himself under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta), and that even if his second request was untimely, the trial court abused its discretion in failing to make an adequate inquiry under People v. Windham (1977) 19 Cal.3d 121 [137 Cal.Rptr. 8, 560 P.2d 1187] (Windham). A trial court must grant a defendant’s request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. (Faretta, supra, 422 U.S. at p. 835; People v. Welch, supra, 20 Cal.4th at p. 729; People v. Hines, supra, 15 Cal.4th at p. 1028; People v. Clark (1992) 3 Cal.4th 41, 98 [10 Cal.Rptr.2d 554, 833 P.2d 561].) Faretta error is reversible per se. (People v. Dent (2003) 30 Cal.4th 213, 217 [132 Cal.Rptr.2d 527, 65 P.3d 1286] (Dent), citing McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [79 L.Ed.2d 122, 104 S.Ct. 944].) 1. February 10, 1992 Statement Defendant contends his first request for self-representation occurred on February 10, 1992, immediately following the denial of his first Marsden motion. As described above, after the trial court denied defendant’s Marsden motion, defendant continued to complain that his counsel’s representation was inadequate. The court informed defendant that it was not going to get involved in managing the relationship between defendant and his attorney and stated: “I am not going to get into the issue of what he should or shouldn’t tell you. I don’t think that’s appropriate.” Defendant responded, “Well, in this matter I am—my constitutional rights if I want to go pro. per. on this case I could do that.” The court responded, “I wouldn’t let you go pro. per. on this case. For one thing you just told me not more than 10 minutes ago that you are unable to represent yourself. [][] I have serious doubt about your ability to represent yourself in the other matters, but I am not going to take that issue up at this time. [][] I do know that on just my conversations with you relative to this capital case suggest to me that you do not have the ability to knowledgeably, meaningfully represent yourself on that case and you are very appropriately represented by counsel and competent counsel.” The court then concluded the hearing and the case was transferred to Judge Nuss for trial. Defendant alleges that his statement was an unequivocal motion to represent himself, and argues that the court’s failure to conduct a hearing into his ability to represent himself and its refusal to entertain the possibility that defendant had the ability to represent himself violated his Sixth Amendment rights. We have emphasized the importance of an unequivocal request for self-representation. “The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (People v. Marshall (1997) 15 Cal.4th 1, 23 [61 Cal.Rptr.2d 84, 931 P.2d 262] (Marshall).) Moreover, the Faretta right is forfeited unless the defendant “ ‘articulately and unmistakably’ ” demands to proceed in propria persona. (Id. at p. 21, quoting United States v. Weisz (D.C. Cir. 1983) 718 F.2d 413, 426; see also Dent, supra, 30 Cal.4th at p. 218.) It is clear from the record that defendant’s statement was not an articulate and unmistakable demand for self-representation. After the trial court denied defendant’s first Marsden motion, defendant said, “[I]f I want to go pro. per. in this case I could do that.” Defendant’s use of the conditional “if’ shows that his statement was ambivalent and equivocal. (People v. Hines, supra, 15 Cal.4th at p. 1028 [concluding that a defendant who used the word “if” never made an unequivocal assertion of the right to self-representation].) In addition, the fact that defendant made only a single reference to the right to self-representation, immediately following the denial of his Marsden motion, further supports the conclusion that defendant did not make an unequivocal Faretta motion. As we stated in People v. Barnett (1998) 17 Cal.4th 1044, 1087 [74 Cal.Rptr.2d 121, 954 P.2d 384], “defendant’s single reference to ‘mak[ing] a motion to proceed pro se’ is properly viewed as an ‘impulsive response’ to the magistrate’s refusal to immediately consider his Marsden request. As such, it did not constitute an unequivocal assertion of the right to self-representation. (Jackson v. Ylst (9th Cir. 1990) 921 F.2d 882, 888 [self-representation request deemed an equivocal, emotional reaction to the trial court’s denial of a motion for substitute counsel] . . .).” Because defendant failed to “ ‘articulately and unmistakably demand to proceed pro se,’ ” we conclude he never invoked his Faretta right. (Marshall, supra, 15 Cal.4th at p. 21; Dent, supra, 30 Cal.4th at p. 218.) We additionally reject defendant’s argument that the court recognized that defendant’s statement was a Faretta motion and rejected it as such when it stated, “I wouldn’t let you go pro. per. on this case.” It appears from the record that the court viewed defendant’s statement as an impulsive and equivocal response to the court’s rejection of his Marsden motion. Even if the court did treat defendant’s statement as an assertion of his right to represent himself, we are not bound by such a determination. “A reviewing court, in determining whether a motion for self-representation is unequivocal, is not bound by the trial court’s apparent understanding that the defendant was making a motion for self-representation.” (People v. Barnett, supra, 17 Cal.4th at p. 1087, citing Marshall, supra, 15 Cal.4th at pp. 23-25.) As explained above, it is clear from the record that defendant never made an unequivocal assertion of his right to self-representation, and therefore, the trial court did not err in declining to consider such a request. This case is distinguishable from Dent, supra, 30 Cal.4th 213, in which we reversed the defendant’s conviction because of Faretta error. In Dent, after the trial court informed the defendant that the court was going to replace his trial counsel, the defendant’s counsel informed the court that if counsel were replaced, the defendant would like to “proceed in pro. per.” (Id. at p. 217.) The trial judge stated: “I am not going to let him proceed pro. per. . . . Not in a death penalty murder trial.” The defendant responded, “[I]f I receive two new counsel, I would like to go pro. per.” (Ibid.) The court ignored this statement, dismissed counsel, and subsequently appointed new counsel. The defendant did not renew his Faretta request. We concluded the trial court denied the defendant’s Faretta motion on an improper basis—the request was denied because the case was a “ ‘death penalty murder trial.’ ” (Dent, supra, 30 Cal.4th at p. 218.) While the Attorney General contended that the defendant’s statement was equivocal, and therefore a proper Faretta motion was never made, we held that “whether or not defendant’s request was equivocal, the trial court’s response was not only legally erroneous but unequivocal, and foreclosed any realistic possibility defendant would perceive self-representation as an available option. Thus, even assuming defendant’s request was equivocal, the trial court’s response effectively prevented defendant from making his invocation unequivocal.” (Dent, at p. 219.) Unlike in Dent, defendant’s statement was ambiguous and cannot be deemed to have constituted an articulate and unmistakable demand for self-representation. (Marshall, supra, 15 Cal.4th at p. 21; Dent, supra, 30 Cal.4th at p. 218.) Further, while it is generally improper for a trial court to categorically state, “I wouldn’t let you go pro. per. in this case,” in response to a defendant’s first mention of the possibility of self-representation, here there is no reason to conclude defendant did not renew his request because he believed it would be futile. In Dent, we noted that aside from the colloquy quoted above, the trial court had earlier in the day informed the defendant that he could not represent himself. We observed that “the court’s instruction to not speak, combined with the court’s subsequent categorical denial of the Faretta request, may well have convinced defendant the self-representation option was simply unavailable, and making the request again would be futile.” (Dent, at p. 219.) In this case, however, following defendant’s statement, defendant’s case was transferred to Judge Nuss. If defendant sincerely wished to represent himself, he had the opportunity to make a Faretta request in front of a different judge. In fact, defendant did renew his Marsden request soon after his case was transferred to Judge Nuss. Two weeks later, on February 26, defendant made a second Marsden motion. At that hearing, Judge Nuss gave defendant ample opportunity to explain why he wished to replace counsel. At no point during that hearing did defendant indicate he wished to represent himself if counsel was not replaced. Moreover, as discussed below, defendant did in fact make an untimely Faretta' request on the day of trial. This underscores the point that defendant understood that he could, if he wished, make a request to represent himself in this case. Because defendant’s February 10, 1992 statement was not an articulate and unmistakable demand for self-representation, there was no Faretta error. 2. March 9, 1992 Faretta Request On March 9, 1992, after the trial court denied defendant’s motion to sever the escape charge from the murder charge, the court informed counsel, “I understand that we have approximately 100 jurors who are rapidly approaching the door.” He asked if there were additional matters that needed to be addressed, at which point defendant stated to the court: “I have asked for a change of counsel and I understand that I can go pro per on this case. Because I feel that I could do a much better job if I investigate other things that I need to investigate. I feel that I have some investigating to take. And that’s one of the reasons that I’d like to go pro per on this case.” The court asked if defendant would be prepared to proceed to trial that day. Defendant replied that he would not. After the court inquired into defendant’s Marsden motions and his self-representation in another pending case, the court denied the request, stating: “The Court: So you’re very familiar with the procedure to go pro. per. You’re also a [szc] very familiar with the fact that this is a case that’s been pending now and you have been in custody on for almost 12 months. The motion is certainly untimely. [][] The matter has been here ready to proceed to trial. And any granting of your right to go pro. per. would require the court to continue this case, [f] And the court finds that this request at this late hour is not done in good faith by the defendant, but merely for the purposes of obtaining a continuance. The request is denied. “The Defendant: I do have a constitutional right to go pro. per. under Faretta.” The court acknowledged that defendant had the right to represent himself, but reiterated that the request would not be granted because it was made in order to delay the trial. The court then informed defendant: “If you wish to proceed to trial today in pro. per., representing yourself, you have an absolute right and the court will permit you to do so. I will have [defense counsel] stand by as counsel, so that during the course of the trial if for some reason you realize how mistaken you are to do this, [defense counsel] would be able to take over on the defense.” Defendant retorted: “Well, in other words, what I got do is give up my rights, [f] To get one right I have to give up a right. That’s what you’re making me do.” Defendant argues that this Faretta motion was timely because this was the “first available opportunity” he had for making such a motion in front of Judge Nuss, the trial judge. He argues that the pretrial judge, Judge Piatt, had improperly denied his Faretta motion of February 10, so any further Faretta requests in front of that judge would have been futile, and that this second Faretta motion was made as soon as defendant was transferred to Judge Nuss for trial. We conclude that defendant’s motion was untimely. Defendant asserted his right to self-representation moments before jury selection was set to begin. As we stated in Windham, “a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request. In such a case the motion for self-representation is addressed to the sound discretion of the trial court. . . .” (Windham, supra, 19 Cal.3d at p. 128, fh. 5.) Instead, “[i]n order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right within a reasonable time prior to trial. The latter requirement serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to obstruct the orderly administration of justice. [Citation.] If the motion is untimely—i.e., not asserted within a reasonable time prior to trial—the defendant has the burden of justifying the delay.” (People v. Horton (1995) 11 Cal.4th 1068, 1110 [47 Cal.Rptr.2d 516, 906 P.2d 478].) Moreover, we have found that defendant never made an unequivocal Faretta motion in front of Judge Piatt. And contrary to defendant’s assertions, defendant did have a previous opportunity to request the right to represent himself in front of Judge Nuss. As detailed above, on February 26, defendant appeared before Judge Nuss in connection with a Marsden motion. Subsequently, defendant appeared again before Judge Nuss for several matters, including the beginning of jury selection on March 2. Therefore, defendant’s March 9 Faretta motion was not made at the earliest available opportunity. To the contrary, the trial judge properly concluded that the motion was untimely. Defendant argues that even if this request was untimely, the trial court failed to make an adequate inquiry and abused its discretion in denying defendant’s request. Defendant concedes that the trial court did conduct an inquiry, but alleges that it was limited and failed to satisfy the requirements set forth in Windham, supra, 19 Cal.3d at page 128. “ ‘When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court’s discretion.’ [Citation.] In exercising this discretion, the trial court should consider factors such as ‘ “the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.” ’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 959 [95 Cal.Rptr.2d 377, 997 P.2d 1044], quoting Windham, supra, 19 Cal.3d at p. 128.) The trial court found the Faretta motion was not made in good faith, but made “merely for the purposes of obtaining a continuance” and denied the motion. It is clear from the record that the trial court made an appropriate inquiry, and based on that inquiry denied defendant’s Faretta motion. But in response to defendant’s insistence that he had a constitutional right to proceed in propria persona, the court indicated that it would allow defendant to represent himself if he was able to proceed with the trial without delay. It did not, however, actually grant the Faretta motion. “Although a necessary continuance must be granted if a motion for self-representation is granted, it is also established that a midtrial Faretta motion may be denied on the ground that delay or a continuance would be required.” (.People v. Clark, supra, 3 Cal.4th at p. 110.) Thus, the court acted within its discretion in concluding that defendant could represent himself only if he was ready to proceed to trial without delay. (See People v. Douglas (1995) 36 Cal.App.4th 1681, 1689 [43 Cal.Rptr.2d 129]; see also United States v. Flewitt (9th Cir. 1989) 874 F.2d 669, 674-675 [“if the court determines the defendant’s request is merely a tactic designed to delay the trial, the court has the discretion to deny the continuance and require the defendant to proceed to trial as scheduled either with his counsel or in propria persona”].) III. Guilt Phase Issues A. Sufficiency of the Evidence to Support the Felony-murder Conviction and the Robbery-murder Special Circumstance Defendant contends the evidence was insufficient to sustain his conviction for felony murder and the special circumstance finding that the murder was commi