Full opinion text
Opinion CHIN, J. On June 4, 1980, Julie Cross, an agent of the United States Secret Service, was murdered in the line of duty. Over a decade later, defendant Andre Stephen Alexander was charged with Cross’s murder. In 1996, a jury convicted him of first degree murder (Pen. Code, § 187), and found true allegations that he personally used a firearm and that a principal was armed with a firearm (§§ 12022.5, subd. (a), 12022, subd. (a)). The jury also found true special circumstance allegations that defendant previously had been convicted of murder (§ 190.2, subd. (a)(2)) and that the murder of Cross had been committed in the course of a robbery (§ 190.2, subd. (a)(17)). At the penalty phase of the trial, the jury returned a verdict of death. The trial court denied a motion for a new trial and the automatic motion to modify the penalty verdict (§ 190.4, subd. (e)), and it imposed the death sentence. Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment. I. Facts A. Guilt Phase 1. Prosecution Evidence a. Commission of the Murder On the evening of Wednesday, June 4, 1980, Secret Service Agents Julie Cross and Lloyd Bulman were part of a team of agents planning to serve a search warrant on a suspected counterfeiter’s residence. The two were partners whose role was to prevent the suspect’s escape should he try to flee when the warrant was served. They were seated in an unmarked car near the comer of Belford Avenue and Interceptor Street near the Los Angeles International Airport; Bulman was in the driver’s seat, and Cross was in the front passenger’s seat. Both were dressed in civilian clothes. The agents’ vehicle contained a police radio and a 12-gauge shotgun with the standard Secret Service modifications of a shortened barrel, a pistol grip, and a folding stock. A guard attached to the barrel inhibited a person from placing a hand in front of the muzzle when firing the gun. This guard was unique to shotguns the Secret Service used because it was permanently, as opposed to temporarily, attached. On the night of the murder, the shotgun was loaded with four rounds: the first and third were slugs; the second and fourth were buckshot. Bulman testified that, at some point before it became dark, a large, brown, two-door car with a lighter-colored roof and mst spots on the body slowly drove past the agents. The two African-American men in the car looked at the agents as they drove by. The driver was neatly groomed and had a mustache. The passenger wore a stocking cap and also had a mustache. Several minutes later, the same car with the same occupants again slowly drove by, this time parking a short distance away. The two men left the car and walked out of sight between an apartment building and a garage. Two to three minutes later, they returned to the car and drove away. A short time later, after it was dark outside, Cross told Bulman she saw someone coming up behind the agents’ car. The agents drew their sidearms from their holsters, and Cross got out of the car. As Bulman turned to open his door, he saw someone approach the rear of the car on the driver’s side. Before Bulman could exit the car, the person opened the door and pointed a revolver at Bulman’s head. Bulman recognized the man, who was wearing a black leather jacket, as the driver of the brown car. The driver told Bulman to raise his hands. After putting his pistol on the seat, Bulman raised his hands and identified himself as a police officer. The driver said he also was a police officer, but refused Bulman’s request to allow Bulman to show his badge. He ordered Bulman to tell Cross to drop her weapon; instead, Bulman told Cross not to do so. While the driver had the revolver pressed against Bulman’s temple, forcing his head toward the seat, Bulman heard Cross say, “What are you doing? Get your hands back up on the car.” Bulman could not see what was happening on the other side of the car. Several seconds later, another man appeared at the driver’s door. Bulman could not see clearly who he was. While bent over, Bulman tried to use the police radio, but it did not work because the car’s ignition was not turned on. Bulman again identified himself as an officer and mentioned the police radio as proof. Saying, “He’s got a radio,” the second man reached into the car, removed the keys from the ignition, and knocked the radio’s microphone from Bulman’s hand. That man then noticed the shotgun on the floor in the front of the car, said something like, “What do we have here,” and took the shotgun. Bulman testified that, almost immediately after the man with the shotgun left the driver’s door and went behind the car, Cross jumped into the car through the front passenger’s door. She went over the seat into the back, a panicked look on her face. A shotgun blast then came through the open passenger’s door, the shot traveling across Bulman’s lap and out through the driver’s door. Bulman grabbed the revolver pressed to his head and wrestled his way out of the car. As he did so, the driver fired the gun, but the bullet did not hit Bulman. While Bulman and the driver struggled on the street, Bulman heard two more shotgun blasts coming from the agents’ car. The driver fired several more shots from the handgun during the struggle, but again Bulman was not hit. The struggle continued for three or four car lengths in front of the agents’ car in the middle of Interceptor Street until the driver said, “Shoot the son of a bitch.” After Bulman heard another person say, “I can’t. You’re in the way,” Bulman saw the passenger aiming the agents’ shotgun at him. The passenger was wearing a dark stocking cap and a dark-colored jacket. Bulman and the driver next wrestled in the opposite direction, behind and past the agents’ car, each trying to put the other’s body towards the shotgun as the passenger tried to get a clear shot at Bulman. Near the comer of Interceptor and Belford, Bulman lost his balance and fell. As Bulman tried to get up, the passenger ran over and put the shotgun muzzle about six inches from Bulman’s head. The passenger fired the weapon, but the shot missed Bulman and hit the pavement. The assailants then ran off. When he realized he had not been shot, Bulman went to the car to get his pistol and check on Cross. She was lying on the backseat and had no pulse. Bulman ran to a Secret Service surveillance van parked nearby. He and Agent Terry Torrey, who was stationed in the van, then drove back to the car. Bulman did not see the shotgun, the keys to the agents’ car, or Cross’s pistol again. Bulman was interviewed by agents that night and on numerous occasions in the following days, months, and years. He worked with a police sketch artist on June 6, 1980, and completed composite drawings of the suspects that were introduced into evidence at trial. Several of the interview sessions involved attempts to hypnotize Bulman in the hope of helping him to remember other details of the crime. At a live lineup conducted on June 27, 1980, Bulman identified one subject, Terry Brock, as looking similar to the driver, the man with whom Bulman had struggled, except the person in the lineup had a beard. Bulman was unable to identify defendant Alexander as the passenger who fired the shotgun during a live lineup conducted on April 19, 1990, at the preliminary hearing, or at the trial. However, at trial, Bulman testified a picture of defendant Alexander taken around 1980 looked “closest” to the person with the shotgun, who was depicted on the left side of the composite sketch trial exhibit. Agent Torrey testified that, minutes before Bulman ran to the surveillance van, he had seen a medium- to dark-colored car speeding on Belford Avenue with its lights off. Wayne Dhaler was driving his car at the intersection of Belford and Interceptor at 9:00 p.m. the night of the murder. He testified he saw two men, one wearing a tan or brown jacket, leaning into the driver’s side door of a car parked on the street. Alvin Borges drove by the same area about the same time. He testified he saw two African-American men fighting with a White man who was on the ground. Borges saw one of the men shoot the man on the ground at almost pointblank range with a shotgun. The shooter, who used his right hand to pull the trigger and his left to hold the barrel, was wearing a brown, waist-length jacket. Borges testified the jacket later seized from defendant’s parents’ home “could be consistent” with the one the shooter had worn. Harry Zisko testified he heard shots that evening while in his Belford Avenue apartment. He saw two men running down the street, one carrying a two-inch-diameter cylinder that was between one and one and a half feet long. Zisko heard metal hitting metal as they ran. Ten to 20 seconds later, a car waiting near the curb with its lights on pulled into the street, briefly went out of control, and then sped away with its lights off. Frank Kerr, who lived on Belford Avenue, testified that, at approximately 9:00 p.m., he heard shouting, gunfire, and two people running on his street. Kerr then saw Bulman at the Secret Service car. When Bulman left, Ken-checked on Cross, saw she had been shot in the chest, and unsuccessfully tried to find any sign of life. Kerr stated that a person could go through a breezeway between apartment buildings on Interceptor and wind up at an ivy-covered chain-link fence that was “next to where the Secret Service car was on the night of June 4th.” Kerr added that a person could “come around” the fence onto the street where the Secret Service car had been parked. b. Crime Scene Evidence Analysis of the crime scene, the agents’ car, and Cross’s body indicated the first round fired from the shotgun, a slug, entered the front passenger door and exited through the driver’s door. Cross was then shot with a round of buckshot likely fired from outside the front passenger’s door. She next was shot in the chest at close range with the third round, another slug, which exited her back and traveled through the seat and floorboard. This shot probably was fired while the shooter leaned over the front seat and shot almost straight down. Each shotgun wound Cross suffered would have been fatal. Los Angeles Police Detective Marvin Engquist testified there was a fine mist of blood splattered on the back of the front seat that was not captured on the crime scene photographs of the dark upholstery. Rod Englert, a crime scene reconstruction and bloodstain expert, testified the shotgun and the person who shot Cross would have been splattered with a fine mist of blood caused by the close-range shot into her chest. Eyeglass frames, a broken eyeglass lens, and an eyeglass case were found in the street 57 feet in front of the agents’ car and 13 feet from the curb. Agent Torrey interviewed people living in buildings nearby, but was unable to find anyone who owned the recovered eyeglasses. The parties stipulated that on June 20, 1980, a Secret Service agent using a metal detector found a .38-caliber bullet buried in the ground between the sidewalk and chain-link fence on Interceptor, some distance in front of where the agents’ car had been parked. They also stipulated that the custodian of records at the Los Angeles County Coroner’s Office determined there was no other reported homicide near the Los Angeles International Airport on June 4, 1980. c. Search of Defendant’s Parents’ House On November 12, 1990, Los Angeles Police Detective Richard Henry served a search warrant at the home of defendant’s parents. He found a brown leather jacket (the jacket) and a knit cap in a closet that defendant’s mother said contained defendant’s belongings. Henry also found a 1987 postcard addressed to defendant that reminded him to pick up his eyeglasses from an optometrist. Bulman testified the cap found in the closet was similar to the one worn by the passenger; “presumptive tests,” providing a preliminary indication whether or not blood might be present on the hat, were negative. Los Angeles Police Department Crime Laboratory technicians also conducted two presumptive tests, a phenolphthalein and a luminol test, for the presence of blood on the jacket. The tests resulted in positive reactions on a stain on the left sleeve and small pinpoint spots in the chest area. The parties stipulated the jacket was sent to another laboratory for further tests to confirm the presence of blood, that one “vigorous” swabbing of the sleeve’s stain again resulted in a positive result in a presumptive test, but that other tests to confirm the presence of human blood on the jacket were negative. The parties stipulated the negative results in the confirmation tests could mean the jacket had (1) nonhuman blood on it, (2) only a trace amount of blood insufficient to yield a confirmatory result, or (3) no human blood on it. The parties also stipulated that a Federal Bureau of Investigation analyst determined there was insufficient DNA on the jacket for testing. The owner of the company that manufactured the jacket testified it was made no later than 1976, and would have been sold soon afterwards. Harold Ross, the optometrist who prepared defendant’s eyeglasses in 1987 and sent the reminder postcard, testified defendant’s prescription was to correct nearsightedness. Another optometrist, Richard Hopping, examined the glasses found at the scene and determined the lens prescription corrected nearsightedness and would be especially helpful for driving at night. Both optometrists testified a change in a person’s lens prescription like the difference between the lens found at the scene and defendant’s prescription seven years later would be possible. d. Defendant’s Refusal to Stand in a Lineup On April 3, 1990, defendant was directed to stand in a live lineup related to the Cross murder investigation. A deputy at the jail testified that defendant, who refused to stand in the lineup and became “boisterous” and “belligerent,” signed a refusal form notifying him that the lineup was for the purpose of either eliminating or identifying him as a suspect involved in a crime and that his refusal to participate could be used in court to indicate “guilty knowledge.” The form provided a space for defendant to explain his refusal. Defendant told the deputy he was refusing on “the advice of his attorney.” Bernard Rosen, defendant’s attorney in another matter, testified he had advised defendant to refuse to stand in the lineup but had added that defendant would have to participate if a judge so ordered. On April 19, 1990, pursuant to a court order, defendant did participate in a lineup at which Bulman failed to identify him. e. Terry Brock Defendant’s sister, Darcel Taylor, testified defendant and Terry Brock, the person whom Bulman identified as looking like the driver suspect in the murder, knew each other around the time of the Cross murder. The Brock and Alexander families had been neighbors when Taylor was young, and defendant and Terry became “associates” after defendant and Jessica Brock had a child together. Taylor did not know whether defendant and Terry were “close associates” in 1980; she saw Terry “very seldom[ly]” in 1980 and 1981. In February 1991, Taylor wrote to Terry asking whether he had been talking to the police about defendant. She did so because defendant had told her he was concerned that Terry was talking to the police about him, and he wanted Taylor to try to contact Terry to learn if that was true. April Watson, who had been Terry’s girlfriend for several years, told Detective Henry that defendant contacted her in August and October of 1990, concerned that Terry might be talking to police. Defendant wanted Watson to find out where Terry was and to tell him to “stay strong.” Henry confirmed that he and other officers had transported Terry from the Los Angeles County jail on several occasions in August and September of 1990. Yvette Curtis, Terry’s girlfriend from approximately 1977 to 1982, testified she met defendant through Terry around 1978 and had a brief affair with defendant in 1978 or 1979. During the affair, Curtis took a trip with defendant in which he drove a large truck north of Los Angeles to a place where the truck was unloaded. Defendant had worn glasses when driving at night. The frames of those glasses and their case were similar to the frames and case found at the crime scene. About a month after the trip, Terry confronted defendant about the affair and repeatedly hit defendant in the head with the butt of a gun. Despite that altercation, Curtis continued to see Terry and defendant together on occasion, and she knew they were associates at the time Cross was murdered. Curtis testified that, just before 11:00 p.m. on June 4, 1980, Terry came to her apartment, looking nervous or excited. He said he needed “to watch the news” about the female Secret Service agent who was murdered “by the airport.” Curtis added that she had seen Terry with a .38-caliber revolver two weeks before the murder. Defendant’s address book, recovered by law enforcement in May 1991, contained a telephone number for Terry Brock and April Watson. f. Defendant’s Employment at Swift Foods Both Arthur Jackson and defendant drove trucks for Swift Foods in Los Angeles in 1980. Jackson testified defendant drove a particular tractor-trailer truck for deliveries to San Francisco and that the truck would be gone on Monday and Thursday mornings when Jackson came to work. On a few occasions, Jackson was at work when defendant returned from San Francisco on Tuesday and Friday evenings. Jackson had seen defendant driving a medium-sized faded brown car with a lighter-colored top. Richard Lamirande, warehouse manager at Swift Foods from 1977 to 1979, testified that, during those years, defendant usually left Sunday night to make a delivery to San Francisco and returned Tuesday afternoon, left Thursday morning to make another delivery and returned Friday afternoon. Lamirande said the seized jacket looked like one defendant wore while they worked at Swift Foods. g. Jessica Brock Jessica Brock, Terry’s sister, had a child by defendant in May 1978. Her testimony varied between direct and cross-examination and was inconsistent with her various prior out-of-court statements to police and the defense. The version most helpful to the prosecution was based primarily on a statement she gave police in 1990. In that version, Jessica said defendant came to her apartment after midnight the night of the Cross murder with “blood spatters, little specks of blood” on his chest and left arm and was carrying a bag containing what looked like a dark “crowbar” and a wooden object that could have been the butt of a handgun. He washed blood off of the crowbar-like object, was very concerned about whether police were outside the apartment, and told Jessica he had had to “take somebody out” near the airport, that “it was either him or them.” When police later showed Jessica the barrel of a Secret Service shotgun with its unique handguard, she said it was “exactly” the same item she had seen defendant carry and clean that night. She said around 1980 defendant often wore knit caps similar to the one seized from his parents’ house. Jessica testified her relationship with defendant ended because he had an affair with Eileen Smith. Jessica felt pressured by defendant’s family and her own family not to testify. She testified defendant’s mother told her she was the prosecution’s star witness and there was no case against defendant without her testimony. 2. Defense Evidence Beverly Perry and Luis Jimenez, both employees of Swift Foods, testified they did not see defendant wearing eyeglasses around 1980. Carlos Jimenez also worked at Swift Foods; he testified he did not recall seeing defendant wear glasses around 1980. In 1980, Nina Miller was the girlfriend of Charles Brock, brother of Terry and Jessica. Miller testified, and earlier had given a statement to police to the same effect, that in the early morning hours of June 5, 1980, she, Charles, and others picked up a friend at the Venice police station and returned to the friend’s apartment. Terry was waiting at the apartment building, lying in his car. Once inside, Terry participated in sawing off the barrel of a shotgun and demonstrated shooting that gun, saying, “This is how I shot it.” Miller said that, at a later date, she heard Charles say “the Secret Service agent must have played dead” because the agent had not picked Charles out of a lineup. She added that Charles once described to her a shotgun with a folding stock like the Secret Service shotgun. Eileen Smith had a romantic relationship with defendant and lived with him in 1980. She testified she never saw defendant wear prescription glasses before 1981, when she helped him buy a pair. She said in 1980 defendant drove a black Buick Park Avenue and that he sometimes had made deliveries for Swift Foods in the middle of the week and was gone on Wednesdays. She said there were other jackets in the closet Detective Henry searched, and that some clothes in it belonged to her, her son, and defendant’s brother. Smith testified that defendant did not “hang out” with Terry after Terry hit defendant in the head with a gun. Defendant’s father testified Jessica Brock told him she had lied in her statements to police after they had threatened her but that she would tell the truth at trial. He denied ever having contacted witnesses to pressure them not to testify or to change their testimony, although the prosecutor cross-examined him regarding his contacts with various witnesses in the case. He also denied previously trying to “pay off’ a witness in a case against defendant involving a person named Dorothy Tyre. Former Los Angeles Police Detective Michael Thies testified that, in Bulman’s statements to police after the murder, Bulman did not say the struggle with the driver initially occurred in front of the agents’ car. Bulman’s description of the suspect with the shotgun contained in Thies’s report and the all-points bulletin Thies issued did not include that that suspect had a mustache, although the final composite of that individual did. Thies said he believed Bulman told him during their initial interview that the suspect with the shotgun had a mustache, but he agreed that he normally would have included such an important detail in his notes and the bulletin if Bulman had so stated. Secret Service Agent Frank Renzi testified his notes of Bulman’s description of the suspect with the shotgun similarly did not include mention of a mustache, but he added that he might not have heard that part of Bulman’s description of that suspect. Renzi’s notes indicated that Bulman did describe the other suspect as having a neatly trimmed moustache. 3. Prosecution Rebuttal Evidence Kevin McHugh worked at Swift Foods between 1977 and 1980. He testified he twice saw defendant wearing eyeglasses while reading. Detective Henry testified that, in a call intercepted pursuant to a court-authorized wiretap, defendant’s mother told Eileen Smith that, at defendant’s request, she was listing things she wanted Smith to remember for her testimony that might help defeat a pending motion in the case. Henry also testified that the closet he searched appeared to contain only defendant’s clothes. Henry added that, shown the barrel of a Secret Service shotgun, Jessica Brock told him it was the object she had seen defendant “washing the blood off of.” Henry also testified Jessica described a square wooden bottom of the “gun butt” of a revolver as the object she saw protruding from the bag defendant brought to her apartment on June 5, 1980. Dorothy Tyre testified defendant took coins, checks, a purse, and a wallet from her on December 17, 1972. Tyre said she pressed charges against defendant despite his parents’ attempts to persuade her not to do so. 4. The Special Circumstances Allegations During a bifurcated portion of the guilt trial, the prosecution, in support of the prior-murder special-circumstance allegation, presented defendant’s certified prison records and fingerprint records, which established that on July 19, 1990, he was convicted of three counts of first degree murder. Detective Henry, the investigating officer in that case, testified he was in court when the jury convicted defendant of those murders. During this part of the trial, the prosecution did not present any new evidence related to the robbery-murder special circumstance, and no defense evidence was presented. B. Penalty Phase 1. Prosecution Evidence The prosecution presented evidence concerning six prior incidents of defendant’s criminal behavior. On April 8, 1970, defendant was stopped for driving an unsafe car that was too low to the ground. Defendant was verbally abusive to the police officers. He was arrested after he tried to run away when they issued him a ticket. On December 17, 1972, defendant and another person, both armed with revolvers, entered Dorothy Tyre’s home and robbed her of several items. This incident led to defendant’s conviction on July 17, 1973, for first degree robbery and first degree burglary, with an enhancement for being armed with a firearm. On May 30, 1977, defendant was part of a crowd of bystanders who interfered with police officers in the process of arresting two men. Defendant had to be handcuffed and placed in a patrol car so that the officers could complete the arrest safely. On July 25, 1984, defendant shot James Williams in the arm for no apparent reason. The two men lived in the same apartment complex. On April 9, 1988, while incarcerated in a Los Angeles County jail, defendant struck a sheriff’s deputy and held him in a chokehold. Other deputies had to physically subdue defendant. The prosecution also presented several photographs of the crime scene and the victims in the triple murder of which defendant was convicted in 1990. Two of the victims had been shot in the head. Cheryl Meyers, a San Diego Police Department captain who had worked with Julie Cross before she joined the Secret Service, Cross’s older brother, and Agent Bulman testified about Agent Cross and the impact her death had on them. Bulman then testified about how he personally was affected by the events of June 4, 1980. 2. Defense Evidence Deputy Sheriff Dave Sher testified defendant caused no problems and served as spokesman for inmates on his row while confined in the county jail during the trial proceedings. Lazaro Simone, a jail inmate, testified defendant was helpful and generous toward other inmates and was respectful toward jail staff. Defendant’s parents, two siblings, four children, current and former girlfriends Debra Edwards and Eileen Smith, and a family friend testified consistently with each other concerning defendant’s history. They described him as a loving and supportive son, brother, and father who fell into trouble due to drug use and associating with the wrong people. Defendant voluntarily entered a drug treatment program in approximately 1984. These witnesses, and an officer of the Swift Foods corporation while defendant worked there, described defendant as a hard and conscientious worker. Defendant’s family members testified that, in their view, defendant did not deserve the death penalty. Defendant recounted his personal history and tried to explain or minimize his culpability in the criminal incidents the prosecution presented in aggravation. He denied committing the triple murder and the murder of Agent Cross. II. Discussion A. Pretrial Claims 1. Denial of Motion to Appoint Madelynn Kopple as Trial Counsel Defendant contends the trial court abused its discretion by denying his request to continue Madelynn Kopple’s appointment as his attorney and thereby violated his state and federal right to the assistance of counsel. In response to the People’s claim that review of this decision is barred by the “law of the case” doctrine, he claims the doctrine does not apply because “exceptional circumstances” justify review, namely that the Court of Appeal’s decision is “manifestly unjust.” (See England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795 [97 P.2d 813].) a. Background On October 1, 1992, defendant was remanded into custody for the Cross murder. He asserted his rights under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], and was granted leave to proceed in propria persona. Attorney Madelynn Kopple was appointed as advisory counsel. On March 10, 1993, she submitted an attorney substitution form, seeking to have herself appointed as attorney of record. She withdrew her request once told she could not be appointed and receive payment for her services without following local requirements for capital appointments, including that the public defender and alternate defense counsel first decline appointment and that the appointment must be filled by an attorney on the Central District’s death penalty “bar panel.” The preliminary hearing was set for July 13, 1993. Kopple filed four motions prior to that date: a motion to continue the hearing; a 45-page motion to strike the prior-murder special-circumstance allegation; an 11-page motion to suppress testimony of witnesses who were hypnotized during the police investigation; and a 10-page motion to dismiss the case for prejudicial prearrest delay. Kopple signed these motions as defendant’s “advisory counsel.” Defendant did not sign them. The motion to continue was based on the fact that Kopple was scheduled to be in trial on an unrelated case. At the May 24, 1993 hearing on that motion, Kopple said she was appearing “on behalf of’ defendant, and she referred to this motion and the motion to strike as motions that “I filed.” Other than agreeing to the continuance, defendant said nothing at that hearing. At a hearing on July 7, 1993, Kopple appeared without defendant and said he would be making a motion to substitute her as attorney of record. She presented declarations from the public defender and alternate defense counsel stating they would not represent defendant because of conflicts of interest. Despite acknowledging what the court described as a “hullabaloo” regarding her qualifications, Kopple represented that she was on the “bar panel” and qualified to receive a special circumstances appointment, and that she understood it was “mandatory” that the court appoint her because she had been advisory counsel for over six months. She added, “I’m thoroughly familiar with the case,” defendant “wants me as lead counsel,” and, if she were not appointed as counsel of record, defendant would not be ready to proceed with the preliminary hearing scheduled to start the following week. On July 12, 1993, defendant filed a motion to substitute Kopple as counsel of record; the next day, the court indicated it had told the court clerk that Kopple “would qualify to serve as counsel,” granted the motion, and terminated defendant’s in propria persona status. Kopple represented defendant during the preliminary hearing, after which the court denied the motion to strike the prior-murder special-circumstance allegation and denied, without prejudice, the motion to dismiss for delay. The court excluded no testimony based on a witness’s having been hypnotized. Defendant was bound over to superior court and, on August 2, 1993, he was arraigned before Judge Ito. Kopple appeared with defendant but did not mention that she had been appointed as counsel in municipal court. Judge Ito assigned the matter to Judge Horan for trial. Later that morning, when Judge Horan questioned her status as appointed counsel, Kopple said she had been appointed in municipal court and assumed her appointment would continue. Judge Horan returned the matter to Judge Ito to clarify Kopple’s status because she was “not on the list,” presumably a reference to “the Superior Court’s approved list of death penalty case attorneys.” That afternoon, Judge Ito commented that he had assumed Kopple “was privately retained since she had announced ready to proceed with the arraignment and did not request to be appointed to represent [defendant].” Kopple reiterated that she had not mentioned her status as appointed counsel because she assumed the appointment automatically would continue. Judge Ito relieved her because, he said, given the charge, “this is something I have to refer to our contract,” presumably another reference to the arrangements for appointments in special circumstances cases. Kopple then produced written opposition to her removal as defendant’s attorney. When Judge Ito took the opposition under submission and set a hearing for the next day, Kopple noted that she had filed a motion for the appointment of Attorney Barry Levin as cocounsel and asked the court to consider that motion as well. Judge Ito conducted an in camera hearing on August 3, 1993, after which he appointed Attorney Penelope Watson as defendant’s counsel, subject to her evaluation of whether she could accept the appointment and to Judge Ito’s continued consideration of defendant’s opposition to Kopple’s removal. Judge Ito issued a written order declining to appoint Kopple as defendant’s attorney, noting that she had applied for, but was denied, admission to “the Superior Court’s approved list of death penalty case attorneys.” The order expressed concern that Kopple had acted inappropriately as de facto counsel of record in municipal court, by improperly “billing for services not necessary or authorized,” including filing the motion to strike a special circumstance allegation, and generally preparing for trial, when she had been appointed only as advisory counsel for the preliminary hearing. The order noted that Kopple submitted bills totaling over $50,000 for work as advisory counsel for the period up to one month before the preliminary hearing, an amount Judge Ito found to be “excessive.” Judge Ito found that Kopple’s actions “operated as a subterfuge to allow [defendant] to retain the in custody privileges” afforded a self-represented defendant while having counsel “present [his] case.” The order noted that defendant based his preference for Kopple’s appointment on no “specific or unique reason” other than his trust and confidence in her. Finding no indication that “Kopple alone possesses a quality or talent necessary to represent [defendant],” and that the credibility and substance of the “claim of preference” was “undermine[d]” by his agreeing to the motion to appoint Cocounsel Levin, who had “no prior contact with either the case or [defendant],” Judge Ito continued Watson’s appointment and referred the case to the trial court. On August 17, 1993, defendant challenged Judge Ito’s refusal to continue Kopple’s appointment by filing a petition for writ of mandate in the Court of Appeal. That court denied the writ because the supplied record was insufficient for adequate review, and because, based on the record provided, defendant failed to demonstrate an abuse of discretion. We granted the petition for review and transferred the matter to the Court of Appeal with directions to vacate its order denying mandate and to issue an alternative writ to be heard before that court. After briefing and oral argument, the Court of Appeal denied the petition, concluding the trial court had not abused its discretion. (Alexander v. Superior Court (1994) 22 Cal.App.4th 901 [27 Cal.Rptr.2d 732].) The Court of Appeal denied defendant’s petition for rehearing, and, on May 19, 1994, we denied defendant’s petition for review and request for depublication of the decision. While the mandate petition was under review, defendant filed two motions in the trial court pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden), to have Watson removed from serving as his attorney. After those motions were denied, defendant filed a new motion to proceed in propria persona, which was granted on March 30, 1994. On April 13, 1994, Attorney Robert Gerstein was appointed for the limited purpose of filing a motion for reconsideration of the order removing Kopple, and Attorney Rowan Klein was appointed as advisory counsel for defendant in the trial proceedings. The motion for reconsideration was supported by new declarations by Kopple, defendant, his father and sister, Attorneys Richard Millard, Howard Gillingham, Barry Levin, and Gigi Gordon, and a report by Dr. Samuel Miles, a psychiatrist who “explore[d] [defendant’s] motivation” for wanting Kopple to represent him. After a hearing on the motion, in a written order filed June 13, 1994, Judge Ito denied the motion because the “purported cost savings, while usually an important factor, does not override the court’s previously expressed concerns for the integrity of the [appointment] process in this particular case under these unique circumstances.” The court considered that, at the time of its original ruling removing Kopple, she made “unprofessional” comments about the trial court and Court of Appeal, and that she unsuccessfully had applied for admission to the Orange County Superior Court’s capital case attorney panel. Judge Ito also found that the new report and Dr. Miles’s comments amounted to “an embellishment of comments already made” and failed to demonstrate special circumstances that “require[d]” him to appoint Kopple. On July 26, 1994, at defendant’s request, Klein was appointed as counsel of record. Klein represented defendant through the completion of the trial. b. Discussion “The law of the case doctrine states that when, in deciding an appeal, an appellate court ‘states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal . . . , and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.’ [Citations.]” (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893 [12 Cal.Rptr.2d 728, 838 P.2d 250].) The doctrine “can apply to pretrial writ proceedings. When the appellate court issues an alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion. The resultant holding establishes law of the case upon a later appeal from the final judgment.” (Id. at p. 894.) Here, defendant sought review of the initial order removing Kopple from the case by filing a pretrial petition for writ of mandate. An alternative writ issued, the Court of Appeal decided the matter in a published opinion, and we denied review. The Court of Appeal’s conclusion that the trial court’s initial order was not an abuse of discretion is law of the case. The claim that we should nonetheless revisit this order based on “exceptional circumstances” fails because defendant, in essence, simply asks us to reweigh the evidence presented below. (See People v. Martinez (2003) 31 Cal.4th 673, 683-688 [3 Cal.Rptr.3d 648, 74 P.3d 748] [law of the case doctrine applies unless existing principles have been manifestly misapplied, resulting in substantial injustice, or intervening decisions have clarified the law].) However, the law of the case doctrine does not bar review of the trial court’s denial of the motion for reconsideration, which addressed new evidence and arguments and was not the subject of review. (Boyer, supra, 38 Cal.4th at p. 442 [“the law-of-the-case doctrine governs only the principles of law laid down by an appellate court, . . . and it controls the outcome [in subsequent proceedings] only to the extent the evidence is substantially the same”].) We therefore review the denial of the motion to reconsider for abuse of discretion. (Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934-935 [106 Cal.Rptr. 631, 506 P.2d 1007] [“appointment of counsel to represent an indigent rests ... in the sound discretion of the trial court . . .”]; see also Harris v. Superior Court (1977) 19 Cal.3d 786, 799 [140 Cal.Rptr. 318, 567 P.2d 750] (Harris) [trial court abused its discretion when considerations in support of appointment “heavily outweighed” contrary factors, such that “only one conclusion [was] possible”]; People v. Cole (2004) 33 Cal.4th 1158, 1187 [17 Cal.Rptr.3d 532, 95 P.3d 811] [trial court does not abuse its discretion when nothing in the record demonstrates “the relationship between defendant and [requested counsel] ever approached the depth of the relationship between the petitioners and their requested counsel in Harris”].) Although, under the law of the case, we do not directly review the initial decision to remove Kopple, our review of the denial of the motion for reconsideration requires that we evaluate the reasons underlying the initial order to the extent the court weighed defendant’s new evidence and arguments against its “previously expressed concerns for the integrity of the process.” As we recently stated, the Sixth Amendment to the federal Constitution guarantees the right to the assistance of counsel for a defense, but this guarantee “is subject to an important limitation, however: ‘[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.’ [Citation.]” (People v. Noriega (2010) 48 Cal.4th 517, 522 [108 Cal.Rptr.3d 74, 229 P.3d 1].) Similarly, the “ ‘state Constitution does not give an indigent defendant the right to select a court-appointed attorney,’ but a trial court may abuse its discretion in refusing to appoint an attorney ‘with whom the defendant has a long-standing relationship.’ [Citation.]” (Id. at p. 523.) In deciding whether a particular attorney should be appointed to represent an indigent defendant, a trial court considers subjective factors such as a defendant’s preference for, and trust and confidence in, that attorney, as well as objective factors such as the attorney’s special familiarity with the case and any efficiencies of time and expense the attorney’s appointment would create. (People v. Chavez (1980) 26 Cal.3d 334, 346 [161 Cal.Rptr. 762, 605 P.2d 401].) Defendant was not asking to retain counsel of his own choosing. However, even in cases involving the defendant’s constitutional right to retain an attorney of his choosing, that right can be forced to yield if the court determines the appointment at issue will result “in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.” (People v. Crovedi (1966) 65 Cal.2d 199, 208 [53 Cal.Rptr. 284, 417 P.2d 868]; see People v. Jones (2004) 33 Cal.4th 234, 244-245 [14 Cal.Rptr.3d 579, 91 P.3d 939] [removal, against a defendant’s wishes, of defense counsel because of potential conflict of interest does not violate our state Constitution].) A trial court has “wide latitude in balancing the right to counsel of choice against the needs of fairness [citation] and against the demands of its calendar [citation]. The court has, moreover, an ‘independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.’ [Citation.]” (United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 152 [165 L.Ed.2d 409, 126 S.Ct. 2557].) Here, it was apparent to Judge Ito that, although Kopple had planned to become counsel of record since at least March 10, 1993, she did not pursue appointment at that time and chose to continue as “advisory counsel” because payment for her services as lead counsel was not guaranteed. The court reasonably found that Kopple nonetheless prepared the case as though she would represent defendant as lead counsel at the preliminary hearing and beyond, billing an inordinate number of hours for her advisory role in proceedings prior to that hearing. A week before the scheduled hearing, Kopple renewed her request for appointment as lead counsel, having taken steps to ensure she would be paid, while notifying the municipal court that defendant, who on the record was his own attorney, would be unprepared to proceed if she were not appointed. Judge Ito reasonably was concerned that Kopple had acted as de facto counsel of record without seeking permission, and perhaps had done so to allow defendant to maintain his in propria persona status in jail while being represented. In addition, Judge Ito reasonably considered Kopple’s conduct at defendant’s arraignment and subsequent hearings the same morning that called into question her ethics and honesty as an officer of the court. Judge Ito also reasonably questioned Kopple’s fitness for the appointment based on events that occurred after her removal from the case. Although the record does not contain the “unprofessional” comments Kopple made after denial of defendant’s mandate petition, defendant’s counsel for the motion to reconsider described them as “very unfortunate” and regrettable. The court similarly reasonably recognized that the denial of Kopple’s application for admission to Orange County Superior Court’s capital case appointment panel weakened her claim of fitness for appointment, as did the fact that she previously had been denied admission to the capital case panel in the Los Angeles County Superior Court. The court reasonably found the evidence assertedly showing that defendant personally preferred Kopple as his attorney, and that her appointment would create time and monetary savings, did not outweigh concerns about the integrity of the judicial process in this case. That finding revealed no “ ‘arbitrary determination, capricious disposition or whimsical thinking.’ ” (Harris, supra, 19 Cal.3d at p. 796.) The court correctly noted that, unlike the circumstances in Harris, Kopple’s claim of special familiarity with the charges against defendant did not extend beyond this very case; it also pointed out that to give weight to the fact Kopple was familiar with the evidence and allegedly could proceed to trial more quickly and at less cost than newly appointed counsel could reward her for improperly acting as de facto lead counsel while appointed only as advisory counsel. Furthermore, the court properly found nothing in the record to indicate defendant’s trust and confidence in Kopple or her role in preparing his defense was so unique that his right to effective assistance would be affected negatively if Kopple did not represent him. In addition, as the court noted, the fact that defendant acquiesced in Kopple’s request for the appointment of Cocounsel Levin, an attorney with whom defendant had no apparent prior relationship, weakened his claim that he could trust only Kopple to handle his defense. In that regard, we note that defendant’s supposed difficulty in trusting and cooperating with any attorney other than Kopple appears to have evaporated once the issue of her representation was not being pursued and Attorney Klein was appointed as lead counsel at defendant’s request. We conclude the trial court did not abuse its discretion by denying the motion to reconsider its order removing Kopple. Because we conclude there was no abuse of discretion, we do not consider whether defendant was prejudiced by Kopple’s absence from the case or whether any error in removing her would have been reversible without showing prejudice. 2. Denial of Motion to Dismiss Based on Delay in Bringing Charges Agent Cross was murdered on June 4, 1980, but defendant was not charged with this crime until October 1, 1992. He contends the trial court violated his state and federal rights to due process and a fair trial by denying his motion to dismiss the charges because of this delay. “Delay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 107 [109 Cal.Rptr.2d 31, 26 P.3d 357].) “ ‘In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay [citations]. The showing of prejudice requires some evidence and cannot be presumed. [Citations.]’ ” (People v. Morris (1988) 46 Cal.3d 1, 37 [249 Cal.Rptr. 119, 756 P.2d 843].) On appeal defendant challenges the trial court’s finding that the loss of three types of evidence due to the delay in filing the charges did not prejudice him. The lost evidence included audio recordings of interview sessions at which investigators tried to hypnotize Agent Bulman and other witnesses; medical records from an unknown optometrist who may have prescribed defendant glasses in 1981; and swabs used in the presumptive phenolphthalein blood test on the seized jacket. The challenged finding of no prejudice was made after a hearing on the motion to dismiss at which defendant and other witnesses testified. With regard to the items addressed on appeal, we conclude substantial evidence supports the trial court’s finding that defendant failed to prove prejudice, and the trial court therefore properly denied the motion as to those items. (See People v. Hill (1984) 37 Cal.3d 491, 499 [209 Cal.Rptr. 323, 691 P.2d 989] [prejudice, a factual question for the trial court, is reviewed for substantial evidence].) a. Audiotapes of Hypnosis Sessions Various witnesses involved in this case, including Agent Bulman, attended interview sessions conducted by the Los Angeles Police Department during which an interviewer attempted to hypnotize them. The parties disputed whether any such attempt at hypnosis was successful, particularly focusing on whether Bulman ever was hypnotized. (See, post, pt. II.A.4.) Audio recordings of the sessions were made. Police Captain Michael Nielsen testified at the pretrial motions hearing that he was in charge of periodically reviewing the department’s inventory of recordings of hypnosis sessions and deciding whether to retain or erase the tapes. In 1984, Nielsen decided the tapes of hypnosis sessions from this case should be erased because the reports indicated that no information not already known from prior interviews had resulted from the sessions, and, in Nielsen’s view, the tapes were of no evidentiary value because investigators present at the sessions would have taken notes and prepared reports of what transpired. Nielsen did not listen to the tapes before ordering their destruction. Defendant contends the destruction of the tapes prejudiced him because they contained statements about what witnesses saw or heard about the murder, and the tapes of Bulman’s sessions may have helped show that Bulman had been hypnotized, which would have aided defendant’s motion to preclude Bulman from testifying at trial. Neither contention is persuasive. To the extent defendant argues the tapes may have included statements not contained in, or that contradicted, the investigators’ reports or witnesses’ testimony at the preliminary hearing or trial, his claim is based on speculation, not proof of actual prejudice. To the extent the tapes contained the same statements contained in the reports and testimony of the witnesses, they would have been cumulative. To the extent the reports and witness testimony conflicted, defendant was able to point out the inconsistencies to the jury without the tapes. Although, as even Nielsen testified, it might have been preferable to save the tapes, defendant has not demonstrated that he actually was prejudiced by their destruction. b. Record of 1981 Eyeglass Prescription Defendant testified at the hearing that he did not wear prescription eyeglasses before 1981 or 1982, when he went to an eye doctor on Van Nuys Boulevard. Defense investigators testified they were unable to locate any records regarding defendant’s 1981 or 1982 prescription for eyeglasses from any optometrist who practiced in that area during that time period. Defendant argues he was prejudiced because the optometrist’s records may have indicated the glasses he received in 1981 or 1982 were his first prescription eyeglasses, from which he could argue that those found at the murder scene could not have been his. Defendant’s claim that the missing records might establish his first eyeglass prescription was in 1981 or 1982 is based on speculation. It is questionable whether defendant sufficiently established that these records ever existed, whether or not they confirmed when he first wore prescription eyeglasses. The only evidence supporting a claim that he bought prescription eyeglasses in 1981 or 1982 was his own testimony, and the triple-hearsay testimony of a defense investigator that defendant’s girlfriend, Eileen Smith, told him she talked with a doctor who was in the area during that period and who told her she accurately had described his office interior. Although Smith also testified at trial that defendant bought prescription eyeglasses in 1981, defendant never presented corroboration of his or her testimony through receipts or other records. In any event, if there were optometrist records from those years stating that defendant previously had not worn prescription eyeglasses, such information, as defense counsel acknowledged at the hearing, would be based on defendant’s statements to the doctor, not the doctor’s personal knowledge. Even if records of defendant’s treatment generally would have been admissible under the business records exception to the hearsay rule (Evid. Code, § 1271), any statement by defendant in the missing records that this was his first eyeglass prescription would have been inadmissible in light of its double-hearsay nature. Defendant has not explained how the records otherwise could have led to admissible evidence on the issue. (People v. Hamilton (1963) 60 Cal.2d 105, 131 [32 Cal.Rptr. 4, 383 P.2d 412] [the business records exception, under then effective § 1953f of the Code Civ. Proc., did “ ‘not make the record admissible when oral testimony of the same facts would be inadmissible’ ”]; see also People v. Williams (1960) 187 Cal.App.2d 355, 365 [9 Cal.Rptr. 722] [a medical history given to a physician is not admissible “as substantive proof of the facts so stated” by the patient]; cf. Evid. Code, §§ 1251 [statement of declarant’s previously existing physical state only admissible if declarant is unavailable and the physical state is itself an issue in the action and is not offered to prove any other fact], 1252 [statements for purpose of medical diagnosis or treatment are admissible only when made by a minor describing an act of child abuse].) We also note that at trial defendant presented testimony of several witnesses who said he did not wear prescription glasses at the time of the murder. Accordingly, substantial evidence supports the trial court’s finding that defendant’s inability to locate the alleged optometrist’s records did not actually prejudice his defense. c. Swabs from the Presumptive Blood Test on Defendant’s Jacket Gregory Matheson, a Los Angeles Police Department laboratory forensic chemist, performed the phenolphthalein test on the stain on the seized jacket. Matheson testified at the motion hearing that, if there is blood on a swab taken from a stain on an item, there will be an immediate change in color when chemical reagents used in the test are added. Matheson explained that all swabs subjected to the test turn the same color within five minutes even if there is no blood, and that the reagents destroy the substance on the swab being tested. Thus, Matheson discarded the swabs once he had observed the immediate color change that presumptively indicated the presence of blood. This testimony established that swabs generated in the phenolphthalein test were not lost through delay in bringing the charges; rather, they were discarded soon after the test was complete because their evidentiary value dissipated within minutes of the test. Even if defendant had been charged or brought to trial on the day the tests were performed and the swabs still were available, they would have been of no apparent evidentiary value. Similarly, to the extent defendant contends Matheson’s failure to photograph the reaction constitutes prejudicial loss of evidence, even assuming such photographs could have served any evidentiary purpose, no connection exists between the absence of photographs and the delay in bringing the charges. We also observe that defendant has provided no evidence to indicate that preserving the test results would have been helpful to him, other than speculation that perhaps the results were inconsistent with Matheson’s testimony. The likelihood that defendant’s speculation is accurate is lessened by the fact that the second lab also reported a positive phenolphthalein test result on the same jacket stain. For these reasons, the trial court’s finding that defendant failed to show prejudice from prearrest delay regarding the “loss” of the swabs was supported by substantial evidence. 3. Denial of Motion to Dismiss for Failure to Preserve Evidence In the trial court defendant also filed a motion to dismiss pursuant to California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528] (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 [102 L.Ed.2d 281, 109 S.Ct. 333], for violation of his due process rights based on the police department’s failure to preserve exculpatory evidence. The motion encompassed the June 6, 1980 tape recording of the attempted hypnosis session with Agent Bulman, the original composite drawings Bulman and the police sketch artist created, and the blood test swabs. The trial court denied the motion, finding defendant had not shown that the missing evidence had any exculpatory value. Defendant challenges this ruling. The police sketch artist who prepared the composite drawings testified at the preliminary hearing that they were completed before Bulman’s hypnosis session on June 6, 1980. Following the artist’s normal procedures, those drawings were photocopied, and then minimal modifications may have been made to them after the hypnosis session. The original drawings could not be found at the time of the preliminary hearing, but photographs of the original drawings were admitted at trial. Defendant presented the two photocopies of the original composites, and he contended the possible lack of a mustache in the prehypnosis session drawing supported his claim that Bulman was hypnotized during the later interview session and had recalled the mustache while hypnotized. However, as the trial court noted, the defense’s proffered prehypnosis composite of the suspect who fired the shotgun had no chin or section under the nose, besides not having a mustache, which supported the prosecutor’s explanation that what defendant proffered was merely a bad photocopy. On appeal, defendant contends the procedure of altering the original drawings after the hypnosis session, rather than preserving them for comparison with any posthypnosis session versions, inhibited his ability to establish Bulman was, in fact, hypnotized during the session and recalled the mustache while under hypnosis. Due process requires the state preserve evidence in its possession where it is reasonable to expect the evidence would play a significant role in the defense. (People v. Beeler (1995) 9 Cal.4th 953, 976 [39 Cal.Rptr.2d 607, 891 P.2d 153].) The evidence must “possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (