Los Angeles County Super. Ct. No. BA065313-01. Charles E. Horan.
The opinion of the court was delivered by: Chin, J.
On June 4, 1980, Julie Cross, an agent of the United States Secret Service, was murdered in the line of duty. Over a decade later, defendant Andre Stephen Alexander was charged with Cross's murder. In 1996, a jury convicted him of first degree murder (Pen. Code, § 187),*fn1 and found true allegations that he personally used a firearm and that a principal was armed with a firearm (§§ 12022.5, subd. (a), 12022, subd. (a)). The jury also found true special circumstance allegations that defendant previously had been convicted of murder (§ 190.2, subd. (a)(2)) and that the murder of Cross had been committed in the course of a robbery (§ 190.2, subd. (a)(17)). At the penalty phase of the trial, the jury returned a verdict of death. The trial court denied a motion for a new trial and the automatic motion to modify the penalty verdict (§ 190.4, subd. (e)), and it imposed the death sentence. Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment.
a. Commission of the Murder
On the evening of Wednesday, June 4, 1980, Secret Service Agents Julie Cross and Lloyd Bulman were part of a team of agents planning to serve a search warrant on a suspected counterfeiter's residence. The two were partners whose role was to prevent the suspect's escape should he try to flee when the warrant was served. They were seated in an unmarked car near the corner of Belford Avenue and Interceptor Street near the Los Angeles International Airport; Bulman was in the driver's seat, and Cross was in the front passenger's seat. Both were dressed in civilian clothes.
The agents' vehicle contained a police radio and a 12-gauge shotgun with the standard Secret Service modifications of a shortened barrel, a pistol grip, and a folding stock. A guard attached to the barrel inhibited a person from placing a hand in front of the muzzle when firing the gun. This guard was unique to shotguns the Secret Service used because it was permanently, as opposed to temporarily, attached. On the night of the murder, the shotgun was loaded with four rounds: the first and third were slugs; the second and fourth were buckshot.
Bulman testified that, at some point before it became dark, a large, brown, two-door car with a lighter colored roof and rust spots on the body slowly drove past the agents. The two African-American men in the car looked at the agents as they drove by. The driver was neatly groomed and had a mustache. The passenger wore a stocking cap and also had a mustache. Several minutes later, the same car with the same occupants again slowly drove by, this time parking a short distance away. The two men left the car and walked out of sight between an apartment building and a garage. Two to three minutes later, they returned to the car and drove away.
A short time later, after it was dark outside, Cross told Bulman she saw someone coming up behind the agents' car. The agents drew their sidearms from their holsters, and Cross got out of the car. As Bulman turned to open his door, he saw someone approach the rear of the car on the driver's side. Before Bulman could exit the car, the person opened the door and pointed a revolver at Bulman's head. Bulman recognized the man, who was wearing a black leather jacket, as the driver of the brown car. The driver*fn2 told Bulman to raise his hands. After putting his pistol on the seat, Bulman raised his hands and identified himself as a police officer. The driver said he also was a police officer, but refused Bulman's request to allow Bulman to show his badge. He ordered Bulman to tell Cross to drop her weapon; instead, Bulman told Cross not to do so. While the driver had the revolver pressed against Bulman's temple, forcing his head toward the seat, Bulman heard Cross say, "What are you doing? Get your hands back up on the car." Bulman could not see what was happening on the other side of the car.
Several seconds later, another man appeared at the driver's door. Bulman could not see clearly who he was. While bent over, Bulman tried to use the police radio, but it did not work because the car's ignition was not turned on. Bulman again identified himself as an officer and mentioned the police radio as proof. Saying, "He's got a radio," the second man reached into the car, removed the keys from the ignition, and knocked the radio's microphone from Bulman's hand. That man then noticed the shotgun on the floor in the front of the car, said something like, "What do we have here," and took the shotgun.
Bulman testified that, almost immediately after the man with the shotgun left the driver's door and went behind the car, Cross jumped into the car through the front passenger's door. She went over the seat into the back, a panicked look on her face. A shotgun blast then came through the open passenger's door, the shot traveling across Bulman's lap and out through the driver's door.
Bulman grabbed the revolver pressed to his head and wrestled his way out of the car. As he did so, the driver fired the gun, but the bullet did not hit Bulman. While Bulman and the driver struggled on the street, Bulman heard two more shotgun blasts coming from the agents' car. The driver fired several more shots from the handgun during the struggle, but again Bulman was not hit. The struggle continued for three or four car lengths in front of the agents' car in the middle of Interceptor Street until the driver said, "Shoot the son of a bitch." After Bulman heard another person say, "I can't. You're in the way," Bulman saw the passenger aiming the agents' shotgun at him. The passenger was wearing a dark stocking cap and a dark-colored jacket.
Bulman and the driver next wrestled in the opposite direction, behind and past the agents' car, each trying to put the other's body towards the shotgun as the passenger tried to get a clear shot at Bulman. Near the corner of Interceptor and Belford, Bulman lost his balance and fell. As Bulman tried to get up, the passenger ran over and put the shotgun muzzle about six inches from Bulman's head. The passenger fired the weapon, but the shot missed Bulman and hit the pavement. The assailants then ran off.
When he realized he had not been shot, Bulman went to the car to get his pistol and check on Cross. She was lying on the back seat and had no pulse. Bulman ran to a Secret Service surveillance van parked nearby. He and Agent Terry Torrey, who was stationed in the van, then drove back to the car. Bulman did not see the shotgun, the keys to the agents' car, or Cross's pistol again.
Bulman was interviewed by agents that night and on numerous occasions in the following days, months, and years. He worked with a police sketch artist on June 6, 1980, and completed composite drawings of the suspects that were introduced into evidence at trial. Several of the interview sessions involved attempts to hypnotize Bulman in the hope of helping him to remember other details of the crime.
At a live lineup conducted on June 27, 1980, Bulman identified one subject, Terry Brock, as looking similar to the driver, the man with whom Bulman had struggled, except the person in the lineup had a beard. Bulman was unable to identify defendant Alexander as the passenger who fired the shotgun during a live lineup conducted on April 19, 1990, at the preliminary hearing, or at the trial. However, at trial, Bulman testified a picture of defendant Alexander taken around 1980 looked "closest" to the person with the shotgun, who was depicted on the left side of the composite sketch trial exhibit.
Agent Torrey testified that, minutes before Bulman ran to the surveillance van, he had seen a medium- to dark-colored car speeding on Belford Avenue with its lights off.
Wayne Dhaler was driving his car at the intersection of Belford and Interceptor at 9:00 p.m. the night of the murder. He testified he saw two men, one wearing a tan or brown jacket, leaning into the driver's side door of a car parked on the street.
Alvin Borges drove by the same area at about the same time. He testified he saw two African-American men fighting with a White man who was on the ground. Borges saw one of the men shoot the man on the ground at almost point-blank range with a shotgun. The shooter, who used his right hand to pull the trigger and his left to hold the barrel, was wearing a brown, waist-length jacket. Borges testified the jacket later seized from defendant's parents' home "could be consistent" with the one the shooter had worn.
Harry Zisko testified he heard shots that evening while in his Belford Avenue apartment. He saw two men running down the street, one carrying a two-inch diameter cylinder that was between one and one and a half feet long. Zisko heard metal hitting metal as they ran. Ten to twenty seconds later, a car waiting near the curb with its lights on pulled into the street, briefly went out of control, and then sped away with its lights off.
Frank Kerr, who lived on Belford Avenue, testified that, at approximately 9:00 p.m., he heard shouting, gunfire, and two people running on his street. Kerr then saw Bulman at the Secret Service car. When Bulman left, Kerr checked on Cross, saw she had been shot in the chest, and unsuccessfully tried to find any sign of life. Kerr stated that a person could go through a breezeway between apartment buildings on Interceptor and wind up at a ivy-covered chain link fence that was "next to where the Secret Service car was on the night of June 4th." Kerr added that a person could "come around" the fence onto the street where the Secret Service car had been parked.
Analysis of the crime scene, the agents' car, and Cross's body indicated the first round fired from the shotgun, a slug, entered the front passenger door and exited through the driver's door. Cross was then shot with a round of buckshot likely fired from outside the front passenger's door. She next was shot in the chest at close range with the third round, another slug, which exited her back and traveled through the seat and floorboard. This shot probably was fired while the shooter leaned over the front seat and shot almost straight down. Each shotgun wound Cross suffered would have been fatal.
Los Angeles Police Detective Marvin Engquist testified there was a fine mist of blood splattered on the back of the front seat that was not captured on the crime scene photographs of the dark upholstery. Rod Englert, a crime scene reconstruction and bloodstain expert, testified the shotgun and the person who shot Cross would have been splattered with a fine mist of blood caused by the close-range shot into her chest.
Eyeglass frames, a broken eyeglass lens, and an eyeglass case were found in the street 57 feet in front of the agents' car and 13 feet from the curb. Agent Torrey interviewed people living in buildings nearby, but was unable to find anyone who owned the recovered eyeglasses.
The parties stipulated that on June 20, 1980, a Secret Service agent using a metal detector found a.38-caliber bullet buried in the ground between the sidewalk and chain link fence on Interceptor, some distance in front of where the agents' car had been parked. They also stipulated that the custodian of records at the Los Angeles County Coroner's Office determined there was no other reported homicide near the Los Angeles International Airport on June 4, 1980.
c. Search of Defendant's Parents' House
On November 12, 1990, Los Angeles Police Detective Richard Henry served a search warrant at the home of defendant's parents. He found a brown leather jacket (the jacket) and a knit cap in a closet that defendant's mother said contained defendant's belongings. Henry also found a 1987 postcard addressed to defendant that reminded him to pick up his eyeglasses from an optometrist. Bulman testified the cap found in the closet was similar to the one worn by the passenger; "presumptive tests," providing a preliminary indication whether or not blood might be present on the hat, were negative.
Los Angeles Police Department Crime Laboratory technicians also conducted two presumptive tests, a phenolphthalein and a luminol test, for the presence of blood on the jacket. The tests resulted in positive reactions on a stain on the left sleeve and small pinpoint spots in the chest area. The parties stipulated the jacket was sent to another laboratory for further tests to confirm the presence of blood, that one "vigorous" swabbing of the sleeve's stain again resulted in a positive result in a presumptive test, but that other tests to confirm the presence of human blood on the jacket were negative. The parties stipulated the negative results in the confirmation tests could mean the jacket had (1) nonhuman blood on it, (2) only a trace amount of blood insufficient to yield a confirmatory result, or (3) no human blood on it. The parties also stipulated that a Federal Bureau of Investigation analyst determined there was insufficient DNA on the jacket for testing. The owner of the company that manufactured the jacket testified it was made no later than 1976, and would have been sold soon afterwards.
Harold Ross, the optometrist who prepared defendant's eyeglasses in 1987 and sent the reminder postcard, testified defendant's prescription was to correct nearsightedness. Another optometrist, Richard Hopping, examined the glasses found at the scene and determined the lens prescription corrected nearsightedness and would be especially helpful for driving at night. Both optometrists testified a change in a person's lens prescription like the difference between the lens found at the scene and defendant's prescription seven years later would be possible.
d. Defendant's Refusal to Stand in a Lineup
On April 3, 1990, defendant was directed to stand in a live lineup related to the Cross murder investigation. A deputy at the jail testified that defendant, who refused to stand in the lineup and became "boisterous" and "belligerent," signed a refusal form notifying him that the lineup was for the purpose of either eliminating or identifying him as a suspect involved in a crime and that his refusal to participate could be used in court to indicate "guilty knowledge." The form provided a space for defendant to explain his refusal. Defendant told the deputy he was refusing on "the advice of his attorney." Bernard Rosen, defendant's attorney in another matter, testified he had advised defendant to refuse to stand in the lineup but had added that defendant would have to participate if a judge so ordered. On April 19, 1990, pursuant to a court order, defendant did participate in a lineup at which Bulman failed to identify him.
Defendant's sister, Darcel Taylor, testified defendant and Terry Brock, the person whom Bulman identified as looking like the driver suspect in the murder, knew each other around the time of the Cross murder.*fn3 The Brock and Alexander families had been neighbors when Taylor was young, and defendant and Terry became "associates" after defendant and Jessica Brock had a child together. Taylor did not know whether defendant and Terry were "close associates" in 1980; she saw Terry "very seldom[ly]" in 1980 and 1981.
In February 1991, Taylor wrote to Terry asking whether he had been talking to the police about defendant. She did so because defendant had told her he was concerned that Terry was talking to the police about him, and he wanted Taylor to try to contact Terry to learn if that was true.*fn4
April Watson, who had been Terry's girlfriend for several years, told Detective Henry that defendant contacted her in August and October of 1990, concerned that Terry might be talking to police. Defendant wanted Watson to find out where Terry was and to tell him to "stay strong." Henry confirmed that he and other officers had transported Terry from the Los Angeles County jail on several occasions in August and September of 1990.
Yvette Curtis, Terry's girlfriend from approximately 1977 to 1982, testified she met defendant through Terry around 1978 and had a brief affair with defendant in 1978 or 1979. During the affair, Curtis took a trip with defendant in which he drove a large truck north of Los Angeles to a place where the truck was unloaded. Defendant had worn glasses when driving at night. The frames of those glasses and their case were similar to the frames and case found at the crime scene. About a month after the trip, Terry confronted defendant about the affair and repeatedly hit defendant in the head with the butt of a gun. Despite that altercation, Curtis continued to see Terry and defendant together on occasion, and she knew they were associates at the time Cross was murdered.
Curtis testified that, just before 11:00 p.m. on June 4, 1980, Terry came to her apartment, looking nervous or excited. He said he needed "to watch the news" about the female Secret Service agent who was murdered "by the airport." Curtis added that she had seen Terry with a.38-caliber revolver two weeks before the murder.
Defendant's address book, recovered by law enforcement in May 1991, contained a telephone number for Terry Brock and April Watson.
f. Defendant's Employment at Swift Foods
Both Arthur Jackson and defendant drove trucks for Swift Foods in Los Angeles in 1980. Jackson testified defendant drove a particular tractor-trailer truck for deliveries to San Francisco and that the truck would be gone on Monday and Thursday mornings when Jackson came to work. On a few occasions, Jackson was at work when defendant returned from San Francisco on Tuesday and Friday evenings. Jackson had seen defendant driving a medium-sized faded brown car with a lighter colored top.
Richard Lamirande, warehouse manager at Swift Foods from 1977 to 1979, testified that, during those years, defendant usually left Sunday night to make a delivery to San Francisco and returned Tuesday afternoon, left Thursday morning to make another delivery and returned Friday afternoon. Lamirande said the seized jacket looked like one defendant wore while they worked at Swift Foods.
Jessica Brock, Terry's sister, had a child by defendant in May 1978. Her testimony varied between direct and cross-examination and was inconsistent with her various prior out-of-court statements to police and the defense. The version most helpful to the prosecution was based primarily on a statement she gave police in 1990. In that version, Jessica said defendant came to her apartment after midnight the night of the Cross murder with "blood spatters, little specks of blood" on his chest and left arm and was carrying a bag containing what looked like a dark "crowbar" and a wooden object that could have been the butt of a handgun. He washed blood off of the crowbar-like object, was very concerned about whether police were outside the apartment, and told Jessica he had had to "take somebody out" near the airport, that "it was either him or them." When police later showed Jessica the barrel of a Secret Service shotgun with its unique hand guard, she said it was "exactly" the same item she had seen defendant carry and clean that night. She said around 1980 defendant often wore knit caps similar to the one seized from his parents' house. Jessica testified her relationship with defendant ended because he had an affair with Eileen Smith.
Jessica felt pressured by defendant's family and her own family not to testify. She testified defendant's mother told her she was the prosecution's star witness and there was no case against defendant without her testimony.
Beverly Perry and Luis Jimenez, both employees of Swift Foods, testified they did not see defendant wearing eyeglasses around 1980. Carlos Jimenez also worked at Swift Foods; he testified he did not recall seeing defendant wear glasses around 1980.
In 1980, Nina Miller was the girlfriend of Charles Brock, brother of Terry and Jessica. Miller testified, and earlier had given a statement to police to the same effect, that in the early morning hours of June 5, 1980, she, Charles, and others picked up a friend at the Venice Police Station and returned to the friend's apartment. Terry was waiting at the apartment building, lying in his car. Once inside, Terry participated in sawing off the barrel of a shotgun and demonstrated shooting that gun, saying "This is how I shot it." Miller said that, at a later date, she heard Charles say "the Secret Service agent must have played dead" because the agent had not picked Charles out of a lineup. She added that Charles once described to her a shotgun with a folding stock like the Secret Service shotgun.
Eileen Smith had a romantic relationship with defendant and lived with him in 1980. She testified she never saw defendant wear prescription glasses before 1981, when she helped him buy a pair. She said in 1980 defendant drove a black Buick Park Avenue and that he sometimes had made deliveries for Swift Foods in the middle of the week and was gone on Wednesdays. She said there were other jackets in the closet Detective Henry searched, and that some clothes in it belonged to her, her son, and defendant's brother. Smith testified that defendant did not "hang out" with Terry after Terry hit defendant in the head with a gun.
Defendant's father testified Jessica Brock told him she had lied in her statements to police after they had threatened her but that she would tell the truth at trial. He denied ever having contacted witnesses to pressure them not to testify or to change their testimony, although the prosecutor cross-examined him regarding his contacts with various witnesses in the case. He also denied previously trying to "pay off" a witness in a case against defendant involving a person named Dorothy Tyre.
Former Los Angeles Police Detective Michael Thies testified that, in Bulman's statements to police after the murder, Bulman did not say the struggle with the driver initially occurred in front of the agents' car. Bulman's description of the suspect with the shotgun contained in Thies's report and the all-points bulletin Thies issued did not include that that suspect had a mustache, although the final composite of that individual did. Thies said he believed Bulman told him during their initial interview that the suspect with the shotgun had a mustache, but he agreed that he normally would have included such an important detail in his notes and the bulletin if Bulman had so stated. Secret Service Agent Frank Renzi testified his notes of Bulman's description of the suspect with the shotgun similarly did not include mention of a mustache, but he added that he might not have heard that part of Bulman's description of that suspect. Renzi's notes indicated that Bulman did describe the other suspect as having a neatly trimmed moustache.
3. Prosecution Rebuttal Evidence
Kevin McHugh worked at Swift Foods between 1977 and 1980. He testified he twice saw defendant wearing eyeglasses while reading.
Detective Henry testified that, in a call intercepted pursuant to a court-authorized wiretap, defendant's mother told Eileen Smith that, at defendant's request, she was listing things she wanted Smith to remember for her testimony that might help defeat a pending motion in the case. Henry also testified that the closet he searched appeared to contain only defendant's clothes. Henry added that, shown the barrel of a Secret Service shotgun, Jessica Brock told him it was the object she had seen defendant "washing the blood off of." Henry also testified Jessica described a square wooden bottom of the "gun butt" of a revolver as the object she saw protruding from the bag defendant brought to her apartment on June 5, 1980.
Dorothy Tyre testified defendant took coins, checks, a purse, and a wallet from her on December 17, 1972. Tyre said she pressed charges against defendant despite his parents' attempts to persuade her not to do so.
4. The Special Circumstances Allegations
During a bifurcated portion of the guilt trial, the prosecution, in support of the prior-murder special-circumstance allegation, presented defendant's certified prison records and fingerprint records, which established that on July 19, 1990, he was convicted of three counts of first degree murder.*fn5 Detective Henry, the investigating officer in that case, testified he was in court when the jury convicted defendant of those murders. During this part of the trial, the prosecution did not present any new evidence related to the robbery-murder special circumstance, and no defense evidence was presented.
The prosecution presented evidence concerning six prior incidents of defendant's criminal behavior. On April 8, 1970, defendant was stopped for driving an unsafe car that was too low to the ground. Defendant was verbally abusive to the police officers. He was arrested after he tried to run away when they issued him a ticket. On December 17, 1972, defendant and another person, both armed with revolvers, entered Dorothy Tyre's home and robbed her of several items. This incident led to defendant's conviction on July 17, 1973, for first-degree robbery and first-degree burglary, with an enhancement for being armed with a firearm. On May 30, 1977, defendant was part of a crowd of bystanders who interfered with police officers in the process of arresting two men. Defendant had to be handcuffed and placed in a patrol car so that the officers could complete the arrest safely. On July 25, 1984, defendant shot James Williams in the arm for no apparent reason. The two men lived in the same apartment complex. On April 9, 1988, while incarcerated in a Los Angeles County jail, defendant struck a sheriff's deputy and held him in a choke hold. Other deputies had to physically subdue defendant. The prosecution also presented several photographs of the crime scene and the victims in the triple murder of which defendant was convicted in 1990. Two of the victims had been shot in the head.
Cheryl Meyers, a San Diego Police Department captain who had worked with Julie Cross before she joined the Secret Service, Cross's older brother, and Agent Bulman testified about Agent Cross and the impact her death had on them. Bulman then testified about how he personally was affected by the events of June 4, 1980.
Deputy Sheriff Dave Sher testified defendant caused no problems and served as spokesman for inmates on his row while confined in the county jail during the trial proceedings. Lazaro Simone, a jail inmate, testified defendant was helpful and generous toward other inmates and was respectful toward jail staff.
Defendant's parents, two siblings, four children, current and former girlfriends Debra Edwards and Eileen Smith, and a family friend testified consistently with each other concerning defendant's history. They described him as a loving and supportive son, brother, and father who fell into trouble due to drug use and associating with the wrong people. Defendant voluntarily entered a drug treatment program in approximately 1984. These witnesses, and an officer of the Swift Foods corporation while defendant worked there, described defendant as a hard and conscientious worker. Defendant's family members testified that, in their view, defendant did not deserve the death penalty.
Defendant recounted his personal history and tried to explain or minimize his culpability in the criminal incidents the prosecution presented in aggravation. He denied committing the triple murder and the murder of Agent Cross.
1. Denial of Motion to Appoint Madelynn Kopple as Trial Counsel
Defendant contends the trial court abused its discretion by denying his request to continue Madelynn Kopple's appointment as his attorney and thereby violated his state and federal right to the assistance of counsel.*fn6 In response to the People's claim that review of this decision is barred by the "law of the case" doctrine, he claims the doctrine does not apply because "exceptional circumstances" justify review, namely that the Court of Appeal's decision is "manifestly unjust." (See England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795.) a. Background
On October 1, 1992, defendant was remanded into custody for the Cross murder. He asserted his rights under Faretta v. California (1975) 422 U.S. 806, and was granted leave to proceed in propria persona. Attorney Madelynn Kopple was appointed as advisory counsel. On March 10, 1993, she submitted an attorney substitution form, seeking to have herself appointed as attorney of record. She withdrew her request once told she could not be appointed and receive payment for her services without following local requirements for capital appointments, including that the public defender and alternate defense counsel first decline appointment and that the appointment must be filled by an attorney on the Central District's death penalty "bar panel."
The preliminary hearing was set for July 13, 1993. Kopple filed four motions prior to that date: a motion to continue the hearing; a 45-page motion to strike the prior-murder special-circumstance allegation; an 11-page motion to suppress testimony of witnesses who were hypnotized during the police investigation; and a 10-page motion to dismiss the case for prejudicial prearrest delay. Kopple signed these motions as defendant's "advisory counsel." Defendant did not sign them.
The motion to continue was based on the fact that Kopple was scheduled to be in trial on an unrelated case. At the May 24, 1993 hearing on that motion, Kopple said she was appearing "on behalf of" defendant, and she referred to this motion and the motion to strike as motions that "I filed." Other than agreeing to the continuance, defendant said nothing at that hearing.
At a hearing on July 7, 1993, Kopple appeared without defendant and said he would be making a motion to substitute her as attorney of record. She presented declarations from the public defender and alternate defense counsel stating they would not represent defendant because of conflicts of interest. Despite acknowledging what the court described as a "hullabaloo" regarding her qualifications, Kopple represented that she was on the "bar panel" and qualified to receive a special circumstances appointment, and that she understood it was "mandatory" that the court appoint her because she had been advisory counsel for over six months. She added, "I'm thoroughly familiar with the case," defendant "wants me as lead counsel," and, if she were not appointed as counsel of record, defendant would not be ready to proceed with the preliminary hearing scheduled to start the following week.
On July 12, 1993, defendant filed a motion to substitute Kopple as counsel of record; the next day, the court indicated it had told the court clerk that Kopple "would qualify to serve as counsel," granted the motion, and terminated defendant's in propria persona status. Kopple represented defendant during the preliminary hearing, after which the court denied the motion to strike the prior-murder special-circumstance allegation and denied, without prejudice, the motion to dismiss for delay. The court excluded no testimony based on a witness's having been hypnotized.
Defendant was bound over to superior court and, on August 2, 1993, he was arraigned before Judge Ito. Kopple appeared with defendant but did not mention that she had been appointed as counsel in municipal court. Judge Ito assigned the matter to Judge Horan for trial. Later that morning, when Judge Horan questioned her status as appointed counsel, Kopple said she had been appointed in municipal court and assumed her appointment would continue. Judge Horan returned the matter to Judge Ito to clarify Kopple's status because she was "not on the list," presumably a reference to "the Superior Court's approved list of death penalty case attorneys." That afternoon, Judge Ito commented that he had assumed Kopple "was privately retained since she had announced ready to proceed with the arraignment and did not request to be appointed to represent [defendant]." Kopple reiterated that she had not mentioned her status as appointed counsel because she assumed the appointment automatically would continue. Judge Ito relieved her because, he said, given the charge, "this is something I have to refer to our contract," presumably another reference to the arrangements for appointments in special circumstances cases. Kopple then produced written opposition to her removal as defendant's attorney. When Judge Ito took the opposition under submission and set a hearing for the next day, Kopple noted that she had filed a motion for the appointment of Attorney Barry Levin as co-counsel and asked the court to consider that motion as well. Judge Ito conducted an in camera hearing on August 3, 1993, after which he appointed Attorney Penelope Watson as defendant's counsel, subject to her evaluation of whether she could accept the appointment and to Judge Ito's continued consideration of defendant's opposition to Kopple's removal.
Judge Ito issued a written order declining to appoint Kopple as defendant's attorney, noting that she had applied for, but was denied, admission to "the Superior Court's approved list of death penalty case attorneys." The order expressed concern that Kopple had acted inappropriately as de facto counsel of record in municipal court, by improperly "billing for services not necessary or authorized," including filing the motion to strike a special circumstance allegation, and generally preparing for trial, when she had been appointed only as advisory counsel for the preliminary hearing. The order noted that Kopple submitted bills totaling over $50,000 for work as advisory counsel for the period up to one month before the preliminary hearing, an amount Judge Ito found to be "excessive." Judge Ito found that Kopple's actions "operated as a subterfuge to allow [defendant] to retain the in custody privileges" afforded a self-represented defendant while having counsel "present [his] case." The order noted that defendant based his preference for Kopple's appointment on no "specific or unique reason" other than his trust and confidence in her. Finding no indication that "Kopple alone possesses a quality or talent necessary to represent [defendant]," and that the credibility and substance of the "claim of preference" was "undermined" by his agreeing to the motion to appoint Co-counsel Levin, who had "no prior contact with either the case or [defendant]," Judge Ito continued Watson's appointment and referred the case to the trial court.
On August 17, 1993, defendant challenged Judge Ito's refusal to continue Kopple's appointment by filing a petition for writ of mandate in the Court of Appeal. That court denied the writ because the supplied record was insufficient for adequate review, and because, based on the record provided, defendant failed to demonstrate an abuse of discretion. We granted the petition for review and transferred the matter to the Court of Appeal with directions to vacate its order denying mandate and to issue an alternative writ to be heard before that court. After briefing and oral argument, the Court of Appeal denied the petition, concluding the trial court had not abused its discretion. (Alexander v. Superior Court (1994) 22 Cal.App.4th 901.) The Court of Appeal denied defendant's petition for rehearing, and, on May 19, 1994, we denied defendant's petition for review and request for depublication of the decision.
While the mandate petition was under review, defendant filed two motions in the trial court pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to have Watson removed from serving as his attorney. After those motions were denied, defendant filed a new motion to proceed in propria persona, which was granted on March 30, 1994. On April 13, 1994, Attorney Robert Gerstein was appointed for the limited purpose of filing a motion for reconsideration of the order removing Kopple, and Attorney Rowan Klein was appointed as advisory counsel for defendant in the trial proceedings.
The motion for reconsideration was supported by new declarations by Kopple, defendant, his father and sister, Attorneys Richard Millard, Howard Gillingham, Barry Levin, and Gigi Gordon, and a report by Dr. Samuel Miles, a psychiatrist who "explore[d] [defendant's] motivation" for wanting Kopple to represent him. After a hearing on the motion, in a written order filed June 13, 1994, Judge Ito denied the motion because the "purported cost savings, while usually an important factor, does not override the court's previously expressed concerns for the integrity of the [appointment] process in this particular case under these unique circumstances." The court considered that, at the time of its original ruling removing Koppel, she made "unprofessional" comments about the trial court and Court of Appeal, and that she unsuccessfully had applied for admission to the Orange County Superior Court's capital case attorney panel. Judge Ito also found that the new report and Dr. Miles's comments amounted to "an embellishment of comments already made" and failed to demonstrate special circumstances that "require[d]" him to appoint Kopple.
On July 26, 1994, at defendant's request, Klein was appointed as counsel of record. Klein represented defendant through the completion of the trial.
"The law of the case doctrine states that when, in deciding an appeal, an appellate court 'states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal..., and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.' [Citations.]" (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.) The doctrine "can apply to pretrial writ proceedings. When the appellate court issues an alternative writ, the matter is fully briefed, there is an opportunity for oral argument, and the cause is decided by a written opinion. The resultant holding establishes law of the case upon a later appeal from the final judgment." (Id. at p. 894.)
Here, defendant sought review of the initial order removing Kopple from the case by filing a pretrial petition for writ of mandate. An alternative writ issued, the Court of Appeal decided the matter in a published opinion, and we denied review. The Court of Appeal's conclusion that the trial court's initial order was not an abuse of discretion is law of the case. The claim that we should nonetheless revisit this order based on "exceptional circumstances" fails because defendant, in essence, simply asks us to reweigh the evidence presented below. (See People v. Martinez (2003) 31 Cal.4th 673, 683-688 [law of the case doctrine applies unless existing principles have been manifestly misapplied, resulting in substantial injustice, or intervening decisions have clarified the law].)
However, the law of the case doctrine does not bar review of the trial court's denial of the motion for reconsideration, which addressed new evidence and arguments and was not the subject of review. (Boyer, supra, 38 Cal.4th at p. 442 ["the law-of-the-case doctrine governs only the principles of law laid down by an appellate court,... and it controls the outcome [in subsequent proceedings] only to the extent the evidence is substantially the same"].) We therefore review the denial of the motion to reconsider for abuse of discretion. (Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934-935 ["appointment of counsel to represent an indigent rests in the sound discretion of the trial court"]; see also Harris v. Superior Court (1977) 19 Cal.3d 786, 799 (Harris) [trial court abused its discretion when considerations in support of appointment "heavily outweighed" contrary factors, such that "only one conclusion [was] possible"]; People v. Cole (2004) 33 Cal.4th 1158, 1187 [trial court does not abuse its discretion when nothing in the record demonstrates "the relationship between defendant and [requested counsel] ever approached the depth of the relationship between the petitioners and their requested counsel in Harris"].) Although, under the law of the case, we do not ...