Full opinion text
Opinion MORENO, J. A jury found defendant Jonathan Daniel D’Arcy guilty of the first degree murder (Pen. Code, § 187) of Karen Laborde and found true special circumstance allegations that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)) and was committed while defendant was engaged in the commission of mayhem in violation of section 203 (§ 190.2, former subd. (a)(17)(x), now subd. (a)(17)(J)). The jury deadlocked at the penalty phase, and the trial court declared a mistrial. After retrial of the penalty phase, a different jury returned a verdict of death. The court denied defendant’s motion for new trial (§ 1181) and automatic application to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts and Proceedings A. Prosecution Guilt Phase Case 1. Background In 1992, Quintessence, a company located in Tustin, obtained contracts for providing janitorial services to various businesses and then sold the contracts to janitors who serviced the contracts as independent contractors. Quintessence collected payment from the businesses and then paid its independent contractors after withholding a management fee. The bookkeeper for Quintessence was victim Karen Laborde. Defendant purchased several accounts from Quintessence, some of which he financed through the company under terms providing that Quintessence would withhold a portion of future payments made by defendant’s customers. He performed janitorial services for his accounts with Jeremy Willis (Jeremy). By about January 1993, defendant had lost all but two of his accounts due to customer dissatisfaction. Still, he owed Quintessence for the purchase fees he had financed for the lost accounts. Matt Conrod, a sales representative with Quintessence, arranged for Quintessence to forgive defendant’s debt and maintain his contracts on the two accounts because they were difficult to reassign. About two weeks before the murder, and after having lost some accounts, defendant had a conversation with Conrod on a second-story balcony at Quintessence. Visibly angry and using “all kinds of foul language,” he told Conrod he was “pissed off” at the accounting department. Conrod thought defendant might throw him off the balcony. Defendant warned that “if anything like this happens again, something’s going to happen.” As he left, he again threatened, “If you don’t correct this you better believe me because I’ll do something, I’m not kidding.” 2. The murder of Karen Laborde and defendant’s arrest On February 1, 1993, the day before the murder, defendant, upset and angry, telephoned Conrod at Quintessence to complain he had not been paid for one account. Conrod checked with Laborde on the status of defendant’s payment; she told him the check had been taken care of. Conrod then telephoned defendant and told him what Laborde had said. Defendant seemed satisfied with the response. Later that day, defendant telephoned Quintessence and spoke with Eileen Anderson, Laborde’s assistant. He was angry and demanded his paycheck. Defendant mistook Anderson for Laborde and threatened to hurt her if he was not paid. Anderson told him, “I’m not Kari [Laborde], I’m not Kari.” She placed defendant on hold, and after speaking with Laborde, informed him that there was no check. Defendant became angry and asked to speak with Conrod. Sometime during the same day, defendant spoke with Jeremy about financial problems he faced. He was upset Quintessence had failed to pay him, and told Jeremy that “nobody screws [him].” On the day of the crime, after defendant and Jeremy had finished the job at defendant’s first account, located in Anaheim, defendant told Jeremy, “I quit.” With Jeremy in the passenger seat, defendant then drove to Santa Ana, the location of his second account. Defendant, a smoker, had a disposable lighter in his possession that morning. As they waited for about 10 minutes to be let inside the business, defendant told Jeremy, “No one screws me like that,” and said he wanted to get even. Defendant initially said, “I’m not going to kill her. I just want to do it,” meaning bum her. Later, he said, “I’m going to kill her.” Without servicing the account, defendant left and drove to a gasoline station. At 8:26 a.m., he purchased a dollar’s worth of gasoline, dispensing it into a plastic sport bottle. Jeremy asked, “What’s that for?” Defendant did not reply and drove to Quintessence. During the drive, Jeremy asked him, “Are you sure you want to do this?” Defendant replied he was “positive.” As defendant drove, he appeared calm and relaxed. By the time defendant and Jeremy arrived at Quintessence, defendant had told Jeremy four times that he was going to light her on fire. When defendant arrived at Quintessence, he gave Jeremy the keys to his track and told him to “get the hell out of [there].” After entering the building, defendant walked up stairs to the reception area, approached Lisa Chaput, the receptionist, and asked to see Laborde. When Chaput told him she was busy, defendant became angry, saying, “I want to see her and I want to see her now.” Chaput walked to Laborde’s office and held the door open a few inches. In the next moment, defendant burst through the door, shoving Chaput out of his way. He headed for Laborde, who was sitting behind her desk, and yanked her seat around so that she was facing him. Defendant splashed Laborde’s face, arms, and dress with gasoline from the sport bottle and yelled, “This is what you get when you hold my fucking money.” Laborde stood up and, wiping her face, asked, “Oh God. Why are you doing this to me?” Defendant stepped closer to Laborde and answered, “This is what you get when you don’t give me my money.” He then took the sport bottle, poured the remaining gasoline on Laborde’s head, and lit her on fire. When Laborde began screaming and struggled to put out the flames that engulfed her, defendant shoved her. Chaput ran downstairs to warn the building occupants about the fire and encountered defendant as he exited the building. He asked her, “Do you want to fuck with me next?” Defendant asked another woman to light the cigarette in his hand. She refused. Two brothers, who were detailing a car nearby, and another man learned of the fire. They rushed upstairs and put out the fire with two extinguishers. They discovered Laborde burned on the floor and tried to move her, but could not do so. Tustin Police arrived around 8:39 a.m. and found Laborde on the floor of the office, charred and crying. Most of her clothing had been burned off, and her face and hair were chaired. Her mouth and nose were excreting fluids, and skin was hanging from her face. Chaput saw defendant walk toward a streetlight near the office parking lot, knock on a car, and reach in to light a cigarette. Defendant returned to the curb outside the office building and sat smoking a cigarette until he was arrested minutes later. In a calm voice, he told the arresting officer, “I’m the one you are here to arrest.” Defendant was arrested, handcuffed, and placed in a police car. He asked Officer Nasario Solis, an investigator who observed defendant in the police car, how much time he was looking at for attempted murder. When the officer told defendant that he was under arrest for assault, defendant responded, “I don’t want assault, I want attempted murder.” The officer noticed defendant smelled of gasoline, his hair was singed, and there was soot in his nose. 3. The victim’s dying declaration and death Around 9:00 a.m., Laborde was flown to the University of California at Irvine Medical Center. She had suffered third-degree bums on approximately 90 percent of her body. The heat and fumes from the flames had caused severe swelling inside her mouth and the lining of her airways. Laborde’s doctor, Daniel Ng, M.D., told her that her injuries were nearly 100 percent likely to be fatal. Laborde declined medical treatment and indicated she wanted only comfort measures including pain medication. She required administration of over 30 milligrams of morphine per hour for over one or two hours to reduce the intensity of her pain and make her comfortable. Laborde died at 4:45 p.m. that day. Laborde’s doctor opined that if she had survived, she would have been disfigured and might have lost limbs. While Laborde was in the hospital, Officer Douglas Finney of the Tustin Police Department asked her how she was injured and recorded her answers She said that “[Jon D’Arcy] threw this cup of . . . fluid ... I guess it was gas ... he threw it all over me and then he lit me” with a “[c]igarette lighter” that he held “in his hand.” Laborde stated that defendant “deliberately went for me.” She said that she was unable to escape because she had no room to move. She had a check for defendant on a desk and would have given it to him had he asked for it. The parties stipulated that, before Laborde was taken from the scene by paramedics, a check made out to defendant for the sum of $159, and dated January 31, 1993, was located on a desk in her office. 4. The fire investigation Captain Dennis Sheam, a 10-year veteran with the Orange County Fire Department (OCFD) Investigative Section, investigated the scene immediately after the crime and concluded that an open flame had ignited the fire. Remnants of a plastic bottle that smelled of gasoline were found on the floor near Laborde’s desk, and a cigarette fighter was found on another desk in her office. A cigarette fighter has an open flame and could have ignited the fire. Under debris, in the comer of Laborde’s office, Sheam discovered a portable space heater with its fan running. He eliminated the space heater and all of the electrical circuit plugs, cords, and appliances in the office as possible sources of the fire. 5. Autopsy The autopsy conducted the day after the crime revealed that Laborde had suffered bums on approximately 90 percent of her body. Her hair was singed, and 90 percent of her face, which looked very red, showed loss of skin surface. Her nostrils were blocked by black soot. Her right breast was completely burned off. Laborde’s upper respiratory passages, lungs, and stomach were filled with black soot, meaning she had inhaled hot smoke, consistent with a person who was engulfed in flames. The cause of death was asphyxia. The hot smoke Laborde inhaled caused sudden spasms and swelling of her mucosa, causing her to choke to death. B. Defendant’s Guilt Phase Case Defendant conceded he committed first degree murder and presented evidence that he suffered a mental illness sufficiently severe to create a reasonable doubt regarding the torture and mayhem special circumstances allegations. (§ 190.2, subd. (a)(17)(J), (18).) Supporting testimony came from two forensic psychologists, Edward Fischer, Ph.D., and Veronica Thomas, Ph.D. Around July 1993, at the request of former appointed counsel Jennifer Keller, Dr. Fischer evaluated defendant’s mental health. He interviewed defendant, administered several psychological tests, and reviewed historical information contained in defendant’s mental health records and obtained by interviews with family members. Defendant was bom in 1962 and raised in a dysfunctional home by his mother. He was first referred for psychological evaluation in kindergarten and second grade, at ages five and eight, respectively. In 1970, clinical psychologist Joan Glad, Ph.D., interviewed and tested defendant and recommended psychotherapy for him and his mother. He received three years of psychotherapy in grammar school. In high school, defendant was placed in special education classes and taught in a building separate from the main high school campus. He received group therapy from a psychiatrist as part of the special education curriculum. When defendant was imprisoned in 1981 for burglary convictions, he was given psychological tests, the results of which were made available to Dr. Fischer. Dr. Fischer also reviewed psychological evaluations of defendant that were performed at Patton State Hospital in approximately September 1993. In 1996, Dr. Fischer, at counsel’s request, reevaluated defendant’s mental health, conducted additional structured interviews of defendant, and consulted with Dr. Thomas, who also had administered psychological tests to defendant and formally interviewed him. Dr. Fischer diagnosed defendant with paranoid schizophrenia and suspected he had organic brain damage, but defendant refused to undergo neurological testing. Dr. Fischer opined that defendant experienced an acute psychotic break on the day of the crime due to financial stressors, a loss of self-esteem, feelings of being a failure, and emotional immaturity. Around July 1996, Dr. Thomas assessed defendant’s mental state by conducting an interview and administering various psychological tests. She reviewed historical information from defendant’s early childhood and police reports that included statements of Joan and her sons, Jeremy and Corey. Additionally, Dr. Thomas personally interviewed defendant’s mother and half sister. She opined that, on the day of the crime, defendant suffered from paranoid disorder that made “it virtually impossible for him to relate to the world around him in a normal fashion.” She described defendant’s condition as a “delusional disorder of a psychotic nature,” meaning defendant had “fixed false beliefs about reality.” Dr. Thomas believed there was a possibility defendant had organic brain damage, but her diagnosis was hampered by his refusal to undergo neurological testing. In his paranoid delusion, defendant had strong fixed ideas that the government and his attorney, George Peters, had wronged him. Dr. Thomas did not believe defendant was schizophrenic, however. She acknowledged that defendant’s tests showed that he was highly manipulative. C. Prosecution Penalty Phase Case During the penalty phase retrial, the prosecution presented evidence of the crime substantially similar to that presented during the guilt phase. In addition, the following aggravating evidence was presented. 1. Burglary conviction The prosecution introduced evidence of defendant’s prior conviction for burglary on January 9, 1981. (§ 190.3, factor (c).) 2. Prior unadjudicated criminal activity involving force or violence The prosecution introduced evidence of the following prior unadjudicated criminal offenses involving force or violence under section 190.3, factor (b). a. Assault on Nancy D Arcy On September 13, 1985, defendant punched his former wife, Nancy D’Arcy, numerous times in the face, held a knife to her throat, and threatened to cut off her hands and knock out her teeth in order to prevent identification of her body. After the attack, police found Nancy hysterical in the street with a swollen eye and a bloody nose that appeared to have been broken. b. Assaults on Joan Willis In early 1987, defendant moved in with his girlfriend Joan and her three children, including 18-year-old Jeremy and 20-year-old Corey. He lived with Joan “on and off’ for several years. On February 4, 1988, Joan asked defendant to stop yelling during a telephone conversation. He became angry and repeatedly grabbed Joan by her hair and threw her to the floor, pulling out clumps of hair. He punched and kicked holes in two walls in the house. On August 25, 1988, when defendant told Joan he wanted to use her truck, she was reluctant. He told her, “Get out of my way you f’ing bitch,” and then pushed her onto the concrete driveway with such force that she urinated on herself. Joan suffered kidney pain and a scraped elbow. On September 18, 1989, defendant asked Joan for her bank card in order to purchase alcohol; she refused. He became violent, grabbed and twisted her neck, and tried to choke her. He then pushed her, and she hit her head on a bedpost. Shortly after the incident, she applied for a temporary restraining order, then telephoned defendant from the courthouse to inform him she had filed for the restraining order and to ask him to leave her house. Defendant reacted by spray painting walls in Joan’s house, slashing her furniture and clothing, and breaking her furniture. She and her family thereafter lived in a hotel for three months while the house was repaired. After this incident, defendant moved out of Joan’s house. On October 10, 1990, defendant telephoned her several times and threatened to kill her if she did not let him move back into her house. Joan believed his threats and immediately called the police. c. Assaults on Corey Willis and others In early April 1991, defendant again was living with Joan and her three children and was working with Thomas Thompson at a telemarketing firm. Defendant was fired because he failed to show up for work on two consecutive days. Defendant blamed Thompson and planned to beat him up. On May 21, 1991, Thompson and Thompson’s friend Leonard Godfrey returned with Corey to Joan’s house after attending a baseball game. Defendant grabbed an aluminum baseball bat and, standing behind Thompson, hit him on the back of his knees and knocked him into a sofa. Thompson defended himself against defendant’s next swing, which glanced off Thompson’s hand and forehead. Thompson fled when Joan intervened. Wielding the bat over his head, defendant chased Thompson outside the house and caught up with him when Thompson fell to the ground. Godfrey stepped in front of defendant, who told him to move. Godfrey did not move, and defendant hit him with the bat. After dropping down on one knee, Godfrey stood up. Defendant then hit him with the bat twice in the head and at least 10 times in his sides with sufficient force to knock him off his feet. Godfrey sustained a bloody lip and numerous bruises. During this incident, defendant also threatened to hit Corey with the bat. The victims reported the incident to police, and the investigating officer discovered the bat in a riverbed behind Joan’s house. In mid-1992, defendant choked Terrence Berg with one hand when Berg refused to sell him marijuana. On January 29, 1993, after an argument with Corey, defendant told Corey to hit him. When Corey refused, he hit Corey across the side of his face. On one occasion before 1990, defendant had put Corey in a headlock. 3. Victim Impact Testimony Laborde’s mother, Lorene Letter, testified Laborde was a loving daughter and churchgoer and Lorene missed her. Laborde’s twin brother, Darrin Leiter, described Laborde as an easygoing person and an important influence in the family. He experienced a great deal of sadness on his birthday because he had always celebrated the occasion with his sister. Laborde was his best friend, and he missed her. Laborde’s daughter, Rene Granier, testified her mother was murdered shortly before her 16th birthday. She was very close to her mother, shared all of her life experiences with her, and missed her. Rene’s life was difficult without her mother’s love and support. About eight months after the murder, she moved to Ohio to live with her aunt and attend high school. Laborde’s son, Christopher Granier, testified his mother was a sweet person and he always felt loved and supported by her, even when he misbehaved. After the murder, Christopher joined the Navy. When he served at sea, he often thought about his mother and cried at night. D. Defendant’s Penalty Phase Case 1. Testimony of Joan Willis In October 1986, Joan met defendant, and a couple of months later, defendant was hospitalized after a motorcycle accident. Around this time, defendant contacted his estranged father, who wanted nothing to do with him. Defendant took this very hard, and shortly thereafter, sought rehabilitation for heroin abuse. In early 1987, he moved in with Joan and her family. Defendant frequently had random, violent outbursts towards Joan and others. He could be kind and loving, but also verbally abusive and violent. He was paranoid and sometimes said he was going crazy. Defendant held several jobs over the years but lost each one because he argued with fellow employees and did not take direction very well. He had no friends. During 1991 and 1992, the family experienced financial pressures. Joan feared she would lose her home because the Social Security benefits two of her children received were going to expire. Joan lent defendant several thousand dollars to purchase the janitorial contracts at Quintessence with the expectation that Jeremy would work with defendant. Defendant quit using alcohol and drugs except marijuana. He attended counseling, read self-help books, attended church, and used other techniques, including drinking chamomile tea, to address his stresses and calm himself. Defendant began losing his janitorial accounts and became frustrated and depressed. He attempted suicide in front of Joan by superficially slitting his wrists and cutting the skin on his stomach. The day before the murder, defendant was irate because the accounting department at Quintessence did not have a paycheck ready for him. He told Joan he would quit his accounts the following day. Joan called Quintessence but was unable to resolve the problem with defendant’s paycheck. 2. Defense Attorney Jennifer Keller Jennifer Keller had represented defendant from April 1993 until February 1994 under court appointment, and she testified regarding an episode in which defendant expressed remorse for the murder. During a meeting with defendant in March or April 1993, Keller showed him newspaper articles about the victim. He became extremely emotional and upset and stated that the victim seemed to be a good person who was loved by many, although he had thought she was horrible and evil. Defendant seemed to have an overwhelming amount of guilt and empathized with Laborde’s family. He repeated, “I can’t believe I did this. I can’t believe I did this.” Defendant became distraught and cried intermittently throughout the one-hour meeting. He told Keller he was having nightmares of seeing the victim in flames and wondered whether God would forgive him. Defendant admitted the murder, and Keller explained to him he needed to consider a mental defense. Keller testified defendant’s expression of remorse seemed genuine. When she suggested to defendant that he permit mental health experts to examine him and determine what was wrong with him, he appeared to be grateful and willing to cooperate. Defendant admitted there were times when he could not control himself and, although he did not understand this behavior, he wanted to learn what caused it. Two weeks after this discussion, defendant insisted that he had been framed for the murder and that the space heater spontaneously ignited the fire. Defendant believed Keller, the prosecutor, and the trial judge, among others, were involved in a conspiracy to convict him for a crime he did not commit. He told Keller he was not mentally ill and refused testing. Keller was convinced defendant genuinely believed the thoughts he expressed about the conspiracy. Defendant never again expressed remorse. 3. Testimony of psychologists Dr. Edward Fischer performed psychological evaluations of defendant in 1993 and 1996. In his evaluations, he considered the following information based on his interview of defendant’s half sister, Elizabeth Bartel, and his review of numerous documents obtained by defendant’s counsel, including defendant’s academic records and mental health records. Defendant and Bartel, who was 11 years his senior, were raised in poverty by their mother, Barbara D’Arcy. During defendant’s childhood, his mother suffered from “black moods” that would last for days or weeks. She was not approachable and would not speak to defendant or his half sister while she was in this condition. Defendant’s mother often beat him during his childhood, causing bruising on his body. Because she worked the night shift during defendant’s early childhood, she tied him in bed during the day so that she could sleep. When defendant was eight years old, defendant’s mother forced him to eat his feces because he defecated in his pants on a road trip to Northern California. Dr. Fischer described defendant’s primary diagnosis as paranoid schizophrenia with a learning disability, organic brain dysfunction, and drug and cannabis dependence. His secondary diagnosis was mixed personality disorder including paranoid personality disorder, antisocial personality disorder, and borderline personality. According to Dr. Fischer, defendant’s schizophrenia was a severe mental disability that he had had all his life. Dr. Veronica Thomas evaluated defendant’s mental state in October 1996 based on her interview of defendant, psychological tests, review of historical information, and interviews with his mother and half sister. Her review of the information showed that defendant’s mother did not deny she tied him down during his early childhood; defendant wet his bed until he was 12 years old; and defendant experienced hallucinations at age 22. Dr. Thomas explained that bed-wetting is a sign of serious emotional problems and that hallucinations at age 22 “would definitely be associated with a future psychotic diagnosis and/or experience.” She diagnosed defendant with a psychotic disorder, delusional disorder, personality impairment disorder, and substance abuse, and attributed the cause of his psychotic disorders to brain dysfunction, genetics, emotional and physical trauma, and child abuse. Dr. Thomas believed that defendant was a sociopath and concluded that he was experiencing a psychotic break when he murdered Laborde. Dr. Joan Glad testified that in 1970, she was a clinical psychologist with the Orange County Children’s Hospital and had interviewed defendant and his mother. She learned then from reviewing historical records that defendant had set a fire on the grounds of his grammar school. Defendant’s mother told Dr. Glad that she kept defendant away from other children. Dr. Glad diagnosed defendant with a learning disability and opined that defendant was unhappy, felt helpless, and lacked feelings of power and control. Defendant’s childhood experiences with bed-wetting and fire setting were consistent with his development of severe emotional disturbance later in life. She concluded his mental health was dangerously poor. E. Prosecution Rebuttal Evidence Deputy Christian Dinco, of the Orange County Sheriff’s Department, booked defendant into the Orange County jail after the murder. Defendant asked the deputy whether he had seen his case on the news. Defendant remarked that the crime would not have happened if he had been paid, and that he had bills to pay. He admitted he threw gasoline on Laborde and lit her on fire. He said, “Yeah, I just threw a match and she went up like a Christmas tree.” Defendant did not appear remorseful. II. Pretrial Issues A. Competency to Stand Trial and Right to Self-representation As set forth more fully below, defendant contends he was denied a meaningful competency hearing under section 1369 because the trial court failed to appoint two experts to evaluate him and failed to obtain a personal waiver of his right to a jury trial. In addition, defendant contends the trial court accepted an invalid waiver of his right to self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525] (Faretta) and erroneously denied his request for continuance made on the day of trial. The background and procedural history that follow are relevant to our discussion of each of these contentions. Between April 2, 1993, and February 14, 1994, defendant was represented by appointed counsel Jennifer Keller. During one of their initial meetings at Orange County jail, defendant admitted that he had committed the murder. After hearing his admission, Keller had no doubt that defendant lit Laborde on fire, and “it wasn’t a space heater that was responsible.” Two weeks after this discussion, defendant changed his story, insisting the space heater spontaneously had ignited the fire and there was a conspiracy to convict him. On July 30, 1993, in denying defendant’s first motion under Faretta, the court declared a doubt about defendant’s competence to stand trial under section 1368. The court articulated no specific reasons for doubting defendant’s competence, but stated it had “a strong feeling that this defendant cannot cooperate with any counsel.” Presumably, the court was referring to Keller’s representations at the hearing that defendant had organic brain damage that caused him to, among other things, act impulsively and without reflection and that he was refusing to cooperate with Keller in the preparation of a mental health defense because he did not trust her and believed he was “being framed.” On September 2, 1993, after conducting a competency hearing, the trial court found defendant incompetent to stand trial and committed him to Patton State Hospital. On January 14, 1994, the court received and filed a certificate of restoration under section 1372 and an accompanying report from the medical director of the hospital that indicated defendant’s competence had been restored. On February 14, 1994, defendant appeared in court with Keller, who declared a conflict of interest and was relieved as counsel of record. The following day, Paul Stark was appointed counsel of record. On February 22, 1994, the trial court conducted a competency hearing, found defendant competent to stand trial, and reinstated criminal proceedings. (§ 1372.) On August 12, 1994, the trial court held a hearing on motions that defendant had filed under People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden) and Faretta. Defendant told the court that “what happened that day was an accident” and that he wanted to represent himself because his attorneys did not want to pursue an accidental ignition defense. The court then explained to defendant: “But don’t you understand that you, as the accused, ultimately does [sz'c] have the right to direct the direction in which your defense goes. The lawyers can advise you, they can tell you what is in your best interest, but when it gets right down to it you make the decision on what kind of defense you offer, and the lawyer either participates with it, or if he has an ethical conflict he can get off the case then.” Defendant complained that his prior and present attorneys refused to pursue his defense theory and wanted to take the case in a different “direction.” The court denied both of defendant’s motions. Defendant filed a petition for writ of mandate in the Court of Appeal, Fourth Appellate District, Division Three, challenging the trial court’s rulings. While writ proceedings were pending, during a discovery hearing held on October 21, 1994, defendant became frustrated when he learned counsel had subpoenaed his jail records and the psychiatric records of two witnesses who sought treatment after the murder. Defendant stated, “It’s my wish[] that those records were never subpoenaed. How can [counsel] do that? I thought you told me last time that I was here that I had the final say, that they could only suggest, I had the final say; evidently not.” After counsel explained to the court that he had consulted with defendant, defendant added, “I thought you [the court] stated last time that I had the final say; apparently I don’t,” to which the court replied, “Apparently not.” On January 10, 1995, the Court of Appeal granted defendant’s petition and issued a writ of mandate directing the trial court to grant defendant’s Faretta motion after obtaining a valid waiver of defendant’s Sixth Amendment right to counsel. On January 23, 1995, the trial court advised defendant of the dangers and disadvantages of self-representation, obtained a valid waiver of his right to counsel, and granted his Faretta motion. While representing himself, defendant took steps to develop an accidental ignition defense. On May 8, 1995, Robert Lowe of Lowe Fire Investigations agreed to work as a “fire cause and origin consultant” for defendant on a pro bono basis. On July 28, 1995, the prosecutor represented to the trial court that Lowe had examined the space heater recovered from the crime scene. On September 25, 1995, the court granted defendant’s request that the prosecutor release crime scene photographs to Lowe. On December 4, 1995, the court appointed Lowe to assist the defense. On December 8, 1995, the trial court appointed George Peters as advisory and standby counsel. On April 15, 1996, during a closed proceeding, Peters represented to the trial court that defendant wanted Peters to be his trial attorney and that they had discussed the subject extensively during the preceding week. Defendant told the court that he wanted Peters to present his defense because “it might be a little better than [coming] directly from the horse’s mouth.” Peters consented to the arrangement but said nothing about presenting defendant’s accidental ignition defense. He represented to the court that defendant wanted to retain his in propria persona status in jail and question trial witnesses about his janitorial business practices, if necessary. The court granted defendant’s requests and appointed Peters as counsel. It informed defendant that it was “leaving [him] pro per for all purposes at the jail, so far as the jail is concerned you’re still pro per; however, [the court] expect[ed] Mr. Peters [to] conduct the voir dire of the jury and . . . [to] be lead counsel and . . . [to] conduct the trial.” The court further informed defendant that it would continue to accept motions from him. The court then told defendant that he was appointing Peters as counsel of record with some reluctance because it questioned whether one of defendant’s prior court-appointed attorneys should be reappointed. Defendant acknowledged he previously had disagreed with his former counsel, Paul Stark and Jennifer Keller, over the theory of the case and explained that, because they believed he set Laborde on fire, they wanted to present a mental defense. Defendant then explained that Peters had interviewed Lowe and reviewed discovery. Defendant told the court, “[Peters] has come to the position, I believe, that he thinks that it’s possible [the fire] could have been an accident. . . and it seems that if he’s willing to argue that position, as well as some other issues that I brought forth to him, I don’t see where there’s a conflict, [f] Again, with Mr. Stark and Ms. Keller, there was a conflict.” The court did not respond to defendant’s remarks but confirmed Peters’s appointment as counsel of record. On October 25, 1996, at a hearing that had been scheduled to address defendant’s Marsden and Faretta motions filed three days earlier, the trial court addressed instead the issue of defendant’s competence based on two letters Peters had received from defense forensic psychologists Drs. Edward Fischer and Veronica Thomas. Dr. Fischer informed Peters that defendant was competent to represent himself at trial but could not cooperate with counsel because counsel was the central object of defendant’s paranoia. Dr. Thomas likewise reported to Peters that counsel was the focus of defendant’s paranoia, and advised that defendant was incompetent to stand trial. Based on this information, the court appointed psychiatrist Kaushal Sharma, M.D., to examine defendant and report on the issue of his competence. It suspended criminal proceedings and set the matter for a hearing under section 1368. The hearing took place on November 13, 1996. Peters called Drs. Fischer and Thomas. Dr. Fischer testified that defendant suffered from a paranoid personality disorder and that his mental state fluctuates. Defendant did not trust his attorney and believed Peters was unwilling to present his accidental ignition defense theory. Because of his paranoia, defendant also was convinced there was a government conspiracy against him that included the court system, Peters, other attorneys, and investigators. Defendant’s unwillingness to acknowledge his mental problems hindered defense team members’ work on his behalf. Dr. Fischer opined that defendant would cooperate only with an attorney who would present his accidental ignition defense theory. Dr. Thomas testified that defendant suffered from a paranoid disorder and possibly from organic brain damage. In Dr. Thomas’s opinion, because defendant was mentally ill and had fixed false beliefs, he was unable to cooperate with counsel. Dr. Sharma testified that defendant was competent to stand trial. In his opinion, defendant understood the charges against him and knew he faced the death penalty, but simply refused to cooperate with counsel. In other words, defendant’s lack of cooperation with counsel was volitional and not the result of a mental illness. In ruling that counsel had not sustained his burden, the court found that defendant “is able to understand the nature and purpose in [sz'c] this proceeding, understand his role in the nature of the proceedings and is able to rationally cooperate with counsel in presenting a defense. He may choose not to cooperate but he is able to cooperate.” After a brief recess and private conference with Peters, defendant withdrew his Faretta motion, filed October 22, 1996. Defendant agreed to allow Peters to present the defense he believed was appropriate and indicated he would go on a hunger strike. The court accepted the withdrawal of defendant’s motion and set trial for November 18, 1996. On the first day of trial, before the jury selection process commenced, the court conducted a closed proceeding to address defendant’s oral complaints about his representation by Peters. Defendant had been on his hunger strike for five days. He complained that Peters had told him he would not present an accidental ignition defense at trial even though Peters had agreed to do so when he was appointed counsel of record on April 15, 1996. Defendant said he needed access to Peters’s investigators so he could interview 60 witnesses. He also wanted Peters to provide Dr. Fischer with additional records and reports the psychologist had requested that purportedly would show defendant was experiencing a psychotic episode at the time of the murder and thus did not form the intent to torture. Defendant accused counsel of acting in bad faith, but said he did not believe counsel was incompetent. He felt he had been “tricked” and told the court, “I don’t really want to fire Mr. Peters. I think he’s competent and he’s come this far. What I would like for him to do is finish the work. And if you won’t allow more time, I want to . . . get new counsel. But I don’t want new counsel. I want to go to trial.” The court construed defendant’s motion as one for a continuance, denied it as untimely, and terminated his cocounsel status based on his hunger strike, which it deemed “a violation of any counsel’s responsibility to the court.” B. Asserted Errors in the Competency Hearing As noted above, on November 13, 1996, a hearing was held under section 1368 regarding defendant’s competence to stand trial. Defendant contends the trial court erred under section 1369 by appointing only one mental health expert to evaluate him for the competency hearing, and by failing to obtain his personal waiver of the right to a jury trial at the hearing. He claims these errors deprived him of due process of law under the Fourteenth Amendment to the federal Constitution. As explained below, each contention lacks merit. 1. Failure to appoint second mental health expert Section 1369, subdivision (a) provides in relevant part: “In any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two” mental health experts to evaluate the defendant and render an opinion as to his competence. Defendant asserts the court should have inferred he did not want to be declared incompetent because that finding would have “defeated] his effort to regain sole control of his case” in order to present his accidental ignition defense. The trial court’s failure to appoint a second mental health expert to evaluate him, he contends, violated section 1369 and his right to due process under the Fourteenth Amendment to the federal Constitution. The contention lacks merit. We rejected an almost identical claim in People v. Lawley (2002) 27 Cal.4th 102, 132-133 [115 Cal.Rptr.2d 614, 38 P.3d 461]. On appeal, the defendant in Lawley argued that, even though neither he nor his counsel expressly informed the judge conducting the competency hearing that he did not seek a finding of incompetence, the judge should have inferred as much based on his insistence on a court trial, new counsel, or, alternatively, the right to proceed in propria persona. {Id. at p. 133.) In rejecting the argument, we held that “[s]ection 1369, subdivision (a) plainly requires ‘defendant or the defendant’s counsel’ to ‘inform[] the court’ that the defense is not seeking a finding of incompetence in order to trigger the required appointment of a second mental health expert.” {Ibid.) Here, as in Lawley, because neither defendant nor counsel expressly informed the court during the competency hearing that defendant was not seeking a finding of incompetence, the trial court was not required to appoint a second mental health expert, and defendant’s contention fails. 2. Failure to obtain defendant’s personal waiver of his right to a jury trial A defendant enjoys a statutory right to a jury trial in a competency proceeding. (People v. Masterson (1994) 8 Cal.4th 965, 969 [35 Cal.Rptr.2d 679, 884 P.2d 136]; § 1369.) Defendant contends the trial court was required to obtain his personal waiver of this right because he and Peters were cocounsel under the terms of Peters’s appointment on April 15, 1996. He claims the court’s failure to obtain his personal waiver deprived him of his right to due process under the Fourteenth Amendment to the federal Constitution. We disagree. Before addressing defendant’s argument directly, it is necessary to clarify the status of defendant’s representation. “It is settled that a criminal defendant does not have a right both to be represented by counsel and to participate in the presentation of his own case. Indeed, such an arrangement is generally undesirable.” (People v. Clark (1992) 3 Cal.4th 41, 97 [10 Cal.Rptr.2d 554, 833 P.2d 561]; see also People v. Bradford (1997) 15 Cal.4th 1229, 1368 [65 Cal.Rptr.2d 145, 939 P.2d 259].) “If [a criminal defendant] chooses professional representation, he waives tactical control; counsel is at all times in charge of the case and bears the responsibility for providing constitutionally effective assistance. Upon a ‘substantial’ showing [citation], and entirely subject to counsel’s consent . . . , the court may nonetheless permit the accused a limited role as cocounsel. Even so, professional counsel retains complete control over the extent and nature of the defendant’s participation, and of all tactical and procedural decisions.” (People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14 [259 Cal.Rptr. 701, 774 P.2d 730], original italics.) “[N]one of the ‘hybrid’ forms of representation, whether labeled ‘cocounsel,’ ‘advisory counsel,’ or ‘standby counsel,’ is in any sense constitutionally guaranteed.” (People v. Bloom (1989) 48 Cal.3d 1194, 1218 [259 Cal.Rptr. 669, 774 P.2d 698].) Here, during the April 15, 1996, closed proceeding, the court approved a form of hybrid representation for defendant in which he was both represented by counsel and permitted to act as cocounsel. Specifically, in granting defendant’s request for cocounsel status, the trial court advised defendant that his role would be limited to filing motions and examining witnesses at trial about his janitorial business practices, and that he would retain in propria persona privileges in jail. Peters consented to defendant’s cocounsel status and was appointed counsel of record to conduct the trial proceedings. Turning to the merits, there is nothing in the record that suggests defendant’s hybrid representation extended to the November 13, 1996, competency hearing. The reporter’s transcript of the competency hearing reflects that only Peters appeared as counsel of record on behalf of defendant. In addition, whereas the minute order for the proceedings held on November 13, 1996, does not indicate defendant’s cocounsel status during the competency hearing, it does reflect that defendant and Peters appeared as “cocounsel” in the proceedings that followed this hearing, when criminal proceedings were reinstated. Further, defendant’s conduct during the competency hearing confirms that he in fact did not participate as cocounsel. Peters made an opening statement, examined the two defense experts, cross-examined the prosecution’s expert, and provided closing remarks. Defendant, on the other hand, did not speak or otherwise participate, with two exceptions. First, defendant acknowledged a greeting by the court when the hearing was called to order. Second, during counsel’s examination of Dr. Fischer, defendant attempted to ask the witness a question. The court interrupted defendant, stating, “We’re in a proceeding where you—.” Counsel interrupted the court and said, “I’ll ask it.” Defendant remained silent throughout the rest of the competency hearing. Importantly, defendant never expressly asserted his cocounsel status or participated in the hearing in accordance with the limited cocounsel responsibilities the court had conferred on him in the criminal proceedings. In sum, the record fails to support the factual predicate to defendant’s claim: that the hybrid representation extended to the competency hearing. Accordingly, the trial court did not err by accepting Peters’s waiver of defendant’s statutory right to a jury trial at the competency hearing. (People v. Masterson, supra, 8 Cal.4th at p. 974 [counsel may waive a jury trial in a competency proceeding, even over the defendant’s objection].) C. Right to Self-representation Defendant contends that the trial court violated his rights under Faretta by accepting an invalid waiver of his right to self-representation during the proceeding on April 15, 1996. He additionally argues the court erroneously denied his request, made on the day of trial, for a continuance in order to permit Peters to prepare the accidental ignition defense. These errors, he asserts, violated his rights to present a defense and to counsel under the Sixth Amendment and to a reliable penalty determination under the Eighth Amendment. As we explain, each of his contentions lacks merit. 1. Defendant’s waiver of his right to self-representation Defendant contends his waiver of his previously asserted right to self-representation was invalid on two grounds. First, he argues his waiver was ineffective because it was conditioned on Peters’s presentation of the accidental ignition defense and the defense was not presented. Second, defendant maintains his waiver was not valid because it was induced by the trial court’s misadvisement on August 12, 1994, that he could decide what defense to present even when represented by counsel. Because he mistakenly believed that Peters would present such a defense and that he, rather than counsel, could choose what defense to present, defendant argues he was unaware of the consequences of his waiver of his Faretta right and thus did not knowingly and voluntarily waive his right, requiring reversal of his conviction. a. Asserted conditional waiver “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” (Brady v. United States (1970) 397 U.S. 742, 748 [25 L.Ed.2d 747, 90 S.Ct. 1463]; see People v. Mroczko (1983) 35 Cal.3d 86, 110 [197 Cal.Rptr. 52, 672 P.2d 835].) Although we have found no authority directly on point, this court has addressed the related issue of the validity of a conditional waiver of the right to counsel and held that “a waiver of counsel which is made conditional by a defendant cannot be effective unless the condition is accepted by the court.” (People v. Carter (1967) 66 Cal.2d 666, 670 [58 Cal.Rptr. 614, 427 P.2d 214]; see also Adams v. Carroll (9th Cir. 1989) 875 F.2d 1441, 1445 [upholding the defendant’s unequivocal request to represent himself if the trial court would not order substitute counsel].) In Carter, on which defendant relies in arguing his waiver of the right to self-representation was invalid, the defendant moved to waive his right to counsel and represent himself at trial. (People v. Carter, supra, 66 Cal.2d at p. 668.) With the court’s permission, the deputy district attorney undertook the inquiry to determine the defendant’s ability to defend himself. During this colloquy, the defendant stated he was willing to represent himself if he were permitted the use of the law library. Later, the defendant refused to defend himself because he had not been provided access to the library; the trial ended in his conviction. (Id. at pp. 668-669.) On appeal, this court reversed because there was no constitutionally effective waiver of the defendant’s right to counsel. (Id. at p. 670.) The record clearly established that the “defendant’s willingness to proceed without counsel was predicated upon his mistaken belief, reinforced by the failure of the trial judge to promptly and unequivocally reject the condition imposed by [the] defendant, that he would be permitted some sort of meaningful access to and use of library facilities.” (Ibid.) This court further noted that the defendant’s conduct throughout the trial was consistent with that belief, in that he made multiple requests for access to library facilities in order to prepare his case. (Id. at pp. 668-670.) Here, we need not decide defendant’s claim that his waiver of his right to self-representation was invalid because his willingness to waive this right was predicated on his mistaken belief that Peters, by accepting appointment as counsel of record, would present the accidental ignition defense, a belief the trial court reinforced by failing to promptly and unequivocally reject this condition. Under the unique circumstances presented in this case, even assuming that defendant’s waiver was invalid, reversal of his conviction is not required. As defendant acknowledges, a waiver or abandonment of the Faretta right to self-representation may be inferred from a defendant’s conduct. (McKaskle v. Wiggins (1984) 465 U.S. 168, 182-183 [79 L.Ed.2d 122, 104 S.Ct. 944]; People v. Dunkle (2005) 36 Cal.4th 861, 909-910 [32 Cal.Rptr.3d 23, 116 P.3d 494].) In McKaskle, the United States Supreme Court concluded that the self-represented defendant’s acquiescence in standby counsel’s participation at various points during trial barred his complaint on appeal that counsel’s participation infringed on his right to represent himself. (McKaskle, supra, 465 U.S. at pp. 182-183.) In Dunkle, this court held the trial court erred in denying the defendant’s Faretta motion made over a year before the commencement of his trial. (Dunkle, supra, 36 Cal.4th at p. 909.) Relying in part on McKaskle, we concluded that the defendant subsequently abandoned his Faretta right when he stated in a later proceeding that he wanted to be represented by counsel, and thus cured any error in the trial court’s denial of his Faretta request. (Dunkle, at pp. 909-910.) Here, any error by the trial court in accepting a conditional waiver of defendant’s right to self-representation during the April 15, 1996, closed proceeding was cured by defendant’s conduct during the proceeding held on November 13, 1996, after the court ruled that he was competent to stand trial and reinstated criminal proceedings. There, the court considered the Faretta motion defendant had filed on October 22, 1996. A brief recess was taken, and Peters and defendant conferred privately. During this conference, defendant asserts, Peters told him that he did not intend to present the accidental ignition defense. The proceedings resumed, and Peters and defendant again appeared before the court. Defendant withdrew his Faretta motion and stated that Peters could present whatever defense he thought appropriate. The record contains no suggestion that defendant did not understand what he was giving up by withdrawing his Faretta motion, confirming that he wanted to be represented by Peters, and agreeing that Peters could determine the defense. Hence, we may properly infer that defendant abandoned his Faretta right and, in so doing, cured any error by the trial court in accepting his purported conditional waiver of his right to self-representation. (People v. Dunkle, supra, 36 Cal.4th at pp. 909-910.) Finally, without citation to the appellate record, defendant asserts that he had no choice but to withdraw his Faretta motion after the conclusion of the competency proceedings on November 13, 1996, because the accidental ignition defense had not been prepared. Keeping Peters as appointed counsel, he reasons, ensured that a defense would be presented, even if it was not his preferred defense. But defendant never actually claimed lack of preparation when he withdrew his Faretta motion. By as early as July 30, 1993, during the hearing on his first Faretta motion, defendant had articulated his accidental ignition defense theory, and he made statements alluding to the theory as late as July 26, 1996, at the hearing on his nonstatutory motion to dismiss. Also, defendant indicated in his posttrial “Motion to Dismiss Verdicts,” filed March 17, 1997, that he had begun to utilize Lowe’s services around May 1995 and, by April 2, 1996, had learned of Lowe’s findings and conclusions. On this record, there is no support for defendant’s contention that lack of preparation of his favored defense compelled him to accept appointed counsel. b. Asserted reliance on the trial court’s misadvisement Defendant claims that, on April 15, 1996, he waived his Faretta rights and agreed to Peters’s appointment in reliance on the trial court’s misadvisement, at the August 12, 1994, hearing on defendant’s Marsden and Faretta motions (see, ante, at p. 277), that he could decide what defense theory counsel would present. That the court misadvised defendant is clear. “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.” (People v. Welch (1999) 20 Cal.4th 701, 728 [85 Cal.Rptr.2d 203, 976 P.2d 754], citing People v. Hamilton, supra, 48 Cal.3d 1142, 1162.) An exception to this general rule is that defense counsel’s traditional authority to control the conduct of the case does not include the authority to withhold the presentation of any defense at the guilt phase if the defendant openly and unequivocally expresses his desire to present a defense and if there exists some credible evidence to support it. (People v. Burton (1989) 48 Cal.3d 843, 856 [258 Cal.Rptr. 184, 771 P.2d 1270], citing People v. Frierson (1985) 39 Cal.3d 803, 812, 817-818 [218 Cal.Rptr. 73, 705 P.2d 396] (plur. opn. of Kaus, J.).) Counsel, however, is not obligated to present a defense that lacks “credible evidentiary support.” (Burton, supra, 48 Cal.3d at p. 857.) Here, defendant fails to show that he actually relied on the court’s misadvisement in relinquishing his right to self-representation on April 15, 1996. As recounted above, two months after the court’s misadvisement, during a discovery hearing held on October 21, 1994, the court effectively corrected itself when it agreed with defendant that his appointed counsel could pursue a separate defense strategy, even over defendant’s objections. Nothing in the later record contradicts the substance of the October 21, 1994, exchange. Moreover, even if defendant at some point actually relied on the court’s earlier misstatement that he could insist counsel present a particular defense in relinquishing his Faretta right, reversal would not be required because, as stated in the preceding part, any error by the trial court in accepting his waiver of his right to self-representation was cured when defendant withdrew his Faretta motion during the proceedings that followed the November 13, 1996, competency hearing and stated Peters could determine the defense. 2. Request for continuance Defendant argues that, during the November 18, 1996, proceeding immediately preceding commencement of trial, the trial court erroneously denied his request for a continuance to permit Peters additional time to prepare the accidental ignition defense. The claim lacks merit. Preliminarily, we agree with respondent that defendant continued to enjoy cocounsel status at the November 18, 1996, proceeding. In this capacity, defendant ordinarily would have no authority to request a continuance because, in hybrid types of representation, professional counsel controls the case, including all tactical and procedural decisions. (People v. Hamilton, supra, 48 Cal.3d at pp. 1164-1165, fn. 14.) Here, because the trial court permitted defendant to continue to file motions after Peters’s appointment, defendant retained some measure of control over procedural decisionmaking in the case. For this reason, we consider his claim on the merits. “A continuance in a criminal trial may only be granted for good cause. (§ 1050, subd. (e).) ‘The trial court’s denial of a motion for continuance is reviewed for abuse of discretion.’ (People v. Jenkins (2000) 22 Cal.4th 900, 1037 [95 Cal.Rptr.2d 377, 997 P.2d 1044].) ‘There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ (Ungar v. Sarafite (1964) 376 U.S. 575, 589 [11 L.Ed.2d 921, 84 S.Ct. 841]; see also Jenkins, supra, 22 Cal.4th at p. 1039.)” (People v. Mungia (2008) 44 Cal.4th 1101, 1118 [81 Cal.Rptr.3d 614, 189 P.3d 880].) Although defendant ostensibly sought a continuance, it is clear from the record that defendant’s goal was to obtain a court order that required Peters to complete those tasks that defendant assertedly believed Peters agreed to perform when he was appointed counsel of record on April 15, 1996, but had not finished. For example, defendant wanted his defense to provide the victim’s children with an explanation for his conduct on the day of the murder. He also wanted Peters to obtain medical records and reports that Dr. Fischer apparently had requested, and to subpoena additional records, including telephone bills and checks. The court asked defendant, “You’re asking counsel to run it [his trial] the way you want it to be run[?] And we are back to this circle[?]” Defendant responded, “It’s what he agreed to do and he asked your blessing of the arrangement. . . . It’s in the [April 15, 1996] transcript.” Thereafter, the court construed defendant’s request as one for a continuance to permit Peters additional time to prepare the accidental ignition defense and complete other tasks defendant believed necessary for trial. It told Peters he need not respond to any specific issue and denied defendant’s request as untimely. We conclude the trial court did not abuse its discretion. As stated, immediately before defendant withdrew his Faretta motion on November 13, 1996, Peters told him during a private conference that he would not present an accidental ignition defense theory. Defendant thereafter withdrew his Faretta motion and agreed that Peters could present whatever defense he thought was “appropriate.” Under these circumstances, granting additional time to prepare the accidental ignition defense would have served no