Supreme Court of California Justia
Docket No. S073596
People v. Lancaster

Filed 5/24/07



Plaintiff and Respondent,




Los Angeles County

Defendant and Appellant.

Super. Ct. No. BA131909

A jury sentenced defendant Andrew Lancaster to death, after finding him

guilty of first degree murder and kidnapping for purposes of extortion. The jury

found true the special circumstance allegation that the murder was committed

during the commission of a kidnapping, and also found that defendant personally

used a firearm. This appeal is automatic.



Guilt Phase

The victim, Michael Taylor, was a former reporter and producer for radio

station KPFK in Los Angeles. After leaving KPFK, he planned to start an

unlicensed microwave radio station along with Robert Marston and Tyrone Floyd

(who were also former KPFK employees). In January 1996, Taylor told Marston

and Floyd that he had found a financial backer named Mzee Shambulia. Marston

ordered equipment for assembling a transmitter, an amplifier, and an antenna. He

used his own money, having received no funding from Shambulia. The parts for

the amplifier did not arrive until mid-April.

Defendant, who went by the name “Hodari Lumumba,” was an associate of

Shambulia. He attended several meetings between Shambulia and Taylor’s group

in early 1996. At one of those meetings, Shambulia pulled Marston aside and

asked him if the equipment was going to be delivered on time. Marston told him

that he was having some trouble, but could arrange for a loan of equipment if

necessary. Shortly after this meeting, Taylor called Marston and referred to a

$2,000 payment he thought Shambulia had given to Marston to buy equipment.

Marston had not received that payment, and he expressed a “high degree of

anxiety” to Taylor. Taylor assured him he would correct the situation, and in a

subsequent phone call said he was seeking alternative financing.

Marston and Taylor became more concerned when Shambulia showed

Taylor a site for installing the station’s equipment that Taylor considered a “phony

location.” After that, Marston decided not to deliver any equipment to

Shambulia’s group. Taylor and Floyd were also troubled by Shambulia’s plan to

sell commercial air time on the station. Taylor and Floyd were contemplating a

“people’s radio station” funded by donations. They wrote Shambulia what Floyd

described as “basically . . . a Dear John letter saying we [were] going to keep the

microwave station, that we had the transmitter and we were going to start our own

station and they were welcome to do whatever . . . .”

At some point, Shambulia did give Marston a money order for $220.

Marston returned the money order by registered mail on Friday, April 19. Taylor

then received a phone call informing him that Shambulia was extremely angry.

On April 21, Taylor told Marston that defendant had telephoned, saying to tell

Marston that “if they don’t get their equipment, things are going to get rough.”

The same day, Taylor told Floyd that defendant had “stated that if he didn’t get the

transmitter back, that it would get nasty.”

Floyd testified that Taylor was quite frightened after defendant’s warning.

On the afternoon of April 21, Taylor and Floyd went to a party together. Floyd

noted at one point that Taylor was so nervous he was shaking. The next day,


Floyd spoke with Taylor twice about their plans for the station. During the first

call, around 8:00 p.m., Taylor was excited about the project. Around midnight,

however, Floyd received a call from Taylor that he described as “very strange.”

Taylor asked him to call some social activists in Philadelphia. Floyd was puzzled,

both because it was odd for Taylor to call that late and because his request to call

people in Philadelphia made no sense. Floyd said Taylor’s demeanor was unusual,

and different from their earlier conversation.

Floyd and Taylor were to meet the next morning, but Floyd was unable to

reach Taylor by telephone. He went to see Taylor, and noticed his car was gone.

He called and paged Taylor repeatedly. In the evening, he got a call from

someone who hung up when he answered. Floyd called back using the “star 69”

function. The person who answered said they had heard Floyd was trying to start

a radio station, and offered to come to his house with a $3,000 donation. Floyd

refused to disclose where he lived, but agreed to meet the person at a coffee shop.

When he arrived, Floyd recognized defendant’s car parked on the street, and saw a

man wearing a baseball cap sitting in the car.

Floyd went to the front of the coffee shop and made a telephone call. When

he hung up and turned around, defendant was standing a foot or two away,

wearing a baseball cap. Defendant looked from side to side and moved his index

finger back and forth near his belt, where Floyd saw a bulge that appeared to be a

gun. Floyd asked defendant when he had last seen Taylor. Defendant “froze” and

said he had seen him that day at a homeless center. Floyd left quickly and moved

his family to a safe place. The next day, he filed a missing person report for

Taylor. Shortly thereafter, he learned that Taylor had been killed.

The events immediately preceding the murder were related primarily

through the testimony of defendant’s accomplices, Shawn Alexander and Jornay

Rodriguez.1 Alexander was 19 years old in April 1996. He became friends with


Alexander and Rodriguez were originally charged as codefendants.

Before trial, Alexander pleaded guilty to manslaughter and accepted an offer of a


defendant in 1996, and visited Taylor’s house several times with him. On April

21, defendant told Alexander that Shambulia was going to pay defendant to kill

Taylor. Alexander would get $1,000 for helping. Nevertheless, the next day when

defendant asked him to help pick up some stereo equipment from Taylor,

Alexander said that he thought he would only be loading the equipment into

defendant’s car. Defendant, Rodriguez, and Alexander went together to see

Taylor. Alexander had known Rodriguez for a long time, and had introduced him

to defendant.

Taylor was not home when they arrived. When they returned around

midnight, Alexander remained in defendant’s car while Rodriguez and defendant

went inside. They came back with Taylor in 10 or 15 minutes. Defendant had a

gun, which Alexander described as a 9-millimeter. Rodriguez and Taylor got into

Taylor’s car, while defendant returned to his own car. Defendant told Alexander

they would follow Taylor, and that Taylor “was going down that night.”

Defendant followed Taylor’s car to a secluded area near some train tracks.

When they arrived, defendant told Alexander they would be “paid for this.”

Defendant took a rope, a container of liquid, and duct tape from his trunk; he also

had his gun. The four men walked to a spot near the tracks, and defendant asked

Taylor where the equipment was. Taylor did not reply. Defendant asked another

question, and angrily pushed Taylor to the ground. After making another inquiry,

defendant threw liquid from the container onto Taylor’s face. Taylor shook his

head, as if his eyes were burning. Defendant told Alexander to tape Taylor’s

mouth. Alexander tried, but the tape slipped. After looking at Taylor’s face,

Alexander said he could not do it. Rodriguez tied Taylor up. Defendant had his

gun drawn; Alexander did not see Rodriguez with a gun.

15-year prison term in exchange for his testimony. Rodriguez pleaded guilty to
first degree murder, and understood he was to be sentenced to a term of 25 years
to life.


Defendant told Alexander to check Taylor’s pockets. Alexander took a

pager, a pack of cigarettes, and a lighter from Taylor. Defendant told Taylor he

would ask one last time where the equipment was. When Taylor said that Floyd

had it, defendant responded, “you lied to me.” He then gave his car keys to

Alexander and Taylor’s keys to Rodriguez, and told them to meet him at his

house, which was nearby. As Alexander walked away, he heard several gunshots.

He turned and saw defendant holding the gun.

Alexander went to defendant’s house, and defendant drove him home.

Alexander asked why defendant shot Taylor. Defendant said only that Taylor had

tried to get up, and he shot him in the head and chest. Alexander kept Taylor’s

pager. Several days later, defendant inquired about it, and Alexander told him he

had been “cutting off the number” when he received pages. Defendant said that

was a stupid thing to do, because he needed some information. He told Alexander

he was going to call the numbers on the pager.

Rodriguez was about 20 years old on April 22, 1996. He had known

defendant for less than a month. He did not know why they were visiting Taylor,

whom he had never met, but he went with defendant into Taylor’s house.

Rodriguez did not recall the initial conversation, but said that eventually defendant

raised his shirt, exposing a 9-millimeter gun, and told Taylor, “we’re going to take

a little ride.” Taylor was speaking on the telephone at that point. After Taylor

hung up, defendant demanded to know where “the radio equipment” was. Taylor

said nothing, and left the house with Rodriguez and defendant walking behind


One of Taylor’s housemates testified that as she left her room on the night

of April 22, 1996, she saw Taylor on the phone in his room with two men facing

him. She waved to him, but he did not respond, which was unusual. She was

downstairs when the three men left the house. She saw them go out together and

heard Taylor’s car driving away.


Rodriguez testified that defendant told him and Taylor to get into Taylor’s

car, and instructed Taylor where to drive. Defendant went back to his car.

Rodriguez pointed a .25 caliber automatic handgun as Taylor drove. When they

reached their destination, Rodriguez put his gun away. Defendant had his gun out,

and pushed Taylor toward a mound of dirt. Defendant was asking about the radio

equipment. Taylor was saying, “let’s talk about this . . . we don’t need to do this.”

Defendant splashed some liquid into Taylor’s face. Rodriguez gagged Taylor with

duct tape, and bound his hands and legs. After Rodriguez took Taylor’s keys, he

and Alexander walked away. Rodriguez heard two or three gunshots, then drove

away in Taylor’s car.

A day later, Rodriguez met defendant at Alexander’s house; they did not

discuss the killing. Subsequently, the three met with Shambulia. Defendant told

Shambulia what had happened to Taylor, saying “it was about the radio

equipment.” On another occasion, defendant went to Shambulia’s house and

returned with a check, saying “I got the money.” Rodriguez understood the

payment was for killing Taylor, but he did not know how much the check was for.

Rodriguez was never given any money, though defendant had promised to pay


At 12:35 on the morning of April 23, 1996, Los Angeles police officers

arrived at the crime scene. A witness who had heard gunshots directed them to the

body. Taylor’s hands and legs were bound, and there was duct tape around the

neck. An open bottle of Liquid-Plumr lay nearby; it appeared new and still

contained some liquid. Taylor’s black T-shirt had white stains on the chest and

upper back, consistent with the damage that Liquid-Plumr would cause. Three

fingerprints and a palm print were lifted from the bottle and matched to defendant.

Four 9-millimeter casings were found near the body, and three 9-millimeter

slugs were recovered. All were fired from the same weapon. Taylor sustained

gunshot wounds to the face, neck, shoulder, and chest.




evidence at the guilt phase.


B. Penalty Phase

Taylor’s mother, two brothers, and daughter testified about the impact of

his murder on them and other family members.

The prosecutor introduced evidence of two other crimes committed by

defendant. In 1986, when he was 14 years old, he raped a 9-year-old girl in

Maryland. The victim testified that defendant pulled her from her bicycle and

forced her into the back of a van, where, with the assistance of an older

accomplice, he tried to force her to orally copulate him. He beat her, raped her,

and threatened to kill her if she told anyone. The victim said she was “torn my

whole life” as a result of this incident, and had avoided sex altogether. In 1992,

defendant and another man conducted a home invasion robbery, leaving the

terrified victim bound, gagged, and tied to her mattress.

The jury also heard about two incidents occurring while defendant was in

custody after his arrest for Taylor’s murder. In December 1997, a sheriff’s deputy

handcuffed and searched defendant when he refused to return to his cell. A

makeshift knife or “shank” was found in his pocket.2 Defendant told the deputy

he had been caught with a shank on three other occasions, but the resulting

charges were dismissed each time. In May 1998, another deputy discovered three

jail-made handcuff keys, fashioned from small pieces of metal, in defendant’s cell.

The defense presented testimony from a clinical and forensic psychologist,

Dr. Richard Romanoff. Dr. Romanoff had reviewed defendant’s penal and

medical records, met with him several times, and conducted various tests. He

concluded that defendant has an antisocial personality, characterized by a

predisposition toward criminal behavior, deceitfulness, impulsivity,

aggressiveness, recklessness, and lack of remorse. Defendant’s personality

disorder might have a genetic component, and related problems began in his

childhood, which was characterized by domestic violence and failure to bond with


Hereafter, we adopt the terminology used by the parties and refer to this

implement as a shank.


his parents. He had never received proper intervention; at one point he was part of

a National Institute of Health drug treatment program, but Dr. Romanoff

characterized that experience as “mostly being a guinea pig.” The doctor believed

that although defendant’s disorder was difficult to treat, it could be overcome

through self-motivation. Defendant’s current involvement with Islam was the

most likely source of an eventual recovery, in Dr. Romanoff’s opinion.

Reverend Richard Byrd was a minister who had a weekly radio program at

KPFK. He knew both Taylor and defendant. He had spoken with defendant

“fairly often” about spiritual matters, and said defendant had been conscientiously

trying to transform his life. He viewed defendant and Taylor as “co-activists,” and

was shocked to learn that defendant was implicated in Taylor’s murder. He had

never seen defendant behave inappropriately.

Omar Rashad, an imam at a Los Angeles mosque, became acquainted with

defendant while visiting the jail, and helped him “with his growth and

development in the religion of Islam.” Defendant demonstrated a sincere

commitment to Islam, asking serious questions and responding to counseling. The

imam was unaware of any acts of violence by defendant.

Defendant testified, accusing the witnesses against him of lying. He did not

trust attorneys or psychiatrists. He said he would not ask the jury to spare his life

because only God can give life. Defendant disparaged Dr. Romanoff’s testimony,

telling the jury, “this antisocial syndrome bull stuff, don’t fall for that.” He

professed his innocence, claiming it was Shambulia who had a confrontation with

Taylor. Defendant said their differences were over politics, and had nothing to do

with himself or the radio station. On cross-examination, defendant admitted

telling Taylor that “things would get rough” if Shambulia did not get his

equipment, but claimed he was merely passing along a message from Shambulia.

The prosecutor questioned defendant at length about statements he gave to the





Pretrial Issues

1. Defendant’s Legal Representation

Defendant contends the trial court erred by undermining his effort to

represent himself, denying his request to appoint an attorney of his choice, and

denying that attorney’s motion for the appointment of second counsel. His claims

require a discussion of the underlying circumstances at some length.

a. Background

On May 23, 1996, defendant appeared in municipal court to enter a plea

and set his preliminary hearing. Although accompanied by a public defender,

defendant asked to represent himself. The court granted the request after warning

him about the disadvantages of self-representation, as required by Faretta v.

California (1975) 422 U.S. 806, 835 (Faretta).

At the outset of a hearing on June 6, defendant reaffirmed his desire to

represent himself. Later in the hearing, however, he moved for the appointment of

counsel. When the court told him “you can’t have it both ways,” defendant asked

for an in camera hearing, but the court continued the matter. At a hearing on June

13, defendant requested the appointment of Rowan Klein as his cocounsel. The

court denied the motion without prejudice, explaining that defendant had not made

a sufficient showing for the appointment. The court did appoint an investigator

and legal runner. On June 25, defendant appeared in court and declared, “I want

to keep my pro per status.” The preliminary hearing was set for July 23.

At a hearing on July 1, 1996, defendant was present when the district

attorney made a record of the discovery she had provided to him. On July 23,

defendant appeared for the preliminary hearing with Attorney Michael Artan.

Artan told the court that defendant did not feel competent to go forward and

wanted Artan to represent him, but had not paid Artan. The court noted that

defendant had repeatedly expressed his desire to represent himself, and never

indicated he would be unable to proceed. Defendant told the court, “I feel very


uncomfortable right now, and I’m not prepared to proceed today.” He also said he

had not received full discovery. The prosecutor responded that defendant had

received all discovery pertaining to Floyd, the witness who was appearing that

day. The hearing went forward, with defendant representing himself.

Defendant was arraigned in superior court on August 6, 1996. Artan

appeared and was permitted to assist defendant with the arraignment. The court

gave defendant the forms he needed to complete to proceed in propria persona,

and set a hearing for August 9 to resolve the question of Artan’s status. At that

hearing, defendant told the court he needed an attorney but had a conflict with the

public defender’s office. Defendant felt his public defender had been

incompetent, overworked, and disrespectful. Even if another public defender were

appointed, defendant believed “I couldn’t get justice with that.” He had not hired

Artan, and could not afford to. He requested appointed counsel.

The court explained that it was required to appoint the public defender, who

would then determine whether there was a conflict. Artan said he did not believe

the public defender’s office had conducted a conflict check, but he suspected there

was a conflict. Artan had met with defendant approximately 10 times, spent about

50 hours on his case, and believed they had developed a level of trust. Defendant

had asked Artan to seek appointment as defense counsel. Artan conceded he was

not on the panel of qualified capital defense attorneys. However, he said he met

some of the criteria and suggested the court had discretion to appoint him. He

recommended that the court have the public defender do a conflict check, then

consider appointing him upon a written application.

The court said it would entertain such a motion, but noted that Artan’s

appointment was problematic because he was not on the qualified panel, and

because the public defender could not do a conflict check unless defendant

permitted the public defender to be appointed. The court asked whether defendant

would give up his right to represent himself. After conferring with Artan,

defendant said that if it was “not appropriate right now” for Artan to be appointed,


he wanted to remain in propria persona. The court reviewed the forms submitted

by defendant and gave him Faretta warnings.

Artan told the court he would do what he could to ascertain whether the

public defender’s office had a conflict. The court approved, but noted again that

Artan’s chances of appointment were poor because he was not on the qualified

panel. The court also explained to defendant that standby counsel would be

appointed, for the sole purpose of taking over “if something happens to your pro

per status.” Standby counsel would not interfere with defendant’s handling of the

case, though defendant could request consultation and “it will be up to the trial

judge of your case to determine with you how you want the standby counsel to

relate to your case.” Defendant said he understood.

On September 10, Ron Rothman appeared with defendant as appointed

standby and advisory counsel. Rothman said he expected defendant to abandon

self-representation and accept him as his attorney, but said he would like

defendant to remain in propria persona “temporarily,” because it was “enabling me

to establish a rapport with him.” Rothman had visited defendant several times in

jail. He asked for “a full set of discovery.” The prosecutor expressed concern

whether she would be dealing with Rothman or defendant, and noted that

defendant had already wavered on the question of his legal representation. She

said her office had not yet decided whether to seek the death penalty, and

suggested waiting to decide the discovery issue until that question, and Rothman’s

status as counsel, were resolved. The court pointed out that even standby counsel

would need discovery. Defendant agreed that for the time being, the prosecutor

could turn over discovery materials to Rothman.

At a trial-setting conference on October 16, Rothman appeared as standby

and advisory counsel. Defendant reaffirmed his desire to represent himself. The

prosecutor reported that no decision regarding penalty had been reached, and

repeated her concern about the uncertainty over defendant’s representation. On

November 26, the prosecutor announced that she would seek the death penalty.


Rothman was present, but defendant told the court he had found another attorney

to act as advisory and standby counsel. The court informed him that he could not

“just substitute someone else in.” Defendant then said that he had privately

retained Artan to “take over this case,” and assured the court that Artan’s fee had

“all been taken care of.” Artan came late to the hearing, and told the court that he

had not been paid, but was nevertheless “on the case.” The court relieved

defendant and Rothman of their status as counsel. Rothman agreed to turn over all

case materials to Artan.

Artan appeared for pretrial hearings in December 1996 and February, April,

and May 1997. On May 29, the court indicated it wanted to begin trial in August.

Artan was concerned about his readiness. He explained that he had been in trial,

was a sole practitioner, and was still receiving discovery from the prosecutor. The

court warned that trial could not be delayed for counsel, and that Artan could be

relieved if he were unable to prepare. Artan thought he could be ready in

September. He noted that although he was retained, he was not being paid.

On July 7, Artan again expressed reservations about his preparation, even

for a trial in September. He had other cases that were scheduled for trial soon, and

conceded that if he were being paid he might not have taken them. He mentioned

the possibility of appointing cocounsel. The court was not receptive to that idea

and said it was inclined to relieve Artan. Defendant objected, saying he and Artan

had a good relationship. He felt he could not receive a fair trial with an attorney

appointed from the qualified panel. The court accommodated defendant’s desire

for Artan to remain as counsel, and set September 22 as the trial date.

On August 29, it was evident that Artan’s problems with preparation

persisted. He had filed an application for the appointment of second counsel,

which would be heard by another judge. The court suggested it was unlikely the

application would be granted, and again mentioned the possibility of replacing



In the application for appointment of cocounsel, Artan declared that

defendant was indigent, Artan was a sole practitioner with four cases set for trial

before defendant’s, substantial work remained on defendant’s case, and this was

Artan’s first capital case, necessitating extra preparation time. Artan noted that

appointment of second counsel was authorized by Keenan v. Superior Court

(1982) 31 Cal.3d 424. He argued that an unusual circumstance justified his

application. Because he was not being compensated by public funds, the county

would be paying no more than it would for a single appointed counsel.

The court denied the application on September 8, ruling that Artan had

failed to provide any specific or compelling justification. The court stated that the

application raised questions regarding Artan’s ability to handle defendant’s case,

given his other commitments and inexperience. It directed Artan to bring these

concerns to the trial court’s attention.

On September 17, 1997, Artan told the trial court he would seek

reconsideration of his application. In that motion, Artan argued that the case was a

complex one. He noted that the prosecution intended to present evidence of four

felonies in Maryland, which had occurred in 1986 and 1987, and that defendant’s

prison records reflected psychological conditions that “may require motion

practice.” Artan also suggested that his inability to handle the case alone was

itself a compelling justification for additional counsel. On September 22, Artan

told the court he anticipated seeking writ relief if his motion failed. The court told

Artan that if he was unsuccessful, he would be relieved.

The motion for reconsideration was denied on October 9. The court found

that defendant’s case was not “complex or voluminous,” and concluded that

Artan’s busy schedule and inexperience were not grounds for the appointment of

second counsel. The Court of Appeal denied Artan’s writ petition challenging the

court’s ruling.

On November 26, Artan informed the trial court that he would have to

withdraw, and that defendant hoped to have someone appointed in his place. The


court allowed Artan to withdraw but asked him to remain on the case until

successor counsel could be appointed. The court also told defendant it would

investigate his claim that his legal materials had been confiscated in jail. On

December 1, the court reappointed the public defender.

On December 3, the public defender reported that his office had not yet

completed a conflict check. Defendant was unhappy with the public defender’s

appointment, expressed a desire “to hurry up and get this case to trial so I can get

it over with,” and again asked to represent himself. The court advised defendant

to wait for the result of the conflict check. Defendant was concerned that even if

alternate counsel were appointed, he might not be able to work with that attorney,

and said he would prefer to “put my life in my own hands.” When asked if he

wanted to represent himself even if he received appointed counsel, defendant said

yes. The court granted his request, again giving him Faretta warnings. Defendant

complained about his missing legal materials; the court assured him that they

would be returned. The court directed Artan to return his discovery materials to

the prosecutor so she could itemize what she would be turning over to defendant.

On December 17, Ron Rothman appeared as standby counsel. Defendant’s

in propria persona privileges in jail had been revoked after he was found with a

shank. Defendant asked for temporary suspension of his in propria persona status

so that Rothman could represent him for a hearing on the shank incident. The

court agreed. Defendant conceded his possession of the shank, contesting only the

restrictions on his privileges. A deputy from the jail explained that defendant

could not visit the library and his movements in jail would be restricted, but he

could meet with advisory counsel and a licensed investigator. He could see

witnesses during regular visiting hours, and would have limited telephone access.

Defendant said he was concerned not so much with the telephone as with

the ability to keep his legal materials private; he also complained that he still had

not received all the confiscated material and was concerned that their contents

might become known. The court told defendant that any jailhouse informants who


had invaded his privacy would not be allowed to testify. It refused to interfere

with the jail’s security measures, but obtained the deputy’s assurance that

defendant would have access to his legal materials. The court agreed to appoint a

legal runner, order telephone access, and direct the return of defendant’s legal


On January 8, 1998, defendant appeared and reconfirmed his desire to

proceed in propria persona with Rothman as standby counsel. Rothman said that

defendant had led him to believe that he would turn over the defense to Rothman.

Rothman had prepared motions, but could not present them now that defendant

had kept him on standby status. Rothman also explained that Artan’s attempt to

return the case materials to the district attorney had been unsuccessful due to a

delivery problem. Rothman agreed with the court’s suggestion that he follow up

personally with Artan.

Defendant moved for sanctions based on the continued failure to return his

legal materials. The court told defendant that problems with lost materials in jail

were not unusual, and promised to do what it could to have his returned, or to

“regenerate” them to the extent possible. Defendant noted that the jail had placed

him with other in propria persona inmates, but he was still not allowed to go to the

law library. He asked to be placed in a special module where he would be

searched going in and coming out, to resolve the security problem. The court

noted defendant’s failure to make this request at the last hearing when

representatives from the jail were present. It declined to revisit the question of his

jail privileges. It also reminded defendant of its previous admonitions on the

disadvantages of self-representation, including the limitations that his custody

status would impose.

On January 22, defendant reported that all his materials had been returned,

and dropped his sanctions motion. Defendant then told the court: “Your Honor, I

would desire to give up my pro per status and have Mr. Rothman represent me.”

The court expressed some uncertainty over whether Rothman could properly do


so, because the last time defendant relinquished self-representation the master

calendar court had reappointed the public defender. However, the court ultimately

agreed to Rothman’s appointment, observing that the case needed to “move

faster.” It warned defendant that he could not keep alternating between self-

representation and appointed counsel. Defendant replied that he understood.

b. Faretta Claims




rights to due process and self-representation under

the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution were

violated when the trial court “compelled” him to relinquish his in propria persona

status by (1) permitting the jail authorities to confiscate his legal materials; (2)

permitting the prosecutor and defense counsel to withhold discovery; (3)

improperly overruling objections and restricting defendant’s questioning at the

preliminary hearing; (4) denying him access to the law library, telephone,

witnesses, and special jail housing; (5) denying him the effective assistance of

advisory counsel; and (6) disparaging his decision to represent himself.

Because defendant never made this claim below, it is questionable whether

he may properly raise it now. (People v. Jenkins (2000) 22 Cal.4th 900, 999-

1000.) In any event, the claim is meritless. The record reflects no compelled

abandonment of self-representation. Defendant relinquished his right to self-

representation without prompting from the court, just after the jail authorities

returned his legal materials.

Defendant’s claims of incomplete discovery are groundless. He refers to

matters withheld by the prosecutor in advance of the preliminary hearing. At a

July 16, 1996 hearing held in defendant’s absence, the prosecutor explained that

she had not turned over witness names and addresses. She had also withheld tapes

and statements by Alexander and Rodriguez implicating defendant. Although they

were housed separately from defendant, she was concerned about retaliation by

other members of Shambulia’s organization. The court found good cause for

withholding this material, under Penal Code section 1057. Defendant does not


challenge the propriety of that finding. Defendant also complains of the delay in

obtaining discovery material from Artan after he withdrew. However, the court

consistently sought to make practical arrangements for the return of that material.3

Defendant refers in passing to evidentiary rulings at the preliminary

hearing. However, he offers no legal argument regarding these rulings. If any

were improper, he fails to explain how they might have affected his right to

represent himself.

After defendant lost his law library privileges because of his possession of a

weapon, the court ensured that he had advisory counsel and a legal runner. He

was granted access to witnesses, the services of an investigator,4 and a telephone.

Regarding his housing assignment, the court properly deferred to the jail

authorities on security matters, while providing alternate means for legal research

and investigation. These measures sufficiently protected his opportunity to

prepare a defense. (People v. Blair (2005) 36 Cal.4th 686, 733-734; People v.

Jenkins, supra, 22 Cal.4th at p. 1001.)

Defendant’s claim that he was deprived of Rothman’s effective assistance

as advisory counsel is based partly on the fact that Rothman did not have the

discovery materials during the two months between Artan’s withdrawal and

defendant’s abandonment of self-representation. We have discussed the discovery

situation above. In any event, defendant points to no impact on Rothman’s ability

3 Rothman offered two explanations for the delay. Artan had told Rothman

that he sent the discovery material to the prosecutor, but FedEx returned it because
they could not locate her. Rothman also told the court he believed Artan thought
some of the material was privileged. The court noted that the material could not
be given directly to defendant, without first allowing the prosecutor to delete the
names and addresses of certain witnesses. Defendant, while he was representing
himself, recognized that such redaction was proper. The prosecutor had agreed to
perform the necessary review once she received the material from Artan.


Defendant complains that there is no record of any bills showing an

investigator actually worked on his case. However, there is also no showing that
defendant directed an investigator to do anything. The record is clear that the
court was consistently willing to provide defendant with the services of an


to provide advice. Defendant also relies on Rothman’s January 8, 1998 comment

that he had prepared motions in the expectation that defendant would relinquish

his own representation, but was unable to present them because defendant wanted

to continue with Rothman as advisory counsel. This circumstance in no way

supports defendant’s claim that he was deprived of the effective assistance of

advisory counsel.

Defendant accuses the court of disparaging his right to represent himself.

However, several of the remarks defendant complains about were part of the

warnings required by Faretta. (Faretta, supra, 422 U.S. at p. 835; People v. Blair,

supra, 36 Cal.4th at p. 708.) The others, with one minor exception, were entirely

proper under the circumstances of this case. Defendant finds two admonitions

particularly objectionable. On January 8, 1998, when defendant complained about

the restriction of his library privileges, the court said: “Again, your status is kind

of a questionable one. It was made clear to you at the time [when the restrictions

were imposed] the limitations you would face as a pro per in the jail, and that’s

why I suggested and strongly do suggest that you accept appointed counsel to let

that counsel act for you. That’s the best way to do it.

“Even if you were a trained attorney, you’d be a fool to represent yourself

because you’re emotionally involved in the issues. And what you’ve got at your

side is an experienced attorney that can do an excellent job for you, but it is your

choice under the Constitution.”

These comments were appropriate. The court had a duty to remind

defendant of the “dangers and disadvantages of self-representation” (People v.

Blair, supra, 36 Cal.4th at p. 708), and it tailored that advice to defendant’s

current situation. The court expressly recognized defendant’s constitutional right

to conduct his own defense. Defendant inaccurately describes the court’s

comments as suggesting that his Faretta right could be revoked based on his

misconduct in jail. The court said nothing about revocation; it merely noted that

defendant’s status in jail entailed some practical limitations.


On January 22, 1998, after defendant relinquished his Faretta right and

accepted Rothman’s representation, the court stated: “I do need to advise Mr.

Lancaster that you cannot continue to change between representing yourself and

having appointed counsel represent you. The reason for it is that we’ve got to

move forward, and that doesn’t allow us to do that.

“I think it’s a very wise move on your part, as I said. Even if you were a

trained attorney, you still don’t have access to the same evidence that Mr.

Rothman would have . . . . But having originally had an attorney, gone pro per,

had an attorney, gone pro per, now you’re back to an attorney, I can’t let you

continue to change from one to the other. It has to be a permanent decision on

your part.

“Even if at some point you have some disagreement with what Mr.

Rothman is doing, you can’t just say now I’m back pro per. That’s a decision for

the court to make, and it probably would not be in your favor.”




comments as a “preemptive denial” of his

Faretta right, and fundamental error under People v. Dent (2003) 30 Cal.4th 213.

Under the circumstances, including the court’s protracted grappling with the

logistics of providing defendant with discovery materials and access to legal

resources, the court’s concern with his repeated alternation between self-

representation and the services of counsel was warranted. A defendant’s “prior

proclivity to substitute counsel” is a legitimate factor for the court to consider in

connection with an assertion of the right to self-representation. (People v. Roldan

(2005) 35 Cal.4th 646, 684; People v. Windham (1977) 19 Cal.3d 121, 128.) The

court’s reference to the need for a “permanent decision” was, however,

precipitous. Trial was not imminent, and a renewed and timely Faretta motion

would have been entitled to the court’s full consideration. (See People v. Dent,

supra, 30 Cal.4th at pp. 221-222.) Nevertheless, the court did not entirely

foreclose the possibility of defendant’s future self-representation; it told him it


would make a decision on any renewed application, though the request would

probably not be viewed with favor.


Dent, the court erred by unequivocally ruling out the possibility of self-

representation. (People v. Dent, supra, 30 Cal.4th at p. 219.) Nothing of the sort

occurred here. The court never denied a Faretta motion. Defendant exercised and

abandoned his Faretta right several times. He gave no indication his ultimate

decision to accept Rothman’s representation was influenced by anything the court

had said or done. The record amply demonstrates the difficulties posed by

defendant’s intermittent assumptions of his own defense. The court’s attempt to

discourage defendant from perpetuating those difficulties is understandable.

While the court should not have warned defendant that he needed to make “a

permanent decision” at that point, the impropriety was slight and caused neither

fundamental nor prejudicial error.

No authority cited by defendant supports his claim of interference with the

right of self-representation. The cases on which he relies involved either outright

denial of the right (People v. Dent, supra, 30 Cal.4th at p. 219; Bribiesca v.

Galaza (9th Cir. 2000) 215 F.3d 1015, 1019), or improper restriction on a

defendant’s ability to present his own defense (Milton v. Morris (9th Cir. 1985)
767 F.2d 1443, 1446). Defendant suffered neither of these deprivations.

c. Failure to Appoint Artan as Defense Counsel




by refusing to appoint Artan, the trial court abused

its discretion and deprived him of due process and the right to counsel. However,

defendant never properly requested Artan’s appointment. When the question

arose on August 9, 1996, the court explained that Penal Code section 987.2

required the initial appointment of the public defender. Only if the public

defender found a conflict could the court consider appointing other counsel. Artan

told the court he would inquire further and make a motion providing the court with

“some of the factors that would support my appointment on the case.” The court


was skeptical but said it would allow Artan to file a motion for his appointment

under Harris v. Superior Court (1977) 19 Cal.3d 786 (Harris).5

Defendant decided to proceed in propria persona. Artan never filed a

Harris motion; instead, he appeared on November 26, 1996, and agreed to

represent defendant pro bono. Under these circumstances, defendant cannot now

claim error. He does not challenge the court’s ruling that it was statutorily

required to appoint the public defender and wait for a conflict check before

considering the appointment of alternate counsel.6 He notes that the court

ultimately failed to comply with that requirement, appointing Rothman without

any intervening participation by the public defender. However, the fact remains

that defendant never objected to the court’s view of the statutory scheme, and

agreed to continue representing himself while Artan explored the possibility of a

Harris appointment. That avenue, abandoned below, cannot be reopened on


d. Refusal to Appoint Cocounsel

Defendant claims the trial court erroneously denied his motion for the

appointment of counsel to assist Artan, violating his rights under the Fifth, Sixth,

and Fourteenth Amendments to the federal Constitution and article I, section 15 of

the California Constitution.

A decision denying the appointment of second counsel under Penal Code

section 987 is reviewed for abuse of discretion. “The abuse of discretion standard

5 In Harris, this court held that a trial court’s discretion in appointing

counsel for an indigent defendant when the public defender declares a conflict is
not constrained by the defendant’s preference for a particular attorney. (Harris,
supra, 19 Cal.3d at p. 799, reaffirming the rule of Drumgo v. Superior Court
(1973) 8 Cal.3d 930, 934-935.) Under the specific and unusual facts presented,
however, the Harris court concluded that the trial court abused its discretion in
declining to appoint the counsel requested by the defendants. (Harris, supra, at
pp. 795-799.)

6 This court has not yet decided whether Harris permits the appointment of

private counsel when the public defender is available to represent the defendant.
(See People v. Cole (2005) 33 Cal.4th 1158, 1186.)


is used in many other contexts and reflects the trial court’s superior ability to

consider and weigh the myriad factors that are relevant to the decision at hand. A

trial court will not be found to have abused its discretion unless it ‘exercised its

discretion in an arbitrary, capricious, or patently absurd manner that results in a

manifest miscarriage of justice.’ ” (People v. Roldan, supra, 35 Cal.4th at p. 688.)

The right of a capital defendant to the resources necessary for a full defense must

be carefully considered, and the demands of pretrial preparation in a complex case

weigh in favor of appointing an additional attorney. (Keenan v. Superior Court,

supra, 31 Cal.3d at pp. 430-432.) Nevertheless, it is the defendant’s burden to

make a specific showing of necessity. (People v. Roldan, supra, 35 Cal.4th at p.

687.) “The appointment of a second counsel in a capital case is not an absolute

right protected by either the state or the federal Constitution. [Citations.]”

(People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22; accord, People v. Williams

(2006) 40 Cal.4th 287, 300.)

No abuse of discretion appears here. Citing People v. Jackson (1980) 28

Cal.3d 264 (Jackson; disapproved on another ground in People v. Cromer (2001)

24 Cal.4th 889, 901, fn. 3), defendant argues that Artan’s inexperience was a

compelling reason to appoint cocounsel. The defendant in Jackson relied on

Pierce v. United States (D.C.App. 1979) 402 A.2d 1237, to support his claim that

the court abused its discretion by summarily denying his request for second

counsel. In Pierce, the trial court erred by not inquiring into the reasons for

counsel’s inability to handle the defense alone. The Jackson court distinguished

Pierce because there counsel had admitted his lack of prior experience might

necessitate additional legal assistance. (Jackson, supra, 28 Cal.3d at p. 287; see

Pierce v. United States, supra, 402 A.2d at p. 1245.) No such admission was

made in Jackson, and the trial court had extensive opportunity to evaluate

counsel’s ability before it ruled on the motion for additional counsel. (Jackson,

supra, 28 Cal.3d at pp. 282, 287-288.)


Jackson was concerned with the scope of the trial court’s inquiry into the

need for additional counsel. In both Jackson and Pierce, the counsel seeking

assistance was himself appointed by the court. (Jackson, supra, 28 Cal.3d at p.

282; Pierce v. United States, supra, 402 A.2d at pp. 1242-1243.) Thus, Jackson

does not stand for the proposition that inexperience on the part of retained counsel

justifies the appointment of cocounsel. In any event, it was not only Artan’s

inexperience that created difficulties in his pretrial preparation, but also the fact

that he had four other cases set for trial before defendant’s expected trial date.

Under these circumstances, the court was justified in concluding it would be better

to replace Artan, rather than appoint a second attorney.7




case was especially complex, in both the guilt and

penalty phases. He points out that Artan’s requests for an investigator, a

fingerprint expert, and a psychologist had been granted, and that the credibility of

two accomplice witnesses required investigation. He notes a prosecutor’s

comment that it was “quite a complicated case.” He observes that the evidence of

aggravating and mitigating factors involved crimes committed in Maryland, and

raised questions about his psychiatric condition. However, a review of the entire

record fully supports the trial court’s conclusion that this was not an especially

complex case. The prosecutor who said the case “seems to be quite . . .

complicated” was merely standing in for the prosecutor who was handling the

case, at an early stage of the proceedings when Alexander and Rodriguez were still

joined as defendants.

Defendant also asserts his request should have been granted because the

appointment of second counsel would not have resulted in any unusual strain on

7 The Pierce court held that if, after a proper inquiry, the court decides

existing counsel is unable to conduct an adequate defense, it may provide relief by
appointing either cocounsel or substitute counsel. (Pierce v. United States, supra,
402 A.2d at p. 1245.)


public resources, given that Artan was representing him pro bono.8 The argument

fails. Artan’s pro bono status did not compensate for his lack of experience and

his inability to prepare for trial because of conflicting obligations. The court was

not required to ensure that defendant was represented by the counsel he preferred.

It was required to take steps to provide him with an effective advocate, at public

expense if necessary. (People v. Cole, supra, 33 Cal.4th at p. 1184.) Artan’s own

representations to the court raised considerable doubt that he could be an effective

advocate. It was well within the court’s discretion to conclude that the

appointment of second counsel was not an appropriate solution.

Defendant claims the court’s decision amounted to a de facto removal of

retained counsel. It was, however, Artan’s decision to take other cases that

prevented him from preparing adequately for defendant’s trial, and it was Artan’s

own determination that it would be impossible for him to represent defendant

without assistance. The trial court cannot be faulted for these circumstances.

2. Jury Selection

a. Batson/Wheeler Claims

During jury selection, defense counsel objected to the prosecutor’s

“apparent systematic exclusion of black female jurors.” The objection was made

under People v. Wheeler (1978) 33 Cal.3d 258 (Wheeler), but on appeal defendant

also asserts error under the federal standard announced in Batson v. Kentucky

(1986) 476 U.S. 79 (Batson). An objection under Wheeler suffices to preserve a

8 Defendant makes a cursory suggestion that equal protection principles

entitle all indigent capital defendants to one attorney appointed at public expense,
and that it was discriminatory for the trial court to deny him this benefit as an
addition to Artan’s services. This claim is not sustainable. Defendant was seeking
an extraordinary accommodation, not equal treatment. The demands of equal
protection are satisfied by granting the trial court discretion to determine whether
it is appropriate under the particular circumstances to appoint additional counsel at
public expense. (Jackson, supra, 28 Cal.3d at pp. 286-287; see also Keenan v.
Superior Court
, supra, 31 Cal.3d at p. 429.)


Batson claim on appeal. (People v. Gray (2005) 37 Cal.4th 168, 184, fn. 2; People

v. Cornwell (2005) 37 Cal.4th 50, 66, fn. 3.)

Defense counsel ultimately specified three African-American prospective

jurors he suspected were peremptorily challenged for discriminatory reasons,

though at first he mentioned only two, Prospective Jurors T3147 and C1752.

Both, he argued, appeared to be bright, articulate women who had expressed

equivocal views on both penalty and guilt issues, making them “exactly the type of

jurors we’re looking for.” He asked the court to explore the prosecutor’s reasons

for excluding them. Presumably, counsel’s grounds for objection as to the third

prospective juror, W3441, were the same, because he told the court he had no

additional arguments when her exclusion was discussed.

The court noted that each of these prospective jurors had attitudes or family

experiences making them “distinctive,” and that four African-American women

remained in the jury box. Accordingly, the court ruled that defendant had failed to

make a prima facie case of discrimination.9

Both the California and United States Constitutions are violated by the

exercise of peremptory challenges based on group bias, instead of reasons specific

to the challenged prospective juror. (People v. Cornwell, supra, 37 Cal.4th at p.

66.) The procedure governing objections on this ground is settled: “First, the

defendant must make out a prima facie case by ‘showing that the totality of the

relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.]

Second, once the defendant has made out a prima facie case, the ‘burden shifts to

the State to explain adequately the racial exclusion’ by offering permissible race-

neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral

9 At oral argument, defendant’s appellate counsel asserted that six jurors,

including another African-American woman and two African-American men,
were improperly challenged by the prosecutor. Defendant forfeited any claim of
error as to these additional jurors by failing to object at trial. The trial court had
no occasion to consider whether they were dismissed for a discriminatory purpose.
(People v. Morrison (2004) 34 Cal.4th 698, 709-710.)


explanation is tendered, the trial court must then decide . . . whether the opponent

of the strike has proved purposeful racial discrimination.’ [Citation.]” (Johnson v.

California (2005) 545 U.S. 162, 168, fn. omitted (Johnson); People v. Cornwell,

supra, 37 Cal.4th at pp. 66-67.)

A defendant establishes a prima facie case of discrimination “by producing

evidence sufficient to permit the trial judge to draw an inference that

discrimination has occurred.” (Johnson, supra, 545 U.S. at p. 170.) An inference

is a logical conclusion based on a set of facts. (Id. at p. 168, fn. 4.) When the trial

court concludes that a defendant has failed to make a prima facie case, we review

the voir dire of the challenged jurors to determine whether the totality of the

relevant facts supports an inference of discrimination. (Johnson, supra, 545 U.S.

at p. 168; People v. Gray, supra, 37 Cal.4th at p. 186.)

Here, the record supports the trial court’s finding. Before reviewing the

record of voir dire, we address two preliminary claims raised by defendant. First,

he contends the court applied an erroneous standard to the prima facie

determination. Defendant bases this argument on the following caution the trial

court gave to defense counsel: “[I]t’s got to be not simply that you don’t see the

reasons but that they are much like other jurors that have been left on the panel

that are of different races, and so that the only conclusion that could be drawn or

logical conclusion to draw is that they were excused because of their race and


Defendant claims the “only logical conclusion” standard is more onerous

than the “strong likelihood” standard in effect at the time of his trial in 1998. (See,

e.g., Wheeler, supra, 22 Cal.3d at p. 280; People v. Box (2000) 23 Cal.4th 1153,

1188, and fn. 7.) Moreover, he notes that the “strong likelihood” standard itself,

which we later explained meant only that “the objector must show that it is more

likely than not the other party’s peremptory challenges, if unexplained, were based

on impermissible group bias” (People v. Johnson (2003) 30 Cal.4th 1302, 1318),

has been deemed “an inappropriate yardstick by which to measure the sufficiency


of a prima facie case” by the United States Supreme Court. (Johnson, supra, 545

U.S. at p. 168.) As noted, a defendant need only make a showing sufficient to

support an inference of discrimination. (Id. at p. 170.)

In this case the trial court apparently realized it had overstated the

requirement, because it quickly restated the standard as “[a] logical conclusion to

draw is that they were excused because of their race and gender.” That alternate

phrasing is fully consistent with Johnson. In any event, as in other post-Johnson

cases, we are able to review the record to resolve the legal question whether

defendant’s showing supported an inference that the prosecutor excused a

prospective juror for an improper reason. (People v. Avila (2006) 38 Cal.4th 491,

554; People v. Guerra (2006) 37 Cal.4th 1067, 1101; People v. Gray, supra, 37

Cal.4th at p. 187; People v. Cornwell, supra, 37 Cal.4th at p. 73.)

Defendant also contends the trial court was required to seek reasons from

the prosecutor for the peremptory challenges at issue, rather than offering its own

explanations. He cites Johnson for the proposition that the trial judge should

“have the benefit of all relevant circumstances, including the prosecutor’s

explanation, before deciding whether it was more likely than not that the challenge

was improperly motivated.” (Johnson, supra, 545 U.S. at p. 170.) He also quotes

Johnson as follows: “The Batson framework is designed to produce actual

answers to suspicions and inferences that discrimination may have infected the

jury selection process. [Citation.] The inherent uncertainty present in inquiries of

discriminatory purpose counsels against engaging in needless and imperfect

speculation when a direct answer can be obtained by asking a simple question.”

(Johnson, supra, 545 U.S. at p. 172.)

Defendant’s reliance on these passages is misplaced. The high court was

discussing the considerations applicable at the third step of the Batson inquiry,

after a prima facie case has been established. “ ‘It is not until the third step that

the persuasiveness of the justification becomes relevant — the step in which the

trial court determines whether the opponent of the strike has carried his burden of


proving purposeful discrimination.’ ” (Johnson, supra, 545 U.S. at p. 171, quoting

Purkett v. Elem (1995) 514 U.S. 765, 767, italics in Purkett.) As we explained in

People v. Cornwell, “[o]nce the trial court concludes that the defendant has

produced evidence raising an inference of discrimination, the court should not

speculate as to the prosecutor’s reasons — it should inquire of the prosecutor, as

the high court directed. But there still is a first step to be taken by the defendant,

namely producing evidence from which the trial court may infer ‘that

discrimination has occurred.’ ” (People v. Cornwell, supra, 37 Cal.4th at pp. 73-

74, quoting Johnson, supra, 545 U.S. at p. 170.)

Here, defendant’s showing was meager. This is not a case like Johnson,

where a “suspicious” appearance was created by the prosecutor’s removal of all

prospective jurors in a cognizable group. (Johnson, supra, 545 U.S. at p. 173;

People v. Johnson, supra, 30 Cal.4th at p. 1326.) Defendant concedes that three of

the four African-American women who remained on the panel at the time of his

Wheeler motion ultimately served on the jury.10 However, he argues it was

inappropriate for the trial court to rely on the presence of those four prospective

jurors, because the prosecutor had not yet accepted them. To the contrary, the

court properly noted that the percentage of African-American women challenged

by the prosecutor had not reached a level that suggested an inference of

discrimination, a point that was conceded by defense counsel below. (See People

v. Avila, supra, 38 Cal.4th at p. 556; People v. Gray, supra, 37 Cal.4th at pp. 187-

188; People v. Cornwell, supra, 37 Cal.4th at pp. 69-70.)

Counsel premised the Wheeler motion only on the ground that the

challenged prospective jurors seemed to be intelligent and had expressed

equivocal views on issues relevant to both the guilt and penalty phases. Certainly

these qualities were attractive to defense counsel, but by themselves they hardly

10 Defendant also acknowledges that the seated jury was quite diverse,

consisting of the three African-American women, three Caucasian men, three
Caucasian women, two Hispanic men, and one Hispanic woman. The four
alternates were a Hispanic man and woman, and a Caucasian man and woman.


suggest the prosecutor was exercising her peremptory challenges based on race

and gender. A tendency toward equivocation is seldom the first quality sought in

a prospective juror by the party bearing the burden of proof. Moreover, the views

or family experiences disclosed by these women were more than sufficient to

overcome any inference of improper discrimination.

Prospective Juror T3147’s brother was convicted of robbery in 1996. She

believed the police did not do a thorough investigation. She maintained that police

officers had “coached” a witness to identify him. The court noted this was a “very

distinctive feature” showing “clear bias.” Defendant observes that this prospective

juror said she would not hold her brother’s experience against any officer who

might testify, that a cousin of hers was a Los Angeles police officer, and that other

relatives had been crime victims. Defendant also points out that she personally

had had a positive experience with a police officer. Nevertheless, under these

circumstances, no inference of discrimination arises from the removal of a

prospective juror whose brother had a recent negative experience with the criminal

justice system.

Prospective Juror W3441’s husband was convicted of robbery in 1994. She

felt the public defender had not presented the proper evidence. She said she was

strongly opposed to the death penalty, and thought it was imposed too often.

While she said she would not always vote against the death penalty for a defendant

found guilty of intentional first degree murder with a special circumstance, she

also answered “no” when asked if she could impose the death penalty in a case

involving the charges against defendant. She said she could see herself rejecting

the death penalty in favor of life imprisonment without the possibility of parole,

but could not see herself choosing the death penalty instead of life imprisonment

without the possibility of parole.

The trial court referred primarily to this prospective juror’s attitude toward

capital punishment, but also mentioned her husband’s conviction and experience

with the public defender. Defendant notes that Prospective Juror W3441


equivocated when questioned by the court, saying it would be possible for her to

change her mind about the death penalty, depending on the circumstances. She

also said her concern about her husband’s legal representation would not affect her

consideration of this case. Defendant points out that this prospective juror had

relatives working in law enforcement, and previous jury experience. However,

under all the relevant facts, including the prospective juror’s strongly stated

antipathy to the death penalty and her husband’s conviction four years earlier, no

inference of discrimination can be drawn from the record.

Prospective Juror C1752’s nephew was serving life sentence without the

possibility of parole for a murder committed in Los Angeles County. Another

nephew and a stepson had been imprisoned for drug offenses. The trial court

questioned her about the nephew in prison for murder. The prospective juror had

mistakenly identified him as a murder victim on her questionnaire.11 She knew

about his case only from speaking with relatives. She understood that her nephew

was found with the victim’s credit card, and that other people were involved in the

crime. She knew nothing about the prosecution and said it would not affect her

judgment. Addressing defendant’s Wheeler claim, the court said that the

nephew’s conviction for a robbery-murder in the county made Prospective Juror

C1752 “distinctive from the rest of the group.”12 Again, on this record no

11 Prospective Juror C1752 made other mistakes on her questionnaire in

response to questions about the penalty for murder. The court clarified her
answers during voir dire.

12 In his reply brief, defendant disputes the trial court’s observation that the

nephew’s conviction made this prospective juror “distinctive.” He claims that a
seated juror also had a close relative who was convicted of a crime, and another
juror who served had a nephew who was accused of robbery. Defendant does not,
however, identify these jurors or provide record cites to support his claims. Nor
are either of the circumstances alleged by defendant analogous to the situation of a
prospective juror for a murder trial with a relative who was convicted of murder in
the same county.

This court has refrained from deciding whether comparative juror analysis

is appropriate for the first time on appeal. (See People v. Williams, supra, 40
Cal.4th at p. 312; People v. Avila, supra, 38 Cal.4th at p. 546.) Defendant’s


inference of group bias appears from the prosecutor’s decision to challenge a

prospective juror whose family members were serving or had served prison terms.

Defendant fell far short of “showing that the totality of the relevant facts

[gave] rise to an inference of discriminatory purpose.” (Batson, supra, 476 U.S. at

p. 94; see also Johnson, supra, 545 U.S. at p. 168; People v. Cornwell, supra, 37

Cal.4th at p. 66.) The trial court correctly determined that he failed to make a

prima facie showing of a Batson/Wheeler violation.

b. Challenges for Cause




court erroneously excused two prospective jurors

for cause because of their concerns about the death penalty. Under the applicable

state and federal constitutional provisions, prospective jurors may be excused for

cause if their views would prevent or substantially impair the performance of their

duties. (Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Griffin (2004) 33

Cal.4th 536, 558.)

“ ‘Assessing the qualifications of jurors challenged for cause is a matter

falling within the broad discretion of the trial court. [Citation.] The trial court

must determine whether the prospective juror will be “unable to faithfully and

impartially apply the law in the case.” [Citation.] A juror will often give

conflicting or confusing answers regarding his or her impartiality or capacity to

serve, and the trial court must weigh the juror’s responses in deciding whether to

remove the juror for cause. The trial court’s resolution of these factual matters is

binding on the appellate court if supported by substantial evidence. [Citation.]’ ”

(People v. Boyette (2002) 29 Cal.4th 381, 416; accord, People v. Moon (2005) 37

Cal.4th 1, 14.)

Substantial evidence supports the trial court’s findings in this case. Both

the prospective jurors in question gave equivocal and conflicting responses to

questions about capital punishment.

belatedly and insufficiently briefed claim does not require us to consider that
question here.


Prospective Juror G3442 stated on his questionnaire that he was “strongly

against” the death penalty. Asked for his general feelings on the subject, he wrote

“I think it is wrong.” He said he would always vote against the death penalty at

one point, but later wavered, writing on two occasions that “I never say never, but

probably not.” He noted that he might agree to the death penalty if a friend of his

were killed.

When questioned by the court, Prospective Juror G3442 said he was “not a

big fan” of the death penalty. He first told the court he thought he could impose

the death penalty as a “realistic, practical possibility,” but then said he was not

sure and “wouldn’t want to say I definitively could,” concluding that it was

“probably not possible.” However, under questioning by defense counsel he

conceded he would have to follow the law even if he did not like it. When asked

if he could follow the court’s instructions on the death penalty, he said “I believe

so.” Pressed for an unequivocal answer, he said he would be able to follow the

law, adding that he was “unequivocal about that.” Counsel then asked if he would

be able to impose the death penalty. He replied, “yes, I think I might be.”

Counsel sought a firmer answer, saying “when you say yes, you think,” and the

juror responded “yes, yes.” Prospective Juror G3442 confirmed his strong

opposition to the death penalty when questioned by the prosecutor, but said it was

“possible” he could vote for death, adding, “realistic and practical standard, don’t

know if I could hold myself up to that, but it’s possible.” The prosecutor asked

about his questionnaire response that he would always vote against the death

penalty. He replied, “perhaps I’ve changed my mind since then.”

Prospective Juror M6949 stated on his questionnaire that he was

“moderately against” the death penalty, and would prefer life in prison without the

possibility of parole. He was “not sure” if he would always vote against the death

penalty, either in general or in light of the charges against defendant. He said he

could see himself rejecting the death penalty and choosing a life term, but could


not see himself rejecting a life term in favor of the death penalty. However, he

also indicated that the determination “depends on the circumstances.”

Prospective juror M6949 told the court he had “mixed emotions” about

capital punishment. Asked to explain, he said he did not know how he would

react when the time came to make a decision. The court asked if imposing death

would be “a realistic, practical possibility or only a very remote possibility that

isn’t very real.” The prospective juror replied “it’s a remote possibility.” He told

defense counsel he did not believe in the death penalty as a general principle,

explaining this was “just a personal feeling.” Asked about his statement that it

“depends on the circumstances,” he said, “since then, I’ve been thinking about it,”

and “I just have difficulty with it. That’s all.” Asked if he could follow the

instructions and impose the death penalty based on the evidence, he said “I guess I

could do it.”

Defendant contends the responses of these prospective jurors showed only

that they might have a higher than average threshold for imposing the death

penalty, not that their ability to properly deliberate would be substantially

impaired. He argues that reversal of the penalty judgment is required under

People v. Stewart (2004) 33 Cal.4th 425, 446-447, and People v. Heard (2003) 31

Cal.4th 946, 964-966. However, unlike the prospective jurors in those cases,

Prospective Jurors G3442 and M6949 gave answers during voir dire indicating

there was only a slim possibility they could vote for the death penalty, regardless

of the state of the evidence. While they also made more equivocal statements, we

will not interfere with the trial court’s resolution of the conflicts. “[W]e pay due

deference to the trial court, which was in a position to actually observe and listen

to the prospective jurors. Voir dire sometimes fails to elicit an unmistakably clear

answer from the juror, and there will be times when ‘the trial judge is left with the

definite impression that a prospective juror would be unable to faithfully and

impartially apply the law. . . . [T]his is why deference must be paid to the trial

judge who sees and hears the juror.’ ” (People v. Cain (1995) 10 Cal.4th 1, 60;


accord, People v. Harris (2005) 37 Cal.4th 310, 331; People v. Griffin, supra, 33

Cal.4th at p. 559.)


Guilt Phase Issues

1. Alexander’s Testimony About Defendant’s Violent Past

Defense counsel cross-examined Shawn Alexander briefly about the terms

of his plea agreement, and at length about his knowledge of defendant’s intentions

and his willingness to participate in the course of events. Alexander admitted that

when he saw defendant emerge from Taylor’s house with a gun, he knew

something other than loading stereo equipment into the car was involved.

Alexander said he had considered leaving but was “too afraid,” “because he had a

gun, and I didn’t want to take no chances.”

Alexander also acknowledged that he knew “something ugly was going to

take place” when he saw defendant take a rope, tape, and a bottle of chemicals

from the trunk of the car. He conceded he had done nothing to stop what was

about to happen. Counsel suggested that he did not intervene because he had

expected to be paid, which Alexander denied. Alexander agreed, however, that he

could have walked away from the scene of the murder.

On redirect examination, the prosecutor established that Alexander had not

walked away from the scene because he was afraid of defendant. Alexander

referred again to the gun, and said he didn’t want to “take no chance on leaving.”

The prosecutor asked if defendant had said anything to make Alexander believe

defendant would use the gun on him. Alexander said defendant had threatened to

kill him if he said anything about the murder. The prosecutor asked if Alexander

regretted not walking away. Alexander said no; he explained at first that he had

felt his life was in danger, but then said that was not really the case, and that he

simply “didn’t want to take any chances on leaving because of Mr. Lancaster.”

On recross examination, defense counsel established that defendant did not

threaten to kill Alexander until after the shooting, and pressed him about why he

had not left the scene earlier. Alexander repeated that he was afraid because


defendant had the gun. The prosecutor in turn asked Alexander if defendant had

seemed angry or upset on the way to the scene. Alexander said no. The

prosecutor inquired whether Alexander “had any knowledge at that time that the

defendant had been violent in his past?” Alexander said yes, defendant had told

him that “when he was 14, he had just got out of jail from murdering a cop.”

Asked if that had been a factor in his fear of defendant at the crime scene,

Alexander said no, he did not have that in mind. He was fearful because

defendant had a gun.

Defense counsel did not object to this line of questioning. Rather, he

challenged whether Alexander really believed defendant had shot a policeman.

Counsel asked Alexander if he thought someone who did that would be released

from jail. Alexander said no. Counsel observed that defendant must have been

lying, but Alexander explained that defendant had been a juvenile at the time, and

may have been released on that basis.

Defendant contends the prosecutor committed misconduct by eliciting the

“inflammatory” testimony regarding defendant’s murder of a police officer. He

also claims his attorney’s failure to object amounted to ineffective assistance of

counsel, and the trial court’s failure to intervene on its own motion violated his

right to a fair trial. These arguments are meritless. Defendant’s failure to object

forfeited any claim of prosecutorial misconduct or error by the trial court. (People

v. Cornwell, supra, 37 Cal.4th at p. 96; People v. Young (2005) 34 Cal.4th 1149,

1187.) Nor can defense counsel be faulted for failing to object, a tactical decision

that rarely establishes ineffective assistance. (People v. Chatman (2005) 38

Cal.4th 344, 384.)

Certainly it was a reasonable tactic for counsel to attack Alexander’s

credibility by showing he was a willing participant in the crime, and to discredit

his claims that he was afraid of defendant. The prosecutor was entitled to try to

rehabilitate her witness by establishing the grounds for his professed fear. (People

v. Cleveland (2004) 32 Cal.4th 704, 745-746.) Thus, any objection by defense


counsel was quite likely to have been overruled. Instead, counsel made another

reasonable tactical decision to use Alexander’s answer to further challenge his

believability. The notion that a juvenile would be released at age 14 after killing a

police officer is certainly questionable. By making this point, counsel not only

attacked Alexander’s credibility, but also cast doubt on the accuracy of the claim

itself. Defendant falls far short of overcoming the strong presumption that

counsel’s strategy fell within “the wide range of reasonable professional

assistance.” (Strickland v. Washington (1984) 466 U.S. 688, 689.)

2. Marston’s Testimony About the Threat to Taylor

As Robert Marston began his testimony, defense counsel asked for a

sidebar conference. He anticipated that Marston would relate defendant’s

statement to Taylor that things would “get rough” if Shambulia’s group did not get

the radio equipment. Counsel argued that this testimony was double hearsay. The

prosecutor contended the threat was relevant to show Taylor’s state of mind when

he left his home with defendant. Defense counsel responded that the threat was

actually directed at Marston, so its tendency to prove Taylor’s state of mind was

speculative. The court noted that Taylor and Marston were working together to set

up the radio station, and overruled the objection. Marston testified that when he

spoke with Taylor the day before the murder, Taylor reported that defendant had

“told me to tell you that if he — if they don’t get this equipment, things are going

to get rough.”

This testimony was clearly relevant to establish that Taylor was taken

against his will, an element of the kidnapping offense. (People v. Hill (2000) 23

Cal.4th 853, 856; People v. Kozlowski (2002) 96 Cal.App.4th 853, 864.)

However, defendant claims it was inadmissible under People v. Lew (1968) 68

Cal.2d 774. The Lew court held that testimony about the defendant’s threats was

relevant to explain the murder victim’s conduct, but was nevertheless improperly

admitted, partly because it was not sufficiently “trustworthy and credible.” (Id. at

p. 780; see also Evid. Code, § 1252.) Defendant argues that the threat here was


vague, Marston was a witness interested in the conviction of his friend’s killer,

and there was no corroboration that the phone call between Marston and Taylor

had occurred or that Marston had accurately related the threat. These claims are

manifestly inadequate. Counsel did not raise the question of corroboration below,

no doubt because he knew Tyrone Floyd would testify that Taylor also told him

about the threat. Floyd’s testimony was more than sufficient to establish the

trustworthiness of Marston’s version of the event.

In his reply brief, defendant expands his argument to include Floyd’s

testimony as well, contending the adverse ruling on his objection to Marston’s

testimony justified counsel’s failure to object when Floyd mentioned the threat

made by defendant. Defendant asserts that because Taylor himself was not

threatened, the threat was irrelevant to the forcible asportation element of

kidnapping. These contentions are as meritless as they are belated. Floyd did not

testify that the threat was meant for Marston, and his account of Taylor’s behavior

the next day clearly established Taylor’s fearful reaction.13 In any event, as the

trial court pointed out and as defendant concedes, Marston and Taylor were

working closely together. Defendant’s statement was reasonably understood as an

attempt to intimidate both of them.




testimony was unduly prejudicial. Trial courts

have broad discretion to weigh the prejudicial impact of testimony against its

probative value. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Defendant

fails to show any abuse of discretion. The testimony about the threat was highly

relevant to show the deteriorating relationship between Taylor’s and Shambulia’s

groups, and to refute the theory that Taylor may have voluntarily accompanied

defendant the night he was killed.

13 Floyd said Taylor told him that “he received a phone call from Hodari

[i.e., defendant] and that Hodari stated that if he didn’t get the microwave
transmitter back, that it would get nasty.” Floyd described Taylor as “very
nervous” when he relayed the threat, and also the next day when they attended a
party together.


Finally, defendant argues that his hearsay objection put Taylor’s

trustworthiness in question. Defendant speculates at length about the relations

between Taylor, Marston, and Floyd to suggest that Taylor had a motive to convey

the threat in slightly different terms to these two witnesses. This claim is

unsustainable. Two witnesses described essentially the same threat in the same

time-frame. The testimony was relevant to explain Taylor’s conduct and was

properly admitted.

3. Asserted Griffin Error

During closing argument, the prosecutor reminded the jury about the Liquid

Plumr bottle found at the scene, and observed: “It was new, it still had liquid in it,

and had the defendant’s prints all over it. There’s been no explanation offered as

to how they possibly could have been there.” Defendant claims this was an

improper comment on his failure to testify under Griffin v. California (1965) 380

U.S. 609.

Defendant failed to object or seek an admonition below; thus this claim of

error was not preserved. (People v. Turner (2004) 34 Cal.4th 406, 420.)14 In any

event, the prosecutor’s statement was a fair comment on the state of the evidence,

rather than a comment on defendant’s failure to personally provide an alternative

explanation. (Turner, at p. 419; see also People v. Carter (2005) 36 Cal.4th 1215,

1266, citing cases; People v. Hughes (2002) 27 Cal.4th 287, 372-374.)


Defendant suggests there was no waiver because an objection would

merely have drawn further attention to his failure to testify. No authority supports
this notion. Defendant cites People v. Murtishaw (1981) 29 Cal.3d 733, 758-759,
disapproved on another ground in People v. Boyd (1985) 38 Cal.3d 762, 773. In
Murtishaw, however, we held that counsel’s failure to object to the first instance
of claimed Griffin error barred the defendant from raising the issue on appeal. We
noted that objection to repeated improper references might be excused, but that
there was no reason to believe an initial curative instruction would not have put an
end to the prosecutor’s comments. Here, defendant does not complain about
repeated references.


4. The CALJIC No. 2.11.5 Instruction

At the prosecutor’s request, the court gave the jury a modified version of

CALJIC No. 2.11.5, as follows:

“There has been evidence in this case indicating that a person other than the

defendant, Shawn Alexander and Jornay Rodriguez, was or may have been

involved in the crime for which the defendant is on trial. There may be many

reasons why that person is not here on trial. Therefore do not discuss or give any

consideration as to why the other person is not being prosecuted in this trial or

whether he or she has been or will be prosecuted. Your duty is to decide whether

the People have proved the guilt of the defendant on trial.”

Defendant acknowledges this instruction was intended to apply to Mzee

Shambulia, and claims no error in that regard. He asserts, however, that the jurors

may have improperly inferred that they should not consider or discuss why

Alexander and Rodriguez were not being prosecuted. Defendant contends the

instruction should have affirmatively informed the jurors that they were obligated

to consider the fact that Alexander and Rodriguez were not being tried along with

him, and to “consider the implications of prosecutorial leniency.”

Defendant sought no such modification below. Even if the assignment of

error was not waived (see People v. Sully (1991) 53 Cal.3d 1195, 1218), his

argument fails on the merits. Alexander and Rodriguez were specifically and

properly excepted from the scope of the instruction. (See, e.g., People v. Williams

(1997) 16 Cal.4th 153, 226-227.) Moreover, the jury was instructed on witness

credibility and accomplice testimony, which properly informed its consideration of

their testimony. (People v. Cornwell, supra, 37 Cal.4th at p. 88.) Defendant cites

no authority for the proposition that the trial court should have, on its own motion,

directed the jury to deliberate about the implications of Alexander’s and

Rodriguez’s guilty pleas.


5. Failure to Instruct on Second Degree Murder

Over defense counsel’s objection, the trial court declined to instruct the jury

on second degree murder. The court found no evidence to support the theory that

Taylor left his home voluntarily, so it concluded his killing was necessarily a first

degree murder committed during a kidnapping (Pen. Code, § 189).

Defendant contends there was substantial evidence from which the jury

could have found that Taylor had agreed to go with defendant to discuss the

transmitter dispute, and defendant only later decided to kill him on a sudden

impulse. This is a tenuous argument, but we need not resolve it on the merits. It

is well established that “[e]rror in failing to instruct the jury on a lesser included

offense is harmless when the jury necessarily decides the factual questions posed

by the omitted instructions adversely to defendant under other properly given

instructions.” (People v. Lewis (2001) 25 Cal.4th 610, 646; accord, People v.

Horning (2004) 34 Cal.4th 871, 906; see also, e.g., People v. Earp (1999) 20

Cal.4th 826, 885-886.)

Here, the jury returned a true finding on the kidnapping-murder special

circumstance (Pen. Code, § 190.2, subd. (a)(17)(B)), and therefore necessarily

rejected the factual theory on which defendant’s argument for a second degree

murder instruction rests. Defendant argues that the jury’s finding was not

conclusive on this point, because it was reached in the absence of alternative

possible verdicts. However, as in People v. Horning, “[i]f the jury had had any

doubt that this was a felony murder, it did not have to acquit but could have

simply convicted defendant of first degree murder without special circumstances.”

(People v. Horning, supra, 34 Cal.4th at p. 906.)

6. Amendment of the Information

Count One of the information originally charged defendant with murder

during “the commission of the crime of Kidnapping, and/or Kidnapping for

Ransom, within the meaning of Penal Code section 190.2(a)(17).” Count One also

included the special circumstance allegation that the murder was done for financial


gain. (Pen. Code, § 190.2, subd. (a)(1).) Count Two charged defendant with “the

crime of KIDNAPPING FOR RANSOM, in violation of PENAL CODE

SECTION 209(a),” and alleged that he and his accomplices seized and detained

Taylor “for ransom, reward, extortion, and to exact from relatives and friends of

said MICHAEL TAYLOR money.”

During a discussion on jury instructions, the trial court raised the issue of

whether the kidnapping could be said to have been for the purpose of ransom. The

prosecutor suggested instructing the jury in terms of intent “to extract from

another any money or a valuable thing.” Defense counsel argued that defendant

had only sought information from Taylor. The court agreed with the prosecutor

that information could be a “valuable thing,” but remained troubled by the term


When the court said it intended to instruct the jury on simple kidnapping,

kidnapping for extortion, and the definition of extortion, defense counsel objected

that the court was “adding another special circumstance for financial gain. I think

that should have been pled . . . .” The court responded that the special

circumstance of murder for financial gain was alleged in the information. Defense

counsel then argued that kidnapping for extortion did not include a situation where

the victim was the subject of the extortion. However, counsel did not press this

point after the prosecutor said she had case authority to the contrary. (See People

v. Kozlowski, supra, 96 Cal.App.4th 853, 871.)

The court then noted that the prosecutor had asked for instruction on bodily

harm or death in connection with the kidnapping count, but the information did not

allege the infliction of bodily harm or death. The prosecutor moved to amend the

information to include that allegation. Defense counsel objected, claiming the

request was untimely. The court and the prosecutor mentioned that an amendment

to allege personal use of a firearm was also anticipated. At this point, defense

counsel renewed his argument on the extortion element of kidnapping, arguing


that a demand for the address where the transmitter could be found did not amount

to extortion. The court told counsel he was free to make that argument to the jury.

Addressing the amendments both as to firearm use and bodily harm or

death, counsel complained that the prosecution had long known the underlying

facts. He contended it was unfair to add these allegations at such a late date,

depriving the defendant of the opportunity to defend against them. The court

observed that the victim’s death in the course of a kidnapping was already alleged

as part of Count One, and overruled the objection.

After the prosecution rested, defense counsel moved for a judgment of

acquittal on Count Two “for the reasons heretofore articulated, unless your Honor

wants me to go through them again.” The court framed the issue as follows: the

information referred to kidnapping for ransom in count one, and count two

designated the offense as kidnapping for ransom, but the evidence supported only

the crime of kidnapping for the purpose of extortion. However, Count Two also

specifically alleged extortion as a purpose of the kidnapping. For that reason, the

court denied the motion for acquittal, though it acknowledged the evidence did not

support kidnapping for ransom. Following this ruling, the defense rested its case.

The information was amended to omit any mention of ransom in Count

One, referring simply to murder committed during “the commission of the crime

of KIDNAPPING, within the meaning of Penal Code section 190.2(a)(17).”

Count Two, however, still designated the kidnapping charge as “KIDNAPPING

FOR RANSOM,” though the prosecutor added “and other valuable things” to the

“money” defendant was charged with intending to extort and extract from Taylor’s

relatives and friends.

Defendant claims he was prejudiced by these amendments. He argues that

his counsel had determined not to present a defense to the charge of kidnapping

for ransom because it lacked any factual basis. He contends he was deprived of

the opportunity to prepare a defense to the different charge of kidnapping for

extortion. However, as the court noted in ruling on the motion for acquittal,


extortion was originally pleaded in Count Two. It is clear that Count Two, in both

the original and amended informations, referred to kidnapping for ransom as a

shorthand way of designating the aggravated kidnapping offenses enumerated in

Penal Code section 209, as opposed to “simple kidnapping” under Penal Code

section 207. Defense counsel’s objection below was not to the addition of an

extortion element, which in fact was not accomplished by the amendments to the

information. Rather, he took the position that the events shown by the evidence

did not amount to extortion. His timeliness objection was directed at the addition

of special circumstance allegations for firearm use and the infliction of bodily

harm and death, not at the extortion aspect of the kidnapping charge.

Thus, the record fails to support defendant’s argument that counsel’s

strategy for defending against the kidnapping charge was unfairly disrupted by the

amendment of the information.

7. Failure to Instruct on a Claim-of-right Defense

As noted above, during a discussion of the kidnapping instructions defense

counsel maintained that defendant’s attempt to discover where the transmitter was

located did not amount to extortion. Counsel said at one point, “I don’t think

that’s what kidnapping for ransom or extortion is. They were asking for

something that he was probably entitled to, and I just don’t see where that falls

under that.”

Defendant claims the trial court should have instructed on claim of right as

a defense to kidnapping for extortion. Yet defendant did not seek such an

instruction, and any such request would have been improper. The claim-of-right

defense does not extend to the crime of extortion. (People v. Beggs (1918) 178

Cal. 79, 84; accord, People v. Tufunga (1999) 21 Cal.4th 935, 955-956.)

Therefore, it cannot be raised as a defense to a charge of kidnapping for ransom or

extortion. (People v. Serrano (1992) 11 Cal.App.4th 1672, 1677-1678.)

Defendant argues that because he was attempting to recover specific

personal property, his case comes within the rationale of Tufunga, where we


limited the claim-of-right defense in the robbery context to forcible takings

intended to recover personal property. (People v. Tufunga, supra, 21 Cal.4th at p.

956.) In Tufunga, however, we approved the holding in Beggs that the wrongful

means employed in extortion cannot be justified by a claim of right. (People v.

Tufunga, supra, 21 Cal.4th at pp. 955-956.) We upheld the claim-of-right defense

to robbery based on our conclusion that the Legislature had codified the common

law recognition of the defense in robbery prosecutions where the defendant sought

to recover specific personal property. (Id. at p. 950.) Thus, Tufunga does not help

defendant. He refers us to nothing suggesting a similar codification of the

common law claim-of-right defense for either extortion or kidnapping.

8. Modification of CALJIC No. 8.80.1

The trial court gave the jury the following version of CALJIC No. 8.80.1:

“If you find the defendant in this case guilty of murder of the first degree,

you must then determine whether either or both of the following special

circumstances are true or not true:

“One, murder during the perpetration of kidnapping;

“And, two, intentional murder for financial gain.

“The People have the burden of proving the truth of a special circumstance.

If you have a reasonable doubt as to whether a special circumstance is true, you

must find it to be not true.

“Unless an intent to kill is an element of a special circumstance, if you are

satisfied beyond a reasonable doubt that the defendant actually killed a human

being, you need not find that the defendant intended to kill in order to find the

special circumstance to be true.

“You must decide separately each of the special circumstances alleged in

this case. If you cannot agree on both of the special circumstances but can agree

as to one, you must make your finding as to the one upon which you do agree.

“In order to find a special circumstance alleged in this case to be true or

untrue, you must agree unanimously. You will state your special finding as to


whether this special circumstance is or is not true on the form that will be


The trial court omitted the following paragraphs from the standard


“If you find that a defendant was not the actual killer of a human being, [or

if you are unable to decide whether the defendant was the actual killer or [an aider

or abettor] [or] [co-conspirator],] you cannot find the special circumstance to be

true [as to that defendant] unless you are satisfied beyond a reasonable doubt that

such defendant with the intent to kill [aided,] [abetted,] [counseled,]

[commanded,] [induced,] [solicited,] [requested,] [or] [assisted] any actor in the

commission of the murder in the first degree] [.] [, or with reckless indifference to

human life and as a major participant, [aided,] [abetted,] [counseled,]

[commanded,] [induced,] [solicited,] [requested,] [or] [assisted] in the commission

of the crime of ____(Penal Code, § 190.2(a)(17) crime)____ which resulted in the death

of a human being, namely _________.

“A defendant acts with reckless indifference to human life when that

defendant knows or is aware that [his] [her] acts involve a grave risk of death to an

innocent human being.”

Defendant claims the omission violated the requirements imposed by

Enmund v. Florida (1982) 458 U.S. 782, and Tison v. Arizona (1986) 481 U.S.

137. The Enmund court held that the Eighth Amendment does not permit

imposition of the death penalty on one “who aids and abets a felony in the course

of which a murder is committed by others but who does not himself kill, attempt to

kill, or intend that a killing take place or that lethal force will be employed.”

(Enmund v. Florida, supra, 458 U.S. at p. 797.) The Tison court held that “major

participation in the felony committed, combined with reckless indifference to

human life, is sufficient to satisfy the Enmund culpability requirement.” (Tison v.

Arizona, supra, 481 U.S. at p. 158.)


Instruction on these factors is required only when the evidence would

support a finding that the defendant was an accomplice rather than the actual

killer. If the evidence and the theory on which the case was tried leave no doubt

that the jury found the defendant to be the actual killer, there is no constitutional

violation. (People v. Young (2005) 34 Cal.4th 1149, 1204.) Defendant argues that

because his counsel attempted to shift responsibility for the actual killing from

defendant to Rodriguez, the other armed participant in the kidnapping, the issue of

defendant’s vicarious liability for felony murder was before the jury. The

argument lacks merit.

There was no evidence that anyone but defendant shot Taylor. Defense

counsel’s suggestions to the contrary were simply speculation, and certainly were

not intended to establish defendant’s vicarious liability for felony murder. The

prosecutor mentioned in passing that for purposes of felony murder “it doesn’t

matter which of the participants actually pulled the trigger,” but she consistently

argued that defendant was the actual killer. She relied on the felony murder rule

only for the purpose of establishing the intent required for a first degree murder

verdict, not to argue that defendant could be held vicariously liable. The court did

not instruct on the liability of an aider and abetter for felony murder. (See

CALJIC No. 8.27.) It instructed that “the unlawful killing of a human being

whether intentional, unintentional or accidental which occurs during the

commission or attempted commission of the crime of kidnapping is murder of the

first degree when the perpetrator had the specific intent to commit kidnapping.”

(CALJIC No. 8.21.) The verdict form reflects a finding that “the murder of

MICHAEL TAYLOR was committed by defendant, ANDREW LANCASTER,

while the defendant was engaged in the commission of the crime of kidnapping.”

The evidence, argument, jury instructions, and verdict all reflected that

defendant’s guilt depended on his role as the actual killer. The trial court’s

modification of CALJIC No. 8.80.1 was proper.



Penalty Phase Issues

1. Defendant’s Possession of Handcuff Keys

a. Background




to impose the death penalty, the jury may consider

as an aggravating factor “criminal activity by the defendant which involved the

use or attempted use of force or violence or the express or implied threat to use

force or violence.” (Pen. Code, § 190.3, factor (b).) At the beginning of the

penalty phase here, the prosecutor informed the court and defense counsel that she

intended to file an amended notice of evidence in aggravation, including a report

that defendant had been found in possession of a handcuff key in jail. Defense

counsel objected that possession of a handcuff key did not “pertain to violence.”

The item was not an actual handcuff key, but a manufactured implement that “they

construe to be able to be a handcuff key.”

The court suggested the evidence might relate to an attempted escape.

Defense counsel responded that mere possession of something that might be used

as a handcuff key did not amount to attempted escape. The court asked counsel to

research whether handcuff key evidence was admissible. Subsequently, the court

decided the handcuff key evidence was admissible under Penal Code section

190.3, factor (b), based on a statement in People v. Howard (1988) 44 Cal.3d 375

(Howard). The court recognized that the Howard court had refrained from

deciding the admissibility issue, due to the overwhelming evidence of other

criminal activity committed by the defendant. However, it quoted the following


“Arguably, under the circumstances, the possession of the handcuff key and

its implied intended use to permit defendant to free himself from handcuffs,

normally worn during defendant’s transportation in the custody and presence of

law enforcement personnel, constituted criminal activity which posed an ‘implied

threat’ to use force or violence.” (Howard, supra, 44 Cal.3d at p. 428.) The

prosecutor adopted this rationale for presenting the handcuff key evidence.


Defense counsel argued that defendant had made no attempt to escape, nor was

there any record that he had ever removed his handcuffs. The court noted, as

recognized in Howard, that not all escapes are violent offenses. (Id. at pp. 427-

428.) Nevertheless, it concluded that the circumstances under which jail inmates

are handcuffed are such that any resulting escape would be forceful or violent.

A sheriff’s deputy testified that he had seen handcuff keys “several times.”

He described them as small, slim pieces of metal, usually box staples. Inmates

straightened them, sharpened one end, and formed a hook at the other. Inmates

had used such keys to escape from their handcuffs “several times.” The deputy

had found three such keys in defendant’s cell, but did not remember where in the

cell they were. His written report did not include the location of the keys, which

had been “disposed of.” The deputy did not have with him the records showing

how long it had been since another inmate occupied the cell. However, the cell

would have been thoroughly searched before defendant was housed in it.

During a discussion of jury instructions, the court indicated it was

contemplating an instruction on escape, explaining: “What I’m trying to do is

relate a criminal offense to the possession of the handcuff keys so that that can be

an implied threat to use force or violence.” The court noted that mere possession

of a handcuff key in jail is not a crime. Defense counsel renewed his objection

that there was an insufficient connection between possession of the keys and any

escape or violence. He conceded that the court had already ruled on the point

when it admitted the handcuff key evidence, but said he would prefer to leave the

subject out of the instructions. The court, however, proposed instructing the jury

on escape by force or violence, in order to connect the possession of handcuff keys

with a crime involving a threat of force or violence. It noted that the instruction

was not required, if counsel did not want it. He decided not to request the

instruction, on the theory that “the less that’s said about it the better.”

The court instructed that the jury could consider the following criminal acts

allegedly committed by defendant as aggravating circumstances: “Rape, robbery,


possession of a weapon in jail and possession of a handcuff key in jail which

involved the . . . express or implied use of force or violence or the threat of force

or violence.” The jury was told it must find that defendant committed these

criminal acts beyond a reasonable doubt. The court gave instructions on the

elements of rape, robbery, and possession of a dirk, dagger, or sharp instrument in

jail. It gave no instruction on escape or possession of handcuff keys.

b. The Court’s Error





regarding the handcuff keys, including

that the evidence was insufficient to establish a threat of violence. He observes

that in Howard, we quoted People v. Lopez (1971) 6 Cal.3d 45, 52, for the

proposition that “ ‘[t]he possibility of violence during an escape can become an

actuality only when, under the facts of the particular case, the escapee attempts

violent resistance or, in his efforts to elude capture, conducts himself in a reckless

manner.’ ” (Howard, supra, 44 Cal.3d at pp. 427-428.) Defendant contends that

mere possession of handcuff keys does not rise even to the level of an attempted

escape, and thus cannot be said to involve any “express or implied threat to use

force or violence” under Penal Code section 190.3, factor (b). We review the trial

court’s ruling for abuse of discretion. (People v. Griffin, supra, 33 Cal.4th 536,

587.) Defendant’s claim is correct.

The criminal activity contemplated by Penal Code section 190.3 is conduct

that constitutes an offense proscribed by statute. “ ‘Evidence of prior criminal

behavior is relevant under section 190.3, factor (b) if it shows “conduct that

demonstrates the commission of an actual crime, specifically, the violation of a

penal statute . . . .” ’ (People v. Pensinger (1991) 52 Cal.3d 1210, 1259; People v.

Anderson (2001) 25 Cal.4th 543, 588 [§ 190.3, factor (b) requires that conduct be

‘criminal in fact’ in order to constitute valid penalty evidence].)” (People v.

Hughes, supra, 27 Cal.4th 287, 382; see also, e.g., People v. Combs (2004) 34

Cal.4th 821, 859; People v. Clair (1992) 2 Cal.4th 629, 672.) As the trial court

also recognized, possession of makeshift handcuff keys is not such an offense.


The Attorney General argues that attempted escape is criminal activity for

purposes of Penal Code section 190.3, and the only reason for defendant to have

had the handcuff keys would have been to use them to escape. This argument

finds some support from the dicta in Howard, but ultimately is not sustainable. In

Howard, we acknowledged that escape is not an inherently dangerous crime,

quoting People v. Lopez, supra, 6 Cal.3d 45, a felony murder case.15 (Howard,

supra, 44 Cal.3d at pp. 427-428.) Nevertheless, we observed that “[a]rguably,

under the circumstances” the defendant’s “possession of a handcuff key and its

implied intended use” to facilitate an escape from the immediate custody of law

enforcement officers would amount to criminal activity posing an implied threat of

force or violence. (Id. at p. 428.) We did not reach the question of admissibility,

however, nor did we examine the circumstances of the defendant’s handcuff key

possession in any detail.16

For evidence of handcuff key possession to be admissible in connection

with an attempted escape, the prosecution must show that the defendant made such

an attempt. In People v. Kipp (2001) 26 Cal.4th 1100, for instance, the

defendant’s threat to kill a sheriff’s deputy was not “criminal activity” under Penal

Code section 190.3, having occurred before the statute criminalizing such threats

took effect. However, we held it was properly admitted as evidence of the

defendant’s attempt to escape. (Kipp, supra, 26 Cal.4th at p. 1133.) Here,


In People v. Mason (1991) 52 Cal.3d 909, we made it clear that whether

escape is a dangerous crime for purposes of the felony murder rule has no bearing
on whether a particular escape or escape attempt involves an “express or implied
threat to use force or violence” for purposes of Penal Code section 190.3, factor
(b). That is a question that “can only be determined by looking to the facts of the
particular case.” (Mason, supra, 52 Cal.3d at p. 955.)

16 Similarly, in People v. Ochoa (2001) 26 Cal.4th 398, disapproved on

another point in People v. Prieto (2003) 30 Cal.4th 226, 263, footnote 14, we
noted that possession of a handcuff key might “evince an express or implied threat
to use force or violence,” under the reasoning of Howard. (Ochoa, supra, 26
Cal.4th at p. 447.) However, as in Howard, we refrained from resolving the
question, noting that there was also “abundant additional evidence of violent
activity” by Ochoa. (Ochoa, supra, 26 Cal.4th at p. 448.)


defendant’s possession of handcuff keys was not sufficient to establish an escape

attempt. Attempted escape requires a “direct, unequivocal act to effect that

purpose.” (People v. Gallegos (1974) 39 Cal.App.3d 512, 517.) Such an act

“must go beyond mere preparation, and it must show that the perpetrator is putting

his or her plan into action.” (People v. Kipp (1998) 18 Cal.4th 349, 376; accord,

People v. Toledo (2001) 26 Cal.4th 221, 230.)17 The presence of handcuff keys in

defendant’s cell showed, at most, mere preparation. There was no evidence of an

actual escape attempt, or any other crime related to the keys. Accordingly, the

court abused its discretion by admitting the evidence of handcuff key possession.18

c. Prejudice

The error is reversible if there is a reasonable possibility it affected the

verdict. This standard is essentially the same as the harmless beyond a reasonable

doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. (People v.

Jones (2003) 29 Cal.4th 1229, 1264, fn. 11; People v. Jackson (1996) 13 Cal.4th

1164, 1232.) Given the insignificant impact of the handcuff key evidence as a

demonstration of conduct involving a threat of violence, the minimal role it played

17 “Although an attempt to escape is made punishable under Penal Code

section 4532 and not under Penal Code section 664 (People v. Siegel [(1961)] 198
Cal.App.2d 676; People v. Diaz [(1962)] 208 Cal.App.2d 41, 51), the general
section which prescribes punishment for an attempt to commit a crime where no
provision for punishment is otherwise made, the essential elements of an attempt
to commit a crime, so as to make the attempt itself punishable, are present in an
attempt to escape as well as in those attempts made punishable under Penal Code
section 664.” (People v. Gallegos, supra, 39 Cal.App.3d at p. 516.)

18 Defendant’s claim of instructional error is imperfectly stated, but we note

that the court did indeed err by instructing the jury that it could consider handcuff
key possession as evidence of conduct involving the implied threat of violence.
The court is not required to give instructions on the identity or elements of
criminal activity introduced under Penal Code section 190.3, but if it does it must
instruct the jury accurately. (People v. Hughes, supra, 27 Cal.4th at p. 383.)
Here, as in Hughes, the court erroneously instructed the jury that it could consider
conduct that was not a crime. (Ibid.)

We need not consider defendant’s other arguments regarding the handcuff

key evidence. As discussed next, no prejudice resulted from the trial court’s


in the prosecutor’s argument, and the other compelling evidence presented during

the penalty phase, we are satisfied beyond a reasonable doubt that the error was


Defendant contends reversal is required because the prosecutor was

permitted to argue that he posed a threat of violence if he escaped from his

handcuffs; the handcuff key evidence tended to undercut the notion that his

possession of a shank in jail was for purposes of his own protection; and the

evidence of his other criminal conduct did not establish a persistent pattern of

escalating violence and was not so overwhelming as to render the error harmless.

These arguments do not persuade.

We have noted that escape evidence may be particularly prejudicial if used

to suggest to the jury that the death penalty is the only means of protecting the

public from a defendant who poses a significant escape risk. (People v. Jackson,

supra, 13 Cal.4th at pp. 1232-1233.) Here, however, the prosecutor made no such

insinuation. Her argument on the point was almost perfunctory. She contended

that the “jail-made keys” found in defendant’s cell showed some sophistication on

his part, and noted the testimony that inmates do get out of their handcuffs. She

then said: “Why would the defendant need to get out of handcuffs? Under this,

ladies and gentlemen, you can show evidence of threat of violence. If he gets out

of those handcuffs, there’s a threat of violence, there is a threat of escape, and you

can take that into consideration.” Later, she briefly mentioned the keys and the

shank, and stated: “There are people in custody that don’t deserve the death

penalty at the hands of this defendant.” The prosecutor did not mention the keys

at all in her rebuttal argument.

The threat posed by defendant’s possession of handcuff keys was not a

major part of the prosecutor’s penalty phase case. Much more direct and graphic

evidence of defendant’s violent conduct was before the jury. As a teenager, he

brutally raped a 9-year-old girl. The victim testified, describing the crime and its

dramatic impact on her life. Defendant and an accomplice had surprised another


witness inside her home, bound and gagged her, stole her car and other items, and

left her tied to a mattress. The testimony about the handcuff keys, and the implied

threat of violence arising from their possession, paled in comparison to this

testimony relating defendant’s actual violent behavior, and to the evidence of

Taylor’s kidnapping and murder.

Nor does the record reflect that the handcuff key evidence had a significant

impact on defendant’s explanation for possessing a shank in jail. The keys were

discovered months after the shank was confiscated. The deputy who found the

shank testified on cross-examination that defendant had told him it “was for his

protection,” but defense counsel did not mention this testimony in his closing

argument. Instead, he noted that defendant had not hurt anyone while in custody.

Considered in light of the record as whole, the erroneously admitted

handcuff key evidence was trivial. There is no reasonable possibility that it

affected the penalty verdict.

2. Taylor’s Opinion on the Death Penalty

Defense counsel’s proposed penalty phase witnesses included two persons

he described as Taylor’s friends and fellow activists. They had approached

counsel and asked to testify about Taylor’s opposition to the death penalty.

Defense counsel contended this evidence was admissible under Penal Code section

190.3, factor (k), which permits the jury to take into account “[a]ny other

circumstance which extenuates the gravity of the crime even though it is not a

legal excuse for the crime.” He argued that Taylor’s view on the death penalty

was highly relevant to the jury’s determination. According to counsel, Taylor was

closer to his fellow activists than he was to his family, who would be testifying for

the prosecution. Counsel said it would be the “ultimate irony” for his client to be

executed for killing someone who had made it his life’s work to oppose the death

penalty. He proffered two exhibits: a press release prepared by an activist


organization announcing the witnesses’ intention to testify on defendant’s behalf,

and a tape recording of various statements made by Taylor.19

The court excluded this evidence, concluding that Taylor’s views were not

a relevant mitigating factor, because they did not pertain to the defendant’s

character or the circumstances of the crime. The court also deemed the evidence

unduly prejudicial.

Nevertheless, Taylor’s views were briefly reflected in the testimony of one

witness. Reverend Richard Byrd testified that he knew both Taylor and defendant.

He had worked with Taylor at KPFK, and joined in Taylor’s efforts to start an

unlicensed radio station. Both men had both taken an interest in the Mumia Abu-

Jamal case. Counsel asked him if “one of [Taylor’s] causes was opposition to

certain things, the death penalty, things of that nature?” The witness answered,

“indeed.” When asked if this stance made Taylor controversial, he replied “very

much so.”

The prosecutor asked the court to bar defense counsel from arguing

Taylor’s death penalty opinions. The court granted this request, noting that

despite the court’s ruling defense counsel had “snuck [the evidence] in.” The

court conceded that there was “some fairness” in allowing the jury to be informed

on this point, but admonished counsel not to argue it.

Defendant contends the exclusion of this evidence was error. He

acknowledges that in People v. Smith (2003) 30 Cal.4th 581 (Smith), this court

affirmed a ruling barring one of the defendant’s victims from testifying that she

19 The proffered evidence actually fell well short of establishing Taylor’s

opposition to capital punishment as a matter of principle. The press release noted
only that he opposed the death penalty in the Pennsylvania case of Mumia Abu-
Jamal. The transcript of Taylor’s statements included many declarations
supporting Jamal, but none opposing capital punishment in general. Defendant’s
own testimony at the penalty phase indicated that Taylor was primarily concerned
with Jamal’s case. Defendant stated: “Them people that spoke up about Michael
Taylor, most of them didn’t even know nothing about Michael Taylor. He wasn’t
fighting for Mumia Abu Jamal’s freedom point blank for the death penalty [sic].
He was fighting against it because the man was wrongfully convicted.”


did not believe the death penalty was appropriate. Defendant attempts to

distinguish Smith on several grounds, none of which is persuasive.


Smith, evidence of defendant’s numerous assaults against women,

including rapes, was presented during the penalty phase as evidence in

aggravation. (Smith, supra, 30 Cal.4th at pp. 599-600.) The defense obtained a

protective order barring the prosecution from asking the victims of these crimes

for their opinions on the appropriate punishment. As it happened, however, one of

the victims was opposed to the death penalty and refused to testify unless she

could express her view on the defendant’s punishment. Over the defendant’s

objection, the trial court ruled that the victim’s opinion was inadmissible. (Id. at p.


As we stated in Smith: “It is clear that the prosecution may not elicit the

views of a victim or victim’s family as to the proper punishment. (Booth v.

Maryland (1987) 482 U.S. 496, 508-509.) The high court overruled Booth in part,

but it left intact its holding that ‘the admission of a victim’s family members’

characterizations and opinions about the crime, the defendant, and the appropriate

sentence violates the Eighth Amendment.’ (Payne v. Tennessee [(1991)] 501 U.S.

[808,] 830, fn. 2.) That court has never suggested that the defendant must be

permitted to do what the prosecution may not do. The views of a crime victim . . .

regarding the proper punishment has no bearing on the defendant’s character or

record or any circumstance of the offense. (Skipper v. South Carolina [(1986)]

476 U.S. [1,] 4.) Hence, the Eighth Amendment to the United States Constitution

does not compel admission of those views. (Robison v. Maynard (10th Cir. 1991)
943 F.2d 1216, 1216-1217 [even after Payne v. Tennessee, supra, 501 U.S. 808,

‘testimony from a victim’s relative that she did not want the jury to impose the

death penalty was improper mitigating evidence and inadmissible at the penalty

phase hearing’].)

“Citing [Penal Code] section 190.3 and the United States Constitution, we

have held that testimony from somebody ‘with whom defendant assertedly had a


significant relationship, that defendant deserves to live, is proper mitigating

evidence as “indirect evidence of the defendant’s character.” ’ (People v. Ervin

(2000) 22 Cal.4th 48, 102; see also People v. Mickle (1991) 54 Cal.3d 140, 194;

People v. Heishman (1988) 45 Cal.3d 147, 194.) This evidence is admitted, not

because the person’s opinion is itself significant, but because it provides insights

into the defendant’s character. (People v. Ochoa (1998) 19 Cal.4th 353, 456.)”

(Smith, supra, 30 Cal.4th at pp. 622-623, original italics.) The Smith court

concluded that the victim’s testimony was inadmissible because she had no

relationship with the defendant other than being his rape victim. (Id. at p. 623.)

Defendant argues that, unlike the victim in Smith, he had a significant

working relationship with Taylor in the months preceding the murder, involving

their social activism and including opposition to the death penalty. He contends

that admission of Taylor’s view on capital punishment would have provided

“insights into an altruistic quality of [defendant’s] character.” The argument fails.

As noted in Smith, testimony from persons who know a defendant and wish his

life to be spared is admissible as evidence of the defendant’s character.

Defendant, of course, could not provide testimony regarding Taylor’s opinion on

whether defendant deserved to live. Taylor’s opposition to the death penalty as a

matter of principle, if indeed it could have been established (see fn. 19, ante, p.

54), was not evidence of defendant’s character. If Taylor’s asserted view on this

subject cast any reflection on defendant it was not a complimentary one. It would

have shown that defendant was willing to kill a fellow activist over disputed radio

equipment, despite their purported stand against the death penalty.

Defendant also claims that evidence of Taylor’s opinion should have been

admitted to rebut the testimony of Taylor’s mother, brother, and daughter, who

spoke of the effects his killing had on the family. Defendant notes that such

“victim impact” testimony was admissible as a “circumstance of the crime of

which [he] was convicted.” (Pen. Code, § 190.3, factor (a); see People v. Edwards

(1991) 54 Cal.3d 787, 835; People v. Pollock (2004) 32 Cal.4th 1153, 1180.) He


argues that Taylor’s opinion was a similar “circumstance of the crime.” Rebuttal

evidence, however, must relate to the subject matter of the opponent’s evidence.

(People v. Brown (2003) 31 Cal.4th 518, 579.) Defendant fails to explain how

evidence of Taylor’s views on the death penalty would have operated to rebut his

family members’ testimony about the loss of their loved one. He merely repeats

his contention that Taylor’s views would have illuminated the “better angels” of

defendant’s character. There is no material, logical, or moral connection between

the effects of defendant’s crime on the victim’s family and the victim’s views on

capital punishment, whatever they may have been, and to whatever extent they

were shared by defendant. (Cf. People v. Edwards, supra, 54 Cal.3d at p. 833.)

Finally, defendant asserts that the evidence was admissible under Penal

Code section 190.3, factor (k), as a “circumstance which extenuate[d] the gravity

of the crime even though it [was] not a legal excuse for the crime.” He suggests

that Taylor’s own choice to “embrace mercy and compassion” was a mitigating

circumstance the jury should have been allowed to consider. This claim also lacks

merit. The gravity of defendant’s crime was not extenuated by his victim’s


The evidence of Taylor’s opinion on the death penalty was properly


3. Claims Regarding Defendant’s Testimony

Defendant raises four arguments related to his testimony at the penalty

phase. He contends the trial court failed to adequately advise him of the limited

scope of his testimony and the potential pitfalls of testifying; erroneously limited

the scope of his testimony; improperly overruled defense objections to the scope

of cross-examination; and unfairly required defendant to testify before his

psychologist had finished testifying. None of these claims is meritorious.

a. Failure to Advise

At the beginning of the penalty phase, defense counsel told the court that,

against his advice, defendant wanted to testify. Counsel said he assumed


defendant had that right, just as at the guilt phase.20 The following exchange


“The Court: It’s equally or more important in the penalty phase that he has

a right to testify.

“[Defense Counsel]: If he does, I’d like the admonition from the court that

he’s doing it without my advice and in direct contravention to what I think would

be my position on him doing that, but he has an absolute right to do it if he wants


“The Court: Okay. Well, you’ve advised him now on the record.

“And again, Mr. Lancaster, that’s your personal choice to make. No one

can prevent you from testifying. At the end of the case I’ll check to make sure if

you haven’t testified whether or not you want to testify.”

The court added, “This is a more personal decision on your part than it is

during the guilt phase, because one advantage to testifying is obviously that they

know you as a person instead of somebody that’s just been sitting there.

“But your attorney has given you contrary advice, and you’ve got to

consider both sides in making your personal decision.”

Defendant decided to testify. He now contends the court’s advisement was

inadequate and misleading, because the court did not admonish him about the risks

of testifying, failed to revisit the matter immediately before defendant took the

stand, held no hearing to explore defendant’s disagreement with counsel over the

decision, and did not warn him that the scope of his testimony would be limited.

The court was not required to do any of those things.




People v. Nakahara (2003) 30 Cal.4th 705, and People

v. Guzman (1988) 45 Cal.3d 915 (overruled on another point in Price v. Superior

Court (2001) 25 Cal.4th 1046, 1069, fn. 13). These cases are inapposite. The

Nakahara trial court gave the admonishments and held the hearing that defendant

claims he should have received. Nakahara complained that the court did not

20 Defendant had accepted counsel’s advice not to testify at the guilt phase.


sufficiently protect his right to counsel and failed to caution him against testifying

in narrative fashion. This court concluded the court’s admonishments were

adequate, but did not hold they were required. (People v. Nakahara, supra, 30

Cal.4th at p. 717.) The Guzman trial court gave a more extensive set of warnings,

but Guzman faulted his counsel for forcing him to testify in narrative fashion, and

the court for not telling him that the jury was likely to infer he was lying. We

rejected these arguments. (People v. Guzman, supra, 45 Cal.3d at pp. 942, 946.)

However, as the Nakahara court noted, “nowhere in our Guzman opinion did we

suggest that such an array of admonishments was a necessary or constitutional

prerequisite to receiving a defendant’s testimony against advice of counsel.”

(People v. Nakahara, supra, 30 Cal.4th at p. 717.)

A defendant has a fundamental right to testify on his own behalf. (People

v. Nakahara, supra, 30 Cal.4th at p. 717; see Rock v. Arkansas (1987) 483 U.S.

44, 49-53.) “[A] defendant may be allowed to exercise, or not to exercise, the

right to testify, without advisement by the trial court.” (People v. Barnum (2003)

29 Cal.4th 1210, 1223.) Defendant refers us to no authority requiring an

admonition in this situation. Indeed, he cites cases holding that the court should

not interfere with the defendant’s decision. (United States v. Teague (11th Cir.

1992) 953 F.2d 1525, 1533, fn. 8; United States v. Campione (7th Cir. 1991) 942

F.2d 429, 439; United States v. Martinez (9th Cir. 1989) 883 F.2d 750, 757,

vacated on another ground (9th Cir. 1991) 928 F.2d 1470.) Defendant suggests

the court’s comments in this case improperly encouraged him to testify. Not so.

The court’s brief observation that there was an advantage to testifying at the

penalty phase was balanced by its advice that defendant should consider his

attorney’s contrary view.

b. Limitations on the Testimony

Defendant embarked on his narrative testimony by claiming the accusations

against him were false, and based on testimony that was “bought” by the

prosecution. He then referred to Taylor’s advocacy on behalf of Mumia Abu-


Jamal, and attempted to draw a parallel between Jamal’s case and his own, as


“[T]he man was wrongfully convicted by a jury. The police said he killed

somebody in Philadelphia. The police said this. Just like in this case the

prosecution lied, intimidated witness [sic] to testify against me, yeah, to convict

him. They put his fingerprints on the gun —” The prosecutor objected at this

point, claiming the testimony was irrelevant. The court sustained the objection. A

little later, defendant described his experience in prison after a previous

conviction, and attempted to connect it with other cases. “They tried to dope me

up with medication. Didn’t work. Whenever a black man talks about revolution

or up rising or fighting for his own rights, they label him crazy. That’s what they

did to Mumia Abu-Jamal. That’s their excuse. There ain’t no excuse for that.

They do it to Ron, Huey P. Newton. They experiment on black people.” Again,

the court sustained a relevance objection.

Defendant argues first that the court erroneously barred him from

expressing his view that the prosecutor had manipulated and bribed the witnesses

against him. This claim is not supported by the record; defendant’s testimony

regarding the conduct of his own prosecution was neither objected to nor

excluded. The court sustained objections only to his statements regarding other

cases. Defendant also contends those statements should have been admitted,

because they demonstrated his “political awareness and aspiration to fight against

racial discrimination” and his “own view of himself and his place in the world.”




People v. Webb (1993) 6 Cal.4th 494, for the

proposition that “a defendant’s absolute right to testify cannot be foreclosed or

censored based on content.” (Id. at p. 535.) That statement must be understood in

context; it addressed Webb’s contention that the trial court should not have

allowed him to testify in favor of a death sentence. The relevance of the testimony

was not challenged. It is beyond cavil that evidence presented in mitigation must

be relevant to the defendant’s character and prior record, or the circumstances of


the charged offense. (E.g., People v. Zapien (1993) 4 Cal.4th 929, 988-989;

Kansas v. Marsh (2006) __ U.S. __, 126 S.Ct. 2516, 2525.) “Evidence of third

persons’ having been wrongfully convicted of capital offenses is irrelevant to the

jury’s function in the case before them and is therefore inadmissible. [Citations].”

(People v. Alcala (1993) 4 Cal.4th 742, 807.) Testimony that other prisoners had

been “label[led] crazy” and “experiment[ed]” upon was similarly irrelevant to

defendant’s character, record, and the circumstances of his offense.

Defendant claims his counsel explained to the court that his client was

about to discuss the relevant topic of why the radio station was being started, but

his testimony was nevertheless precluded. However, the record discloses no such

explanation during defendant’s direct testimony, and in any event defendant was

permitted to testify about the radio station without objection.

c. The Scope of Cross-examination

Over objection, the prosecutor cross-examined defendant about his

statements to the police shortly before and after his arrest. Defendant contends the

scope of this examination exceeded that of his direct testimony. He also claims it

was unfair to use this evidence because he had no access to the tapes or transcripts

of the statements before he took the stand.

“It is settled that the trial court is given wide discretion in controlling the

scope of relevant cross-examination.” (People v. Farnam (2002) 28 Cal.4th 128,

187.) The court did not abuse its discretion here. Defendant testified that the

witnesses against him had been bribed, that it was a lie to say he had killed Taylor,

and that he would not “cop to something I didn’t do.” The prosecutor’s cross-

examination was properly directed at defendant’s taped statements about the

witnesses, and his responses to police questioning about the crime and the

evidence. Defendant was allowed to refresh his memory by reading the transcript

when he had difficulty remembering the interviews. He fails to establish any

impropriety in the cross-examination.


d. Sequence of the Testimony

During a discussion regarding the scheduling of witnesses, defense counsel

told the court that “my whole penalty phase has been set up predicated on having

Dr. Romanoff testify first, and he won’t be available until tomorrow.” Counsel

did call Dr. Romanoff as his first witness the next morning. After the direct

examination was completed, however, counsel reported that the doctor had

changed his schedule to appear that morning, a Friday, but was leaving for a

camping trip in the afternoon. Counsel was concerned that this would not leave

the prosecutor enough time to complete her cross-examination. The doctor would

be available again on Monday. The court extended the Friday morning session

until 12:30, but the prosecutor indicated she would need to continue with the

doctor on Monday.

Reluctant to “wast[e] half a day,” the court inquired whether defendant had

decided to testify. Counsel replied: “He’s told me he still wants to. The only

reason I am so accommodating of Dr. Romanoff is he has been incredibly

accommodating to me, to the court, as you know. He came in to the court, he’s

been in jail several times, he’s had problems with Mr. Lancaster being reticent.

He’s gone there at times when he’s refused to see him, and he’s gone through all

of that and he’s been very patient. Any latitude that he wants, I think he’s entitled

to. That’s the only reason I would ask.” The prosecutor had no objection to

continuing her questioning on Monday. Defendant testified on Friday afternoon.

Defendant contends he was denied the right to make a fully informed

decision whether to testify at the close of the defense case. He cites Brooks v.

Tennessee (1972) 406 U.S. 605, in which the court declared unconstitutional a

statute requiring criminal defendants to testify before any other defense witness.

The court held that the statute impermissibly deprived defendants of the ability to

assess the testimony of other defense witnesses before deciding whether to testify

and risk cross-examination. (Id. at pp. 609-612.) The court further held that the

statute violated defendants’ due process right to the advice of counsel, by


requiring counsel to make an important tactical decision without the opportunity to

evaluate the testimony of the other defense witnesses. (Id. at pp. 612-613.)

Brooks does not support defendant’s claim. It did not arise from the

penalty phase of a capital trial. Moreover, defendant was not forced to testify first.

The court granted his counsel’s request to permit Dr. Romanoff to leave before the

doctor’s cross-examination could be completed. This is not a case like People v.

Cuccia (2002) 97 Cal.App.4th 785, in which the court effectively compelled the

defendant to take the stand by threatening to consider his case completed after a

defense witness failed to appear. (Id. at p. 790-791.) Here, the court merely

exercised its discretion to regulate the order of proof (Evid. Code, § 320) in

response to defense counsel’s desire to accommodate a witness’s vacation plans.

The Brooks court noted that its holding did not “curtail[] in any way the ordinary

power of a trial judge to set the order of proof.” (Brooks v. Tennessee, supra, 406

U.S. at p. 613.)

4. Admission of the Taped Statements

Before Dr. Romanoff began his testimony, defense counsel objected to the

prosecutor’s plan to play the tapes of defendant’s statements to the police around

the time of his arrest. He claimed the prosecutor’s only purpose was to show that

defendant was a liar, which counsel was willing to concede. The prosecutor said

she had provided the doctor with copies of the statements and asked him to listen

to the tapes. She wanted to use them to rebut any suggestion by Dr. Romanoff that

defendant was “more of a follower,” to show that he was a habitual liar, and to

demonstrate why he may have refused to answer some of the doctor’s questions.

Defense counsel argued that it was improper at this point in the trial to bring up

defendant’s lies to the police. The court overruled the objection, observing that

the tapes might be relevant either to impeach the doctor’s testimony or to explore

whether his opinion might change based on the tapes. It invited counsel to revisit

the matter before Dr. Romanoff’s cross-examination.


The parties did so during a break in the doctor’s direct testimony. The

prosecutor said she intended to play the tapes in their entirety. Defense counsel

vigorously objected, claiming the prosecutor was simply trying to prejudice his

client by demonstrating unpleasant aspects of his character. At counsel’s urging,

the court reviewed the transcripts of the tapes before ruling. It observed that the

tapes covered many subjects, and asked the prosecutor why they needed to be

played. The prosecutor said she they supported her theory that defendant was a

habitual liar, who was likely to have lied to the doctor, and who may have tried to

use the doctor to find “a new way out.” The court accepted this explanation and

overruled the objection.

The prosecutor did not introduce the tapes into evidence until Dr. Romanoff

returned to the stand on Monday. During her cross-examination of defendant on

Friday afternoon, however, the prosecutor questioned defendant at length about

the taped statements. During a break in this cross-examination, defense counsel

asked the court to exclude one particular statement: when asked what he was

doing the night Taylor was murdered, defendant had replied “I fuck the shit out of

my wife like I do every night.” Counsel argued that this statement had little

evidentiary value and was unduly inflammatory. The prosecutor responded that it

was part of defendant’s alibi. The court overruled the objection. It noted that

some prejudice was created by the way defendant expressed himself, but decided

the statement was “more probative than prejudicial.” Nevertheless, when the

prosecutor questioned defendant about his statements regarding his whereabouts

on the night of Taylor’s murder, she did not mention the statement to which

defense counsel had objected.

On Monday, before Dr. Romanoff’s cross-examination resumed, counsel

raised a final objection to the tapes. Again, he conceded that defendant made

many “misstatements of fact,” and contended the tapes were unduly prejudicial.

The prosecutor submitted the matter, noting that defendant had opened the door to

the admission of his statements by taking the stand and discussing the crime. The


court again overruled the objection, observing that the statements were admissible

regarding both the offense itself and the doctor’s opinion. Dr. Romanoff testified

that he had listened to the tapes, but only after he completed his report. He said

they were consistent with his view of defendant. After the tapes were played, the

prosecutor asked the doctor only a few questions and did not address defendant’s


Defendant contends the trial court committed prejudicial error by allowing

the tapes to be played without excluding his alibi statement regarding marital sex.

He argues that this statement did not fall within any permissible category of

aggravating evidence, because the acts involved were not criminal and did not

tend to prove any factor listed in Penal Code section 190.3. He claims his

statement merely portrayed him in an unpleasant way, and asserts that its

prejudicial impact outweighed any value it may have had in assessing Dr.

Romanoff’s conclusions.

These arguments are meritless. In the first place, defendant did not ask the

court to redact the marital sex alibi before playing the tapes; he specifically

objected to the admission of that statement only during his own cross-examination.

Although the objection was unsuccessful, the prosecutor refrained from bringing

up the sexual aspect of the alibi during her questioning. Furthermore, by testifying

and asserting his innocence, defendant placed at issue his statements regarding the

circumstances of the crime. The alibi evidence was not offered in aggravation, but

to impeach both defendant and Dr. Romanoff. A trial court has broad latitude to

weigh the prejudicial impact of defendant’s statement against its probative value.

(People v. Robinson (2005) 37 Cal.4th 592, 625-626.) Furthermore, it is well

settled that the scope of cross-examination of an expert witness is especially

broad; a prosecutor may bring in facts beyond those introduced on direct

examination in order to explore the grounds and reliability of the expert’s opinion.

(People v. Wilson (2005) 36 Cal.4th 309, 358-359; People v. Dennis (1998) 17

Cal.4th 468, 519; People v. Nye (1969) 71 Cal.2d 356, 374-375.)


5. The Statement About the Robbery

In connection with the prior home invasion robbery defendant committed

with an accomplice, the prosecutor unsuccessfully solicited a statement made after

the two were arrested. An officer transporting defendant and his accomplice to

juvenile hall testified that she overheard a conversation between the suspects in the

back seat of the patrol car. The officer stated that the two were laughing, and one

of them (she was not sure which) said “the bitch deserved it because she left her

door open.” Defense counsel promptly moved to strike this testimony. The court

sustained the objection and struck the answer. Subsequently, the court sustained

counsel’s objection to the entire line of questioning. The jury was later instructed

not to consider any evidence that was stricken by the court.

Defendant contends the trial court erred by failing to instruct the jury more

specifically to disregard the stricken testimony. He provides no authority to

support this argument, and in any event his claim of prejudice is manifestly

meritless. The stricken testimony did not establish that it was defendant who

made the comment in question, and the comment itself was not particularly

prejudicial, compared to the other evidence in aggravation.

6. Standard of Proof for Aggravating Factors

Defendant argues that the jury should have been instructed to make its

findings on all aggravating factors unanimously, and by the standard of beyond a

reasonable doubt. He contends such an instruction is required under Apprendi v.

New Jersey (2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, and

Blakely v. Washington (2000) 542 U.S. 296. We have repeatedly rejected this

argument, and do so again here. (E.g., People v. Jurado (2006) 38 Cal.4th 72,

143; People v. Cornwell, supra, 37 Cal.4th 50, 104; People v. Morrison, supra, 34

Cal.4th 698, 730-731.)

In his reply brief, defendant refers to the high court’s more recent decision

in United States v. Booker (2005) 543 U.S. 220. He does not, however, argue that

Booker adds anything to the analysis; he merely notes that it reaffirmed the


holding in Apprendi. (Booker, supra, 543 U.S. at p. 244.) Thus, defendant

provides us with no reason to reconsider our earlier holdings on this point.

7. Denial of Modification

Defendant’s final argument has been filed under seal. He contends that, in

ruling on the application for modification of his death sentence (Pen. Code,

§ 190.4, subd. (e)), the court improperly relied on evidence he had no opportunity

to deny or explain, in violation of Gardner v. Florida (1977) 430 U.S. 349. He

bases this claim on sealed transcripts of two hearings. At a July 16, 1996 hearing,

the prosecutor appeared ex parte and explained to the court why she had not given

defendant, then representing himself, certain discovery materials. The trial judge

did not preside at this hearing. At a May 29, 1997 hearing, held before the trial

judge, counsel for Rodriguez and Alexander appeared ex parte seeking access to

defendant’s confidential prison medical records. Rodriguez and Alexander were

then codefendants; counsel wanted to show that they were coerced or intimidated

by defendant. The request was denied.

Defendant argues that he was cast in a very damaging light at these

hearings, and claims the trial court must have considered the allegations about his

character made by counsel when it refused to modify his sentence. He notes that

counsel’s comments portrayed him as a member of a Black paramilitary group, an

“executioner,” and a threatening figure who coerced his accomplices and

attempted to intimidate witnesses. He contends the court’s findings at the

modification hearing that Alexander and Rodriguez were “clear followers,” that

Alexander was “slow-witted,” and that both were “easily led” by defendant, who

was “very smart,” were tainted by information disclosed at the ex parte hearings.

However, the court expressly referred to the trial testimony of Alexander and

Rodriguez, and its notes on that testimony, when it made its findings. It is highly

unlikely that the court would have considered remarks made by counsel at brief

pretrial hearings, one held over two years earlier before a different judge and the


other held over a year previously, when it had just heard the extensive testimony at

trial, including defendant’s own.

We have reviewed the sealed transcripts, and the trial court’s detailed

statement of its reasons for denying modification. As in People v. Sakarias (2000)

22 Cal.4th 596, 649, the record “provides not the slightest reason to suppose the

trial court here relied on or considered” the information defendant complains

about. When the court makes no mention of improper material when denying

modification, we will not conclude there was any improper influence. (People v.

Kipp, supra, 18 Cal.4th at p. 383.)21


The judgment is affirmed.




21 Defendant notes that at the May 29, 1997 hearing, Alexander’s counsel

referred to “an earlier declaration of some of my client’s background.” In a
footnote to his brief, he asks us to unseal this declaration in case it might bolster
his showing. Even if defendant had complied with the procedural requirements
for unsealing a record (Cal. Rules of Court, rule 8.160(f)), it is inconceivable that
this item would assist him. As stated above, the court expressly based its findings
on Alexander’s trial testimony. We deny the request.


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

Name of Opinion People v. Lancaster

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted


Opinion No.
Date Filed: May 24, 2007

County: Los Angeles
Judge: William R. Pounders


Attorneys for Appellant:

Roger Teich and David Groom, under appointments by the Supreme Court, for Defendant and Appellant.


Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Zee Rodriguez,
Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Roger Teich
1328 Fell Street
San Francisco, CA 94117
(415) 346-6074

Zee Rodriguez
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 576-1342

Opinion Information
Date:Docket Number:
Thu, 05/24/2007S073596

1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Zee Rodriguez, Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA

2Lancaster, Andrew (Appellant)
San Quentin State Prison
Represented by Eric Stephen Multhaup
Attorney at Law
20 Sunnyside Avenue, Suite A
Mill Valley, CA

3Lancaster, Andrew (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
303 Second Street, Suite 400 South
San Francisco, CA

4Lancaster, Andrew (Appellant)
San Quentin State Prison
Represented by Roger Ian Teich
Attorney at Law
177 Pfeiffer Street, No. 7
San Francisco, CA

5Lancaster, Andrew (Appellant)
San Quentin State Prison
Represented by David E. Groom
Attorney at Law
714 SW 20th Place
Portland, OR

May 24 2007Opinion: Affirmed

Sep 16 1998Judgment of death
Sep 23 1998Filed certified copy of Judgment of Death Rendered
  September 16, 1998.
Sep 23 1998Penal Code sections 190.6 et seq. apply to this case
Dec 7 1998Record certified for completeness
Jul 11 2002Filed:
  appellant's application for appointment of counsel (IFP form).
Jul 12 2002Counsel appointment order filed
  appointing Roger Teich to represent applt for the direct appeal.
Jul 22 2002Date trial court delivered record to appellant's counsel
  4,425 pp. record
Jul 26 2002Appellant's opening brief letter sent, due:
  February 24, 2003 (pursuant to Calif. Rules of Court, rule 39.57(b)).
  CAP HAS A CONFLICT OF INTEREST; attorney Eric Multhaup is providing case assistance.
Sep 12 2002Counsel's status report received (confidential)
  from atty Teich.
Nov 12 2002Counsel's status report received (confidential)
  from atty Teich.
Jan 9 2003Counsel's status report received (confidential)
  from atty Teich.
Jan 13 2003Compensation awarded counsel
  Atty Teich
Feb 13 2003Compensation awarded counsel
  Atty Teich
Feb 18 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Feb 20 2003Extension of time granted
  to 4-23-2003 to file AOB. After that date, only three further extensions totaling about 190 additional days are contemplated. Extension granted based upon counsel Roger Teich's representation that he anticipates filing the AOB by 11-1-2003.
Mar 11 2003Counsel's status report received (confidential)
  from atty Teich.
Apr 22 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Apr 24 2003Extension of time granted
  to 6/23/2003 to file appellant's opening brief. After that date, only two further extensions totaling 130 additional days are contemplated. Extension is granted based upon counsel Roger Teich's representation that he anticiptes filing that brief by 11/1/2003.
Apr 30 2003Compensation awarded counsel
  Atty Teich
May 12 2003Counsel's status report received (confidential)
  from atty Teich.
May 21 2003Compensation awarded counsel
  Atty Teich
May 29 2003Compensation awarded counsel
  Atty Multhaup
Jun 17 2003Received copy of appellant's record correction motion
  Motion for correction and completion of the record, filed in the superior court on April 23, 2003. (19 pp.)
Jun 23 2003Received:
  application for extension of time to file appellant's opening brief. Counsel to resubmit with original signatures. Faxed signature not acceptable.
Jun 25 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Jun 27 2003Extension of time granted
  to 8/22/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jul 14 2003Counsel's status report received (confidential)
  from atty Teich.
Aug 15 2003Record certified for accuracy
Aug 19 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Aug 19 2003Motion for appointment of counsel filed
  for "Appointment of David Groom as Associate Counsel on Fixed Fee Basis, or Alternatively, for Withdrawl of Roger Teich as Counsel of Record."
Aug 26 2003Extension of time granted
  to 10/21/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 26 2003Filed:
  Supplemantal proof of service of motion for appointment of counsel.
Aug 26 2003Motion filed (in non-AA proceeding)
  appellant's pro se Marsden motion.
Sep 9 2003Filed:
  amended declaration of David E. Groom in support of motion for appointment.
Sep 9 2003Motion for appointment of counsel filed
  by attorney David E. Groom for appointment as associate counsel.
Sep 12 2003Counsel's status report received (confidential)
  from atty Teich.
Sep 24 2003Motion denied
  Appellant's motion to relieve appointed counsel and appoint new counsel in his place, filed on August 26, 2003, is denied.
Sep 24 2003Order filed
  Good cause appearing, the application of appointed counsel Roger Teich for the appointment of associate counsel, filed August 19, 2003 (amended supporting declaration filed September 9, 2003), and the application of David E. Groom for appointment as associate counsel pro hac vice (see Cal. Rules of Court, rule 983), filed September 9, 2003, are granted. David E. Groom is hereby appointed as associate counsel pro hac vice to represent appellant Andrew Lancaster for the direct appeal in the above automatic appeal now pending in this court.
Sep 25 2003Record on appeal filed
  14 vols. of CT (2,971 pp.) and 15 vols. of RT (2,048 pp.), including material under seal and 1,796 pp. of juror questionnaires, and ASCII disks.
Sep 25 2003Letter sent to:
  counsel advising that record on appeal was filed this date.
Oct 2 2003Compensation awarded counsel
  Atty Teich
Oct 3 2003Compensation awarded counsel
  Atty Multhaup
Oct 21 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Oct 24 2003Extension of time granted
  to 12/22/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 13 2003Counsel's status report received (confidential)
  from atty Teich.
Dec 17 2003Compensation awarded counsel
  Atty Teich
Dec 22 2003Request for extension of time filed
  to file appellant's openign brief. (6th request)
Dec 31 2003Extension of time granted
  to 2/23/2004 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension granted based upon counsel Roger Teich's representation that he anticipates filing that brief by 4/21/2004.
Jan 14 2004Counsel's status report received (confidential)
  from atty Teich.
Feb 24 2004Request for extension of time filed
  to file appellant's opening brief. (7th request)
Feb 27 2004Motion to unseal AA record filed
  Motion to unseal records sealed by the trial court.
Mar 1 2004Extension of time granted
  to 4/23/2004 to file appellant's opening brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel Roger Teich's representation that he anticipates filing that brief by 6/21/2004.
Mar 4 2004Filed:
  respondent's response to appellant's motion for order requesting that sealed transcripts be provided to counsel for appellant.
Mar 15 2004Counsel's status report received (confidential)
  from atty Teich.
Mar 17 2004Compensation awarded counsel
  Atty Multhaup
Mar 23 2004Compensation awarded counsel
  Atty Teich
Apr 27 2004Request for extension of time filed
  to file appellant's opening brief. (8th request)
Apr 30 2004Extension of time granted
  to 6/21/2004 to file appellant's opening brief. Extension is granted based upon counsel Roger Teich's representation that he anticipates filing that brief by 6/21/2004. After that date, no further extension will be granted.
May 19 2004Counsel's status report received (confidential)
  from atty Teich.
May 24 2004Letter sent to:
  counsel advising that the court is considering whether to unseal, on its own motion, the documents that are the subject of appellant's motion to unseal records sealed by the trial court, filed on February 27, 2004. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, if they wish, on or before June 7, 2004, addressing whether any of the documents in question is "required to be kept confidential by law" Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports (continued) sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
Jun 3 2004Request for extension of time filed
  by respondent to file response to court's letter of May 24, 2004. (1st request)
Jun 3 2004Motion filed (AA)
  by respondent for release of sealed records necessary to respondent to the court's letter of may 24, 2004.
Jun 7 2004Filed:
  appellant's response to court's letter of 5-24-2004.
Jun 8 2004Extension of time granted
  to 7/7/2004 to respondent to file response to this court's 5/24/2004 letter regarding appellant's request to unseal transcripts.
Jun 16 2004Motion for access to sealed record granted
  Respondent's "Motion by Respondent for Release of Sealed Records Necessary to Respond to this Court's May 24, 2004, Letter Addressing California Rules of Court, Rule 243.1(d)" is granted. The clerk is directed to transmit to respondent, under seal, copies of the following proceedings: (1) the reporter's transcript of an in camera hearing held on July 16, 1996 before the Honorable David M. Horwitz, Judge, and attended by only the prosecutor (pp. 1-7), and (2) the reporter's transcript of an in camera hearing held on August 9, 1996 before the Honorable James A. Bascue, Judge, and attended by only the prosecutor (pp. 9-10).
Jun 21 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
Jun 23 2004Compensation awarded counsel
  Atty Teich
Jun 23 2004Extension of time granted
  to 8/20/2004 to file appellant's opening brief. Extension is granted based upon counsel Roger Teich's representation that he anticipates filing that brief by 8/20/2004. After that date, no further extension will be granted.
Jul 7 2004Filed letter from:
  respondent, dated 7-6-2004, in response to court's letter of 5-24-2004.
Jul 14 2004Counsel's status report received (confidential)
  from atty Teich.
Jul 28 2004Order filed
  Appellant's "Motion to Unseal Records Sealed by the Trial Court and to Augment the Record on Appeal to Include Probation Report," filed on February 27, 2004, is granted in part and denied in part. In the following respects, the motion is granted. The clerk is directed to provide appellant and respondent with a copy of (1) the reporter's transcript of an in camera hearing held on July 16, 1996, before the Honorable David M. Horwitz, Judge, and attended by only the prosecutor, pages 1 through 7, (2) the reporter's transcript of an in camera hearing held on August 9, 1996, before the Honorable James A. Bascue, Judge, and attended by only the prosecutor, pages 9 through 10, and (3) the reporter's transcript of an in camera hearing held on May 29, 1997, before the Honorable William R. Pounders, Judge, and attended by Albert De Blanc, Jr., and Henry Hall (codefendants' counsel), pages 113 through 118. It is ordered that only counsel for appellant and counsel for respondent, and their respective investigators, may use the copy of the materials described in the preceding paragraph. Use of such materials is limited to this appeal and to any petition for writ of habeas corpus challenging the lawfulness of confinement pursuant to the underlying judgment of death. To the extent the parties quote or describe such materials in court papers, those papers must themselves be filed or lodged under seal. On the court's own motion, the parties having received notice and an opportunity to be heard, the clerk is further directed to reseal the materials described in the preceding paragraph of this order. In all other respects, the motion is denied.
Aug 16 2004Request for extension of time filed
  to file appellant's opening brief. (10th request)
Aug 18 2004Extension of time granted
  to 9/10/2004 to file appellant's opening brief. Extension is granted ased upon counsel Roger Teich's representation that he anticipates filing that brief by 9/10/2004. After that date, no further extension will be granted.
Aug 25 2004Compensation awarded counsel
  Atty Multhaup
Sep 10 2004Request to file document under seal filed (AA)
  appellant's application to file Claim XX of appellant's opening brief under seal.
Sep 10 2004Received:
  Conditionally under seal appellant's opening brief Claim XX. (72,374 word AOB received under separate cover and not filed pending disposition of motion to file under seal).
Sep 29 2004Appellant's opening brief filed
  (223 pp.)
Sep 29 2004Order filed
  Appellant's "Application to File Portion of Appellant's Opening Brief (Claim XX) Under Seal," filed on September 10, 2004, is granted. George, C.J., was absent and did not participate.
Sep 30 2004Filed:
  Claim XX of appellant's opening brief under seal. (8 pp.)
Sep 30 2004Letter sent to:
  respondent advising that pursuant to the California Rules of Court, rule 36(c)(1)(B), respondent's brief will be due on or before 1-27-2005.
Oct 12 2004Compensation awarded counsel
  Atty Teich
Jan 21 2005Request for extension of time filed
  to file respondent's brief. (1st request)
Jan 24 2005Extension of time granted
  to 3/28/2005 to file respondent's brief.
Feb 7 2005Motion for access to sealed record filed
  respondent's Application for Copies of Sealed Transcripts.
Feb 8 2005Filed:
  letter from appellant, dated 2-4-2005, advising he has no objection to court providing respondent with copy of sealed transcripts (1 CT Supp. at 26-97, 140).
Feb 17 2005Letter sent to:
  counsel, advising that the court is considering whether to unsel, on its own motion, pages 27-97, and 140, of the Supplemental Clerk's Transcript. Counsel may serve and file response on or before 3/1/2005.
Feb 17 2005Note:
  DAG Rodriguez advises that respondent does not intend to file response to this court's letter of 2/17/2005.
Feb 22 2005Note:
  Atty Teich called to advise that he does not intend to file a response to the court's letter of 2/17/2005 and he does not oppose the court unsealing certain portions of the CT.
Mar 2 2005Record ordered unsealed
  Respondent's "Application for Copies of Sealed Transcripts," filed February 7, 2005, is granted. On the court's own motion, the Clerk of this court is directed to unseal pages 26 through 97, and page 140, of the Supplemental I Clerk's Transcript. The Clerk is further directed to provide respondent with a copy of the unsealed portions of the supplemental clerk's transcript identified above. George, C.J., was absent and did not participate.
Mar 22 2005Request for extension of time filed
  to file respondent's brief. (2nd request)
Mar 25 2005Extension of time granted
  to 5/26/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Zee Rodriguez's representation that she anticipates filing that brief by 5/26/2005. After that date, no further extension will be granted.
May 3 2005Respondent's brief filed
  (52,482 words; 178 pp.)
May 3 2005Filed:
  argument XX of respondent's brief UNDER SEAL. (confidential) (See court's order of July 28, 2004.)
Jun 30 2005Request for extension of time filed
  to file reply brief. (1st request)
Jul 5 2005Extension of time granted
  to September 6, 2005 to file appellant's reply brief.
Sep 2 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Sep 9 2005Extension of time granted
  to 11/18/2005 to file appellant's reply brief. Extension is granted based upon counsel Roger Teich's representation that he anticipates filing that brief by 11/18/2005. After that date, no further extension is contemplated.
Nov 18 2005Appellant's reply brief filed
  (35,923 words; 207 pp.)
Nov 18 2005Filed:
  argument XX of appellant's reply brief UNDER SEAL (confidential) (See court's orders of 7/28/2004 and 9/29/2004)
Nov 22 2005Compensation awarded counsel
  Atty Multhaup
Nov 22 2005Compensation awarded counsel
  Atty Teich
Jan 19 2007Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 5, 2007, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Feb 8 2007Case ordered on calendar
  to be argued Tuesday, March 6, 2007, at 1:30 p.m., in San Francisco
Feb 14 2007Filed letter from:
  from attorney Roger Teich, dated February 13, 2007, re focus issues for oral argument.
Feb 20 2007Filed letter from:
  Deputy Atty General Zee Rodriguez, dated February 20, 2007, re: focus issues for oral argument
Feb 22 2007Received:
  letter from Deputy Atty General Zee Rodriguez, dated Februray 22, 2007, re additional authorities for oral argument.
Feb 23 2007Received:
  letter from atty Roger Teich, dated February 23, 2007, re additional authorities for oral argument.
Mar 6 2007Cause argued and submitted
Mar 8 2007Compensation awarded counsel
  Atty Multhaup
Mar 8 2007Compensation awarded counsel
  Atty Teich
Mar 12 2007Filed:
  letter with attachments from atty Roger Teich, dated March 12, 2007, re Claim III (Batson/Wheeler claim) of appellant's opening brief.
Mar 19 2007Filed:
  letter from Deputy Attorney General Zee Rodriguez, dated March 19, 2007, in response to appellant's letter of 3/12/2007.
May 23 2007Notice of forthcoming opinion posted
May 24 2007Opinion filed: Judgment affirmed in full
  majority opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
May 31 2007Order appointing Habeas Corpus Resource Center filed
  Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Andrew Lancaster for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of appellant Andrew Lancaster.
Jun 7 2007Rehearing petition filed
  by appellant. (1,994 words; 11 pp.)
Jun 11 2007Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 22, 2007, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 18 2007Rehearing denied
  The petition for rehearing is denied.
Jul 18 2007Remittitur issued (AA)
Jul 19 2007Related habeas corpus petition filed (post-judgment)
  by the Habeas Corpus Resource Center; case no. S154541.
Jul 31 2007Received:
  receipt for remittitur.
Sep 7 2007Change of contact information filed for:
  atty Teich.
Sep 11 2007Motion for access to sealed record filed
  Lancaster's application for an order allowing (habeas corpus) counsel access to the electronic record and to inspect and copy sealed and confidential transcripts in the record on appeal.
Oct 15 2007Received:
  Copy of "Motion for Permission to Proceed In Forma Pauperis" on petition for writ of certiorari to the Supreme Court of California in the U.S.S.C.
Oct 22 2007Received:
  letter from U.S.S.C. advising cert petn filed on October 16, 2007; No. 07-7054.
Nov 1 2007Compensation awarded counsel
  Atty Multhaup
Nov 28 2007Order filed
  Petitioner's "Application for an Order Allowing Counsel Access to the Electronic Record and to Inspect and Copy Sealed and Confidential Transcripts in the Record on Appeal," filed on September 11, 2007, is granted in part and denied in part. The Clerk is directed to provide petitioner with a copy of (1) the reporter's transcript of an in camera hearing held on August 9, 1996, before the Honorable James A. Bascue, Judge, and attended by the prosecutor, pages 9 through 10, and (2) the reporter's transcript of an in camera hearing held on May 29, 1997, before the Honorable William R. Pounders, Judge, and attended by Albert De Blanc, Jr., and Henry Hall (codefendants' counsel), pages 113 through 118. Only counsel for petitioner and his investigator may use the copy of the materials described in the preceding paragraph. Use of such materials is limited to any petition for writ of habeas corpus challenging the lawfulness of confinement pursuant to the underlying judgment of death. To the extent petitioner quotes or describes such materials in court papers, those papers must themselves be filed or lodged under seal. The Clerk is further directed to reseal the materials described in the preceding paragraph of this order. Petitioner's request for access to the electronic record is denied without prejudice, subject to an explanation why present counsel cannot either (a) obtain its own copy from the clerk of the superior court, as it was entitled to receive by former rule 39.56(2), California Rules of Court (as of January 1, 1999; see now rule 8.622(e)(2)), or (b) obtain a copy from either appellate counsel or CAP, both of whom by rule should have been given copies of the electronic record. In all other respects, the application is denied.
Jan 7 2008Certiorari denied by U.S. Supreme Court

Sep 29 2004Appellant's opening brief filed
May 3 2005Respondent's brief filed
Nov 18 2005Appellant's reply brief filed
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website