Filed 5/24/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S073596
v.
ANDREW LANCASTER,
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.
I. FACTUAL BACKGROUND
A.
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,
2
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
1
Alexander and Rodriguez were originally charged as codefendants.
Before trial, Alexander pleaded guilty to manslaughter and accepted an offer of a
3
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.
4
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
him.
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.
5
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
him.
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.
Defendant
presented
no
evidence at the guilt phase.
6
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
2
Hereafter, we adopt the terminology used by the parties and refer to this
implement as a shank.
7
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
police.
8
II. DISCUSSION
A.
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
9
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,
10
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.
11
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
Artan.
12
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
13
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
14
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
materials.
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
15
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
Defendant
contends
his
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
16
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.
4
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
investigator.
17
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.
18
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.”
Defendant
mischaracterizes
these
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
19
would make a decision on any renewed application, though the request would
probably not be viewed with favor.
In
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
Defendant
contends
that
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
20
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
appeal.
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.)
21
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.)
22
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
Defendant
contends
his
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.)
23
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.)
24
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.)
25
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
gender.”
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
26
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
27
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.
28
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
29
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
30
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
Defendant
contends
the
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.
31
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
32
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;
33
accord, People v. Harris (2005) 37 Cal.4th 310, 331; People v. Griffin, supra, 33
Cal.4th at p. 559.)
B.
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
34
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
35
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
36
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.
Defendant
contends
the
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.
37
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.)
14
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.
38
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.
39
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
40
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
“ransom.”
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
41
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,
42
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
43
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
44
whether this special circumstance is or is not true on the form that will be
supplied.”
The trial court omitted the following paragraphs from the standard
instruction:
“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.)
45
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.
46
C.
Penalty Phase Issues
1. Defendant’s Possession of Handcuff Keys
a. Background
In
determining
whether
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
passage:
“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.
47
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,
48
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
Defendant
raises
several
arguments
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.
49
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,
15
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.)
50
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
ruling.
51
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
harmless.
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
52
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
53
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.”
54
did not believe the death penalty was appropriate. Defendant attempts to
distinguish Smith on several grounds, none of which is persuasive.
In
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.
622.)
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
55
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
56
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
idealism.
The evidence of Taylor’s opinion on the death penalty was properly
excluded.
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
57
defendant had that right, just as at the guilt phase.20 The following exchange
ensued:
“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
to.
“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.
Defendant
relies
on
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.
58
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-
59
Jamal, and attempted to draw a parallel between Jamal’s case and his own, as
follows:
“[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.”
Defendant
relies
on
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
60
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.
61
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
62
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.
63
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
64
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
alibi.
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.)
65
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
66
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
67
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
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
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.
68
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. S073596
Date Filed: May 24, 2007
__________________________________________________________________________________
Court: Superior
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, 05/24/2007 | S073596 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Zee Rodriguez, Deputy Attorney General 300 South Spring Street, Suite 1702 Los Angeles, CA |
| 2 | Lancaster, Andrew (Appellant) San Quentin State Prison Represented by Eric Stephen Multhaup Attorney at Law 20 Sunnyside Avenue, Suite A Mill Valley, CA |
| 3 | Lancaster, 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 |
| 4 | Lancaster, Andrew (Appellant) San Quentin State Prison Represented by Roger Ian Teich Attorney at Law 177 Pfeiffer Street, No. 7 San Francisco, CA |
| 5 | Lancaster, Andrew (Appellant) San Quentin State Prison Represented by David E. Groom Attorney at Law 714 SW 20th Place Portland, OR |
| Disposition | |
| May 24 2007 | Opinion: Affirmed |
| Dockets | |
| Sep 16 1998 | Judgment of death |
| Sep 23 1998 | Filed certified copy of Judgment of Death Rendered September 16, 1998. |
| Sep 23 1998 | Penal Code sections 190.6 et seq. apply to this case |
| Dec 7 1998 | Record certified for completeness |
| Jul 11 2002 | Filed: appellant's application for appointment of counsel (IFP form). |
| Jul 12 2002 | Counsel appointment order filed appointing Roger Teich to represent applt for the direct appeal. |
| Jul 22 2002 | Date trial court delivered record to appellant's counsel 4,425 pp. record |
| Jul 26 2002 | Appellant's opening brief letter sent, due: February 24, 2003 (pursuant to Calif. Rules of Court, rule 39.57(b)). |
| Aug 29 2002 | CAP CONFLICT EXISTS CAP HAS A CONFLICT OF INTEREST; attorney Eric Multhaup is providing case assistance. |
| Sep 12 2002 | Counsel's status report received (confidential) from atty Teich. |
| Nov 12 2002 | Counsel's status report received (confidential) from atty Teich. |
| Jan 9 2003 | Counsel's status report received (confidential) from atty Teich. |
| Jan 13 2003 | Compensation awarded counsel Atty Teich |
| Feb 13 2003 | Compensation awarded counsel Atty Teich |
| Feb 18 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Feb 20 2003 | Extension 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 2003 | Counsel's status report received (confidential) from atty Teich. |
| Apr 22 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Apr 24 2003 | Extension 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 2003 | Compensation awarded counsel Atty Teich |
| May 12 2003 | Counsel's status report received (confidential) from atty Teich. |
| May 21 2003 | Compensation awarded counsel Atty Teich |
| May 29 2003 | Compensation awarded counsel Atty Multhaup |
| Jun 17 2003 | Received 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 2003 | Received: application for extension of time to file appellant's opening brief. Counsel to resubmit with original signatures. Faxed signature not acceptable. |
| Jun 25 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Jun 27 2003 | Extension 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 2003 | Counsel's status report received (confidential) from atty Teich. |
| Aug 15 2003 | Record certified for accuracy |
| Aug 19 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Aug 19 2003 | Motion 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 2003 | Extension 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 2003 | Filed: Supplemantal proof of service of motion for appointment of counsel. |
| Aug 26 2003 | Motion filed (in non-AA proceeding) appellant's pro se Marsden motion. |
| Sep 9 2003 | Filed: amended declaration of David E. Groom in support of motion for appointment. |
| Sep 9 2003 | Motion for appointment of counsel filed by attorney David E. Groom for appointment as associate counsel. |
| Sep 12 2003 | Counsel's status report received (confidential) from atty Teich. |
| Sep 24 2003 | Motion denied Appellant's motion to relieve appointed counsel and appoint new counsel in his place, filed on August 26, 2003, is denied. |
| Sep 24 2003 | Order 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 2003 | Record 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 2003 | Letter sent to: counsel advising that record on appeal was filed this date. |
| Oct 2 2003 | Compensation awarded counsel Atty Teich |
| Oct 3 2003 | Compensation awarded counsel Atty Multhaup |
| Oct 21 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Oct 24 2003 | Extension 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 2003 | Counsel's status report received (confidential) from atty Teich. |
| Dec 17 2003 | Compensation awarded counsel Atty Teich |
| Dec 22 2003 | Request for extension of time filed to file appellant's openign brief. (6th request) |
| Dec 31 2003 | Extension 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 2004 | Counsel's status report received (confidential) from atty Teich. |
| Feb 24 2004 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Feb 27 2004 | Motion to unseal AA record filed Motion to unseal records sealed by the trial court. |
| Mar 1 2004 | Extension 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 2004 | Filed: respondent's response to appellant's motion for order requesting that sealed transcripts be provided to counsel for appellant. |
| Mar 15 2004 | Counsel's status report received (confidential) from atty Teich. |
| Mar 17 2004 | Compensation awarded counsel Atty Multhaup |
| Mar 23 2004 | Compensation awarded counsel Atty Teich |
| Apr 27 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Apr 30 2004 | Extension 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 2004 | Counsel's status report received (confidential) from atty Teich. |
| May 24 2004 | Letter 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 2004 | Request for extension of time filed by respondent to file response to court's letter of May 24, 2004. (1st request) |
| Jun 3 2004 | Motion filed (AA) by respondent for release of sealed records necessary to respondent to the court's letter of may 24, 2004. |
| Jun 7 2004 | Filed: appellant's response to court's letter of 5-24-2004. |
| Jun 8 2004 | Extension 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 2004 | Motion 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 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Jun 23 2004 | Compensation awarded counsel Atty Teich |
| Jun 23 2004 | Extension 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 2004 | Filed letter from: respondent, dated 7-6-2004, in response to court's letter of 5-24-2004. |
| Jul 14 2004 | Counsel's status report received (confidential) from atty Teich. |
| Jul 28 2004 | Order 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 2004 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Aug 18 2004 | Extension 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 2004 | Compensation awarded counsel Atty Multhaup |
| Sep 10 2004 | Request to file document under seal filed (AA) appellant's application to file Claim XX of appellant's opening brief under seal. |
| Sep 10 2004 | Received: 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 2004 | Appellant's opening brief filed (223 pp.) |
| Sep 29 2004 | Order 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 2004 | Filed: Claim XX of appellant's opening brief under seal. (8 pp.) |
| Sep 30 2004 | Letter 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 2004 | Compensation awarded counsel Atty Teich |
| Jan 21 2005 | Request for extension of time filed to file respondent's brief. (1st request) |
| Jan 24 2005 | Extension of time granted to 3/28/2005 to file respondent's brief. |
| Feb 7 2005 | Motion for access to sealed record filed respondent's Application for Copies of Sealed Transcripts. |
| Feb 8 2005 | Filed: 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 2005 | Letter 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 2005 | Note: DAG Rodriguez advises that respondent does not intend to file response to this court's letter of 2/17/2005. |
| Feb 22 2005 | Note: 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 2005 | Record 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 2005 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Mar 25 2005 | Extension 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 2005 | Respondent's brief filed (52,482 words; 178 pp.) |
| May 3 2005 | Filed: argument XX of respondent's brief UNDER SEAL. (confidential) (See court's order of July 28, 2004.) |
| Jun 30 2005 | Request for extension of time filed to file reply brief. (1st request) |
| Jul 5 2005 | Extension of time granted to September 6, 2005 to file appellant's reply brief. |
| Sep 2 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Sep 9 2005 | Extension 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 2005 | Appellant's reply brief filed (35,923 words; 207 pp.) |
| Nov 18 2005 | Filed: argument XX of appellant's reply brief UNDER SEAL (confidential) (See court's orders of 7/28/2004 and 9/29/2004) |
| Nov 22 2005 | Compensation awarded counsel Atty Multhaup |
| Nov 22 2005 | Compensation awarded counsel Atty Teich |
| Jan 19 2007 | Oral 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 2007 | Case ordered on calendar to be argued Tuesday, March 6, 2007, at 1:30 p.m., in San Francisco |
| Feb 14 2007 | Filed letter from: from attorney Roger Teich, dated February 13, 2007, re focus issues for oral argument. |
| Feb 20 2007 | Filed letter from: Deputy Atty General Zee Rodriguez, dated February 20, 2007, re: focus issues for oral argument |
| Feb 22 2007 | Received: letter from Deputy Atty General Zee Rodriguez, dated Februray 22, 2007, re additional authorities for oral argument. |
| Feb 23 2007 | Received: letter from atty Roger Teich, dated February 23, 2007, re additional authorities for oral argument. |
| Mar 6 2007 | Cause argued and submitted |
| Mar 8 2007 | Compensation awarded counsel Atty Multhaup |
| Mar 8 2007 | Compensation awarded counsel Atty Teich |
| Mar 12 2007 | Filed: letter with attachments from atty Roger Teich, dated March 12, 2007, re Claim III (Batson/Wheeler claim) of appellant's opening brief. |
| Mar 19 2007 | Filed: letter from Deputy Attorney General Zee Rodriguez, dated March 19, 2007, in response to appellant's letter of 3/12/2007. |
| May 23 2007 | Notice of forthcoming opinion posted |
| May 24 2007 | Opinion filed: Judgment affirmed in full majority opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ. |
| May 31 2007 | Order 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 2007 | Rehearing petition filed by appellant. (1,994 words; 11 pp.) |
| Jun 11 2007 | Time 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 2007 | Rehearing denied The petition for rehearing is denied. |
| Jul 18 2007 | Remittitur issued (AA) |
| Jul 19 2007 | Related habeas corpus petition filed (post-judgment) by the Habeas Corpus Resource Center; case no. S154541. |
| Jul 31 2007 | Received: receipt for remittitur. |
| Sep 7 2007 | Change of contact information filed for: atty Teich. |
| Sep 11 2007 | Motion 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 2007 | Received: 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 2007 | Received: letter from U.S.S.C. advising cert petn filed on October 16, 2007; No. 07-7054. |
| Nov 1 2007 | Compensation awarded counsel Atty Multhaup |
| Nov 28 2007 | Order 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 2008 | Certiorari denied by U.S. Supreme Court |
| Briefs | |
| Sep 29 2004 | Appellant's opening brief filed |
| May 3 2005 | Respondent's brief filed |
| Nov 18 2005 | Appellant's reply brief filed |
