*1 July 1992.] S004494. Crim. No. 23019. [No. PEOPLE,

THE Plaintiff and Respondent, CLARK, DANIEL Defendant and Appellant. DOUGLAS *26 Counsel Defenders, Laethem, appoint- Fern State under Zall and M. Public

Harvey R. Kerson, Court, and Verna L. A. Pizarro Larry ments Donald Supreme Wefald, Defenders, for State Public Defendant Appellant. Deputy General, Steve Attorneys John K. de and Daniel E. Kamp Lungren, Van General, Williamson, Carol Attorneys Chief White and Assistant George Pollack, General, R. K. Ivy John Attorney Gorey, Wendelin Assistant Acting General, Kessel, Attorneys Lee Frierson and Robert S. Henry, Deputy Susan for Plaintiff and Respondent.

Opinion Daniel from a ARABIAN, J. judgment Clark Douglas appeals six law. A found him guilty of death the 1978 death penalty jury under Code, (Pen. 187.)1 murder Multiple special counts first murder. degree § *27 a firearm were found and enhancements for use of personal circumstances 190.2, 12022.5.) The (§§ (a)(3), true as to each of the murder subd. charges. human further of one count of mutilation of jury guilty found defendant remains, Code, (Health 7052), and victims & Saf. as to one of murder § 187/664, (§§ 203.) a victim. of murder and as to different attempted mayhem found that defendant used a were Allegations deadly weapon had personally An (§ (b).) mayhem true as to the murder and counts. subd. attempted for allegation great bodily injury enhancement intentional infliction of 12022.7.) (§ found true as to the murder count. attempted (§ set the at death. This is automatic. jury punishment appeal (b).) and mayhem subd. We conclude that the murder convictions attempted reversed, must be and all but one of multiple-murder special-circum- In all stance must be set aside. we affirm findings respects, other judgment. Phase Facts

I. Guilt murders, This case concerns the Sunset Slasher or Sunset Slayer so-called a series of which killings young Angeles of women took the Los place area between 31 and 1980. approximately May July unspecified 1All statutory further references are this code. 11, 1980, until investigation August

Police did not focus on defendant housemate, when to murder of Mary Carol defendant’s confessed Bundy, confession, her Bundy Jack her sometime the course of Murray, lover. Bundy theorized that killings. accused defendant of the turn then killed Murray committed the with Jack killings Murray, plot frame defendant the Sunset murders. against

The evidence circumstantial and largely painstak- extensive did not ingly pieced together through investigation. (Bundy police defense.) for the but when is testify prosecution, story called only further complicated by relating morass machinations procedural defendant’s representation. Accordingly, the facts must be set forth some detail.

A. The Prosecution Case

1. Murders Cynthia Gina Maraño and Chandler discovered, The first murders the police those about the most which existed, detailed evidence were the Chandler and Gina killings Cynthia Maraño.

a) Discovery the Bodies 12, 1980, About 1:30 p.m. on June were police called to the scene of a freeway near the ramp Forest Lawn cemetery, where a highway worker had Chandler, found the bodies of two young girls. Cynthia a blonde 16-year-old, was found awith pink jumpsuit wrapped around her legs. One of the leg jumpsuit was slit to the crotch. There was blood on the jumpsuit, spot sister, of grease Maraño, or oil. Chandler’s half Gina age was clothed *28 in a red only tube-top pulled down around her waist. No underwear was found on addition, or anywhere near the bodies. In found police no address book or business cards in the vicinity.

b) Coroner’s Examination Maraño was killed two gunshots to the head. Both bullets exited skull. Chandler had been shot in both the head and chest. The chest wound was a contact wound. Two .25-caliber bullets were after recovered the autopsy.

Maraño and Chandler had been dead at least 12 hours at the their time bodies were recovered. They were killed probably sometime June on 12. The Chandler’s lividity Cynthia June signs to about a.m. on

up location to with the been moved from one body having were consistent body the bodies her of blood where puddles after death. absence of another found, Chandler’s body, and scratches and abrasions on were mortem post the bodies later that the had been killed elsewhere and indicated victims moved. vaginal examination of ma- testified microscopic

Police criminalists from Chand- Cynthia Samples terial from Chandler contained spermatozoa. of sexual or semen. No evidence ler’s mouth were negative spermatozoa found, activity sexual be ruled on Gina neither could assault Maraño but activity. as a mortem sexual bruising post out. No would occur result of c) Maraño’s Chandler’s and Movements 1, 1980, Mark given by June attended a party On Chandler Maraño there, Gottesman, home. were an at his attorney, Hollywood Many people Gottesman was unsure whether a number of Gottesman’s clients. including Cohen, guest cards out at the Mindy his business were handed at the party. girl Maraño her gave saw the She talked to Gina girls. two party, in an she carried Maraño wrote the number address book telephone number. her. with 10, 1980, Brigges driving moving

On the afternoon of June Henry He female One of the with blonde picked girls, truck. two hitchhikers. up hair, gave her had dark Cindy. Brigges name as other hair. gave girl card, number and the blonde his business his own girl bearing telephone both sister-in-law, He Brigges. number of his and Laurie George brother nr at the entrance o girls freeway off to a dropped amp. Maraño, and the of Cynthia the father of Gina Maraño

Angelo stepfather Chandler, carried her last saw them alive June 1980. Gina early always information; it was containing very address book business cards and other her. important

d) The Telephone Calls Brigges Laurie *29 16, 1980, Laurie that and 3 June Brigges testified between p.m. p.m. she received a her call at home a man for brother-in- telephone asking from law, Brigges. The man himself as officer in the Henry identified a police the Hollywood girls division who was murder of two whose investigating The man said that one of were the 12. dumped freeway bodies near on June the her assured “policeman” had card. girls brother-in-law’s business in the and Laurie that her not Brigges suspected killings, brother-in-law was that was contact the Laurie Henry police. it not necessary Brigges believed the name Detective Clark. She the Brigges gave thought man his as call caller was unusual because as the conversation the became proceeded, instance, more casual and less For the the caller commented that police-like. “doing two had been what girls they they prostitutes. shouldn’t”—that were Over defendant’s Laurie that had objection, Brigges testified she identified defendant’s voice for She they from for her. police tape recording played also identified his voice in the court as that of caller.

(2) Mindy Cohen a.m., 22, 1980, Around 11:30 June Cohen received call Mindy a telephone from a man himself identifying as detective with the Los Police Angeles The man Department. stated he was into the murders of Chandler inquiring head, and Maraño. He said that Gina had been shot in the Cindy number, heart. When Cohen how her inquired police got the man phone said it was found with the bodies. later, 24, 1980,

Approximately one month on July Cohen was awakened by a second telephone call at 7:11 a.m. recognized Cohen immediately man’s voice as same one she had heard on 22. June The caller “if asked this was Cohen Mindy”; answered yes. He asked if remembered he she that had called said, “Well, previously about murders of Gina and Cindy, I them killed and now I want you.” man told he Cohen had shot Gina the head and had in the shoot He Cindy heart. said they were prostitutes said, $30 had paid Cindy to “suck him off.” He “I shot them and then I made love to them and said, it felt so It good. good.” felt so He “Now I you, want Mindy,” and “You’re next.” Cohen noticed caller’s breathing changed That, the course of the conversation. with the coupled voice, hesitation led Cohen to believe that he was reaching a sexual climax. Cohen became scared and hung up phone. She asked her father to call police.

Cohen, like Brigges, identified defendant’s voice from a tape recording. Cohen also told the police that the caller had used a She two-syllable name. sure of the name but thought she might remember it if she heard it. The officer suggested the name “Doug Clark.” Cohen said that *30 detective Clark” that the “Doug name She was about the

name. so positive that Clark” was “Doug trial at suggest others. Cohen testified any did name the caller gave. Records Telephone of telephone records for the

The introduced prosecutor telephone company he with whom girlfriends one of defendant’s (Joey) Bretta Jo Lamphier, 16, 1980, significant reflected three The records for June sometimes lived. her place residence to calls: call at 2:13 from telephone p.m., Lamphier’s a Brigges; assigned number to Laurie p.m. of a call at 2:36 employment; testified a call at to the office Mark Gottesman. Lamphier 2:40 p.m. Rather, she at did the calls. She was at work that time. that she not make testified, Defendant told her that at work on afternoon. telephoned he be some movers calling her he was her that would apartment, newa into to move of his from residence arrange property Lamphier’s some Carol intended with on Street that defendant to share Verdugo apartment Bundy. 24, 1980, a.m. call Cohen made at 7:11 July Mindy was telephone with defendant shared telephone Verdugo

from at the Street apartment a.m. that defendant clocked at work at 7:28 Bundy. Carol Records showed five from get that same It took defendant two to minutes to morning. a on away on Street to his of work few blocks apartment Verdugo place Street. Verdugo

2. Murders Karen Jones and Exxie Wilson Between a.m. on Officer Guzzetta was 2:00 and 2:30 June Jones, Karen Sunset Boulevard when he met a named patrolling prostitute A heard a whom warned not to loiter area. resident the area a.m., outside Karen scream his home between and 2:40 a.m. At 3:15 2:25 her body Jones’s in a around lying pool was discovered the curb of blood and hair. A face The cause of death wound the head. gunshot .25-caliber the skull. The had been jacketed bullet retrieved from gun held six to twelve the head when the shot was approximately inches from fired. The 12 midnight coroner estimated Jones died sometime between and 2:00 a.m. on June 23. The examination not determine coroner’s could whether Jones her death. engaged shortly had sexual before activity

At 7:15 a.m. later identified as that morning, body, that same decapitated Wilson, Exxie A red was discovered in lot of restaurant. parking dress with a sash in a next was cut was found sash body. dumpster

75 pieces. into No other Four days articles of were found at the scene. clothing later, a.m., 27, 1980, 1 around in an June a wooden box was discovered box, The alley. severed blonde head of Exxie wrapped Wilson was inside in a of blue pair jeans and a T-shirt with the Girl.” pink inscription “Daddy’s (These items of clothing were identified as to another ultimately belonging victim, frozen, Comer.) Marnette The head had been to have appeared been scrubbed or scoured. Wilson, Jones,

The coroner determined that like had died sometime 23,1980. between June The midnight a.m. on head had been probably death, cut off after the victim have uncon- although might dying been scious. 15 to 20 cuts were of Approximately to sever it. cause required death was a gunshot wound to the back of the A jacketed head. .25-caliber bullet was recovered from the head. Three from Wilson’s vaginal samples all contained body spermatozoa.

3. Murder Marnette Comer of 30, 1980, Comer,

On June the nude body of Marnette a blonde prostitute, Boulevard, was found in a ravine off Foothill not far from the freeway. were Freeway lights visible from the site in the where ravine body found. ravine itself was dark at night. Comer had been dead for some time—from 20-90 days according to the coroner’s estimate—and the skin had become dried and mummified. The showed that Comer had autopsy suffered three gunshot wounds to the chest area. Two .25-caliber bullets were recovered from the body. Comer, Comer, Sabra the sister of Marnette last saw the victim May time, 1980. At that Marnette was wearing a T-shirt with the pink words it, Girl” “Daddy’s printed on like the one found with Exxie Wilson’s head.

4. Murder Jane Doe 18

On August (after arrest), defendant’s another body was discov- ered near the Sierra Highway A Antelope Valley. worker inspecting some water nearby bones, towers came upon some human scattered a 10-foot radius about an oily spot that smelled of A decomposing flesh. clump blonde hair was found in the of the site where vicinity the remains were victim, found. The an unidentified young female who had died about one to earlier, two months was designated “Jane merely Doe 18.” The cause of death was a gunshot wound back of the head. The coroner removed a .25-caliber jacketed bullet from the area of the temporal skull. Attempted

5. Murder Mayhem Charlene A. Charlene A. testified that around 10 p.m., April she was on Sunset Boulevard. A man she identified at trial as defendant approached After copulation. an act oral wagon, a blue station and solicited

driving car, stabbing her suddenly began repeatedly she entered back, arms, neck, Charlene ensuing struggle, chest and stomach. *32 At in her hand. knife The blade tendons the blade. severed grabbed by “Mister, said, He hurtin’ me.” laughed blood. You’re one she that’s point, said, and escape. “I was able the car door finally open and know.” She from a identi- lineup, defendant’s photograph Charlene later identified fied him in court. Interrogation

6. Arrest and Defendant’s 11, 1980, On murder Carol called confess August Bundy police confession, Jack said that she her lover. the course of that she Murray, roommate, defendant, had in was discovered June that her engaged sometime in of Exxie She defendant dispose Sunset murders. said she helped As and became more Wilson’s head. she found out more about murders involved, Then, in afraid confided because she was deeply Bundy Murray. him, head, in decapitated that would tell the she shot him the Murray police, Bundy Murray’s knife. Defendant body dispose cut his with a helped head. in involvement was taken for his possible into initially custody murder. He was about Sunset Murray questioned killings. also in

interview is relevant to these crimes several respects. a) Sexual and Attitudes Activities Defendant’s in the Hollywood Detective Orozco asked about defendant’s activities he much” area. Defendant admitted went to the area Hollywood “pretty basis, and to to clubs. Some- regular primarily prostitutes go “troll” for himself, with go times defendant would but other times he would go He on Sunset Boulevard and several other Bundy. picked “hookers” up news locations. One he and “cruised” Anaheim after night, Bundy reading stories of the Sunset because wanted to see other areas where killings they with prostitutes hang Bundy paid out. also sometimes went defendant hookers for “threesomes.” long

Defendant said his mother weird for a knew “I’ve been little time. when I caught She me dressed in her and sister’s underwear was my nine damn near old.” Defendant told that he had “started into years police Switzerland, when then everything” he was the ninth since grade “[a]nd I’ve never been able to look on. It had to be or at just straight kinky at sex communication, hookers, least if the . . . And so with good girl [ft] [ft] second, versa, a human and a instead of vice then ... it being first hooker It—it great. challenge.” up was a Defendant said simply picking he it an hookers was too so started to dancer bars because was easy, going with the “ego to be one man of all those at the bar who walked out trip” addition, said, dancer. In “It kind I also was the of woman look; wanted—tough enough to stand there and ‘You can don’t up say ” touch.’ Defendant told he had known police “about 100 whores” since had living been Los and that Angeles, it was to be able to have a important conversation with a prostitute; defendant would “shine on” a hooker who just how says much and gets down to it. He denied interest any *33 necrophilia.

b) Knowledge Charged Offenses Detectives showed defendant of the five then photographs victims known. Defendant recognized Cynthia Chandler’s as that of a photograph part-time he prostitute had met at the Malibu Defendant her pier. thought name was “Cynthy” or and “Cindy” stated that he had her in number his phone wallet. had two “partied” about a half dozen times. He was when he read upset about her death in the newspaper scared the fuck out of me because “[i]t she had my phone number.” Defendant said he exchanged phone numbers with all the girls he liked.

Defendant otherwise denied knowing about the deaths of the five He girls. had heard of the name Exxie in the but “must have paper, missed” reading about a head in a wooden box connected to the crimes. Defendant told police he read the newspaper “religiously” every day had been specifically interested stories about the Sunset killings because involved they prostitutes.

c) Access to Weaponsand Cars Defendant’s Police asked defendant whether he was familiar with two .25-caliber Raven automatic pistols registered to Carol Defendant Bundy. stated that he had handled both guns and test-fired them into a He telephone book. told he police believed had Bundy rid gotten of or sold them. When police officers said that they would like to have the defendant “I guns, responded, you bet would. I—I can understand that.” Defendant told police he had “no were, idea” where they although he “goddamn knew well” he did not have them and were they “not my area.” Defendant admitted that he custom- arily carried a boot, .25-caliber automatic in a clip-on holster his even he though knew it was unlawful to do so. linked evidence physical indicated had a they piece

When police crimes, have a bullet might Detective Stallcup defendant surmised that have recovered might immediately police Defendant stated pocket. shooting gun into the car” defendant remembered bullets “from because book. telephone knife with silver additionally owning folding admitted knife he He a buck which he have left at work. also had might handle which knife, and he had rid of his buck gotten had to his brother. He said given two or knives. stated he had had three not; did he he defendant if he a car. Defendant said asked owned

Police sometimes, motorcycle. had a Datsun but defendant Bundy’s drove Carol addition, Buick off and until wagon he had driven blue station Bundy’s she sold it. recently

d) Demeanor Defendant’s during questioning, generally cooperative Although are “there some that he was not candid with the officers because fully stated I’m tell O.K?” you, I *34 you going don’t want to know things the coolest murder also that defendant was Stallcup Detective testified only when changed he had ever interviewed. Defendant’s behavior suspect Shannon O. Defend- he about interrogated molesting 12-year-old girl, ant had a they photograph embarrassed when the indicated police became in with her. album sexual activities showing engaged Investigation 7. Postarrest

a) List Telephone From Wallet Seized Defendant’s Defendant’s wallet was when he was detained at the station police seized for The these wallet contained a with words questioning. piece paper one side: C.

“Mindy [telephone number] working

“B. Hills not

“Friend of Cindi’s

“pretty.”

The side contained the notation: opposite Rm left bottom “Cindy [telephone number] “Blonde hooker 30”

“Cathy too.” C.” was Cohen’s actual given “Mindy Mindy number telephone “Cindy” number listed for was for telephone telephone number. Boulevard, Palm in area frequented by prostitutes. Motel on Sunset an b) Search Apartment Defendant’s Orozco, defendant,

At the of the interrogation, conclusion Detective other officers Verdugo went defendant’s Street apartment. out his bedroom and a cabinet which he

pointed filing belonged stated cabinet, him. Inside the filing newspaper opened Detective Orozco found a an article describing the box Exxie Wilson’s recovery containing head, and some pornographic numerous books magazines, depicting necrophilic activities.

c) Rental Garage Defendant’s interview, During defendant admitted he had rented a small storage garage Burbank January given 1980. Defendant told had police up garage other evidence that he May although at trial established had rented it June 1980 and it through July. abandoned sometime Police found several dark stains on the floor which garage to be blood. appeared One was a smear two and one-half feet approximately eight wide feet ifas long, bloody had been something dragged across floor. Presumptive, conclusive, *35 though not of the testing stains blood. One of proved positive the stains was a of the a partial print sole of boot. The itself bootprint also showed a positive reaction to a test for presumptive blood.

Police later a seized of black pair boots defendant was The wearing. sole the of boots the matched bloody This boot in bootprint. was the same which defendant had admitted carrying a .25-caliber automatic.

n 8. Other Evidence

a) The Guns 25, 1980, On April to Bundy applied purchase two Raven .25-caliber automatic aat pistols pawnbroker in Van Nuys. The were guns nearly identical; one had bright a chrome and a finish the other had duller slightly nickel finish. Bundy received the guns on May 1980. in He moved first met defendant 1980. May

Eleanor Buster (Cissy) that defendant habitu- after Memorial Buster testified Day. with her shortly in his boot He carried one usually carried two small Raven automatics. ally guns he had obtained the in his Defendant told Buster jacket. and the other never went out without at a Van Boulevard. Defendant Nuys pawnshop guns with him. taking lost sweetheart. contact high They

Frances was defendant’s school Huys Then, him in Los Angeles her to visit defendant invited 1968. he apartment Defendant took an Huys over the Memorial weekend. Day (the Lemona Street Bundy apart- said he had shared with Carol formerly Huys that Defendant told ment). gun There he obtained a and ammunition. he her that telling for him buy by falsely he had a persuaded Bundy gun Huys and it himself. testified purchase had a federal conviction could silver, the like chrome Raven. gun shiny that defendant’s at the where operator plant Ramos was a steam boiler Carlos Defendant, training Ramos engineer, oper- worked. a licensed steam at work—two cleaning guns ate Ramos had seen defendant the boiler. 15, 1980, another like a .44. On gun August smaller guns large the for guns. told Ramos were search employee police going plant arrived, Raven inside cosmetic Ramos found two police pistols Before Detective hidden in a remote area near the of boiler room. bag top day. the same custody guns took Stallcup 10, 1980, that, August on the 9 to night watchman testified plant not feeling after Defendant said was defendant came to hours. plant signed get building. well and wanted to out something returned and log August plant, visitors’ at 2:06 a.m. on entered carrying any did not see defendant signed out 2:15 a.m. watchman could have jacket but defendant was which guns, carrying wearing A from the like the Raven round guns trip concealed small automatics. would take where were found place guns watchman’s station five minutes. approximately all the recovered from ballistics tests established that bullets

Comparative Raven, of the guns all the victims this case were fired the nickel one *36 found hidden at defendant’s place employment.

b) The Cars time, wagon until the relevant owned a blue Buick station During Bundy she it on also a small Datsun automo- July sold 1980. Bundy purchased cars, living bile. both when not with Defendant had access to even regular he Bundy; drove the Buick. For Buster testified frequently example, Cissy that had the Buick wagon continuously station from the virtually 3) (June 22). he (June moved into her house to the he left Defendant day day used the station wagon pick up Huys May Frances airport witness, Forrestall, and was it when he met driving another Elaine around June 7. testified that Joey Lamphier driving she often saw defendant small car, blue like a Datsun or Toyota. defendant,

After the arrest of Bundy law enforcement officers searched both In the vehicles. Buick station officers recovered wagon, .25-caliber slugs which were traced to both the nickel Raven and casings the chrome A Raven. bullet from the nickel Raven in the was embedded door passenger Datsun. Evidence of each blood was found inside vehicle.

c) Type Blood Evidence seized a police large of a painting ski scene from the Street Verdugo apartment defendant shared with Other evidence Bundy. established that the had painting been time in kept defendant’s rental Several garage. spots of blood were found on the back of the painting. Analysis of the blood spots identified a number of different blood type enzyme characteristics which matched blood from the body of Gina A Maraño. blood typing expert testified that one out only of two hundred would share all of these people characteristics.

A criminologist testified that a blood from the Buick sample station wagon shared seven identifiable characteristics which matched the blood of Karen Jones. one Only person one hundred twenty-five would share all seven characteristics. Some blood in the samples Buick also matched four blood type characteristics of Exxie Wilson. One out of five share persons would those four characteristics. d) Activities on the Date the Chandler/Marano Defendant’s

Murders 11-12, Defendant was with living Buster on June Cissy . the date of the Chandler/Marano Buster testified killings. that defendant her on telephoned June 1980 and told her he would be late for dinner. His work records showed worked from 5:10 a.m. to 12:32 p.m. day.

returned home around 8:30 and went p.m. again out at 10:30 in the p.m. Buick station wagon. Defendant told Buster he wanted to take of a pictures car that accident; was involved in a hit-and-run he borrowed her Polaroid *37 He showed home a.m. later again Defendant returned around

camera. to in He what underground pointed of a car an garage. Buster small pictures liquid red fender the car and said to on the liquid be appeared as similar to the car Datsun Bundy’s Buster identified a photograph blood. her in the snapshots. defendant showed Polaroid e) Writings Postarrest Defendant’s he county in in the sent numerous custody jail,

While defendant was were seized and documents to documents Joey Lamphier. letters other Among at residence. to search warrant executed pursuant Lamphier’s of “case notes.” Defendant summary defendant’s personal documents was columns. One activity entry case and his own actions parallel detailed Chandler, his he had had “4th acknowledged showing his with acquaintance on date June 8. w/Cindy” letters, (quota-

In other defendant to “remember” Lamphier importuned to, if the facts as he wanted her suggesting tions defendant’s original) death. In particular, failed do so she would for his responsible she to be he wanted to Lamphier defendant wrote about a instance which specific the nickel Raven. that he had had the chrome Raven rather than say making house on June being Defendant admitted Lamphier’s in the records for that from her residence reflected telephone calls telephone (i.e., the and to the office of afternoon calls to Laurie Lamphier, Brigges, Gottesman). his buck knife given Defendant had acknowledged Mark also her for following told her to rid of it. He chastised Lamphier get crimes, instructions, to the that the knife was not connected but asserting his if knives. that it would look bad knew he had owned jury his urged investigative eyes legs, to become Lamphier her to scenes” from the murder locations and “see exhorting “photograph for 30 days.” from where #70 a ravine freeway lights lay [Comer] concern, if he An from another document indicated defendant’s excerpt himself, that he have to allow his Maxwell might attorney, represented Keith, witnesses, “if I direct- two do the key cross-examine because (Defendant’s them it will be harmful to our case.” cross-exam on Very Cohen Mindy theorized that note referred to prosecution this emphasis.) on and Laurie the two witnesses who heard defendant’s voice Brigges, him if voice in and who be able to heard his telephone identify they would court. writings physical

Other indicated that at a court-ordered examination evidence, deliberately place finger- handled certain items to so prints them that would be unable police prove any preexisting *38 that fingerprints; losing weight; defendant had altered his appearance by he her that had sent case exhibits to a the State of prisoner Washington A titillation and amusement. that writing by Joey Lamphier acknowledged she had destroyed some of defendant’s letters at his request.

f) Sexual Proclivities Defendant’s In addition to defendant’s statements to the about his sexual police interests and practices, additional evidence was introduced trial.

Defendant was a regular of a bar where Donielle Patton worked. patron Defendant often talked to Patton about his sex life. He complained sex life had become he boring obtaining and was for new looking ways gratification. (sadomasochism) Defendant said he was S & M” “into physical abuse. Defendant also talked about and going “hookers” picking up to “swing parties.” Defendant told he Patton liked to hookers pick up Boulevard, Sunset that it him made feel were far they since so superior women, beneath him. Patton saw defendant at the bar with including various Buster, and, shown, Carol Bundy, Cissy based a she was upon photograph Cynthia Chandler. Patton also testified about one incident when defendant came into the bar He very excited. told Patton that he way had found a new a reaching sexual he would “high”: a her engage prostitute sex and slit throat. Defendant found the jerking motion of her and her body vaginal spasms as she died to be sexually exciting. Patton did not initially believe defendant because she could not believe that anyone would do such actually a thing and then boast about it. 0„

Shannon who at the time of trial testified that she would often ride with defendant in the Datsun or the Buick automobile. Defendant would point out prostitutes standing on street. Shannon once heard defendant say would like to pick up “rowdy and shoot prostitute” her if occasion, she pulled a knife on him. On another with both Shannon car, and Carol Bundy in the present $25 paid prostitute to orally him. copulate addition, three of defendant’s girlfriends testified that he collected and

wore women’s underwear.

B. Defense Case statement, In his opening defendant stated his intent to prove Carol nurse, lover, Bundy, vocational and her former Jack were the Murray, real killers. Bundy granted the district immunity by before attorney she however, did but Bundy Murray, not implicate the defense.

testified for *39 committed the instant crimes. defendant had testified that Bundy’s Testimony 1. Carol

a) Background 1979, Jack living apartments. In late at the Valerio Gardens Bundy was December, country- met at a defendant manager. Bundy was the Murray for looking Defendant Murray sang. western where sometimes nightclub 1980, had moved January February Bundy in By someone to move with. or (the in Nuys apartment) Street Van Lemona apartment to an on Lemona months, next in with her. Over the few defendant had moved times, with various living in several apartment moved and out of the Lemona women for short of time. other periods new Street apartment Verdugo to share a

Bundy agreed and defendant June Defendant moved (the in in late Burbank 1980. Verdugo apartment) testified Bundy. Bundy one week before into the about Verdugo apartment did not on June apartment she was at the Lemona living still and defendant Bundy until that date. Verdugo move to the after apartment matters, including necrophiliac together often fantasized about sexual activities. at a pawnshop two Raven .25-caliber automatic

Bundy pistols purchased guns, in the Bundy purchased Van 1980. before Nuys April day wanted, then guns the he defendant had to the selected gone pawnshop, ex-felon, he was an Bundy them. Defendant told sent Bundy purchase Indiana, it was illegal an armed and that having robbery committed him nickel Raven guns kept pistol, the himself. Defendant the purchase had to both Bundy’s while the chrome Raven was access gun. however, and sometimes carried guns, both. came to the Lemona

Bundy Huys recalled Frances and defendant Day May weekend 1980. immediately before Memorial apartment the nickel Raven Defendant borrowed chrome Raven and left Bundy’s pistol gun he the chrome Bundy closet. Defendant told borrowed Bundy’s because, gun” if he were did not to have a by police, “dirty he want stopped in his and the chrome had not been fired. possession gun previously body Jack

During night August night Murray’s 9 discovered, rid of Defendant left asked defendant to Bundy get guns. minutes Defend- and returned later. Verdugo apartment approximately did Bundy although ant not tell what he had done with Raven pistols, in the hid boiler occasionally to her that he them had confided previously at room work.

b) The Crimes

(1) Marano/Chandler Murders her when defendant telephoned first learned about murders Bundy 13, 1980, her the television news. work on June and directed to watch recovery teenage girls, news bodies of two depicted broadcast *40 Chandler and Maraño.

Defendant told he the on the Bundy picked girls later had two up Chandler, blonde, He in the afternoon of June 11. interested but only leave, he Buick. He girls paid Maraño would not so invited both into the $30 Chandler he did not want orally him. Defendant told Maraño copulate head, her to watch. When Maraño turned her defendant her. Chandler shot in did pulled away, and defendant also shot her the head. The not die girls right so defendant in the head Chandler the away, again shot Maraño and heart.

After shooting girls, the defendant drove to his where he garage, rental their dragged bodies inside and with them from “played” sexually approxi- mately to 8 on a bed he said he p.m. garage. engaged the Defendant kept Maraño, Chandler, in anal with intercourse with and had vaginal intercourse ejaculated twice in Chandler’s throat. Defendant left the garage, returning after dark the up bodies and them pick dump freeway. alongside Defendant gave Bundy two which he through bullets said had Gina gone Maraño’s head. later,

A few days defendant Bundy took for a ride the Datsun to show her where he had off the dropped bodies of Chandler and Maraño. During drive, had the nickel Raven on the seat beside him. pistol Defendant threatened Bundy not to tell police about murders. incident,

Sometime after this defendant told her that he had called a girl Cohen, named Mindy whose number he had telephone among found personal of the belongings two Defendant he teenage girls. Bundy “got told off’ on making telephone call. Defendant called Cohen a second Mindy time and threatened her. Cohen upset became hung up telephone, which caused defendant to He called demanded panic. Bundy work and know where the two Raven were. He that he pistols was concerned might have told Cohen much. too

(2) Mamette Comer girl, killed he had another Bundy May Defendant told that on her Comer) he had (Marnette dumped he “Foothill” because whom called on Comer He told had Bundy picked up near Boulevard. body Foothill He said Datsun. newly purchased while driving Bundy’s Sunset Boulevard fired being she was he had Comer times. When Comer realized shot four names, at him. Com- kicked called defendant angry, she became upon, gearshift and instead broke handle er’s foot missed defendant her,” Comer, her slitting belly. he “gutted defendant shot the Datsun. After Murders Jones/Wilson 23, 1980, a.m„ Lemona June defendant came Around 4:30 or 5:00 her that told Bundy Bundy up, was still woke living, where apartment, Ventura first saw them together he had two Defendant prostitutes.2 killed one of interested sexually only in Studio Boulevard City. them, enter Buick got Exxie Wilson. defendant Wilson Eventually, *41 in the the and her back of He to a lot shot parking alone. drove restaurant her head a buck him. cut with copulated head as she off orally Jones, second then back for Karen the knife. Defendant went to look found he she him. Defendant might identity was afraid because prostitute, her, was not left on street. Jones body shot her and her clothed the fully sexually molested. Exxie Wilson’s

A few later at the saw Verdugo Bundy days apartment, head head kitchen sink. Defendant the swung frozen on the counter near the the hair asked on Then defendant became Bundy put makeup and it. the Bundy worried the would so washed fingerprints, that show makeup box, in placed head. later a wooden which defendant Bundy purchased T-shirt, head, a blue in the Girl” and pair Wilson’s wrapped pink “Daddy’s the in an far the lot where They parking box from jeans. dropped alley Wilson’s had been. body Verdugo apartment to the 2Telephone also a call was made from the records indicated 23, killings. It apartment shortly at 3:08 June the Wilson/Jones very a.m. on after

Lemona defendant, other, and each accused the the Bundy seven minutes. As between of whom lasted caller, i.e., apartment occupied Verdugo is the the on June logical inference whoever did not Bundy living apartment. was the murderer. she was at the Lemona She testified defendant, though she specifically receiving remember a call at that from did remember time Defendant, hand, staying that he came to the Lemona on the insisted he was apartment. other that, when he apartment in the June and He testified Lemona received call. line, telephone answered the there on the he deduced from records phone, was no one but however, account, must would have Bundy According have been the to defendant’s he caller. listened to dead silence for minutes. seven (4) Jane Doe 18 he had in defendant told early Bundy

Sometime late July August in (Jane 18) he “Water Tower” Doe prostitute, whom called picked up and killed her He shot the victim the back Hollywood, Datsun. remote the head while she was him. Defendant drove to a orally copulating towers, car, laid it area near some water from dragged body dead the hood of the car. He sexual with the against intercourse engaged body. Assault Charlene A. when came also described an incident late

Bundy April to the Lemona late at covered with Defendant told apartment night, blood. he had Buick Bundy woman in bar and had taken her to the picked up Nick, station where wagon orally Suddenly, she him. a man named copulated bar, a rival member of a professional murder came out of organization, Buick, opened the door of the with attacked defendant a knife. Defend- ant grabbed his knife in the which visor of Buick and kept began He stabbing man. stabbed the times cut woman numerous instead. She her hand right when The woman severely attempting grab knife. out eventually jumped station wagon away. ran Defendant told he killed Bundy Nick.

c) Move to Verdugo Garage Apartment/Defendant’s *42 12, 1980, On June Bundy applied Verdugo to rent the with apartment, as a defendant Defendant moved co-occupant. into the Verdugo apartment defendant, Bundy. before “a telephone, top to had been priority” already connected. Bundy defendant helped move the belongings, including large ski with the painting the spots, blood from rental garage Burbank the wall, Verdugo apartment. As defendant the ski hung on the he painting laughed told in the Bundy bloodstains back Gina belonged to Maraño.

Bundy and then defendant cleaned out rental out garage. Bundy swept while garage defendant scrubbed stains from the This concrete floor. the only occasion that Bundy was ever inside that garage.

n 2. Testimony Defendant’s

Defendant denied killing Gina Maraño and Cynthia Chandler on June 1980. He admitted he telephoned Mindy Cohen at July 7:11 a.m. on had given that Chandler “Doug,” and identified as but claimed himself calling he he was Chandler. that believed

him that number and phone and that conversation “Cindy” testified that he asked for Defendant He that Cohen became Mindy. names stated Cindy confused between the denied police. and threatened call and hostile hysterical near the girls her he killed the two Cohen or that had threatening telling Forest Lawn exit. Joey from Lamphier’s admitted calls making telephone

Defendant also denied, however, Brigges he Laurie He that told on June 1980. residence homicides. He he was a detective Chandler/Marano investigating him move to the a mover to only hiring help claimed he talked about him with telephone He had Verdugo Bundy supplied claimed apartment. movers to call. numbers of or assaulting of the other murders committing any

Defendant denied evidence, claimed, Jack that Charlene A. He without though any supporting the murders. Murray committed Writings

3. Postarrest Defendant’s he wrote after his by letters and documents impeached Defendant was arrest. incarcerated, defendant while were at- Bundy they letters Carol trial. evidence defendant’s present her false

tempted persuade defendant, was Chiefly, urged Bundy Murray, defendant to testify knowledge indicated writings killer.3 Some of defendant’s firsthand “sexy knew Marnette Comer wore bikini 6’s” (e.g., the crimes her; or met he knew underwear claimed never to have seen although from ravine where her freeway lights body lay). were visible Lyn Compton, prisoner Defendant also with Veronica corresponded *43 Bundy the State in which he referred to have Washington, plan “lay his to dear, if it dead and his threats to retaliate [Murray],” on Jack [the murders] did “foxy attorney she not. Defendant also wrote that needed a blonde” to “offset the ‘blonde whore’ motive.” Defendant sent coroner’s photographs and other case for her Much of his Compton writing materials to amusement. matter, sexually including consisted of oriented references to necrophilia. also ‘Pro times” had “case so “gone per’ 3Defendant boasted that he had least 3 Nightmare, fraught should Judge’s rulings appeals with controversial it will be an court it get by defendant.) ever so far.” (Emphasis Phase Issues

II. Guilt A. Defendant’s Representation

Defendant with to his regard makes a number of interrelated contentions representation.

1. The Facts A361671, In No. with six originally charged case defendant was murder, counts of three counts of sexual minor Shannon against misconduct O., and one count of an to the murder of Jack being accessory Murray. 20, preliminary hearing charges on those on October 1980. Defendant began was then represented by Henry, Karl an attorney apparently appointed him. represent Defendant was held to answer on all charges. 13, 1980, arraigned was court on November on superior counts,

same with the addition of count of human remains of mutilation Code, (Health 7052). and Saf. Because the defender a public declared § conflict, the court Paul defendant. Defendant appointed Geragos represent immediately (in moved to act as have “pro assistant counsel per” propria persona) privileges jail. other for Among reasons requesting status, cocounsel defendant stated that he had been with Henry’s dissatisfied representation the municipal (Judge Keene) court. The trial court denied 9, 1980, the motion without On prejudice. December defendant’s renewed motion for cocounsel status before hear Judge judge assigned to Ringer, motions, pretrial was heard and again denied. 12, 1981,

On June Geragos was relieved of a ground conflict of interest, and Maxwell Keith appointed defendant. Defend- represent ant law requested library privileges for the suit filing civil purpose against former attorney, Karl Henry. The court denied the request. 6, 1981, On July Judge Ringer granted defendant’s se” request “pro privileges, law excluding library access. Defendant described the se” “pro as “the privileges same things as but I don’t need pro per, the law library.” November Keith moved for an ex order that be parte defendant granted law library in order privileges to assist with the preparation Judge defense. Ringer granted the motion on 1982. ultimately April Defendant was accorded law library two hours seven privileges per day, days addition, week. In sometime before a different April judge Watson, appointed second attorney, Penelope in the assist defense. 2, 1982, filed, On case No. April A377385 with charging *44 the attempted murder and of mayhem Charlene A. The defender public defendant because of a conflict of interest. represent it not

declared could of either Keith or because of Watson appointment to the objected No. the murder case dealing with multiple charges their responsibility to Wesley appointed represent David was request, At defendant’s A361671. A. was hearing charges on Charlene Preliminary him on the new charges. time, 14, a continuance to requested At that Wesley set for 1982. April The motion for and of an affirmative defense. pursue discovery preparation held, denied, despite was hearing and the preliminary continuance was was and would therefore ready that the defense Wesley’s declaration was to answer on the charges. mute. Defendant held stand 1982, 9, Wesley’s for consolidated trial. On June the two cases were repre- and defendant was was therefore terminated separate appointment Keith and by sented on all the Watson.4 charges 8, 1982, The remained to be decided. On several motions pretrial July date, 26, I “What mean stating 1982 as a firm that July court set trial to all motions that are be remaining trial date is we conclude [that] motions are all long selection as those jury, handled to the of As prior H] made, parties, including ...” Both upon, get panel. heard ruled we defendant, to this agreed procedure. The court

The continued to 1982. hearing July on motions pretrial The court discovery. and denied in Keith’s motion for granted part part he hearing remaining if waived for trial on asked defendant time so Defendant, with Keith over angry could be continued. motions apparently denial of refused waive time and partial discovery, purported Keith, “I’m case.” handling dismiss this declaring thoroughly capable heard, and the court Because several defense motions remained be motions, found not want to abandon the the court presumed did waive time. for the continuance defendant’s refusal to despite cause good On August 1982. Judge Ringer set a new trial date thereupon on but was not began, defense motions August hearing remaining unavail- August continued the 12. Keith was hearing concluded. court 13,1982. The heard court hearing able on that date. resumed on August some At defendant declared that point, and denied of the motions. Keith) bring a had a with one and wished to (presumably conflict counsel under 422 U.S. L.Ed.2d motion Faretta v. 806 [45 California counts, ultimately only tried six the count mutilation 4Defendant the murder remains, charges mayhem human murder and counts. The attempted Charlene A. severed, accessory charge involving prosecutor Shannon O. were withdrew Murray. the murder of Jack *45 himself, a motion under Penal Code S.Ct. to with represent coupled 2525] (Watson) to him. have additional counsel assist appointed section 987.9 to in the master bring advised defendant that he could his motion Judge Ringer agreed. The court could not conclude proceedings calendar court. motions, and the matter was continued. remaining all motions, Ringer remaining On of the August Judge disposed pretrial assignment the case for immediately department transferred to another to he had his Faretta judge. given a trial Defendant informed the court that Keith, that motion to to the court’s instruction defendant papers pursuant should file his that Keith refused to file the papers only through attorney, but Judge told he make his motion papers. Ringer orally could Faretta before the master calendar court. 20, 1982,

The next before day, August parties and counsel appeared court, Leetham in the Judge master calendar the case for trial assigned who to Judge Judge Torres. Defendant told Leetham that he was “not represented at these “is proceedings,” that Keith not .... Keith is my attorney Mr. not me.” Defendant he representing also stated that had filed a Faretta motion and a for motion appointment Judge cocounsel. Leetham trans- ferred the matter to Judge Torres’s courtroom.

Judge Torres considered defendant’s Faretta motion. Defendant explained that he had attempted declare a conflict he of interest with Keith and that had transmitted written Faretta motion Defendant stated he papers Keith. had also included an application under section 987.9 have Watson ap- him pointed assist self-representation, his Keith file but had failed to the written papers. Defendant announced he that therefore considered him- cocounsel, self in propria persona with Watson as his unless she did not wish himself, serve that capacity. support desire to represent defendant referred to additional motions “that are not being prepared be," should and stated that “There are will be delays necessary because of discovery.”

Keith counsel,” I attempted, “while am still to have defendant enter a plea of not guilty by reason of insanity. Defendant “Therein lies the responded: conflict, Your I Honor. am guilty by any regard, way, shape form. ... ^[1] There is no rapport, communication or any legal way that we can do business together.”

The prosecutor objected to defendant’s motion self-representation. He pointed out that since Watson did not wish to remain as if cocounsel himself, defendant represented would be effect discharging two expe- case, rienced counsel who were familiar with the even though defendant *46 very Watson competent that “Miss is She’s fully qualified. conceded her faith in He he “satisfied with I have utmost her.” stated that was attorney. if The defendant prosecutor argued subsequently of me.” that representation counsel, need additional acquaint of other the to appointment demanded delay. unjustifiable the would cause counsel with case “[tjhat that noting the motion as untimely, Torres denied Faretta Judge the case today” here for trial and that matter has been transferred in an estimated a hundred witnesses involving over extremely complicated, the not guilty the of of question plea trial. Keith raised again six-month reason Defendant refused to enter such insanity. plea. of reserved, and defense counsel final to had been suppress One motion Over unfiled motions. stated wished to three additional they pursue that 25, 1982, hear to to August the matter was continued objection, prosecution date, jury The were of on that the new motions. motions disposed selection, In middle jury 1982. the of September selection commenced 20, 1982, in this he was “unrepresented defendant stated that September courtroom,” this trial. After that Keith was for complained unprepared Keith, outburst, defendant was generally denigrating and additional remarks next Defendant to the courtroom the removed from the courtroom. returned day, 1982. September 27, 1982, to

On conduct jury the court selection interrupted September A., the of Charlene regarding testimony attempted the identification hearing session, counsel victim. At the end of afternoon defense murder/mayhem that hearing desired ex to show parte informed court that defendant an new The court counsel was and that he needed counsel. trial unprepared 30, 1982, the court she denied the On Watson told request. September wished file a had his reasons for explaining to letter defendant written The 27. refused receive the letter. request September court begin, On statements were scheduled to day October opening he told the court to renew his and to defendant wished Faretta motion he was ready himself with Watson as He stated that not cocounsel. represent “the as right for defense a whole now is not because ready” trial named a defense had never attorney district had number of witnesses (including did attorney heard Defendant thus not believe any competent of. as trial under those acting himself his own would declare for attorney) ready if he ready The court advised defendant that to proceed circumstances. forthwith without the motion would any attorneys, granted. be instead he date with of the complained up progress “was not case.” Because defendant did want to apparently immediately, proceed the court denied the motion. trial, 12, 1982, fourth Watson told court day jury

On October proceed and to propria that defendant wished to relieve both counsel he the incompetency Defendant claimed that so moved because persona. forthwith, but that Defendant stated that he was ready proceed counsel. of a counsel under would move second immediately appointment that, if section he wished represent 987.9. court informed himself, he with other attorneys. should be forward no prepared go *47 court denied defendant’s Defendant thereupon self-represenation. motion for then moved and proceed represented to dismiss Keith for to incompetency alone, by Watson Keith The court effec- alleging “totally unprepared.” denied the motion the tively by bringing jury. out The day, next defendant renewed his to The motion himself. represent court again stated that defendant’s for would be motion self-representation considered, that, if but granted, defendant be representing would himself without the assistance of if any counsel. Defendant asked the court was him requiring to right waive to file motion under section 987.9 for motion, assistance of counsel. The court stated that defendant file could but that it would be denied. The court also out that pointed investigators (William and Stenberg Sarkis) Susan had already been under provided section to 987.9 assist preparation of defense. Defendant stated he that himself, wanted “absolutely” to and indeed represent that “I’ve wanted be to 25th, [sic, since pro per approximately November apparently Novem- ber the date he was arraigned court and superior Geragos was appointed].”

. court advised defendant rights his constitutional as well as rights, and responsibilities risks attendant on It self-representation. found that defendant and knowingly intelligently right waived his to counsel and stated that defendant would be allowed to himself if he represent wished. desire; Defendant stated that was his he also said that he did not want be his own attorney but was “forced” to because “It’s life my proceed with Mr. Keith as my attorney ... is suicide.” Defendant called Keith “a attorney,” buffoon and said that he was not he prepared and that came to court “half inebriated” in the When afternoons. the district attorney started to Keith, defend the court stated that the claims were “so outrageous they don’t warrant an answer from the It court.” then granted the motion self- It representation. ordered Keith Watson to remain court as “standby counsel.” Keith requested a hearing to determine defendant’s competence waive counsel. The denied court the request. 14, 1982,

At close of the day on October requested “combination legal runner-clerk.” The court promised approve any qual- ified person whose name was submitted by investigator The next Stenberg. continuance, 18, 1982, defendant moved for a one-day day,

trial October only he was unable to because prepare properly had been alleging he The court materials from jail. two boxes of to and transport allowed to materials all necessary both defendant and transport that the sheriff ordered from jail. to and 19,1982, Wesley court that had seen defendant advised the

On October a legal to consult he would be allowed in the and asked whether courtroom that, if an hired The court stated if funds one. adviser he had available legal as defendant’s that he was retained court attorney represented adviser, Defend- with him. allowed to consult defendant would be certainly list discovery court he would have a prepared ant also advised the court, however, any discovery defendant that next told morning. Jack (i.e., the Carol murder against Bundy items related to the case Bundy’s Carol granted. complained would not be Murray) *48 arrest and that witnesses the cause for his probable statements had provided to The court told defendant were therefore relevant. Bundy’s to statements motion, did time to that he not have argued written but defendant prepare written motions. prepare status, “as of he his in persona

Defendant stated that “resigned” propria case, refuses . . the court to allow me to this prepare now . because refuses rather my allow and refuses to trial tactics discovery, present to me evidence whether than Mr. Keith’s half-wit trial tactics.” When the court inquired however, stated defendant giving up defendant was his self-representation, status, he desired he wanted but that “emphatically” persona his propria defendant the court make orders for and for of discovery, transportation accused the and his materials to and from the Defendant berated and jail. the The court court of of case. intentionally “blockading” preparation the get that the sheriff was “to repeated everything possible its order do their defendant the to the best of evening, back to Jail each County every ability.” 1,1982, filed an motion

On November defendant ex parte appointment The defendant law student clerk. court denied the The court told of a motion. himself, the he try getting he would have to case that would “not be not handle If time defendant he could large any staff to this.” felt big himself, the the in be terminated and status could represent propria persona standby would be attorneys reappointed. court,

After this and other of the his cross-examination rulings during witness, mute defense prosecution defendant declared that the “stands the the court throughout the rest of the trial.” Out of jury, presence himself, right found that defendant had renounced his represent counsel, Watson, ordered the Keith and reinstated. standby attorneys were until the afternoon session to continue attorneys given prepare cross-examination. on

At the commencement of the session November afternoon he did not be near” Keith if “anywhere informed court that wish to cross-examination, the case. At the recommencement of the conducting defendant stated did him and that jury represent front of that Keith not he desired Keith to and do on his in the case. When the say behalf nothing trial court him jury admonished not to defendant told the say anything, “be aware” that “Mr. Keith is me.” my attorney not and does not represent Keith conducted the defense cross-examination for balance of afternoon. 2, 1982,

On the morning of November Watson to the court represented that defendant had reconsidered his mute trial and posture standing during that his requested status be reinstated. The propria persona granted court with request, Keith and again standby. Watson court admonished jury to concern with itself whether defendant was representing himself or not. 2, 1982,

theAt close case on People’s December defendant moved *49 to all dismiss on counts that grounds the trial court improperly removed his in propria persona when he to privileges chose stand mute trial, during the and that the court prejudiced against jury defendant’s conduct by restoring an with self-representation alleged admonition to the jury that defendant had The “apologized.” court denied the It motion. stated that “a defendant cannot stand in up at trial and he point say that mute, wants to stand Iso chose to your have take over attorney the case.” The court misbehave, also admonished defendant that you “the minute you are going to find your attorney sitting right next to you.” 2, 1982,

Defendant made opening his statement on December stating intent to demonstrate that Bundy and Jack had Murray committed the 6, 1982, murders. On December defendant and the court discussed the of production certain documents or of items demonstrative evidence for in presentation defendant’s The case. court he admonished defendant would have to show or, relevance before the items would be in admitted some cases, ordered produced. Defendant production of requested numerous items van, of evidence from Murray’s where shot and then Bundy decapitated Murray. The court ruled that in evidence case Murray was irrelevant. Defendant threatened to ask for continuances until the items were requested him in to entire defense requiring “pre-try my court of accused the

supplied, “you’re and asserted off way tangent attorney,” of the district front somewhere.” conduct himself or his properly, propria

The warned defendant to court him have to be taken and told that would privileges away, would persona the court he liked the court’s not. Defendant told rulings behave whether mind it of of made its about having up that and accused “stop crap,” lying, case, in the Bundy having the case heard motion preliminary because remarks, defend- abusive and of other these other improprieties. Despite proceed ant did examine defense witnesses. court on December took morning

At close session funds certain out-of-state transport chambers defendant’s for up request ground were denied on the largely witnesses to the trial. The motions offer relevant infor- any defendant failed to show that the witnesses would ex the court admonished Following parte proceeding, mation. that from cross- on the record that conduct of the defense case different witnesses, many it was prosecution likely examination of be The prosecutor’s objections defendant’s would sustained. questions defendant, such with argue rulings court warned defendant that it would not out Defendant accused running you.” and that the court’s is with “patience The that he could lose his the court of bias. court warned defendant if he status the courtroom. Defendant stated: “You persona disrupted propria intimidate threatening, threatening you trying You that—are keep keep [f] Well, me, [j[] me? can’t do You have threatened have you goddamn you that. me, your job?” brow beaten will back off and do court you just thereupon revoked defendant’s propria persona privileges. 8, 1982, Keith matter was continued until December to allow

Watson time to the defense On December case. prepare presentation *50 status, Keith in indicating moved to restore defendant’s that propria persona defendant for wished to his demeanor on December 6. court apologize the in but denied the motion restore defendant’s accepted apology propria status, persona “He’s the of this and the stating, dignity abused court privilege. ^[1] It’s denied, and it is going be restored.” Keith and Watson defendant for the represented balance of trial. Analysis

2. many during contends court erred on occasions these events. We at reading note the outset that of this record “[ajny dispassionate reflects that this on defendant was with the court this issue.” playing games

97 882, 374].) Lopez Cal.Rptr. v. (People (1981) 116 889 [172 Cal.App.3d Indeed, he Bundy defendant in letter to that attempted once implied below, 3, ante.) he has (See manufacture reversible error. As explained fn. not succeeded.5

a) Motions Cocounsel Status re and Ringer

Defendant contends that Keene Judges improperly and that grant Geragos, fused to 1980 to act as cocounsel with his motions in they ruling failed to exercise discretion motions. any It have a both be right is settled that a criminal defendant does not own case. represented counsel and to of his by participate presentation Indeed, an (People such is v. Frierson arrangement generally undesirable. 730, 440, (1991) 1197]; 53 Cal.3d 741 P.2d v. Cal.Rptr. People 808 [280 669, 1194, 698]; (1989) Bloom 48 Cal.3d 774 P.2d 1218 Cal.Rptr. [259 People (1989) v. Hamilton 48 Cal.3d 774 Cal.Rptr. [259 730].) it Although may court authorize “substantial” upon showing P2d will that it justice judicial case promote efficiency particular 741; Hamilton, (Frierson, 1162), at such p. p. showing no was made here. Moreover, it is from the remarks plain courts’ understood they Keene, and consciously exercised their just discretion. who had Judge appointed Geragos, knew that defendant had not to work with yet attempted his He attorney. stated that expressly was without ruling prejudice. Judge Ringer considered defendant’s stated reasons for as desiring appointment cocounsel. Defendant’s concern was that his need primary counsel would assistance handling the case. The court advised counsel that second attorney a law clerk would be an appointed upon appropriate request. Defendant’s further concern wished to understand the proceedings him against and to assist in the preparation of defense was adequately accommodated ability to consult with his attorney. Counsel appointed law; did not need express a for defendant’s assistance in researching rather, he planned to the assistance an request attorney associate or law clerk. There was therefore no abuse discretion denying to the (See access law People library. Warren 45 Cal.3d 218].) P.2d *51 5Defendant has campaign against continued his attorneys his various on this has appeal. He filed various motions and other demanding documents that his be appellate attorneys removed merit, and new ones appointed. As the motions we lacked have denied and them other propria persona in separate motions orders.

98

b) Marsden Contentions Faretta and 1982, 26,

(1) July Request 1982, that, 26, he a knowing made July Defendant claims California, supra, under Faretta v. self-representation voluntary request 806, 422 denied. Judge Ringer improperly U.S. which based, “must be although constitutionally to right self-representation, (See Faretta the defendant. unequivocal initiated assertion by timely 581-582]; People 422 L.Ed.2d at supra, pp. v. U.S. at 835 California, p. [45 121, 8, 1187].)” Windham, P.2d 560 Cal.Rptr. v. 19 Cal.3d 127-128 [137 753], 875, (1977) Cal.Rptr. (People v. 74 888-889 Cal.App.3d [141 Salazar italics.) original contention, 26, 1982, unequiv- he did not to defendant’s on July

Contrary most, annoyed defendant was his At ocally right assert self-representation. he Although motion. discovery at Keith’s failure to win defense completely Keith, han- stated “I’m thoroughly capable to “dismiss” purported case,” his discharge ap- he never the desire to both dling this expressed 116 (See People Lopez, supra, se. attorneys and to pointed proceed pro court out 889.) Additionally, pointed trial p. properly Cal.App.3d Defend- were and unheard. several defense motions still suppression pending did not ant stated that defendant presumption did not contradict court’s his “Faretta” wish to abandon those motions. Defendant’s contention thus merit.6 motion was denied is without improperly (2) August 1982 Faretta Motions amake attempted

Defendant next contends that several times he 1982, and that all Faretta motion during pretrial proceedings August three denied them. judges erroneously whom addressed motions

“Although a right represent defendant has federal constitutional 806), 422 an (Faretta (1975) himself U.S. in order to invoke v. California ‘ right prior unconditional he must it “within a reasonable time assert ’ [(1989) (258 commencement of (People trial.” v. Burton 48 Cal.3d 852 1270)], 771 Cal.3d P.2d v. Windham Cal.Rptr. People quoting A P.2d motion made after this 1187].) period (Ibid.) court is addressed to the sound trial court. discretion ‘ should consider factors representation such as the of counsel’s “quality 6Wetherefore need because improper not consider his further contention that denial prosecutor stated extra prepare that he himself needed time to for trial.

99 defendant, counsel, the defendant’s to substitute prior proclivity and the length stage proceedings, reasons for of the request, which disruption delay might reasonably expected be follow ’ 853, Windham, (Burton, of such a at granting supra, motion.” p. quoting Frierson, supra, 128.)” 742.) at v. 53 Cal.3d at p. (People supra, p. Defendant contends that his first made Faretta motion was on 13,1982, date, August and that as of date On timely. the motion that Judge directed defendant his in the master Ringer bring motion calendar court, as it affected conduct of trial rather than the pretrial proceedings. assessment, The court was arguably wrong this as indicated Judge Torres on August 20 that he believed additional motions pretrial been, been, should have but had not Defendant’s motions were prepared. continued, court, apparently the convenience so defendant should 20, not be charged with the delay (See between 13 and August August 1982. 780, People (1983) v. 142 249].) Ruiz 789 Ac Cal.App.3d Cal.Rptr. [191 we must determine cordingly, whether the timely Faretta motion was as of 13, August 1982. on People (1978) relies v. 21 Wilks Cal.3d 460 Cal.Rptr. [146

364, 1369], P.2d 578 for the that the trial proposition court was without motion, discretion to deny Faretta he made because it before the actual Wilks, however, commencement In of trial. the court granted motion for self-representation made over month before trial was scheduled begin. (Id. at 464-465.) We pp. did not establish a hard and fast rule that any motion made before trial—no matter how soon (Id. before—was at timely. pp. 467-468.) v. People (1977) 121, 8, Windham 19 Cal.3d Cal.Rptr. 1187],

P.2d we did not fix at any particular time which a motion for self-representation is considered other than it untimely, that must be a (See Ruiz, reasonable time before People trial. supra, v. Cal.App.3d 790-791; People (1985) 645, 652, 163 Cal.App.3d Hernandez fn. 7 [209 Nor, 809].) Cal.Rptr. so, despite invitations do have we adopted rigid rule any Faretta motion made before the actual commencement trial is deemed (See timely. People v. Burton 48 Cal.3d 853-854 [258 1270].) 771 P.2d

All the 8, 1982, parties counsel agreed on July pretrial that the motions 26, 1982, would be concluded July and the case immediately assigned for trial. The court continued the matter to August and the case was thereafter continued aon in the day-to-day basis that the expectation motions would be concluded and jury selection set to begin any time.

100 13, Thus, his first Faretta motion— 1982—the date defendant raised August case, to court had discretion eve of trial. That the the being was effect the Frierson, 742.) 53 at supra, p. the v. Cal.3d (People motion. deny Windham, at supra, p. Cal.3d People A v. 19 review of the factors stated above, 128, within discretion convinces us that the court acted its quoted Torres, on who ruled Although Judge ultimately denying the belated request. case, motion, the record the with he noted on the was not familiar the files, made by filed many appearances motions and including voluminous file supports Even a examination of the cursory Keith on defendant’s behalf. was representation a determination that counsel’s quality reasonable Moreover, claim representa- defendant did not that Watson’s even adequate. fact, fully “Miss is In he Watson acknowledged tion was incompetent. I in her.” He have utmost faith very attorney. She’s a competent qualified. of me.” representation “satisfied with her further indicated was counsel, factor, The to substitute proclivity second the defendant’s 13, 1982, denial of the motion.7 by August supports well and apparent dispar- He had already by attorneys. Defendant had been several represented and and indicated that attorneys Henry Geragos, of his aged performance He court Henry proceedings. he had attempted discharge municipal sue Henry Geragos. had threatened to both and factor, The third the court’s request, supports reasons also did a with ruling. Defendant reasonable basis for dissatisfaction provide defendant and his Although counsel’s between performance. disagreement evident, and counsel over conduct of the and trial tactics was proceedings Keith, main defendant claimed there a “conflict of with interest” articulated defendant should enter a disagreement—whether plea source insanity—was according of not reason of resolved to defendant’s guilty wishes. The and Keith did not alleged lack of between defendant rapport Amendment does not Sixth require grant self-representation. “[T]he ‘ and guarantee “meaningful between an accused his counsel.’ relationship” (Morris (1983) U.S. 14 103 S.Ct. Slappy v. 461 L.Ed.2d [75 1610].)” (People Cal.App.3d Jeffers 692].) proceedings. 7Defendant had demonstrated his in the He twice temperament early mercurial challenge Judge Ringer threatened to for cause because of dissatisfaction with the court’s housing county jail orders with at respect privileges protest defendant’s and addition, sequence pretrial in which the motions to be defendant was were considered. 21, 1981, voluntarily hearing hearing absent from a a date for further on December set pretrial Judge Ringer motions. When he would certain motions to in limine indicated remit trial, Keith, as proceedings any he asked “Will flak Mr. Clark is done an there be from if it me, during try discharge you, discharge discharge in limine motion trial? Will he Mr. Jorgensen, discharge the universe?” The militated length proceedings against granting of the also stage motion for concluded at proceedings, nearly self-representation. pretrial motion, years. the time defendant raised had taken almost two trial, had subpoe- estimated a six-month twice issued prosecutor already *54 nas to which been seventy witnesses before two trial dates had previous Ruiz, (See continued at 142 People supra, defense request. Cal.App.3d 780, 786, 792.) if

Finally, delay or which would result disruption proceedings that, the motion were granted also its denial. Defendant contends as supports 13, 1982, he August made no indication that continuance would be necessary on account of self-representation, his nor did he unequivocally indicate thereafter that be The record any continuance would necessary. belies defendant’s claim. The reason defendant did not indicate on only 13, 1982, August that continuance would be is that the did necessary court heard, not then entertain the motion. When the motion was Keith’s failure to file pretrial additional motions or other enforce pretrial proceedings to compliance with discovery orders ex- figured defendant’s prominently pressed reasons for wanting represent himself. of these import complaints was that defendant wished to conduct further proceedings pretrial that defense could not be ready for trial without full with compliance orders. The discovery court could reasonably have found that the motion for self-representation would have entailed an undetermined of delay. amount sum, consideration of the Windhamfactors demonstrates defend- ant’s legitimate interests did not overbalance the to the disruption proceed- ings, delay, and potential for abuse which would be engendered by granting the motion. (People v. Hall 87 132 Cal.App.3d Cal.Rptr. [150 628].) We find no abuse of discretion in the trial court’s denial untimely motion Frierson, for self-representation. (People v. supra, 53 Cal.3d 742.) at p.

(3) Marsden Motions Defendant contends the trial court committed error under People v. Mars (1970) 2 den Cal.3d 118 P.2d on three occasions. 44] The contention lacks merit.

(i) September 20, 1982, On dire, September during jury voir defendant told the court that, if the court was going to conduct business on his trial four only days week, he would prefer to have Wednesday off rather than He Friday. Fridays. on making Keith courts appearances other

complained hasn’t DA saying this he’s written a letter to the “How he do when can He is not 30 witnesses that are on witness list[?] even heard of almost [ft] now, He’s not he has no for trial. preparing for trial intention prepared interested, I’m Okay. through.” [ft] a very were attorneys “doing that both defendant’s responded court had other matters to defendant that court

good explained job,” attorneys should assigned Fridays expect on and that defendant they represent entire were give practice simply appointed their because up Rather, have trial would to attend they him. for the duration of defendant’s their clients Fridays. other only *55 the

Later criticized Keith’s conduct of voir dire. When day, that defendant court, the defendant addressing responded to defendant’s prosecutor objected asshole,” “Shut and was removed from the courtroom. you up, stated, “I’m was a time later and going Defendant out short brought Keith in this He’s not object repre- that Mr. does courtroom. everything in I’m represented me. ... . . . . not my This isn’t case. . senting ['ll] [ft]. I’ve . If that buffoon out of you get this courtroom. told that. . . will you [ft] here, court, on. as that buffoon long this leave Miss Watson we’ll As go [ft] here, fine job. I’m . . is a She can doing is not to. . Miss Watson going [ft] handle will the case. Just the buffoon out of the courtroom and we get proceed.” added of that Keith to his list about Keith complaints “look[ed]

like he rolled out of the Main hair out sticking Street Mission with his time,” everywhere,” and “like he in his suit of the slept most clown in two defendant seen that this courtroom for over except “ha[d]n’t weeks.” him

Defendant further the a “railroading” “dump accused court of with courtroom, abusive, truck” threw and was attorney, things generally court to with I’ll cease the telling the “put up my profanity, profanity [ft] vein, said, further when I’m After discussion a similar Clark pro per.” courtroom, I’m “As as that counsel is I’m not here. long repre- The court then removed him from the courtroom. sented.”

Defendant now asserts that consti September his of 20 complaints Marsden, tuted Marsden 2 we when supra, a motion. Cal.3d held that seeks to discharge defendant counsel and substitute another attorney ground inadequate the court allow representation, must for and to relate instances of basis the motion explain specific allega- he made attorney’s deficient Defendant contends that performance. which, true, if were sufficient to show that hearing tions at September of counsel. receiving was not effective assistance however, not, Defendant’s Keith did constitute Marsden diatribes about was a fine pointedly acknowledged “doing motion. Defendant that Watson she never asked for was case. He job” capable handling counsel, (Cf. discharge People but Keith. appointment only substitute 833, 854, Crandell 46 Cal.3d 760 P.2d 423] alleged inadequate ground wishing as a representation [Defendant himself represent to Faretta. Not pursuant having requested appointment counsel, a substitute Marsden were not also procedures required.].) Watson circumstances, represented defendant and had full confidence. Under the no additional the court inquiry by was needed.

Moreover, defendant was allowed to state his did fully grievances. They not provide a basis for a meritorious Marsden motion. The claim that Keith for trial unprepared on letter Keith apparently based wrote to district deputy attorney, complaining that the defense had not heard of a *56 number of persons listed on the prosecution’s witness list. Defendant’s accusation merely seized on and took out of context the of rhetoric Keith’s letter. The alleged of existence such a letter does not establish that Keith was to unable be for prepared trial. Neither Keith nor ever Watson indicated a lack of with familiarity any witness which a necessitated continuance or other delay.

Defendant’s complaints about Keith’s conduct of voir dire address matters which are within the of the scope attorney’s authority to control the conduct of and proceedings, do not establish a basis for substitution of counsel. (People 616, (1983) 462, v. 34 Cal.3d Cal.Rptr. 631 P.2d McKenzie 668 [194 769]; People 894, v. 2 (1970) 208, Williams Cal.3d 905 471 Cal.Rptr. [88 1008].) that, P.2d selection, Similarly, the allegation jury defense during counsel had not personally consulted with defendant at the jail does not Crandell, establish incompetent (See v. representation. People supra, 46 833, 859.) Cal.3d

(ii) 30, September 27 September 1982 27, On September Watson the bench and approached informed the court that defendant desired ex an parte so that he could hearing show that “counsel was and that he unprepared” needed new counsel. The trial court denied the 30, 1982, for request a On hearing. September Watson told

104 file letter defendant had his reasons explaining a written wished to court she letter, 27. court to September accept refused for the request is denied.” through attorneys, your goes request that stating “[i]t error that the trial Marsden now contends court committed Defendant or receive letter. hearing to to defendant’s refusing grant reasons for trial refusal to listen to a defendant’s a court’s Generally, with the standards set counsel does not comport substitution of requesting need the defendant forth in Marsden. We there emphasized permit in order to permit specific inadequate representation, enumerate instances 118, Marsden, supra, 2 Cal.3d v. (People exercise of discretion proper 124-125), (see People review v. as well as to afford appellate Cruz 740]). Cd.App.3d Cal.Rptr. [147

However, of court-appointed right discharge “the substitution absolute, unless there is is is a matter of discretion judicial counsel not right the defendant’s to the assistance counsel showing sufficient if Carr (People denied.” substantially would be his impaired request 287,299 705,502P.2d 513].) Defend (1972) 8 Cal.3d would be ant failed demonstrate that his to assistance counsel right if his motion to Keith was denied. impaired replace to air about Keith on complaints Septem- had been allowed His ber his accusation Keith was trial. including unprepared renewal, later, one week of a similar accusation did court compel Indeed, Marsden, 118. supra, conduct an additional under Cal.3d hearing himself with on October moved to again represent cocounsel, “not ready Watson as on the asserted that the defense was ground . an prosecution . . ... on the fact that there’s abundance of base[d] *57 ; witnesses that have been named . . . we have never heard of them.” demonstrates, therefore,

record that repeated allegations that defendant’s Keith was derived the same letter defendant com- “unprepared” from that 5, however, about on 20. Defendant on plained September admitted October he was in the in the “totally that unaware of what has occurred case last 60 I do I if granted, not know what has been do not know days, discovery [and] Keith’s gotten Mr. names and addresses of the witnesses to send inves- around . . . .” This shows had no informa- tigators that defendant specific Watson, that not tion Keith was for trial. who also prepared Significantly, defendant and was thus in to represented validity a better position judge be, of complaints suggested defendant’s than the court ever could never there was merit it consider the despite them the court’s that would suggestion circumstances, if matter her. Under the trial court brought such through required was not to a each time defendant made same hearing afford accusations.

105 (4) Waiver Counsel Defendant, court de- argued erroneously the trial having that previously that, himself, he when his Faretta to now contends

nied request represent should have been ultimately granted motion self-representation, and intelli- denied. He he not make voluntary, knowing contends that did 13, assumed his gent waiver of counsel before he defense October 1982. below, As the contention is without merit. explained (i) Marsden

Defendant’s first is line attack that he waived counsel because the only trial court Marsden, him erroneously People failed to afford substitute counsel under

supra, Cal.3d 113. We have defendant’s claims already rejected of Marsden error as 20 and proceedings to of September September 1982. On October defendant informed the he still wished represent court to

himself, cocounsel, that he wanted Watson he as that would appointed need two-week continuance to for prepare trial. court informed defendant he would be himself if he permitted represent go could forward without immediately appointment additional counsel. Because defendant forthwith, did not want to proceed denied. motion was On October defendant moved to dismiss both his attorneys “[f]or counsel,” reason of incompetency inadequacy of and stated he was ready “forthwith,” represent himself but his next would be to move step for of second appointment counsel. When the court reiterated that it would allow defendant represent himself if he were forward without the ready go an appointment attorney, his claim that abandoned both counsel were incompetent; although he moved to dismiss Keith “for incompetency,” he alone,” also stated that he would with Miss Watson “proceed once again alleged Keith was “totally unprepared.” The gist of defendant’s motions on October and October 12 was himself,

wished to represent not to substitute “A counsel. request self-representation does trigger conduct a duty Marsden inquiry (supra, 118) Cal.3d to suggest substitution of counsel as an alternative.” Crandell, (People v. supra, 854-855.) 46 Cal.3d The court did not *58 commit Marsden error in failing to conduct a on those dates into the hearing reasons for defendant’s dissatisfaction with counsel.

(ii) Mental Competence to Waive Counsel Defendant’s Defendant contends that when the court his eventually grant did himself, too, motion to represent that ruling, was error. He contends the court 106 to waive his capacity regarding testimony to hear required psychological to counsel. right

his 1982, 13, defendant’s pres- outside In in camera session on October an ence, to act concerning capability Keith a “hearing requested [defendant’s] of two testimony psychological and offered to present pro per,” of his to because go pro per “that he shouldn’t be permitted show experts court, “I how don’t know and character disabilities.” Keith told mental because, as crazy he’s as my opinion, crazy, his waiver will be intelligent ruling will The court deferred I’ve ever seen or ever see.” anybody stated, It it from defendant himself. motion for until heard expert testimony I Faretta is.” is: know what of “My problem requirement court, After defendant renewed his motion for self-representation. open discussion, length defendant at of his constitutional some the court advised attendant on rights, self-representation. and of the duties and risks rights, court, he of the items explained by Defendant stated that understood each himself. Keith moved again and reiterated that desired to represent deter- for the of testimony purpose the court of permit presentation expert defendant an waiver. making intelligent whether mining capable motion, that defendant had made finding court denied the expressly waiver of counsel. knowing intelligent to hold a hearing

Defendant now court was argues required waive his knowingly intelligently determine defendant’s capacity (1987) He 188 1314 right People Cal.App.3d counsel. cites v. Burnett [234 to the for the rule that “whenever a trial court has doubt as Cal.Rptr. 67] of a defendant to exercise the competence right self-representation court must undertake an ordi- exceedingly subject, careful into inquiry 1319; also, (Id. narily People evaluation.” see by ordering psychiatric p. 633, 773], (1979) v. Teron 23 Cal.3d 114 588 P.2d Cal.Rptr. [151 739, 750, (1981) on other Cal.3d disapproved grounds People v. Chadd 28 837]; 7 People Lopez fn. 621 P.2d v. Cal.Rptr. [170 36].) Cal.App.3d Burnett, People supra,

Defendant’s reliance on is Cal.App.3d There, misplaced. the defendant was found not of criminal guilty charges by reason He and was committed to Atascadero State insanity Hospital. waived at hearing sanity. counsel to determine whether he was restored to The trial did court not conduct into the defendant’s any inquiry capacity make a knowing history waiver the defendant’s intelligent despite illness, mental his bizarre delusional statements during appearances court, desired, and the to call representations e.g., of counsel that *59 “ various the trial to show that public figures during ‘[s]omebody implanted brain, in him et something transmitting messages making things, do (Id. 1321.) cetera.” at p. “Where, case,

The Court held in as Appeal present person in whose in mental competence facility is is confined question pursuant decree and the judicial state maintains that such confinement should con- tinue or be extended because that continues to suffer a mental person Code, (see 1026.5), Pen. disability 1026.2 and mental competence §§ waive counsel inis doubt as a matter of law and such a person cannot be found himself competent represent judicial or herself without consider- ation of evidence psychiatric (Burnett, bearing upon supra, question.” 1322.) Cal.App.3d p.

Here, contrast, defendant gave no indication of mental impairment which a valid prevented waiver of counsel. The relevant is narrow. inquiry

The trial court is not concerned with the wisdom defendant’s himself, decision to represent or with how well he can do so. sole relevant question is whether the defendant has the mental capacity to know waive ingly counsel while realizing risks and probable consequences self-representation. (People Gallego (1990) 52 Cal.3d 162 [276 169]; on, 802 P.2d People 113.) v. Ter supra, Cal.3d at p. The court has discretion to determine the defendant’s competence to waive counsel; its will ruling not be disturbed on absent an abuse of that appeal Teron, discretion. (People v. supra, 23 114.) Cal.3d at There p. was no abuse of discretion here.

The case had been assigned to Judge Torres close to two months before the waiver. The court thus had had ample opportunity observe and to personally, draw its own conclusions. It dis thoroughly cussed defendant’s rights and obligations him with personally to make sure he knew what he was getting himself into. The record of the hearing which defendant waived counsel does not suggest slightest defendant’s waiver was not On the knowing. contrary, record demon strates that he convincingly knew what he exactly Under doing. these circumstances, the trial court’s refusal to hold a hearing further was within its discretion.

Defendant argues that Keith’s statement to the court that he was “crazy” and his own repeated disruptive behavior should have raised a doubt court’s mind about defendant’s competency. Although Keith’s comments generally, this statement were specifically, relevant factors for the court consider, did they not eliminate the court’s discretion light of its own *60 were not specif- Keith’s comments the record as a whole. and observations waive counsel to ability the narrow question—defendant’s directed to ically and defendant’s decision wisdom of directed to the rather were more —but of the proffered The same is true himself. ability effectively represent his to what regarding offer of proof Keith never made a specific testimony. expert waive to defendant’s competence about testify would or could the witnesses behavior, a undoubtedly justifica- although disruptive counsel. Defendant’s necessar- did not similarly right self-representation, for revoking tion One can instance. the first to waive counsel incompetence show ily that right. and then abuse to oneself represent invoke the right knowingly Teron, here, Moreover, 23 Cal.3d supra, People as the record Judge articulate. literate and was intelligent, that defendant demonstrates he showing library privileges upon defendant law Ringer granted also Judge Ringer the defense. preparation could assist materially intelli order of high defendant as “a person exceptionally described on the and abilities defendant’s intelligence Keith himself praised gence.” a nonlawyer. acumen for legal substantial Defendant also displayed record. that defendant motion shows the time of the Faretta The record up names, to appropriate referred legal their by proper called motions generally authorities, theory tenable articulated a consistently clearly to plead Keith’s rejected attempt persuade defense. Neither was “crazy” defendant was nor his statement that insanity reason of guilty by voluntary, make a capacity about defendant’s sufficient to raise doubt all Under regard representation. choice with intelligent knowing circumstances, there was no abuse of discretion. at the phase provided to the evidence points penalty also earlier. declined to hear the court same two whom psychiatric experts indicated, However, such testimony to entertain there was no reason as evidence of defendant’s incompetence. absent some Furthermore, have raised should even Keith’s assuming representation status, our review of mental in the mind about defendant’s doubt court’s have that would testimony (allegedly evidence phase experts’ penalty that defendant evaluation) does not show at any been offered competency be of defendant to Dr. found Maloney to waive counsel. incompetent Although they he was sane. Dr. testified intelligence. Keyes above average conduct, included self-destructive said that defendant’s disorders personality self-focus, with of touch he was not out and narcissistic obnoxiousness ability defendant’s mental no doubt about testimony This raises reality. without contention is Defendant’s undertaking. understand what merit.

(iii) Failure to Exercise Discretion *61 believed it erroneously Defendant next contends that the trial court untimely, defendant’s midtrial Faretta motion as deny lacked discretion to We and that the failure to its constitutes reversible error. exercise discretion conclude that defendant be heard that his own may argue appeal not motion should not have been granted.

Defendant is correct that the court has discretion to a midtrial motion deny Windham, 121; ante, for self-representation. (People supra, v. 19 Cal.3d see However, 98.) at p. Windham factors facilitate efficient primarily “[t]he administration of not justice, (People of defendant’s v. protection rights.” 744, (1983) 382].) Hill 148 760 Because the court Cal.App.3d Cal.Rptr. [196 insistence, granted defendant’s motion for at his self-representation own may not now complain of error the court’s failure any weigh 921, Windham (People (1977) factors. v. Brownlee 74 934 Cal.App.3d [141 685]; Bloom, see Cal.Rptr. People 1219-1220.) also v. 48 Cal.3d at supra, pp.

Defendant further to claim appears that the court may grant because, midtrial Faretta in a request case at that capital point, state’s interest a reliable death verdict “will always outweigh” defendant’s right Bloom, of self-representation. We disagree. People supra, v. 48 1194, Cal.3d the trial court granted defendant’s midtrial motion to that, represent himself at the held penalty phase. We the defendant although had announced his purpose to no evidence present at the penalty phase verdict, to seek a death that announcement did not denial of the compel self-representation (Id. 1222-1223.) motion. at pp.

We rejected also the defendant’s claim that him permitting to represent himself with the stated intention of obtaining death verdict rendered the verdict circumstances, unreliable a constitutional sense. Even under those “the required is attained reliability when the prosecution has its discharged burden of proof at the guilt and penalty to the rules phases pursuant evidence and statute, within the guidelines of a constitutional death penalty the death verdict has been returned under instructions and proper procedures, and the trier of evidence, has penalty considered the duly relevant mitigating if which the any, defendant has chosen to A present. of death judgment entered conformity with these rigorous standards does not violate the Eighth Amendment reliability requirements.” (Bloom, supra, 48 Cal 3d. at p. 1228.)

Thus, fortiori, granting defendant’s motion for self-representation here, where defendant and his counsel vigorously contested both the guilt

110 United States Constitution did not violate and the penalty proceedings, (1991) (See v. Deere People also reliability Amendment standards. Eighth 1181]; People Lang 808 P.2d Cal.Rptr. Cal.3d 717 [280 627].) P.2d Cal.3d 1030-1031

(iv) “Conditioning” Rights Grant Faretta next conditioned improperly contends that trial court necessary waiver of continuance any its of his Faretta motion on grant he relies not apposite. The cases on which are advisory assistance counsel. *62 328, P.2d (1984) 731 691 People Bigelow Cal.Rptr. In 37 Cal.3d v. [209 994, 723], to motions repeated the trial court denied 64 A.L.R.4th after counsel, defend- it did day permit new on the trial opening substitute himself, be would clear that no continuances represent making ant to to a continuance grant We did not discuss whether the court’s failure granted. error, effectively we the defendant would constitute reversible but noted that stated, court intend for We “if the trial did not had no time to trial. prepare People v. untimely under to motion for as deny self-representation 8, 1187], it should 121 560 P.2d (1977) Cal.Rptr. Windham 19 Cal.3d [137 741, (Id. 3.) People In v. a fn. have considered continuance.” granting p. 371, 163], 433 (1967) pre- Cal.2d P.2d Cal.Rptr. Maddox 67 647 [63 case, a defendant who was granted Faretta and -Windham we held that time for himself entitled to a reasonable right represent prepare was 248 (See (1967) if Moss 253 People [61 trial also v. necessary. Cal.App.2d 107].) Cal.Rptr. must

These continuance distinguishable. Although necessary cases are if it is established granted be a motion for is also self-representation granted, or a ground delay that a midtrial Faretta motion be denied on the may 972, (People (1979) be v. 92 required. Cal.App.3d continuance would Fulton 645, 327]; Hernandez, supra, v. 163 People Cal.App.3d 976 Cal.Rptr. 731, 651, 4.) this trial Bigelow, supra, fn. Unlike the trial court 37 Cal.3d if a untimely court made clear its intent motion as deny Faretta motions continuance would be It had fact denied other Faretta necessary. defend- only on this basis. The Faretta was when ultimately granted motion he ant able to without a continuance. expressly proceed represented cases, addition, here had been in contrast the cited months, had for that he a full many opportu- afforded research facilities so for trial even he nity prepare represented while independently Hill, (See People counsel. v. 148 757-758 supra, Cal.App.3d [court preparation, must allow reasonable continuance for grants self-representation trial that he the defendant knew 73 before would arguably days not when but himself, had days he was allowed 10 for trial preparation, represent People v. his defense before actively participated self-representation]; 688].) Cal.App.3d Jackson 502 [151 c) Advisory Counsel that the court refused to exercise argues trial erroneously that, if the did advisory

its discretion on counsel and court request discretion, (See exercise People Bigelow, supra, it abused it. v. 37 Cal.3d not, however, 743.) It create Bigelow regard. found error this did blanket rule in a On the we requiring advisory capital contrary, counsel case. status, have held that counsel and specifically advisory cocounsel other forms “hybrid” (People are not representation constitutionally guaranteed. Bloom, Thus, supra, v. 1218.) 48 Cal.3d as with matters other requir discretion, ing exercise of “as as there reasonable or even exists a long law, taken, fairly debatable justification, under the for the such action action Crandell, will not be here set aside .... (People supra, [Citations.]” *63 833, 863, Cal.3d omitted.) internal quotation marks here, The record in supra, unlike Bigelow, 37 Cal.3d does not demonstrate denial of request advisory defendant’s for counsel was an Canadian, of abuse Bigelow discretion. defendant in was a unfamiliar law, Defendant, with California and had a ninth only grade education. contrast, had graduated from Culver Military Academy, a school preparatory for entry into the service In the academies. defendant was military, assigned radio intelligence, doing “top security Subsequently, work.” defendant earned license as a stationary engineer. Defendant demonstrated he anwas articulate, intelligent, literate individual.

Additionally, while “. . . the in Bigelow defendant was with charged four initiative, under the special circumstances 1978 death two of which penalty had never been judicially construed and were inapplicable to the arguably act, defendant’s in ... the present case the was charged defendant only circumstances, with multiple-murder special which no presented signif- Crandell, icant construction problems (People on the of facts this case.” v. supra, 864.) Cal.3d

The record here also indicates that defendant demonstrated considerable skill intelligence as an advocate for himself throughout proceedings. He consistently called motions by their names and cited proper appropriate himself, authorities. Prior to representing permitted occasion to participate He proceedings. witnesses and was questioned skillfully the court and to the court. Both reasoning arguments his capable logical of indeed, and, intellectual superior capacity counsel defendant’s acknowledged legal demonstrated access on his law based granted library abilities. Crandell,

Furthermore, justify may as circumstances other suggested If, record supports advisory example, denial a motion counsel. for (e.g., appointment that the motion is obtain manipulative an inference to relieve have been demonstrated counsel when no private grounds Crandell, supra, 46 counsel), (People it be denied. v. may then appointed 833, 863.) such an inference. The record of this case supports Cal.3d himself, he control primary retains

When defendant represents case, counsel is conse advisory and the role of over conduct of 14; Hamilton, 1164, fn (See v. Cal.3d People supra, limited. quently Bloom, 1218-1219.) the court People Although 48 Cal.3d supra, deference for self-representation, defendant’s motion ultimately granted it was not also required his manifest desire to control the proceedings, with defendant’s of someone attorney personal an under the direction place conduct. obstructive abusive history manipulative, d) Appointment Law Clerk erroneously court denied

Defendant also contends trial of a law clerk. request for assistance *64 First, motion, defendant three declarations. presented his support that for one complicated person

defendant himself averred the case was too with assist- handle out Keith been the (pointing provided alone that had counsel), legal that he needed with research good ance a second “a person defense,” skills, and and me in training my to assist the ability preparation Second, Piggee Piggee Darryl that law student such skills. Darryl possessed Solomon, an clerk of Steven that was a law the office employed stated week to per that would be 40 or more hours attorney; Piggee able devote defendant; law he could defendant with access superior assist that provide materials; and that he would confer with the Solomon’s library attorneys Warner, Third, an needed Caryl office as defense. help prepare office, for 50 stated that had been an attorney attorney Solomon’s Warner trials, he had he would handled murder and that years, many personally oversee work on defendant’s behalf. Piggee’s motion, must (1) denied the on the that law clerks trial court grounds (2) work under not a supervision lawyer, and defendant was lawyer, firm, that, (3) law clerk’s was with his law while proper place need attorneys may more assistance because have other cases to which they time, must devote a defendant they only himself has own representing case to prepare.

The request denied. Defendant’s motion showed that the properly requested services were convenient” rather than neces- “merely “reasonably sary.” (Corenevsky Superior (1984) Court 36 Cal.3d 323 [204 360]; Cal.Rptr. 682 P.2d Superior cf. Keenan v. Court 31 Cal.3d 108].)8 640 P.2d e) Self-representation Revocation of

(1) Threat to Stand Mute 28, 1992, On Thursday, October defendant commenced his cross-exami- nation of the prosecution’s expert After defendant pathologist. questioned witness at length for rest of the the court continued the trial until day, A Monday, November 1. brief was held hearing out of of the presence jury regarding matter discovery that defendant raised. Defendant also raised certain matters regarding witness’s “testimony my scope of cross-examination.”

When trial recommenced on November defendant made a number of motions out of the of the presence Some jury. involved the manner which he would be allowed to question witnesses and to handle exhibits. The court made several rulings against defendant. Defendant also moved to recuse the district attorney. During course of defendant’s rambling discourse on the court of said runner’s name.” have a degree, allow assistance of this nature. I believe we discussed Stenberg would court 8On October “The Defendant: There “The Court: was— told defendant legal runner; 14, 1982, be There’s no such approved. Investigator Stenberg is ordered to locate such a runner that any qualified person whose name it earlier and Defendant moved the court “to The minutes of the court reflect *65 agreement. there was some also requested agreement “combination grant was submitted that “Defendant that the court this motion forthwith. legal runner-clerk.” The would, by investigator is allowed to notify to some ^[5] “The agreement. Court: No such “The Defendant: Didn’t we you discuss where Stenberg may said Mr. approve someone? “The Court: Never, never in this court.” Although the clerk, court specifically agree did not to the appointment of a law the promised “legal runner” was never appointed may and the court have inadvertently misled Nevertheless, regard. defendant in this defendant has not shown that he was entitled to have (Cf. a law clerk appointed. People Lopez, supra, 71 Cal.App.3d v. defendant [a choosing represent to himself should be advised that investigators “he will have no staff of call.”].) his beck and motion, him status” or twice warned not his “pro per to abuse the court

latter his length After discuss at allowing defendant to would be revoked. it recuse, it “frivolous.” the denied as to court finally unfocused motion already stated it had arguing continue the issue. court Defendant tried to if asked that It point. was not to further on speak ruled and that defendant pro- “I’m to ready proceed. responded, defendant was to ready [j[] have You upon]. one the court had ruled just ceed with this motion [the heard this motion.” not courtroom, and defendant into the told jury

The court the brought ordered immediately the witness. Defendant he could continue cross-examination of stated, Honor, rest of the the throughout “Your the defense stands mute to be defendant’s actions jury, The trial court excused the found trial.” status, Watson Keith and renunciation his in and ordered propria persona until the afternoon. resume conduct of the defense. Trial was recessed to afternoon, defendant. That Keith and Watson represented reconsid- the that defendant had Watson advised court following day, cross-examining willing ered his and was now continue position trying defendant was it stated a belief that Although witnesses. prosecution with the was merely “playing games a “dilemma” and court place court,” chance to represent defendant another agreed give court status, him that warning It in propria persona himself. reinstated defendant’s of that result revocation further tactics would any delaying misbehavior status. his was improperly

Defendant contends that self-representation He mute. right by standing revoked because he had a to conduct his defense in which trial court out that we have cases correctly points upheld de actively allowed a defendant not to self-represented participate Bloom, Teron, 103; v. (People supra, People v. 23 Cal.3d see also fense. 1194; McKenzie, 616.) These supra, cf. 34 Cal.3d supra, People Cal.3d not, however, here court do the reverse conclusion that trial compel cases required stand under the circumstances defendant to mute permit not to case. While a choose may sincerely properly this defendant Bloom, in Teron and that was the situation here. as participate, trial, made clear had Throughout frequently vehemently had been he had the crimes. He desired to others committed prove himself, indeed been clearly had vigorously defending planning as late as continue detailed cross-examination the pathologist disgruntled Then he became ruling court’s on the recusal motion. apparently intent to stated an rulings. jury, suddenly with court’s front of the

115 desire the sincere to by This statement not motivated clearly stand mute. defense; into the either error inject it was an to attempt withhold a instead or, case, its earlier most rulings, into reconsidering or to court pressure or coerce of a to attempts manipulate It was one series of likely, merely both. the trial court. As Faretta was not to tolerate this conduct. required court clear, not a license

itself made a “is right self-representation constitutional 422 supra, (Faretta California, to v. dignity abuse the of the courtroom.” 806, 835, Thus, may 581].) judge U.S. fn. 46 at “the trial p. L.Ed.2d [45 in by engages terminate a defendant who self-representation deliberately 834, (Id. L.Ed.2d at serious and at fn. 46 p. obstructionist misconduct.” [45 581].) p. his of intent mute was argues that statement to stand

not sufficiently warrant of his disruptive self-representation. termination context, in Viewing statement we mute alone not disagree. Standing may be but we do in It was disruptive, part not view one statement isolation. of a series of actions defendant the trial. by clearly intended manipulate As the court stated in People Davis Cal.App.3d 859], “Trial are [234 courts not required engage game playing with defendants would cunning who Hobson’s choices.” Faretta v. present California, supra, U.S. held that a may repre defendant generally sent himself. It did not establish a game engage which can machinations, series of with one the court in reversal of misstep by resulting an fair otherwise trial. v. Wiggins (1984) McKaskle 465 U.S. 168 L.Ed.2d 104 S.Ct. [79

944], circumstances, court held high that under some counsel of standby a defendant himself role over representing may at trial even play here, objection. defendant’s That is holding directly not at issue some of but stated, analysis court’s is instructive. It right “The se exists appear pro to affirm the dignity and of the autonomy accused to allow the presen tation of what may, least occasionally, possible be accused’s best (Id. at 132].) defense.” pp. 176-177 L.Ed.2d at to bow to p. Refusing [79 defendant’s obviously insincere did ploy challenge or auton dignity omy. court’s which ruling, caused defendant to continue to merely himself, defend did not certainly prevent of the best presentation accused’s possible defense. The McKaskle court “trial judge also out that the pointed may be required make numerous rulings reconciling participation standby with pro counsel se defendant’s to that objection participation; nothing the nature of the Faretta right that the usual deference to suggests ‘judgment calls’ on these issues the trial should not obtain here as judge (Id. elsewhere.” at p. 133].) fn. 8 L.Ed.2d at p.

116 The trial to deference. call here is entitled similarly

The court’s judgment threat, statement, that he would viewed defendant’s court justifiably to force the prosecution mute” decision to simply “stand not as a conscious cause as designed of to a course conduct its but as of deliberate proof, part in defendant’s propria It revoked much as disruption possible. properly defending continue himself.9 defendant chose to status until persona in that the erred Kennard court argues Justice dissenting opinion i.e., standing by himself in own way, defendant to allowing represent not however, itself, it cite a case single Other does not mute. than Faretta More- right self-representation. finds violation of a defendant’s to actually a over, in defend- finding allowing no error although that dissent cites cases mute, in to it cites a court compelling acquiesce ant to stand none even similar remotely under circumstances defendant’s to stand mute request in is tantamount A error one situation not to those of this case. of no finding herein— two another. As illustrated dissents finding by to the of error himself, other and the allowing defendant to finding represent one error v. error in defendant to himself—Faretta finding allowing represent 806, have an to We easy apply. U.S. is not California, supra, always vindicate in a reasonable fashion to obligation Faretta interpret turning time avoiding while at same legitimate rights defendants continually manipulate trial into a charade which a defendant can the case into in the reversible error hope eventually injecting proceedings with court matter Defendant’s presented no how the court rules. actions must, we may, under conditions which “judgment upon call” combat 465 U.S. (See Wiggins,supra, deference the trial McKaskle v. give court. 178, 133].) at fn. L.Ed.2d at p. p. 8 [79

(2) Self-representation Final Termination of On November 1982. Defendant’s restored on self-representation however, threatening December a series of abusive and following court, remarks defendant directed at the the court revoked defendant’s 265], People the close Manson Cal.App.3d 9In at 197-203 [132 trial, attorney counsel of the when failed appointed represent one defendants her and never to the convictions on the appear returned courtroom. The defendant’s were reversed attorney effectively arguments, her at the ground represent closing new could not her “cold,” having having present having come into the case and without been heard or trial or Here, testify. impediment. obsérved the was no such Both standby witnesses there counsel had case, were appointed represent They thoroughly been defendant. familiar with the had trial, during prepared present case for had been the entire trial and observed They qualified demeanor of the therefore to take over presentation witnesses. were of the defense. *68 They represented status and

propria standby attorneys.10 persona reappointed defendant the remainder of the trial. during He his self-

Defendant the trial court erred. that argues contends in serious engagement could be terminated for deliberate representation only (see (1970) and 337 obstructionist misconduct Illinois v. Allen 397 U.S. [25 806, 1057]; 422 supra, L.Ed.2d 90 S.Ct. Faretta U.S. California, v. 834-835, 581]), at that insufficient to p. fn. L.Ed.2d and conduct [45 finding terminating of court is support justify insufficient contempt 1972) (See, (7th 461 F.2d self-representation. 345, e.g., United States v. Seale Cir. re 369-370); (1972) In Little 404 U.S. L.Ed.2d 92 S.Ct. 553 [30 659].)

We need decide not what standard for defendant’s con- exactly applies, duct, summarized exercise even justified court’s of discretion previously, under his standard. The court in that suggested justified concluding was defendant intentionally (See People and his also sought disrupt delay trial. Davis, v. supra, 189 have Cal.App.3d p. [although may defendant “ himself, the right to should not be represent permitted to disparage ‘[h]e court, . . . counsel and the and to of the disrupt orderly presentation ”]). trial.’

f) Assistance Counsel Ineffective

Defendant claims there that was a fundamental in the breakdown attorney-client which him of effective relationship deprived assistance of 27, 1982, counsel. He cites to the Keith proceedings August which to have attempted defendant enter a plea guilty of not reason of insanity, although Keith conceded that he had not consulted such a defendant about plea beforehand. No fundamental breakdown in relation attorney-client demonstrated, was ship however. The that trial court ruled such a properly could plea not be entered without defendant’s consent and no such plea therefore made. (See Defendant’s wishes were this regard fully honored. People 15 Cal.3d 717-718 542 P.2d Gauze 1365].)

Defendant asserts that thereafter alerted the trial court repeatedly to a breakdown the attorney-client relationship, the numerous citing 10Defendant told the prejudices away court “Your are running you” with accused the and “jumping court of predetermining conclusions” and case. When the court warned behavior, defendant about his “stop crap,” defendant told it to and accused court of bias, lying, stated, of having made up day its mind one.” “from “This railroad yours train of is going screeching to have to come to a halt.” When the court once again revoked, warned defendant propria privileges behave or his in be persona would that, Well, defendant responded, you “are trying you goddamn to intimidate me? do can’t [ft] . . . you just your job?” back off and [W]ill do that, after defendant’s He also complains and Marsden motions.

Faretta revoked, of defendant’s seized all trial counsel status persona propria addition, (against to testify elected when defendant and notes. papers him met with Keith advice), had complained defendant counsel’s to prepare him have his notes with which permitted had not lack of communica- evidence a deprivations He that these testimony. argues counsel, that the “assistance and asserts tion trial between the defendant.” communicate with is if counsel does not counsel worthless *69 under defendant’s claims already rejected lack merit. We have The claims Marsden, counsel was 2 Defendant’s claims that v. Cal.3d 118. People supra, writings suggest never Defendant’s own were substantiated. “unprepared” inject error into attempt that of were an to unpreparedness the claims Moreover, to neglected claimed that counsel although defendant record. witnesses, such witness identify any he failed to interview “hundreds” of might these unidentified witnesses to relevant any testimony demonstrate Indeed, have defendant would been there no reason to believe that offer. is him. represent with the services of to any attorney appointed satisfied case, was manu- attorney defendant and his any this conflict between were any He there accept himself. refused to that factured He all desired to control within the of counsel to decide. province matters his whims. He has trial make his subservient to attorneys decisions and to counsel or not of to effective assistance of right shown the impairment As lack but himself. anyone of communication was the fault any before, a between guarantee meaningful relationship noted there is no 1, 14 (Morris (1983) 461 Sloppy an and his counsel. v. U.S. [75 accused 610, 621, 1610].) L.Ed.2d 103 S.Ct. Admissibility

B. of Defendant’s Admissions on police statements admissibility his challenges several grounds. of Judge was held front

Before trial a full began, evidentiary hearing on Miranda on defendant’s motion to statements Ringer suppress pretrial 1602, (Miranda 86 10 (1966) v. U.S. 436 L.Ed.2d S.Ct. 384 [16 Arizona 974]) the motion to Judge Ringer and related denied grounds. A.L.R.3d with the re- and full finding compliance there no coercion suppress, trial, The trial objection. Miranda. At defendant renewed his quirements of the Miranda Judge ruling, court reviewed and refused to reconsider Ringer’s had ruled on most of Judge Ringer related issues. Defendant agreed objected his objections, point but he wanted to raise one not specifically 119 of Miranda Ringer. any The court refused reconsider Judge front points. refused to erroneously

Defendant first contends that the trial court We on disagree. Although ruling rehear renewed motion suppress. (see People is always motion not the trial court pretrial binding Superior (Zolnay) (1975) Court 542 Cal.Rptr. Cal.3d 734 [125 1390]), evidentiary hearings P.2d a defendant is not to two separate entitled need before two court on the issue. We not decide whether superior judges authority court hearing trial had to allow defendant second decision; with Judge it was to do so. disagree Ringer’s certainly required Such a would defeat the behind requirement completely pretrial purpose limine hearings on of evidence. admissibility

In People v. Morris Cal.3d 807 P.2d 949], we considered the an evidentiary objection circumstances which *70 in an litigated in limine but at hearing preserved not reiterated trial is We appeal. pointed out that “Motions limine used commonly in are tool trial and in advocacy (Id. both criminal civil management p. and cases.” at 188.) One of the to more purposes “permit motions in limine is careful consideration of in issues than would take the heat of battle evidentiary place (Ibid.) trial.” This if during would be defeated the limine purpose ruling in were rendered meaningless by rule that a defendant a new right has a to on the hearing same issue during trial. Such a rule does not exist. Defendant had a full evidentiary hearing the of his statement before admissibility Judge Ringer. He was not entitled to a second such hearing during trial.

Defendant at trial he argued that wanted to one make new not argument made before Judge Ringer—the claim that he an asserted his to right attorney during the interview further at questioning point that should have stopped. The court refused to that hear We need not argument. decide for, below, whether that refusal was error as discussed argument the lacks merit. Defendant did not seek to present additional evidence to presented we Judge Ringer, so can effectively consider the merits. to the

According facts adduced at the pretrial hearing, defendant had been into taken around custody 11:30 a.m. to noon on 1980. He August was to the transported Van Nuys station where he placed was cell holding pending arrival of robbery/homicide detectives from the downtown Parker Center station. Defendant was taken from the cell at holding 6 p.m. and transported downtown to Parker Center His station. interview began around 7:15 It was p.m. tape-recorded.

Detective Stallcup began by defendant that he under advising arrest for murder. He advised him of his Miranda stated he rights. Defendant that remain silent. When asked He waived his to right these rights.

understood “I’d defendant responded, to an right attorney, he waived his have whether I like talk would to get attorney, it will take to an long like to know how [f] one—you But I like try get interim . . would you period. .ffl know, attorney” that a started.” The detective said “district get process minutes,” rolling he the ball at could “start could be there “about 45 on this isn’t prosecution “he’s with that time.” Defendant responded, answered, he deal hand hand.” But “Right. has—they he?” The detective now?” attorney “right if defendant wanted an detective asked Another start,” not, he was but that “willing Defendant said he did that he added, He “So there’s one I’m to want one.” during going “sure the process, any that at me.” The detectives defendant available for assured fairly quickly attorney stop questioning wanted an would say they time he could he at point.” the interview would “right They “stop there.” said understood, he the interview at this stop and that did not “want to said I’m But possible. I like him soon as would to have summoned as point. clarification, him in For one of go ahead without the interim.” willing if here right wanted “an now?” again attorney detectives asked defendant point. as this disagree responded to what parties Defendant claims General is Attorney tape unintelligible. contends said, “I There ends. The get reveals he do if can it.”11 you dispute tape said, I—in the essence away. that defendant then But agree “—right parties *71 time to him long I rather—if it’s to take going get of time factor would Now, I I get here see what mean? want to get rolling. I’d rather ball You “if an you attorney you this cleared The detective stated that want up.” now, to right call now. We want that right you get want to call one can one an here.” that he could not afford straightened right out Defendant responded or even city attorney “So it will have to either be defender attorney, public said, sufficient, I just . . That’d so district whichever . be attorney, you ffl here me have someone that lets know.” now, if “right defendant wanted an attorney detective reiterated that right this It’s to cease going

we’re now. going stop questioning right “I’ll it at this When the detective point.” now.” Defendant waive responded, here, said, me an “And an tell want you you you when want attorney “Yes, The interview then continued. attorney,” responded, okay.” an right attorney, Defendant contends that defendant invoked his However, at defend interrogation point. and that the should have ceased that until he had an attorney. ant never a desire not to talk expressed 11We need not resolve the for we find no error under either version. dispute,

121 now, if attorney him he wanted an made clear to that repeatedly detectives then, time any he interview at and that could they stop right stop would the desire to Although expressed he wanted an he by merely saying attorney. started, slightest an he showed the attorney have the never process getting future, in the attorney reluctance to in the A desire to have an talk meantime. meantime, in the is not an coupled willingness with an to talk unambiguous the interview. invocation cessation of right to counsel requiring (People Turnage (1975) 211 and fn. 5 Cal.App.3d not this attorney necessarily wanted “an but at particular 237] [defendant second”].)

Defendant knowing also contends that waiver was not any he voluntary because was misled an and the time right attorney about his it would him take to one. We Our review of the entire record get disagree. us convinces that defendant knew he could interview clearly stop one, any time if an and that he wanted an simply requesting attorney, could and attorney would be he was not provided. Contrary argument, him; told that the district attorney actually would rather he was represent told district would arrive in “start attorney about 45 minutes and could the ball Since in rolling.” the interview it was place evening, took for reasonable to tell get detectives defendant it would take a while to an as attorney long they as also informed him—as did he they repeatedly—that did not have to talk the meantime.

Defendant next contends that his waiver of counsel was rendered invol- untary by him improper delay bringing before a magistrate.

states that he held interrogated, several hours and was before here, brought before magistrate that time. pertinent Section as and, requires that a defendant be arraigned “without unnecessary delay, event, any within two In County after his or her . . days arrest . .” Riverside v. McLaughlin (1991)_U.S__[114 1661], L.Ed.2d S.Ct. the United States held Supreme Court delay reasonable up *72 in hours a obtaining probable cause is hearing permissible.

Here, defendant was interrogated within hours he taken several after was into custody. “Examples of unreasonable are the delay delays for of purpose arrest, gathering additional evidence to the ill justify a motivated delay by individual, will the against arrested or delay (County sake.” delay’s of 63, McLaughlin, Riverside v. supra,_U.S. at 111 L.Ed.2d at p__[114 p. cautioned, however, at 1670].) S.Ct. p. court high that “Courts cannot ignore the often in unavoidable delays arrested from transporting persons another, to facility one handling late-night where no bookings magistrate is available, readily obtaining of presence arresting may an officer who be 122 arrest, an securing premises

busy processing suspects other of this (Ibid.) delay These factors easily justify other case, realities.” practical section 825 and a fraction of the limit established which but 49, 111 L.Ed.2d McLaughlin, supra,_U.S._[114 v. County Riverside 1661], S.Ct. Next, in an attorney his to right defendant that he invoked contends his ignored request that the detectives interrogation, the middle of but one point lacks merit. At his Miranda contention rights. violation of about defendant began to police question during interrogation, said, I’m And “I that. this Defendant know about killing unrelated to case. and that— attorney without an to . . talk further about it going any not . changed then game.” different Defendant .... That’s whole ball did ask to to Detective Orozco and continued talk the detectives. subject answered Defendant killing. defendant further about the unrelated questions of the questions some to answer others. None questions but refused defendant; against they resulted any charges answers about that killing not this were relevant to case. Rather, he attorney. did without an

Defendant not refuse talk all to the subject—unrelated he not one limited indicated would talk about He an made no assertion offenses here charged—without attorney present. have ceased to an such that the should right attorney interrogation his discuss certain “A defendant indicate an entirely. may unwillingness interrogation already ‘an subjects without desire terminate manifesting 119, 124 (See, (1970) v. 6 e.g., People Cal.App.3d Watkins progress.’ [85 604, 621].)” (People (1988) 45 629-630 Cal.Rptr. v. Silva Cal.3d [247 573, 1070].) Although may 754 P.2d it not have been Cal.Rptr. appropriate murder, for the the unrelated police questions ask further about any it, had do defendant said about and it to with nothing incriminating nothing did which this case. It not further about prevent questions subjects most, defendant here. At willing subjects to talk—the relevant only But did not to alter the course of the “sought questioning. it v. 54 Cal.3d 970 attempt stop altogether.” (People Ashmus 214].) Cal.Rptr.2d 820 P.2d [2 subject changed

This was not a case which the officers simply defend- from offense to to avoid effect to a questioning giving one another Pettingill (1978) (See People ant’s invocation of to counsel. right 108].) did P.2d Cal.3d to all right subjects, only invoke as as to one. *73 apartment contends that his consent to search finally violations, the of and evidence seized

obtained as result foregoing was, however, violation relevant to this There no was therefore inadmissible. not “Because tree was case or to defendant’s consent to the search. (1991) (People Mickey Cal.3d its fruit was tainted.” poisonous, 84].) 818 P.2d C. Inadmissible Character Evidence alleg- next series of

Defendant’s of contentions concern introduction and deviant sexual prac- character evidence of violence edly impermissible tices. He that the evidence was irrelevant or argues unduly prejudicial, should have been excluded under Evidence Code section 1101 as improper evidence of toward or instances of bad conduct. Defendant propensity prior further in limiting claims the court erred a instruction. We failing give consider these claims in turn. Killing “Cathy”

1. The of in Defendant contends a document his handwriting, apparently describing his in the participation killing “Cathy,” named prostitute admitted improperly or was in improperly to remain evidence.12 permitted The jury first learned of this murder when the the entire played tape defense 11, 1980, of Carol Bundy’s August interview with which she police described the killing. According she and defendant Bundy, picked up young blonde prostitute, who called herself first “Cathy.” Bundy watched Then, while Cathy orally defendant. copulated upon signal, defendant’s Bundy him her gave chrome Raven pistol. Defendant shot head. Cathy it, Defendant and Bundy the body, took left it in an stripped isolated area near Saugus. behalf, that,

Testifying his own defendant claimed with one unrelated he had never exception, invited a into the prostitute car with Bundy present. The prosecutor sought to this impeach statement with the writing ques- tion. Defendant’s “case materials” contained a cryptic description incident, same but described Bundy as the actual killer. Defense counsel on the objected ground there nowas delicti corpus killing of Cathy, and on relevancy and Evidence Code section 352 grounds. admissible, trial court ruled that the document was permitted

prosecutor to question defendant it. about The gave limiting court instruc- tion that the could jury not consider the evidence to defendant’s prove character crimes, or disposition to commit but only prove issues such as 12“Cathy”was Jane Doe 28. charged Defendant was not guilt phase killing, at the with this although prosecution presented evidence it penalty at the phase. *74 witness, intent, aof prosecution corroboration identity,

modus operandi, close the motive, At the the knowledge conspiracy. existence itself, case, from excluded the document the trial court reversed defense of the offense. Defendant there was no delicti ground corpus evidence on that, inadvertently permitted was this the document ruling, contends despite go jury. evidence, remained in defend document assuming inadvertently Even without merit. Code section 1101 is ant’s claim that it violated Evidence that the issue is General’s contention reject Attorney We first mention Evi defendant did not Although specifically before us. properly 1101, to the issue alerted sufficiently dence Code section trial court was Indeed, limiting instruc jury made. it objections actually gave 1101, (b). The issue subdivision tion with Evidence Code section consistent (1988) 44 Cal.3d 906-907 (People is v. Williams thus reviewable. 395].) 751 P.2d Cal.Rptr. merits, in the was admitted

Turning properly to the the document rule to other crimes first It is not clear that the delicti corpus applies place. motive, intent, or facts such prove opportunity, evidence offered as solely (1990) 224 (See People Denis Cal.App.3d or for v. identity, impeachment. for the 724].) We need not decide the point, 568-570 [273 delicti in this of defendant’s corpus independently was established case knowledge from her of the Bundy testified extrajudicial writing. personal sufficient to was an her Although accomplice, testimony offense. she Williams, 911.) supra, delicti. Cal.3d corpus (People p. establish claim that he defendant’s properly impeach document was introduced had invited the car Carol and his Bundy present, never into with prostitute claim Code section Bundy lying Cathy’s murder. Evidence about (c), affects the subdivision this section provides “Nothing of a of evidence offered to or attack the admissibility support credibility witness.” have ex-

Defendant’s claim that the evidence nevertheless been should cluded under Evidence Code lacks Defendant himself section also merit. addition, Bundy’s testimony elicited on this and the other murders. significant document had value. Defendant’s handwritten version probative acted within agreed important Bundy’s testimony. with court respects its discretion the evidence. originally admitting 2. Evidence That Wore Women’sUnderwear vari- objection, Over various witnesses testified that defendant collected “girlfriends,” ous items of from and wore the underwear of his old clothing *75 is, dancers, he in bars. Defend- picked up that and women had prostitutes, of clothing ant’s with the to involve preoccupation appeared component sexual of sexual gratification, directly, either as “mementos” his exploits, as reflected his the crotch of of the women’s cutting panties some them with wearing hanging his out. penis

Defendant contends evidence inadmissible. We disagree. This evidence was identity. relevant to issue of The circumstances of killings the killer kills in the suggested collected and of his kept trophies form of some items of their clothing. jeans For Marnette Comer’s example, and T-shirt were the killer used the severed head of Exxie wrap Wilson. And, murder, for the Karen from except Jones no underwear was recovered the site of of any killings. treatment of the victims’ clothing appeared to gratification involve sexual derived from the itself. clothing circumstances, Under the had court discretion to admit the evidence. Interrogation 3. Statement

Defendant to an objected admission during police interview that since his school he had days been unable “to straight look sex on” or that “it had to kinky.” be Defendant’s need driving “kinky” for sex corroborated evidence of his interest in prostitutes and he features that shared necrophilia, with the murderer. The evidence was therefore relevant to the issue of identity, and thus properly admitted. Hiring

4. Dancer objected also elicited testimony Huys from Frances that defendant had hired a dancer perform him and Huys, for and to engage sex three-way with them. This evidence was relevant to show defendant’s fondness hiring prostitutes, which was relevant on the questions identity motive.

5. Testimony Donielle Patton

Over relevance objections, Donielle Patton testified that defendant liked to pick up prostitutes, he had offered her him money help pick sexual up partners, and he her stated to that he had found a new high” “sexual slitting sex, prostitutes’ throats while engaged so could feel their vaginas tighten as they died.

Defendant did not object to this testimony on of Evi ground dence Code sections 352 and 1101. In the absence timely of a and specific rulings court’s the trial sought urged appeal, to be on

objection ground on 353; Code, (Evid. be reviewed. § evidence will not admissibility P.2d People Green 27 Cal.3d fn. 8 [164 468].) for appeal. these contentions are not Accordingly, preserved *76 crimes, that, other with to evidence of argues least respect on objections by the Evidence Code section 1101 issue was preserved Williams, 883, 907, 44 held we People supra, In v. Cal.3d grounds. relevancy that, evidence will it clear that the already “When ... the have made People crime, on the objects of an and defendant uncharged show the commission any relevant to the have that the evidence is that not shown grounds People case, that admissi- to alert the court objection issue the is sufficient 1101, Evidence Code sections bility must be determined under the criteria of 303, 353, 27 Cal.3d (b), People Thompson, supra, and v. subdivision 314-318.” the basic rules We there reemphasized

Williams does not aid defendant. is of evidence objection admissibility required, that a to timely specific adequate “A is general objection grounds relevancy and that evidence for issue other-crimes respect an with to admission of preserve Williams, 883, 906.) 44 (People supra, objection v. Cal.3d appeal.” of the “must made a alert trial court to the nature way be such as to sought, is evidence and basis on which exclusion anticipated (Ibid.) admissibility.” afford the an establish its People opportunity to Williams, In statement had advised the jury opening prosecutor guns that he intended that had stolen some and tools to show the defendants the murder a whom had been work- (including weapon) they from man for any in the ing. objected ground Defense counsel on the of relevance to issue a trial. The was therefore objection “sufficiently specific encompass i.e., Thompson un- objection, that the were evidence of People offering defendant, criminal defendant had not charged by put conduct that necessary issue element of the offense or issue to the case-in- any People’s relevant, any chief which crime was and that relevance evidence that if was its na- might outweighed inherently prejudicial have admissible Williams, (People supra, 906.) ture.” v. 44 Cal.3d at p.

Here, uncharged Donielle Patton’s did not involve testimony clearly that, time, Patton describ- crimes. testified at the she believed defendant was ing and not a event. The never fantasy, argued real prosecutor de- murder in that defendant actually committed a the manner Patton. scribed to was not introduced but testimony purpose, not, testimony show defendant’s sexual and motivations. The was interests 127 circumstances, therefore, specific evidence. objec- other-crimes Under the 1101, (b), tion on the of Evidence subdivision ground Code section required.13 event, admissible under Evidence Code any testimony (b),

section motive. subdivision as evidence of Evidence of motive was relevant to the issue of identity. disputed and,

The murder victims were all with prostitutes exception Karen Jones, nude, (See all were found People suggesting sexual motivation. Jennings (1991) 1009]; 53 Cal.3d 807 P.2d Cal.Rptr. [279 People v. 172,. Robbins Cal.3d 755 P.2d *77 355].) The killer in sexual apparently engaged telling deviant practices, Chandler, Mindy Cohen he had post mortem sex with Maraño and and kill to Cohen and then threatening “make love” her in the way. to same Other evidence supported mortem sex in theory had taken some post place of the murders. For semen in example, was found the mouth of the severed Wilson, head of Exxie and in was found The killer sperm vagina. Chandler’s achieved additional sexual gratification from describing his acts necrophilic to Cohen over the Evidence in telephone. of defendant’s sexual interest and gratification from necrophilic activities and fantasies constituted highly distinctive mark of commonality with the killer when (especially coupled vehicles, with the other common marks such as access to relevant guns, and locations).

Admission of the evidence was also within the discretion the trial court has under Evidence (People Code section 352. Siripongs (1988) v. 45 Cal.3d 754 P.2d 1306].) The testimony was highly probative. of description of slitting throats was prostitutes presented as a statement of defendant’s interests. There was no claim it described an actual killing. There was no abuse of discretion.

6. Other Evidentiary Items Defendant did not raise a specific objection on the ground of Evidence Code section 1101 to of any 12 items of remaining evidence of which he here complains. his Accordingly, objection on that is waived. He ground however, argues, Williams, again People reliance on supra, 44 Cal.3d 883, 906-907, that his relevancy objections to certain items of evidence were 13Earlier testimony, in Patton’s did specifically object to “character trait” evi activities, dence regarding his sexual as opposed to of evidence other crimes. That issue is cognizable appeal, on but that evidence was properly admitted. Evidence of defendant’s activities, sexual interests and fantasies was to issue relevant of motive. ground on the objecting

sufficient to the court that apprise 1101. For evidence under Evidence Code section other-crimes impermissible Patton, with testimony above connection Donielle the reasons stated event, admitted. In the evidence was disagree. any properly we he had been to defendant admitted that Joey a letter Lamphier, fraud, fraud, in his shit” “shady tax insurance arson other involved were, life, acts. These references have identified other criminal may however, letter to which the incidental the other matters for entirely to attempted denials that defendant impeach Lamphier’s admitted to (e.g., to direct evidence defendant’s efforts suborn influence her testimony, calls on June making and defendant’s of his perjury, telephone admissions 16, 1980). to objection

Defendant did make an Evidence Code section 352 adequate was, however, admission of his letter letter Lamphier. probative respect with movements and with issues of his admissions his respect calls, lie in get well as his telephone Lamphier as attempts criming evasion, etc.) (tax behalf. The of other were activity admissions past comparison insignificant prejudicial. *78 to of an offer defendant “take by

Evidence the circumstances of to show that care of’ witness Elaine Forrestall’s was ex-boyfriend probative of the Raven at that time. The value was guns probative had one substantial, its was unduly not but we cannot conclude that admission The evidence was evidence of another crime and prejudicial. not offered as incidental to for which the evidence was again only purposes was other admitted. that, in O. Bundy riding

Shannon testified while she and Carol were defendant, $25 with her to the car a blonde picked up prostitute paid him objected while watched. Defendant orally copulate Shannon Bundy has waived other only relevancy grounds, objections. therefore a criminal evidence relevant. While it act of technically was involved minor, in it not or of a engaging possibly endangerment prostitution event significant offered to such a criminal act. The had specifically “prove” in a (e.g., with the behavior of murderer points picking up common vehicle). blonde for a sexual encounter the murder prostitute ground Because defendant did not an on the of properly preserve objection to of items evidence to remaining character trait of impermissible any which he reviewed here. objects, now those contentions will be

Defendant also maintains that the value other items out- prejudicial items, value. We As some these weighed any probative disagree. to addition, basis, the claim. In object defendant did not on that thus waiving made, had a the court have had discretion under objection been would proper Evidence the evidence. Code section 352 admit knives were a but not an Evidence relevancy,

Two admitted over objection. conclusively Code section Neither knife was directly a connected Charlene testified her attacker used (e.g., offenses A. handle; knife a yellow yellow with neither of the knives introduced had However, handle). defendant owned of the knives. He was to carry both seen cars, and in similar knives knife a slit particular buck-type kept of the killed in the wagon. visor Buick station Exxie Wilson was Buick. Her head severed like with 20 cuts an instrument a buck knife. Defendant destroy told one of the knives. The knives were Joey Lamphier circumstantially relevant.

Many pornographic works were seized from defendant’s apartment. trial, a few were Only pages admitted at one including page depicting decapitated head orally copulating a severed Defendant penis. objected on grounds relevance and Evidence Code section 352. The picture depicting the decapitation/oral copulation was interest in that probative defendant’s matter. Defendant also complained that picture was removed improperly However, context," from its context. if “in it had been placed entire pornographic book from which it came would have been admitted into evidence. The trial court undoubtedly—and reasonably—concluded that inclusion of the entire remainder of the book would be pornographic preju dicial beyond its value. The probative court acted avoid undue prejudice to defendant. objected, on relevancy grounds only, of a introduction

photograph album seized from the cell of Veronica The Compton. photo in the album graphs depicted case of the photographs (e.g., headless corpse Exxie of Wilson head) and her severed as well pictures as of defendant holding up various items of physical evidence including the victims’ under wear and the box in which (the Exxie Wilson’s head was found were photos taken apparently during defense viewing of evidence the at physical police room). property one photographs corroborated in defendant’s writings which he evidence, described apparent i.e., him efforts by plant false by deliberately his placing on fingerprints items evidence the physical so prosecutor could prove not any the preexisting prints on evidence. objected

Defendant on relevancy and Evidence Code section grounds to introduction of a he form had filled out to an place advertisement for sexual in partners oriented sexually The form newspaper. was circum stantial evidence of defendant’s access to Carol Bundy’s Datsun automobile proven not been Datsun), yet in which had

(the the trunk of the ad was found was slight, its value probative was offered. Although the time the evidence at in it. admitting the abused its discretion say we cannot court of evidence de the other items many have reviewed each of We objection, no many, there was admitted. As to improperly fendant claims others, we find no abuse to the therefore has been waived. As and the issue crimes. in their the nature of the charged admission given of discretion addition, the amount of large of the evidence of and guilt, substantial light interests, any conduct evidence of defendant’s aberrant sexual other this evidence harmless. any error the admission of Indeed, was strong. of the crimes The evidence of defendant’s commission Bundy did even as a not call sufficiently strong prosecution it was the (she case). closely Defendant was solely during testified the defense witness shots; the was found gun that fired all of the fatal gun connected to entered briefly Defendant had hidden where defendant worked. plant were discovered. guns shortly the middle of before plant night (not the police) were incriminating calls made someone telephone records had to Gina address book. Telephone company who access Marano’s calls; Cohen and Gottesman showed that defendant made the Brigges, he those calls. Defendant defendant himself admitted on the stand that made cars. He was to account for his movements had access to the relevant unable he, Bundy, (e.g., suggesting occupied at relevant times the evidence 22). destroy June He Verdugo attempted apartment night There evidence or others alter was substantial their persuade testimony. rental Defend- relating garage. blood evidence (painting bootprint) bearing A Cynthia ant admitted that knew Chandler. list telephone number was found telephone name Cohen’s name and “Cindy” Mindy more result defendant’s wallet. It is not that a favorable reasonably probable would have in the absence of the evidence to which defendant now occurred (People considered as a whole. objects, singly whether evidence be 243].) Watson P.2d Cal.2d 836 [299 7. Limiting Instruction with limiting given concedes that a instruction was *80 to the document in the murder of

respect involving defendant’s participation however, He that no with “Cathy.” complains, limiting given instruction requested. to the other evidence. respect challenged No such instruction is, the trial had a to do so. There argues sponte duty that court sua however, 43, (People (1981) such Cal.3d 64 no v. Collie 30 duty. [177 458, 534, A.L.R.4th 776].) 634 23 a recognizes possible P.2d Collie Cal.Rptr.

131 (Ibid.) This an “an occasional case.” is such exception extraordinary addition, the rules argument, case. In to defendant’s extraordinary contrary (See are in capital cases cases. applicable noncapital equally applicable Williams, 883, 906; (1988) People supra, People Dyer v. 44 v. 45 Cal.3d 26, 209, 1]; (1987) People Cal.3d 81 v. Ghent 43 Cal.Rptr. 753 P.2d [246 1250].) under Cal.3d 739 P.2d The court was no Cal.Rptr. [239 sua a instruction. sponte duty give limiting Right

D. Present Defense Defendant next contends he was denied due because the trial court process refused to him allow evidence present supporting party third culpabil- defense, ity and because the him discovery trial court refused improperly relevant defense evidence. His defense was that and Jack proposed Bundy murders, Murray committed the then murdered charged Bundy Murray and framed defendant. law was applicable People summarized Hall admissible,

Cal.3d 718 P.2d be “To 99]: evidence . . be third-party need . only raising reasonable doubt capable time, evidence, of defendant’s At the guilt. same we do that any not require remote, however must be admitted to show a third party’s possible culpabil . ity. . . of mere motive or [E]vidence to commit the crime in opportunity more, another person, without will not suffice to raise reasonable doubt about a defendant’s there must be guilt: direct or circumstantial evidence linking the third person to the actual of the crime.” perpetration test,

Under this there was no error.

1. Evidence Killing the Murray Defendant was originally charged accessory as an after the fact murder of Murray, because he had aided Bundy Murray’s disposing (§ decapitated 32.) trial, head. That count was dismissed before over defense counsel’s objection. Attorney Keith asserted offense “will Murray tend to show there is more than a distinct that someone else other possibility than Clark committed these homicides.” trial, the

During court stated of the presence jury it was irrelevant that one of had Bundy’s guns been used to kill and cut off Murray, defendant’s cross-examination on that It did subject. not permit defense counsel to question murder, Bundy about details of the Murray and ruled that *81 The ordered court to that crime would be inadmissible.14 relating

exhibits argument. the murder in the Murray closing not to mention defense counsel addition, of delicti the that there was no corpus the court instructed jury offense, in could not to that offense regard the and that admissions Murray be considered. the murder was admissi Murray the evidence of argues murder, First, it was was a for reasons. since it decapitation

ble several the Jack to that killer of might crimes” evidence which tend establish “other Second, i.e., the Exxie evidence also killer of Wilson. Murray, Bundy, was in Datsun automobile Jack had been the Murray’s transported that head have may that blood the Datsun would have undermined the inference Third, that was killed with the Mamette fact belonged Murray to Comer. the possessed was to that the fact defendant chrome Raven relevant show that he hid the in his did mean used not guns workplace necessarily Raven, was which nickel Since one of the hidden the chrome guns Raven. murder, that a by separate argues had been used someone else commit him tie necessarily his and secretion of nickel Raven does not possession killed alone to the of this that Finally, Bundy Murray case. evidence killings that had been jury might would think defendant dispel any possibility involved. a to raise

We find no error. The excluded evidence was not sufficient Hall, of guilt People reasonable doubt as defendant’s under standard First, trial that supra, reasonably Cal.3d 826. court could have found killed it did as crimes” had not “other evidence show qualify Bundy Exxie While fact point Wilson. was an unusual decapitation murders, were similarity significant between two there many points was, victims, Exxie like a female dissimilarity. Wilson the other blonde She was a sexual prostitute. stranger invited into Buick a for Bundy’s by Raven, Her She was killed with gun. encounter. the nickel defendant’s was also decapitated body left a Her severed head was public place. few location a later. There was evidence of semen dropped public days in her Her killer vagina. mouth was a man. probably male, killed vehicle someone he knew.

Murray, was own He motive crime. was not sexual gratification, prevent reporting but vehicle, was killed with the Raven. The chrome was left inside his body the head never killer was dumped, disposed was of and found. Murray’s that the woman. murder does not tend to show Murray reasonably person—Bundy—also same killed Exxie Wilson. Bundy’s tape-recorded solely 14In was police, police statement she told she

responsible Murray murder and that defendant not involved. The statement request. introduced at trial at defense

133 Second, the the murder supported facts of Marnette Conner’s physical in Comer had shot three times. account that it took the Datsun. been place A the nickel Raven were recovered from the body. Two bullets fired from Raven, bullet, in embedded the passen- third also from the nickel was found Datsun, fact, ger exactly assuming of the as had described. The Bundy door it, later it head was true that the had learned of jury Murray’s was the Datsun does not the conclusion that Comer transported negate killed the Datsun.

Third, the killed jury Murray did learn that someone else with chrome (and alone) Raven. It heard she had killed Bundy say on that she tape Murray with her chrome There Defendant gun. was no evidence. contrary able to the inference it therefore he fully argue that was possible was also not the user of the nickel Raven.

2. Production Evidence of of argues was denied certain improperly discovery of evidence items from he asked Murray investigation. Specifically, and was denied (1) Four bloodstained one with a following: pillows, hole, van; bullet (2) found Murray’s dry hair and tissue found in the van (defendant it alleged Comer’s); (3) was Marnette blonde hair found on (also Comer’s); the van ceiling (4) Marnette supposedly blood samples from the window (Defendant frame of the van wanted to test the see blood to if it matched the blood of victims in this case. court denied this request but stated it provisionally, would allow if discovery defendant could produce a witness who relevance.); (5) would testify its a shell casing from Raven; (6) chrome items of jewelry had Bundy given another person. prosecutor represented that the jewelry was related to the Jane killing Doe 28 (“Cathy”), which not at the charged guilt Defendant stated he phase. wanted to show jewelry to other if to see it could be identified as persons belonging any of other victims in this case.15 “ ‘ ’ ” Defendant must show “plausible justification” for the requested (Hill discovery. Superior (1974) Court 10 Cal.3d 817 P.2d 95 “A 820].) A.L.R.3d . showing . . that the defendant cannot obtain readily the information through his own efforts will ordinarily entitle him to pretrial knowledge any unprivileged evi dence, evidence, might information that lead the discovery it if appears reasonable that such knowledge will him preparing assist .... (Traynor, Ground Lost and Discovery Found in Criminal defense alleged 15Defendant also that the police may possessed have might other items which have light shed on his defense. The record does support allegation. (Ibid., marks internal quotation . . . 39 N.Y.U.L.Rev. *83 addition, omitted, in In defendant must show Hill.) on appeal, italics added (1985) Memro (People denial from the erroneous of discovery. prejudice 446].) We defendant’s reject 700 P.2d 38 Cal.3d 684 [214 (Ibid.) to “settled” rule. invitation reconsider this nor has a plausible justification preju Defendant shown neither noted, from Bundy admission As heard uncontradicted jury dice. casing shell that killed with the chrome Raven. Murray herself she alone this fact. was not needed to establish have that hair in the van would also argues supported

Defendant “Blond if the in case killed that the victims this were there—even theory appellant’s in the van not Any hair could have been matched. blood scientifically not And support appellant’s identified as would defense. Murray’s similarly scenario, able to show that under a ‘best case’ would have been appellant However, a Murray’s with he van.” charged murders which was occurred victim, van, hair in not would not Murray’s any prove blonde matched addition, blood, even if tissue or hair were matched victims anything. case, victim had been in the it that the this be circumstantial evidence might van, but it would show little more. the entire was based on sheer importantly, premise speculation.

More whatsoever, or opportunity, record contains no evidence not even of motive Murray There evidence that connecting to these murders. was no Murray There was no any with or was with victim. frequented prostitutes acquainted that time after the murders evidence had access until one Murray guns had been committed. did drive the Buick or Datsun. There Murray not no of Defendant any evidence of whereabouts at the relevant times. Murray’s he, admitted that not made the Gottesman second Murray, Brigges, Cohen calls. of Although investigators, defendant had the services two also no evidence that murder was relevant. Defendant produced Murray’s failed to show that the evidence to be sought might produce discovered as to lead to relevant evidence sufficient raise a reasonable doubt defend- ant’s guilt.16 be person may erroneously claims court “No 16Defendant also the trial instructed that convicted of a proof some of each of the crime criminal offense unless there is element trial, are independent any by admission him . . . You instructed made outside this [f] [f] law, (187 Murray Penal that as matter of each element of the crime of the murder Jack Code) Code) (288 age and the crime of lewd acts with a under the of fourteen Penal child Therefore, proven. may may have been been you any not not consider admission have (Italics added.) concerning

made these crimes.” defendant was, however, Bundy charged with the The instruction for defendant’s was not benefit. Murray murder this be of it defendant’s trial. The proceeding could not convicted Murray correctly instruction directed of either the jury it could convict E. Voice Identification Cohen and Mindy court improperly permitted claims the trial they which testify proceedings

Laurie about out-of-court Brigges (1) He voice identification was identified his voice. contends: Cohen’s (2) the trial court suggestive improperly obtained by inherently procedures; hearing excluded relevant he was not afforded a testimony; expert the alleged suggestiveness Brigges’s identification. *84 Alleged Suggestiveness

1. Cohen’s of Identification Cohen testified at an camera her hearing admissibility on the of voice 1980, that in with August identification Detective Broda met her and played of portions two a for her. the tape playing Before Detective Broda tape, that Cohen was the explained obligated identify voice on any tape. Broda the played first of segment long. two minutes tape, approximately voice, Cohen heard one in the only about service Cohen speaking Army. the positively identified voice as that of the caller. Cohen then heard a segment second two-minute of She heard more than one tape. voice on the the part second of recording. She remembered something was said being about a movie pornographic involving a and a girl horse. Cohen again identified one of the (defendant’s) voices as that of the caller.

Defendant contends that the voice identification was procedure impermissibly suggestive. Even assuming, deciding, without that voice iden tification procedures are the same judged by standards as visual identifica tion, we find no error. this resolving question, the court first determines whether the so,

identification procedure was unduly suggestive and If the unnecessary. court must determine whether the identification itself was nevertheless reliable, circumstances, under the the totality of into account such taking as factors the (or witness’s view opportunity hear) person, degree attention, of the witness’s of accuracy any description of prior person (or voice), identification, the level of of certainty time between tiie 1223, incident and the (People (1990) confrontation. v. Gordon 50 Cal.3d 451, 1242 Cal.Rptr. 251].) [270 792 P.2d

Defendant contends that the procedure unduly suggestive first, three respects: voice; second, the police used a tape only defendant’s O., or the molestation of Shannon or any concerning murder even consider his admissions the crimes. 136 a hear that of the voice she would to Cohen police suggested third, with segment tape dealing chose to play

suspect; police conduct, identify Cohen likely which would be induce bizarre sexual speaker’s voice.17 one-photo lineup or showup Defendant draws a parallel one-person 1199, 1967]; (see 87 S.Ct. (1967) v. Denno 388 U.S. 293 L.Ed.2d Stovall [18 299, 1051]; (1980) 604 P.2d People Nation 26 Cal.3d 169 Cal.Rptr. v. [161 164, 780]; 483 People (1971) 4 Cal.3d P.2d Bisogni Cal.Rptr. v. 582 [94 609, 99 People (1977) Cal.Rptr. Sandoval 70 73 Cal.App.3d v. [138 A like a or cor 765]). single-voice one-person showup A.L.R.3d “lineup,” such or lineups but may danger suggestiveness, poreal lineup, pose 4 Bisogni, supra, (People are not unfair. necessarily inherently showups 582, 587; 1 Cal.3d v. Bauer Cal.3d People [82 Denno, 1398]; supra, 388 U.S. P.2d see Stovall v. 37 A.L.R.3d Rather, 1206].) all the circumstances must be L.Ed.2d at p. considered.

The close It is not clear that analysis presents question. first of the step in the Defendant was on other single-voice custody was lineup necessary. in the time. defendant the was charges procedure suggestive at As argues, However, unduly some even that the was assuming procedure respects. was reliable un- suggestive and the identification nevertheless unnecessary, der the of the totality circumstances.

We identifi- single-voice have once before considered the of a propriety People (1969) cation. In v. 759 452 P.2d Cal.Rptr. Osuna 70 Cal.2d [76 678], had the witness held at robbers for over two gunpoint by been hooded trial, The hours. At the identified defendant the witness the as one of robbers. had identified district attorney’s witness the defendant at the previously office. The witness outside the door and to the defendant first stood listened the he the talking to district for or 15 Then went into attorney 10 minutes. office confronted held defendant was not the defendant. We that the denied due to have process might this “It have been procedure. preferable in speak, length hear several but view of the of time persons [the witness] crime, was able to hear the talk not robbers the it was unreasonable during (Cf. (1968) have him confront a v. Cal.2d single suspect. People Caruso 68 argues proper 17Defendant further the trial failed to the standard for employ court evidence, admissibility determining of the it found that the factors of identification because reliability only weight went the evidence. The court admissibility the not the apparently apply two-pronged simply lineup. did not “there was no the test. It found that There any lineup. was no need for So this rise to constitutional at all.” any does not level However, independent properly our review of the record convinces us that the evidence was Any error in regard admitted. this was harmless.

137 336]; 436 v. United States 188-189 P.2d Simmons [65 1247, 1253-1254, 967].) U.S. 88 S.Ct. L.Ed.2d Moreover, in the district attorney there is record to show that nothing (Id. 765.) suggested p. should make.” at any way response witness] [the Here, Cohen had a to hear the caller’s voice similarly, good opportunity during the The first call 30 minutes telephone calls. was approximately The second call minutes. The length. lasted for about two police specifically instructed Cohen that she need make identification. The calls were any not unusual, highly and Cohen close attention. identification was paid Cohen’s time call positive unshaken. The between first call and second was one and the month. time between second call approximately procedure identification as in Accordingly, three weeks. approximately Osuna, conclude the suggestive so as to rise to procedure give “[w]e Osuna, a substantial likelihood (People supra, of misidentification.” 765.) Cal.2d p.

2. Expert Testimony Reliability on Factors of At the in camera hearing, testimony of an sought present witness expert of his to the support challenge admissibility of voice identification. The would witness not be until the day. available next court no found need to delay the wait proceedings to to be expert available, and ruled on the merits the issue without hearing expert It testimony. stated that defendant could “bring your on defense.” expert *86 Defendant contends that the trial court’s refusal him time give to to the present expert was error. of testimony Part his contention was not raised below. Defendant’s offer of was limited the proof to how the question of time, to ability a correctly voice identify diminishes over possibly to the recorder, difference in perceptions between media (telephone, tape live voice). Other were not claims raised below and are not cognizable on appeal. identification,

As with eyewitness some factors to iden- pertaining voice might tification be not widely known or may be We need counterintuitive. not decide whether expert testimony may (Cf. be as to these proper factors. People McDonald 37 Cal.3d 367-368 However, P.2d 1011].) A.L.R.4th it is a matter of common experi- ence that the to a ability remember perceptive experience diminishes over time. It is also known generally that voices sound different may slightly through different media. Expert opinion on these required matters was not determine the of the admissibility voice identification under the totality of the circumstances. the Especially given fact that the witness was not avail- on able the day hearing, of the the trial did not court abuse its discretion. Brigges’s on Hearing

3. Identification identification, defendant requested the the Cohen hearing after on day by identification Laurie the of the voice hearing admissibility a on second motions the day it had ruled on both The court stated it believed Brigges. “not different than said matter was Brigges that the before. the Cohen issue was he with the quarrel way Cohen but had lineup,” “rehash” the previ- wanted to merely The court found defendant presented. order, Defendant contends this ous denied the for a new hearing. request was error. August

Evidence showed that sometime presented jury arrest, portion after Broda and Garcia played defendant’s Detectives was Brigges. tape played, defendant’s Before interrogation tape on the but tape, Garcia told her she was about to hear a voice Detective did voice. Garcia not tell obligated any was not Detective identify she He be on the that he “had a or whose voice would tape. Brigges suspect,” herself Brigges testified he five minutes of played approximately tape. to 12 15 minutes of Three officers listening police remembered tape. defendant’s testified that Brigges Brigges identified voice. spoke. Detective she did not the contents Garcia deliberately tape. listen to did what not recall portion played. new this hearing

Defendant now that was entitled to a argues He argues “totality surrounding identification. that the circumstances” identification different from Cohen Brigges surrounding were those However, identification. he never to the trial court. suggested any this event, review the us our record convinces that the which procedure suggestive. Brig identified defendant’s voice was not Brigges impermissibly ges heard a with voices. She did not that some recording perceive several voice She asking questions answering. voices were and one had during substantial listen to defendant’s opportunity telephone voice call, Cohen, which lasted four minutes. As with did not suggest police *87 identification be made. from the any Brigges’ identification tape Cohen’s, less certain than identified defend Brigges but perhaps specifically at trial ant’s voice from his cross-examination. identification hearing admissible, was thus error a any holding separate hearing harmless.18 Lamphier himself admitted to admitted into evidence as letter that was

part (He also later prosecution Brigges. case-in-chief that he made the call to testified Brigges telephone he made the call to which the caller referred to and the second call—in Cohen.) possibility first call—to There was thus no of misidentification. Right Testify F. earlier,

As noted defendant’s in were privileges propria persona terminated on December 1982. The were reinstated as standby attorneys attorneys of record. counsel’s the court ordered sheriff’s Upon request, deputies seize case materials defendant’s cell and turn them over to trial counsel. Defendant now that his tactical complains “personal legal seized, notes, were notes” among that the of those papers deprivation him, with coupled counsel’s refusal to return them or review them with him deprived of the right testify his own behalf. fully argument cross-examination, hinges his claim that direct “[djuring fre [he] quently expressed difficulty . . . various refer answering without questions that, notes, ence to his notes.” In he he particular, without his complains dates, unable to account for his movements on June 11 two critical and June 21, 1980.

The contention is not In supported by record. of the instances many about which defendant he did complains, not indicate an inability testify Rather, without his notes. he stated that he if might be able to answer he records, checks, letters, reviewed work logs, telephone re- receipts, police Indeed, examination, or other ports documents. on redirect defense counsel did attempt to help defendant refresh his recollection with the kinds of very evidence he said he would need.

Defendant was on the stand for approximately five and one-half days. Counsel took special care that defendant be allowed to of the explain many letters and documents he had written—and about which the had prosecutor cross-examined him examination, length. the middle of the redirect defendant refused to testify further. That was his own decision. Defendant was not deprived of his right to testify.

G. Waiver of Conflict With Defense Counsel

Defendant next contends did not waive validly a conflict of Watson, interest with his attorney, who had been as formerly employed deputy district He attorney. argues that Watson was bound duty client, to her loyalty office,” “former the prosecutor’s and that that duty conflicted with her duty defendant. He also contends that Watson “may have been privy to confidential information concerning practices, poli cies office, and attitudes of the prosecutor’s such as the charging multiple circumstances, special the selection of and the capital juries, extent to which are accomplices accommodated in exchange for their He claims testimony.” *88 that the information could not be conveyed cocounsel or used without “client,” her knowledge ignore that to to the but

breaching former duty to defendant. duty would breach a within information do not to constitute confidential

These matters appear defendant expressly More privilege. fundamentally, the attorney-client the trial court When Watson was appointed, waived conflict. any potential attorney district as a deputy advised defendant that she had been employed filed, had and she investigated defendant were against when charges Attorney remained until two months before her appointment. so employed defendant, His for just in mind what Honor stated “bearing Keith asked know, have Watson consent to Miss you record and what do you already “Yes, answered, Defendant along myself?” this matter with represent you I do.” not trial did claims the waiver was invalid because the court

Defendant “dangers consequences” representation all the explain fully more be not Watson. correct that Watson would Even is assuming internal regarding attorney’s to share district permitted information him, he this a “conse- “danger” not is a explain why with does practices Under attorney. of different appointment which would quence” require him that informa- attorney would be able to offer defendant’s no hypothesis, Watson, All be not like would bound tion. former district deputy attorneys, of the was not a former member attorney reveal the information. No who The unavail- district office would be to such information. attorney’s privy interest. not of constitute a conflict of ability the information does itself no There is any not the existence of other conflict. allege Defendant does case received about defendant’s suggestion that Watson had information any any never while as a district Defendant attorney. expressed employed deputy (in with He her regularly proclaimed competence actual conflict Watson. - contrast to Keith’s alleged incompetence). form, A rendered inadequate waiver need not be in nor is it any particular (See are Max- because all conceivable ramifications simply explained. Court Superior well 30 Cal.3d 333].) of the basic problem.

P.2d 18 A.L.R.4th advised n^t indicated he was district the case deputy attorney trying specifically had matters which Watson any relating aware of defendant’s case of find knowledge. adequate We the waiver under the circumstances. Lamphier H. Search Warrant Residence for a September Joey Lamphier’s a warrant was issued search Veronica apartment Compton for evidence of a between defendant and plan

141 Defend trials. false at defendant’s testimony Compton’s to offer warrant, on informa largely supporting the affidavit based ant contends State, not did Washington in former cellmate supplied by tion Compton’s the search. probable establish cause for 1980, date in before the effective here were committed crimes initiative, therefore, case. to this apply 8. That does Proposition 692, 251, Cal.3d 667 P.2d

(People (1983) Cal.Rptr. v. Smith 34 262 [193 did, at the He 149].)19(If it contention fail outset. would defendant’s would (In lack residence. re Lance standing to the search of challenge Lamphier’s 631, 744].) (1985) W. P.2d 37 Cal.3d 873 694 Cal.Rptr. [210 We rule that an untested noncitizen therefore California “apply v. (People informant’s . . . .” claims must be corroborated independently 1179, 1206, (1990) 51 3 800 P.2d Cal.Rptr. Cal.3d fn. [275 Gonzalez not, however, 1159].) The need in corroboration be form. any particular ‘in reliability authorities need confirm the informant’s only untested “[T]he essential need not element of cause respects’; they every probable establish (Id. fn. in by independent means. italics p. original.) [Citations.]” “ addition, be is . . . for an bare conclusion to informant’s possible ‘[i]t information, buttressed by which itself does not amount to secondary prob first, able cause but which fortifies the two combination to for ” sufficient cause warrant.’ provide (People for issuance of a search 756].) Levine 152 Cal.App.3d here, Applying foregoing to the facts we conclude principles the warrant affidavit was sufficient. The were allegations primary supplied informant, a noncitizen Compton’s former cellmate This Washington. informant provided detailed Washington authorities with informa specific, tion that Compton and defendant were testify conspiring Compton falsely defendant’s at his behalf trial on the murders. instant Washington prison officials searched Veronica cell and Compton’s seized materials which corroborated the informant’s many statements respects. Compton possessed a album photograph containing pictures of nude and bodies. decapitated The photographs to be coroner’s and appeared police defendant, photographs relating to the charges against which had been delivered defense A pursuant court-ordered discovery. number letters defendant’s handwriting were from cell. also seized Compton’s that, Attorney 19The argues General Smith notwithstanding, provisions Proposition apply should to a (The search conducted its passage. evidence in Smith was obtained after passage.) before its We any need the point, not decide for the search warrant was valid in event. *90 as case letters referred to the expressly Two of defendant’s photographs All was similar to charges against to him. this photographs pertinent description. informant’s affiant, further investigator,

The her as believed based on an experience to a plan give in the made reference that certain statements letters coded references, The in case in Compton’s. false either defendant’s testimony, be reasonably a could plan, no means a clear statement such although by that a existed. plan read such allegation informant’s together support “totally which a required Some referred to a or “show” “screenplay” letters about Compton Other information from sought letters polished” preparation. corre- his Bundy. frequent secrecy Defendant made comments about at her “under Lock and with letters spondence Compton—he kept Key,” advisers, well he even them from his as jail, legal and kept knowledge sent to his as his that mail should be emphasized friends. Defendant secret (i.e., Joey a Lamph- office box. He also indicated that knew post “lady” ier) (1) office aid them from the box delivering post would mail unread, and by who and give unopened would it to defendant investigators, that Compton correspondence over the to defendant reading phone marked “Joe read.” evidence, Joey Lamphier this showing

Based and records upon postal box, had reason to believe was cotenant of the office affiant post outlining and Compton, plan communications from both defendant both, Joey stored at false evidence at the of either or were present trial combination, information, All suffi provided this Lamphier’s apartment. Levine, (People cient supra, cause for the issuance of a search warrant. 1058, 1065.) There was no error. Cal.App.3d I. Warrantless Defendant’s Search Wallet seized from wallet Defendant next contends the list telephone have neither a search booking should been because it was suppressed proper search, nor a an find a valid and booking search incident to arrest. We it was hence need not decide whether it was a valid search incident to an also arrest. He

Defendant was into around noon on 1980. custody August taken cell await holding was to the Van transported Nuys station placed Defend- the arrival of officers from the division. robbery-homicide downtown wallet, ant His belt cell around or 2:00 placed holding p.m. 1:30 envelope other effects were a manila personal envelope. placed remained examined at that time. on Detective Pida’s desk. Nothing arrived arrested defendant robbery-homicide formally detectives around 6 Detective of the manila p.m. Orozco took possession envelope containing defendant’s but he did not it at that time. belongings, open Detectives Orozco and then defendant to Parker Stallcup transported Center. Center, At Parker the robbery-homicide detectives interviewed defendant. The interview the same began day 7:15 and concluded at 10:45 p.m. p.m. Detective booked defendant after the Stallcup interrogation. At that point, *91 Detective Orozco the wallet and its inspected contents. visible Plainly upon the opening wallet was a card listing several female names and telephone numbers. The name and a “Cindy” number on the card. telephone appeared During his interrogation, defendant had stated that knew Chan- Cynthia dler and had her in telephone number his wallet.

. Defendant claims the search and seizure of the wallet exceeded the scope of a proper search booking because Detective Orozco read the list telephone in defendant’s wallet. He that the argues of the in his reading documents wallet was not related to properly any and that the inventory purpose search was therefore invalid.

In People 543, Hovey (1988) v. 44 Cal.3d 570-571 749 [244 776], P.2d There, we rejected a similar contention. the defendant was arrested and booked into The jail. booking officers inventoried the contents wallet, of the defendant’s including an incriminating We held not receipt. that it only was permissible to inventory (Illinois the contents of the wallet v. Lafayette 65, 69-73, 462 U.S. 643-648 L.Ed.2d 103 S.Ct. [77 2605]), but that it was also necessary to read the in the wallet order papers Here, properly and identify inventory them. the opening defendant’s wallet and the reading within it papers likewise did not exceed the scope of a proper booking search. Alleged

J. Trial Court’s Bias Defendant next contends that the trial court him was biased against committed various acts of misconduct.

1. Involvement in Presentation Evidence

Defendant contends the court manifested bias the presentation of evidence, possibly the leading to believe jury the court was an expressing opinion on the merits. The question for us to decide is whether the judge “officiously unnecessarily the usurp[ed] duties of the . . prosecutor . and in so doing that he impression create[d] himself with allying [was] the prosecution . . (People . .” Campbell (1958) v. 162 787 Cal.App.2d 607].) 82]; People Cal. 618 P. Mahoney (1927) [258 see also P.2d

[329 no; of its scope “within acting the answer is was As we court explain, answered, even to be allow refusing improper questions] duty [the (1954) 43 Cal.2d v. White (People made.” though objection no [was] fell within the acts also 9].) of bias purported P.2d other and were proceedings comment and control bounds of proper nonprejudicial. interjected court allegedly four instances which trial cites instance, defendant first objections nonhearsay.

sua sponte hearsay Choi, the medical exam- Helvin whether Dr. sought to elicit from Detective iner, clearly This was of Exxie death. had told Helvin cause Wilson’s matter was also second objection proper. sua hearsay sponte whether he was told defendant asked a witness state clearly hearsay: else and someone testing performed results of scientific *92 witness, witness was not person- the and which the by observed personally instance, asked Donielle In the third defendant ally qualified interpret. have had told Patton that they may Patton the of other women who for names hearsay own had with defendant. The court sustained its conversations since Patton hearsay, were not but objection. names of the women alone conversations, were irrelevant. knowledge they had of any no of the personal instance, for Officer clearly In the defendant’s called questions fourth Bundy’s police. about the content statement Jacques testify he the trial court’s sua Defendant cites instances which claims each have reviewed relevancy were not We sponte objections proper. ¿he objection trial each was well taken. objections. court’s instance in the Defendant asked Detective Broda whether involved “being produc- of film a . would be tion woman and a horse sex . . ... involving having . . . He much of his interrogation also asked Broda how incriminating?” objected were tape “nonincriminating.” was Both questions properly these “incrimination,” “involvement,” as or “nonin- vague as to what constituted laboratory crimination.” Defendant’s to former department a question police testify assistant whether he was “asked to check for certain dates to specific about” was also vague ambiguous as asked.

The court for a objected calling several defendant’s as questions from if her caller had conclusion the witness. Defendant asked Cohen Mindy why used “official Frances sounding terminology.” Huys Defendant asked was Defendant defendant bullets on to Northern California. carrying trip Ramos, worker, asked former testi- by Carlos a fellow what he meant mony day” police that “the next another coworker had told Ramos asked Lamphier Defendant searching guns. Joey would be for plant to her. The whether he had admitted his letter guilt questions particular conclusions, what terminology, called for “official” clearly e.g., as to police time, mind, mind at was defendant’s what was in the witness’s another rulings were of a letter written defendant. personal interpretation proper. sponte about several other sua complains allegedly improper have find no

objections. Again, improper we reviewed record and re- Brigges Laurie rulings. example, percentage For business calls ceived her line as Defend- excluded irrelevant. telephone properly ant’s he to the cross-examination of Carlos Ramos about a statement made attorney district he saw in concerning guns defendant’s possession curtailed as Pida recalled testi- properly Whether Detective argumentative. fying that left his than office no more 10 minutes on day was held for marginally was not and was questioning impeachment proper relevant at best.

Defendant further contends that the trial repeated court’s intervention case defense to far in the compared objections fewer case prosecution’s above, demonstrates bias. We noted disagree. As the court’s sua sponte objections were justified. the court’s intervention is Additionally, largely explained by fact that defendant was himself. The representing prosecu- tor, an experienced attorney, was of not deliberately following strategy *93 to objecting defendant’s questions, objection- asked fewer undoubtedly able questions than did defendant.20 cases which defendant are not did relies court apposite. rest the

summarily defendant’s case without him to assemble his permitting (People (1982) witnesses v. Blackburn 139 Cal.App.3d 764 [189 50]), or excessively inject itself the examination of witnesses (Offutt 11,16 11,17,75 United (1954) 11]; v. States 348 U.S. L.Ed. S.Ct. [99 United (5th 1976) 216-219; States v. Sheldon Cir. People F.2d Robinson 179 Cal.App.2d 50]). 632 Cal.Rptr. next

Defendant that the him complains trial court criticized improperly asking questions then the He objecting only answers. alludes to one instance which this occurred. The trial court’s admonition—“You can’t ask for hearsay and then when like you don’t the object”—was answer brief mild, and appropriately advised defendant to focus his questions properly. 20Wenote that the objected court sua sponte prosecutor’s penalty phase argument to the

about danger the might pose defendant in the future if he were ever released. the jury impression court gave

Defendant further contends the trial of defend- objected when it several it defendant’s testimony disbelieved several others one and characterized ant’s as struck nonresponsive, answers each of We have reviewed as or answers. “smart-alecky” “wisecracks” or admonitions objections that the instances and conclude court’s question were appropriate. his cross- during also that the trial court showed bias

Defendant argues own tran- had his prepared Defendant Stallcup. examination Detective use it cross-examina- during interview and script police attempted him from calling restricted unfairly tion. Defendant trial court contends refer to the his “the transcript,” permitting prosecutor while transcript There was no direct examination. police during unauthenticated transcript which was not merely police transcript, error. The used prosecutor evidence, for direct examination Detective admitted into as basis of defend- the interrogation on his observations and recollections of Stallcup different, to a jury have to refer in front of permitted ant. To defendant unauthenticated, was properly confusion and transcript also risked undue allowed fully under Defendant was disallowed Evidence Code section 352. errors either regarding any alleged Detective Stallcup cross-examine the police recollection. transcript Stallcup’s him to place

Defendant further contends that the trial twice judge required instance neither could jury. irrelevant information before prejudicial the matter have been possibly prejudicial. next trial restricted his that the court complains improperly restricting the similarly to move about the courtroom without

ability freely himself, the trial When court prosecuting attorney. represented the podium, him to from counsel table or conduct permitted questioning him It to use did not allow him to himself. approach required but witnesses witness. The court was not one to take materials to the investigators *94 noted, the court to on the As required impose prosecutor. a similar restriction the rules of subject the an officer of the court and to prosecutor Defendant was under no such his conduct. responsibility professional addition, In himself defendant’s unilateral choice to represent constraints. conduct the did dictate the of the the of scope prosecutor’s rights not case. People’s the ordered his

Defendant further evidence of that court cites as bias exhibits, firearm thereby not near him with unloaded investigator go to dangerous. be to the it believed defendant to allegedly communicating jury fact, It never the court ordered the bailiff to handle the merely weapons. with the This weapons. the to defendant investigator go told defense near and control of security exercise of discretion for proper purposes the proceedings. Rulings

2. Based on Facts Outside the Record Allegedly trial,

When this case was first Torres for assigned Judge to charges informed defendant that he had ruled to dismiss the on motion case, and that he read the Bundy’s hearing transcript had preliminary case which contained a recording Bundy’s police transcript tape interview. fair Judge Torres stated that this would not affect his to be ability in defendant’s trial impartial objected case. to before orally Judge Torres. The court informed defendant that he could move to have judge but neither disqualified, defendant nor his ever filed a chal attorney either lenge for cause or Defendant now contends that this peremptorily. to case led the exposure Bundy’s court to and to make biased prejudge rulings on four occasions. occasion, defendant, court,

On the first not the on matters sought rely court, outside the record. Defendant urged Bundy’s extrajudi- based cial (none statements to police evidence) of which had been offered declare an Bundy uncharged so that defendant could elicit coconspirator hearsay statements made allegedly by Bundy. court indicated properly that there was no evidence in the record to such a support ruling.

The second came disputed ruling defendant’s motion for during produc- tion of evidence involving van. The Murray’s with prosecutor disagreed defendant’s assertions unsupported that the items were relevant requested the charges against motion, defendant. The court denied the stating Murray’s van “was not used on any murder other than the Jack Murray murder which is Bundy.” Miss Defendant asserts that this statement must have been based on the court’s exposure to evidence outside the record. On contrary, himself mentioned numerous times that had Bundy Moreover, killed and decapitated in the Murray van. there was no evidence whatsoever linking any of charged offenses to the items defendant There is sought. no indication of bias.

Third, later in the same hearing, the denied court of evidence production related murder Jane Doe the evidence to be irrelevant. ruling “995,” Although court referred it based its on the properly ruling fact undisputed that defendant was not charged guilt with that phase murder; evidence relating to it was not relevant.

The fourth occasion occurred after the court had revoked defendant’s At self-representation. one the point, court stated that there was “not a herein, aside the or from anyone to show that victims scintilla of evidence” unclear, van. The this remark is but Murray’s killed in basis for Murray, points defendant evidentiary discovery rulings; involved no the colloquy find impropriety. to none. We no Self-representation

3. With Alleged Defendant’s Interference hampered court improperly next that the trial complains Defendant not The record does at on several occasions. self-representation efforts error nor prejudice. the claim. Defendant has shown neither support have ordered the prose- Defendant first that the trial court should claims call whom the intended to prosecutor cutor him a list of witnesses to provide trial, prosecution Before the testimony. 48 hours advance of the witnesses’ addition, In the the with a list all witnesses. prosecution defense provided wit- day the defense each the court to inform prosecution ordered That nesses intended to call that was sufficient. prosecution day. instance, he had not been afforded that complained another Los Angeles to he entitled under the library access to law which was conceded, however, he had that County “Pro Per Defendant Memorandum.” He did not seek court library any missed a of his law time. only part minor intervention, he claim other any wrongful deprivation order or does not of law library access. standby next court refused to order counsel

Defendant that the complains him he was daily to deliver to their when copies transcripts granted did initially any the court not make order Although self-representation. it later to transfer regard transcripts, standby attorneys ordered did not already defendant all their that defendant transcripts possession have, he that would have a set. complete so him next to call his permit

Defendant contends that the court refused withheld material from attorneys prove they deliberately as witnesses to that him. The claim is At that defendant was supported by point, record. withholding district information both from accusing deputy attorney examination, the proved defendant and his to be attorneys. Upon allegation unfounded.

Defendant also the court refused to order that be complains he had jail returned to the each day by p.m. complained been one The court ordered the evening returned 7:10 jail p.m. sheriff to the County “to do the defendant back everything possible get *96 This order ability.” was every Jail each and best of their evening, to the jail reasonably that defendant was returned adequate to assure in him to the returning jail day. delay each Defendant to no promptly points him of trial. day which for the next from prevented preparing in in cell holding a placed Defendant cites another instance which he a order confiscated. tape violation of federal court and his recorder However, cell and his after defendant was to his hearing, proper restored him. tape recorder was returned to

Defendant further the trial threatened to revoke continually contends court his in propria status. One occasion came to frivolous persona response occasion, motion to recuse the On another prosecutor. attempted defendant to exclude own his admissions as a declaring himself available hearsay by witness, prosecution on the apparently theory admissibility depen- dent on the availability of the declarant. admonitions other Similar followed flares of outbursts temper, of sarcastic comment before threats to jury, delay if proceedings with for continuances the court did not requests afford him the discovery he wanted. court, right is not license to abuse self-representation

nor to obstruct the proceedings. court’s admonitions that defendant’s status be self-representation could revoked if he abused it were reasonable under the circumstances.

Finally, defendant contends the court burdened his unfairly right of self-representation by instructing counsel not consult with standby defendant. The record does not substantiate the contention. Defendant had with, made it clear he despised, would not and did desire cooperate any with, communication attorneys. former The court required was not Crandell, appoint counsel advisory (See People to assist supra, defendant. v. Rather, 864.) Cal.3d the court Keith and Watson as appointed standby counsel court case it became necessary for benefit counsel to step (See trial. Faretta complete California, supra, 806, 834-835, 422 U.S. 581].) fn. 46 L.Ed.2d at has not p. demonstrated that his self-representation was inability burdened any communicate with counsel whom rejected. repeatedly K. Posthypnotic Testimony A. of Charlene

Defendant contends that Charlene A.’s identification as her excluded, assailant should have been murder attempted and mayhem counts must be reversed. We agree.

150 243, 18, (1982) Cal.Rptr. 31 Cal.3d 66-67 Shirley [181

In v. People undergone a witness who has 1354], “the testimony 723 we held that P.2d in issue is the events memory of restoring for the hypnosis purpose events, the time the to those from relating all matters inadmissible as to 954, (1990) 50 Cal.3d (See People v. Miller forward.” also hypnotic session 492, 1289]; (1989) Cal.3d Hayes v. 49 People P.2d 982 790 Cal.Rptr. [269 132, 1260, 719].) rule applies This 783 P.2d Cal.Rptr. 1268-1269 [265 385, 390 Cal.3d (People v. Guerra retroactively to this case. held this 635].) A was hearing P.2d pretrial Shirley decided but evidence after was case on defendant’s the objection had the witness that we The court found before held it retroactive Guerra. retroactively. not be Shirley applied been that should hypnotized, but ruled of the gave description 1980. She April Charlene was assaulted on Gaida, in hypnosis, car an officer trained and assailant. Lieutenant William not He did Charlene on 1980. May conducted session with hypnosis offense, on the ask the concentrated her about the events of but specific before the Charlene’s description of the assailant. Gaida recorded description different a similar but began. gave slightly Under she hypnosis hypnosis, his name and said she believed of the assailant and his clothing, description was “Don” or “Ron.” 30, 1980, did not lineup

On viewed a which July photographic Charlene one as selected tentatively photograph include defendant’s She photograph. 5, 1980, later, Charlene the assailant. Several days August possible When live the suspect present. viewed a She told officers lineup. attacker, she who similar to the urged pick officers her to someone looked tentatively she identified. indicated the as the person photograph same crime, identified defendant two after the Charlene April nearly years him in court and described from a She also identified photographic lineup. assailant. her. Her testimony

Much of admitted. Charlene’s testimony properly session, crime, in the hypnotic about events of not discussed subject session, and her were admissible. predate descriptions hypnotic 1260, 1272-1273.) of the evidence (People supra, v. 49 Cal.3d Some Hayes, However, Charlene’s events was elicited posthypnotic by defense. and in-court identifications of defendant—which photographic-lineup post- under authority. date the session—were inadmissible hypnotic foregoing trial. This was direct identification of defendant at As this was only far against evidence defendant with crimes strongest connecting Charlene, it testimony is this affected the verdicts. reasonably probable (Peo- We murder mayhem therefore must reverse counts. attempted 1270.)21 ple Hayes, supra, at p. 49 Cal.3d Penalty

III. Phase Facts *98 Aggravation in A. Evidence in in

The evidence of two other murders prosecutor presented aggravation involved, by which defendant was and acts and threats of violence other defendant.

1. Murder Jane Doe 28 The skeletal Jane a 17 to 23 approximately remains of Doe woman years of were near a bed in area in age, Saugus-Newhall found creek bone, March 1981. early Various bone were found: of a femur fragments part ribs, vertebrae, some jaw a lower and a There hole bone skull. was a bullet in the skull behind ear. The that all right coroner’s examination showed the bones belonged to one individual. She had a fatal wound sustained bullet found, about two right inches from the ear. bullet but the of the No size and entry wound the wound pattern were similar to the wounds inflicted on Wilson, Exxie Karen Doe Jones Jane 18.

Among in documents seized the search of Joey Lamphier’s apartment in was one defendant’s handwriting, which the contended de- prosecutor scribed how defendant and Bundy had murdered a blonde young prostitute called of her “Cathy” near disposed body Saugus. During guilt phase, defense had for the the entire played jury tape Bundy’s interview with in which police she described she and how defendant had killed “Cathy.”

2. Murder 99 Jane Doe 28, 1980,

On August the mummified remains of Jane Doe 99 were found 30 feet an down embankment a remote area near Malibu as known IXma Canyon. skirt, The victim was wearing a black tank both top wrapped around her waist. deputies Sheriff’s found clump also a of blonde hair below where victim, the body was It found. appeared belong to the who also had blonde hair.

The coroner’s examination showed that Jane 99 was Doe approximately old, feet, tall, years 3 inches with blonde had hair. victim been 21Because holding, of this solely we need not other consider contentions that relate to these counts. examination of Ballistics wound to the left forehead. a gunshot

killed from came they the skull revealed taken from fragments bullet fragments these bullet ACP characteristics of jacket. .25-caliber bullet of Jane the skull characteristics the bullet found matched generally ballistics fragments positive There too few make Doe were 28. identification. July shortly before some time July possibly testified that

Bundy to Oxnard. Highway had driven on the Pacific Coast she and defendant route, near Malibu region a mountainous out Along pointed A that area. package” “package” he had Bundy “dropped and told on another the Verdugo apartment term a dead At body. defendant’s occasion, in Tuna dumped had been defendant mentioned a “package” *99 and disposed had sex with victim Canyon. apparently body.

3. Other Evidence acts or instances of defendant’s numerous other presented prosecution son, violence, Bundy’s 10-year-old abuse of physical threats of including fellow against well as former coworkers as against and several assaults prisoners.

B. Evidence Mitigation in Background

1. Character and by testimony the defense objection, presented Over defendant’s personal members. family The family defendant’s childhood.

Defendant’s mother testified about as a career naval moved often because of the father’s work assignments in the Air Force. He was college, did not but enlisted go officer. Defendant California where Defendant then moved Southern honorably discharged. 1976. When he Sue Clark were divorced around married 1972. They failed, examination to he took and an passed defendant’s business upholstery and power. of water working department become a steam for engineer mother, defendant had no behavior According problems defendant’s his were She never noticed mental or behavioral any school and grades good. have her son could com- about defendant. She did not believe peculiarities defendant the murders which he stood The mother loved mitted convicted. and him in the gas did not want to die chamber. with his he had “competitive”

Defendant’s father remembered that been Walter, other family. brother no so would be normal though any more than Switzerland, attended Culver Military After schooling a year’s Culver, any He behavioral Academy. problems, was sent because Defendant’s father but interest in school. personal because his father’s while never unusual defendant’s behavior attitudes noted about anything he growing up. Keyes,

The defense evidence. Dr. Gloria also presented expert psychiatric had an psychiatrist, forensic testified that defendant antisocial personality disorders, disorder. Other included shared diagnoses psychosexual paranoia, an possibly Dr. that a atypical psychosis. Keyes explained psychopathic is usually not inherited. is not personality acquired, diagnosis Although old, made it very early until is at least 15 can at a person years develop narcissism, age. It by is characterized extreme be- impulsivity, delinquent havior, and an other grandiosity, inability relate to defendant’s people. case, invincible, for at the example, many himself letters as portrayed same time them disparaging others and blaming problems. disorder further by is characterized low self esteem for which extreme mechanism, is a grandiosity self-destructive compensating behavior. Defendant’s efforts in behaving himself representing (e.g., obnoxiously himself in presenting negative light) indicated self-destructiveness. Dr. believed Keyes that defendant’s psychosexual disorder was paraphilia, *100 fetishism, including and the pedophilia, acting Wearing out of fantasies. women’s underwear a classic in is of fetishism. Defendant example engaged with pedophilic activity Shannon O. TTierewere also indications that defend- ant had engaged necrophilia. Defendant denied interest any necrophilia and got with upset Keyes Dr. when she In broached the topic. opinion some psychiatrists, a necrophilia is “blatant psychosis.” At one point, Keyes Dr. diagnosed defendant as an having “atypical” She psychosis. later explained that was only defendant “possibly psychotic” and that whatever he had “psychosis” may have did not require hospitaliza- tion for treatment. Defendant was neither schizophrenic nor delusional sense being out of touch with reality.

Dr. there Keyes believed was a causal between the murders relationship and sane, defendant’s mental disorders. Defendant was however. His person- did ality disorders not him prevent from understanding what he doing; he intended to commit the and he knew killings, that killing was wrong. Defendant was touch with and what delusions he had did reality not affect his of reality. perception Defendant has an with above-average intelligence IQan of 118. Lunde,

Dr. Donald professor psychiatry at Stanford University, examined defendant and reviewed Dr. docu- Keyes’s report and supporting ments. He diagnosed defendant’s disorder and personality as “antisocial addition, he found variety sexual deviations.” that is

paraphilia, from “sexual sadism.” defendant suffered Testimony

2. Defendant’s counsel, at in his behalf own defendant testified the advice of Against penalty phase. educa- relationship family, with his upbringing,

Defendant reviewed He his differences history. explained background employment tional and who assaulted allegedly whom he had former coworkers with two committing He denied penalty phase. at the prosecution testified for murders, which indicated lie detector test claimed to have passed not the killer. 28, who of Jane Doe circumstances of the death Defendant explained 1980, while of July the end her One near “Cathy.” day, had name as given defendant wagon, the Buick were out station Bundy driving defendant and returned, When defendant some buy cigarettes. at the market to stopped defend- have sex with Cathy, a blonde prostitute, had Bundy arranged into got station and gas the car behind an empty ant. They. parked Cathy orally while so could watch Bundy seat that Cathy the back with a gun Bundy pointing him. looked saw suddenly up copulated head and Cathy’s through him. fired the bullet went Bundy gun. stomach, defendant’s shirt either in the without penetrating struck defendant his skin. Bundy impressed Then shoot him. Bundy might Defendant was afraid defendant, him that more to believe likely would be police upon into the back seat and killed climbed Cathy. Bundy had Bundy, actually *101 clothes and Cathy’s removed driving.” “keep Bundy ordered a dirt road turned down Eventually, they her a while. sexually fondled for There they the led to water hole. where road a the area and Saugus stopped report Bundy Defendant did not out of the car. Cathy’s body dragged and that Bundy department incompetent, he the was police felt that because denied that he him murder. Defendant accuse of the successfully would 21,1980; claimed that she June blood out of the Buick on Cathy’s washed Exxie Jones and Wilson on killed after the murders of Karen until was 23, 1980. June 99, contend- the murder Jane Doe knowledge

Defendant disclaimed of of miles his brother’s away wedding. he was 385 at ing that, were the case and if he were a on juror Defendant also stated murders, for the death the he would himself vote guilt of his of convinced

155 Defendant, however, the given would not insinuated that be penalty. Bundy him, and against complained for her penalty exchange testimony death denied him that he a of because trial court indigency victim represented or law while he had himself. assistance of counsel clerk Penalty IV. Phase Issues Prospective Challenges A. Denial of for Jurors Cause Defendant contends the trial court denied defense chal improperly for cause six lenges because it then prospective jurors applied appli 776, Witherspoon (1968) cable rule v. 88 Illinois 391 U.S. 510 L.Ed.2d [20 1770], S.Ct. and if granted challenge “unmistakably it was only cause clear” that the or auto prospective juror would either automatically impose matically decline to the death He impose standard penalty. argues 844], 841, Wainwright (1985) v. Witt 469 U.S. 412 105 S.Ct. L.Ed.2d [83 trial, case decided after the should be and that defense chal applied, lenges for cause to the jurors six should have under that been sustained Witt, standard. Under a juror be excused for if his may cause or her views “ capital punishment would or ‘prevent impair substantially performance duties as juror] [his her] accordance with instructions [a [the] ” (Id. . . 851-852]; . oath.’ at p. People Cooper L.Ed.2d see pp. [83 771, (1991) 53 Cal.3d 865].) [281 P.2d Our review of the record discloses no error. We need not consider detail, however, matter in for defendant has failed show even prejudice assuming court erred as to all six jurors. None sat on challenged actually jury. defendant’s One eventually was excused for cause for an unrelated reason, one dire, was never called into the jury during box voir general Furthermore, the other four were excused by the defense. peremptorily sworn, when the jury was accepted the defense had exercised only 18 30 peremptory challenges.22 Defendant did not dissatisfaction with express the jury as selected. Any erroneous inclusion of prospective jurors therefore (Ross (1988) harmless. v. Oklahoma 487 U.S. 87-89 [101 80, 89-90, 2273]; L.Ed.2d 108 S.Ct. People v. Edwards 54 Cal.3d 830-831 Cal.Rptr.2d 436].) 819 P.2d Contrary to defendant’s argument, no reason why rule appears this well-settled should not apply *102 (See 931, here. also People v. Kelly (1990) 51 Cal.3d 960-961 Cal.Rptr. [275 160, 516].) 800 P.2d agreement 22By of parties, the the procedure trial court used a jury modified for selection.

Instead of 26 peremptory challenges for jurors selection of the 12 peremptory 4 alternates, challenges for selection of 4 side each was allotted a total of peremptory 30 challenges. these, panel jurors A of 16 was among selected. From the trial court drew the jurors, names of 4 designated who were as alternates. 156 by Uncharged

B. Defendant Misconduct various un- erroneously the considered jury contends that Defendant misconduct, instruc- committed various and that the court acts of charged acts. related to these uncharged tional errors Uncharged Misconduct Admissibility 1. of miscon “uncharged he lists 32 instances of what calls Defendant against They range admitted him. he claims was impermissibly duct” that fired “was once from the murder Jane Doe 99 evidence that from of this violated the much of evidence for He claims that insubordination.” job 762, 1, 700 P.2d (1985) Cal.Rptr. v. 38 774 People Boyd [215 rule of Cal.3d comes within one is limited to evidence that evidence aggravating 782] 190.3. the factors listed section specific of reasons, for various guilt phase Much this evidence presented of was evidence be The never this attorney suggested the defense.23 district by some evidence, not on this object the defense did aggravating considered as by presented of evidence at the was penalty phase basis. Some defense, it considering aggravating an as objection jury without again objection. without an Other evidence admitted penalty phase evidence. v. Clark (People evidence on this may object any appeal. 399, 583, 127]; People v. P.2d (1990) Cal.Rptr. 624-625 789 50 Cal.3d [268 Ghent, 766.) supra, Cal.3d merits, does to evidence Boyd find error. The rule not apply

On we no Rather, “It stands at the the defense. presented guilt phase from prosecution introducing, that the 1978 law prevents proposition case-in-chief, in the various factors its evidence not contained aggravating Cal.3d (People listed section 190.3.” Guzman than the 917].) other only 755 P.2d acts misconduct on in his penalty crimes that the relied charged phase attorney district guilt and defendant’s the murders Jane 28 and 99 were Does phase argument as criminal child. These were considered Bundy’s abuse physical properly rest, 190.3, (b).) As to “the (§ or violence. factor activity involving force (People v. testimony.” made no effort to prosecution capitalize Guzman, supra, 963.) 45 Cal.3d evidence support

Defendant also contends there insufficient Doe court should not jury finding that he murdered Jane 99. trial guilt phase regarding 23We some of this previously have considered defendant’s contentions evidence.

157 aggravating the crime as an uncharged to consider an “permit penalty jury the essential elements unless a fact have found factor rational trier of could 38 Cal.3d Boyd, supra, crime (People of the a reasonable doubt.” beyond test, 762, 778, of omitted.) Under this the evidence internal marks quotation of Jane Doe 99 was admitted. murder properly She was Jane a woman old. approximately years Doe 99 was blonde the skull fragments killed Bullet from by a .25-caliber bullet the head. the same the bullet found in the skull of shared characteristics as general 18, Doe no identification could be made. though Bundy Jane positive testified that defendant to the area where remains of pointed once found, i.e., body, victim were and told her he had a a “dropped package,” location; having he admitted with before her. girl killing sex area. Defendant later mentioned the to the same killing again, referring death, Evidence with of the fact and the manner of the victim’s coupled admissions, defendant’s sufficient trier fact to was reasonable of beyond conclude reasonable doubt that defendant committed the murder Doe Jane 99.

2. Alleged Regarding Instructional Errors the Other Acts Misconduct

Defendant contends the instructing court erred not it jury could consider evidence of if only other crimes were they proved beyond 21, reasonable (People (1982) doubt. v. Robertson 33 Cal.3d 53-55 [188 77, Cal.Rptr. 279].) 655 P.2d The court did so instruct as to the murders of Jane Does 28 and The only 99. other crime that cited at the prosecution penalty phase the abuse of in not Any son. error Bundy’s giving reasonable (and doubt instruction other regarding any alleged abuse crimes) was harmless. These other crimes were com utterly insignificant to the pared many and egregious crimes the jury properly considered. 432, (People (1988) 604, v. Brown 46 Cal.3d 446-449 Cal.Rptr. [250 1135].) P.2d

Defendant also contends that the trial court was sua required sponte to instruct that Bundy, testimony alleged an had to be accomplice, However, corroborated. she an was not accomplice to crimes about which she testified at the penalty and the phase, instruction not needed. There was evidence she was an accomplice to the murder Jane Doe she testified about that murder only but as a the guilt witness at defense witness, Since phase. she was a defense the corroboration instruction was at least required (1992) absent a defense (People request. v. DeSantis Cal.4th 1210]; 1247 Cal.Rptr.2d 831 P2d v. Fowler People (1987) 571]; 196 Cal.App.3d People v. Miller 87[241

158 addition, 59, about the In her 91].) testimony 82 Cal.Rptr. Cal.App.2d [8 185 evidence, defend- including was corroborated other by Doe 28 murder Jane writings. own ant’s on the instructing erred next the court

Defendant contends innocence, and the the prosecution, the burden of proof of presumption However, were such instructions delicti as to other crimes. rule the corpus was told to the jury expressly the At the given guilt penalty phase, phase. if it Does and 99 found only the murders of Jane 28 consider the suggestion doubt. There no committed them a reasonable beyond phase. at the penalty did not also apply instructions pertinent guilt phase circumstances, assume these correctly would jury Under the a reasonable to sponte duty repeat to and was no sua continued there apply, instructions 765, 865, (1992) Cal.Rptr.2d 1 973 (People [4 them. v. Pinholster Cal.4th 460; Brown, 432, People 571]; v. 46 Cal.3d People supra, 824 P.2d v. 245, 86, 37].) P.2d (1988) 128 753 45 Cal.3d Thompson Cal.Rptr. [246 it the jury the should have instructed finally contends court agreed if unanimously factor in it any aggravation only could consider v. (People contention. We the repeatedly rejected such factor existed. have 251].) P.2d 792 (1990) 50 Cal.3d 1273 Cal.Rptr. Gordon [270 Report Deceased C. Coroner’s of Jane autopsy

Dr. of office the the coroner’s conducted Carpenter died the penalty and of He before findings. Doe 99 his prepared report Choi, medical examination Dr. who much of the phase. performed had case, Doe was permitted of Jane including autopsy relation this and Dr. testify findings over defense about objection report evidence. Defendant con itself was not into report placed Carpenter. right tends the was inadmissible violated confron report hearsay The claim lacks merit. tation. 500], a People Wardlow 118 375 Cal.App.3d v. [173 another concerning by coroner testified an autopsy report prepared

deputy coroner, office. who had since left the coroner’s employ deputy (1959) 174 report (People an is a record v. Williams autopsy public Because 47]), into inquired P.2d trial court had Cal.App.2d so coroners as report expertise required deputy both testimony of the the deputy establish trustworthiness coroner’s report, Wardlow, supra, (People was found have been admitted. properly 375, 388.) Choi’s here. testimony similarly Dr. Cal.App.3d proper made as a Evidence Code section 1280 “Evidence of provides: writing act, condition, an event hearsay record of is not made inadmissible condition, act, when offered (a) writing rule or event if: prove [f] *105 (b) was made and within The the of of duty public employee; scope [f] act, condition, event; was made at or the time the writing near of [f] (c) The of were sources of information and method and time preparation such as to indicate its trustworthiness.”

These were in Dr. requirements Carpenter already met this case. had testified as an at the of Gina expert guilt phase—he autopsies performed Marano and Cynthia Chandler. Dr. Choi testified that Dr. Carpenter per 99, formed the of Jane Doe Dr. familiar autopsy personally Choi was with the manner of of the medical examiner’s preparation autopsy reports office, that it was Dr. to Carpenter’s duty at time of examination report make a of the Jane Doe made or near report 99 was autopsy, examination, the time of the an autopsy and that so was report prepared official record the coroner/medical examiner’s office. This was sufficient to establish the an as official record and to Dr. Choi’s report permit testimony.

Also lacking merit is defendant’s Dr. further contention that Choi’s testi mony violated his right constitutional to The confront witnesses. contents Dr. were admitted Carpenter’s report under a rooted” “firmly exception rule hearsay that carries sufficient indicia of reliability satisfy requirements (White of the (1992)_U.S__ confrontation clause. v. Illinois 8, 848, 859, 736, 742, L.Ed.2d 743]; 112 [116 S.Ct. fn. Bourjaily v. United 144, 156-158, States 483 U.S. 182-184 L.Ed.2d 107 S.Ct. [97 2775].) The state was not as defendant required, suggests, to exhume the remains and perform new Dr. autopsy after death. Carpenter’s D. Admission Psychiatric Testimony

Defense counsel called and examined Dr. Keyes present mitigating evidence of examination, defendant’s mental condition. During direct defend- ant personally objected on the basis that he had not waived the “doctor- client” privilege. He later threatened that there would if be “law suit” testified, witness and later yet interjected a her “hearsay” objection to part testimony. court overruled the objections. Counsel also called Dr. Lunde as a defense witness. his Prior to counsel stated testimony, that defendant asked him to object to the testimony because had not waived the record, “psychiatrist-patient privilege.” court noted the for the objection but him, stated that “you are the If attorney. you call the court is going allow it. You’re the one that has [][] to determine what’s the best interest of Mr. Clark.”

Defendant contends the court erred evidence admitting this over He personal objection. claims there was a violation of both the psycho therapist-patient privilege and the He attorney-client privilege. argues about damaging learned information because the prejudicial jury

error the psycho- on the basis of objected We note first that defendant only him. The latter claim the attorney-client privilege, privilege. therapist-patient Green, People supra, (Evid. (a); therefore waived. Code subd. § 8.) 27 Cal.3d fn. P.2d (1985) People 925] v. Deere Cal.3d 353 evidence

(Deere I), obligated present we held that defense counsel was evidence not be desire that such personal defendant’s mitigation despite *106 for counsel it would have been error seemingly Under this presented. ruling, have “largely decisions Subsequent not to have evidence. presented Deere, 705, 53 Cal.3d 716 (People supra, undermined” that v. holding. if evidence II].) need to longer mitigating Defense counsel no present [Deere Bloom, 716-717; 48 (Id. supra, v. People that is defendant’s desire. at pp. 1194, 1228.) of these decisions. any Cal.3d This case was tried before actions, vindicated ruling, Defense and the court would have been counsel’s I, if defendant’s yielded Deere for the court or had attorney under evidence, have there would objection, undoubtedly not admitted whether, in We not decide been a claim error under that decision. need cases, in evidence over light admitting of the recent there was error more personal objection, mitigating defendant’s error any presenting evidence was harmless. reflected

Although psychiatrists of the information elicited from the some defendant, on as counsel negatively as whole testimony mitigating, believed it. The defend- obviously choosing present testimony portrayed individual, ant suffering as a “sick” from severe recognized, psychological disorders, Dr. who could not control his conduct as a result of the disorders. testified that defendant’s illnesses were causative Keyes psychological on factor the murders. The much of the basis which testimony provided defense should treated rather than exe- argued counsel that defendant be infer mental cuted. Defendant claims that the would have been able to jury (and illness from the of the crimes without the benefit of circumstances testi- by) expert without the detrimental allegedly provided information however, find, balance, We benefitted defendant. mony. that on the evidence It reasonably possible psychiatric is not that error in any admitting Brown, (People affected the 46 Cal.3d testimony penalty supra, verdict. v. 432, 448.) Alleged Dangerousness

E. Misconduct; Prosecutorial Future During that defendant closing argument prosecutor argued represented he “continuing or other danger” might prison guards because attack

161 The trial court might inmates who him or because angered escape. not to about defendant’s jury speculate and twice instructed interrupted custody those for defendant’s responsible future conduct but to assume that fulfill their regard. would duties that

Defendant contends the remarks violated the prohibition against (People expert future Murtishaw testimony regarding dangerousness. 733, 738, (1981) 446].) 29 Cal.3d 631 P.2d did not. They Cal.Rptr. [175 expert “Murtishaw was concerned with ness, limiting predictions dangerous (People (1988) v. Hendricks prosecutorial topic.” argument 836], 44 Cal.3d italics in see original; 749 P.2d [244 People v. also Fierro Cal.4th 821 P.2d 249 Cal.Rptr.2d 1302].)

Defendant argues that the remarks were based on the testi- prosecutor’s mony of Dr. an Keyes killing defendant’s out fantasies acting valve” for him. On the “escape contrary, the did not solicit prosecutor expert forecasts of future dangerousness, but rather defend- argued generally about *107 ant’s behavior and personality. Dr. did not make of Keyes predictions any future dangerousness. She merely she explained why diagnosed defendant as i.e., only “possibly” psychotic, that defendant’s defense of mechanisms acting-out him prevented from a full-blown There was developing psychosis. no error. Aggravating Mitigating Sentencing

F. and Evidence and Discretion

Defendant contends the court’s instructions the prosecutor’s argu- ments improperly restricted the of scope mitigating evidence the could jury consider, evidence, the expanded of scope aggravating jury misled the as to its sentencing discretion. 190.3,

1. Section (k) Factor The trial court instructed the that “In jury which is determining penalty defendant, be on the imposed you shall consider all of the evidence which has been case, received during any of part the trial of you this as except may be consider, hereafter account, instructed. You shall take into and be guided factors, the if following (Italics . added.) . .” applicable. Among specified factors catch-all (k) (hereafter factor of section 190.3 factor (k)): other “Any circumstance which extenuates of the gravity crime even it is though not a legal excuse for the crime.”

Defendant (k) contends the factor instruction did not properly advise the jury that it could consider not only mitigating evidence which

162 crime, related to defend- which evidence mitigating but also related to Easley v. People concern expressed or record. We ant’s character 858, 309, language P.2d 34 Cal.3d 813] [196 the jury kind of evidence about the (k) “potentially confusing” factor expansive that a more We recommended mitigation. could consider 878, (Id. 10.) recently, fn. More p. the future. given instruction be however, instruc- precise this upheld United States Court has Supreme v. (Boyde Cali- requirements. tion as with federal constitutional comporting 326-330, 110 S.Ct. (1990) 494 U.S. 377-382 L.Ed.2d fornia 1190].) here instructed Hovey, the court People supra, As Cal.3d during received any “all the evidence which has been jury the. to consider held, “Thus, we (Italics Hovey, in original.) of the trial this case.” part testimony it the extensive realized that could consider jury probably (Ibid.) Defendant . . . .” background defendant’s character and regarding as “except you instruction was qualified by phrase out that this points however, never, instructed the jury be hereafter instructed.” court may only It instructed that of the defense evidence. any mitigating consider murders of Jane aggravating evidence of the jury could not consider the murders it of those guilty Doe 28 Jane Doe 99 unless found defendant error. There was no instructional beyond a reasonable doubt. the jury’s that the restricted urges prosecutor’s argument in which the evidence. He cites several instances mitigating

consideration *108 that matters jury only the should consider prosecutor appeared argue not the of offenses. We need consider the which extenuate circumstances the detail, in the was harm any attorney’s argument matter error district We error se. have per less. Defendant contends that of this kind is reversible (1988) v. Cal.3d 148-149 rejected (People the contention. Hamilton 46 Guzman, 1348]; 45 People supra, P.2d v. 756 see also [249 915, 957-958.) California, Boyde supra, Cal.3d v. these cases predating 494 we found error a reasonable doubt. any beyond U.S. harmless it is Boyde California, supra, that standard even after v. Assuming applies met here.

The evidence in was The the court instructed aggravation overwhelming. evidence, defend- demonstrating to consider all of the That jury evidence. ant’s need not depravity, repeated. has been recounted and be previously months, if of period brutally (eight Over murdered six victims 99) him no jury found that also murdered Jane 28 and who did Does harm, and were reason for taking of no threat to him. only apparent was Defendant’s gratification. these lives defendant’s own sexual personal

163 character, and mental condition background evidence of his mitigating did, to, were allowed stress minuscule Defense counsel comparison. close, not as all evidence there mitigating penalty question was. indicates. error jury Any the relative of the deliberations brevity was harmless. prosecution argument

2. “Extreme” Mental or Emotional Disturbance of

Defendant next in the language contends that the instructions 190.3, (d), section it factor have misled believe could may jury consider evidence which did not to an of condition amount psychiatric extreme We mitigation mental emotional disturbance offenses. contention, have rejected the out that the catchall factor repeatedly pointing (k), referring to other “Any circumstance which extenuates gravity crime,” allows consideration nonextreme mental or emotional conditions. Gonzalez, 1179,1227; Ghent, (People supra, People v. 51 43 supra, Cal.3d v. 739, 776.) Cal.3d

Defendant also reiterates his contention that the district attorney’s argu- ment misled the (k). We jury regarding already factor have scope found such any error harmless. The heard all the evidence. Given jury crimes, that, nature of the we are confident a reasonable doubt even beyond assuming it jury erroneously believed could not consider nonextreme disturbance, mental or emotional such did not misconception contribute extreme, the verdict. If the jury any found such disturbance not to be it would surely not have life based a verdict on such nonextreme disturbance.

3. Sympathy and Mercy that the complains was not jury expressly instructed it is, however, could consider sympathy mercy for the defendant. There no to so duty (California instruct. v. Brown U.S. L.Ed.2d 837]; Williams, 883, 955; 107 S.Ct. People v. supra, People Cal.3d *109 (1986) 1222, 1276, 849, Allen 42 Cal.3d fn. 36 P.2d Cal.Rptr. 729 [232 Indeed, 115].) we have found no error in an giving express instruction sentiment, “against "mere conjecture, sympathy, passion, prejudice, public ” opinion, public or an feeling,’ instruction that was not in this given case. Gonzalez, (People 1225, v. 51 supra, Cal.3d at in italics p. original.) argues that the district attorney the improperly argued jury context, could not consider sympathy or In the mercy. argument was not In misleading. that the urging jury should not be induced reject the death penalty matter, by arguments that its imposition is a “purely discretionary”

164 feelings mercy, act on the basis or sympathy personal or it should not that did have the that not correctly jury they advised guilt, prosecutor of “ the with in charged capital the fates of those determining discretion ‘unbridled Constitution, must ‘ignore the jury . Under the offenses.’ mitigating in and aggravating that not the responses emotional are rooted Brown, supra, (California v. evidence introduced the during penalty phase.’ 940].) act on whim may The not p. jury 419 U.S. at 542 L.Ed.2d p. [93 A consideration jury unbridled discretion. determination based penalty the arbitrariness very into the inject proceedings mere choice would personal (Furman Georgia (1972)] the and forbidden Constitution. uncertainty [v. 346, (1988) 44 2726].)” (People v. Kimble L.Ed.2d 92 S.Ct. U.S. [33 803].) 749 P.2d Cal.Rptr. 507-508

Cal.3d [244 Gonzalez, the supra, prosecutor 51 Cal.3d at People page In v. the of defend- presence the not or ‘consider’ argued jury ‘weigh’ that “must the the did not mislead We found family argument ant’s members court.” free-floating emotional “could be cautioned jury. jury properly against the factors and sentencing that were extraneous the responses statutory There was (Ibid., evidence.'’' italics aggravating mitigating original.) here. no error similarly Brown Error

4. that that the was misled to believe imposi- Defendant next contends jury jury’s tion not the mandatory, upon of the death sentence was was based jury death the determination that was ultimately appropriate penalty. that, “If that the circumstances aggravating instructed conclude you circumstances, the a sentence death. outweigh mitigating you impose shall However, if determine circumstances you outweigh that mitigating circumstances, sentence of confinement aggravating shall you impose Prison life State without possibility parole.” P.2d People Brown 40 Cal.3d 512 190.3, 440], held as we that the of section and instructions such language here, did its unconstitutionally jury those withdraw from given However, two discretion to we identified select appropriate penalty. mislead the ways might jury. related which the instructions potentially First, be “count” jury merely misled to believe it should might Second, be under- aggravating might factors. the instruction mitigating deciding stood to allow or return a death verdict without require jury to under the facts and circumstances of penalty appropriate *110 577, (See v. 642 particular People Hayes (1990) case. 52 Cal.3d [276 376].) been may 802 P.2d To determine whether the have jury

165 in reviewed the entire misled to defendant’s these we have regards, prejudice (Ibid.) record. 494 L.Ed.2d at Boyde California, supra, v. U.S. at 376-377 pages [108 326-327], here

pages upheld given against court instructions high federal still need to the entire constitutional attack. we review Assuming (see People Cooper, record to determine whether the v. jury was misled so, 771, 845, supra, 15), 53 Cal.3d fn. we and “conclude that have done there exists ‘no legitimate believing jury basis’ that the [citation] Ghent, misled regarding sentencing its 43 responsibilities.” (People supra, v. Cal.3d 111.)

Defendant argues attorney that the district told the that it had jury discretion, no that the law it to return a if it required judgment death found the circumstances aggravating and that the outweighed mitigating, context, death was therefore penalty mandatory. Considering remarks instructions, with the together we do not find a “reasonable likelihood” the jury would understand it was to return a sentence of death without first deciding that that sentence was (People v. Clair Cal.4th appropriate. 828 P.2d Cal.Rptr.2d 705].) The jury was not misled into believing it should merely count the factors . on both It sides. was advised all counsel that was not process rote, mechanical or and it that was not merely aggravating count and circumstances, mitigating but that each juror was to assign whatever weight juror that felt was to the appropriate and applicable aggravating mitigating circumstances.24

The jurors were also not misled about their individual responsibility determine whether death was the appropriate this case. penalty district discretion,” did attorney speak terms of “no said standard “objective” is an one—that if the aggravating outweighed factors the miti- gating the jury However, was “required” to return a verdict of death. context, the “objective” standard was to be after the applied only jury had subjectively assigned whatever weight it deemed appropriate to each factors. The prosecution argument as a whole was directed to an individual moral assessment of the punishment that was under appropriate all the prosecutor 24The factors, did use a listing potential chart all aggravating mitigating assigned to each such suggested might circumstance that he a hypothetical exist value of clear, prosecutor however, one. The also, made as defense counsel did the chart was for purposes only, illustrative it purport that did not suggest jurors assign what value the should any they factors aggravation found in mitigation, process required was one of “weighing” not counting, and that the relative numbers automatically of factors did not Gonzalez, any particular (See mandate People result. supra, 1228.) at p. Cal.3d *111 Hence, prosecutor’s the would have understood the jury circumstances. it in the law because by death was effect mandated to mean that comments facts, it facts because by it was mandated the the that by was mandated in It was not reason- defendant’s case. punishment was the only appropriate determining from was precluded would believe it likely jury the ably death was appropriate. whether “weighing” “appropriate in the the past,

As we have explained are told they Jurors who not and independent. ness” functions are separate necessarily to the factors they deem appropriate whatever value may assign penalty. the appropriate discretion to determine they understand that have which the jury means very The is the assignment weights subjective pun decision about the appropriate its and normative qualitative arrives at Gonzalez, supra, 51 (People p. v. Cal.3d in the case. particular ishment 1230.) moral also stressed the

The of both defense counsel arguments argued make. Keith was called upon of the decision the jury quality case,” in defend including death was this why “inappropriate several reasons his work past performance being, intelligence, ant’s as a human dignity and, least, he was victim of that productive society, as a member of not responsible. for which was mental and disorders psychosexual severe Attorney the Watson solemnity jury’s Keith the emphasized responsibility. decision, that this stating also jury’s reiterated the momentousness of the count, rather than each juror weigh, decision individual required Keith, on defend jury’s Like Watson focused the attention factors. applicable factors. mitigating ant’s mental illnesses as or that ‘the law” remarks emphasizes prosecutor’s

Defendant also comments, death. them return verdict of jurors’ “duty” required context, law to act disregard referred to absence of discretion Hendricks, v. People we mere unbridled As stated prejudice. passion 635, 655, urging “we no supra, impropriety prosecutor Cal.3d see weighing on a penalty the law’ and base their decision jurors ‘follow factors, inherent in the so as it is understood that long applicable is the determination of that... weighing process ‘appropriateness’ is itself here (Italics responsi- so understood its original.) jury so essential.” Brown, 512. supra, There 40 Cal.3d People was no error under bility. 5. Caldwell Error argument

Defendant further contends that the prosecutor’s improp did not determination erly penalty suggested responsibility

167 on “the He relies with the but rather with or law.” jurors, society rest 231, (1985) 320 L.Ed.2d 105 S.Ct. Mississippi 472 U.S. Caldwell v. [86 the which held it constitutionally impermissible permit is 2633] the believe for determining appropriate pen- sentencer to the responsibility lies elsewhere. alty stated, the of “In the argument,

At outset the prosecutor [imposing not as of death do not act as individuals. You do act a member penalty], you 12 of But act as the of all of the group only persons. you representative who, amendment, of this state statute and have people by constitutional called the imposed upon every jury duty citizen service solemn impose the death whenever penalty aggra- the evidence shows preponderance stated, vating factors.” He later are not “Again, ladies and gentlemen, you acting as You acting individuals. are as 12 You are as the persons. acting the representatives of of the sovereign People [objection State of California . ruling . . who have imposed you duty weighing omitted] upon a limited number of clearly specified and defined factors and basing your verdict the results of that upon process.” statements,

These well as as the prosecutor’s exhortations that the jury law,” should “follow the its perform “duty” by returning a verdict of death, correctly admonished the that it jury represented community, its decision should be based on a and that it should be weighing process, not swayed by to mere appeals in the passion ungrounded evi prejudice dence. Although prosecutor did refer as jurors representatives state, of the people of his totality arguments correctly placed responsibility making the penalty determination with 12 jurors. these Unlike Caldwell v. Mississippi, supra, 472 U.S. 325 page L.Ed.2d at p. [86 237], the here prosecutor suggested neither that jury’s decision was final, addition, nor that its decision would be reviewable. as discussed above, the jury was ultimate required make the decision whether death Then, then, was appropriate. and only its duty mandated under the law. We (See no perceive People 648, error. (1990) v. Kaurish 52 Cal.3d 711-715 788, Cal.Rptr. [276 802 P.2d [discussing a similar prosecution 278] argument].) Multiple

6. Multiple-murder Special Circumstances (79) Defendant correctly contends that it to charge was error and permit . the jury to find duplicative multiple-murder special (People circumstances. v. Rodriguez (1986) 42 Cal.3d 113].) 787-788 726 P.2d Cal.Rptr. [230 Consequently, all but one of the multiple-murder find- special-circumstance Nonetheless, ings must be set aside. have repeatedly held that the “[w]e 168 find- multiple-murder special-circumstance of such excessive

consideration here, where, they number murders which knows the jury as ings 504; Kimble, based, at p. Cal.3d (People supra, error. v. were is harmless Allen, v. 1281-1283.)” (People Caro supra, 42 Cal.3d at People pp. 680].) P.2d

46 Cal.3d *113 Aggravating Use Factors 7. Dual of double- the murders were erroneously

Defendant next contends that 190.3, crime) (b) (circumstances the and (a) factors counted under section conduct). concedes (other Attorney criminal General correctly violent the jury underlying did the to consider prosecutor urge that the improperly however, error, (b). The under factor offenses as “other criminal activities” was harmless. 480, 505-506, Kimble, 44 we found similar supra, v. Cal.3d People brief; (2) the comment was (1) the erroneous

error harmless because: the was the crimes for which defendant only prosecutor emphasized consideration; fully could have (3) jury the being tried were before it for Here, (a) in the facts event under factor of section 190.3. considered the any the He between distinguished comment was brief. prosecutor’s reasonably crimes which crimes defendant was tried and those additional for which aggravat- at the He the phase. appeared separate were introduced penalty and the crimes circumstances ing special effect of the from underlying convicted, which had all of less serious offenses which defendant been in were themselves matters for the consider. Most jury importantly, proper “In view considered the each of the murders. jury many properly facts ... we of the admitted factors properly aggravating presented jury find it inconceivable that the have reached a different verdict jury would the absence there was no argument; prejudice.” improper accordingly, Kimble, 480, 506.) 44 (People supra, v. Cal. 3d We reach the same conclu- sion here.

8. Error Davenport factors in artifi argues aggravation next that the were when as cially inflated that the absence of prosecutor argued mitigation 190.3, (e) to section factors the victim or con was participant [whether sented], (f) defendant believed there was a moral reasonably [whether conduct], or justification (g) defendant acted under duress [whether another], domination of was an accomplice [whether © minor was He found argues itself that we participant] aggravating. correctly 247, such 41 argument People Davenport (1985) improper v. Cal.3d 794, 710 P.2d Cal.Rptr. [221 861]. 551, that, People note as in v. McDowell 46 Cal.3d

We 1060], 758 P.2d case was tried before Daven- Cal.Rptr. present “[t]he port prosecutor was decided and the trial court and lacked accordingly, McDowell, Davenport's teachings.” argument benefit of As the improper was harmless. was well aware “Despite argument, jury prosecutor’s facts, of the free it underlying weight whatever wished place Moreover, (Id. upon p. jury these facts.” italics original.) well aware that the ‘not “sentencing weighing determination process, [w]as just matter of these mere mechanical adding up categories’ various or ‘a of factors on each side of an or matter of weighing scale’ ‘a imaginary ” (People (1991) 53 counting.’ v. Cox Cal.3d 684 [280 circumstances, 351.) 809 P.2d Under these jury “a reasonable would assign substantial aggravating weight to the absence of unusual extenuating Gonzalez, (People factors.” supra, 1234.) 51 Cal.3d at p.

9. Deletion “Inapplicable” Factors Defendant contends that the trial court should have deleted from instructions reference to re- any factors. We have “inapplicable” statutory Cox, peatedly rejected the argument, and (People continue to do so. v. supra, 618, 674; 115, 53 198; Cal.3d People Gallego, supra, v. 52 People Cal.3d v. Whitt 51 Cal.3d 653 849].) Cal.Rptr. 798 P.2d [274 10. Mental or Emotional Disturbance as Aggravation

Defendant next argues that the instructions did clearly not inform disturbance, the jury that his mental if should be any, considered as a mitigating factor and may not be considered as an He aggravating factor. relies v. upon Stephens (1983) Zant 462 U.S. 862 L.Ed.2d 103 S.Ct. [77 for the proposition 2733] it that is constitutionally to label as impermissible aggravating those circumstances “that actually should militate favor of a lesser penalty, such as . .the . (Id. defendant’s mental illness.” p. [77 255].) L.Ed.2d at p. He contends prosecutor’s argument, it to leaving the jury to decide whether defendant’s mental condition was mitigating aggravating, allowed the improperly to consider jury defendant’s mental illnesses as circumstance aggravation.

In People Poggi (1988) 45 Cal.3d 306 P.2d 1082], 190.3, we rejected the argument that (d), section factor was uncon- stitutional on its face because it allowed the improperly to consider jury emotional stated, disturbance as factor aggravation. We there seems “[I]t plain that the provision does not authorize the jury consider the presence of extreme mental or emotional (At disturbance aggravation, [citation.])” 344.) p.

Here, to any evidence going presented only defense psychiatrists in mitiga- It was offered clearly or emotional disturbance. mental possible made with prosecutor respect tion. substantive only argument did amount that it essentially defense evidence was psychiatric disturbance; doctors while both a mental or emotional establishing evidence conduct, both they on defendant’s were able to labels place descriptive sane, did him not prevent he and that his disorders intelligent, concluded was murders. he when he committed the understanding doing from what factor be consid- that this could Although initially suggested prosecutor case, he in this it argued well as later aggravating mitigating, ered as neither. find no We error. Age 11. an Factor Aggravating as as age trial have deleted

Defendant next contends the court should argued for in the of the prosecutor a factor use determination penalty. killing spree, that the “defendant was 32 old when he went on this years then, now, eight-year- like an though behaved he continues behave this is He’s acts and beyond accountability old. well the age [f] another factor in aggravation.” such, nor but

Chronological mitigating, as is neither age, aggravating *115 argued inferences the choice of be age-related penalty may relevant to 1, (See (1992) in 2 76-77 People case. v. Cal.4th given either side Visciotti Edwards, 495, 388]; at People supra, p. 825 P.2d v. 54 Cal.3d Cal.Rptr.2d [5 844.) enough One is that defendant is “old such inference the permissible 1062, Caro, 1035, 13: see also (People supra, know better.” v. 46 Cal.3d fn. 687, 659, (1988) v. 46 & fn. 6 People Cal.Rptr. Bonin Cal.3d 704-705 1217].) P.2d The remark prosecutor’s 758 here was similarly permissible. Findings G. Doubt” “Reasonable Instructions as to Certain the that Defendant contends was to find the jury required aggravating outweighed beyond circumstances the circumstances a reasonable mitigating doubt, and must be that death they beyond convinced a reasonable doubt the have rejected was We the identical contention appropriate penalty. 86, 143; (See Thompson, numerous 45 e.g., People supra, cases. v. Cal.3d 57, 594, People v. Miranda 44 744 P.2d Cal.3d 107 [241 1127]; 42 People Rodriguez, 777-778.) v. We see no supra, Cal.3d reason to reconsider our here. rulings

H. Cumulative Effect Errors of the

We against have reversed the convictions the crimes committed for A., Charlene have at the and found certain errors and errors presumed

171 serious, were A. they the crimes Charlene phase. Although against penalty the the convicted defendant jury six murders of which pale comparison The is the and the two same true of penalty more proven phase. murders penalty phase The two penalty phase guilt phase errors. six the crimes Except were defendant. for fairly proven against properly A., the It was Charlene considered all of the evidence. against “jury properly were well aware of the under which the murders committed.” circumstances 1 P.2d (People Kelly (1992) v. Cal.4th Cal.Rptr.2d 551 [3 385].) As the weighing discussed understood previously, jury properly The process. nature of these murders renders overwhelmingly aggravating any insignificant, of the errors harmless. thereby

Our review of record it convinces us that is not reasonably possible errors, combination, verdict. We are singly affected penalty persuaded that defendant a fair received and untainted trial. Constitution (People Kelly, 551.) no more. requires supra, v. Cal.4th at p. Modify Penalty Automatic

I. Motion court, Defendant next contends that the trial ruling upon 190.4, automatic motion modification of the penalty under section (e), subdivision committed three errors.

First, defendant claims the trial court treated absence of improperly certain mitigating (See People supra, factors as aggravating. Davenport, 290.) Cal.3d Defendant has misconstrued the court’s ruling. factors, court reviewed each of the statutory and referred to the absence of factors, specific but it did suggest that that absence itself aggravat- The court find “in ing. did aggravation that the neither under murders, influence of drug nor any intoxicated” at the time of the but *116 comment was merely part larger, of the and in finding aggravation proper, that the murders were “committed for solely perverted the defendant’s sexual gratification.”

Second, defendant claims the trial court on nonstatutory relied improperly (See factors. aggravating People Boyd, 762.) v. supra, 38 Cal.3d discuss- 190.3, (d)—whether section ing factor the defendant was under influence of any extreme mental emotional disturbance—the court stated that defend- influence, ant under such any rather but that defendant “has an selfish, others, antisocial . . . personality is has no no regard conscience, social has an and explosive has an extreme violence personality potential.” The comments were Defendant’s selfish is proper. motivation evident from his utter disregard for taking others to extent of lives for selfishness, sexual His immediate gratification. more his own

nothing than crimes, circumstances of part violence are all and explosiveness 190.3, (a). factor under criterion section proper Third, defendant’s disregarded impermissibly defendant claims the court 190.3, section the court overlooked evidence. He asserts that mitigating convictions), mitigation found no (lack and (c) prior improperly factor in and been had served (k), honorably when in fact defendant under factor service, had received a commendation military from the and once discharged Because, he in in a robbery progress. from the for his police part reporting asserts, the court’s human being, there something redeeming every is of the motion. find reconsideration mitigation requires failure to anything weight assessed the independently error. The court There was no trial with sufficient the motion denying the evidence and stated its reasons for ” “ (People review.’ thoughtful appellate ‘to assure effective particularity all the 794.) It it had reviewed supra, Cal.3d stated that Rodriguez, v. considered all and had guilt penalty phases evidence presented find failure to section Its aggravation factors in under 190.3. mitigation that it found a relative statement mitigation factors any plainly Pinholster, (See People v. factors. nothing urged mitigating persuasive 865, 971.) supra, Cal.4th Charlene against to the crimes committed specifically court did refer convictions, reference was error.

A. Since we have reversed those error, however, mur- of these Given number and nature was harmless. ders, factors, not reasonably possible and the extensive it is aggravating (People decision. v. reference to those crimes affected the modification 330].) (1990) Benson 802 P.2d 52 Cal.3d 812 [276 J. Constitutionality Penalty Law Death is death statute unconstitu- defendant contends the 1978

Finally, penalty (See Sully People tional we grounds rejected. have repeatedly *117 1195, 144, 163]; People P.2d v. 53 Cal.3d 1250-1251 812 Cal.Rptr. [283 126, 640]; 468, Douglas (1990) 788 P.2d Cal.Rptr. 50 Cal.3d 541 [268 842, 375, People (1988) 44 749 Cal.Rptr. v. Howard Cal.3d 443-444 [243 279]; 777-778.) Rodriguez, supra, v. 42 Cal.3d People P.2d

173 K. Briefs Propria in Persona counsel, and

In of defendant has filed briefs other briefing addition to the (1959) in Mattson Cal.2d People documents v. propria persona.25 observed, 937], there similar As we P.2d we confronted a situation. [336 “although diligently by court-appointed defendant has been represented counsel, in which persona he has in documents persisted presenting propria his rules of law.” reflect of and refusal to established misconceptions accept (Id. 797-798.) at “The rule who is pp. We held: defendant general an of will not represented personally recognized by record be by attorney in the of se on pro court conduct of his case to the documents applies filing Because appeal. undesirability fruitlessly adding of the burdens are pro this court the which time-consuming task of se documents reading us, and, read, if this properly enlarging before be they consequently opinion by a recountal and discussion of the contentions made propria such be strick- documents filed in this defendant should persona, by appeal (Id. omitted.) en.” citations p.

We now reiterate this rule. Motions and briefs of parties repre by (See sented counsel must re Cathey be filed such also In by counsel. (1961) 55 Cal.2d 684-685 we 361 P.2d 426] [where se and accepted pro documents filed before the appointment counsel “briefs subsequently but filed his prepared by personally [defendant] by counsel.”].) behalf (supra, Mattson Developments since Cal.2d 777) was decided necessitate one this rule. We will and exception to accept consider pro se motions for new regarding representation, including requests (Cf. Marsden, People counsel. v. supra, 2 be 118.) Cal.3d Such motions must such, labeled clearly as and be must limited to matters concerning represen tation. We will not consider extraneous matters even such documents unless submitted counsel. by pro by se documents Any represented parties not clearly within this coming will be returned exception unfiled. caution, case,

Out of we have read defendant’s se briefs this and the pro therein, issues arguments raised and find no basis on which to reverse guilt either the (See verdicts or the penalty People of death. judgment Sully, supra, 1251.) 53 Cal.3d at p. We have considered se pro defendant’s documents, labeled, motions other however designated or not previously merit, acted All lack upon. are hereby denied. 25As example, an lengthy demanding filed a “motion” various this actions court; the motion revolved exclusively appeared around a typographical minor error that the advance opinion sheets of an of this court in The error corrected in bound 1989. volume, times, any and never had relevance to this case. At different defendant has moved bias,

recuse (and former court) Justice Broussard alleged other this members of because of and has that Justice “demand[ed]” Broussard not retire until this case is decided.

174

V. Disposition All one reversed. but murder convictions are attempted mayhem In all are set aside. findings of the multiple-murder special-circumstance is affirmed. other respects, judgment J., J., Baxter, J.,

Lucas, J., Panelli, concurred. George, C. the trial court MOSK, J. by proceedings. was not served dissent. Justice I in penalty death a self-representation case illustrates the of futility This 422 U.S. 806 (1975) [45 was unfortunate that Faretta case. It California general recognizing case—in noncapital S.Ct. L.Ed.2d 95 2525]—a infrac mere traffic did between of right self-representation distinguish is life or issue of cases which heightened requirement tions and latter, of the responsibility the defendant have In the both the state and death. evidence, life the death or against penalty all available for and presenting by that duty not frustrate may possibility parole. without case, (1989) 48 in People v. Bloom silence as this as by gamesmanship Mosk, 669, 774 J.), (dis. opn. 1234 P.2d Cal.Rptr. Cal.3d [259 698] v. Deere People evidence as counsel to by prohibiting present P.2d 925]. Cal.3d 361 [222 in Deere: I courts and counsel must the admonition trial repeat given life, every a human asked to take being when the of California are people in a jury to and considered aspect presented case must be marginally equipped genuine adversary proceeding. Self-representation by If doubt of the slightest serves that there is the seldom end. skilled duel with the effectively and abilities of the defendant to knowledge very at the outset. the trial court should prosecutor, deny self-representation determi- Such doubt—which the threshold certainly here—precludes arose Faretta, viz., has “voluntarily nation that the defendant required by (422 p. U.S. at intelligently to” without counsel. proceed elect[ed] 566].) at p. L.Ed.2d case, I this would

Since trial court did not deny self-representation reverse the judgment.

KENNARD, J., Dissenting. night- death trial was a judge’s penalty This an obstreperous, in which mare: an case extremely complex multiple-murder right defendant insisted his constitutional manipulative exercising conduct, represent himself. frustrated with defendant’s course Obviously mute, court, incor- trial confronted with defendant’s decision to stand deemed right represent that decision to be a waiver of defendant’s rectly himself, and counsel him. appointed represent

175 defendant’s I with the trial desire to terminate Much as court’s sympathize case, had a right se this defendant status under the circumstances of pro him By preventing silent in the of the allegations. remain face prosecution’s so, to act as his right the violated defendant’s constitutional doing from court in his own I cannot attorney present way. accept own and to his case majority’s that defendant by being proceed- conclusion silent obstructed him, ings against thus revocation of his warranting right self-representa- I tion. therefore dissent.

Background 13, 1982, On October the trial defendant’s made granted request, court trial, 422 (See the midst of represent himself. Faretta v. California 2525].) U.S. L.Ed.2d Defendant conducted his own S.Ct. defense until November 1982. On of the day, presence that outside the the court denied defendant’s When trial jury, motion to recuse the prosecutor. recommenced and court his turn told defendant that it was to cross- witness, Honor, examine the “Your prosecution’s defendant replied: defense stands mute throughout the rest of the trial.” Defendant no gave reason his decision. and,

The court immediately declared a recess outside the jury’s presence, announced its had right conclusion defendant renounced to act as his his own attorney. responded that had a to stand mute and that right he wished to continue to “If represent himself. trial court replied: you open your mouth without I’ll it I again have ... my permission, gagged. find that you’ve renounced your do not pro privileges. You wish to per Watson, proceed to represent Mr. Keith and yourself. Ms. who have been H] counsel, continued, standby will now resume.” Before the trial defendant asked court it had why terminated himself. The right represent court responded: “On the grounds decided mute to stand . . . .” you afternoon, Watson,

That Attorneys Keith and who had been observing courtroom, trial represented defendant objection. over his Attorney Keith conducted cross-examination on defendant’s The next behalf. morning, informed trial if court that it his right would restore himself, represent he would abide the court’s would ruling actively defend himself. The court then resume permitted defendant to his self- representation. Defendant conducted his own defense until December 1982, when, based trial finding court’s that defendant had engaged behavior, disruptive the court terminated to act defendant’s as his own right attorney and reappointed counsel to him. represent

Discussion *120 defendants to guarantees to the federal Constitution The Sixth Amendment attorney, an right by the to only representation in criminal not prosecutions (Faretta in without counsel. the defense right person but the to conduct also 806.) self-representa- 422 A defendant who elects supra, U.S. California, v. counsel, in tion, defense conduct the may than by rather representation the defendant so as long manner the defendant deems appropriate, whatever 834, (Id. at fn. 46 p. for deliberate disruption.” does not “use the courtroom 168, 581]; (1984) 465 U.S. Wiggins at see McKaskle p. L.Ed.2d [45 122, 132-133, 944].) A self-represented 104 S.Ct. 177-178 L.Ed.2d [79 mute, has as this court by standing conduct the defense may defendant even on several occasions. recognized P.2d

In Cal.3d 103 588 People Cal.Rptr. v. Teron [151 773], of prosecution’s asked the self-represented questions a defendant no behalf, witnesses, no or opening his own and made no evidence on presented trial the court On the defendant contended that appeal, statement. closing it became in and terminated once stepped self-representation should have verdict. clear would make no to obtain a favorable that the defendant effort contention, no to duty that the defendant “bears We the rejected saying (Id. 115.) a defense.” at present p. (1983) 34 Cal.3d 616 People

We reaffirmed this conclusion v. McKenzie 769], defendant’s a self-represented 668 P.2d Cal.Rptr. contrasting [194 effective duty with a defense to right attorney’s provide to stand mute McKenzie, who attorney In the defendant was an by assistance. represented court, trial, the trial in the after beyond refused to participate appearing counsel no court had denied certain defense motions. Defense made opening dire, statements, on asked voir cross- jurors no of closing questions witnesses, to the objections prosecu- examined no and raised no prosecution - had the defend evidence. We held that the conduct attorney’s deprived tion’s But we carefully ant his to the effective assistance of counsel. right of “The choice the defendant: situation distinguished self-represented his conducting the defendant the option for preserves self-representation to choose right A defendant has a by nonparticipation. competent defense chooses case.’. . . prosecution’s not ‘simply oppose If he, trial, attorney, is not unlike participating himself defend so, claim do but this is made cannot thereafter once choice free (Id. ineffective of counsel reversal on at appeal.” pp. assistance as basis for 628-629, omitted, added.) citations italics (1989) 48

Recently, People v. Bloom Cal.3d 698], 774 P.2d we that a defendant should again emphasized self-represented does the trial. disrupt free to the defense in manner that any be conduct Bloom, case, that the appeal a death defendant contended penalty him act as court had it his own permitted trial abused its discretion when asking at the for the attorney jury announced penalty phase purpose contention, although return death verdict. we Rejecting explained detriment, a defendant conduct a defense to the defendant’s may ultimately “ ‘must of “that respect defendant’s choice be honored out ’ ” (Id. individual which is the lifeblood of law.” at citations p. omitted.)

A been self-represented right recog- defendant’s to stand mute trial has *121 court, not by nized this but federal as only courts well. by appellate Sixth Circuit it put way: right has this as it is the accused’s to plead “[J]ust him, or nolo contendere to the is an guilty charges it against equally alone, accused’s to personal right charges by constitutional face the either mute standing the state its forcing proofs to or to defend attempting 245, 250; (U.S. (6th himself.” 1987) v. see McDowell Cir. 814 F.2d also U.S. 775, 782; (7th 1991) v. 1990) Clark F.2d Savage (9th Cir. v. Estelle Cir. 10.) F.2d fn. Without directly that have denying defendants to self-represented right mute, stand the in majority asserts that this case the trial court properly terminated defendant’s to conduct his had right own defense because he “ ” “ engaged ‘serious and obstructionist misconduct’ the ‘abuse[d] ” ante, dignity of the courtroom.’ (Maj. opn., quoting Faretta p. 834-835, California, supra, 422 581].) U.S. at pp. fn. 46 at p. L.Ed.2d But in what is mere silence And respect obstructive? how such does silence not, abuse court’s These are dignity? that the questions does majority cannot, answer.

I fail to see how this case defendant’s in his nonparticipation defense could be deemed an affront to the of the dignity trial court. It would appear rather than the trial obstructing proceedings, defendant’s conduct standing (had mute it been permitted by court) the trial would have expe- dited Obviously, them. trial time is shortened considerably when defense not does cross-examine prosecution witnesses and calls no defense wit- nesses.

The majority attempts justify the trial court’s termination of defendant’s of right self-representation on several None is dis- grounds. persuasive, as cussed below.

The majority asserts that termination of the of right self-representation because, context, was here permissible viewed in the act of mute standing much to cause as designed of conduct deliberate course was “part ante, I 116.) analysis unper- find this (Maj. opn., p. as disruption possible.” First, I defendant’s behavior question whether respects. two suasive in the trial to participate decision not during the discussion preceding motion to recuse defendant’s Although was deliberately disruptive. meritless, that defendant believed the record clearly suggests prosecutor in an fashion. More it argue orderly and that he attempted it be proper, however, right defendant’s trial court did terminate important, rather, behavior; as disruptive in a engaging pattern self-representation defendant’s decision was based on ruling its repeatedly explained, court to stand mute. attempt as “an characterizes defendant’s nonparticipation majority case, its into reconsidering into the court

either error inject pressure ante, 115.) as defendant But so (Maj. p. long earlier ....’’ rulings opn., regard- remain silent he was entitled to not disrupting proceedings, Moreover, the act it is difficult to conceive how less of his motives. mute, could have injected it coercive power, which carries with no standing rulings. its reversing the trial court into error into record or pressured *122 representing if silent have that he remained while may believed himself, of reversed for incompetence conviction would be any ensuing counsel, be compelled and that to such a reversal the trial court would avert mistaken, belief, he its If was rulings. to this defendant’s change incom- his or her own argue a defendant not self-represented may because (Faretta supra, 422 California, ground as a for reversal on v. petence appeal. McKenzie, 581]; 34 People supra, 46 at U.S. at fn. L.Ed.2d v. p. p. [45 628-629.) at pp. Cal.3d to

The a defendant permit would majority apparently self-represented if on “sincere desire to withhold a stand mute that decision is based a only ante, 114-115.) But trial court not condition pp. may defense.” a (Maj. opn., the a of right judicial sincerity of evaluation of self-representation and knowing a defendant’s defendant’s desires. Generally, self-represented not be as decision not to in the trial should considered intelligent participate Bloom, in People we v. right a waiver of the of As said self-representation. to supra, at and are obligated 48 Cal.3d “both court counsel page a and decisions on respect voluntary defendant’s considered competent of the action . . .” affecting matters of fundamental trial . importance has a who decided by decision defendant has chosen self-representation in one “fundamental to remain silent the face of the case is prosecution’s court. importance,” by Although and must therefore be trial respected unwise, is it must permit court warn the defendant that such a decision may stand. decision to in to mute right this denied defendant the stand When the trial court case his own it to conduct right as his violated defendant’s acting attorney, while defense, federal the Sixth Amendment to the Consti guaranteed by own as v. United Court Faretta Supreme tution enunciated States “In California, supra, whether defendant’s determining U.S. 806. on whether the rights focus must be respected, primary Faretta have been (McKaskle way.” defendant had a fair chance to his case his own present Here, 132].) trial supra, 465 U.S. at Wiggins, p. L.Ed.2d p. if he to defendant not himself elected ruling court’s could represent remain silent his case in his a “fair chance to deprived present own way,” right thus violated defendant’s constitutional to act as attorney. own

The majority asserts that the dissent “cites a court compelling [no cases] a defendant’s mute under even acquiesce to stand circumstances request ante, remotely 116.) similar those (Maj. p. of this case.” opn., converse is also true: cites cases a trial court’s majority no upholding decision to cir- terminate defendant’s “under right self-representation cumstances even remotely similar to those of this This dearth of case.” if precedent suggests, not anything, most trial courts do view a self- represented defendant’s act of standing mute as waiver the defendant’s rights, Faretta and have allowed defendants to continue them- representing selves circumstances such as these.1 when,

The trial court’s ruling erroneous corrected the morning defendant, after had it counsel appointed the court represent reinstated defendant’s right represent himself actively after defendant promised *123 in the trial. The participate court never ruling rescinded its that defendant mute, so, could not stand and defendant knew if he again that elected to do the court would regard this act as a right basis to revoke his to represent himself. right Defendant’s of self-representation was therefore not impaired counsel, only for afternoon on he which was but for represented by remainder of the trial.

Because, in contrast to the I am the view the trial majority, that court erred when it terminated defendant’s right self-representation because mute, chose to stand the remaining is whether question the error requires of the reversal A judgment. review of the decisions of the United applicable Supreme States Court leads me to conclude that reversal compelled. is itself, majority 1The also remarks that other than Faretta finding this dissent cites no cases ante, right a-violation of a self-representation. 116.) defendant’s (Maj. opn., p. point this remark eludes majority me. Does the doubt that such Is majority cases exist? suggesting right that the of self-representation cannot be violated? 180 right a defendant constitutionally guaranteed denies

When a trial court irrespective must be attorney, her the conviction reversed to act as his or own United influenced the outcome of the trial. The States the denial of whether right self-representation said so: “Since the Court has Supreme expressly of a trial the likelihood usually is a that exercised increases right when defendant, to ‘harm is not its denial amenable outcome unfavorable to denied; its deprivation right respected less is either analysis. error’ (McKaskle fn. Wiggins,supra, p. v. U.S. cannot be harmless.” 133]; v. 34 Cal.3d People Joseph see also at p. L.Ed.2d [79 843].) 671 P.2d himself, defendant, Here, could had ruling represent that who chosen trial, his constitutional mute at the trial defendant of deprived stand court (McKaskle Wiggins,supra, defense “in his own right way.” to conduct his 132].) court’s decision high 465 U.S. at L.Ed.2d at Under p. p. 177 [79 McKaskle, against reversal of the judgment denial of right requires defendant. 23, 1992. rehearing for a was denied petition September

Appellant’s Mosk, J., Kennard, J., should be opinion petition were of granted.