Filed 12/19/13



      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S118629
           v.                        )
                                     )
ROBERT LEE WILLIAMS, JR.,            )
                                     )                        Riverside County
           Defendant and Appellant.  )                     Super. Ct. No. CR64075
____________________________________)



        Defendant Robert Lee Williams, Jr., was convicted by a jury of two counts
of first degree murder (Pen. Code, § 187; all further statutory references are to the
Penal Code unless otherwise indicated), one count of attempted murder (§§ 187,
664), and one count of sexual penetration with a foreign object (§ 289, subd. (a)).
The jury found true the special circumstance allegations that defendant committed
multiple murders (§ 190.2, subd. (a)(3)) and committed the murders during the
commission of robbery (§ 190.2, subd. (a)(17)), burglary (§ 190.2, subd. (a)(17)),
and torture (§ 190.2, subd. (a)(18)). The jury also found true the allegations that
defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8))
and inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
Following the penalty phase trial, the jury returned a verdict of death.
        This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) For the reasons that follow, we affirm the judgment.




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                                      I. FACTS
A.     Guilt Phase
       1.     Prosecution Case
       On the night of July 15, 1995, defendant and two accomplices entered the
residence of Gary Williams and robbed and murdered him and his father, Roscoe
Williams. (Because the victims and defendant share the same surname, we refer
to the victims by their first names. The victims were not related to defendant.)
The men also sexually assaulted and attempted to murder Gary’s girlfriend, Conya
L., but she escaped through a bedroom window.
              a.       Robert Scott
       Robert Scott testified that he and Gary, working together, had committed
over 20 armed robberies of credit unions during the early 1990s. On July 4, 1995,
Scott and Gary were sitting in Gary’s truck when defendant pulled up alongside in
his car. Defendant got out of his car, grabbed Gary, and pressed a black nine-
millimeter semiautomatic handgun against Gary’s neck, saying, “I know you
niggers out there getting licks and I want my share of the money.” Scott testified
that the term “lick” describes the proceeds gained from a completed robbery.
Defendant threatened that if Gary failed to meet his demand, defendant would kill
Gary and his family.
       Gary and Scott decided to rob a credit union so they could pay defendant
and make money for themselves. On July 10, 1995, the men robbed an Orange
County credit union. Gary provided the guns and acted as the lookout while Scott
and another man, Curtis Jackson, entered the credit union and stole $56,000. Scott
and Jackson were captured following a high-speed police chase, but Gary fled in a
different car and escaped.




                                         2
             b.     Conya L.
       Conya L. testified that she and Gary had been romantically involved for
about a year, and that she was aware Gary made his living robbing credit unions.
On the evening of July 15, 1995, Conya L. and Gary went out to dinner. As they
drove back to Gary’s home in Moreno Valley, Gary informed Conya L. that he
needed to hurry back to the house because he had a meeting. Conya L. understood
that Gary was meeting Ronald Walker, who was known as “Boochie” or “Black,”
to buy a gun. As they turned onto Gary’s street, they drove past a burgundy
vehicle.
       Upon arriving at Gary’s house, Conya L. observed that Gary’s father
Roscoe was waiting outside. The group entered the house, and Conya L. went
upstairs. From the master bedroom, she overheard Gary and Roscoe talking
downstairs. Roscoe said he was going to the store and asked Gary for money.
Gary gave Roscoe some money, and Roscoe left for the store.
       From the bedroom window, Conya L. saw three men — defendant, Ronald
Walker, and a third man who was never identified or prosecuted (third perpetrator)
— leave a burgundy sedan and walk across the street toward the house. Defendant
was carrying a black case. As the men approached, Conya L. heard Gary say,
“Man, you didn’t see me and my girl? We passed you.” One of the men replied:
“Nah, nigger. I was rolling a joint.” When the three men and Gary went inside
the garage, Conya L. could hear “mumbled” talking.
       Shortly thereafter, Walker appeared in the master bedroom and pointed a
gun at Conya L. Walker was wearing a pair of yellow dishwashing gloves but no
mask. He was soon joined by defendant, who was also wearing yellow
dishwashing gloves but no mask. Defendant ordered Conya L. to remove all of
her jewelry, which he then stuffed in his pocket. Because the suspects were
wearing gloves but not masks, Conya L. believed they intended to kill her.

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       Defendant asked Conya L., “bitch where’s the money?” When Conya L.
said she did not know, defendant directed Walker to tie her up. Walker bound
Conya L.’s hands behind her back with duct tape, and defendant used a lamp cord
to tie her ankles. Defendant threatened to rape and kill Conya L. if she failed to
disclose the location of the money. The third perpetrator, also wearing yellow
dishwashing gloves and no mask, then came upstairs and discussed stealing Gary’s
clothes and shoes. Defendant told him to go back downstairs to “stay on duty.”
Defendant then ransacked the master bedroom, stealing gold chains and jewelry.
       Eventually Roscoe returned from the store and called for Gary to let him in.
Defendant instructed the third perpetrator to “snatch his ass in the house.” Conya
L. heard the front door open and defendant command, “get the fuck in here, old
man. Don’t you say a motherfucking word.” The door slammed closed.
       Defendant ordered his cohorts to bring Gary and Roscoe upstairs. Gary and
Roscoe, with their hands and feet bound, were dragged upstairs and laid in the
hallway; Conya L. observed that Gary’s eye was bloody and swollen shut. Gary
disclosed that money was hidden in a cologne bag in the master bathroom.
Dissatisfied with the amount found in the bag, defendant said: “That ain’t all the
money . . . . Gary just hit two banks back to back.”
       Defendant then forced Conya L. into a bathroom. He shut the door,
instructed Conya L. to remove her shorts, and pulled down her underwear. He
then removed one of the yellow rubber gloves and, using up to three fingers,
digitally penetrated Conya L.’s vagina several times. Defendant paused when
Gary called asking to speak with him. During the encounter, Gary referred to
defendant as “Rob.” Upon exiting the bathroom, defendant said to the others:
“Do his old man in front of him.”
       The third perpetrator went downstairs and returned with brown plastic trash
bags. He drew one of the plastic bags tightly over Roscoe’s head. Conya L.

                                          4
testified that at that juncture, Roscoe did not appear to have been gagged with duct
tape. Walker placed Gary in a choke hold and began choking him. Defendant
then grabbed Conya L. and placed her in a choke hold, rendering her unconscious.
Conya L. testified she felt like she was in a dream state as she lay face up on the
ground with defendant leaning over her, cutting her throat with a knife. Defendant
complained that the straight-edge knife was dull and ordered the third perpetrator
to get him a serrated one. Defendant then began cutting Conya L.’s throat with the
serrated knife. At that point, the phone rang. Conya L. saw beams from a car’s
headlights suggesting that a car was in the driveway.
       All three men went downstairs, leaving Conya L. alone. Conya L. dialed
911, but upon hearing the men coming back upstairs, she left the 911 connection
on, climbed out the window, and jumped to the ground below. Naked from the
waist down, Conya L. ran from the house. After crying for help, she eventually
lay down in the street, and police found her a short time later.
              c.     Deputy David Glen Kirkendall
       Riverside County Sheriff’s Deputy David Glen Kirkendall testified that he
responded to the 911 call and arrived at Gary’s house just before 11:00 p.m. Upon
arriving, Deputy Kirkendall knocked on the front door. When no one responded,
he opened the garage and saw a pool of blood. He contacted police dispatch to
report his finding and was informed that the office had received numerous 911
calls regarding a woman in distress. Deputy Kirkendall hurried around the block
and saw Conya L. naked and “covered in blood.” When Conya L. pulled her hand
away from her throat, blood began pouring out.
              d.     Michelle Contreras
       Gary’s across-the-street neighbor Michelle Contreras testified that on the
night in question she observed four cars rapidly accelerate away from Gary’s
house in the same direction of travel. One of the cars was Gary’s Chevy Cavalier,

                                          5
and another was an El Camino that Gary had been storing for a friend. The
Cavalier and El Camino were recovered by police in the following days, and
yellow dishwashing gloves were found inside the El Camino.
              e.     Sheriff’s Investigator Brian Robert Fountain
       Riverside County Sheriff’s Investigator Brian Robert Fountain testified that
law enforcement personnel found the bound bodies of Gary and Roscoe inside
Gary’s home. Both victims’ mouths were covered with duct tape. Two knives,
one serrated and one with a dull straight edge, were recovered near the bodies. An
empty black gun case was found in the street in front of the house. By stipulation,
the parties agreed that neither defendant’s nor Walker’s fingerprints or palm prints
were found in the house or on the gun case. Nor did any of the shoeprints located
in the house match any of the shoes subsequently confiscated from defendant or
Walker. Additionally, neither defendant’s nor Walker’s fingerprints were found
on the yellow rubber gloves that were discovered inside the El Camino.
              f.     Forensic Pathologist Joseph H. Choi, M.D.
       Riverside County Forensic Pathologist Joseph H. Choi, M.D., conducted
the autopsies of Gary and Roscoe. Dr. Choi testified that neither victim’s body
exhibited defensive wounds. Gary’s neck exhibited five nonfatal superficial cuts
and a single stab wound that penetrated nearly two inches. Dr. Choi opined that
the cause of death was blood loss due to a partially severed jugular vein, which in
turn caused cardiovascular failure. Roscoe’s neck exhibited a deep slash wound
that had fully severed his jugular vein and larynx. Dr. Choi opined that the cause
of death was blood loss causing cardiovascular failure. Dr. Choi further opined
that the duct tape was applied to each victim’s mouth before he was fatally slashed
or stabbed.




                                         6
               g.    Homicide Investigator Phil Ricciardi
       Riverside County Sheriff’s Homicide Investigator Phil Ricciardi traveled to
the Riverside Community Hospital the day after the murders to interview Conya
L. Investigator Ricciardi first presented Conya L. with a picture of Walker, whom
Conya L. had previously identified to the police by way of his moniker. Conya L.
began crying and said “he was the one that did this to her.”
       Investigator Ricciardi then read Conya L. a photographic lineup admonition
and presented her with a lineup containing a picture of defendant. Conya L.
pointed to defendant’s picture and said “he was the one that was cutting on her
throat.” At trial, Conya L. provided an in-court identification of defendant,
stating: “I’m a hundred percent positive . . . . There is no doubt in my mind . . . .
It was Rob. We were in the bathroom with the light on.”
       In August 1995, Conya L. was visited by Riverside County Sheriff’s
Detective Gary Thompson. Detective Thompson presented Conya L. with a
photographic lineup for the purposes of identifying the third perpetrator. Conya L.
identified a man named Shawn Ford, but it was later discovered that Shawn Ford
had been incarcerated on July 15, 1995, and could not have been the third
perpetrator.
               h.    Detective Martin Wildeman
       Las Vegas homicide detective Martin Wildeman testified that after the
murders, the Las Vegas Metropolitan Police Department began conducting
surveillance at a motel where defendant was suspected to be staying. On July 26,
1995, defendant was seen leaving his motel room wearing a wig and hat. After
defendant returned to his room, law enforcement officers surrounded the motel
and took him into custody. Upon being arrested, defendant spontaneously
declared: “I guess I’m fucked because I’m going to jail behind two murders.”
Defendant refused to provide his name but said to another officer: “I’m hiding out

                                          7
because they’re looking to pin a homicide on me.” A loaded gun was found in the
nightstand of the hotel room. At trial, Conya L. testified that she was “positive”
the gun was the same gun that Walker had pointed at her during the attack.
       2.     Defense Case
       The defense called several witnesses to the stand. First, Sonya Jimmons
testified that she was working as a social worker at the Riverside Community
Hospital when Conya L. was admitted in July 1995. Jimmons testified that Conya
L. reported to her that she had been sodomized during her attacks and that her co-
victims had each been shot in the head by their attackers. Jimmons also stated that
Conya L. had a visitor when Jimmons was present and that Conya L. was laughing
and joking. She further testified that Conya L. had requested a pregnancy test.
       Second, the defense called Riverside County Sheriff’s Deputy Don Plata.
Deputy Plata testified that he had participated in the investigation of the murder
scene on July 15 and 16, 1995. He spoke with neighbor Michelle Contreras, who
informed him that she had seen four cars leaving Gary’s house.
       Third, the defense recalled Conya L. and established that she had been
convicted of misdemeanor welfare fraud in 1991. Conya L. subsequently lied
about that conviction on two employment applications submitted in 1992 and
1996. Conya L. signed the 1992 application under penalty of perjury. In 1994,
Conya L. fraudulently used a Medi-Cal card.
       The defense also attempted to impeach the credibility of Conya L. and
Scott through cross-examination. With respect to Conya L., for example, the
defense noted that two days after the murders Conya L. had said in a taped
interview that only two men had exited the car and approached the house, while at
trial she claimed there were three men. Conya L. had also said in a taped
interview three weeks after the murders that defendant was five feet seven inches



                                          8
tall and weighed 170 pounds. Defendant was almost six feet tall and weighed 275
pounds at the time of the murders.
       With respect to Scott, the defense suggested that Scott had attempted to
obtain a reduction of his prison sentence in exchange for testifying against
defendant. In a letter dated June 5, 2002, for example, Scott had written: “I was
willing to assist you [prosecutors] in the past, and I was under the impression your
office back then was going to assist me with the US Attorney and judge in the
[Lake Forest robbery] case.”
B.     Penalty Phase
       1.     Evidence in Aggravation
       The parties stipulated that defendant had been convicted of three prior
felonies. The first conviction was for possession of cocaine in 1986, and the
others were for possession of a firearm by a convicted felon in 1992.
       Roscoe’s brother, George Frank, testified that Roscoe was 55 years old
when he was murdered. Frank testified that Roscoe was caring, funny, morally
decent, and well-liked. Frank said that the family missed Roscoe terribly and that
Frank’s grandchildren were aware that Roscoe had been tortured and murdered.
On cross-examination, Frank acknowledged that Roscoe had struggled with drug
addiction and had many criminal convictions for narcotics and theft. Roscoe’s
sister, Erma Foster, testified that Roscoe had been a good brother and friend, and
“was never mean to anybody.”
       2.     Defense Mitigation Case
       Abel Zaragoza testified that he had worked as a correctional group
supervising counselor at the Riverside County Sherriff’s Department in 1998.
Zaragoza testified that defendant had voluntarily joined and participated in an
anger management program while in prison. Daniel Johnson, a teacher who
offered general education and other courses to inmates on an independent study

                                         9
basis, testified that defendant had earned his GED and a certificate for anger
management class completion.
       Defendant’s 17-year-old daughter, Fantasia Williams, testified that she
wanted her father’s life to be spared. Defendant’s close friend, Victoria Windom,
testified that defendant had been like a son to her and had acted like a big brother
to Windom’s children. She said that defendant had always been respectful to her
and had influenced her children to stay in school. Donna Josey similarly testified
that she had known defendant since he was 13 years old and that he had been like
a son to her and had made friends with everyone. Defendant had been unable to
establish a bond with his father, however, because his father used marijuana and
crack cocaine. Josey further testified that defendant had worked at Burger King
while he was young and had been a good worker. Pearl Lee testified that she had
known defendant since he was young from the “projects” and that defendant had
been like a big brother to Lee’s daughters and had encouraged them to stay in
school.
                                  II. DISCUSSION
A.     Speedy Trial Claim
       1.     Procedural Background
       Defendant argues that the nearly seven-year delay between his arrest and
the start of his trial violated his right to a speedy trial as guaranteed by the Sixth
Amendment to the United States Constitution. Addressing this claim requires a
somewhat lengthy recitation of the pretrial proceedings in this case.
       Defendant was arrested on July 26, 1995, and arraigned on August 11,
1995, along with codefendant Ronald Walker. Defendant was represented at the
arraignment by Riverside County Deputy Public Defender Forest Wright. After
both defendants entered pleas of not guilty, the preliminary hearing was set for
September 7, 1995, before Judge Myers.

                                           10
       Following several requests for continuances by both defense counsel and
for which both defendants agreed to waive time, a new preliminary hearing date
was set for November 15, 1995. On November 9, 1995, Walker’s counsel sought
a 20-day continuance because he was in another trial. Wright, however, opposed
the continuance, explaining that his client “preferred to have the prelim as set.”
Finding good cause, the trial court continued the matter until December 1, 1995.
       On November 29, 1995, Walker’s counsel requested another continuance
because of a scheduling conflict. Wright withdrew his opposition to the
continuance, stating that he had been ill and had been unable to meet with
defendant. Defendant agreed to waive time. Prosecutor John Ruiz objected,
stating that he was ready to proceed immediately. The trial court overruled the
prosecution’s objection, accepted defendants’ time waivers, and continued the
preliminary hearing until December 22, 1995.
       During a status conference on December 14, 1995, Walker’s counsel
requested another continuance. Wright opposed the continuance on behalf of his
client. The prosecutor also objected to any further continuances. The trial court
denied the continuance request and pushed the preliminary hearing date up one
day to December 21, 1995.
       On December 21, 1995, Walker’s attorney requested another continuance to
listen to tapes that had just been provided by the prosecution. Defendant initially
refused to waive time, stating: “I don’t want to waive no time. I want to come on
and do this.” He explained: “[T]his case is my life. And I have been in jail five
months. And it seems like nothing new has come up in five months.” The trial
court advised defendant to reconsider: “You can demand your right to go to
preliminary hearing. That’s fine with the Court. I’m just saying, also realize that
your attorneys have indicated they need to review some of this additional
information. If that’s fine with you and you don’t care, . . . because you have

                                         11
knowingly indicated you want to go forth whether your attorneys are prepared or
not . . . it is going to preliminary hearing today.” Defendant then agreed to waive
time. The preliminary hearing was held on January 4, 1996, and both defendants
were held to answer. Arraignment was set for January 17, 1996.
       On January 17, 1996, defendant requested a Marsden hearing to express his
dissatisfaction with assigned counsel. (See People v. Marsden (1970) 2 Cal.3d
118, 124 [holding that “a judge who denies a motion for substitution of attorneys
solely on the basis of his courtroom observations, despite a defendant’s offer to
relate specific instances of misconduct, abuses the exercise of his discretion to
determine the competency of the attorney”].) Defendant explained that he was
“not trying to be a problem” but that he felt his case was “getting nowhere.” He
explained: “My attorney had my case for six months, and it’s nothing — it’s like
we ain’t took one step.” He requested that he be appointed “an attorney that [was]
not so busy.” Wright agreed, saying: “He’s right. I am too busy. I would like to
get rid of a few cases.” Nonetheless, he assured the trial court he would be able to
provide a competent defense. The trial court denied defendant’s Marsden motion
and set the arraignment for the next day.
       On January 18, 1996, both defendants were arraigned on the information,
and the district attorney gave notice that the death penalty would be sought.
Counsel for both defendants sought to continue the trial date beyond 60 days.
Walker agreed to waive time, but defendant refused. Walker’s counsel then
moved to sever the cases, stating: “We cannot be ready within 60 days, and if Mr.
Williams forces us to be going to trial within 60 days, I think my client would be
severely prejudiced . . . .” The severance motion was continued, and the
continuance motion was denied. The trial was set for March 11, 1996.
       On February 2, 1996, Walker’s counsel filed a motion to sever his case
from defendant’s because he needed more time to prepare for trial and because

                                         12
defendant was refusing to waive time. At the next hearing on February 23, 1996,
Wright joined in the motion to sever. The motion was denied. The trial court
denied defendant’s second Marsden motion on that same date.
       On March 1, 1996, Wright requested a continuance of the trial date over
defendant’s objection. The court asked the defendant: “I take it you want to
continue to object to a trial date beyond that March 11 date; is that correct?”
Defendant replied: “Yes.” Despite defendant’s objection, the court found good
cause to continue the trial another 60 days to May 6, 1996. Shortly thereafter, the
case was reassigned to Judge McConaghy.
       On May 3, 1996, counsel for both defendants moved to continue the trial
date. Wright indicated he would be unprepared to proceed with the trial as
scheduled. The prosecutor announced that the prosecution was ready for trial.
Defendant again expressed frustration with the lack of progress in his case and
said he had not spoken with his attorney a single time since the last hearing. The
trial court then held another Marsden hearing, at which point Wright
acknowledged that his being “in court every day, all day” was impeding his ability
to work on motions. He indicated, however, that he was proceeding “as diligently
as [he could] at this point, given the staff level that [he had] among qualified
persons.” The trial court denied defendant’s Marsden motion and continued the
trial to October 7, 1996. The trial court explained: “And I do this, that is, grant
the 1050 motion [for a continuance] reluctantly because I know [defendant] wants
a speedy trial. And, as I previously said, that the Court would like to get this
trial . . . starting Monday morning. I would be more than happy to do it, but we do
have conflicting constitutional issues involved . . . . [¶] And as I previously stated,
the constitutional right to have a competent attorney, in this Court’s opinion, far
outweighs the constitutional right to a speedy trial, which does not mean that we
totally ignore the right to a speedy trial.”

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       On August 30, 1996, the trial court considered defendant’s fourth Marsden
motion. Defendant again voiced his concern over his attorney’s lack of progress
in preparing for trial: “I would like to see if it’s possible to relieve my counsel and
represent myself in this case, because I don’t feel that I’m going to get a fair trial
. . . . [E]verything that [defense counsel] stipulated that he needed the extra 60
days for [at the last hearing], . . . still none of them was completed.” He then
clarified: “If I can have a new lawyer appointed, then I know there’s no way in
the world I would try to fight a case like this myself. But if I cannot have a new
lawyer appointed, that is my desire to represent myself.” Wright responded that
defendant had been “a little bit stingy with his information at times,” and that “it’s
not the case that nothing’s been done, because a lot has been done in this matter.”
He added that the investigation was ongoing, but noted that defendant’s “life has
been very different from a lot of persons’ background, and that’s created problems
in finding relatives and finding a lot of things that are necessary.” During further
closed hearings held on September 4, 1996, and September 11, 1996, defendant
withdrew his request to represent himself, and the trial court indicated that it “fully
intend[ed] to start this trial on October 7th.”
       At a separate hearing on September 4, 1996, the prosecutor announced he
was ready for trial but “indicate[d] for the record that [he had] received no reports
from either of the defendants relating to reciprocal discovery.” On September 11,
1996, Wright said he did not anticipate being prepared for the trial and requested
second counsel or “Keenan counsel.” (See Keenan v. Superior Court (1982) 31
Cal.3d 424, 430 [trial court has discretion under statutes governing appointment of
counsel to appoint a second defense attorney to assist in defense of a capital case];
§ 987, subd. (d).) At the end of the hearing, the trial court asked defendant if he
would be willing to “waive [his] right to a speedy trial until October 7th, plus 60



                                           14
days thereafter . . . ?” Defendant agreed. On September 20, 1996, the trial court
denied Wright’s request for Keenan counsel.
       On September 23, 1996, defendant filed a petition for writ of habeas corpus
in the Riverside County Superior Court asserting ineffective assistance of counsel.
The petition was denied.
       On September 27, 1996, defense counsel for both defendants moved to
continue the trial until January 27, 1997. In a written declaration, Wright said he
had “not completed investigation of the ‘guilt/innocence phase’ of the case.” He
explained that his “on-going duties to represent other clients . . . necessitate[d]
[his] diligent attention to nine felony cases . . . . set for jury trial before the end of
November, 1996, and also to one other death penalty case.” During the hearing,
Wright said that he believed that a second attorney should be assigned to the case
and that he would be “in much better shape” if his office could make that
accommodation. Asked if he would be willing to waive time, defendant
responded: “I’ll go ahead and waive time. It won’t make any difference, but I’ll
go ahead and waive time.” He requested the trial court’s assurance, however, that
the new trial date would be fixed and firm: “I’d just like to know that after the
continuance, the January 27, ten days after that, after that is you going to continue
this again, or is this it?” The trial court responded that its “impression of what
we’re doing is that we’re picking a firm trial date with a time waiver until that
date, plus ten court days thereafter, with one little exception. If there’s some
reason why either of the defense attorneys need a . . . short continuance after that,
to provide all the rights you two fellows have a right to.”
        On November 15, 1996, the trial court instructed Wright to provide the
prosecution with a list of all unresolved discovery issues by December 13, 1996.
After receiving the list, the prosecution indicated that it intended to contest several
of defendant’s discovery requests. The trial court scheduled a hearing on the

                                            15
contemplated discovery motions for January 3, 1997. This date was later
continued to January 15, 1997.
         On January 15, 1997, defendant was represented by Wright’s associate,
Deputy Public Defender Mara Feiger, who had agreed to serve as cocounsel.
Feiger, along with Walker’s attorney, requested a continuance of the January 27,
1997 trial date. The trial court granted the request, and trial was continued to
April 28, 1997. Feiger indicated that she expected the new trial date to be firm.
Asked to waive time, defendant said he did not believe it would assist him to
refuse to waive time because the matter would be continued over his objection:
“[T]he way it sounds, it don’t really make a difference if I agree or not. It seems
like everybody else agrees to it. I mean, me saying no ain’t helping me other
times. I don’t see how it’s going to help me now. . . . [¶] I mean, it don’t help me
none to sit here and say, no, I don’t waive my time, because the thing’s going to be
continued.” The trial court accepted defendant’s comments as a valid waiver and
continued the trial to April 28, 1997.
         The trial court held various hearings on discovery-related matters in
February and March of 1997. On March 7, 1997, the prosecutor requested that the
court redact Conya L.’s address and phone number from certain documents before
they were turned over to the defense. The trial court ordered the parties to brief
the issue. On March 21, 1997, Feiger indicated that she anticipated requesting a
continuance because she wanted to bring a motion to compel numerous discovery
items.
         On March 24, 1997, the trial court held a fifth Marsden motion hearing. At
the beginning of the hearing, defendant stated that he “[didn’t] know if this was
the proper way to address what I wanted to address,” and explained that he simply
wanted to speak to the court. He first attempted to apologize for his behavior, but
the trial court responded: “I’m not worried about your behavior.” Defendant then

                                          16
stated: “I just wanted to say this. You have been basically familiar with my
attempts over and over trying to relieve Mr. Wright of counsel, and my not
waiving time, trying to hurry up and rush the trial. The reason that I was doing that
was because I felt that this was just going to get against — pushed to trial. And
the outcome is already set. . . . Now, since Ms. Feiger has been on my case, a lot
of the things that we got continuances for a year ago just now started getting done;
a lot of the investigation, a lot of — just basically preparing for my defense just
started getting done since she’s been my attorney. . . . Now, I see the work that my
attorney is doing, and I also know, just like I knew then, that I am facing death in
this case. So I just want, if possible, to give her whatever time she can get, or
what she would need.” When asked if he wanted to relieve his two lawyers,
defendant responded: “I don’t want to fire Ms. Feiger. If I can fire Mr. Wright, I
would love to. But I failed on, I think, four different times so I kind of gave up on
that.”
         On March 31, 1997, Feiger filed a motion to compel the prosecution to
produce Conya L.’s address and requested a continuance. Also on that date, the
prosecution indicated that it was in possession of taped jailhouse conversations
between Walker and his girlfriend to which defendants were entitled. Defendant
waived time, and the trial court continued the trial to July 28, 1997.
         On April 29, 1997, the prosecution indicated that it had turned over to the
defense the recorded conversation between Walker and his girlfriend, but that it
had not yet provided a transcript of the girlfriend’s statement to the police. Also
on that date, the parties revisited the question of whether the defense was entitled
to disclosure of Conya L.’s address and telephone number. After several more
hearings on this question, the trial court ruled on June 6, 1997, that it would not
order the requested information disclosed to the defense. Also on June 6, 1997,
counsel for both defendants moved to continue the trial in light of the ongoing

                                          17
discovery disputes. Defendant waived time, and the trial date was continued to
October 10, 1997.
       On August 7, 1997, the parties continued litigating various discovery
issues, including defense counsel’s request for the address of another witness. The
trial court ordered the prosecution to produce the address. The prosecution was
granted a two-week continuance to consider taking a writ to challenge the ruling.
When no writ was filed, the trial court granted the prosecution an additional 15
days to respond to the court-ordered disclosure.
       On September 5, 1997, Walker’s counsel declared a conflict and sought to
be relieved. The motion was granted two weeks later, and an attorney from the
criminal defense panel (CDP) was appointed to represent Walker. The trial court
heard multiple defense discovery motions on September 29, 1997.
       On October 7, 1997, Feiger said she probably would not be prepared to go
to trial for at least a year because she believed that the prosecution had failed to
adhere to its discovery obligations. Walker’s new counsel similarly indicated that
he would not be prepared for trial for at least six months and “probably closer to
. . . 12 than six.” The prosecution objected to any continuance and claimed that
the defense “was engaged in a fishing expedition.” The prosecution also argued
that the trial court had “an obligation to appoint counsel, where counsel on the
case can proceed in a fashion that would not disrupt the orderly administration of
justice,” and that it was not appropriate for the court to grant a year-long
continuance “just so CDP can keep it in-house.” The trial court acknowledged
that “discovery ha[d] not been smooth in this case in either direction” but said it
was not “pointing a finger” at either the defense or the prosecution. The trial court
ultimately granted the motion to continue and set a “firm” trial date for August 3,
1998. Defendant agreed to waive time.



                                          18
       On December 5, 1997, the prosecution requested an additional two weeks
to respond to a defense motion to compel disclosure of witness information. The
request was granted.
       On January 23, 1998, Feiger said the prosecution still had not turned over
the discovery items the trial court had ordered produced on September 29, 1997.
The prosecution addressed each item in turn and agreed to provide the missing
items. The parties dispute whether or not the relevant materials had been provided
in a timely fashion.
       On April 3, 1998, the public defender’s office declared a conflict with
defendant. A representative of the public defender’s office, Floyd Zagorsky, said
that while he was not at liberty to discuss the nature of the conflict, it was “a result
. . . of information that we received recently from the prosecution . . . we felt
should have been provided much earlier in the case.” In response, the trial court
relieved Wright and Feiger. Because of the conflict, defendant’s case was referred
to the criminal defense panel, and CDP attorney Jay Grossman sought and
received a 31-day continuance to arrange for another lawyer to represent
defendant. A month later, on May 4, 1998, Grossman was granted a 27-day
continuance as he continued to arrange for defendant’s representation.
       On June 2, 1998, CDP attorney Grover Porter was appointed to represent
defendant. Porter requested that the trial be scheduled for February 23, 1999, so
that he could have adequate time to prepare. Defendant agreed to waive time.
       On September 18, 1998, Porter asked to withdraw for health reasons. The
trial court granted the motion. On September 25, 1998, CDP attorney Douglas
Myers was appointed as counsel. On October 1, 1998, Myers appeared and
indicated that CDP attorney John Aquilina would be his cocounsel; the hearing
was continued until October 20, 1998 to determine how long defense counsel
would need to prepare for trial. On October 20, 1998, Myers was relieved, and

                                          19
Aquilina said he needed an additional two weeks to evaluate the file in order to
determine when he could be ready for trial. On November 3, 1998, stating that he
had recently received “eight boxes of materials,” Aquilina requested that the trial
date be pushed back seven months. The trial court found good cause to continue
the trial to June 14, 1999.
       On January 22, 1999, Aquilina indicated that another death penalty case
was “[o]ccupying a great deal of [his] time” but that he still anticipated being
ready for trial on June 14, 1999.
       On April 23, 1999, Aquilina requested that the trial date be continued in
order for him to conduct additional investigation and because of an issue regarding
his investigator that he could only discuss in camera. The prosecutor opposed the
request, highlighting the age of the case and pointing out that defendant’s
investigator had been involved with the case “for years.” The trial court agreed
that defendant’s case was then “the oldest one in the courthouse” but agreed to
hold an in camera hearing to discuss Aquilina’s concerns.
       During the in camera hearing, Aquilina informed the trial court that Grover
Porter had retained an investigator in June 1998 but that neither Porter nor
Aquilina had asked him to “conduct any investigation whatsoever.” About three
weeks prior to the in camera hearing, the investigator had informed Aquilina that
he needed to withdraw from the case to care for a terminally ill family member.
As to retaining a new investigator for the guilt case, Aquilina believed that one
would be available in June. A paralegal who had worked for Wright on the
penalty phase would also be available after her final exams were completed in
June. Summing up the situation, Aquilina said “no investigation [to] my
knowledge has been conducted since the public defender’s office was relieved in
April of ’98.”



                                         20
       At the hearing, Aquilina further commented: “I guess what distresses me
the most is that the public defender was appointed to Mr. Williams’ matter, it
appears, on August the 11th of 1995, was relieved in April of 1998, after declaring
a conflict of interest. And . . . it would appear all an attorney would have to do is
catch up to what has occurred. Quite candidly, I don’t see that even five percent
of the investigation necessary in the guilt phase of this case has been conducted.”
Aquilina noted that various witnesses had not been interviewed and that “trying to
locate witnesses, contact witnesses, interview witnesses” going forward would
“obviously not [be] as easy as it would have been back then.” Aquilina
apologized to the court that during his own representation of defendant since
October 1998, he had not moved the investigation forward because his
engagement on two other death penalty matters had prevented him from working
on defendant’s case. Aquilina said he didn’t think that “mentally, emotionally,
psychologically” he could handle “three capital cases in one year in a twelve-
month period.” Toward the end of the hearing, the court said to defendant: “I’ve
held a few Marsden motions with you and a few motions that weren’t truly
Marsden motions, but when we got to talk about what’s going on — and I think
it’s safe to say it’s been your concern all along that not enough has been done in
your case.”
       On May 13, 1999, Aquilina requested that the trial date be continued. The
prosecutor opposed the request. Walker also opposed the continuance request.
Defendant waived time, and the trial court continued the trial until January 10,
2000. Four days later, on May 17, 1999, the trial court held a sixth Marsden
hearing. Defendant indicated that he had been unable to communicate with
Aquilina or his staff, and voiced his concern about Aquilina’s apparent failure to
make any progress on the case. Defendant also expressed his fear of going to trial
“with an attorney that only knows bits and pieces of the case.” Aquilina

                                          21
acknowledged that defendant was “partly correct” in that he “[had] not been able
to give [defendant’s] case or [defendant] the attention he needs or deserves.”
Aquilina represented, however, that he would be prepared to start the trial in
January 2000. Defendant’s Marsden motion was denied, and on June 25, 1999,
CDP attorney Regina Filippone joined Aquilina as cocounsel for defendant.
       On August 30, 1999, the trial court held a seventh Marsden hearing.
During the hearing, the presiding judge left the courtroom, and Aquilina disclosed
to a different judge that one of his other clients might have information that could
impeach Conya L.’s testimony in defendant’s case. In light of this potential
conflict of interest, defendant’s Marsden motion was granted. On September 2,
1999, CDP attorney David Gunn was appointed to represent defendant.
       On October 1, 1999, Gunn said he needed several weeks to determine when
he could be ready for trial and also said he was in the process of securing
cocounsel. On October 22, 1999, Gunn indicated that the January 10, 2000 trial
date was unrealistic and that he was still in the process of securing cocounsel.
       On November 22, 1999, Gunn explained to the trial court that he was still
attempting to secure cocounsel and would not be prepared for trial in January.
Noting Walker’s objection to any further continuances and “recognizing that this
is going to take two juries,” the prosecutor said he was “prepared to make a
motion to sever the two cases.” On December 17, 1999, the trial court granted the
severance motion, stating: “[I]n fact, I wish we would of thought of this at least a
couple of years ago. But we didn’t. Or at least we didn’t talk about it. It seems
like it might be the only way we’re ever going to get this case to trial is to sever it
and bite the bullet and actually do the case twice.” Also on that day, Gunn
announced that CDP attorney Bruce Cormicle would be serving as cocounsel.
       On December 21, 1999, the trial court heard defendant’s eighth Marsden
motion. Defendant indicated that he wanted to bring to the trial court’s attention

                                          22
the fact that he was having difficulty communicating with Gunn “before we get
too far down the line.” He also stated: “I’m tired. I want to go to trial. I’m tired
of sitting here. As you recall, two years ago, three years ago, I didn’t want to
waive no time. I wanted to go to trial then. I look at — like, you understand, my
life is on the line. If I was going to lose my life, let me lose it now and not sit in
here for four, five years, which looks like I ended up doing anyway. In the last
two years, nothing’s been done.” The trial court denied the motion.
       Also on December 21, 1999, following the Marsden hearing, Gunn
informed the trial court that he had “about eight murder cases still set pending for
next year” and that he would therefore request a trial date of October 2, 2000. The
trial court granted the request.
       On January 14, 2000, CDP attorney Cormicle officially appeared as
cocounsel for defendant. During an April 7, 2000 status conference, the trial court
inquired if the parties would be prepared to go forward with the October 2, 2000
trial date. Gunn said that the defense was “on track” but that he had “lost [his]
investigator due to family problems” and that he was just in the process of getting
new investigators “on board.” On May 12, 2000, Gunn indicated that his effort to
retain an investigator had been unsuccessful and that the problem would likely
affect his ability to be prepared for the upcoming trial date.
       On June 9, 2000, the trial court held a ninth Marsden hearing. The trial
court concluded the hearing when defendant acknowledged that he did not want to
“fire[]” his attorney and simply wanted to apprise the court of the status of his
case. The same day, Gunn informed the trial court that he had just gotten funding
approved for an investigator and that before the funds were approved, he had
experienced “a period of time of about two months where we kind of lost our
ability to have investigative work done.”



                                           23
       On July 14, 2000, the trial court heard defendant’s tenth Marsden motion.
Defendant voiced his concerns as follows: “I would like counsel dismissed on my
case, due to the fact that from day one . . . to the present date, me and counsel does
not have no opportunity to sit down, and he actually know anything in this case.
Ask him about the case. Time and time again he told me that he would get caught
up with the case. That’s all been a lie. We referred to the Court four months ago
we didn’t have an investigator. We got an investigator three months ago. To the
present date, no investigator has been to talk or — the case been at a stand still for
10 months since Dave Gunn been on the case.” In response, Gunn acknowledged
that because of his problems finding an investigator and obtaining the requisite
funding, he had lost “three to four months, in terms of actual preparation of the
investigation.” He also acknowledged that the investigator had not met with
defendant since funding had been approved because of “vacations” and that the
investigator had been “working on a death penalty case in Rancho Cucamonga that
was just concluded.”
       After hearing both sides, the trial court issued the following ruling: “I’m
going to deny the motion. . . . The bottom line, as I see it . . . is to have adequate
representation and be prepared for trial is a must. Whether or not that gets done
on a full-time basis working from sun up to sundown for a short period of time, or
anything in between that, and working an hour all day for 10 years I don’t think is
what’s important. [¶] What’s important is, is there adequate representation at the
time we get started at trial? And so I can’t even pretend that I know enough or
that I have the power or authority to tell Mr. Gunn you must work ex number of
hours this week on this case, because he has to manage his calendar. He’s got
other clients he is also working for. . . . [¶] I understand from your stand point, Mr.
Williams, that you’re the person that’s on the line here. You have been — this is
an old case in many respects. This case should have been to trial a good long time

                                          24
ago. No one is going to quibble about that. If we would have bifurcated a good
long time ago, perhaps we would have had part of it to trial already and had been
done. Didn’t do so. That’s neither here nor there. That’s just a fact of life. [¶] I
see no reason why this one won’t get to trial in a timely manner now. And I’m
just — I don’t see any reason to grant the motion.”
       On August 11, 2000, defendant moved to represent himself. (See Faretta v.
California (1975) 422 U.S. 806, 819 (Faretta).) On August 16, 2000, the trial
court granted defendant’s Faretta motion, but directed Gunn to remain as “standby
counsel.” At defendant’s request, the trial court continued the trial date to
February 5, 2001.
       At a hearing held on October 6, 2000, defendant voiced concerns regarding
Gunn’s role as standby counsel. Defendant further noted that he had filed a
malpractice suit against Gunn and said he did not “know if that would declare a
conflict or not.” Defendant also claimed that his court-appointed investigator
would not take his calls and failed to visit him in jail.
       On October 13, 2000, the trial court considered defendant’s motion to
compel disclosure of various discovery items. The trial court indicated that it
would “handle that [motion] like I would any other discovery motion” and “order
that . . . the defendant and the district attorney [] get together and narrow the list
down to items that one side still thinks they have a right to.” The trial court also
informed defendant that it had no role to play in defendant’s request for funds.
       On November 3, 2000, attorney John Davis filled in for prosecutor John
Ruiz and requested that the hearing on defendant’s discovery motions be
postponed until Ruiz’s return. Davis noted that Ruiz “would . . . be the person to
argue on [defendant’s] current motion, which appears to be a discovery motion for
six or eight . . . audio tapes and 911 logs . . . that normally we don’t object to, but
we probably have not provided to him previously. And they probably should have

                                           25
been.” The trial court continued the hearing until November 9, 2000. On
November 9, 2000, Ruiz was “still ill,” and the trial court again postponed the
hearing.
       On November 22, 2000, Davis informed the trial court that Ruiz would
likely “be ill for probably another three or four weeks.” Defendant stated for the
record: “[I]t seems like it’s getting impossible to get investigation and discovery
issues. And I just hope it don’t be difficult when that time come to go to the next
phase, as far as you understand having to fight for a continuance and not look like
it’s my reason why I need the continuance.” The hearing was continued until
January 4, 2001.
       On January 4, 2001, Ruiz was still ill. The trial court expressed its concern
with Ruiz’s continued absence and suggested that Davis be prepared to take over
the case: “I’m a little bit concerned that we’re — Ruiz can try this case easily
enough because he tried [Walker’s] companion case earlier. . . . But we don’t
know what his health is. . . . I don’t want Davis to think I’m trying to run the
DA’s office, but Davis can try this case. . . . Davis is a good enough lawyer. He’s
got enough time that he can be ready. . . . [Ruiz is] the best candidate to try it
because he’s tried the other half of it, but I don’t want to get into a position where
[defendant] is caught between a rock and a hard spot because the DA’s office is
not ready.” The hearing was continued until January 12, 2001.
       Ruiz returned for a hearing on January 12, 2001. During the hearing,
defendant claimed that the prosecutor had failed to provide him with discovery;
the prosecutor, in turn, responded that some of the requested items had been
turned over to the defense long before. The trial court ordered the parties back on
January 26, 2001, to consider a new trial date. The trial court also denied
defendant’s request that the trial court “appoint a second counsel.”



                                          26
        On January 26, 2001, defendant filed a motion to disqualify the trial judge
pursuant to Code of Civil Procedure section 170.1. On the same day, the
prosecutor informed the court that his office had made copies of several of the
tapes defendant had requested but that “[defendant] doesn’t get these until they are
paid for.” Defendant responded that he had no investigator and that he didn’t
know if funding had been approved. On January 30, 2001, the trial court denied
defendant’s section 170.1 motion.
        On January 31, 2001, defendant stated that he needed a six-month
continuance, explaining that he was “starting from scratch” and needed time to
prepare. The prosecutor objected to further delay, represented the prosecution was
ready to proceed to trial immediately, and complained that defendant was utilizing
his in propria persona status to cause delay. The trial court granted defendant a
two-month continuance until April 2, 2001.
        On February 23, 2001, the prosecutor told the trial court that he had given
his investigator’s phone number to defendant. Defendant responded that the
investigator never picked up the phone to accept his collect calls. Also on
February 23, 2001, defendant filed another motion to disqualify the trial judge
pursuant to Code of Civil Procedure section 170.1. The motion was denied.
        On March 7, 2001, defendant filed a motion to disqualify the prosecutor
pursuant to Penal Code section 1424, another motion to disqualify the trial judge
pursuant to Code of Civil Procedure section 170.1, and a motion for a change of
venue pursuant to Penal Code section 1033. The motions were all denied. On
March 16, 2001, defendant waived time, and his motion for a continuance was
granted over the prosecutor’s objection. The trial was continued until June 4,
2001.
        On March 20, 2001, defendant claimed that tests had been performed on his
clothing but that the results had never been produced; the trial court put the matter

                                         27
over at the prosecutor’s request. On April 5, 2001, Ruiz turned over the clothing
and test results, which revealed that no blood had been found on the clothing.
Also on that date, defendant indicated that some of the tapes the prosecution had
provided contained no audio; Ruiz responded by promising to have copies made
and to turn them over to defendant once they were paid for. The trial court also
granted defendant’s request that his wife, Sharon Williams, be appointed as his
unpaid legal runner.
       On April 17, 2001, the prosecutor told the court that defendant had been
provided additional copies of discovery that he did not believe to be in his files,
and said defendant had refused to reimburse the district attorney’s office for the
cost of photocopying the requested documents.
       On May 1, 2001, standby counsel Gunn indicated that standby cocounsel
Cormicle would be unavailable in June and therefore requested that the trial date
be pushed back into July 2001. The court stated that the reason it “appointed
standby counsel [was] because [it believed] there [was] a better than even chance
[standby counsel would] end up trying the case” and that it would therefore be
prudent to allow standby counsel adequate time to prepare in case they were called
upon to take over the defense. Defendant said he did not oppose the request and
waived time. Over the prosecutor’s objection, the trial court continued the trial
until July 30, 2001. On May 18, 2001, the trial court denied defendant’s motion to
remove Gunn as standby counsel.
       During a June 15, 2001, trial readiness conference, the trial court noted that
it had received a letter from defendant’s court-appointed investigator notifying the
court that the investigator was “no longer” on the case and asking for his
appointment to be terminated. In the letter, the investigator stated: “I find it
impossible to work with Mr. Williams.” The trial court granted the investigator’s
request and relieved him from the case.

                                          28
       On June 28, 2001, the trial court heard defendant’s motion to remove Gunn
as standby counsel. Citing the civil litigation he had filed against Gunn, defendant
argued that Gunn would not do his “best” because a guilty verdict would provide
Gunn with a defense to defendant’s pending civil suit. Gunn indicated that he was
“concerned enough” about the potential conflict that he had “called the State Bar,”
but stated that he still believed he could serve as standby counsel. The court
denied the motion.
       Also on June 28, 2001, the prosecutor argued that defendant was engaged
in delay tactics. The prosecutor stated: “The court knows how long I have sat
back and waited. But . . . the letter by Mr. Evans [defendant’s investigator] — you
know, thank God a non lawyer addressed this court because this non lawyer told
you in no uncertain terms what the problem is. And that’s symbolic of what the
problem has continued to be. As he states in his letter, he asked to be relieved
from his position, appointed as his investigator, quote, ‘I find it impossible to work
with Mr. Williams.’ This letter lays out how Mr. Williams has done everything to
delay the proceedings in his dealings with the investigator. He takes a hostile
attitude with his own investigator and refuses to cooperate with him.”
       The trial court noted at this point that defendant had chosen and hired this
investigator himself. The prosecutor agreed and added: “The record has shown
that this defendant has tried to fire every lawyer he has ever had.” When
defendant interrupted by saying, “Not Mara Feiger,” the prosecutor said that “the
only reason he did not try to fire Mara Feiger is because he saw in Mara Feiger a
lawyer who was going to tell him to violate Court orders that you just laid down in
the courtroom in that very session. . . . This is only going to delay the proceedings
and stretch it out. So the only attorney he never tried to fire was Ms. Feiger. And
she did him the favor, after representing him for a year and a half, of declaring a
conflict of interest, knowing that that was going to delay the trial another year,

                                          29
playing right into the defendant’s hands. So no wonder he wants to put her up on
an alter [sic]. She did his bidding.
       “What do we see here in the letter? We see a non lawyer addressing the
Court letting us know what’s going on with Mr. Williams.
       “He tried to fire Forest Wright so many times I can’t count them. Then he
was given Grover Porter. Mr. Porter’s health did not allow him to take the
aggravation that we now see that Mr. Williams dishes out to the people that are
forced unfortunately to deal with him. He fired — or he Marsden’d John
Aquilina. [¶] Your honor has done so many Marsden motions on Mr. Gunn as
counsel, I think it says something. When you look back — this is a conservative
estimate — he’s made 25 Marsden motions. Now, at some point the world says,
‘Is it us or is it him?’ And it’s him.”
       The prosecutor then urged the trial court to relieve defendant of his Faretta
status: “Your Honor has the basis today for relieving the defendant of his pro per
status by finding that the defendant has used and manipulated his pro per status to
delay these proceedings. Because if the Court enjoys discretion in anything, it is
to effect the orderly administration of justice in this courtroom.
       “Your Honor, Mr. Williams — I want to add to that how long we’ve been
on this case. We arrested Mr. Williams two weeks after the murders on July 15th
of 1995. In two weeks, we’ll celebrate the sixth anniversary of the murders in this
case. And he has done everything he can to stretch it out, to delay it, to avoid this
day, in the hopes that Conya dies, that the other witnesses are unavailable. There
has been evidence of the defendant’s attempts to have Conya killed from years
ago.
       “Your Honor, I think the appellate courts are going to say, ‘Mr. Williams,
six years is long enough.’ He is no closer to trial today than he was a year ago.
He doesn’t even have an investigator. No investigator will work with him. How

                                          30
is he going to serve subpoenas? . . . No subpoenas served. I haven’t seen one
witness list from him. I’ve got no discovery from him. [¶] Judge, enough is
enough. Please grant the motion.”
       When asked if he wished to be heard, defendant explained that he had had a
dispute with his investigator over funding, and that the reason he liked Mara
Feiger but not his other attorneys was that she was the only attorney who had
made progress on his case. He then stated: “I — at this point, I’m kind of, like,
fed up. Whatever y’all want to do. . . . This is your house. I’m burnt out. [¶] But
the — I will say this here. You give this man the case. The man don’t know
nothing about the case. . . . If I have the case, I’m not asking for no continuance.
I’m not asking for . . . you to put it off. As far as our trial date stands now, I am
ready to go to trial. . . . I know my case. I feel I know my case better than any
other attorney to have my case besides Mara Feiger. I feel the only reason I want
to fight my case — I know I’m in over my head, but the only reason I want to fight
my case, because I don’t want to go to trial with somebody like Mr. Gunn that
don’t have no knowledge of the case, and go through arguments like this. . . . So if
you want to take my pro per status, fine. This is your courtroom. Do what you
want to do. I don’t care. But don’t give it to this man. That’s the whole thing
I’ve been fighting. That is why I filed the motion to remove him as standby
counsel, because when he was counsel he ain’t doing nothing.”
       When asked by the trial court if he had retained a new investigator,
defendant stated: “No. I do plan on, yes.” The trial court then made the
following findings: “that Mr. Williams has had — and I do not know the number
of Marsden motions. I can’t even count the number of lawyers that he’s had. And
I agree with him, the only one he liked was Ms. Feiger. And I think it was
probably for the reason, as Mr. Ruiz said, because she was — as a trial attorney,
she was a hand-holder for defendants. And that’s what Mr. Williams has been

                                          31
looking for all along, somebody that will come through here anytime he wants to
be seen. [¶] I find that I agree with Mr. Williams, he’s in over his head. And that
all of these have been delay tactics. And I’m going to remove him from his pro
per status. And Mr. Gunn has become the lead attorney.”
       On July 30, 2001, the date set for trial, Gunn represented to the trial court
that the defense required an additional 30-day continuance because he needed
more time to prepare for trial. When asked if he would agree to a continuance,
defendant stated: “I don’t agree to nothing.” Finding that there was a “15-court
day waiver beyond today’s date,” the trial court continued the matter to August 10,
2001. On August 10, 2001, the trial court found good cause to continue the matter
until August 20, 2001.
       On August 20, 2001, Gunn declared a conflict because of the pending
lawsuit filed by defendant. Gunn also cited communication problems and
defendant’s failure to cooperate with defense preparations. The trial court said:
“[I]t’s another way of him delaying this trial by suing you. [¶] Next thing, Mr.
Cormicle is going to be sued for malpractice. Where does it end?” But Gunn
informed the court that “Mr. Williams does cooperate with Mr. Cormicle” and
“[w]ill communicate with him, cooperate in his defense,” and that the breakdown
appeared specific to the relationship between defendant and Gunn. The trial court
therefore relieved Gunn and appointed Cormicle as lead counsel. Finding good
cause, and without a time waiver from defendant, the trial court granted
Cormicle’s request to continue the trial date and set a trial readiness conference for
September 20, 2001. On September 20, 2001, Cormicle requested a continuance
because he was having difficulties securing investigative funds on behalf of the
defense. Defendant refused to waive time. Finding good cause for a continuance,
the trial court continued the trial to March 4, 2002.



                                          32
       During a January 23, 2002, trial readiness conference, Cormicle requested a
trial continuance because he had yet to receive some federal documents that he
had subpoenaed regarding bank robberies committed by victim Gary Williams.
Defendant waived time, and the trial was continued to April 8, 2002.
       A hearing set for March 8, 2002, was postponed for a week at the request of
the prosecutor. On March 15, 2002, the prosecutor requested an additional two-
week continuance to give him “time to finish [another] jury trial.” The trial court
granted the request.
       On March 29, 2002, the trial court heard and denied defendant’s eleventh
Marsden motion. The trial court told defendant that “[p]art of the reason this case
is old” is that “[w]hen the case gets ready for trial and gets near the time for trial,
we fire a lawyer or we represent ourselves . . . .” Later that same day, Cormicle
requested a continuance of the trial date. Cormicle said that the FBI had granted
him access to its files four days earlier regarding 15 separate bank robberies
committed by Gary and his associates, and that he needed more time to review
these materials. Defendant waived time, and the trial court continued the matter
until June 10, 2002.
       On April 23, 2002, Cormicle represented to the trial court that he was “still
receiving additional reports, significant reports, that should have been turned over
seven years ago but were not.” Specifically, Cormicle indicated that he had only
recently received “a four-page report from the FBI that was in the possession of
the district attorney pertaining to Robert Scott.” According to Cormicle, the report
contained statements that were inconsistent with Scott’s prior statements and
identified witnesses that had not previously been identified. In response, the
prosecutor claimed that “[t]he problem with why that was not turned over earlier is
because of the revolving door of defense attorneys” who failed to “follow
through” with discovery. He also claimed that the new material was

                                           33
“independently obtainable by defense counsel.” Cormicle responded that the
prosecution had an obligation to turn over the material under Brady v. Maryland
(1963) 373 U.S. 83 (Brady) and that “there had been a demand for reports from
my client during the time that he was pro per.”
       During an ex parte hearing held on April 25, 2002, Cormicle represented
that he had “basically started from scratch” because “nothing had been done for
the past six years . . . .” He also said he had recently come across a one-page
document titled “Gary and 100 bandits” that “was an outline of . . . 15, 16, or 17
bank robberies that Gary Williams was believed to have orchestrated and
organized.” The defense had only recently received about “700 pages” of
information regarding these prior bank robberies and the associates of Gary
Williams who may have had reason to rob or kill him. Cormicle also clarified that
the four-page document he had referred to two days earlier was a “proffered
statement” from Robert Scott “where he’s presumably looking to cut a deal with
the US Attorney.”
       On May 1, 2002, Cormicle requested that trial be continued until August
2002 in order to give him time to explore issues regarding third-party liability and
complete his investigation. At the request of the prosecutor, Conya L. addressed
the trial court and explained that she felt threatened and wanted to “get this out of
the way.” The prosecutor urged the court to reject any further requests for delay
and argued that defendant or his counsel had successfully manipulated the pretrial
process over the past six years. The prosecutor asked the court to consider “the
length to which Mr. Williams will go to thwart your will and break your will, that
this case ever get to trial.” The court responded: “Mr. Ruiz, he’s not going to
break my will,” and “I don’t like lawyers insinuating that any defendant’s going to
control what I do.” When the prosecutor pushed back and suggested that the court
had not sufficiently challenged the reasons given by defense counsel for seeking

                                         34
continuances over the past six years, the trial court said: “You’re wrong. I’m
telling you that you’re wrong so move on to something else.” Noting that the
pretrial history of the case read “like a horror story as far as delays,” the trial court
then continued the trial date to July 1, 2002, over the prosecutor’s objection.
Defendant agreed to waive time.
       The trial court heard and denied defendant’s twelfth Marsden motion on
June 7, 2002. Jury selection began on July 1, 2002.
       2.     Analysis
       The Sixth Amendment to the United States Constitution guarantees that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . .
trial.” “[T]he right to a speedy trial is ‘fundamental’ and is imposed by the Due
Process Clause of the Fourteenth Amendment on the States.” (Barker v. Wingo
(1972) 407 U.S. 514, 515 (Barker), quoting Klopfer v. North Carolina (1967) 386
U.S. 213, 223.) The speedy trial guarantee “is an important safeguard to prevent
undue and oppressive incarceration prior to trial, to minimize anxiety and concern
accompanying public accusation and to limit the possibilities that long delay will
impair the ability of an accused to defend himself.” (United States v. Ewell (1966)
383 U.S. 116, 120.)
       In Barker, the high court explained that the Sixth Amendment right to a
speedy trial “is generically different from any of the other rights enshrined in the
Constitution for the protection of the accused” in several important ways. (Barker,
supra, 407 U.S. at p. 519.) First, “there is a societal interest in providing a speedy
trial which exists separate from, and at times in opposition to, the interests of the
accused.” (Ibid.) Lengthy pretrial incarceration “contributes to the overcrowding
and generally deplorable state” of local jails, “ ‘has a destructive effect on human
character,’ ” and imposes significant “cost[s]” on society in the form of
maintenance expenses and lost wages. (Id. at pp. 520–521.) Second, unlike other

                                           35
constitutional rights afforded the accused, deprivation of the right to a speedy trial
“may work to the accused’s advantage,” as “[d]elay is not an uncommon defense
tactic.” (Id. at p. 521.) “Thus, unlike the right to counsel or the right to be free
from compelled self-incrimination, deprivation of the right to speedy trial does not
per se prejudice the accused’s ability to defend himself.” (Ibid.) Third, “the right
to speedy trial is a more vague concept than other procedural rights” in that it is
impossible to “definitively say how long is too long in a system where justice is
supposed to be swift but deliberate.” (Ibid.) Accordingly, “any inquiry into a
speedy trial claim necessitates a functional analysis of the right in the particular
context of the case . . . .” (Id. at p. 522.) Finally, “[t]he amorphous quality of the
right also leads to the unsatisfactorily severe remedy of dismissal of the indictment
when the right has been deprived. . . . Such a remedy is more serious than an
exclusionary rule or a reversal for a new trial, but it is the only possible remedy.”
(Ibid., fn. omitted.)
       Because “[t]he speedy-trial right is ‘amorphous,’ ‘slippery,’ and
‘necessarily relative,’ ” the high court in Barker “refused to ‘quantif[y]’ the right
‘into a specified number of days or months’ or to hinge the right on a defendant’s
explicit request for a speedy trial.” (Vermont v. Brillon (2009) 556 U.S. 81, 89–90
(Brillon), quoting Barker, supra, 407 U.S. at p. 522.) Rather, to determine
whether a speedy trial violation has occurred, Barker established a balancing test
consisting of “four separate enquiries: whether delay before trial was
uncommonly long, whether the government or the criminal defendant is more to
blame for that delay, whether, in due course, the defendant asserted his right to a
speedy trial, and whether he suffered prejudice as the delay’s result.” (Doggett v.
United States (1992) 505 U.S. 647, 651 (Doggett).) None of these four factors is
“either a necessary or sufficient condition to the finding of a deprivation of the
right of speedy trial. Rather, they are related factors and must be considered

                                          36
together with such other circumstances as may be relevant. In sum, these factors
have no talismanic qualities; courts must still engage in a difficult and sensitive
balancing process.” (Barker, supra, 407 U.S. at p. 533.) The burden of
demonstrating a speedy trial violation under Barker’s multifactor test lies with the
defendant. (See id. at p. 532.)
       Based on the overall balance of factors in the present case, we conclude that
defendant’s speedy trial claim fails. In reaching that conclusion, we address the
four Barker factors in the following order: length of the delay, prejudice,
defendant’s assertion of the speedy trial right, and who is to blame for the delay.
               a.    Length of the delay
       The first Barker factor, the length of the delay, encompasses a “double
enquiry.” (Doggett, supra, 505 U.S. at p. 651.) “Simply to trigger a speedy trial
analysis, an accused must allege that the interval between accusation and trial has
crossed the threshold dividing ordinary from ‘presumptively prejudicial’ delay,
[Barker, supra, 407 U.S. at pp. 530–531], since, by definition, he cannot complain
that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his
case with customary promptness. If the accused makes this showing, the court
must then consider, as one factor among several, the extent to which the delay
stretches beyond the bare minimum needed to trigger judicial examination of the
claim. [Citation.] This latter enquiry is significant to the speedy trial analysis
because . . . the presumption that pretrial delay has prejudiced the accused
intensifies over time.” (Id. at pp. 651–652; see id. at p. 652, fn. 1 [“We note that,
as the term is used in this threshold context, ‘presumptive prejudice’ does not
necessarily indicate a statistical probability of prejudice; it simply marks the point
at which courts deem the delay unreasonable enough to trigger the Barker
enquiry.”].)



                                           37
       In this case, defendant was arrested on July 26, 1995, and brought to trial
on July 1, 2002. (See United States v. Marion (1971) 404 U.S. 307, 325 [Sixth
Amendment speedy trial right attaches when the defendant is “accused,” i.e., when
he is “arrested, charged, or otherwise subjected to formal restraint prior to
indictment”].) This delay of nearly seven years clearly qualifies as
“ ‘presumptively prejudicial’ ” within the meaning of Barker. (See Doggett,
supra, 505 U.S. at p. 652, fn. 1 [noting that “the lower courts have generally found
postaccusation delay ‘presumptively prejudicial’ at least as it approaches one
year”]; see also United States v. Loud Hawk (1986) 474 U.S. 302, 304 (Loud
Hawk) [90-month delay]; Serna v. Superior Court (1985) 40 Cal.3d 239, 252
[four-and-a-half-year delay].)
       In a complex case, delay will weigh less heavily against the state because
the significance of the delay “is necessarily dependent upon the peculiar
circumstances of the case” and because “the delay that can be tolerated for an
ordinary street crime is considerably less than for a serious . . . charge.” (Barker,
supra, 407 U.S. at pp. 530–531.) In the present case, the charges were serious and
complex. Defendant was charged, along with a codefendant, with a double
homicide and attempted murder for which the prosecution sought the death
penalty. This case certainly differs from the routine prosecution of an ordinary
street crime. However, in denying defendant’s request for Keenan counsel, the
trial court opined that the case was “not necessarily a more complicated case than
any other [capital] case.” After taking into account “the seriousness of the
offenses,” the “nature of the offenses themselves,” and “the number of motions
that allegedly need[ed] to be filed,” the trial court concluded that second counsel
was unnecessary to assist in what it believed to be a relatively straightforward
death penalty case. Once trial finally began, it concluded within seven weeks.
Moreover, even considering the gravity of the charges, a delay of seven years is

                                          38
“extraordinary.” (Barker, supra, 407 U.S. at p. 533 [“It is clear that the length of
delay between arrest and trial –– well over five years –– was extraordinary.”]; see
Doggett, supra, 505 U.S. at p. 652 [noting “the extraordinary 8 1/2-year lag
between [defendant’s] indictment and arrest”].) At oral argument, neither the
Attorney General nor counsel for defendant was aware of any other capital case in
California with a pretrial delay longer than what occurred here. In sum, the delay
in this case “clearly suffices to trigger the speedy trial enquiry.” (Ibid.) We
address further below the significance of the extent to which the delay exceeded
the minimum needed to trigger the Barker inquiry.
              b.     Whether defendant suffered prejudice as a result of the delay
       Whether defendant suffered prejudice as a result of the delay must be
assessed in light of the interests the speedy trial right was designed to protect: “(i)
to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern
of the accused; and (iii) to limit the possibility that the defense will be impaired.”
(Barker, supra, 407 U.S. at p. 532.)
       We have no difficulty concluding, even in light the complexity of the case
and the need for adequate preparation, that being jailed without a trial for seven
years is “oppressive.” (See Barker, supra, 407 U.S. at pp. 532–533 [“The time
spent in jail is simply dead time.”].) Further, although being charged with a
capital crime is bound to cause anxiety and concern under any circumstances, here
defendant expressed anxiety and concern about the pretrial delay on the record.
There can be no question that the length of pretrial incarceration in this case is a
“serious” restraint on liberty with “detrimental impact[s] on the individual.” (Id.
at p. 532; see United States v. Marion, supra, 404 U.S. at p. 320 [arrest and
pretrial incarceration “seriously interfere with the defendant’s liberty” and “may
disrupt his employment, drain his financial resources, curtail his associations,



                                          39
subject him to public obloquy, and create anxiety in him, his family and his
friends”].)
       As to whether defendant suffered the “most serious” type of prejudice, the
inability to adequately prepare his defense (Barker, supra, 407 U.S. at p. 532),
defendant contends that the delay led to “two specific and concrete losses over and
above the generalized problems inevitable in such a lengthy pretrial delay.” First,
defendant argues that “any meaningful investigation into the third parties
motivated to kill Gary Williams was dealt a severe if not fatal blow by the
significant time delays.” He says, “the number, identities, and motivations of
those individuals who wanted to kill or harm Gary Williams came to light very
late in the arduous pretrial process,” with “[t]he first inkling” of Gary’s past
surfacing only in March 1997 and the full extent of his criminal activities revealed
only in January 2002. According to defendant, had “trial occurred in 1997 or
1998, instead of 2002, . . . the identity and whereabouts of those third parties
would much more likely have been ascertained.”
       Second, defendant argues that the delay allowed the state to “stabilize the
testimony of [Conya L.].” He observes that Conya L. offered varying accounts in
the weeks and months following the murders, but that she “testified with unfailing
certitude” at the trial seven years later. Defendant argues that “[t]he passage of so
much time inevitably impacts a person’s recall and perception, such that they can
crystallize and bring forth certitude from initial uncertainty and equivocation.”
The record indicates that Conya L.’s testimony at trial differed in some respects
from the account she had provided seven years earlier, a point explored during
cross-examination by the defense. (Ante, at pp. 8–9; post, at pp. 76–77, 83–84.)
       The Attorney General contends that defendant’s claims of prejudice are
vague and speculative. We agree. Defendant has not specifically identified what
witnesses might have eluded the defense or what testimony might have been lost

                                          40
or distorted as a result of the delay in this case. Defendant has not made any
particularized showing of evidentiary prejudice.
       The high court has said, however, that “consideration of prejudice is not
limited to the specifically demonstrable, and . . . affirmative proof of particularized
prejudice is not essential to every speedy trial claim.” (Doggett, supra, 505 U.S.
at p. 655.) “Barker explicitly recognized that impairment of one’s defense is the
most difficult form of speedy trial prejudice to prove because time’s erosion of
exculpatory evidence and testimony ‘can rarely be shown,’ ” and “we generally
have to recognize that excessive delay presumptively compromises the reliability
of a trial in ways that neither party can prove or, for that matter, identify.” (Id. at
p. 655.)
       In explaining “the role that presumptive prejudice should play” in the
speedy trial analysis, the high court in Doggett said that “its importance increases
with the length of delay.” (Doggett, supra, 505 U.S. at p. 656.) The court then
discussed how the importance of presumptive prejudice varies with the reason for
the delay. On one hand, delay occasioned by diligent prosecution would be
“wholly justifiable” and would not support a defendant’s speedy trial claim absent
a showing of “specific prejudice to his defense.” (Ibid.) On the other hand,
“official bad faith in causing delay will be weighed heavily against the
government” and, in a case of extraordinarily lengthy delay, “would present an
overwhelming case for dismissal” even without any specific showing of prejudice.
(Ibid.) Doggett went on to explain: “Between diligent prosecution and bad-faith
delay, official negligence in bringing an accused to trial occupies the middle
ground. While not compelling relief in every case where bad-faith delay would
make relief virtually automatic, neither is negligence automatically tolerable
simply because the accused cannot demonstrate exactly how it has prejudiced
him. . . . [¶] . . . Although negligence is obviously to be weighed more lightly than

                                           41
a deliberate intent to harm the accused’s defense, it still falls on the wrong side of
the divide between acceptable and unacceptable reasons for delaying a criminal
prosecution once it has begun. And such is the nature of the prejudice presumed
that the weight we assign to official negligence compounds over time as the
presumption of evidentiary prejudice grows. Thus, our toleration of such
negligence varies inversely with its protractedness, [citation], and its consequent
threat to the fairness of the accused’s trial.” (Id. at pp. 656–657.)
       In the present case, there is no allegation of official bad faith causing the
delay, but we may assume that the delay here, as in Doggett, was sufficiently
protracted that the presumption of prejudice would weigh heavily in defendant’s
favor if the cause of the delay was official negligence. We examine the all-
important question of who is to blame for the delay further below.
               c.     Defendant’s assertion of his right to a speedy trial
       Barker rejected “the rule that a defendant who fails to demand a speedy
trial forever waives his right.” (Barker, supra, 407 U.S. at p. 528.) But the high
court cautioned that its rejection of the demand- or waiver-rule did not mean that a
defendant has no responsibility to assert his right. (Ibid.) Rather, “the defendant’s
assertion of or failure to assert his right to a speedy trial is one of the factors to be
considered in an inquiry into the deprivation of the right.” (Ibid.) “Whether and
how a defendant asserts his right is closely related to the . . . [remaining Barker
factors]. The strength of his efforts will be affected by the length of the delay, to
some extent by the reason for the delay, and most particularly by the personal
prejudice, which is not always readily identifiable, that he experiences. The more
serious the deprivation, the more likely a defendant is to complain. The
defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary
weight in determining whether the defendant is being deprived of the right.”
(Barker, supra, 407 U.S. at pp. 531–532.)

                                           42
       In applying this factor, one court has explained: “The issue is not simply
the number of times the accused acquiesced or objected; rather, the focus is on the
surrounding circumstances, such as the timeliness, persistence, and sincerity of the
objections, the reasons for the acquiescence, whether the accused was represented
by counsel, the accused’s pretrial conduct (as that conduct bears on the speedy
trial right), and so forth. [Citation.] The totality of the accused’s responses to the
delay is indicative of whether he or she actually wanted a speedy trial.” (State v.
Couture (Mont. 2010) 240 P.3d 987, 1003 (Couture).)
       Defendant says he repeatedly asserted the substance of his right to a speedy
trial throughout much of the lengthy pretrial period. He emphasizes that the court
itself recognized on several occasions that it was granting delays reluctantly
“because I know [defendant] wants a speedy trial.” Although defendant
acknowledges that he waived time on several occasions, he says he did so because
he had no alternative in light of his attorneys’ lack of preparation and the
prosecution’s delays in providing discovery. In response, the Attorney General
contends that defendant consented to 17 out of 19 continuances granted by the trial
court and that his requests for a speedy trial were, in reality, repeated efforts to fire
his various court-appointed attorneys. Further, the Attorney General describes
defendant’s assertion of his right to a speedy trial as “sporadic,” noting that he did
not protest delays during the time he represented himself or when he was
represented by Mara Feiger, the only attorney who performed to defendant’s
satisfaction.
       The Constitution guarantees a criminal defendant both a speedy trial and
effective representation, and it puts the burden of securing both guarantees on the
state. (See Barker, supra, 407 U.S. at p. 527 [“A defendant has no duty to bring
himself to trial; the State has that duty as well as the duty of insuring that the trial
is consistent with due process.”], italics added, fn. omitted; cf. People v. Johnson

                                           43
(1980) 26 Cal.3d 557, 571 [construing state statutory speedy trial right to mean an
indigent defendant need not “choose between the right to a speedy trial and the
right to representation by competent counsel”].) At the same time, we have said
that a defendant may not, “ ‘by the simple expedient of refusing to cooperate with
his attorney, force a trial court to choose between [the right to a speedy trial and
effective representation], in the hope that a reviewing court will find that the trial
court has made the wrong choice.’ ” (People v. Lomax (2010) 49 Cal.4th 530, 556
(Lomax).) In the present case, we need not decide whether defendant’s pretrial
conduct on balance reflected a sincere desire to have a speedy trial or a calculated
scheme of delay and refusal to cooperate with counsel. For even assuming this
Barker factor weighs in favor of defendant, his speedy trial claim cannot succeed
on the record before us for reasons explained below.
              d.      Who is to blame for the delay
       In the Barker analysis, the reason for the delay is the “flag all litigants seek
to capture.” (Loud Hawk, supra, 474 U.S. at p. 315.) “A deliberate attempt to
delay the trial in order to hamper the defense should be weighted heavily against
the government. A more neutral reason such as negligence or overcrowded courts
should be weighted less heavily but nevertheless should be considered since the
ultimate responsibility for such circumstances must rest with the government
rather than with the defendant. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531,
fn. omitted.) In analyzing this factor, we discuss the conduct of the prosecution,
the defense, and the trial court in turn.
                                            (1)
       In examining the record, we are able to isolate only a handful of delays for
which the prosecution appears directly responsible. The prosecutor requested and
received continuances totaling about two and a half months — first to consider

                                            44
taking a writ in response to a ruling by the trial court, and later because of his busy
trial schedule. The prosecutor was also absent for about three months due to
illness, which constitutes a “strong excuse” for delay. (Barker, supra, 407 U.S. at
p. 534.)
         Defendant argues that some of the delay in this case is attributable to
discovery obstructions by the prosecution. He contends, for example, that the
prosecutor “resist[ed] . . . providing [Conya L.’s] contact information” and failed
to turn over “FBI reports concerning Gary Williams and his bank and credit union
robbery associates.” But as explained further below (post, at pp. 68–85, 92–95),
the prosecution was not obligated to disclose Conya L.’s address, had no duty to
turn over the FBI reports, and did not otherwise fail to adhere to its discovery
obligations with respect to these materials. Although defendant cites additional
examples of the prosecution’s alleged delays in producing discovery, the record on
appeal does not enable us to conclude that responsibility for the discovery disputes
should be attributed to the prosecution.
         On the whole, the record shows that the prosecution, far from trying to
delay the trial, sought to try this case in a timely manner. At numerous points
from the early to the late stages of the pretrial period, the prosecution objected to
continuances of the trial date. When defendant appeared to be “in over his head”
during the period of his self-representation, the prosecution forcefully objected to
the delay and urged the trial court to revoke defendant’s Faretta status. Similarly,
after the sixth year of delay, the prosecutor arranged for Conya L. to address the
court and implored the trial judge to deny any further requests for delay. Neither
the prosecutor’s illness, the back-and-forth of discovery disputes, nor any of the
other minor delays discussed above detracts from the overall conclusion that the
state prosecuted this case diligently and was prepared to afford defendant a speedy
trial.

                                           45
                                          (2)
       It is readily apparent from the record that defendant was responsible for the
delay arising from three discrete periods of the pretrial process. First, he
acquiesced in continuances during a 13-month period from February 1997 to
March 1998 when he appeared satisfied with Mara Feiger’s efforts to move his
case forward. Second, he consistently waived time during the final six months of
the pretrial proceedings as Bruce Cormicle prepared for trial. These two periods
of delay are properly charged to defendant.
       Third, defendant was responsible for the delay that occurred during and
after his attempt at self-representation, a period which marks a distinct turning
point in the pretrial proceedings. Before defendant assumed Faretta status, there
is no indication that the trial court believed defendant was responsible for causing
delay. To the contrary, the trial court repeatedly recognized that defendant wanted
a speedy trial and, after more than four years of delay, responded to defendant’s
complaints by stating, “I think it’s safe to say it’s been your concern all along that
not enough has been done in your case.” After defendant assumed Faretta status a
year later, however, he began engaging in behavior that the trial court later
deemed dilatory. During the 10-and-a-half months defendant represented himself,
he failed to subpoena a single witness or turn over any discovery, yet he initiated a
malpractice suit against Gunn and filed multiple motions to disqualify the trial
judge and the prosecutor. He experienced conflict with his investigator, who
eventually wrote a letter to the court stating, “I find it impossible to work with Mr.
Williams.” During the hearing on June 28, 2001, the prosecutor accused the
defendant of having done “everything to delay the proceedings in his dealings with
the investigator” and further alleged that defendant had refused to cooperate with
his attorneys and was attempting to stall “in the hopes that Conya [would] die[]”
and that other witnesses would become unavailable.

                                          46
       In a ruling that marks a notable shift in tone, the trial court agreed with
defendant that he was “in over his head” and stated that “all of these have been
delay tactics.” The trial therefore revoked defendant’s Faretta status. Three
weeks later, on August 20, 2001, Gunn asked to withdraw because communication
between him and defendant had broken down and because he now believed
defendant’s pending lawsuit against him posed a conflict. The trial court stated
that “it’s another way of him delaying this trial by suing you. [¶] Next thing, Mr.
Cormicle is going to be sued for malpractice. Where does it end?” A few months
later, the trial court chastised defendant for firing his lawyers or representing
himself “[w]hen the case . . . gets near the time for trial.” These comments make
clear that the trial court believed defendant was responsible for the delays during
and after defendant’s attempt at self-representation, a finding to which we owe
deference. (See Doggett, supra, 505 U.S. at p. 652.) Accordingly, defendant is
responsible for the delay during this period as well.
       Having accounted for these periods and the other minor delays discussed
above, we are still confronted with a period of roughly four years during which
defendant was incarcerated awaiting trial. Upon careful review of the record, we
think it is clear that the lion’s share of delay resulted from defense counsel’s lack
of progress in preparing this case for trial. However, because we are unable to
conclude on appellate review of the record before us that the delay resulted from a
“systemic ‘breakdown in the public defender system’ ” (Brillon, supra, 556 U.S. at
p. 94), we must, as a matter of law, charge the delay resulting from defense
counsel’s lack of progress to defendant.
                                           (a)
       From early to late in the pretrial proceedings, the record provides little
indication that defense counsel, apart from Feiger and Cormicle, worked diligently
on defendant’s case. During a Marsden hearing on January 17, 1996, after

                                           47
defendant complained that his case was “getting nowhere” and that “[m]y attorney
had my case for six months, and it’s nothing — it’s like we ain’t took one step,”
defendant’s attorney Forest Wright said, “He’s right. I am too busy. I would like
to get rid of a few cases.” On May 3, 1996, when defendant again expressed
frustration with Wright’s lack of progress, Wright said vaguely that “we’re not in a
position to recite everything at this point, but I know there’s been a considerable
amount of work done.” Wright said that he was proceeding “as diligently as [he
could] at this point, given the staff level that [he had] among qualified persons”
but that his being “in court every day, all day” was impeding his ability to work on
motions.
       After defendant again complained on August 30, 1996, that “everything
that [defense counsel] stipulated that he needed the extra 60 days for [at the last
hearing], . . . still none of them was completed,” Wright asserted that “a lot has
been done in this matter” and indicated he would be prepared for trial on October
7, 1996. Less than two weeks later, however, Wright indicated he would not be
prepared by the October 7, 1996, trial date and requested the appointment of
second counsel, which the trial court denied. On September 27, 1996, Wright
moved to continue the trial date on the ground that he had “not completed
investigation of the ‘guilt/innocence phase’ of the case” and because his “on-going
duties to represent other clients . . . necessitate[d] [his] diligent attention to nine
felony cases . . . set for jury trial before the end of November, 1996, and also to
one other death penalty case.”
       In December 1996, Wright provided the prosecution with a list of
unresolved discovery issues. With the appointment of Mara Feiger as cocounsel
on January 15, 1997, hearings on discovery-related matters began to move forward
in February 1997, apparently to defendant’s satisfaction. In a motion for a
continuance filed on March 28, 1997, Wright stated in a sworn declaration: “In

                                            48
part, as a consequence of my schedule and case load, I was unable to focus on the
instant case to the degree which I should have. The . . . extent of that this situation
has affected the present state of preparedness for trial, I must take full
responsibility. Since February 1997, however, I have not been assigned new
cases.”
       After more than a year of litigating discovery disputes, the public
defender’s office declared a conflict requiring Wright and Feiger to withdraw.
The public defender’s office did not explain the conflict, stating only that it was “a
result . . . of information that we received recently from the prosecution . . . we felt
should have been provided much earlier in the case.” The trial court relieved
Wright and Feiger on April 3, 1998, which resulted in six months of apparent
inactivity as the criminal defense panel attempted to secure counsel for defendant
and as two CDP attorneys, Grover Porter and Douglas Myers, were each appointed
but then quickly relieved.
       At the beginning of October 1998, John Aquilina was appointed to
represent defendant. Over the next several months, Aquilina sought two
continuances to evaluate the case and to conduct investigation. On April 23, 1999,
seven months into his representation of defendant, Aquilina told the trial court in
camera that “no investigation [to] my knowledge has been conducted since the
public defender’s office was relieved in April of ’98.” He said that Porter had
retained an investigator in June 1998 but that neither Porter nor Aquilina had
asked the investigator to “conduct any investigation whatsoever.” The record
discloses no reason why defense counsel had not utilized the investigator.
Aquilina said a new investigator would be available in June 1999. At the same
hearing, nearly four years after defendant was arrested, Aquilina said “it would
appear all an attorney would have to do [after Wright and Feiger withdrew] is
catch up to what has occurred. Quite candidly, I don’t see that even five percent

                                          49
of the investigation necessary in the guilt phase of this case has been conducted.”
Further, Aquilina acknowledged he had not been able to work on defendant’s case
because he had been engaged on two other capital cases and because “mentally,
emotionally, psychologically” he could not handle “three capital cases in one year
in a twelve-month period.”
       After seeking a further continuance on May 13, 1999, Aquilina eventually
withdrew from the case on August 30, 1999, because of a conflict of interest. The
record does not show that much, if anything, was accomplished in defendant’s
case during the 11 months of Aquilina’s appointment. The table of contents for all
records filed during Aquilana’s representation shows that there were 11 trial
readiness conferences, two motions to continue, two Marsden motions, and
nothing else.
       On September 2, 1999, David Gunn was appointed to represent defendant.
Gunn told the court he needed several weeks to evaluate the case and to secure
cocounsel. On December 17, 1999, the trial court granted the prosecution’s
motion to sever defendant’s case from that of his codefendant, and Bruce
Cormicle joined the case as cocounsel for defendant. On December 21, 1999,
Gunn sought a continuance because he had “about eight murder cases still set
pending for next year,” and the court continued the trial date to October 2, 2000.
During an April 7, 2000, status conference, Gunn said in passing that the defense
was “on track” but that he had “lost [his] investigator due to family problems” and
that he was trying to get new investigators “on board.” On June 9, 2000, Gunn
told the court that he had just gotten funding approved for an investigator and that
before the funding approval, there was “about two months where we kind of lost
our ability to have investigative work done.” On July 14, 2000, after defendant
complained that no investigation had occurred and that “the case been at a stand
still for 10 months since Dave Gunn been on the case,” Gunn acknowledged that

                                         50
he had lost “three to four months, in terms of actual preparation of the
investigation” due to problems finding an investigator and obtaining the requisite
funding. Gunn also acknowledged that the investigator had not met with
defendant since funding was approved because of “vacations” and because of the
investigator’s work on another death penalty case.
       The reporter’s transcript from September 2, 1999, to August 16, 2000,
amounts to only 93 pages, most of which consist of Marsden hearings. The
clerk’s transcript for this period consists mainly of 11 minute orders noting trial
readiness conferences. Gunn, like Aquilina, did not appear to pursue any of the
discovery that Feiger sought from the prosecution in 1997 and that Cormicle
finally obtained in 2002. The record does not indicate how much investigation
actually occurred under Gunn’s supervision. Gunn acknowledged that he had lost
his investigator by early April 2000, and two years later, Cormicle, who served as
cocounsel with Gunn and then inherited the case when Gunn withdrew, said he
“basically started from scratch.” If Gunn had made meaningful progress on
defendant’s case, presumably Cormicle would have known about it.
       From August 2000 to June 2001, defendant represented himself, and Gunn
was appointed as standby counsel. After the trial court revoked defendant’s
Faretta status, Gunn resumed his representation of defendant, and the court, at
Gunn’s request, continued the matter to August 20, 2001. On August 20, 2001,
Gunn asked to withdraw from the case because of a breakdown in his relationship
with defendant and because of defendant’s malpractice suit against him — a
potential conflict that defendant had brought to Gunn’s attention 10 and a half
months earlier on October 6, 2000.
       After Cormicle took over the case, the trial court granted several
continuances requested by Cormicle before setting the eventual trial date of July 1,
2002. Between August 2001 and July 2002, it appears that Cormicle pursued the

                                         51
case with reasonable diligence. On April 23, 2002, Cormicle complained at length
that he was still receiving documents “that should have been turned over seven
years ago but were not.” The prosecution responded, “The problem with why that
was not turned over earlier is because of the revolving door of defense attorneys”
who failed to “follow through” with discovery. On April 25, 2002, nearly seven
years after defendant was arrested, Cormicle told the court: “We basically started
from scratch; nothing had been done for the past six years essentially.”
       The record thus indicates that most of the delay in this case, apart from the
periods already attributed to defendant, resulted from defense counsel’s failure to
make progress in preparing defendant’s case. Consistent with defendant’s
frequent complaints, defense counsel repeatedly acknowledged — at the
beginning, in the middle, and even toward the end of the pretrial period — that
little or no work had been done on defendant’s case. The problem was
exacerbated by what the prosecution called “the revolving door of defense
attorneys.” Defendant was represented by a total of eight attorneys over the
seven-year period — two from the public defender’s office (Wright and Feiger)
and six from the criminal defense panel (Porter, Myers, Aquilina, Filippone, Gunn,
and Cormicle) — each of whom needed time to review the case and many of
whom apparently spent months doing little or no work on the case, only to
withdraw later because of a conflict.
       We are mindful of the weight and complexity of the heavy caseloads that
many public defenders carry, and we recognize the essential service that public
defenders provide to their clients and to the criminal justice system. Further, we
realize that defense counsel generally act out of duty and good faith when they
resist subjecting their clients to trial until defense theories and evidence have been
fully investigated and developed. Here, however, the apparent inability of
multiple attorneys — first Deputy Public Defender Forest Wright and then CDP

                                          52
attorneys Grover Porter, Douglas Myers, John Aquilina, Regina Filippone, and
David Gunn — to move defendant’s case forward in a timely manner suggests
more than the usual challenges facing appointed counsel.
                                          (b)
       The question is whether defense counsel’s failure to make progress in
defendant’s case is chargeable to the state or to defendant for purposes of speedy
trial analysis. In Brillon, supra, 556 U.S. 81, the United States Supreme Court
established a “general rule” that “delays sought by [assigned] counsel are
ordinarily attributable to the defendants they represent.” (Id. at pp. 85, 94.) The
high court cautioned, however, that “the State may bear responsibility if there is ‘a
breakdown in the public defender system.’ ” (Id. at p. 85.) We must examine
whether the delays that occurred in this case were the result of such a breakdown.
       The high court has not had occasion to explain what constitutes a
breakdown in the public defender system, although it concluded that no such
breakdown occurred in Brillon. The defendant in Brillon was arrested on felony
domestic assault and habitual offender charges in July 2001 and convicted by a
jury in June 2004. (Brillon, supra, 556 U.S. at p. 84.) “During the time between
Brillon’s arrest and his trial, at least six different attorneys were appointed to
represent him.” (Ibid.) Brillon’s trial was initially scheduled for February 2002.
Four days before jury selection, Brillon’s first attorney, Richard Ammons, “moved
for a continuance, citing his heavy workload and the need for further
investigation.” (Id. at p. 86.) The trial court denied the motion, at which point
Brillon announced: “ ‘You’re fired, Rick.’ ” (Ibid.) Three days later, on the eve
of trial, the trial court “granted Ammons’s motion to withdraw as counsel, citing
Brillon’s termination of Ammons and Ammons’ statement that he could no longer
zealously represent Brillon.” (Ibid.; see id. at p. 86, fn. 3 [noting that Ammons
also cited “ ‘certain irreconcilable differences in preferred approach between Mr.

                                           53
Brillon and counsel as to trial strategy, as well as other legitimate legal
decisions’ ”].) “The trial court warned Brillon that further delay would occur
while a new attorney became familiar with the case.” (Id. at p. 86.)
       Brillon’s second attorney withdrew almost immediately “based on a
conflict.” (Brillon, supra, 556 U.S. at p. 86.) A third attorney, Gerard Altieri,
represented Brillon from March 2002 to June 2002. During this period, Brillon
moved to dismiss Altieri because of “failure to file motions, ‘[v]irtually no
communication whatsoever,’ and his lack of diligence ‘because of heavy case
load.’ ” (Ibid.) At a June 11, 2002, hearing on Brillon’s motion, “Altieri denied
several of Brillon’s allegations, noted his disagreement with Brillon’s trial
strategy, and insisted he had plenty of time to prepare.” (Id. at pp. 86–87,
fn. omitted.) Later that day, however, “Altieri moved to withdraw on the ground
that Brillon had threatened his life during a break in the proceedings. The trial
court granted Brillon’s motion to dismiss Altieri, but warned Brillon that ‘this is
somewhat of a dubious victory in your case because it simply prolongs the time
that you will remain in jail until we can bring this matter to trial.’ ” (Id. at p. 87.)
“That same day, the trial court appointed Paul Donaldson as Brillon’s fourth
counsel.” (Ibid.)
       A few weeks later, Brillon complained about Donaldson’s
“unresponsive[ness] and lack of competence” and, as with Altieri, moved to
dismiss Donaldson “for failure to file motions and ‘virtually no communication
whatsoever.’ ” (Brillon, supra, 556 U.S. at p. 87.) When Donaldson reported that
his contract with the public defender’s office had expired, the trial court released
him on November 26, 2002, without making any findings regarding the adequacy
of his representation. His fifth attorney, David Sleigh, was appointed on January
15, 2003, but withdrew on April 10, 2003, because of a change to his firm’s
contract with the public defender’s office. Brillon was without counsel for the

                                           54
next four months. His sixth attorney, Kathleen Moore, was appointed on August
1, 2003. Moore filed a motion to dismiss on speedy trial grounds on February 23,
2004, which the trial court denied. Moore brought the case to trial on June 14,
2004. After Brillon was convicted, Moore again filed a motion to dismiss for lack
of a speedy trial, which the trial court again denied. (Id. at pp. 87–88.)
       The Vermont Supreme Court concluded that the three-year delay violated
Brillon’s right to a speedy trial, reasoning that “delay caused by assigned
counsel’s ‘inaction’ or failure ‘to move [the] case forward’ is chargeable to the
State, not the defendant.” (Brillon, supra, 556 U.S. at p. 92.) The United States
Supreme Court reversed and held that “delays sought by counsel are ordinarily
attributable to the defendants they represent.” (Id. at p. 85.) The extensions and
continuances sought by Brillon’s attorneys “must . . . be attributed to Brillon as
delays caused by his counsel,” and “their ‘inability or unwillingness . . . to move
the case forward,’ [citation], may not be attributed to the State simply because
they are assigned counsel.” (Id. at pp. 92–93.) In support of its holding, the high
court said: “A contrary conclusion could encourage appointed counsel to delay
proceedings by seeking unreasonable continuances, hoping thereby to obtain a
dismissal of the indictment on speedy-trial grounds. Trial courts might well
respond by viewing continuance requests made by appointed counsel with
skepticism, concerned that even an apparently genuine need for more time is in
reality a delay tactic.” (Id. at p. 93.)
       In addition, the high court held that the Vermont court also “erred by
treating the period of each counsel’s representation discretely” instead of “tak[ing]
into account Brillon’s role during the first year of delay in ‘the chain of events that
started all this.’ [Citation.]” (Brillon, supra, 556 U.S. at p. 93.) The high court
noted that Brillon had fired Ammons on the eve of trial and that Brillon’s
“strident, aggressive behavior with regard to Altieri, whom he threatened, . . .

                                           55
likely made it more difficult . . . to find replacement counsel. Even after the trial
court’s warning regarding delay, Brillon sought dismissal of yet another attorney,
Donaldson.” (Ibid.) The high court explained that “[a]bsent Brillon’s deliberate
efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would
have arisen,” and that the subsequent delay in his case must be viewed in the
context of these earlier events. (Id. at p. 94.)
       Finally, the high court said: “The general rule attributing to the defendant
delay caused by assigned counsel is not absolute. Delay resulting from a systemic
‘breakdown in the public defender system,’ [citation], could be charged to the
State.” (Brillon, supra, 556 U.S. at p. 94.) In addition, “gaps result[ing] from the
trial court’s failure to appoint replacement counsel with dispatch” may be charged
to the State. (Id. at 85.) In Brillon, “the Vermont Supreme Court made no
determination, and nothing in the record suggests, that institutional problems
caused any part of the delay in Brillon’s case.” (Id. at p. 94.)
       The case before us differs from Brillon in certain respects. In Brillon, the
defendant’s disruptive conduct during the first year of the pretrial period led to
subsequent delay. (Brillon, supra, 556 U.S. at pp. 93–94.) Here, there is no
indication that defendant disrupted proceedings except for his efforts, after waiting
five years for a trial, to remove Gunn out of frustration with the lack of progress in
his case. As noted, defendant is responsible for the delay caused by his self-
representation. But there is no indication that defendant ever acted in a “strident”
or “aggressive” manner, or that he ever “threatened [the] life” of his attorneys or
made it difficult to appoint counsel. (Id. at p. 93.) It is true that defendant filed a
malpractice suit against Gunn around October 2000. But unlike “Brillon’s role
during the first year of delay in ‘the chain of events that started all this’ ” (ibid.),
defendant’s lawsuit occurred more than five years into the pretrial period.
Because it appears that Gunn had accomplished little up to that point, it is unlikely

                                            56
the conflict posed by the lawsuit somehow sapped the defense effort of
momentum. Moreover, Gunn acknowledged that defendant had been cooperative
with his cocounsel Cormicle. Had Gunn withdrawn earlier instead of waiting until
August 2001 to declare a conflict, Cormicle, who eventually brought the case to
trial, would have become lead counsel earlier.
       Moreover, whereas Brillon sought to dismiss his attorneys (in one instance
on the eve of trial) in part because of his own preferences concerning trial strategy
(see Brillon, supra, 556 U.S. at p. 86, fn. 3; id. at p. 86 & fn. 4), the record here
indicates that defendant’s Marsden motions (at least those filed before his Faretta
status) were his way of complaining not about trial strategy but about his
attorneys’ continual and often conceded lack of progress in preparing for trial.
Not all of defendant’s Marsden motions sought to dismiss counsel; the trial court
acknowledged the purpose of defendant’s Marsden motions when it said in April
1999, “I’ve held a few Marsden motions with you and a few motions that weren’t
truly Marsden motions, but when we got to talk about what’s going on — and I
think it’s safe to say it’s been your concern all along that not enough has been
done in your case.”
       Because Brillon’s conduct during the first year resulted in subsequent
delays (see Brillon, supra, 556 U.S. at p. 94 [“Absent Brillon’s deliberate efforts
to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have
arisen.”]), the high court characterized “the three-year delay” as “caused mostly by
Brillon” (id. at p. 92, fn. 8). Here, by contrast, defendant endured a much longer
delay, approximately four years of which resulted from the chronic lack of
progress and repeated coming and going of defense counsel notwithstanding
defendant’s recurring complaints that nothing was being done to bring him to trial.




                                           57
                                          (c)
       Brillon did not define what constitutes a “systemic ‘breakdown in the
public defender system.’ ” (Brillon, supra, 556 U.S. at p. 94.) But the high court
did advert to “institutional problems” (ibid.), presumably in contrast to problems
with individual attorneys. In this appeal, defendant contends that the “revolving
door” of appointed counsel over the lengthy pretrial period qualifies as a
“ ‘systemic breakdown in the public defender system’ ” within the meaning of
Brillon. As detailed above, the record indicates that several of defendant’s
attorneys appeared to make little or no progress in preparing his case for trial. But
our specific focus in this inquiry must be on whether a systemic breakdown has
occurred, not on whether any particular attorney or attorneys performed
deficiently. It is possible that the “revolving door” of appointed counsel in this
case is indicative of “institutional problems” (Brillon, at p. 94) in Riverside
County’s Indigent Defense Program. But the record on appeal contains no facts
that affirmatively support this conclusion. Because defendant did not file a motion
to dismiss on speedy trial grounds in the trial court, the underlying cause of the
delay in this case was never litigated, the various statements by defendant and his
attorneys were never examined in an adversarial proceeding, and the trial court
made no findings that might inform the issue before us.
       As a result, there is much we do not know about why this case appeared to
languish in the hands of several of defendant’s attorneys. We do not know
whether the unspecified conflict that ended Forest Wright and Mara Feiger’s
representation after more than two and a half years was reasonably avoidable, or
whether it resulted from a flaw in the public defender’s mechanism for identifying
and avoiding conflicts. We do not know whether the conflict that ended John
Aquilina’s representation after 11 months could reasonably have been avoided or
discovered earlier by Aquilina or by the criminal defense panel, or whether it was

                                          58
simply an unfortunate but unforeseeable happenstance. We do not know whether
the sixth-month delay in 1998 before Aquilina’s appointment, during which
defendant did not have stable counsel, resulted from problems in the criminal
defense panel’s assignment system, or whether it resulted from mishaps that could
not reasonably be anticipated or prevented. And with respect to the various
attorneys who appeared to do little or no work on defendant’s case, we do not
know whether the lack of progress was attributable to each attorney’s own
inability to properly manage or prioritize his or her caseload, or whether the
performance of individual attorneys was indicative of unreasonable resource
constraints, misallocated resources, inadequate monitoring or supervision, or other
systemic problems.
       As noted earlier, the record in this case suggests more than the usual
challenges facing appointed counsel. But in the absence of evidence identifying
systemic or institutional problems and not just problems with individual attorneys,
we are unable to conclude on direct appeal that the delay experienced by
defendant resulted from a breakdown in the public defender system. In other
words, the record before us contains no facts about the public defender system that
would support a finding of a systemic breakdown. Accordingly, on this record, we
are required by Brillon to charge to defendant the delay in this case resulting from
defense counsel’s lack of progress.
                                          (3)
       We turn finally to the role of the trial court. Defendant contends that the
trial court’s denial of his motion to sever his case from that of his codefendant
“was another significant cause of pretrial delay.” But there is a statutory
preference for joint trials of jointly charged defendants (§ 1098), and “past
decisions of this court make it clear that the substantial state interests served by a
joint trial properly may support a finding of good cause to continue a

                                          59
codefendant’s trial” (People v. Sutton (2010) 48 Cal.4th 533, 560; see also
§ 1050.1). During the early stages of the pretrial proceedings, the trial court
properly found that the state interests served by a joint trial justified denial of the
severance motion. Later, when it became clear that separate trials would likely be
required to obviate Aranda/Bruton concerns (see People v. Aranda (1965) 63
Cal.2d 518, 530 [severance may be appropriate when prosecution proposes to
introduce into evidence an extrajudicial statement of one defendant that implicates
a codefendant]; Bruton v. United States (1968) 391 U.S. 123 [nontestifying
codefendant’s extrajudicial statement that incriminates the other defendant is
inadmissible at a joint trial]), the trial court agreed to sever the cases. We find no
error in these decisions.
       Defense counsel’s lack of progress put the trial court in a difficult position.
When a defense attorney requests more time to prepare for trial, the trial court
must balance a defendant’s right to a speedy trial with his right to competent
counsel. (Lomax, supra, 49 Cal.4th at p. 556.) “If counsel seeks reasonable time
to prepare a defendant’s case, and the delay is for defendant’s benefit, a
continuance over the defendant’s objection is justified.” (Ibid.) At the same time,
the high court has said that “the primary burden [falls] on the courts and the
prosecutors to assure that cases are brought to trial.” (Barker, supra, 407 U.S. at
p. 529.) In this case, the prosecution was prepared to bring defendant to trial, but
the trial court repeatedly indulged defense counsel’s requests for continuances due
to lack of preparation.
       We appreciate the dilemma confronting the trial court and do not suggest
that it abused its discretion in granting the 19 continuances that occurred here. But
we note (with the obvious benefit of hindsight) that the trial court could have done
more to move this case to trial once the mounting delay became evident. For
example, when Aquilina informed the court in April 1999 that he had done no

                                           60
work on the case but would soon get started, the court accepted Aquilina’s
assurances and, a few weeks later, continued the trial date. The court did not insist
on a timeline for investigation or discovery, or otherwise more closely monitor
progress in the case, even as it recognized that the case was “the oldest one in the
courthouse.” Subsequently, Gunn took over the case in September 1999. Ten
months later, in July 2000, defendant complained that no investigation had
occurred under Gunn, and Gunn acknowledged he had lost his investigator three
or fourth months earlier. Despite these problems, and despite no indication that
Gunn had pursued any discovery, the trial court — five years after defendant’s
arrest — again did not insist on a firm timeline or otherwise hold Gunn’s or the
CDP’s feet to the fire. Instead of conveying a sense of urgency, the court said that
“to have adequate representation and be prepared for trial is a must. Whether or
not that gets done on a full-time basis working from sun up to sundown for a short
period of time, or anything in between that, and working an hour all day for 10
years I don’t think is what’s important. [¶] What’s important is, is there adequate
representation at the time we get started at trial? And so I can’t even pretend that I
know enough or that I have the power or authority to tell Mr. Gunn you must work
ex number of hours this week on this case, because he has to manage his calendar.
He’s got other clients he is also working for. . . .”
       In granting continuances at the request of defense counsel, the trial court
understandably sought to ensure adequate preparation and a fair trial. “What is
clear, though” — to borrow apt language from a decision of a sister high court —
“is that the [trial court] accommodated repeated requests to postpone hearings,
extend deadlines, and continue the trial based on vague assertions about more time
being needed. The record reflects that the court was concerned about
[defendant’s] right to prepare a defense, but also about the ramifications the delays
were having on his right to a speedy trial. And we commend the court for trying

                                           61
to make the best of a difficult situation in which it had to replace defense counsel
[multiple] times and, in so doing, had to give new counsel time and leeway to get
up to speed on the case. But it must be remembered that ‘ “the primary burden” to
assure that cases are brought to trial is “on the courts and the prosecutors.” ’
[Citation, quoting Barker, 407 U.S. at p. 529.] Furthermore, ‘society has a
particular interest in bringing swift prosecutions, and society’s representatives are
the ones who should protect that interest.’ [Barker, at p. 527.] Thus, the trial
court has an affirmative constitutional obligation to bring the defendant to trial in a
timely manner. [Citation.] And to that end, it is entirely appropriate for the court
to set deadlines and to hold the parties strictly to those deadlines unless a
continuance is justified by a concrete showing of good cause for the delay.
[Citation.] The trial judge is the captain of the ship; and it goes without saying
that the ship will go in circles if the crew is running around the deck with no firm
marching orders.” (Couture, supra, 240 P.3d at pp. 1009–1010.)
       We do not find the trial court directly responsible for the delay in this case.
We caution, however, that trial courts must be vigilant in protecting the interests
of the defendant, the prosecution, and the public in having a speedy trial.
              e.     Overall balance of Barker factors
       As noted, the speedy trial analysis involves “a difficult and sensitive
balancing process” that “necessarily compels courts to approach speedy trial cases
on an ad hoc basis.” (Barker, supra, 556 U.S. at pp. 530, 533.) In this case, the
length of the delay is extraordinary, far greater than the minimum necessary to
trigger the Barker inquiry. Further, we have assumed without deciding that during
the five years before his self-representation, defendant’s repeated assertions of his
desire to have a speedy trial were sincere. The remaining two Barker factors,
however, weigh against defendant. Defendant was directly responsible for three
of the seven years of pretrial delay as he waived time to allow his attorneys to

                                          62
prepare his case and caused delays by attempting to represent himself. His
attorneys were responsible for the remaining four years, and because we cannot
conclude on this record that the delays caused by defendant’s counsel resulted
from a systemic breakdown in the public defender system, the delay caused by
assigned counsel must be charged to defendant. (Brillon, supra, 556 U.S. at
p. 94.) Defendant has failed to demonstrate specific prejudice resulting from the
delay, and despite the oppressive nature of pretrial incarceration and the anxiety it
produces, he cannot benefit from a presumption of prejudice because the record
does not show that the state was responsible for the delay. (Doggett, supra, 505
U.S. at pp. 656–657.) Thus, based on the totality of the Barker factors, we
conclude on this record that defendant’s right to a speedy trial was not violated.
       3.     Speedy Trial Right Under California Constitution and Statutory Law
       In passing, defendant mentions that “California statutory law also outlines
the right of the accused to a speedy trial.” He notes that California’s statutory
provisions are “supplementary to and a construction of the state constitutional
speedy trial guarantee.” (People v. Martinez (2000) 22 Cal.4th 750, 766.)
Defendant declined to brief any speedy trial claim under state law, however,
noting simply that “[t]he potential for pretrial delays to fall within one of the
California Penal Code’s exclusions may well undermine many attempts to appeal
on statutory speedy trial grounds.” Thus, defendant has effectively conceded he
has no meritorious speedy trial claim under California law.
B.     In Propria Persona Status and Standby Counsel
       1.     Revocation of In Propria Persona Status
       Defendant next contends that his Sixth Amendment right of self-
representation was violated when the trial court revoked his Faretta status. He
argues that “[t]he trial judge’s rationale for termination of [defendant’s] Faretta



                                          63
rights — that [defendant] was using dilatory practices — is not supported by the
record.” We disagree.
        A criminal defendant has a right to represent himself at trial under the Sixth
Amendment to the United States Constitution. (Faretta, supra, 422 U.S. 806;
People v. Marshall (1997) 15 Cal.4th 1, 20.) “A trial court must grant a
defendant’s request for self-representation if the defendant knowingly and
intelligently makes an unequivocal and timely request after having been apprised
of its dangers.” (People v. Valdez (2004) 32 Cal.4th 73, 97–98.) Erroneous denial
of a Faretta motion is reversible per se. (People v. Dent (2003) 30 Cal.4th 213,
218.)
        However, the right of self-representation is not absolute. “[The]
government’s interest in ensuring the integrity and efficiency of the trial at times
outweighs the defendant’s interest in acting as his own lawyer.” (Martinez v.
Court of Appeal (2000) 528 U.S. 152, 161.) “The right of self-representation is not
a license to abuse the dignity of the courtroom. Neither is it a license not to
comply with relevant rules of procedural and substantive law.” (Faretta, supra,
422 U.S. at pp. 834–835, fn. 46; see also People v. Butler (2009) 47 Cal.4th 814
[“The court may deny a request for self-representation that . . . is intended to delay
or disrupt the proceedings.”].) “Thus, a trial court must undertake the task of
deciding whether a defendant is and will remain so disruptive, obstreperous,
disobedient, disrespectful or obstructionist in his or her actions or words as to
preclude the exercise of the right to self-representation. The trial court possesses
much discretion when it comes to terminating a defendant’s right to self-
representation and the exercise of that discretion ‘will not be disturbed in the
absence of a strong showing of clear abuse.’ ” (People v. Welch (1999) 20 Cal.4th
701, 735.)



                                          64
       Because we have already recounted the relevant factual background and
procedural history above, we highlight here only the most salient points. When
the trial court granted defendant’s request to represent himself on August 16,
2000, defendant assured the trial court that he would be prepared for trial by
February 5, 2001. By the time the trial court revoked defendant’s Faretta status
on June 28, 2001, defendant had exceeded this deadline by almost five months.
While proceeding in propria persona, defendant requested and received two
continuances and did not object to a third continuance requested by standby
counsel.
       During the 10-and-a-half-month period during which defendant represented
himself, defendant repeatedly complained about David Gunn and made multiple
motions to remove him as standby counsel despite the fact that the trial court had
made clear that Gunn had no control over defendant and played no role in
defendant’s preparation of his defense. Defendant also filed three separate
motions to disqualify the trial judge pursuant to Code of Civil Procedure section
170.1; moved to disqualify the prosecutor pursuant to Penal Code section 1424;
and filed a motion for a change of venue. These motions were denied. During the
same period, defendant did not subpoena any witnesses or turn over any discovery.
       The record demonstrates that defendant did not engage in efficient
investigation and trial preparation. Although the prosecutor represented to the trial
court that he had given his investigator’s phone number to defendant, defendant
did not make contact with the investigator. Defendant claimed that the
investigator never answered the phone, but the prosecutor countered that
defendant never actually called. During a June 15, 2001, trial readiness
conference, the trial court said that it had received a letter from defendant’s court-
appointed investigator notifying the court that the investigator was “no longer” on
the case and asking for his appointment to be terminated. In the letter, the

                                          65
investigator stated: “I find it impossible to work with Mr. Williams.” The trial
court granted the investigator’s request and relieved him from the case. On June
28, 2001, when the trial court asked defendant if he had retained a new
investigator, defendant stated: “No. I do plan on, yes.”
       During a hearing on June 28, 2001, the prosecutor alleged that defendant
was engaging in delay tactics and urged the trial court to relieve defendant of his
Faretta status. According to the prosecutor, defendant had “done everything to
delay the proceedings in his dealings with the investigator,” and defendant was
“no closer to trial today than he was a year ago.” In response, defendant
challenged the prosecutor’s factual representations but also acknowledged that he
was “in over [his] head.” He then stated: “I — at this point, I’m kind of, like, fed
up. Whatever y’all want to do. . . . This is your house. I’m burnt out. [¶] . . . So
if you want to take my pro per status, fine. This is your courtroom. Do what you
want to do. I don’t care. But don’t give it to [attorney David Gunn]. That’s the
whole thing I’ve been fighting. That is why I filed the motion to remove him as
standby counsel, because when he was counsel he ain’t doing nothing.”
       The trial court then issued the following ruling: “I make the following
findings: That [defendant] has had — and I do not know the number of Marsden
motions. I can’t even count the number of lawyers that he’s had. . . . [¶] I find
that I agree with [defendant], he’s in over his head. And that all of these have
been delay tactics. And I’m going to remove him from his pro per status.”
       “[T]he Faretta right is forfeited unless the defendant ‘ “articulately and
unmistakably” ’ demands to proceed in propria persona.” (People v. Valdez,
supra, 32 Cal.4th at p. 99.) By conceding that he was in over his head and
acquiescing to the revocation of his Faretta status, defendant did not unmistakably
demand to continue in propria persona. Defendant has therefore forfeited this
claim. (See People v. Rudd (1998) 63 Cal.App.4th 620, 628–630 [holding that

                                         66
defendant forfeited his objection to an order revoking his pro se status by raising it
for the first time on appeal].)
       Forfeiture aside, defendant’s claim fails on the merits. By the time
defendant’s Faretta status was revoked, defendant had been proceeding in propria
persona for over 10 months and had missed the ready-for-trial deadline by five
months. During this period, defendant did not conduct any meaningful
investigation or engage in any discovery. Defendant conceded, and the trial court
found, that he was “in over his head.” The trial court did not abuse its discretion
in finding that defendant had engaged in “delay tactics” in the course of his self-
representation. Accordingly, we find no violation of defendant’s Sixth
Amendment right to self-representation.
       2.     Standby Counsel
       Defendant next asserts that the trial court’s refusal to remove attorney
David Gunn as standby counsel while he was proceeding in propria persona
“denied [defendant] the assistance of conflict-free counsel throughout the ten
months of his representation, in violation of the Sixth Amendment.” Defendant is
incorrect.
       It is well-established that “a defendant has no right, under either the federal
or state Constitution, to ‘hybrid representation.’ Criminal defendants have the
constitutional right to have an attorney represent them, and the right under the
federal Constitution to represent themselves, but these rights are mutually
exclusive.” (People v. Moore (2011) 51 Cal.4th 1104, 1119–1120, fn. omitted.)
“Of course, a State may — even over objection by the accused — appoint a
‘standby counsel’ . . . to be available to represent the accused in the event that
termination of the defendant’s self-representation is necessary.” (Faretta, supra,
422 U.S. at p. 834, fn. 46.) We have explained that “standby counsel . . . takes no
active role in the defense, but attends the proceedings so as to be familiar with the

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case in the event that the defendant gives up or loses his or her right to self-
representation . . . .” (People v. Moore, supra, 51 Cal.4th at pp. 1119, fn. 7, italics
added.)
       Because defendant had no Sixth Amendment right to any counsel while he
was proceeding in propria persona, he certainly had no Sixth Amendment right to
assertedly “conflict-free” standby counsel. Accordingly, even assuming that Gunn
did have a conflict of interest, defendant’s claim fails.
C.     Prosecution’s Obligations Under Brady v. Maryland
       Defendant contends that the prosecution failed to timely disclose certain
discovery materials he maintains were favorable to the defense, thus violating his
due process rights under Brady, supra, 373 U.S. 83. “Under the federal
Constitution’s due process clause, as interpreted by the high court in Brady . . . ,
the prosecution has a duty to disclose to a criminal defendant evidence that is ‘
“both favorable to the defendant and material on either guilt or punishment.” ’
[Citations]. The prosecution’s withholding of favorable and material evidence
violates due process ‘irrespective of the good faith or bad faith of the prosecution.’
[Citation.]” (In re Bacigalupo (2012) 55 Cal.4th 312, 333.) “For Brady purposes,
evidence is favorable if it helps the defense or hurts the prosecution, as by
impeaching a prosecution witness.” (People v. Zambrano (2007) 41 Cal.4th 1082,
1132.) “[The] touchstone of materiality is a ‘reasonable probability’ of a different
result . . . . The question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of
confidence. A ‘reasonable probability’ of a different result is accordingly shown
when the government’s evidentiary suppression ‘undermines confidence in the
outcome of the trial.’ ” (Kyles v. Whitley (1995) 514 U.S. 419, 435.) In
determining whether evidence is material under this standard, we consider “ ‘the

                                           68
effect of the nondisclosure on defense investigations and trial strategies.’ ”
(People v. Verdugo (2010) 50 Cal.4th 263, 279.)
        The prosecution is obligated to disclose favorable and material evidence
“whether the defendant makes a specific request [citation], a general request, or
none at all [citation].” (In re Brown (1998) 17 Cal.4th 873, 879.) “The scope of
[the prosecution’s] disclosure obligation extends beyond the contents of the
prosecutor’s case file and encompasses the duty to ascertain as well as divulge
‘any favorable evidence known to the others acting on the government’s behalf
. . . .’ [Citation.]” (Ibid.) A determination that the prosecution improperly
withheld material information requires reversal without further harmless error
analysis. (Kyles v. Whitley, supra, 514 U.S. at p. 435; People v. Zambrano, supra,
at p. 1133.)
        Defendant contends that the prosecution violated its Brady obligations by
failing to timely disclose (1) information regarding Gary’s criminal activities and
associates; (2) a four-page FBI report regarding prosecution witness Robert Scott;
(3) information regarding a potential prosecution witness, Tami Wilkerson; and
(4) the address of prosecution witness Conya L. We address each contention in
turn.
        1.     Gary’s Criminal Activities and Associates
        Defense counsel represented to the trial court that during a meeting with the
prosecutor on January 9, 2002, he came across a previously undisclosed one-page
document entitled “Gary and 100 bandits” outlining the numerous bank robberies
Gary was believed to have committed with the assistance of various associates.
During in-court conferences held on January 23, 2002, and March 29, 2002,
defense counsel requested and received continuances of the trial date to investigate
these robberies and the individuals involved. During the March 29, 2002,
conference, defense counsel represented that the FBI had recently granted him

                                          69
access to files pertaining to these matters and maintained that he needed more time
to review the materials. On May 1, 2002, defense counsel requested and received
an additional continuance to investigate the potential for “third-party liability,”
i.e., the possibility that one of Gary’s associates had committed the charged
crimes. Jury selection began on July 1, 2002.
       Defendant now argues that “[t]he prosecution’s undue delay in revealing
the existence of potentially exculpatory evidence related to Gary’s numerous
robberies and associates with motives to kill him . . . resulted in a denial of the
defense’s ability to fully investigate those materials or to render a complete
defense at trial.”
       However, the fact that victim Gary Williams had been involved in bank
robberies was no secret; his history as a bank robber had been disclosed at the very
beginning of the case. As early as the preliminary hearing on January 4, 1996, for
example, defense counsel cross-examined Conya L. regarding her knowledge of
Gary’s criminal activities. Further, the prosecution stipulated at trial that Gary
was a bank robber who had worked in conjunction with other bank robbers, and
Scott testified that he and Gary had worked together to commit over 20 armed
credit-union robberies during the early 1990s. Thus, the critical facts regarding
Gary’s past had been fully disclosed, and the defense was free to investigate. The
fact that defense counsel did not appear to investigate diligently for much of the
pretrial period has no bearing on the Brady analysis: “the prosecutor had no
constitutional duty to conduct defendant’s investigation for him.” (People v.
Morrison (2004) 34 Cal.4th 698, 715.) “Because Brady and its progeny serve ‘to
restrict the prosecution’s ability to suppress evidence rather than to provide the
accused a right to criminal discovery,’ the Brady rule does not displace the
adversary system as the primary means by which truth is uncovered. [Citation.]
Consequently, ‘when information is fully available to a defendant at the time of

                                          70
trial and his only reason for not obtaining and presenting the evidence to the Court
is [the defendant’s] lack of reasonable diligence, the defendant has no Brady
claim.’ ” (Ibid.)
       Moreover, defendant’s last attorney, Cormicle, learned of the existence of
the “Gary and 100 bandits” document more than six months before the trial began.
Cormicle was granted three separate continuances to conduct additional
investigation into the possibility of third-party culpability. He requested and
received further information regarding the robberies from the FBI. Because it
appears that no evidence was in fact “suppressed” and that defense counsel had
adequate time to conduct additional investigation, defendant’s Brady claim is
without merit.
       2.     Prosecution Witness Robert Scott
       On April 23, 2002, defense counsel indicated that he had only recently
received “a four-page report from the FBI that was in the possession of the district
attorney pertaining to Robert Scott.” During an ex parte hearing held two days
later, defense counsel explained that the four-page document was a “proffered
statement” from Robert Scott “where he’s presumably looking to cut a deal with
the US Attorney.” Defendant apparently contends that the belated disclosure of
this evidence violated his due process rights.
       Defendant’s argument is without merit. Defense counsel received the four-
page “proffered statement” — a letter signed by Robert Scott and addressed to the
district attorney — over two months before the trial began. The letter was
introduced into evidence during the trial, and Scott was cross-examined
extensively regarding its meaning and his motivations for preparing the document.
Among other things, defense counsel elicited that Scott was hoping “to get out
before [he] had to complete the 11 years and six months that [he had been] given”



                                         71
on a robbery conviction by offering “testimony in connection with [defendant’s]
case.” Accordingly, there was no suppression of evidence and no Brady violation.
       3.     Potential Prosecution Witness Tami Wilkerson
       During a hearing on April 23, 2002, defense counsel “cited a need for
information on a prior criminal incident committed by prosecution witness Tami
Wilkerson that could be used to potentially impeach her testimony.” He contends
that the prosecution had possessed this information for several years before it was
turned over. However, defendant does not assert, and the record does not reflect,
that the prosecution ever called Tami Wilkerson to testify. Because there was no
testimony to impeach, defendant’s Brady claim is without merit.
       4.     Conya L.
       Defendant contends that the prosecution violated its Brady obligations by
failing to provide discovery regarding Conya L.’s whereabouts. But defendant
cites no case that has held that the prosecution’s refusal to disclose a witness’s
address, without more, constitutes a Brady violation, and he acknowledges that
none of the cases he cites “explicitly discuss[es] the prosecution’s failure to
provide access to potentially material information.” The absence of any authority
supporting defendant’s position is not surprising. “There is no general
constitutional right to discovery in a criminal case, and Brady did not create one
. . . .” (Weatherford v. Bursey (1977) 429 U.S. 545, 559; see also Wardius v.
Oregon (1973) 412 U.S. 470, 474 [“[T]he Due Process Clause has little to say
regarding the amount of discovery which the parties must be afforded . . . .”].)
Moreover, “Brady does not require the disclosure of information that is of mere
speculative value” (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1472), and
defendant himself concedes that “it remains speculative as to what might have
been discovered.” He acknowledges that there is no way to know “if disclosure of
[Conya L.’s] address would be helpful or harmful to [defendant’s] defense.”

                                          72
Because defendant has not shown that the prosecution withheld evidence that was
both “favorable and material” to the defense (In re Bacigalupo, supra, 55 Cal.4th
at p. 333), his claim is without merit. (We address defendant’s claims that
withholding of Conya L.’s address violated his statutory rights and the
confrontation clause below, post, at pp. 73–85.)
       5.     Cumulative Impact
       “[W]hile the tendency and force of undisclosed evidence is evaluated item
by item, its cumulative effect for purposes of materiality must be considered
collectively.” (In re Brown, supra, 17 Cal.4th at p. 887.) Because we have found
that the prosecution did not suppress any evidence that was favorable to the
defense, we reject defendant’s cumulative error argument.
D.     Prosecution Witness Conya L.
       Defendant raises a number of arguments regarding the investigation and
examination of the prosecution’s main witness, Conya L. Specifically, he argues
that the state was required to disclose Conya L.’s current address pursuant to
section 1054; that the state prevented defendant from meaningfully cross-
examining Conya L. in violation of the Sixth and Fourteenth Amendments by
failing to disclose her address; and that the trial court improperly limited certain
lines of inquiry during cross-examination in violation of the Sixth and Fourteenth
Amendments. After summarizing the factual background, we address each of
these arguments in turn.
       1.     Factual Background
       On July 15, 1995, Conya L. was attacked and her throat was lacerated by
two knives. After narrowly escaping with her life, she provided an account of the
attacks to the police. Conya L. then fled the state shortly after her release from the
hospital.



                                          73
       On December 14, 1995, defendant’s codefendant Ronald Walker requested
a continuance of the preliminary examination. The prosecutor opposed the
request, stating that Conya L. had received a “death threat” and that the
threatening party had represented to Conya L. that he knew where she was and
intended to carry out a “hit” on her in the immediate future.
       During the preliminary hearing on January 4, 1996, Conya L. testified at
length and was subject to cross-examination by both defense counsel. At one
point during the hearing, the prosecutor asked Conya L. if she had received any
death threats, and Conya L. answered, “yes.” When the prosecutor attempted to
inquire further, both defense counsel objected on the ground of relevance. Their
objections were sustained.
       On February 28, 1997, the parties agreed that Conya L.’s address would be
redacted from her medical records before those documents were turned over to the
defense. On March 7, 1997, however, defense counsel requested unredacted
copies of Conya L.’s medical records, which included her current address. The
trial court instructed the parties to brief the issue.
       On May 16, 1997, the prosecution submitted the sealed declaration of Tony
Pradia, an investigator employed by the Riverside County District Attorney’s
Office. Investigator Pradia declared that defendant and his codefendant were
admitted Crips gang members; that Conya L. had received two separate death
threats on or about December 19, 1995, warning her that she would be killed if she
attempted to testify at the preliminary hearing; that Detective Gary Thompson had
received information from an informant that Conya L. and her six-year-old son
would be murdered prior to the preliminary hearing; that Conya L. had been
relocated both before and after the preliminary hearing in response to these threats;
that Conya L.’s continued cooperation was critical to an ongoing investigation into
the identity of the third perpetrator; and that Pradia would not be able to ensure

                                            74
Conya L.’s continued safety if her address were disclosed to the defense. At a
hearing held the same day, defense counsel argued that the alleged threats were
hearsay. She also argued that any danger to Conya L. could be minimized if
Conya L.’s address were disclosed only to defense counsel and not to defendant
himself.
       On June 6, 1997, after taking the matter under submission, the trial court
ruled that the prosecution was not required to disclose Conya L.’s address or
telephone number to the defense.
       During a hearing on May 1, 2002, Conya L. spoke in support of the
prosecutor’s request to proceed to trial without any further delay. She stated that
she had relocated every time she had received a death threat. She further stated:
“People tell me all the time that the defendant has asked about my whereabouts.
He inquires about my whereabouts. And he sends messages through other people
to give to me. I hear this all the time. And it’s very stressful.”
       During the trial, defense counsel called Conya L. as part of the defense
case. Before calling her to the stand, defense counsel indicated to the trial court
that he wished to introduce evidence that Conya L. “had a warrant out for her
arrest at the time” that the crimes were committed. Defense counsel explained that
Conya L. had been convicted of welfare fraud on November 27, 1991 and placed
on probation for two years. As part of her conviction, she was ordered to pay a
$350 fine by February 25, 1992. When Conya L. failed to pay the fine, a warrant
was issued for her arrest. Conya L. did not pay the fine for over three years. The
prosecutor objected that evidence of the warrant should be excluded under
Evidence Code section 352 because it would invite the jury to speculate as to the
reason the warrant had been issued. Citing People v. Wheeler (1992) 4 Cal.4th
284, the trial court responded that “the fact that the warrant was issued on a
Wheeler-type impeachment would not be admissible. The underlying facts are.”

                                          75
Defense counsel then clarified that he wished to introduce evidence of the warrant
not just for impeachment purposes, but also to explain Conya L.’s absence from
the state. The trial court noted that such evidence would “open[] up some doors
that you probably don’t want to open up,” at which point defense counsel
responded: “Okay.”
       Defense counsel then called Conya L. to testify. During the examination,
Conya L. admitted that she had been convicted of misdemeanor welfare fraud in
1991. She further admitted that she had lied in an employment application in 1992
by falsely declaring that she had never been convicted of a misdemeanor; she had
signed the application under penalty of perjury. She repeated the same lie in a
1996 employment application, although this time not under penalty of perjury.
Finally, Conya L. admitted that she had been convicted of two misdemeanors in
1994: false impersonation and fraudulent use of a Medi-Cal card.
       On cross-examination, the prosecutor attempted to rehabilitate Conya L. by
eliciting that she had been young and poor at the time she had committed the
subject crimes. Before redirect, defense counsel informed the trial court that he
intended to ask Conya L. about her ability to pay the court-ordered fine and
whether she had failed to report income on her applications for government
assistance. The prosecutor objected that this evidence was cumulative, arguing
that Conya L. had already admitted to failing to report income. The trial court
limited this line of inquiry to the following question: “You previously admitted
that you failed to report that income . . . and you signed under penalty of perjury
that you would report all of your income; isn’t that correct?”
       2.     California Penal Code
       Defendant argues that “Conya [L.’s] testimony was the State’s case.” He
notes that she was the sole percipient witness and that there was no forensic
evidence linking anyone to the charged crimes. Indeed, as the prosecutor himself

                                         76
remarked, the prosecution’s case “hing[ed] substantially, if not entirely, upon
[Conya L.’s] identification” of the individuals responsible for the crime.
       In light of the crucial importance of her testimony, defendant argues that
the prosecution was required to disclose Conya L.’s address pursuant to section
1054. He further contends that the prosecution’s failure to disclose this
information precluded meaningful confrontation and cross-examination of this
important witness in violation of the Sixth and Fourteenth Amendments to the
United States Constitution.
       Under the Penal Code, the prosecutor must disclose the names and
addresses of the individuals whom he intends to call at trial. (§ 1054.1, subd. (a).)
“The disclosure may be made to defense counsel, who is prohibited from
revealing, to the defendant or others, information that identifies the address or
telephone number of the prosecution’s potential witnesses, absent permission by
the court after a hearing and a showing of good cause. (§ 1054.2.) . . . . Absent a
formal court order directing earlier disclosure, discovery must be provided at least
30 days prior to trial, ‘unless good cause is shown why a disclosure should be
denied, restricted, or deferred.’ (§ 1054.7.) ‘Good cause’ is defined for purposes
of this provision as ‘threats or possible danger to the safety of a victim or witness,
possible loss or destruction of evidence, or possible compromise of other
investigation by law enforcement.’ (Ibid.) Section 1054.7 additionally provides
that upon the request of any party, the court may permit a showing of good cause
— for the denial or regulation of disclosures — to be made in camera.” (Alvarado
v. Superior Court (2000) 23 Cal.4th 1121, 1132–1133 (Alvarado).) “Orders under
this section are subject to review for abuse of discretion.” (People v. Panah
(2005) 35 Cal.4th 395, 458.) We have held that these provisions of the Penal
Code are constitutional (Izazaga v. Superior Court (1991) 54 Cal. 3d 356), and
that “[a] defendant does not have a fundamental due process right to pretrial

                                          77
interviews or depositions of prosecution witnesses” (Panah, supra, 35 Cal.4th at
458).
        Notwithstanding defendant’s assertions to the contrary, the trial court
clearly had “good cause” to deny disclosure of Conya L.’s address. As noted,
Conya L.’s testimony was crucial to the prosecution’s case. Conya L. testified that
she had received death threats, and Investigator Pradia submitted a sworn
declaration stating that Conya L.’s life had been threatened and that disclosure of
her address would jeopardize her safety and compromise the integrity of an
ongoing investigation. Because there were “threats or possible danger to the
safety of a victim or witness, possible loss or destruction of evidence, [and]
possible compromise of other investigations by law enforcement” (§ 1054.7), the
trial court did not abuse its discretion in finding good cause to deny defendant’s
request.
        The analogous case of People v. Panah, supra, 35 Cal.4th 395, is
instructive. In that case, the prosecution requested that a witness’s “out-of-state
address not be disclosed to defendant based on allegations that he had conspired
with others to kill her and another witness.” (Id. at p. 457.) The trial court granted
the prosecution’s request. (Id. at p. 458.) We concluded that “where there appears
to have been a credible allegation of potential injury to the witness, we find no
abuse of discretion.” (Ibid.)
        Defendant contends that the trial court could have mitigated the danger to
Conya L. by ordering that her address be disclosed only to defense counsel and not
to defendant. But defendant misapprehends the good cause exception to the
disclosure requirement. Pursuant to section 1054.2, the default rule is that “the
address or telephone number of a victim or witness whose name is disclosed to the
attorney pursuant to subdivision (a) of Section 1054.1” may not be disclosed to the
“defendant, members of the defendant’s family, or anyone else.” (§ 1054.2,

                                          78
subd. (a)(1).) The exception codified in section 1054.7 allows the trial court to
deny even such limited disclosure when the prosecution can show good cause.
Because we have found that the trial court did not abuse its discretion in finding
good cause in this case, defendant’s argument is without merit. Accordingly, we
find no violation of the reciprocal discovery statutes of the California Penal Code.
       3.     Sixth Amendment Right to Confrontation
       Nor did the trial court’s order violate defendant’s rights under the Sixth and
Fourteenth Amendments to the United States Constitution. The Sixth Amendment
guarantees the right of an accused in a criminal prosecution “ ‘to be confronted
with the witnesses against him.’ ” (Delaware v. Van Arsdall (1986) 475 U.S. 673,
678 (Van Arsdall).) “The right of confrontation, which is secured for defendants
in state as well as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400
(1965), ‘means more than being allowed to confront the witness physically.’
Davis v. Alaska [(1974)] 415 U.S. [308,] p. 315. Indeed, ‘ “[t]he main and
essential purpose of confrontation is to secure for the opponent the opportunity of
cross-examination.” ’ (Id., at pp. 315–316 (quoting 5 J. Wigmore, Evidence §
1395, p. 123 (3d ed. 1940) (emphasis in original).” (Van Arsdall, at p. 678.) The
high court has said that “when the credibility of a witness is in issue, the very
starting point in ‘exposing falsehood and bringing out the truth’ through cross-
examination must necessarily be to ask the witness who he is and where he lives.
The witness’[s] name and address open countless avenues of in-court examination
and out-of-court investigation. To forbid this most rudimentary inquiry at the
threshold is effectively to emasculate the right of cross-examination itself.” (Smith
v. Illinois (1968) 390 U.S. 129, 131, fn. omitted; see also Alford v. United States
(1931) 282 U.S. 687, 692 [“Prejudice ensues from a denial of the opportunity to
place the witness in his proper setting and put the weight of his testimony and his
credibility to a test, without which the jury cannot fairly appraise them.”].)

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       “The right of confrontation is not absolute, however [citations], ‘and may,
in appropriate cases, bow to accommodate other legitimate interests in the criminal
trial process.’ ” (Alvarado, supra, 23 Cal.4th at pp. 1138–1139.) The high court
has not “establish[ed] an inflexible rule requiring disclosure of a witness’s identity
and address in all circumstances.” (Id. at p. 1142.) To the contrary, as we
explained in Alvarado, withholding “only . . . the residential address” of even a
crucial witness may be permissible “when the risk posed to a witness’s safety is
grave enough.” (Ibid.; see, e.g., People v. Watson (1983) 146 Cal.App.3d 12, 20
[in permitting nondisclosure of the prosecution witness’s address, the court found
that the defendant “was not deprived of a substantial right” because he already had
presented “ample evidence . . . to place the witness . . . in his proper setting and
accurately to evaluate his credibility”]; People v. Castro (1979) 99 Cal.App.3d
191, 200–204 [defense sought the address of the prosecution’s witness for the
purpose of impeachment, but because the witness already had been impeached as a
drug addict, felon, and cheat, the court found that the defense had presented
“sufficient environmental background” to allow the jury to judge the witness’s
credibility].) “Numerous decisions handed down in the federal courts similarly
have held that where the identifying information, such as a witness’s true name
and address, was deemed to be inconsequential to material issues to be contested
at trial, nondisclosure was permissible on the basis that the lack of such
information did not prejudice the defense.” (Alvarado, supra, 23 Cal.4th at
p. 1143, fn. 10; see, e.g., United States v. Persico (2d Cir. 1970) 425 F.2d 1375,
1383–1384 [fear for the witnesses’ personal safety justified the trial court’s refusal
to disclose their correct address and place of employment, where the witnesses
were well known to the defense and the defense failed to demonstrate a
“particularized need” for the information]; United States v. Contreras (5th Cir.
1979) 602 F.2d 1237, 1239–1240 [reasonable concern for a Drug Enforcement

                                          80
Administration agent’s safety justified trial court’s refusal to require disclosure of
his home address where the defendant “had ample opportunity to place the witness
in his proper setting” and where nondisclosure of the address “could not have
prejudiced defendant”]; United States v. Avalos (5th Cir.1976) 541 F.2d 1100,
1117 [observing “that the Supreme Court . . . had established no hard and fast rule
regarding questions about [current] addresses,” and the defendants had failed to
show prejudice from the nondisclosure of such information involving two
government witnesses who had been placed in a witness protection program];
United States v. Crockett (5th Cir. 1975) 506 F.2d 759, 762–763 [government’s
strong basis for believing that its witnesses’ lives were in danger justified the trial
court’s order permitting nondisclosure of their residential addresses, and the
defendants demonstrated no prejudice].)
       In this case, competent evidence indicated that Conya L.’s life was at risk.
“[T]he state’s ability to afford protection to witnesses whose testimony is crucial
to the conduct of criminal proceedings is an absolutely essential element of the
criminal justice system” (Alvarado, supra, 23 Cal.4th at pp. 1149–1150), and
withholding certain information to protect Conya L.’s safety was therefore
justified as long as the trial court’s protective orders did not in fact “significantly
impair” defendant’s “ability to investigate or effectively cross-examine” Conya L.
(Id. at p. 1147). We find no such significant impairment in this case. Unlike in
Alvarado, in which the prosecution permanently concealed the identities of crucial
prosecution witnesses and allowed those witnesses to testify anonymously at trial
(id. at p. 1125), in this case only Conya L.’s then address was withheld from the
defense. Her name and identity were known to the defense seven years before
trial. (See People v. Valdez (2012) 55 Cal.4th 82, 108 (Valdez) [finding no
constitutional violation where, among other things, “the record [did] not support



                                           81
defendant’s assertion that the witnesses’ identities were unknown to the defense
until the moment the witnesses took the stand”].)
       Moreover, defendant does not argue that the prosecution withheld
information concerning where Conya L. had been living at the time the instant
offenses were committed. Information regarding where Conya L. had been living
at time of the subject crimes would surely have been more useful for the purpose
of gathering reputation evidence than information regarding the location of the
out-of-state community where Conya L. had lived for only a short period of time.
(See People v. Panah, supra, 35 Ca1.4th at p. 458 [“The trial court observed the
information about [the witness’s] reputation in her new community, in which she
had lived for only a brief time, was of minimal relevance, if any.”]; State v.
Novosel (1980) 120 N.H. 176, 184 [“[O]n direct examination, the defendant and
jury were told where the witness lived at the time of the offense. [Citation]. The
witness had moved to another state at the time of trial, but the likelihood that a
jury would be aided by the knowledge of what state, much less the precise city and
street, is tenuous at best.”].) Notably, defendant did not call any witness to testify
as to Conya L.’s reputation in the Southern California community where she had
lived when the crimes were committed. Defendant’s decision not to call any such
witnesses undermines his claim that reputation evidence was necessary to impeach
Conya L.’s testimony even after her credibility had been called into question by
other evidence.
       Further, as in Valdez, the record demonstrates that “the court’s protective
orders did not in fact ‘significantly impair’ defendant’s ‘ability to investigate or
effectively cross-examine’ ” Conya L. (Valdez, supra, 55 Cal.4th at p. 111.) As
noted, the preliminary hearing gave defense counsel the opportunity to cross-
examine Conya L. almost seven years before trial began. During pretrial
discovery, the defense was given access to Conya L.’s medical records and

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criminal history. During the trial, defense counsel impeached Conya L.’s
testimony by eliciting that she had lied on employment applications, fraudulently
used a Medi-Cal card, and willfully committed welfare fraud and perjury. Defense
counsel also took advantage of cross-examination to highlight inconsistencies in
Conya L.’s various accounts and to suggest that her identification of defendant
was suspect. Finally, during closing argument, defense counsel made an array of
arguments challenging Conya L.’s credibility.
       For the foregoing reasons, we reject defendant’s argument that the
prosecution’s nondisclosure of Conya L.’s current residential address prevented
him from meaningfully confronting and cross-examining Conya L. in violation of
the Sixth and Fourteenth Amendments.
       4.     Limitation on Cross–examination
       In a separate but related argument, defendant contends that the trial court
improperly limited defense counsel’s cross-examination of Conya L. during the
trial. Specifically, he maintains that the trial court prevented him from eliciting
the fact that there was a warrant for Conya L.’s arrest at the time the crimes were
committed and from inquiring as to whether Conya L. had the ability to pay a
court-ordered fine.
       Defendant’s arguments are without merit. When defense counsel indicated
that he wished to introduce evidence of the warrant to explain Conya L.’s absence
from the state, the trial court cautioned that the introduction of such evidence
would “open[] up some doors that you probably don’t want to open up” — i.e.,
further exploration of the death threats that Conya L. had received. Defense
counsel acknowledged the trial court’s warning and declined to ask Conya L.
about the warrant. Accordingly, defense counsel voluntarily elected not to
introduce evidence of the warrant. Defendant does not assert deficient



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performance by his counsel in this regard, and he presents no reason for us to
second-guess his trial counsel’s litigation decision.
       Defendant next asserts, without citation to the record, that Conya L. lied
about her ability to pay the court-ordered fine. The record indicates that defense
counsel intended to prove that Conya L. had lied about her ability to pay because
“she had $6,000 that she had gotten from the sale of [a] car . . . that she stuffed
into [a] vacuum cleaner bag.” Even assuming that this isolated fact, which had
already been presented to the jury in a different context, had marginal relevance to
Conya L.’s general financial condition, Conya L. had already admitted to failing to
report income under penalty of perjury. Evidence Code section 352 allows for the
exclusion of evidence “if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” A trial court’s decision to admit or exclude evidence
pursuant to Evidence Code section 352 “ ‘ “will not be disturbed on appeal unless
there is a manifest abuse of that discretion resulting in a miscarriage of justice.” ’ ”
(People v. Thomas (2011) 51 Cal.4th 449, 485, quoting People v. Cain (1995) 10
Cal.4th 1, 33.) The trial court did not abuse its discretion in concluding that
additional inquiry into Conya L.’s financial situation and her truthfulness
regarding that situation would “necessitate undue consumption of time” on a point
that was, at best, of marginal relevance.
E.     Introduction of Assertedly Prejudicial Evidence
       Defendant next argues that the prosecution introduced “inflammatory and
damning evidence” that compromised defendant’s “ability to receive a fair trial in
violation of the due process clause of the 14th Amendment.” Specifically, he
contends that the trial court improperly admitted evidence that Conya L. had



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received death threats and that defendant was a member of a gang. Neither of
these assertions is persuasive.
       1.      Death Threats
               a.     Factual Background
       Out of the presence of the jury, the prosecutor informed the trial court that
he intended to introduce evidence that Conya L. had received death threats. He
argued that such evidence would explain Conya L.’s inability to remember “minor
details” and allow the jury to accurately assess her demeanor. Defense counsel
objected to the introduction of this evidence, arguing (1) that the threats had been
made many years ago and no longer affected Conya L.’s demeanor, (2) that it was
unclear whether any threats had in fact been made, and (3) that such evidence
would be unduly prejudicial because the jury would be left with the impression
that the threats had originated from defendant.
       After hearing from both sides, the trial court ruled that it would allow a
“narrow” line of inquiry regarding whether Conya L. had received death threats,
so long as the threats were in no way attributed to defendant. The trial court found
that the evidence was relevant to assessing Conya L.’s testimony, reasoning: “I do
believe that a threat on somebody’s life, no matter who makes it, until there’s a
resolution of all the cases, that threat does [a]ffect one’s ability to recall. It
[a]ffects one’s ability to think about it. I think a death threat has a tremendous
impact on a witness’s demeanor, ability, especially with the facts that we know.”
The trial court further found that, pursuant to Evidence Code section 352, the
“probative value [of the evidence] outweigh[ed] [its] prejudicial effect.”
       During the prosecutor’s direct examination of Conya L., the prosecutor
elicited the following testimony:
       “Q: Now, is there another reason why you’re nervous about testifying in
this case?

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       “A: There’s been death threats.
       “Q: Okay. Over the last seven years have you received threats on your life?
       “A: Yes, I have.
       “Q: And have these threats gotten to you through third persons or
independent mediaries [sic]?
       “A: Yes, they have.
       “Q: And are you in fear for your life as you testify in this case?
       “A: Yes, I am.
       “Q: Does that fear also make it hard to remember exactly what happened
and what happened next?
       “A: Yes.”
       On cross-examination, Conya L. testified that none of the alleged threats
were received directly; rather, they were relayed to her by third parties:
       “Q: I believe you testified on direct that you had received death threats in
this case; is that correct?
       “A: That’s correct.
       “Q: Was this a threat that you had received . . . as through a third party;
correct?
       “A: Correct.
       “Q: You did not receive anything directly; correct?
       “A: That’s correct.
       “Q: And which individuals relayed this information to you?
       “A: One was relayed to me by Mr. Thompson, [Detective] Gary
Thompson.
       “Q: Was there any other threat?
       “A: Yes
       “Q: And who was that relayed to or relayed by?

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       “A: My sister.
       “Q: And was that Tanya?
       “A: Yes.
       “Q: Was there any other threat?
       “A: Yes.
       “Q: And who was — who relayed that to you?
       “A: The person begged me not to reveal their name.”
       After this testimony was elicited, defense counsel asked the trial court to
provide the jurors with the following instruction: “You have received evidence of
threats to a witness. If you believe that evidence to be true you must limit that
evidence solely to considering the effect on the demeanor of that witness. There is
no evidence that the defendant Robert Williams was responsible for those threats.”
The trial court expressed some concern that “the last sentence . . . sounds like I’m
making a comment on the evidence.” He therefore suggested that the parties
stipulate that no evidence had been introduced that the defendant had made any
death threats. Both parties agreed to this procedure, and defense counsel expressly
withdrew his prior request. Accordingly, the following stipulation was presented
to the jury: “There is no evidence that Robert Williams made a threat to any
witness in this case.”
               b.     Analysis
       “Evidence a witness is afraid to testify is relevant to the credibility of that
witness and is therefore admissible.” (Evid. Code, § 780.) “Testimony a witness
is fearful of retaliation similarly relates to that witness’s credibility and is also
admissible. [Citation.] It is not necessary to show threats against the witness were
made by the defendant personally, or the witness’s fear of retaliation is directly
linked to the defendant for the evidence to be admissible.” (People v. Sanchez
(1997) 58 Cal.App.4th 1435, 1449; see also People v. Gonzalez (2006) 38 Cal.4th

                                           87
932, 946 [“ ‘An explanation of the basis for the witness’s fear is likewise relevant
to her credibility and is well within the discretion of the trial court.’ ”].) The trial
court therefore correctly found that this evidence was relevant and admissible,
subject to a balancing of its probative value and prejudicial effect under Evidence
Code section 352.
       As noted, Evidence Code section 352 provides that “[t]he court in its
discretion may exclude evidence if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “ ‘The “prejudice” referred to in Evidence Code section
352 applies to evidence which uniquely tends to evoke an emotional bias against
defendant as an individual and which has very little effect on the issues. In
applying section 352, “prejudicial” is not synonymous with “damaging.” ’ ”
(People v. Bolin (1998) 18 Cal.4th 297, 320.) “[T]he trial court enjoys broad
discretion in assessing whether the probative value of particular evidence is
outweighed by concerns of undue prejudice, confusion or consumption of time.
[Citation.] Where, as here, a discretionary power is statutorily vested in the trial
court, its exercise of that discretion ‘must not be disturbed on appeal except on a
showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of justice.
[Citations.]’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
       Applying this standard, we find no abuse of discretion. The trial court
appropriately found that the evidence was probative in that it would allow the jury
to accurately assess the credibility of the prosecution’s central witness. The trial
court limited any potentially prejudicial effect by allowing only a “narrow” line of
inquiry regarding whether Conya L. had received threats and by admonishing the
prosecutor to make clear that the threats were not attributable to the defendant.

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The parties also stipulated that “[t]here [was] no evidence that [defendant] made a
threat to any witness in this case.”
       Relatedly, defendant argues that the trial court erred in failing to give
defendant’s proposed limiting instruction to the jury. Evidence Code section 355
provides that “[w]hen evidence is admissible as to one party or for one purpose
and is inadmissible as to another party or for another purpose, the court upon
request shall restrict the evidence to its proper scope and instruct the jury
accordingly.” (Italics added.) In this case, although defense counsel initially
requested a limiting instruction, he expressly withdrew his request and agreed with
the trial court’s suggestion that the parties instead stipulate that there was no
evidence defendant had made any threats to any witness. Because defendant
withdrew his request for a limiting instruction, he cannot now complain of the trial
court’s failure to give a specific and particularized instruction that the evidence
could be considered only for a limited purpose.
       Additionally, even if defendant had maintained such a request and the trial
court had erred by refusing to give the instruction, any error would have been
harmless because it is not reasonably probable that defendant would have obtained
a more favorable result had the instruction been given. (People v. Miranda (1987)
44 Cal.3d 57, 83.) By stipulation, the jury was informed that there was “no
evidence” that defendant had threatened any witness in the case. The jury was
instructed that it was required to accept this stipulation “as proven,” and we
presume that the jurors followed the trial court’s instructions. (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 292.) Accordingly, we presume that the jurors
did not improperly consider Conya L.’s testimony as evidence that defendant
made any threats to any witness in the case.




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       2.      Gang Affiliation
       Defendant contends that evidence of defendant’s “gang affiliation” was
introduced to the jury “for no other reason than to taint [defendant] as a violent
and dangerous man in the minds of the jurors.” He argues that evidence of a
defendant’s criminal disposition is inadmissible to prove he committed a specific
criminal act. (Evid. Code § 1101; see also People v. Ruiz (1998) 62 Cal.App.4th
234, 240 [“[E]vidence of gang membership should be excluded if the evidence is
only relevant to prove a defendant’s criminal disposition.”].)
       The record belies defendant’s factual assertion that the prosecution
introduced evidence of defendant’s gang affiliation. As noted, witness Robert
Scott testified for the prosecution. Scott testified that two weeks before the
murders of Gary and Roscoe, defendant pressed a gun into Gary’s neck and
threatened that he would kill Scott, Gary, and Gary’s family unless Gary turned
over a portion of the proceeds from his bank robberies to defendant. On cross-
examination, defense counsel elicited that Gary and Scott robbed “federal credit
unions with loaded guns.” On redirect, the prosecutor asked Scott why he was
afraid of defendant when he himself was a bank robber with access to guns. At
this point, the trial court called a recess.
       Outside the presence of the jury, the prosecutor represented to the trial court
that Scott was afraid of defendant because he believed defendant was a “gangster.”
The prosecutor agreed that any suggestion that defendant was a “gangster” or a
member of a “gang” would be more prejudicial than probative. He argued,
however, that Scott’s fear of defendant was relevant to the jury’s assessment of
Scott’s demeanor and credibility, especially with respect Scott’s claim that he and
Gary had committed their most recent robbery in response to defendant’s threat.
He therefore suggested that Scott could explain his fear of defendant by testifying
that he understood defendant to be a person willing to “jack” people, or a “jacker.”

                                               90
Defense counsel objected that this evidence would be hearsay and unduly
prejudicial.
       Pursuant to Evidence Code section 352, the trial court ruled that the
probative value of referring to defendant as a “jacker” outweighed its prejudicial
effect, with “the admonition that it’s not being offered for the truth of the matter,
but only as to the state of mind of this witness . . . .”
       After the jury reentered the courtroom, the following testimony was
introduced:
       “Q: Mr. Scott, . . . [w]hy were you so scared of this guy?
       “A: Because he was a jacker. He — he was crazy, you know.
       “. . . .
       “Q: Okay. When you use the term “jacker,” do I understand correctly . . . ,
in your opinion — this is just limited to your opinion, not for the truth of the
matter — that he was somebody who would just rip off anybody?
       “A: He would jack anybody —
       “Q: Okay.
       “A: — for anything.
       “Q: Okay. That was your opinion?
       “A: Yes, sir.
       “THE COURT: I’m going to admonish the jury that there statements and
the opinions by Mr. Scott of Mr. Williams are only being offered to show Mr.
Scott’s state of mind, and they are not to be considered for any truth of the matter
that might be in the opinion. [¶] Is that satisfactory, gentlemen?
       “MR. CORMICLE: Yes, your Honor.
       “MR. RUIZ: Yes, Judge.”
       Defendant argues that it was clear from this testimony that “Scott was using
the term ‘jacker’ as a substitute for gangster.” But there is no reason to believe

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that the jury would have understood Scott’s fleeting mention of the word “jacker,”
which was defined as someone who would “just rip off anybody,” to mean that
defendant was a member of a gang. Accordingly, defendant’s argument that the
trial court improperly admitted evidence that defendant was member of a gang is
without merit.
F.     Prosecutorial Misconduct
       Defendant claims that “[i]n his zealousness to convict and garner a death
verdict for [defendant], Prosecutor Ruiz lost sight of the ethical responsibilities
every prosecutor owes to the accused.” He asserts six specific claims of
misconduct. “First, . . . there were systematic obstructions in discovery. Second,
Ruiz interfered with the appointment of defense counsel. Third, Ruiz delayed in
relaying information regarding an informant that created a conflict and caused the
Public Defender to withdraw, thus significantly delaying the onset of trial and
forcing one of several changes in representation for [defendant]. Fourth, he
offered a disingenuous argument which resulted in the termination of Robert's self
representation. Fifth, he misrepresented that Robert’s clothing was missing and
then misrepresented the testing of the clothing. Finally, Ruiz insisted that the trial
go forth knowing that there was still third party culpability evidence that had not
been disclosed.” Defendant contends that the “cumulative impact of these
instances of misconduct so permeated the pretrial as to deny Robert Williams a
fair trial and due process under the Fourteenth Amendment.”
       “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] Under California law, a
prosecutor who uses deceptive or reprehensible methods of persuasion commits
misconduct even if such actions do not render the trial fundamentally unfair.
[Citation.] Generally, a claim of prosecutorial misconduct is not cognizable on

                                          92
appeal unless the defendant made a timely objection and requested an admonition.
[Citation.]” (People v. Doolin (2009) 45 Cal.4th 390, 444.) “In order to be
entitled to relief under federal law, defendant must show that the challenged
conduct was not harmless beyond a reasonable doubt.” (People v. Blacksher
(2011) 52 Cal.4th 769, 828, fn. 35.)
       Defendant’s first claim of prosecutorial misconduct is premised on his
contention that the prosecution violated its Brady obligations and that the
prosecution’s withholding of Conya L.’s address violated defendant’s rights under
the Penal Code and the United States Constitution. Because we have already
rejected these claims (ante, at pp. 73–85), defendant’s first claim of prosecutorial
misconduct also fails.
       Second, defendant claims that the prosecutor committed misconduct by
“interfering with the appointment of defense counsel.” However, the incident to
which defendant refers involved the prosecutor’s attempt to secure replacement
counsel for codefendant Walker. After Walker’s first counsel withdrew from the
case, the prosecutor attempted to find Walker a replacement attorney who could be
ready for trial in less than a year. Because the prosecutor’s alleged “interference”
had nothing to do with defendant or his counsel, it is not relevant to this appeal
       Third, defendant claims the prosecutor delayed in relaying information that
revealed a conflict of interest between the public defender’s office and defendant.
On April 3, 1998, the public defender’s office declared a conflict with defendant.
A representative of the public defender’s office, Attorney Floyd Zagorsky,
indicated that the conflict was “a result . . . of information that we received
recently from the prosecution . . . we felt should have been provided much earlier
in the case.” However, he did not explain this assertion, stating: “I’m not at
liberty to divulge, obviously, what the nature of the conflict is.” He later repeated:
“Again, I do not believe that I can discuss the nature of any information that

                                          93
relates to this conflict.” In the absence of any other evidence in the record, the
unexplained assertion by a representative of the public defender’s office is
insufficient to show misconduct by the prosecution.
       Fourth, defendant maintains that the prosecutor acted improperly by
arguing that defendant’s Faretta status should be revoked because he was engaged
in delay tactics. But the trial court agreed with the prosecutor, and we have
determined that the trial court did not abuse its discretion in revoking defendant’s
Faretta status on that basis. (Ante, at pp. 64–67.)
       Fifth, defendant contends that the prosecutor “misrepresented critical
evidence to the court.” Specifically, he takes issue with the prosecutor’s
representation that he had a tape recording of Walker stating that he had been with
“Robert Williams” on the night of the murders, when in fact Walker had said only
that he had been with “Rob” that night. Defendant fails to explain how the
prosecutor’s inference that the “Rob” to whom Walker referred in the tape was
“Robert Williams” constitutes prosecutorial misconduct. Moreover, contrary to
defendant’s suggestion, the trial court was not misled by the prosecutor’s
statement because it was independently familiar with the tape. The prosecutor was
similarly imprecise in summarizing other portions of the tape (e.g., the prosecutor
referred to “bloody clothing” when the tape referred only to “clothing”), but again
the trial court was independently familiar with the tape and reasonably concluded
that any errors in description were unintentional. Defendant also highlights the
prosecutor’s inaccurate representation that no tests had been performed on the
clothing that defendant had been wearing at the time of his arrest in Las Vegas.
Twenty days later, however, the prosecutor corrected this representation and
produced the results of the tests. These errors, which were later corrected, do not
rise to the level of misconduct.



                                          94
       Sixth, defendant argues that the prosecutor “delayed disclosing third-party
culpability evidence that many of Gary Williams’s former associates had a motive
to harm [Gary] and then compounded the error” by opposing defendant’s many
continuance requests. As previously noted, however, the prosecution disclosed the
critical facts regarding Gary’s criminal history at the outset of the case, and
defendant’s final defense counsel was granted three separate continuances to
conduct additional investigation into his theory of third-party culpability. (Ante, at
pp. 70–71.)
       In sum, none of the prosecutor’s actions, either singly or in combination,
constitutes misconduct.
G.     Jury Issues
       1.     Excusal of Prospective Jurors for Cause
       Defendant contends that the trial court violated his right to an impartial jury
under the federal Constitution by erroneously excusing Prospective Jurors D.W.
and E.W. for cause because of their views on the death penalty. (Wainwright v.
Witt (1985) 469 U.S. 412, 424 (Witt); People v. Moon (2005) 37 Cal.4th 1, 13.)
“A prospective juror may be challenged for cause based upon his or her views
regarding capital punishment only if those views would ‘ “prevent or substantially
impair” ’ the performance of the juror’s duties as defined by the court’s
instructions and the juror’s oath.” (People v. Cunningham (2001) 25 Cal.4th 926,
975, quoting Witt, 469 U.S. at p. 424.) “When the prospective juror’s answers on
voir dire are conflicting or equivocal, the trial court’s findings as to the
prospective juror’s state of mind are binding on appellate courts if supported by
substantial evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10 (Duenas).)
              a.      Prospective Juror D.W.
       On his juror questionnaire, Prospective Juror D.W. affirmed that he had
“philosophical, religious or moral feelings that would make it difficult or

                                           95
impossible for [him] to sit in judgment of another person.” When the trial court
asked him to expand on this response, D.W. stated: “I want to explain that I am
really against the state taking the life of another person.” The trial court then
asked D.W. “if the evidence, everything and the aggravating factors are
overwhelmingly pointing toward the death penalty, would you be able to vote for
death?” D.W. replied: “You know, the only thing that I can say, like, I don’t
know. And it’s, like, an emotional thing but also a philosophical thing. If it’s a
heinous crime, probably. I don’t know. But I can’t just –– put it in cement and
say yes or no.”
       During voir dire, the prosecutor asked all of the prospective jurors to “nod”
if they could offer him the assurance that during the guilt phase of the trial they
would be able to follow the law and put aside considerations of “punishment” or
“sympathy.” The prosecutor stated that should any prospective juror fail to nod,
he “would know you don’t want to go through that.” As to D.W., the prosecutor
noted: “I didn’t see you nod your head. Okay.” The prosecutor then asked:
“[D.W.], can you give us assurance that you would do that [sentence a man to
death], if you feel it is warranted under the facts and the law?” D.W. replied: “I
can’t give you an answer, but most likely I could if it’s a heinous crime.”
       The prosecutor challenged D.W. for cause, citing D.W.’s uncertainty about
being able to follow the law if it conflicted with his morals. The prosecutor also
noted that he was troubled that D.W. had written “not applicable” in response to
questions asking him to describe his feelings regarding how “African Americans
are treated by the criminal justice system” and to give his views concerning “the
three most important problems with the criminal justice system.”
       In considering the prosecution’s challenge, the trial court stated: “He . . .
said, in answer to your direct question, ‘Could you do it?’ and he hesitated very
long. And he did not ever say yes. I want to say he said no. But I can’t be that

                                          96
bold, but I think he said no. It certainly was not a yes . . . .” The trial court then
solicited the views of defense counsel, who replied: “Submit it, your honor.” The
trial court then ruled: “I’m going to grant [the prosecution’s challenge for cause]
as to [D.W.]. I think the law is very clear, that based upon a properly phrased
question, if the person cannot say that they would be able to vote for death, that
that would be proper grounds for challenge for cause.”
              b.      Prospective Juror E.W.
       On her juror questionnaire, Prospective Juror E.W. was asked to describe
her “general feelings regarding the death penalty.” E.W. responded: “I don’t want
to sentence anyone to death. If convicted of a serious crime, I think they should be
sentenced for the rest of their life without parole.” In response to a separate
question, E.W. indicated that her religious group “does not advocate death” and
that she was not interested in “condemn[ing] anybody to death.” She explained:
“I don’t want to be in conflict with my spiritual beliefs. I don’t want to have to
agonize over whether I did something against God and his teaching.” E.W. further
stated that her views were premised on her “religious conviction[s]” and that she
would “always vote for life without possibility of parole” over death.
       When the trial court asked her to elaborate on her responses, E.W. stated:
“I thought about it. I would be able to vote for the death penalty . . . . I don’t want
to condemn anybody to death, but if the evidence is overwhelming, as you say,
and that has to be the sentence, then so be it.” She agreed that imposing death
would create a “conflict” with her God and spiritual beliefs, but indicated that she
felt she could “go ahead and vote for [death]” if required. She would deal with the
conflict by “ask[ing] God to forgive” her.
       During voir dire, the prosecutor asked E.W. to ask herself: “Do I trust this
legal system enough to be able to say I can make a life or death sentence either
way following the laws I’m given by this system, and mean it for both sides? I

                                           97
want you to think about that. [E.W.]?” E.W. responded: “Yes.” Inquiring further
into the conflict E.W. had described between her spiritual beliefs and her ability to
impose a death sentence, the prosecutor asked: “[E.W.], I want you to think about
this. Do you really want to find yourself asking those questions when that man’s
life hangs in the balance? And you know that if you don’t vote for death, there
will not be a death verdict in this case. Do you really want that kind of conflict
and pressure in your life?” E.W. responded: “No, I do not.” The prosecutor then
asked: “[E.W.], can you come in here and sentence this man to death, if you feel
it’s warranted?” E.W. responded: “I believe I would have a difficult time.”
       The prosecutor challenged E.W. for cause, stating that she should be
excused for her views on the death penalty because she “didn’t think that [she]
could do it.” Asked for his views, defense counsel replied: “I’ll submit it, your
Honor.” The trial court then dismissed E.W., stating: “[B]oth [E.W. and another
prospective juror] gave, and in answer to the direct question, could you do it
[sentence someone to death], answer to the direct question they both said no.”
              c.      Analysis
       When asked to respond to the prosecutor’s for-cause challenges, defense
counsel submitted the question to the trial court. “ ‘Hence, as a practical matter,
he “did not object to the court’s excusing the juror[s], but . . . also refused to
stipulate to it.” [Citation.] Although “this failure to object does not forfeit the
right to raise the issue on appeal, . . . it does suggest counsel concurred in the
assessment that the juror[s] [were] excusable.” ’ ” (People v. Hawthorne (2009)
46 Cal.4th 67, 82; see Witt, supra, 469 U.S. at pp. 434–435 [in light of counsel’s
failure to question the prospective juror or object to her excusal for cause, “it
seems that . . . no one in the courtroom questioned the fact that her beliefs
prevented her from sitting”]; People v. Schmeck (2005) 37 Cal.4th 240, 262
(Schmeck).)

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       Moreover, substantial evidence supports the trial court’s finding that, based
upon their demeanor and responses, the views of Prospective Jurors D.W. and
E.W. would prevent or substantially impair the performance of their duties.
(Schmeck, supra, 37 Cal.4th at p. 262.) Both jurors indicated at various times that,
in light of their views concerning capital punishment, they would be unable to
consider the death penalty as a reasonable possibility. (Ibid.) On his
questionnaire, D.W. affirmed that he had “philosophical, religious or moral
feelings that would make it difficult or impossible for [him] to sit in judgment of
another person.” During voir dire, he was unable to say if he would be able to
vote for death even “if the evidence . . . and the aggravating factors are
overwhelmingly pointing toward the death penalty.” On her questionnaire, E.W.
indicated that she would “always vote for life without possibility of parole” over
death. During voir dire, E.W. could not affirm she was capable of imposing a
death sentence even if she believed “it’s warranted.” Although defendant is
correct that at times each prospective juror gave equivocal or conflicting
responses, under such circumstances the trial court’s determination as to the
juror’s actual state of mind is binding if supported by substantial evidence.
(Duenas, supra, 55 Cal.4th at p. 10.) After giving appropriate deference to the
trial court’s determination regarding the state of mind of these prospective jurors,
we find the trial court’s ruling fairly supported by the record and conclude that the
trial court did not err in excusing Prospective Jurors D.W. and E.W. for cause.
       2.     Wheeler/Batson Claim
       Defendant, who is African American, contends that the prosecutor
improperly exercised peremptory challenges against three African American
prospective jurors for racial reasons.




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              a.     Procedural Background
       Voir dire began on July 22, 2002. Following dismissals for hardship, 103
prospective jurors remained. The parties then stipulated to the dismissal of a
number of jurors for cause, leaving 70 prospective jurors in the pool. These jurors
were then examined in groups of 24.
       With respect to the initial group of prospective jurors, defense counsel
successfully challenged three for cause. The prosecutor then challenged four
prospective jurors for cause: D.W., R.A., E.W., and J.M. The trial court excused
all of these individuals with the exception of J.M., an African American.
       Following the for-cause dismissals, the trial court and the parties agreed to
litigate any peremptory challenges to African American prospective jurors outside
the presence of the jury. It was further agreed that defense counsel would not be
required to make a prima facie showing of discrimination and that the prosecutor
would simply state his reasons supporting each challenge.
       The prosecutor indicated he would be challenging Prospective Juror C.H.
and explained his reasons for doing so. Defense counsel then made a Wheeler
motion, which the trial court denied. The prosecutor also indicated that he
anticipated asserting a peremptory challenge against J.M. Defense counsel made a
Wheeler motion as to J.M. The trial court noted that the prosecutor had already
voiced his concerns with respect to J.M. during his for-cause challenge, and stated:
“[T]here are more race neutral reasons to challenge [J.M.] that we went over on
the challenge for cause than there is on [C.H.]. [¶] So I would deny the motion for
him also.” Because the prosecution had not yet asserted a peremptory challenge
against J.M., however, the trial court clarified that if such a challenge were made,
“the record is clear that Mr. Cormicle has made a Wheeler motion, and that it’s
been heard, and the Court will deem that motion being timely, even though it was
premature.”

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       After questioning the second group of 24 jurors, the prosecutor indicated
that he anticipated utilizing a peremptory challenge against Prospective Juror S.F.,
an African American. The prosecutor explained his reasons for the challenge, and
defense counsel made a Wheeler motion. The motion was denied. The trial court
then mentioned J.M., at which point the parties and the trial court agreed that the
challenge to J.M. had already been resolved.
       The prosecutor declined to exercise any peremptory challenges against two
other African American prospective jurors. During subsequent rounds of
challenges, the prosecutor passed and accepted the panel six separate times with
those two jurors seated. The jury ultimately selected included two African
American jurors and one African American alternate juror.
              b.      Analysis
       The prosecution’s use of peremptory challenges to remove prospective
jurors based on group bias, such as race or ethnicity, violates a defendant’s right to
equal protection under the Fourteenth Amendment to the United States
Constitution and his right to trial by a jury drawn from a representative cross-
section of the community under article I, section 16 of the California Constitution.
(Batson v. Kentucky (1986) 476 U.S. 79, 97 (Batson); People v. Wheeler (1978) 22
Cal.3d 258, 276–277 (Wheeler).)
       “The three-step inquiry governing Wheeler/Batson claims is well
established.” (People v. Lomax, supra, 49 Cal.4th at p. 569.) “First, the defendant
must make out a prima facie case ‘by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once
the defendant has made out a prima facie case, the ‘burden shifts to the State to
explain adequately the racial exclusion’ by offering permissible race-neutral
justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is
tendered, the trial court must then decide . . . whether the opponent of the strike

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has proved purposeful racial discrimination.’ ” (Johnson v. California (2005) 545
U.S. 162, 168 (Johnson).) In order to prevail, the defendant must show that “it
was more likely than not that the challenge was improperly motivated.” (Id. at
p. 170.)
       In this case, the trial court did not require defendant to establish a prima
facie case and instead simply requested the prosecutor’s reasons for the
peremptory challenges and ruled on the ultimate question of intentional
discrimination. Thus, the question of whether defendant established a prima facie
case is moot. (People v. Lenix (2008) 44 Cal.4th 602, 613, fn. 8 (Lenix).)
“Accordingly, we focus on the third Wheeler/Batson prong and examine whether
the African American panelists were excused due to intentional discrimination.”
(People v. Lomax, supra, 49 Cal.4th at p. 570.) “ ‘At the third stage of the
Wheeler/Batson inquiry, “the issue comes down to whether the trial court finds the
prosecutor’s race-neutral explanations to be credible. Credibility can be measured
by, among other factors, the prosecutor’s demeanor; by how reasonable, or how
improbable, the explanations are; and by whether the proffered rationale has some
basis in accepted trial strategy.” ’ ” (People v. Jones (2011) 51 Cal.4th 346, 360.)
       We have stated that “[r]eview of a trial court’s denial of a Wheeler/Batson
motion is deferential, examining only whether substantial evidence supports its
conclusions. [Citation.] ‘We review a trial court’s determination regarding the
sufficiency of a prosecutor’s justifications for exercising peremptory challenges
“ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great deference to the
trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.]
So long as the trial court makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are entitled to deference
on appeal. [Citation.]’ ” (Lenix, supra, 44 Cal.4th at pp. 613–614.)

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              (1)    Prospective Juror C.H.
       Prospective Juror C.H. initially failed to fill out several pages of his
questionnaire; the trial court therefore returned the form to allow C.H. to complete
it. In response to question 27, which asked whether the prospective juror had any
friends or relatives who had been arrested or charged with a crime, C.H. indicated
that he had an uncle who had been convicted of drug charges and was sentenced to
five years in prison. In response to question 66, which asked how African
Americans are treated by the criminal justice system, C.H. wrote, “unfairly and
unjust.” Similarly, in response to question 66B, when asked whether African
Americans “are treated fairly in our courts,” C.H. answered, “Rarely.” In response
to question 74, which asked whether any member of the prospective juror’s family
had died from unnatural causes, C.H. indicated that his uncle had been murdered.
In response to question 82B, which asked whether he would be able to follow the
law requiring him to consider all aggravating and mitigating factors before
determining the appropriate sentence, C.H. checked, “No.” C.H. also wrote “N/A”
in response to several questions, including question 78A (“What are your
GENERAL FEELINGS regarding the death penalty”), question 78B (“What are
your GENERAL FEELINGS regarding life in prison without the possibility of
parole?”), question 79A (“Do you feel that the death penalty is used . . .” “Too
often,” “Too seldom,” or “About right”?), and question 86 (“What are your
impressions of life in prison without the possibility of parole as a punishment for
murder?”). When asked which adjective most accurately described his philosophy
regarding the death penalty, C.H. marked, “[n]eutral.”
       During voir dire, C.H. indicated that he had been confused when he
answered “no” to question 82B. When asked to explain why he felt African
Americans were treated unjustly by the criminal system, C.H. responded: “Family
history, that’s about it. . . . Uncles and, like, cousins were unjustly prosecuted.

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That’s it.” Upon further questioning from the trial court, C.H. acknowledged that
he did not know whether his relatives actually had been unjustly treated or
whether they merely felt they had been mistreated.
       In explaining his reasons for exercising a peremptory challenge against
C.H., the prosecutor stated that he used a “three strikes system.” “If an individual
hits what I think are three negative answers, regardless of race, the three strikes
and you’re out, basically are the wisdom of my approach.” According to the
prosecutor, C.H. had accumulated the following “strikes”: (1) he had an uncle in
prison for drug charges; (2) he believed African Americans were “rarely” treated
“fairly” in the court system; (3) he believed his relatives had been unjustly
prosecuted; (4) his uncle had been murdered (the prosecutor explained that this
reason was not one of his strikes, but noted that “that is a question”); (5) he
answered “not applicable” in response to various questions about the death
penalty; and (6) he initially failed to answer question 82A, which asked whether
he would be able to fairly consider all the evidence presented during the penalty
phase. The prosecutor stated that C.H.’s failure to answer that question was
particularly important, explaining that question 82A was “the acid test question for
me. . . . He just refused to answer that.” The prosecutor noted that C.H. had
“bagged [sic] off a little bit” on his views about the fairness of the justice system
during voir dire, but explained that “[a]s a prosecutor on a death penalty case, I
cannot take that kind of chance and have a loaded gun up there like that.”
       Defense counsel responded as follows: “I’m not sure how much
importance we should give to the lack of answers on those series of questions the
first time around. He did fill it out a second time around. [¶] And they seemed
fairly neutral, but he did get around to filling those out. Secondly, his explanation
as to why he would say unfairly and unjustly prosecuted once, he realized his error
of his own analysis, which was just relying on the word of his relatives as opposed

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to really thinking about was there something there live, any proof? [¶] . . . I think
he did come to realization that his initial position was erroneous, that he should
not have made such a blanket statement without actually having analyzed the
circumstance of those statements that were made about his relatives.
       “With respect to the relative that is in prison, I think we have other people
is this that [sic] shake out differently. I’m not sure Mr. Ruiz will challenge those
people as well. I’m not sure that that that necessarily throws him in any special
category. [¶] I think we have [another juror] with a brother-in-law on death row in
North Carolina. . . . [¶] And with regard to having an uncle that I believe was
murdered, again I believe that there’s several people on this jury panel that have
been victims of crimes or have relatives that are victims of crimes. [¶] . . . I’m not
sure that that would justify the challenge that the prosecutor is urging is race
neutral.”
       The trial court then ruled as follows: “I’ve listened to Mr. Ruiz’s reasons.
Let me start out with saying I agree with Mr. Cormicle that [C.H.] did, in fact,
change his answers in light of my questioning of him, that especially about the
uncles and the cousins. That is the part that really stuck in my mind, that he said,
no, that it was word of mouth from them. [¶] . . . [¶] Now unfortunately, at this
point, . . . let’s see if [other prospective jurors] meet the same three tests Mr. Ruiz
uses, the same thought process on a caucasion, for instance. I don’t know that
answer. [¶] But I think these reasons are good enough to defend against a Wheeler
motion. And I would deny the Wheeler motion, with that caveat that I’m kind of
operating in the blind here. But I would expect Mr. Ruiz to use the same standards
on evaluating a caucasion speculative juror as he does [C.H.]. [¶] . . . I’m going to
have to deny it based upon what I have at this point.”
       Further, the trial court said to the prosecutor: “[P]art of my decision was
made on the idea that you said you’re using the three strikes. My reference to

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using the same standard on a caucasion is if you get a caucasion that’s got the
three — or fails the three strikes test, are you going to use the same judgment on
that person? That is where I’m in the dark at this point because I don’t know. [¶]
. . . [¶] . . . I’m going to assume that the lawyers are upfront with me — [¶] . . . [¶]
— until they prove that they can’t be trusted. And so, therefore, you get the
benefit of the doubt . . . .”
       In the trial court, defendant did not later renew his Batson/Wheeler
challenge to the strike of C.H. based on the prosecutor’s subsequent decisions to
strike or not strike prospective jurors based on his “three strikes system.” In this
appeal, defendant argues that the prosecutor’s stated reasons were insufficient to
justify striking Prospective Juror C.H. We disagree.
       On this record, we find that the trial court made “ ‘a sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered’ ” and thus “ ‘its
conclusions are entitled to deference on appeal.’ ” (Lenix, supra, 44 Cal.4th at
p. 614.) The trial court indicated that it listened to the prosecutor’s stated reasons
and defense counsel’s response, and it did not indiscriminately accept the
prosecutor’s reasons. Instead, the trial court said it agreed with defense counsel
that during voir dire C.H. had changed his answer about the fairness of the justice
system upon realizing he lacked substantiation for his earlier concern about unjust
prosecution of his uncles and cousins. Presumably, then, the trial court viewed
with some skepticism the prosecutor’s reliance on C.H.’s views about the fairness
of the justice system. As for the prosecutor’s reliance on a “three strikes system,”
the trial court ultimately told the prosecutor “you get the benefit of the doubt,” but
not before putting the prosecutor on notice that it “would expect [the prosecutor]
to use the same standards on evaluating a caucasion” and expressing caution that,
at this early stage of the peremptory strikes, it did not know one way or the other
whether the prosecutor would apply the system consistently. Further, the record

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supports the prosecutor’s statements that C.H. had an uncle in prison for drug
charges, that C.H. indicated on his juror questionnaire that he believed African
Americans were “rarely” treated “fairly” in the court system, and that C.H.
answered “not applicable” to various questions about the death penalty. Defense
counsel, while mentioning other jurors with some individual attributes similar to
C.H.’s, did not later contend that the prosecutor applied the “three strikes system”
inconsistently. In sum, the record shows that the trial court, through a sincere and
reasoned effort to evaluate the prosecutor’s stated reasons, determined that
defendant had not shown it was more likely than not that the reasons were
pretextual, and substantial evidence supports the trial court’s determination.
              (2)    Prospective Juror S.F.
       On his questionnaire, Prospective Juror S.F. indicated that his cousin had
been convicted of discharging a weapon in public. He noted that he and his
relatives had been victims of serious crimes (three of his cousins had been
murdered) and that the response of the judicial system and law enforcement was
“not good enough” because “nothing was done.” When asked about his opinion of
the judicial system, S.F. responded that “[i]t needs work.” In response to question
38, which asked “what are the three (3) most important problems in the current
criminal justice system,” S.F. wrote, “Corrupt police, money buys everything,
laws.” S.F. reported that he had been “jumped” by individuals of another race and
that the experience had made him dislike that race, but he also indicated that he
was “over that now.” He also reported that he had been harassed by three police
officers. In response to question 66, which asked how African Americans are
treated by the criminal justice system, S.F. wrote, “We are treated worse than any
other race.” He wrote that “African Americans have never been treated on equal
ground” and indicated that they are rarely treated fairly in the courts. When asked
to describe his general feelings regarding the death penalty, S.F. wrote, “I am not

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for the death penalty; because, whether guilty or innocent your life is in someone
else’s hands.” He indicated that the death penalty is used “[t]oo often” and wrote
that “[t]oo many people innocent to have the death penalty.” He described himself
as “[s]trongly against” the death penalty, writing, “I believe God is the only one to
decide what to do with life.” He added, however, that his opinions would not
make it difficult for him to vote for the death penalty because “God says to live by
the laws of the land,” and “I don’t feel an innocent or guilty man’s blood will be
on my hands.” When asked if there were any aggravating or mitigating factors he
would refuse to consider during the penalty phase of the trial, S.F. indicated that
he would refuse to consider the age of the defendant at the time of the crime and
whether the defendant was an accomplice to the offense.
       During voir dire, the trial court asked S.F. why he wrote on his
questionnaire that he believed the death penalty was used “too often.” S.F.
answered, “Well, I feel that in a lot of situations the death penalty isn’t necessary.
And there have been mistakes made where people have been put on death row,
and they found out that that person was not guilty. And I think that if there is an
option of putting someone in prison without parole, that’s a better opinion.”
Asked to elaborate, S.F. said that “my religious belief is that I should abide by the
laws of the land. If the laws of the land are for me to choose the death penalty,
and there’s not other options, then I have no other options, I have to choose the
death penalty. [¶] But if I have an option, then I would rather choose life in
prison.” When asked about his perception that African Americans are treated
unfairly by the criminal justice system, S.F. clarified that he was referring to the
“life that African Americans had to go through in the 60s and 50s and 70s,” and
noted that “[i]t’s not as bad now.”
       In exercising a peremptory challenge against S.F., the prosecutor explained
that S.F. was “strong antideath penalty.” He added: “And there are other reasons

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that I think are valid as to [S.F.], the anti law enforcement, biased, the anti court
system bias, when it comes to treatment of African Americans.” The trial court
agreed, explaining, “As to [S.F.], I believe that he — the same standard that you
have used on non black, specifically, white jurors, that he is — he comes in with a
bias against law enforcement and against the court system, as it pertains to fair
treatment for African Americans. And he has a strong antideath penalty
[perspective], even though he said he could vote for the death penalty in a certain
case. All of his other answers say that that was really truly stretching it for him.”
       Substantial evidence supports the trial court’s reasoned assessment. S.F.’s
written and verbal responses indicated that he strongly opposed the death penalty.
S.F. also believed African Americans were treated unfairly by the criminal justice
system (at least historically), and he expressed a degree of mistrust of the judicial
system and law enforcement; the prosecutor could legitimately excuse him for
those reasons. Accordingly, we affirm the trial court’s ruling.
              (3)     Prospective Juror J.M.
       Defendant argues that the prosecutor improperly struck prospective juror
J.M. As an initial matter, the Attorney General contends, without citation to the
record, that “[defendant’s] complaint on appeal regarding Prospective Juror [J.M.]
is specious since, contrary to [defendant’s] assertion [citation], the record reflects
that the prosecutor never even exercised a peremptory challenge against
Prospective Juror [J.M.].” But this is simply incorrect. The record clearly shows
that J.M. was dismissed on July 24, 2002, the day after the court preemptively
ruled that it would deny defendant’s Batson/Wheeler motion if jury selection got
as far as J.M. and if the prosecutor struck J.M.
       On the merits, defendant’s claim with respect to J.M. fails. In his
questionnaire, J.M. indicated that he had served on a jury before and “didn’t like
it” because the “defense lawyer did a poor job.” He reported that his mother and

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sister had been victims of crime and that the response of law enforcement to both
incidents had been “poor.” When asked about his opinion of the judicial system,
he responded that “it doesn’t always lead to justice.” In response to question 38,
which asked “what are the three (3) most important problems in the current
criminal justice system,” he wrote, “Prosecutors who try to convict regardless of
guilt; overcrowding of prisons; plea bargaining.” He had an unpleasant experience
with a peace officer when he disputed a traffic ticket. When asked if he had any
reason to be biased either for or against criminal prosecutors, he wrote, “Yes
media cases indicating manipulation of evidence to convict whether guilty or not.”
When asked if he had any reason to be biased either for or against criminal
defense attorneys, he wrote, “Yes the last one I witnessed did a poor job.” He
indicated that he had “experienced racial prejudice by white race” and that he had
“[m]ild” “racial attitudes or prejudices” because of “past experiences of racial
prejudice in routine everyday life.” He felt African Americans were treated
unfairly by the criminal justice system and that whether they were treated fairly in
the courts depended on the individuals involved in each case. When asked to
describe his general feelings regarding the death penalty, he wrote, “It is being
disputed in the courts but some cases seem to merit the death penalty.” He
indicated he was moderately in favor of the death penalty.
       During voir dire, J.M. said he didn’t like “having to be called every year
and come and sit in jury duty.” When asked if he could think of any specific
instances of prosecutors trying to convict regardless of guilt, he said, “I’ve heard
that there are prosecutors that . . . receive their reputation and their career status
based on whether or not they win cases. And there have been media reports that in
some cases it’s a tactic for prosecutors to withhold evidence that could even bring
about nonconviction of a particular person that they’re prosecuting.” With respect
to plea bargaining, he said that “sometimes people are given the opportunity to

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plea bargain and they end up going to jail for crimes they didn’t actually commit
because they were threatened with . . . they were not going to get off at all, and so
in some cases it denies them their rights.” When asked why he thought the last
defense attorney he witnessed did a poor job, J.M. explained that the defense
attorney “did not present any defense at all.” With respect to his racial attitudes or
prejudices, J.M. said, “Well, in America race prejudice exists, and as a black
person or minority person growing up, you usually experience it, and I have
experienced it. And it’s no secret. It’s a fact of American life.”
       The prosecutor challenged J.M. for cause on the ground that he was “so
hostile to the judicial system and prosecutors and law enforcement that he cannot
give the People a fair trial.” He noted that J.M. had expressed a “distrust of the
legal system,” that he believed that “prosecutors want to convict regardless of the
evidence,” and that he had “sat as a juror in a case and hated it.” Asked for his
views, defense counsel responded, “I’ll submit it on him as well.” The trial court
denied the prosecutor’s challenge for cause, reasoning that J.M.’s “answers were
sufficient that I can’t, in good conscious [sic] under the law, grant a challenge for
cause.” The trial court noted, however, that he personally “would be afraid to
have him no matter which side of the table I was sitting on” and suggested that one
side “challenge him preemptorily.” The trial court credited the prosecutor’s
concerns regarding J.M. as “totally race neutral.” In light of J.M.’s written and
oral responses, which revealed a degree of hostility to law enforcement and the
judicial system not comparable to what had been expressed by any other juror, we
find that the trial court’s assessment was supported by substantial evidence.
       3.     Juror Misconduct
       Defendant contends that the “[trial] court’s failure to investigate whether a
juror slept through crucial portions of the trial proceedings denied [defendant] his



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right to have his trial heard and decided by an impartial and competent jury in
violation of the Sixth Amendment.” We disagree.
              a.      Factual Background
       During defense counsel’s cross-examination of prosecution witness Robert
Scott, the prosecutor approached the trial court and reported that a trial spectator
had told him she believed that Juror No. 6 had been sleeping during the testimony.
The trial court responded: “I’ve been watching, and I didn’t really pick up on it.
But I hadn’t been staring.” At the suggestion of defense counsel, the trial court
questioned the spectator directly and asked her what she had observed. The
spectator responded: “Well, I observed that in its entirety he has nodded off. He’s
been — a couple of times when he was nodding off, he was actually asleep. At
first I wasn’t really sure because a lot of times people listen with their eyes closed.
I thought that might be the case. But trust me, that is not the case. . . . [¶] I
noticed it already today. I mean, it’s early. It’s not after lunch. You know, he
was already nodding off, you know. And the testimony to me — every day the
testimony to me was not dry, just drawn out, where you might nod off, you know.
It’s every day. And I’m not the only one who has noticed. . . . [¶] I’m not the only
one who has noticed. I’m not the only spectator who has noticed. . . . [¶] I just
really don’t think that it is fair to the defense or the prosecutor’s case. I really
don’t think that is fair.” Neither the prosecutor nor defense counsel accepted the
trial court’s invitation to further question the spectator.
       The trial court then noted for the record that Juror No. 6 was African
American and asked defense counsel what he would like to do. Defense counsel
responded: “I think a general admonition, to make sure that everybody pays
attention, is alert throughout the proceedings.” The trial court agreed to provide
the admonition and also instructed its deputy to keep an eye on the jury. The



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prosecutor agreed that an admonition would be sufficient. The trial court and
defense counsel then engaged in the following exchange:
       “THE COURT: And, Mr. Cormicle, I don’t know if you’ve been watching
the jurors. Probably not as much as the [spectator] has, but do you feel that your
client’s rights have been sacrificed by keeping that juror?
       “MR. CORMICLE: No. But I can also say that I have not been watching
the jury so I cannot say — I cannot weigh this one way or the other.
       “THE COURT: I haven’t been — obviously haven’t been watching them
as close as [the spectator] has. [¶] Waive any defect? I know I’m asking you a
tough question, but I have to, I think.
       “MR. CORMICLE: Yes. My suggestion is to keep quiet.
       “THE COURT: I think so. Any issue of whether he was asleep or not,
you’re willing to waive that at this point?
       “MR. CORMICLE: Yes.
       “THE COURT: And Mr. Williams agrees with you? . . . [¶] Mr. Williams,
waive — counsel waive any defect or prejudice, if, in fact, he was dosing [sic] off?
Waive any defect or prejudice?
       “THE DEFENDANT: No comment.
       “MR. RUIZ: Well, I think we have to make a factual basis.
       “THE DEFENDANT: I agree.
       “THE COURT: I’m sorry, sir?
       “THE DEFENDANT: I agree.
       “THE COURT: You waive any defect or any claim of prejudice that, in
fact, this juror was dosing [sic] off on occasion?
       “THE DEFENDANT: To this point, yeah.”
       When the jury returned to the courtroom, the trial court issued the
following admonition: “Ladies and gentlemen, I’m going to ask you to keep your

                                          113
eyes open. The reason I say that is because it’s important that all jurors stay
awake. And I can’t tell if somebody is dosing [sic] off if they have their eyes
closed, or when they’re really just listening with their eyes closed. I just caution
you that sometimes trials get a little bit boring. Maybe you have noticed. And I’m
being very generous now. [¶] I just ask you to please keep your eyes open and
stay awake. Okay?”
              b.     Analysis
       As indicated by the exchange between the trial court and defense counsel,
defense counsel neither objected to Juror No. 6’s continued service nor requested a
mistrial on the ground of juror misconduct. Not only did defense counsel fail to
object, he expressly waived any defect, affirmatively requested the procedure
followed by the trial court, and indicated that his client’s interests would be best
served by a general admonition to the jurors to pay attention. Accordingly,
defendant has forfeited his claim of juror misconduct. (See People v. Lewis
(2009) 46 Cal.4th 1255, 1308; People v. Stanley (2006) 39 Cal.4th 913, 950.)
       In any event, the claim fails on the merits. “A trial court may discharge a
juror who ‘becomes ill, or upon other good cause shown to the court is found to be
unable to perform his [or her] duty, . . .’ [Citation.] Once a trial court is put on
notice that good cause to discharge a juror may exist, it is the court’s duty ‘to
make whatever inquiry is reasonably necessary’ to determine whether the juror
should be discharged. [Citation.] We have . . . explained, however, that the mere
suggestion of juror ‘inattention’ does not require a formal hearing disrupting the
trial of a case.” (People v. Espinoza (1992) 3 Cal.4th 806, 821.)
       “ ‘ “The decision whether to investigate the possibility of juror bias,
incompetence, or misconduct — like the ultimate decision to retain or discharge a
juror — rests within the sound discretion of the trial court. [Citation.] The court
does not abuse its discretion simply because it fails to investigate any and all new

                                         114
information obtained about a juror during trial.” ’ [Citation.] A hearing is
required only where the court possesses information which, if proved to be true,
would constitute ‘good cause’ to doubt a juror’s ability to perform his or her duties
and would justify his or her removal from the case.” (People v. Bradford (1997)
15 Cal.4th 1229, 1348.)
       People v. Bradford, supra, 15 Cal.4th 1229, is instructive. In Bradford, the
trial court acknowledged on the record that a juror was asleep and had been asleep
the previous day. We stated: “We have observed that ‘[a]lthough implicitly
recognizing that juror inattentiveness may constitute misconduct, courts have
exhibited an understandable reluctance to overturn jury verdicts on the ground of
inattentiveness during trial. In fact, not a single case has been brought to our
attention which granted a new trial on that ground. Many of the reported cases
involve contradicted allegations that one or more jurors slept through part of a
trial. Perhaps recognizing the soporific effect of many trials when viewed from a
layman’s perspective, these cases uniformly decline to order a new trial in the
absence of convincing proof that the jurors were actually asleep during material
portions of the trial. [Citations.]’ [Citation.]” (Id. at p. 1349, quoting Hasson v.
Ford Motor Co. (1982) 32 Cal.3d 388, 411.) We held that “[a]lthough the duty to
inquire as to juror misconduct is activated by a lower threshold of proof, in the
present case the absence of any reference in the record to the juror’s
inattentiveness over a more substantial period indicates that the trial court did not
abuse its discretion in failing to conduct an inquiry.” (Ibid.; see People v.
Espinoza, supra, 3 Cal.4th at p. 821 [concluding that defense counsel’s
speculation that a juror might have been sleeping was insufficient to apprise the
trial court that good cause might exist to discharge the juror and therefore did not
obligate the court to conduct further inquiry].)



                                         115
       Under the circumstances in this case, the spectator’s assertion that Juror
No. 6 had been “nodding off” was insufficient to apprise the trial court that good
cause might exist to discharge him. The trial court had been observing the jurors’
behavior and had not noticed Juror No. 6 sleeping. After hearing the spectator’s
observations, neither the defense nor the prosecution asked the trial court to
investigate further. Additionally, after admonishing the jury to remain attentive,
the trial court instructed its deputy to keep an eye on the jurors for the remainder
of the trial, and no further incidents were reported. (See People v. DeSantis
(1992) 2 Cal.4th 1198, 1233–1234 [concluding that the trial court’s “self-directed
inquiry,” which involved observing several jurors closely to determine whether
they were asleep and determining that none was dozing, was sufficient and that a
formal hearing was not required under the circumstances].) Under these
circumstances, the trial court did not abuse its discretion in declining to conduct a
formal hearing into juror misconduct.
H.     Cumulative Error
       Defendant contends the cumulative effect of the asserted guilt phase errors
was prejudicial. However, there was no error to accumulate. (See People v.
Beeler (1995) 9 Cal.4th 953, 994.)
I.     Penalty Phase Issues
       1.     Excusal of Juror Prior to Penalty Phase
       Defendant contends that the trial court “erred in excusing Juror No. 1 and
substituting an alternate juror following the guilt phase and prior to the penalty
phase of the trial without having established that [the juror’s] illness rendered him
unable to perform his duties as a juror, thereby denying [defendant] his right
to have his trial heard and decided by an impartial and competent jury in violation
of the Sixth Amendment, and depriving him of due process of the law in violation
of the Fourteenth Amendment.”

                                         116
              a.     Factual Background
       Following the guilt phase, the jury returned a verdict of guilty on
September 17, 2002. The trial court declared a recess and ordered the jurors to
return on October 15, 2002 for the penalty phase of the trial. On October 15,
2002, all jurors returned for service with the exception of Juror No. 1. The court
clerk informed the trial court that she had received a telephone message, left the
day before, in which Juror No. 1 said he had stepped on a nail and his foot had
become badly swollen. He said he was unable to walk, had a doctor’s
appointment he needed to attend, and wished to be excused from jury service. He
said he would call the court in the morning and fax a letter from his doctor.
       As of the morning of October 15, 2002, the trial court had not received the
faxed letter from Juror No. 1’s doctor. The trial court therefore ordered a recess
and asked the clerk to call juror No. 1 for an update on his status. Following the
recess, the clerk reported that she had left Juror No. 1 a voicemail message
requesting that he contact the court immediately. The trial court again released the
waiting jurors and ordered them to return that afternoon.
       The trial court called the matter back to order at 1:30 p.m. on October 15,
2002. With the jury waiting outside the courtroom, the clerk reported that she had
made contact with Juror No. 1. He had reported to her that his foot had become
infected, a condition known as osteomyelitis, and that his doctor was considering
admitting him into the hospital for purposes of initiating intravenous therapy and
conducting a bone scan. The clerk also said that when she had asked about the
letter from his doctor, Juror No. 1 had said that the letter was in his possession and
that he would be able to fax it to the trial court the following day.
       Defense counsel requested that proceedings be suspended until the parties
received “some idea when [the juror might] return.” The trial court disagreed,
explaining: “[W]e don’t have the doctor’s report, but I know I have no reason to

                                         117
disbelieve the juror when he says that he has to go in the hospital or go into the
doctor tomorrow for the procedure . . . . [¶] Which means, number one, he’s not
here today. Number two, he won’t be here tomorrow. And we anticipated — told
the jury we were going to get done tomorrow. I am going to substitute Alternate
No. 1 in for Juror No. 1 and relieve Juror No. 1.”
              b.     Analysis
       Section 1089 provides: “If at any time, whether before or after the final
submission of the case to the jury, a juror dies or becomes ill, or upon other good
cause shown to the court is found to be unable to perform his or her duty, or if a
juror requests a discharge and good cause appears therefor, the court may order the
juror to be discharged and draw the name of an alternate, who shall then take a
place in the jury box, and be subject to the same rules and regulations as though
the alternate juror had been selected as one of the original jurors.”
       “Once a trial court is put on notice that good cause to discharge a juror may
exist, it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to
determine whether the juror should be discharged.” (People v. Espinoza, supra, 3
Cal.4th at p. 821.) “We review a trial court’s decision to discharge a juror under
an abuse of discretion standard, and will uphold such decision if the record
supports the juror’s disqualification as a demonstrable reality. [Citations.] The
demonstrable reality test ‘requires a showing that the court as trier of fact did rely
on evidence that, in light of the entire record, supports its conclusion that
[disqualification] was established.’ [Citation.] To determine whether the trial
court’s conclusion is ‘manifestly supported by evidence on which the court
actually relied,’ we consider not just the evidence itself, but also the record of
reasons the court provided. [Citation.] In doing so, we will not reweigh the
evidence.” (People v. Wilson (2008) 43 Cal.4th 1, 26.)



                                         118
       Defendant claims that the trial court did not conduct an adequate inquiry to
determine whether it was necessary to discharge Juror No. 1 because it did not
wait for the doctor’s letter to be faxed to the court or speak to the doctor directly.
But the juror’s absence from court, combined with his recorded telephone message
explaining his absence and his telephone call with the clerk the following day, was
adequate to inform the trial court why he was not present and the reason for his
absence. (People v. Leonard (2007) 40 Cal.4th 1370, 1410.) The record supports
the juror’s disqualification for illness as a demonstrable reality, and no further
inquiry was required under the circumstances. We have reached the same
conclusion under similar circumstances. (Id. at pp. 1409–1410 [upholding the trial
court’s decision to dismiss a juror over the objection of both the prosecutor and
defense counsel after the juror had left a message explaining that his father-in-law
had died and after the court clerk spoke to the juror’s wife over the telephone].)
       Defendant does not explain his claim that the discharge of Juror No. 1
violated the federal Constitution. We have held, however, that section 1089 “does
not offend constitutional proscriptions.” (People v. Collins (1976) 17 Cal.3d 687,
691.) “Thus, our conclusion that the trial court did not violate that statute
necessarily disposes of [defendant’s] constitutional claim[].” (People v. Leonard,
supra, 40 Cal.4th at p. 1410.)
       2.     Request to Modify CALJIC No. 8.88
       Defendant argues that the trial court’s “refusal to instruct the jurors that
they must be convinced beyond a reasonable doubt that the aggravating factors
outweigh the mitigating factors prior to imposing the death penalty violated the
cruel and unusual punishment clause of the Eighth Amendment and the due
process clause of the Fourteenth Amendment, in that the jurors were not provided
that ‘guided discretion’ essential in making the capital determination.” (Quoting
Gregg v. Georgia (1976) 428 U.S. 153, 189.)

                                          119
       Defense counsel requested that the jury be instructed with defense Special
Instruction No. 7, which stated in part: “After considering all of the evidence it is
entirely up to you to determine whether you are convinced that the death penalty is
the appropriate punishment.” The prosecutor objected to this instruction, arguing
that the use of the word “convinced” constituted a misstatement of law. The trial
court agreed with the prosecutor. Defense counsel then asked the trial court to
give the following instruction instead: “It is entirely up to you to determine
whether the death penalty is the appropriate punishment.” The trial court gave the
requested instruction to the jury.
       The trial court also instructed the jury with CALJIC No. 8.88, which
defines the scope of the jury’s sentencing discretion and provides in relevant part:
“The weighing of aggravating and mitigating circumstances does not mean a mere
mechanical counting of factors on each side of an imaginary scale, or the arbitrary
assignment of weights to any of them. You are free to assign whatever moral or
sympathetic value you deem appropriate to each and all of the various factors you
are permitted to consider. In weighing the various circumstances you determine
under the relevant evidence which penalty is justified and appropriate by
considering the totality of the aggravating circumstances with the totality of the
mitigating circumstances. To return a judgment of death, each of you must be
persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole.”
       Defendant acknowledges that we have repeatedly held that “CALJIC No.
8.88 provides constitutionally sufficient guidance to the jury on the weighing of
aggravating and mitigating factors.” (People v. Howard (2010) 51 Cal.4th 15, 39;
see, e.g., People v. Butler (2009) 46 Cal.4th 847, 873–875; People v. Geier (2007)
41 Cal.4th 555, 618–619.) We have rejected the claim that the instruction

                                         120
unconstitutionally fails to inform the jury that, in order to impose the death
penalty, it must find that aggravating circumstances outweigh mitigating ones
beyond a reasonable doubt. (People v. Coffman and Marlow (2004) 34 Cal.4th 1,
124.) Under our precedent, “the trial court need not and should not instruct the
jury as to any burden of proof or persuasion at the penalty phase.” (People v. Blair
(2005) 36 Cal.4th 686, 753.) Thus, the trial court’s instruction was proper, and the
trial court did not err in refusing to give defense Special Instruction No. 7.
J.     Miscellaneous Challenges to the Death Penalty
       Defendant mounts a number of challenges to California’s death penalty law
that our prior decisions have considered and rejected. He provides no persuasive
reason for us to reexamine those conclusions, and we therefore reject them as
follows:
       California’s death penalty law “adequately narrows the class of murderers
subject to the death penalty” and does not violate the Eighth Amendment. (People
v. Loker (2008) 44 Cal.4th 691, 755.) Section 190.2, which sets forth the
circumstances in which the penalty of death may be imposed, is not impermissibly
broad in violation of the Eighth Amendment. (People v. Farley (2009) 46 Cal.4th
1053, 1133; see also, e.g., People v. Zamudio (2008) 43 Cal.4th 327, 373; People
v. Prieto (2003) 30 Ca1.4th 226, 276.)
       “Section 190.3, factor (a), which allows the jury to consider, in choosing
the appropriate penalty, ‘[t]he circumstances of the crime of which the defendant
was convicted in the present proceeding and the existence of any special
circumstances found to be true pursuant to Section 190.1,’ does not violate the
Eighth or Fourteenth Amendments to the United States Constitution merely
because those circumstances differ from case to case, or because factor (a) does
not guide the jury in weighing these circumstances.” (People v. Farley, supra, 46
Cal.4th at p. 1133, citing Tuilaepa v. California (1994) 512 U.S. 967, 975–976,

                                         121
978–979; see People v. Stevens (2007) 41 Cal.4th 182, 211.) Section 190.3 “does
not license the arbitrary and capricious imposition of the death penalty.” (People
v. Nelson (2011) 51 Cal.4th 198, 225.)
       “Nothing in the federal Constitution requires the penalty phase jury to make
written findings of the factors it finds in aggravation and mitigation; agree
unanimously that a particular aggravating circumstance exists; find all aggravating
factors proved beyond a reasonable doubt or by a preponderance of the evidence;
find that aggravation outweighs mitigation beyond a reasonable doubt; or conclude
beyond a reasonable doubt that death is the appropriate penalty. [Citations.] This
conclusion is not altered by the United States Supreme Court’s decisions in
Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S.
584, and Blakely v. Washington (2004) 542 U.S. 296.” (People v. Nelson, supra,
51 Cal.4th at pp. 225–226; see also People v. Blacksher (2011) 52 Cal.4th 769,
848 [same]; People v. Lewis, supra, 46 Cal.4th at p. 1319.)
       Review for intercase proportionality is not constitutionally compelled.
(Pulley v. Harris (1984) 465 U.S. 37, 42, 50–51; People v. Butler, supra, 46
Cal.4th at p. 885.)
       Because capital defendants are not similarly situated to noncapital
defendants, California’s death penalty law does not deny capital defendants equal
protection by providing certain procedural protections to noncapital defendants but
not to capital defendants. (People v. Jennings (2010) 50 Cal.4th 616, 690; People
v. Johnson (1992) 3 Cal.4th 1183, 1242–1243.)
       The death penalty as applied in this state is not rendered unconstitutional
through operation of international law and treaties. (People v. Mills (2010) 48
Cal.4th 158, 215; Butler, supra, 46 Cal.4th at p. 885; People v. Barnwell (2007) 41
Cal.4th 1038, 1059.)



                                         122
      Defendant also complains that the cumulative impact of the alleged
deficiencies in California’s capital sentencing scheme render California’s death
penalty law constitutionally infirm. We have individually rejected each of
defendant’s challenges to California’s death penalty law, and “[s]uch claims are no
more compelling . . . when considered together . . . .” (People v. Garcia (2011) 52
Cal.4th 706, 765.)
      Defendant appears to make one new argument. He contends that the United
States Constitution forbids the imposition of the death penalty when the system
generates an unacceptably high number of wrongful convictions. According to
defendant, because new techniques such as DNA testing have demonstrated that
false convictions are far more common than previously assumed, the Eighth
Amendment “requir[es] that proof of guilt in [capital cases] be beyond all doubt.”
      As defendant acknowledges, however, the federal district court opinions on
which he primarily relies — United States v. Quinones (S.D.N.Y. 2002) 196
F.Supp.2d 416 (Quinones I), and United States v. Quinones (S.D.N.Y. 2002) 205
F.Supp.2d 256 (Quinones II) — were reversed on appeal. The defendants in
Quinones had argued that the Federal Death Penalty Act of 1994 (FDPA) (Pub. L.
No. 103–322, tit. VI, §§ 60001–60026, 108 Stat. 1959 (Sept. 13, 1994) codified at
18 U.S.C. §§ 3591–3598) was unconstitutional because DNA testing had
demonstrated that “innocent people are convicted of capital crimes with some
frequency.” (Quinones I, supra, 196 F.Supp.2d at p. 420.) The United States
Court of Appeals for the Second Circuit rejected this argument as follows: “We
hold that, to the extent the defendants’ arguments rely upon the Eighth
Amendment, their argument is foreclosed by the Supreme Court’s decision in
Gregg v. Georgia, 428 U.S. 153 (1976). With respect to the defendants’ Fifth
Amendment due process claim, we observe that the language of the Due Process
Clause itself recognizes the possibility of capital punishment. Moreover, the

                                       123
defendants’ argument that execution deprives individuals of the opportunity for
exoneration is not new at all — it repeatedly has been made to the Supreme Court
and rejected by the Supreme Court. Most notably, the Supreme Court expressly
held in Herrera v. Collins, 506 U.S. 390, 407–08, 411 (1993), that, while the Due
Process Clause protects against government infringement upon rights that are ‘so
rooted in the traditions and conscience of our people as to be ranked as
fundamental,’ there is no fundamental right to a continued opportunity for
exoneration throughout the course of one’s natural life.” (United States v.
Quinones (2d Cir. 2002) 313 F.3d 49, 52.)
       In arguing that the Eighth Amendment requires proof of guilt in capital
cases beyond all doubt, defendant essentially contends that capital punishment is
unconstitutional per se, for no humanly administered system of justice can claim
to be absolutely infallible. But the United States Supreme Court considered and
rejected this argument in Gregg v. Georgia, supra, 428 U.S. 153, holding that the
death penalty is not unconstitutional per se under the Eighth Amendment. (See id.
at pp. 176–187 (plur. opn. of Stewart, J.); id. at p. 226 (conc. opn. of White, J.).)
Further, even if the federal Constitution were to protect a condemned inmate from
execution upon an “extraordinarily high” threshold showing of actual innocence
(Herrera v. Collins (1993) 506 U.S. 390, 417 [assuming this point for the sake of
argument]), that is not the same as a constitutional right to have guilt in capital
cases be proven beyond all doubt. Because the high court has upheld the death
penalty “despite a clear recognition of the possibility that, because our judicial
system — indeed, any judicial system — is fallible, innocent people might be
executed and, therefore, lose any opportunity for exoneration” (United States v.
Quinones, supra, 313 F.3d at p. 65), defendant’s Eighth Amendment challenge
does not succeed.



                                          124
                             CONCLUSION
    For the reasons above, we affirm the judgment.


                                            LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.
           KENNARD, J.
           WERDEGAR, J.
           CORRIGAN, J.




                                   125
                  CONCURRING OPINION BY BAXTER, J.

       The majority correctly observes that “[b]ecause defendant did not file a
motion to dismiss on speedy trial grounds in the trial court, the underlying cause
of the delay in this case was never litigated, the various statements by defendant
and his attorneys were never examined in an adversarial proceeding, and the trial
court made no findings that might inform the issue before us.” (Maj. opn., ante, at
p. 58.) In particular, we are unable on this record to conclude “that responsibility
for the discovery disputes should be attributed to the prosecution” or “that the
delay experienced by defendant resulted from a breakdown in the public defender
system.” (Id. at pp. 45, 59.)
       For the same reasons, the majority ought to refrain from asserting that
counsel did not “work[] diligently on defendant’s case” and that “the lion’s share
of delay resulted from defense counsel’s lack of progress in preparing the case for
trial.” (Maj. opn., ante, at p. 47.) Because the majority nonetheless purports to
make such a finding for the first time on appeal, I am compelled to write
separately.
       The majority’s purported finding as to counsel’s performance rests almost
entirely on statements by defendant and his attorneys made in ex parte proceedings
(maj. opn., ante, at pp. 48-52) and on the asserted failure of the appellate record to
detail the work product completed by counsel in preparation for trial (id. at pp. 50-
51). But one would hardly expect to discover a log of an attorney’s investigation



                                          1
(or the fruits thereof) in a reporter’s transcript or clerk’s transcript of pretrial
proceedings or in “[t]he table of contents for all records” filed at the pretrial stage.
(Id. at p. 50.) Moreover, as with the statements of defendant and his attorneys
concerning the role of the prosecution and the public defender system in delaying
the start of trial, the statements of defendant and his attorneys concerning
counsel’s diligence and progress “were never examined in an adversarial
proceeding,” “the underlying cause of the delay in this case was never litigated,”
and “the trial court made no findings that might inform the issue before us.” (Id.
at p. 58.) Uncritical reliance on these statements, which were made at ex parte
hearings where the People were excluded (and were not even granted the
opportunity to submit questions that the trial court could then pose to the defense
in camera), would be a denial of the People’s right to due process under the
California Constitution. (Cal. Const., art. I, § 29; cf. Department of Corrections v.
Superior Court (1988) 199 Cal.App.3d 1087, 1093.)
       The problem with the factual finding purportedly made by the majority is
exacerbated by the existence in the record of contrary evidence that counsel was
proceeding diligently and did make progress during at least some of the relevant
time periods. Attorney Forest Wright stated that “ ‘there’s been a considerable
amount of work done’ ” (maj. opn., ante, at p. 48), that “he was proceeding ‘as
diligently as [he could] at this point,’ ” and that “ ‘a lot has been done in this
matter’ ”—even though defendant had been “ ‘a little bit stingy with his
information at times.’ ” (Id. at pp. 13-14.) In 1999, after Wright had withdrawn,
attorney David Gunn said that the defense was “ ‘on track.’ ” (Id. at p. 23.)
Although these statements, too, were “never examined in an adversarial
proceeding” and “the trial court made no findings that might inform the issue
before us” (id. at p. 58), they do tend to support the judgment of the trial court and
undermine the majority’s purported factual finding that counsel did not work

                                            2
diligently on the case and that the delay was counsel’s fault. Had the parties been
able to litigate the issue, the trial court might well have agreed with the
investigator who, after working with defendant for many months, declared that it
was “ ‘impossible’ ” to work with him. (Id. at p. 28.)
       When presented with conflicting evidence on review of a judgment of
conviction, our task is clear and well settled. “On appeal, we presume that a
judgment or order of the trial court is correct, ‘ “[a]ll intendments and
presumptions are indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.” ’ ” (People v. Giordano (2007) 42
Cal.4th 644, 666.) The presumption being in favor of the judgment, “ ‘[w]e must
consider the evidence in the light most favorable to the prevailing party, giving
such party the benefit of every reasonable inference, and resolving all conflicts in
support of the judgment.’ ” (Gooch v. Hendrix (1993) 5 Cal.4th 266, 279.) The
standard of appellate review has particular salience here, inasmuch as the burden
to establish a speedy trial violation falls on defendant (maj. opn., ante, at p. 37)
and the presumption is that counsel performed in a competent and timely manner.
(People v. Carter (2003) 30 Cal.4th 1166, 1211.) Accordingly, the majority’s
purported factual finding that counsel was responsible for the delay is without
factual or legal foundation.
       I agree that defendant’s speedy trial claim is without merit, but I do not
agree with the majority’s analysis of the claim. I therefore concur in the judgment.

                                                          BAXTER, J.

       I CONCUR:
       CHIN, J.




                                           3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Williams
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S118629
Date Filed: December 19, 2013
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Dennis A. McConaghy

__________________________________________________________________________________

Counsel:

H. Mitchell Caldwell, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Holly D. Wilkens, James H. Flaherty III and Robin Urbanski, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

H. Mitchell Caldwell
6240 Tapia Drive, Unit E
Malibu, CA 90265
(310) 506-4669

Robin Urbanski
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2196
