Full opinion text
Opinion CORRIGAN, J. A jury sentenced defendant Andrew Lancaster to death, after finding him guilty of first degree murder and kidnapping for purposes of extortion. The jury found true the special circumstance allegation that the murder was committed during the commission of a kidnapping, and also found that defendant personally used a firearm. This appeal is automatic. I. FACTUAL BACKGROUND A. Guilt Phase The victim, Michael Taylor, was a former reporter and producer for radio station KPFK in Los Angeles. After leaving KPFK, he planned to start an unlicensed microwave radio station along with Robert Marston and Tyrone Floyd (who were also former KPFK employees). In January 1996, Taylor told Marston and Floyd that he had found a financial backer named Mzee Shambulia. Marston ordered equipment for assembling a transmitter, an amplifier, and an antenna. He used his own money, having received no funding from Shambulia. The parts for the amplifier did not arrive until mid-April. Defendant, who went by the name “Hodari Lumumba,” was an associate of Shambulia. He attended several meetings between Shambulia and Taylor’s group in early 1996. At one of those meetings, Shambulia pulled Marston aside and asked him if the equipment was going to be delivered on time. Marston told him that he was having some trouble, but could arrange for a loan of equipment if necessary. Shortly after this meeting, Taylor called Marston and referred to a $2,000 payment he thought Shambulia had given to Marston to buy equipment. Marston had not received that payment, and he expressed a “high degree of anxiety” to Taylor. Taylor assured him he would correct the situation, and in a subsequent phone call said , he was seeking alternative financing. Marston and Taylor became more concerned when Shambulia showed Taylor a site for installing the station’s equipment that Taylor considered a “phony location.” After that, Marston decided not to deliver any equipment to Shambulia’s group. Taylor and Floyd were also troubled by Shambulia’s plan to sell commercial air time on the station. Taylor and Floyd were contemplating a “people’s radio station” funded by donations. They wrote Shambulia what Floyd described as “basically ... a Dear John letter saying we [were] going to keep the microwave station, that we had the transmitter and we were going to start our own station and they were welcome to do whatever . . . .” At some point, Shambulia did give Marston a money order for $220. Marston returned the money order by registered mail on Friday, April 19. Taylor then received a phone call informing him that Shambulia was extremely angry. On April 21, Taylor told Marston that defendant had telephoned, saying to tell Marston that “if they don’t get their equipment, things are going to get rough.” The same day, Taylor told Floyd that defendant had “stated that if he didn’t get the transmitter back, that it would get nasty.” Floyd testified that Taylor was quite frightened after defendant’s warning. On the afternoon of April 21, Taylor and Floyd went to a party together. Floyd noted at one point that Taylor was so nervous he was shaking. The next day, Floyd spoke with Taylor twice about their plans for the station. During the first call, around 8:00 p.m., Taylor was excited about the project. Around midnight, however, Floyd received a call from Taylor that he described as “very strange.” Taylor asked him to call some social activists in Philadelphia. Floyd was puzzled, both because it was odd for Taylor to call that late and because his request to call people in Philadelphia made no sense. Floyd said Taylor’s demeanor was unusual, and different from their earlier conversation. Floyd and Taylor were to meet the next morning, but Floyd was unable to reach Taylor by telephone. He went to see Taylor, and noticed his car was gone. He called and paged Taylor repeatedly. In the evening, he got a call from someone who hung up when he answered. Floyd called back using the “star 69” function. The person who answered said he or she had heard Floyd was trying to start a radio station, and offered to come to his house with a $3,000 donation. Floyd refused to disclose where he lived, but agreed to meet the person at a coffee shop. When he arrived, Floyd recognized defendant’s car parked on the street, and saw a man wearing a baseball cap sitting in the car. Floyd went to the front of the coffee shop and made a telephone call. When he hung up and turned around, defendant was standing a foot or two away, wearing a baseball cap. Defendant looked from side to side and moved his index finger back and forth near his belt, where Floyd saw a bulge that appeared to be a gun. Floyd asked defendant when he had last seen Taylor. Defendant “froze” and said he had seen him that day at a homeless center. Floyd left quickly and moved his family to a safe place. The next day, he filed a missing person report for Taylor. Shortly thereafter, he learned that Taylor had been killed. The events immediately preceding the murder were related primarily through the testimony of defendant’s accomplices, Shawn Alexander and Jomay Rodriguez. Alexander was 19 years old in April 1996. He became friends with defendant in 1996, and visited Taylor’s house several times with him. On April 21, defendant told Alexander that Shambulia was going to pay defendant to kill Taylor. Alexander would get $1,000 for helping. Nevertheless, the next day when defendant asked him to help pick up some stereo equipment from Taylor, Alexander said that he thought he would only be loading the equipment into defendant’s car. Defendant, Rodriguez, and Alexander went together to see Taylor. Alexander had known Rodriguez for a long time, and had introduced him to defendant. Taylor was not home when they arrived. When they returned around midnight, Alexander remained in defendant’s car while Rodriguez and defendant went inside. They came back with Taylor in 10 or 15 minutes. Defendant had a gun, which Alexander described as a nine-millimeter. Rodriguez and Taylor got into Taylor’s car, while defendant returned to his own car. Defendant told Alexander they would follow Taylor, and that Taylor “was going down that night.” Defendant followed Taylor’s car to a secluded area near some train tracks. When they arrived, defendant told Alexander they would be “paid for this.” Defendant took a rope, a container of liquid, and duct tape from his trunk; he also had his gun. The four men walked to a spot near the tracks, and defendant asked Taylor where the equipment was. Taylor did not reply. Defendant asked another question, and angrily pushed Taylor to the ground. After making another inquiry, defendant threw liquid from the container onto Taylor’s face. Taylor shook his head, as if his eyes were burning. Defendant told Alexander to tape Taylor’s mouth. Alexander tried, but the tape slipped. After looking at Taylor’s face, Alexander said he could not do it. Rodriguez tied Taylor up. Defendant had his gun drawn; Alexander did not see Rodriguez with a gun. Defendant told Alexander to check Taylor’s pockets. Alexander took a pager, a pack of cigarettes, and a lighter from Taylor. Defendant told Taylor he would ask one last time where the equipment was. When Taylor said that Floyd had it, defendant responded, “you lied to me." He then gave his car keys to Alexander and Taylor’s keys to Rodriguez, and told them to meet him at his house, which was nearby. As Alexander walked away, he heard several gunshots. He turned and saw defendant holding the gun. Alexander went to defendant’s house, and defendant drove him home. Alexander asked why defendant shot Taylor. Defendant said only that Taylor had tried to get up, and he shot him in the head and chest. Alexander kept Taylor’s pager. Several days later, defendant inquired about it, and Alexander told him he had been “cutting off the number" when he received pages. Defendant said that was a stupid thing to do, because he needed some information. He told Alexander he was going to call the numbers on the pager. Rodriguez was about 20 years old on April 22, 1996. He had known defendant for less than a month. He did not know why they were visiting Taylor, whom he had never met, but he went with defendant into Taylor’s house. Rodriguez did not recall the initial conversation, but said that eventually defendant raised his shirt, exposing a nine-millimeter gun, and told Taylor, “we’re going to take a little ride." Taylor was speaking on the telephone at that point. After Taylor hung up, defendant demanded to know where “the radio equipment” was. Taylor said nothing, and left the house with Rodriguez and defendant walking behind him. One of Taylor’s housemates testified that as she left her room on the night of April 22, 1996, she saw Taylor on the phone in his room with two men facing him. She waved to him, but he did not respond, which was unusual. She was downstairs when the three men left the house. She saw them go out together and heard Taylor’s car driving away. Rodriguez testified that defendant told him and Taylor to get into Taylor’s car, and instructed Taylor where to drive. Defendant went back to his car. Rodriguez pointed a .25-caliber automatic handgun as Taylor drove. When they reached their destination, Rodriguez put his gun away. Defendant had his gun out, and pushed Taylor toward a mound of dirt. Defendant was asking about the radio equipment. Taylor was saying, “let’s talk about this ... we don’t need to do this.” Defendant splashed some liquid into Taylor’s face. Rodriguez gagged Taylor with duct tape, and bound his hands and legs. After Rodriguez took Taylor’s keys, he and Alexander walked away. Rodriguez heard two or three gunshots, then drove away in Taylor’s car. A day later, Rodriguez met defendant at Alexander’s house; they did not discuss the killing. Subsequently, the three met with Shambulia. Defendant told Shambulia what had happened to Taylor, saying “it was about the radio equipment.” On another occasion, defendant went to Shambulia’s house and returned with a check, saying, “I got the money.” Rodriguez understood the payment was for killing Taylor, but he did not know how much the check was for. Rodriguez was never given any money, though defendant had promised to pay him. At 12:35 on the morning of April 23, 1996, Los Angeles police officers arrived at the crime scene. A witness who had heard gunshots directed them to the body. Taylor’s hands and legs were bound, and there was duct tape around his neck. An open bottle of Liquid-Plumr lay nearby; it appeared new and still contained some liquid. Taylor’s black T-shirt had white stains on the chest and upper back, consistent with the damage that Liquid-Plumr would cause. Three fingerprints and a palm print were lifted from the bottle and matched to defendant. Four nine-millimeter casings were found near the body, and three nine-millimeter slugs were recovered. All were fired from the same weapon. Taylor sustained gunshot wounds to the face, neck, shoulder, and chest. Defendant presented no evidence at the guilt phase. B. Penalty Phase Taylor’s mother, two brothers, and daughter testified about the impact of his murder on them and other family members. The prosecutor introduced evidence of two other crimes committed by defendant. In 1986, when he was 14 years old, he raped a nine-year-old girl in Maryland. The victim testified that defendant pulled her from her bicycle and forced her into the back of a van, where, with the assistance of an older accomplice, he tried to force her to orally copulate him. He beat her, raped her, and threatened to kill her if she told anyone. The victim said she was “tom my whole life” as a result of this incident, and had avoided sex altogether. In 1992, defendant and another man conducted a home invasion robbery, leaving the terrified victim bound, gagged, and tied to her mattress. The jury also heard about two incidents occurring while defendant was in custody after his arrest for Taylor’s murder. In December 1997, a sheriff’s deputy handcuffed and searched defendant when he refused to return to his cell. A makeshift knife or “shank” was found in his pocket. Defendant told the deputy he had been caught with a shank on three other occasions, but the resulting charges were dismissed each time. In May 1998, another deputy discovered three jail-made handcuff keys, fashioned from small pieces of metal, in defendant’s cell. The defense presented testimony from a clinical and forensic psychologist, Dr. Richard Romanoff. Dr. Romanoff had reviewed defendant’s penal and medical records, met with him several times, and conducted various tests. He concluded that defendant has an antisocial personality, characterized by a predisposition toward criminal behavior, deceitfulness, impulsivity, aggressiveness, recklessness, and lack of remorse. Defendant’s personality disorder might have a genetic component, and related problems began in his childhood, which was characterized by domestic violence and failure to bond with his parents. He had never received proper intervention; at one point he was part of a National Institutes of Health drug treatment program, but Dr. Romanoff characterized that experience as “mostly being a guinea pig.” The doctor believed that although defendant’s disorder was difficult to treat, it could be overcome through self-motivation. Defendant’s current involvement with Islam was the most likely source of an eventual recovery, in Dr. Romanoff’s opinion. Reverend Richard Byrd was a minister who had a weekly radio program at KPFK. He knew both Taylor and defendant. He had spoken with defendant “fairly often” about spiritual matters, and said defendant had been conscientiously trying to transform his life. He viewed defendant and Taylor as “co-activists,” and was shocked to learn that defendant was implicated in Taylor’s murder. He had never seen defendant behave inappropriately. Omar Rashad, an imam at a Los Angeles mosque, became acquainted with defendant while visiting the jail, and helped him “with his growth and development in the religion of Islam.” Defendant demonstrated a sincere commitment to Islam, asking serious questions and responding to counseling. The imam was unaware of any acts of violence by defendant. Defendant testified, accusing the witnesses against him of lying. He did not trust attorneys or psychiatrists. He said he would not ask the jury to spare his life because only God can give life. Defendant disparaged Dr. Romanoffs testimony, telling the jury, “this antisocial syndrome bull stuff, don’t fall for that.” He professed his innocence, claiming it was Shambulia who had a confrontation with Taylor. Defendant said their differences were over politics, and had nothing to do with himself or the radio station. On cross-examination, defendant admitted telling Taylor that “things would get rough” if Shambulia did not get his equipment, but claimed he was merely passing along a message from Shambulia. The prosecutor questioned defendant at length about statements he gave to the police. II. DISCUSSION A. Pretrial Issues 1. Defendant’s Legal Representation Defendant contends the trial court erred by undermining his effort to represent himself, denying his request to appoint an attorney of his choice, and denying that attorney’s motion for the appointment of second counsel. His claims require a discussion of the underlying circumstances at some length. a. Background On May 23, 1996, defendant appeared in municipal court to enter a plea and set his preliminary hearing. Although accompanied by a public defender, defendant asked to represent himself. The court granted the request after warning him about the disadvantages of self-representation, as required by Faretta v. California (1975) 422 U.S. 806, 835 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta). At the outset of a hearing on June 6, defendant reaffirmed his desire to represent himself. Later in the hearing, however, he moved for the appointment of counsel. When the court told him “you can’t have it both ways,” defendant asked for an in camera hearing, but the court continued the matter. At a hearing on June 13, defendant requested the appointment of Rowan Klein as his co-counsel. The court denied the motion without prejudice, explaining that defendant had not made a sufficient showing for the appointment. The court did appoint an investigator and legal runner. On June 25, defendant appeared in court and declared, “I want to keep my pro per status.” The preliminary hearing was set for July 23. At a hearing on July 1, 1996, defendant was present when the district attorney made a record of the discovery she had provided to him. On July 23, defendant appeared for the preliminary hearing with Attorney Michael Artan. Artan told the court that defendant did not feel competent to go forward and wanted Artan to represent him, but had not paid Artan. The court noted that defendant had repeatedly expressed his desire to represent himself, and never indicated he would be unable to proceed. Defendant told the court, “I feel very uncomfortable right now, and I’m not prepared to proceed today.” He also said he had not received full discovery. The prosecutor responded that defendant had received all discovery pertaining to Floyd, the witness who was appearing that day. The hearing went forward, with defendant representing himself. Defendant was arraigned in superior court on August 6, 1996. Artan appeared and was permitted to assist defendant with the arraignment. The court gave defendant the forms he needed to complete to proceed in propria persona, and set a hearing for August 9 to resolve the question of Artan’s status. At that hearing, defendant told the court he needed an attorney but had a conflict with the public defender’s office. Defendant felt his public defender had been incompetent, overworked, and disrespectful. Even if another public defender were appointed, defendant believed “I couldn’t get justice with that.” He had not hired Artan, and could not afford to. He requested appointed counsel. The court explained that it was required to appoint the public defender, who would then determine whether there was a conflict. Artan said he did not believe the public defender’s office had conducted a conflict check, but he suspected there was a conflict. Artan had met with defendant approximately 10 times, spent about 50 hours on his case, and believed they had developed a level of trust. Defendant had asked Artan to seek appointment as defense counsel. Artan conceded he was not on the panel of qualified capital defense attorneys. However, he said he met some of the criteria and suggested the court had discretion to appoint him. He recommended that the court have the public defender do a conflict check, then consider appointing him upon a written application. The court said it would entertain such a motion, but noted that Artan’s appointment was problematic because he was not on the qualified panel, and because the public defender could not do a conflict check unless defendant permitted the public defender to be appointed. The court asked whether defendant would give up his right to represent himself. After conferring with Artan, defendant said that if it was “not appropriate right now” for Artan to be appointed, he wanted to remain in propria persona. The court reviewed the forms submitted by defendant and gave him Faretta warnings. Artan told the court he would do what he could to ascertain whether the public defender’s office had a conflict. The court approved, but noted again that Artan’s chances of appointment were poor because he was not on the qualified panel. The court also explained to defendant that standby counsel would be appointed, for the sole purpose of taking over “if something happens to your pro per status.” Standby counsel would not interfere with defendant’s handling of the case, though defendant could request consultation and “it will be up to the trial judge of your case to determine with you how you want the standby counsel to relate to your case.” Defendant said he understood. On September 10, Ron Rothman appeared with defendant as appointed standby and advisory counsel. Rothman said he expected defendant to abandon self-representation and accept him as his attorney, but said he would like defendant to remain in propria persona “temporarily,” because it was “enabling me to establish a rapport with him.” Rothman had visited defendant several times in jail. He asked for “a full set of discovery.” The prosecutor expressed concern whether she would be dealing with Rothman or defendant, and noted that defendant had already wavered on the question of his legal representation. She said her office had not yet decided whether to seek the death penalty, and suggested waiting to decide the discovery issue until that question, and Rothman’s status as counsel, were resolved. The court pointed out that even standby counsel would need discovery. Defendant agreed that for the time being, the prosecutor could turn over discovery materials to Rothman. At a trial-setting conference on October 16, Rothman appeared as standby and advisory counsel. Defendant reaffirmed his desire to represent himself. The prosecutor reported that no decision regarding penalty had been reached, and repeated her concern about the uncertainty over defendant’s representation. On November 26, the prosecutor announced that she would seek the death penalty. Rothman was present, but defendant told the court he had found another attorney to act as advisory and standby counsel. The court informed him that he could not “just substitute someone else in.” Defendant then said that he had privately retained Artan to “take over this case,” and assured the court that Artan’s fee had “all been taken care of.” Artan came late to the hearing, and told the court that he had not been paid, but was nevertheless “on the case.” The court relieved defendant and Rothman of their status as counsel. Rothman agreed to turn over all case materials to Artan. Artan appeared for pretrial hearings in December 1996 and February, April, and May 1997. On May 29, the court indicated it wanted to begin trial in August. Artan was concerned about his readiness. He explained that he had been in trial, was a sole practitioner, and was still receiving discovery from the prosecutor. The court warned that trial could not be delayed for counsel, and that Artan could be relieved if he were unable to prepare. Artan thought he could be ready in September. He noted that although he was retained, he was not being paid. On July 7, Artan again expressed reservations about his preparation, even for a trial in September. He had other cases that were scheduled for trial soon, and conceded that if he were being paid he might not have taken them. He mentioned the possibility of appointing co-counsel. The court was not receptive to that idea and said it was inclined to relieve Artan. Defendant objected, saying he and Artan had a good relationship. He felt he could not receive a fair trial with an attorney appointed from the qualified panel. The court accommodated defendant’s desire for Artan to remain as counsel, and set September 22 as the trial date. On August 29, it was evident that Artan’s problems with preparation persisted. He had filed an application for the appointment of second counsel, which would be heard by another judge. The court suggested it was unlikely the application would be granted, and again mentioned the possibility of replacing Artan. In the application for appointment of co-counsel, Artan declared that defendant was indigent, Artan was a sole practitioner with four cases set for trial before defendant’s, substantial work remained on defendant’s case, and this was Artan’s first capital case, necessitating extra preparation time. Artan noted that appointment of second counsel was authorized by Keenan v. Superior Court (1982) 31 Cal.3d 424 [180 Cal.Rptr. 489, 640 P.2d 108]. He argued that an unusual circumstance justified his application. Because he was not being compensated by public funds, the county would be paying no more than it would for a single appointed counsel. The court denied the application on September 8, ruling that Artan had failed to provide any specific or compelling justification. The court stated that the application raised questions regarding Artan’s ability to handle defendant’s case, given his other commitments and inexperience. It directed Artan to bring these concerns to the trial court’s attention. On September 17, 1997, Artan told the trial court he would seek reconsideration of his application. In that motion, Artan argued that the case was a complex one. He noted that the prosecution intended to present evidence of four felonies in Maryland, which had occurred in 1986 and 1987, and that defendant’s prison records reflected psychological conditions that “may require motion practice.” Artan also suggested that his inability to handle the case alone was itself a compelling justification for additional counsel. On September 22, Artan told the court he anticipated seeking writ relief if his motion failed. The court told Artan that if he was unsuccessful, he would be relieved. The motion for reconsideration was denied on October 9. The court found that defendant’s case was not “complex or voluminous,” and concluded that Artan’s busy schedule and inexperience were not grounds for the appointment of second counsel. The Court of Appeal denied Artan’s writ petition challenging the court’s ruling. On November 26, Artan informed the trial court that he would have to withdraw, and that defendant hoped to have someone appointed in his place. The court allowed Artan to withdraw but asked him to remain on the case until successor counsel could be appointed. The court also told defendant it would investigate his claim that his legal materials had been confiscated in jail. On December 1, the court reappointed the public defender. On December 3, the public defender reported that his office had not yet completed a conflict check. Defendant was unhappy with the public defender’s appointment, expressed a desire “to hurry up and get this case to trial so I can get it over with,” and again asked to represent himself. The court advised defendant to wait for the result of the conflict check. Defendant was concerned that even if alternate counsel were appointed, he might not be able to work with that attorney, and said he would prefer to “put my life in my own hands.” When asked if he wanted to represent himself even if he received appointed counsel, defendant said yes. The court granted his request, again giving him Faretta warnings. Defendant complained about his missing legal materials; the court assured him that they would be returned. The court directed Artan to return his discovery materials to the prosecutor so she could itemize what she would be turning over to defendant. On December 17, Ron Rothman appeared as standby counsel. Defendant’s in propria persona privileges in jail had been revoked after he was found with a shank. Defendant asked for temporary suspension of his in propria persona status so that Rothman could represent him for a hearing on the shank incident. The court agreed. Defendant conceded his possession of the shank, contesting only the restrictions on his privileges. A deputy from the jail explained that defendant could not visit the library and his movements in jail would be restricted, but he could meet with advisory counsel and a licensed investigator. He could see witnesses during regular visiting hours, and would have limited telephone access. Defendant said he was concerned not so much with the telephone as with the ability to keep his legal materials private; he also complained that he still had not received all the confiscated material and was concerned that their contents might become known. The court told defendant that any jailhouse informants who had invaded his privacy would not be allowed to testify. It refused to interfere with the jail’s security measures, but obtained the deputy’s assurance that defendant would have access to his legal materials. The court agreed to appoint a legal runner, order telephone access, and direct the return of defendant’s legal materials. On January 8, 1998, defendant appeared and reconfirmed his desire to proceed in propria persona with Rothman as standby counsel. Rothman said that defendant had led him to believe that he would turn over the defense to Rothman. Rothman had prepared motions, but could not present them now that defendant had kept him on standby status. Rothman ¿so explained that Artan’s attempt to return the case materials to the district attorney had been unsuccessful due to a delivery problem. Rothman agreed with the court’s suggestion that he follow up personally with Artan. Defendant moved for sanctions based on the continued failure to return his legal materials. The court told defendant that problems with lost materials in jail were not unusual, and promised to do what it could to have his returned, or to “regenerate” them to the extent possible. Defendant noted that the jail had placed him with other in propria persona inmates, but he was still not allowed to go to the law library. He asked to be placed in a special module where he would be searched going in and coming out, to resolve the security problem. The court noted defendant’s failure to make this request at the last hearing when representatives from the jail were present. It declined to revisit the question of his jail privileges. It also reminded defendant of its previous admonitions on the disadvantages of self-representation, including the limitations that his custody status would impose. On January 22, defendant reported that all his materials had been returned, and dropped his sanctions motion. Defendant then told the court: “Your Honor, I would desire to give up my pro per status and have Mr. Rothman represent me.” The court expressed some uncertainty over whether Rothman could properly do so, because the last time defendant relinquished self-representation the master calendar court had reappointed the public defender. However, the court ultimately agreed to Rothman’s appointment, observing that the case needed to “move faster.” It warned defendant that he could not keep alternating between self-representation and appointed counsel. Defendant replied that he understood. b. Faretta Claims Defendant contends his rights to due process and self-representation under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution were violated when the trial court “compelled” him to relinquish his in propria persona status by (1) permitting the jail authorities to confiscate his legal materials; (2) permitting the prosecutor and defense counsel to withhold discovery; (3) improperly overruling objections and restricting defendant’s questioning at the preliminary hearing; (4) denying him access to the law library, telephone, witnesses, and special jail housing; (5) denying him the effective assistance of advisory counsel; and (6) disparaging his decision to represent himself. Because defendant never made this claim below, it is questionable whether he may properly raise it now. (People v. Jenkins (2000) 22 Cal.4th 900, 999-1000 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) In any event, the claim is meritless. The record reflects no compelled abandonment of self-representation. Defendant relinquished his right to self-representation without prompting from the court, just after the jail authorities returned his legal materials. Defendant’s claims of incomplete discovery are groundless. He refers to matters withheld by the prosecutor in advance of the preliminary hearing. At a July 16, 1996 hearing held in defendant’s absence, the prosecutor explained that she had not turned over witness names and addresses. She had also withheld tapes and statements by Alexander and Rodriguez implicating defendant. Although they were housed separately from defendant, she was concerned about retaliation by other members of Shambulia’s organization. The court found good cause for withholding this material, under Penal Code section 1054.7. Defendant does not challenge the propriety of that finding. Defendant also complains of the delay in obtaining discovery material from Artan after he withdrew. However, the court consistently sought to make practical arrangements for the return of that material. Defendant refers in passing to evidentiary rulings at the preliminary hearing. However, he offers no legal argument regarding these rulings. If any were improper, he fails to explain how they might have affected his right to represent himself. After defendant lost his law library privileges because of his possession of a weapon, the court ensured that he had advisory counsel and a legal runner. He was granted access to witnesses, the services of an investigator, and a telephone. Regarding his housing assignment, the court properly deferred to the jail authorities on security matters, while providing alternate means for legal research and investigation. These measures sufficiently protected his opportunity to prepare a defense. (People v. Blair (2005) 36 Cal.4th 686, 733-734 [31 Cal.Rptr.3d 485, 115 P.3d 1145]; People v. Jenkins, supra, 22 Cal.4th at p. 1001.) Defendant’s claim that he was deprived of Rothman’s effective assistance as advisory counsel is based partly on the fact that Rothman did not have the discovery materials during the two months between Artan’s withdrawal and defendant’s abandonment of self-representation. We have discussed the discovery situation above. In any event, defendant points to no impact on Rothman’s ability to provide advice. Defendant also relies on Rothman’s January 8, 1998 comment that he had prepared motions in the expectation that defendant would relinquish his own representation, but was unable to present them because defendant wanted to continue with Rothman as advisory counsel. This circumstance in no way supports defendant’s claim that he was deprived of the effective assistance of advisory counsel. Defendant accuses the court of disparaging his right to represent himself. However, several of the remarks defendant complains about were part of the warnings required by Faretta. (Faretta, supra, 422 U.S. at p. 835; People v. Blair, supra, 36 Cal.4th at p. 708.) The others, with one minor exception, were entirely proper under the circumstances of this case. Defendant finds two admonitions particularly objectionable. On January 8, 1998, when defendant complained about the restriction of his library privileges, the court said: “Again, your status is kind of a questionable one. It was made clear to you at the time [when the restrictions were imposed] the limitations you would face as a pro per in the jail, and that’s why I suggested and strongly do suggest that you accept appointed counsel to let that counsel act for you. That’s the best way to do it. “Even if you were a trained attorney, you’d be a fool to represent yourself because you’re emotionally involved in the issues. And what you’ve got at your side is an experienced attorney that can do an excellent job for you, but it is your choice under the Constitution.” These comments were appropriate. The court had a duty to remind defendant of the “dangers and disadvantages of self-representation” (People v. Blair, supra, 36 Cal.4th at p. 708), and it tailored that advice to defendant’s current situation. The court expressly recognized defendant’s constitutional right to conduct his own defense. Defendant inaccurately describes the court’s comments as suggesting that his Faretta right could be revoked based on his misconduct in jail. The court said nothing about revocation; it merely noted that defendant’s status in jail entailed some practical limitations. On January 22, 1998, after defendant relinquished his Faretta right and accepted Rothman’s representation, the court stated; “I do need to advise Mr. Lancaster that you cannot continue to change between representing yourself and having appointed counsel represent you. The reason for it is that we’ve got to move forward, and that doesn’t allow us to do that. “I think it’s a very wise move on your part, as I said. Even if you were a trained attorney, you still don’t have access to the same evidence that Mr. Rothman would have .... But having originally had an attorney, gone pro per, had an attorney, gone pro per, now you’re back to an attorney, I can’t let you continue to change from one to the other. It has to be a permanent decision on your part. “Even if at some point you have some disagreement with what Mr. Rothman is doing, you can’t just say now I’m back pro per. That’s a decision for the court to make, and it probably would not be in your favor.” Defendant mischaracterizes these comments as a “preemptive denial” of his Faretta right, and fundamental error under People v. Dent (2003) 30 Cal.4th 213 [132 Cal.Rptr.2d 527, 65 P.3d 1286]. Under the circumstances, including the court’s protracted grappling with the logistics of providing defendant with discovery materials and access to legal resources, the court’s concern with his repeated alternation between self-representation and the services of counsel was warranted. A defendant’s “prior proclivity to substitute counsel” is a legitimate factor for the court to consider in connection with an assertion of the right to self-representation. (People v. Roldan (2005) 35 Cal.4th 646, 684 [27 Cal.Rptr.3d 360, 110 P.3d 289]; People v. Windham (1977) 19 Cal.3d 121, 128 [137 Cal.Rptr. 8, 560 P.2d 1187].) The court’s reference to the need for a “permanent decision” was, however, precipitous. Trial was not imminent, and a renewed and timely Faretta motion would have been entitled to the court’s full consideration. (See People v. Dent, supra, 30 Cal.4th at pp. 221-222.) Nevertheless, the court did not entirely foreclose the possibility of defendant’s future self-representation; it told him it would make a decision on any renewed application, though the request would probably not be viewed with favor. In Dent, the court erred by unequivocally ruling out the possibility of self-representation. (People v. Dent, supra, 30 Cal.4th at p. 219.) Nothing of the sort occurred here. The court never denied a Faretta motion. Defendant exercised and abandoned his Faretta right several times. He gave no indication his ultimate decision to accept Rothman’s representation was influenced by anything the court had said or done. The record amply demonstrates the difficulties posed by defendant’s intermittent assumptions of his own defense. The court’s attempt to discourage defendant from perpetuating those difficulties is understandable. While the court should not have warned defendant that he needed to make “a permanent decision” at that point, the impropriety was slight and caused neither fundamental nor prejudicial error. No authority cited by defendant supports his claim of interference with the right of self-representation. The cases on which he relies involved either outright denial of the right (People v. Dent, supra, 30 Cal.4th at p. 219; Bribiesca v. Galaza (9th Cir. 2000) 215 F.3d 1015, 1019), or improper restriction on a defendant’s ability to present his own defense (Milton v. Morris (9th Cir. 1985) 767 F.2d 1443, 1446). Defendant suffered neither of these deprivations. c. Failure to Appoint Artan as Defense Counsel Defendant contends that by refusing to appoint Artan, the trial court abused its discretion and deprived him of due process and the right to counsel. However, defendant never properly requested Artan’s appointment. When the question arose on August 9, 1996, the court explained that Penal Code section 987.2 required the initial appointment of the public defender. Only if the public defender found a conflict could the court consider appointing other counsel. Artan told the court he would inquire further and make a motion providing the court with “some of the factors that would support my appointment on the case.” The court was skeptical but said it would allow Artan to file a motion for his appointment under Harris v. Superior Court (1977) 19 Cal.3d 786 [140 Cal.Rptr. 318, 567 P.2d 750] (Harris). Defendant decided to proceed in propria persona. Artan never filed a Harris motion; instead, he appeared on November 26, 1996, and agreed to represent defendant pro bono. Under these circumstances, defendant cannot now claim error. He does not challenge the court’s ruling that it was statutorily required to appoint the public defender and wait for a conflict check before considering the appointment of alternate counsel. He notes that the court ultimately failed to comply with that requirement, appointing Rothman without any intervening participation by the public defender. However, the fact remains that defendant never objected to the court’s view of the statutory scheme, and agreed to continue representing himself while Artan explored the possibility of a Harris appointment. That avenue, abandoned below, cannot be reopened on appeal. d. Refusal to Appoint Co-counsel Defendant claims the trial court erroneously denied his motion for the appointment of counsel to assist Artan, violating his rights under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and article I, section 15 of the California Constitution. A decision denying the appointment of second counsel under Penal Code section 987 is reviewed for abuse of discretion. “The abuse of discretion standard is used in many other contexts and reflects the trial court’s superior ability to consider and weigh the myriad factors that are relevant to the decision at hand. A trial court will not be found to have abused its discretion unless it ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice.’ ” (People v. Roldan, supra, 35 Cal.4th at p. 688.) The right of a capital defendant to the resources necessary for a full defense must be carefully considered, and the demands of pretrial preparation in a complex case weigh in favor of appointing an additional attorney. (Keenan v. Superior Court, supra, 31 Cal.3d at pp. 430-432.) Nevertheless, it is the defendant’s burden to make a specific showing of necessity. (People v. Roldan, supra, 35 Cal.4th at p. 687.) “The appointment of a second counsel in a capital case is not an absolute right protected by either the state or the federal Constitution. [Citations.]” (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22 [22 Cal.Rptr.2d 689, 857 P.2d 1099]; accord, People v. Williams (2006) 40 Cal.4th 287, 300 [52 Cal.Rptr.3d 268, 148 P.3d 47].) No abuse of discretion appears here. Citing People v. Jackson (1980) 28 Cal.3d 264 [168 Cal.Rptr. 603, 618 P.2d 149] (Jackson), disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, footnote 3 [103 Cal.Rptr.2d 23, 15 P.3d 243], defendant argues that Artan’s inexperience was a compelling reason to appoint co-counsel. The defendant' in Jackson relied on Pierce v. United States (D.C.App. 1979) 402 A.2d 1237, to support his claim that the court abused its discretion by summarily denying his request for second counsel. In Pierce, the trial court erred by not inquiring into the reasons for counsel’s inability to handle the defense alone. The Jackson court distinguished Pierce because there counsel had admitted his lack of prior experience might necessitate additional legal assistance. (Jackson, supra, 28 Cal.3d at p. 287; see Pierce v. United States, supra, 402 A.2d at p. 1245.) No such admission was made in Jackson, and the trial court had extensive opportunity to evaluate counsel’s ability before it ruled on the motion for additional counsel. (Jackson, supra, 28 Cal.3d at pp. 282, 287-288.) Jackson was concerned with the scope of the trial court’s inquiry into the need for additional counsel. In both Jackson and Pierce, the counsel seeking assistance was himself appointed by the court. (Jackson, supra, 28 Cal.3d at p. 282; Pierce v. United States, supra, 402 A.2d at pp. 1242-1243.) Thus, Jackson does not stand for the proposition that inexperience on the part of retained counsel justifies the appointment of co-counsel. In any event, it was not only Artan’s inexperience that created difficulties in his pretrial preparation, but also the fact that he had four other cases set for trial before defendant’s expected trial date. Under these circumstances, the court was justified in concluding it would be better to replace Artan, rather than appoint a second attorney. Defendant contends his case was especially complex, in both the guilt and penalty phases. He points out that Artan’s requests for an investigator, a fingerprint expert, and a psychologist had been granted, and that the credibility of two accomplice witnesses required investigation. He notes a prosecutor’s comment that it was “quite a complicated case.” He observes that the evidence of aggravating and mitigating factors involved crimes committed in Maryland, and raised questions about his psychiatric condition. However, a review of the entire record fully supports the trial court’s conclusion that this was not an especially complex case. The prosecutor who said the case “seems to be quite . . . complicated” was merely standing in for the prosecutor who was handling the case, at an early stage of the proceedings when Alexander and Rodriguez were still joined as defendants. Defendant also asserts his request should have been granted because the appointment of second counsel would not have resulted in any unusual strain on public resources, given that Artan was representing him pro bono. The argument fails. Artan’s pro bono status did not compensate for his lack of experience and his inability to prepare for trial because of conflicting obligations. The court was not required to ensure that defendant was represented by the counsel he preferred. It was required to take steps to provide him with an effective advocate, at public expense if necessary. (People v. Cole, supra, 33 Cal.4th at p. 1184.) Artan’s own representations to the court raised considerable doubt that he could be an effective advocate. It was well within the court’s discretion to conclude that the appointment of second counsel was not an appropriate solution. Defendant claims the court’s decision amounted to a de facto removal of retained counsel. It was, however, Artan’s decision to take other cases that prevented him from preparing adequately for defendant’s trial, and it was Artan’s own determination that it would be impossible for him to represent defendant without assistance. The trial court cannot be faulted for these circumstances. 2. Jury Selection a. Batson/Wheeler Claims During jury selection, defense counsel objected to the prosecutor’s “apparent systematic exclusion of black female jurors.” The objection was made under People v. Wheeler (1978) 22 Cal.3d 258 [188 Cal.Rptr. 425, 655 P.2d 1260] (Wheeler), but on appeal defendant also asserts error under the federal standard announced in Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69, 106 S.Ct. 1712] (Batson). An objection under Wheeler suffices to preserve a Batson claim on appeal. (People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2 [33 Cal.Rptr.3d 451, 118 P.3d 496]; People v. Cornwell (2005) 37 Cal.4th 50, 66, fn. 3 [33 Cal.Rptr.3d 1, 117 P.3d 622].) Defense counsel ultimately specified three African-American prospective jurors he suspected were peremptorily challenged for discriminatory reasons, though at first he mentioned only two, Prospective Jurors No. T3147 and No. C1752. Both, he argued, appeared to be bright, articulate women who had expressed equivocal views on both penalty and guilt issues, making them “exactly the type of jurors we’re looking for.” He asked the court to explore the prosecutor’s reasons for excluding them. Presumably, counsel’s grounds for objection as to the third prospective juror, No. W3441, were the same, because he told the court he had no additional arguments when her exclusion was discussed. The court noted that each of these prospective jurors had attitudes or family experiences making them “distinctive,” and that four African-American women remained in the jury box. Accordingly, the court ruled that defendant had failed to make a prima facie case of discrimination. Both the California and United States Constitutions are violated by the exercise of peremptory challenges based on group bias, instead of reasons specific to the challenged prospective juror. (People v. Cornwell, supra, 37 Cal.4th at p. 66.) The procedure governing objections on this ground is settled: “First, the defendant must make out a prima facie case by ‘showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citation.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 125 S.Ct. 2410], fn. omitted (Johnson); see People v. Cornwell, supra, 37 Cal.4th at pp. 66-67.) A defendant establishes a prima facie case of discrimination “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Johnson, supra, 545 U.S. at p. 170.) An inference is a logical conclusion based on a set of facts. (Id. at p. 168, fn. 4.) When the trial court concludes that a defendant has failed to make a prima facie case, we review the voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination. (Johnson, supra, 545 U.S. at p. 168; People v. Gray, supra, 37 Cal.4th at p. 186.) Here, the record supports the trial court’s finding. Before reviewing the record of voir dire, we address two preliminary claims raised by defendant. First, he contends the court applied an erroneous standard to the prima facie determination. Defendant bases this argument on the following caution the trial court gave to defense counsel: “[I]t’s got to be not simply that you don’t see the reasons but that they are much like other jurors that have been left on the panel that are of different races, and so that the only conclusion that could be drawn or logical conclusion to draw is that they were excused because of their race and gender.” Defendant claims the “only logical conclusion” standard is more onerous than the “strong likelihood” standard in effect at the time of his trial in 1998. (See, e.g., Wheeler, supra, 22 Cal.3d at p. 280; People v. Box (2000) 23 Cal.4th 1153, 1188, & fn. 7 [99 Cal.Rptr.2d 69, 5 P.3d 130].) Moreover, he notes that the “strong likelihood” standard itself, which we later explained meant only that “the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias” (People v. Johnson (2003) 30 Cal.4th 1302, 1318 [1 Cal.Rptr.3d 1,71 P.3d 270]), has been deemed “an inappropriate yardstick by which to measure the sufficiency of a prima facie case” by the United States Supreme Court. (Johnson, supra, 545 U.S. at p. 168.) As noted, a defendant need only make a showing sufficient to support an inference of discrimination. (Id. at p. 170.) In this case the trial court apparently realized it had overstated the requirement, because it quickly restated the standard as “[a] logical conclusion to draw is that they were excused because of their race and gender.” That alternate phrasing is fully consistent with Johnson. In any event, as in other post-Johnson cases, we are able to review the record to resolve the legal question whether defendant’s showing supported an inference that the prosecutor excused a prospective juror for an improper reason. (People v. Avila (2006) 38 Cal.4th 491, 554 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v. Guerra (2006) 37 Cal.4th 1067, 1101 [40 Cal.Rptr.3d 118, 129 P.3d 321]; People v. Gray, supra, 37 Cal.4th at p. 187; People v. Cornwell, supra, 37 Cal.4th at p. 73.) Defendant also contends the trial court was required to seek reasons from the prosecutor for the peremptory challenges at issue, rather than offering its own explanations. He cites Johnson for the proposition that the trial judge should “have the benefit of all relevant circumstances, including the prosecutor’s explanation, before deciding whether it was more likely than not that the challenge was improperly motivated.” (Johnson, supra, 545 U.S. at p. 170.) He also quotes Johnson as follows: “The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquiries of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question.” (Johnson, supra, 545 U.S. at p. 172.) Defendant’s reliance on these passages is misplaced. The high court was discussing the considerations applicable at the third step of the Batson inquiry, after a prima facie case has been established. “ ‘It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.’ ” (Johnson, supra, 545 U.S. at p. 171, quoting Purkett v. Elem (1995) 514 U.S. 765, 767 [131 L.Ed.2d 834, 115 S.Ct. 1769], italics in Purkett.) As we explained in People v. Cornwell, “[o]nce the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutor’s reasons—it should inquire of the prosecutor, as the high court directed. But there still is a first step to be taken by the defendant, namely producing evidence from which the trial court may infer ‘that discrimination has occurred.’ ” (People v. Cornwell, supra, 37 Cal.4th at pp. 73-74, quoting Johnson, supra, 545 U.S. at p. 170.) Here, defendant’s showing was meager. This is not a case like Johnson, where a “suspicious” appearance was created by the prosecutor’s removal of all prospective jurors in a cognizable group. (Johnson, supra, 545 U.S. at p. 173; People v. Johnson, supra, 30 Cal.4th at p. 1326.) Defendant concedes that three of the four African-American women who remained on the panel at the time of his Wheeler motion ultimately served on the jury. However, he argues it was inappropriate for the trial court to rely on the presence of those four prospective jurors, because the prosecutor had not yet accepted them. To the contrary, the court properly noted that the percentage of African-American women challenged by the prosecutor had not reached a level that suggested an inference of discrimination, a point that was conceded by defense counsel below. (See People v. Avila, supra, 38 Cal.4th at p. 556; People v. Gray, supra, 37 Cal.4th at pp. 187-188; People v. Cornwell, supra, 37 Cal.4th at pp. 69-70.) Counsel premised the Wheeler motion only on the ground that the challenged prospective jurors seemed to be intelligent and had expressed equivocal views on issues relevant to both the guilt and penalty phases. Certainly these qualities were attractive to defense counsel, but by themselves they hardly suggest the prosecutor was exercising her peremptory challenges based on race and gender. A tendency toward equivocation is seldom the first quality sought in a prospective juror by the party bearing the burden of proof. Moreover, the views or family experiences disclosed by these women were more than sufficient to overcome any inference of improper discrimination. Prospective Juror No. T3147’s brother was convicted of robbery in 1996. She believed the police did not do a thorough investigation. She maintained that police officers had “coached” a witness to identify him. The court noted this was a “very distinctive feature” showing “clear bias.” Defendant observes that this prospective juror said she would not hold her brother’s experience against any officer who might testify, that a cousin of hers was a Los Angeles police officer, and that other relatives had been crime victims. Defendant also points out that she personally had had a positive experience with a police officer. Nevertheless, under these circumstances, no inference of discrimination arises from the removal of a prospective juror whose brother had a recent negative experience with the criminal justice system. Prospective Juror No. W3441’s husband was convicted of robbery in 1994. She felt the public defender had not presented the proper evidence. She said she was strongly opposed to the death penalty, and thought it was imposed too often. While she said she would not always vote against the death penalty for a defendant found guilty of intentional first degree murder with a special circumstance, she also answered “no” when asked if she could impose the death penalty in a case involving the charges against defendant. She said she could see herself rejecting the death penalty in favor of life imprisonment without the possibility of parole, but could not see herself choosing the death penalty instead of life imprisonment without the possibility of parole. The trial court referred primarily to this prospective juror’s attitude toward capital punishment, but also mentioned her husband’s conviction and experience with the public defender. Defendant notes that Prospective Juror No. W3441 equivocated when questioned by the court, saying it would be possible for her to change her mind about the death penalty, depending on the circumstances. She also said her concern about her husband’s legal representation would not affect her consideration of this case. Defendant points out that this prospective juror had relatives working in law enforcement, and had previous jury experience. However, under all the relevant facts, including the prospective juror’s strongly stated antipathy to the death penalty and her husband’s conviction four years earlier, no inference of discrimination can be drawn from the record. Prospective Juror No. C1752’s nephew was serving a life sentence without the possibility of parole for a murder committed in Los Angeles County. Another nephew and a stepson had been imprisoned for drug offenses. The trial court questioned her about the nephew in prison for murder. The prospective juror had mistakenly identified him as a murder victim on her questionnaire. She knew about his case only from speaking with relatives. She understood that her nephew was found with the victim’s credit card, and that other people were involved in the crime. She knew nothing about the prosecution and said it would not affect her judgment. Addressing defendant’s Wheeler claim, the court said that the nephew’s conviction for a robbery murder in the county made Prospective Juror No. C1752 “distinctive from the rest of the group.” Again, on this record no inference of group bias appears from the prosecutor’s decision to challenge a prospective juror whose family members were serving or had served prison terms. Defendant fell far short of “showing that the totality of the relevant facts [gave] rise to an inference of discriminatory purpose.” (Batson, supra, 476 U.S. at p. 94; see also Johnson, supra, 545 U.S. at p. 168; People v. Cornwell, supra, 37 Cal.4th at p. 66.) The trial court corre