Filed 4/4/14 P. v. Lancaster CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL LANCASTER et al.,

Defendants and Appellants.

 B242207

 (Los Angeles County

 Super. Ct. No. TA117910)

APPEALS from judgments of the Superior Court of Los Angeles County.

Arthur M. Lew, Judge. Affirmed with directions.

Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for 

Defendant and Appellant Michael Lancaster. 

Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and 

Appellant Bryan Jammahl James.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and 

Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________
2

A jury convicted defendant Michael Lancaster of second degree murder (Pen. 

Code, § 187, subd. (a))1(count 1) and willful, deliberate, and premeditated attempted 

murder (§§ 664/187, subd. (a)) (count 4). The jury found with respect to both counts that 

the crimes were committed for the benefit of, at the direction of, and in association with a 

criminal street gang (§ 186.22, subd. (b)(1)). 

The jury convicted defendant Bryan James of first degree murder (§ 187, subd. 

(a)) (count 1) and three counts of attempted murder (§§ 664/187, subd. (a)) (counts 2, 3 

& 4). The jury found that the attempted murder in count 4 was willful, deliberate, and 

premeditated. The jury found that in the commission of all counts, James personally and 

intentionally discharged a firearm causing death or great bodily injury, that he personally 

and intentionally discharged a firearm, and that he personally used a firearm. 

(§ 12022.53, subds. (b), (c ) & (d).) The jury also found that the crimes were committed 

for the benefit of, at the direction of, and in association with a criminal street gang. 

(§ 186.22, subd. (b)(1).) 

The trial court sentenced Lancaster to 15 years to life for the murder in count 1 

and a consecutive sentence of life with a minimum term of 15 years in count 4. The trial 

court sentenced James to 180 years to life and a consecutive determinate sentence of 56 

years. In count 1, James received 75 years to life (25 years to life doubled to 50 years to 

life as a second strike, plus 25 years to life for the firearm allegation). In count 2, the trial 

court imposed 18 years (nine years doubled as a second strike), 10 years for the gang 

allegation, and 25 years to life for the firearm allegation. In count 3, the court imposed 

18 years (nine years doubled as a second strike), 10 years for the gang allegation, and 25 

years to life for the firearm allegation. In count 4, James received 30 years to life (15 

years to life doubled), plus 25 years to life for the firearm allegation. 

Lancaster and James appeal on the grounds that: (1) the trial court denied their 

state and federal constitutional right to trial by jury and created a structural defect in the 

 

1 All further references to statutes are to the Penal Code unless stated otherwise.
3

proceedings requiring reversal when it exceeded its authority by reopening jury selection 

after the trial jury was sworn; (2) their rights to a unanimous 12-person verdict under the 

California Constitution was violated because all 12 jurors did not appear in court to 

affirm the verdicts, which rendered the verdicts invalid. 

James additionally appeals on the grounds that: (1) Lancaster’s jailhouse 

statements to his cellmate constituted inadmissible hearsay as to James, and the 

statements should not have been admitted into evidence against him; and (2) the abstract 

of judgment must be modified to reflect the oral pronouncement of judgment. 

Both James and Lancaster join in all arguments raised by each other to the extent 

the argument may accrue to his benefit. 

FACTS

I. Prosecution Evidence

A. The Shooting

On the evening of December 7, 2008, Stephanie Smith drove her car to the home 

where her son, Dedric Wallace, was staying with his girlfriend. Wallace was a member 

of the 94th Street Hoover gang with the moniker Kool Aid. In the front passenger seat 

was Smith’s 13-year-old daughter, Shatera Simpson, and in the rear, behind Smith, sat 

her stepdaughter, Breyanna Chase Simpson. Wallace’s girlfriend, Gretrece Fields, lived 

near the intersection of 102nd Street and Denver Street in Los Angeles. Wallace and 

Fields came out to the car, and Fields stood and spoke with Smith on the driver’s side of 

the car. A champagne-colored car drove by and almost struck Fields. 

Wallace asked Smith to take him to a gas station so that he could buy a snack. 

Wallace sat in the rear seat behind Shatera. On the way to the gas station, Breyanna 

noticed a car flashing its high beams behind them. After Wallace made his purchases, 

Smith began driving him back to his girlfriend’s. Shatera noticed a car with bright lights 

was following them very closely. Upon arriving at Fields’s home, Smith pulled over to 

park. She said, “Don’t turn around, it may be the police.” 

At that point, the car behind them pulled up alongside Smith’s car and “they 

started shooting.” Breyanna looked over and saw a gun. Shatera heard nine or 10 
4

gunshots. Wallace, who had been getting out of the car, ducked. Wallace was not 

injured. 

Smith died from multiple gunshot wounds. She suffered four wounds, one of 

which was fatal. One projectile was recovered from Smith’s body.

Breyanna fell over onto the car seat and “blacked out,” although she could still 

hear. She heard Shatera screaming. Breyanna was struck by bullets in the jaw and right 

leg. She was not able to speak for a month due to the wound to her jaw. The left side of 

her body was partially paralyzed for two or three months.

Shatera was hit three times. She suffered wounds in her arm, elbow, and thigh. 

The bullet that hit her arm traveled through her stomach and pierced her lung, causing it 

to collapse.

Police found 10 cartridge casings in the area near the shooting. All of the 

cartridge casings were “9-millimeter Luger caliber designation.” Nine of the cartridge 

casings were fired from the same firearm. The tenth was of a different manufacture and 

tests proved inconclusive as to whether it was from the same weapon. It was “not in 

great shape.” There was nothing to indicate that it was fired from a different weapon 

either.2

Three fired bullets and two bullet jacket fragments were collected from Smith’s 

vehicle. Microscopic comparison showed that four of the items were fired from the same 

gun. It could not be determined whether the smallest jacket fragment was fired from the 

same weapon. A bullet retrieved from Smith’s body and collected by the coroner was 

fired from the same firearm as the other bullets.

A bullet path analysis showed that the paths of the bullets hitting the car were 

consistent with the victims’ vehicle being stationary and the suspect’s vehicle driving 

alongside the victims’ vehicle while someone in the suspect’s vehicle fired rounds from a 

 

2 Breyanna told police there were two shooters wearing ski masks. Shatera also 

believed that there may have been two shooters.
5

semiautomatic weapon. One gun from the suspect’s car could produce the bullet 

pathways in Smith’s car.

On December 8, 2008, in the early morning hours after the shooting, Los Angeles 

Police Detective Gerardo Pantoja interviewed Wallace at Harbor UCLA Medical Center. 

Wallace described the suspect’s vehicle as a 1990-era, champagne-colored, Nissan 

Maxima with tinted windows.3 Wallace said he saw three to four male Blacks in the 

vehicle. At 10:35 a.m. on that day, Wallace telephoned Detective Pantoja and said the 

car was not a Maxima but rather an Infinity that looks like an Altima. He said it was 

champagne-colored or beige. Detective Pantoja testified that the lights in the area of the 

shooting were “milky yellow white lights.” These lights often distort the color of a car. 

At some point, Detective Pantoja showed Wallace a photograph of an Infiniti J30 that he 

had downloaded from the Internet. It was of a color similar to the one described by 

witnesses. Wallace stated that the photograph depicted the vehicle involved in the 

shooting and was also the vehicle that “banged on him two days before the shooting on 

102nd and Figueroa.”

On December 22, 2008, Detective Pantoja and Detective Tingirides again 

interviewed Wallace. The interview was audio recorded, and portions were played for 

the jury. Wallace said that when his mother was driving him to the gas station, a car was 

driving close to Smith’s vehicle and then it turned. When they were returning from the 

gas station, a car ran a red light and drove up behind them and caught up to them. The 

car put on the high beams. Wallace and his family thought it was the police. As Smith 

was pulling over to the curb to let Wallace out, all he heard was gunshots. Wallace heard 

the windows break at approximately the fifth shot, and he heard his sister screaming. 

Wallace said he hopped out of the car and ran around to stop his mother’s car because it 

had begun to roll. Wallace was sure it was one gun that fired. He could tell by the way it 

 

3 Breyanna described the car as a dark, four-door vehicle. 
6

sounded. Wallace thought he heard someone say, “Lanes,” but was not sure if it was just 

something in his head. The suspect’s car did not drive off quickly. 

Detective Pantoja showed Wallace a photographic lineup in which Eric Pious, who 

was known as Big E-Mack, was the focus. As the detective extracted the lineup from his 

notebook, Wallace pointed to Pious’s photograph and said, “That’s him, that’s him.” He 

said that Pious was the person he saw drive by and say “Denver Lanes” while he made a 

gang sign from a car on December 5, 2008. It was the same car he saw drive off when 

his mother was killed, and the shots came from that car. Wallace did not indicate that 

Pious was involved in the shooting of his mother on December 7.4

B. Investigation Leading to Identification of the Perpetrators 

1. Lancaster’s Recorded Statements in Custody

On September 2, 2009, Los Angeles Police Detective Nathan Kouri arranged to 

have Lancaster placed in a cell with Kerry Smith, a fellow Denver Lanes gang member, 

at the Los Angeles County Jail. Detective Kouri was conducting a homicide 

investigation in which Kerry5 was the focus. Kerry was known as Baby Bat Mite and 

was in state prison at the time. Timothy Booten was known as Big Bat Mite. The 

conversations in the cell that Kerry and Lancaster shared were recorded. Detective Kouri 

listened to the recording and gleaned that the two were talking about the homicide at 

102nd Street and Denver Street. He gave the information to one of the investigators in 

the Smith homicide. 

 

4 Wallace was an uncooperative witness at trial. He testified that he did not recall 

speaking with police on two occasions, and he denied making the statements he made to 

the detectives. He did not know where the shooting was coming from because he was 

ducking. When asked what a snitch was, he replied, “I don’t know. You tell me.” He 

denied being a member of the 94th Street Hoover Criminals gang, and he did not know 

who the gang’s enemies were. He denied signing the photographic lineup and writing on 

it.

5 We refer to Kerry by his first name, since his last name is the same as that of the 

murder victim.
7

The prosecutor played three audio files from the three-hour recording. The 

conversation was riddled with gang jargon, which had to be interpreted by Detective 

Samuel Marullo, who testified as a gang expert. During the conversation, Lancaster 

stated, “On Lanes, when we go to the boos on DLB I take Little E-Mack on Lanes Big EMack, Bat Mite, on Lanes, and Shady all in Bat Bar they all in this Blood on Lanes they 

go on 102nd . . . .” Lancaster continued, “Boolaid from Boova out there.” And, “I was 

all ready, Little E-Mack, I was gonna do it on Lanes but the homies already wanted Little 

E-Mack . . . on Lanes they give Blood the burner this nigga want Lady Menlo to drive 

Blood on Lanes I’m like hell no Blood on Lanes get in the bar Blood . . . go over there on 

Lanes do our stuff . . . .” Lancaster told Kerry that someone visited him in Wayside and 

brought a picture of E-Mack and asked him if he knew E-Mack. Lancaster denied 

knowing Eric Pious (E-Mack) and Timothy Booten (Bat Mite). 

Detective Marullo explained that “on Lanes” meant that Lancaster was “putting it 

on the gang as a kid or even an adult [would] say I put that on my mom, I put that on 

everything I love, I put that on God.” Detective Marullo said that “Bat Mite” was 

Timothy Booten. “Bat Bar” referred to Bat Mite’s car. “Shady” referred to Brandon 

Scott. First letters with a “k” sound (as in Crips) are replaced by the letter “b” as a way 

of showing disrespect from the Bloods. The “H” in“Hoover” was also replaced by a “b” 

as a show of disrespect. “Bool Aid” was a disrespectful way of referring to Kool Aid, 

who was Wallace.

Lancaster later told Kerry that “the nigga Boolaid from Boova” was sitting in the 

back seat behind the passenger. “It’s his Blood mama and his sister in the passenger seat 

he about jump on out of there.” Lancaster said he was telling “Little E give me the 

burner6 Blood, give me the burner Blood” over and over. Little E said, “I got it this 

mine.” “Blood mama pull up behind a bar like she was parking. Fucked up on Lanes 

pull up right beside her stop boom Blood light the bar up . . . this nigga shooting on Lanes 

 

6 A burner is a gun. 
8

he’s sparking the bar up on Lanes all you hear is screaming and shit on Lanes don’t even 

get Blood. Killed Blood’s mama she got hit in the neck . . . and Blood’s two sisters get 

hit.” Wallace “didn’t get grazed or nothing.” Based on this conversation, Detective 

Marullo was of the opinion that Lancaster was driving the car from which the shots came. 

Part of this opinion was based on the amount of detail revealed in the conversation. 

Lancaster complained that Boolaid was “going around telling everybody that Lil E-Mack 

is the one that did it on Lanes.”

In a discussion about tattoos, Lancaster told Kerry that Little E-Mack acquired a 

tattoo of a name beginning with an “H” and did not want it “whacked out.” Kerry 

confirmed that this was said by Little E-Mack. Lancaster said “that’s brazy.”7 Lancaster 

informed Kerry that Big E-Mack had changed Lancaster’s name to “KG.” He indicated 

that this meant he was “little Killa Gum from Denver Lanes.”

2. Testimony of Therowna Davenport

Therowna Davenport testified that she was Lancaster’s girlfriend and had a child 

with him. She began dating Lancaster when she was 17. Before that, since the age of 13 

or 14, she had been the girlfriend of Eric Pious. In 2007 she was interviewed twice by 

Los Angeles Police Sergeant Andrew Moody because she was a potential witness in one 

of his cases. In her September 2007 interview she told Sergeant Moody that Bryan James 

was associated with the moniker Little E-Mack. She said that someone named Charles 

James, who was actually Charles Fulton, was known as Tiny E-Mack and that Eric Pious 

was known as E-Mack. 

In an October 2007 interview, Moody showed Davenport a photograph of James, 

and she confirmed that this was the person she had referred to as Little E-Mack. 

Davenport identified other photographs of gang members, and Moody documented the 

 

7

James has a tattoo reading “Hangout III” with the dates “11-28-86 – 5-31-08.” 

The “H” in “Hangout” was not crossed out. Derrick Chambers, a Denver Lanes gang 

member also known as Baby Hangout, was killed on May 31, 2008. “Hangout III” 

referred to Baby Hangout. 
9

identifications from both interviews in reports in 2007. James was not a suspect in 

Moody’s 2007 investigation, and he was not trying to “create a persona for somebody 

named Bryan James as Little E-Mack.” 

At trial, Davenport testified that she knew Lancaster belonged to Denver Lane 

Bloods and had the moniker Baby Ru. Davenport also knew Eric Pious and knew that his 

moniker was E-Mack. She knew James as Little E-Mack and had never heard him called 

“B” or “Little B.” She did not know Pious to use the moniker Lil E-Mack, Baby E-Mack, 

or Tiny E-Mack. 

At the time of a May 7, 2009 interview with Detectives Tingirides and Pantoja, 

Davenport drove an Infiniti I30 that her grandmother owned. She would lend the car to 

Lancaster. It was “goldish, tannish” in color.

3. Probation Officer’s Testimony

In 2006, Deputy Probation Officer Harold Johnson was assigned to oversee James, 

who was on juvenile probation. At one point, Johnson wrote a report on James that was 

submitted to the court. The report had attachments regarding James’s grades, attendance, 

and “some gang-related taggings that were confiscated from a notebook that he had.” 

Detective Marullo discussed the graffiti and explained its association with the Denver 

Lane Bloods. One notation was “E-Mack 2,” which was a reference to Little E-Mack. 

4. Shoe Store Incident

On November 19, 2008, Los Angeles Police Officer Chris Marsden was 

investigating a crime that occurred at Warehouse Shoe Sale in Los Angeles. Other 

officers brought two men to the station and told Officer Marsden what had occurred. The 

men were James and Trayvonnie Odom. Odom had a cast on his arm. The records 

showed that James’s date of birth was April 9, 1989. Detective Marsden showed James a 

photographic lineup, and James identified Charles Fulton. James agreed to telephone 

Fulton, whom he called Tiny E-Mack, to try to convince him to turn himself in or at least 

speak with Officer Marsden. Shortly after the telephone call, James and Odom were 

released. 
10

The shoe store incident was discussed by Lancaster and Kerry in Lancaster’s 

recorded statements. At one point, Kerry asked Lancaster about Lil Braze. Lancaster 

said he was “up in here somewhere” in “Supermax.” Lancaster told Kerry that Lil Braze 

was arrested with two others, one of whom was Lil E-Mack, who “bailed out right then 

and there.” Kerry stated that “Tiny and them get caught in a store and Blood called Tiny 

from the police station like man come turn yourself in and some more shit.” Lancaster 

later said that “Little E got DPed for that little shit when they went to the little shoe place 

whatever.”8 “Bone” was “supposed to get DPed too, but he had the cast on.”

An investigation by Detective Pantoja into the shoe store incident showed that 

Charles Fulton, Antoine Pruitt, and James were arrested on May 12, 2009. The records 

showed that James arrived at a custodial facility on May 12, 2009, and was released on 

May 13, 2009. The records showed that Pruitt was booked on May 12, 2009, and was 

released on November 5, 2009. Charles Fulton was booked on May 12, 2009, and was 

released on September 4, 2009. Detective Pantoja obtained a bail receipt for James. It 

showed that bail was posted on May 13, 2009. 

5. Detective Flaherty’s Information

On December 10, 2008, Detectives Pantoja and Tingirides met with Detective 

Patrick Flaherty, who was an expert on the Denver Lanes gang. Flaherty knew James as 

a Denver Lanes gang member with the monikers Little B and Little E-Mack. Flaherty 

had never heard of any other Denver Lanes member being referred to as Little E-Mack. 

Eric Pious was always known as E-Mack. Flaherty stated that gang members sometimes 

gave one moniker to the police but used a different moniker “within the hood.” Flaherty 

was also familiar with Lancaster as a member of the Denver Lane Bloods. 

6. James’s Cell Phone and Facebook Accounts

On May 17, 2011, Detective Flaherty arrested James in Denver Lane territory. 

James had a cell phone in his possession. The phone was kept with James’s property 

 

8 “DP” signifies “discipline.”
11

when he was booked. Detective Pantoja retrieved James’s cell phone around August 2, 

2011. Detective Pantoja arranged for a forensics report on the contents of the phone and 

the phone number.

In relation to the Smith shooting, Detective Kouri wrote a search warrant for a 

Facebook account with the user name E.S.O. James. In response to the search warrant, 

Kouri received an e-mail with a lengthy attachment regarding that Facebook account. 

Kouri turned over the information to the detectives handling this case.

Among the messages on the Facebook page by E.S.O. James, there were numerous 

messages advising people to call or text the telephone number that belonged to the cell 

phone taken from James when he was booked. On May 6, 2011, E.S.O. James wrote a 

message on Facebook that stated that he was “Lil E-Mack.”

On April 9, 2011, James’s birthday, the Facebook account contained a number of 

messages wishing the account holder a happy birthday. Numerous photographs posted 

on the Facebook account depicted James. One photograph depicted Calvin Cannon, 

known as Baby E-Mack, James, and a female. The caption read, “Deuce, Three, and 

Lady E we just missing Tyne and Big.” Detective Marullo testified that “Deuce” referred 

to the number two, and James, as Lil E-Mack, was number two in the E-Mack lineage. 

Calvin Cannon was number three. Charles Fulton (Tiny E-Mack) and Eric Pious (Big EMack) were not in the photograph. 

Another Facebook photograph showed James and Cannon and was captioned “Da 

2nd and 3rd.” One photograph depicted James and Cannon with other people. A 

comment about that photograph by someone with the user name Queensha Gotti stated, 

“Aww me fave bros Emack 1&3 ann the Braze nd Moe’ster ilyall.” E.S.O. James 

responded, “Emack 1 not even in that.” Queensha Gotti replied, “Ma fone touuch skreen 

ment to putt 2 LOL SDFU damn u know I lovee yuuu fasho fasho.” Another Facebook 

photograph showed James and was titled “My BFF Lil Emack Ima kill hm 4 dis tatt its 

cute but Ima kill him but ilma BFF.”
12

C. Gang Evidence 

In his testimony as a gang expert, Detective Marullo stated he was familiar with 

the Denver Lane Bloods, and the gang had more than 200 members. The primary 

activities of the gang included murders, attempted murders, shootings, possessing 

handguns, selling narcotics, and robberies. The gang claimed territory bordered by 105th 

Street, Vermont, the 110 freeway, and 120th Street. Lancaster was a member of the 

Denver Lane Bloods with the monikers Baby Ru Blood and KG. Lancaster had a tattoo 

between his eyes with the letters “K” and “G.” KG stands for “Killa Gum.” The word 

“gum” was a disrespectful way of referring to a Broadway Gangsta gang member. 

Lancaster had numerous tattoos testifying to his membership in the Denver Lane Bloods. 

Marullo testified that James was a member of the Denver Lane Bloods and had the 

monikers Little B and Little E-Mack. Marullo was not aware of anyone other than James 

being known as Lil E-Mack. James had tattoos attesting to his membership in the Denver 

Lanes gang. The December 7, 2008 shootings occurred in Hoover territory. Wallace was 

a member of the Hoover gang with the moniker Kool Aid. Wallace had several Hoover 

gang tattoos on his body.

Detective Marullo stated that if someone in a gang took undeserved credit for a 

mission, he would be disciplined, and the false statements would also be “an obstacle to 

gang members’ aspirations, and that is to be respected in the gang and respected as a 

gangster.” A gang member who said someone was a shooter when that person was not 

would suffer the same consequences. 

In response to a hypothetical matching the facts of this case, Detective Marullo 

stated that he was of the opinion that the Smith shooting was done for the benefit of, at 

the direction of, and in association with a criminal street gang. He said it was a “classic 

gang drive-up shooting.” The crimes were done in association with a criminal street 

gang, since two members of the Denver Lane Bloods committed the crimes together. The 

crimes were done at the direction of the gang because the tape-recorded conversation 

showed that the “big homies actually wanted one of the two Denver Lane Blood gang 

members to do the shooting.” The crimes benefitted the Denver Lane Bloods because it 
13

was “an attempt to eliminate an enemy gang member.” The shooting also served as a 

deterrent because it showed that the gang would “shoot up your whole family to get at 

you and to get at the Hoovers.” The crimes would also bring respect to the gang.

Detective Marullo testified that the crimes would uplift the status of an individual 

gang member. The driver in the hypothetical could claim this mission as well as the 

shooter. The driver went “boldly into the enemy’s neighborhood so that the passenger in 

this hypothetical could shoot and kill.”

II. Defense Evidence

A. James’s Evidence

James presented evidence that, on a number of occasions between December 8, 

2005, and August 26, 2010, Los Angeles police officers filled out field interview or 

identification cards after having contact with James. James told the officers that his 

nickname was Little B, B, or YB. One card showed that James told an officer on 

January 16, 2006, that his nickname was “either Little B or Face.” On September 17, 

2009, James told an officer that his moniker was Young Blood. James admitted that he 

was a member of the Denver Lane Bloods, and he was sometimes contacted along with 

other gang members. James said he was born on April 9, 1989.

On December 16, 2009, the date of James’s arrest in the instant case, two field 

interview cards were filled out, and both stated that James’ moniker was Lil E-Mack. 

B. Lancaster’s Evidence

Lancaster testified in his own behalf. He became a member of the Denver Lanes 

when he was around 14 or 15 years old, along with his twin brother. Lancaster admitted 

that he went by the names Killa Gum and Baby Ru. To Lancaster, Detective Marullo is 

“a crooked dude.” The detective once spoke to Lancaster about his brother getting a life 

sentence and said, “You next.” Lancaster said that Marullo was “lying about a lot of 

stuff” and Lancaster believed Marullo was trying to get him sentenced to life. Lancaster 

said he regretted getting the gang tattoos, but he did it to “fit in.” He was “through with 

gang banging” because it “messed up” his life, his mother was getting old, and he had not 

yet touched his son, who was almost three years old.
14

Lancaster said that, when speaking with Kerry, he was bragging about something 

he did not do. He was not the driver and was not involved in the shooting. Lancaster 

knew that James was not involved in the shooting either. Lancaster said that killing 

someone’s mother was “taking gang banging to a whole other stand” and that he was “not 

with that at all” because it was “not right.”

Lancaster heard about the shooting before he was in custody, and “people talk in 

county jail.” He bragged about the shooting so no one would “mess” with him. Timothy 

Booten, or Bat Mite, also told him about the shooting. 

Lancaster did not know James to be Lil E-Mack. James is Little B, YB, or Young 

Blood. The person Lancaster knew as Lil E-Mack had stolen from the Denver Lanes and 

they did not want him around anymore. Lancaster believed James did not want to take on 

that name because of that.

III. Prosecution Rebuttal Evidence

On January 23, 2007, Los Angeles Police Officer Tim Pearce and his partner filled 

out a field identification card for James. James said he was Little B from Denver Lanes. 

When Detective Pantoja talked to Detective Flaherty on December 10, 2008, Flaherty 

said that James’ moniker was Lil E-Mack. At that time, Detective Pantoja had no reason 

to believe that, nine months later, Lancaster would be in a cell stating that he was the 

driver and Lil E-Mack was the shooter. Detective Pantoja told Lancaster that a mother 

and her daughters had been shot, but did not specify where on their bodies they had been 

shot. He did not mention where Boolaid was seated in the car. Detective Pantoja 

downloaded information from the telephone that was booked as James’s property at the 

county jail. There were a lot of photographs of James on the phone.

DISCUSSION

I. Admission of Declarations Against Interest (James, joined by Lancaster)

A. James’s Argument

James contends that none of Lancaster’s statements to a fellow inmate and gang 

member, Kerry Smith, fell within the hearsay exception for a declaration against interest, 

and therefore all of this evidence was admitted in error. James asserts that the error was 
15

prejudicial and extended beyond a state law violation by infringing upon his federal 

constitutional rights to due process and a fair trial.

B. Relevant Authority

“‘Evidence Code section 1230 provides that the out-of-court declaration of an 

unavailable witness may be admitted for its truth if the statement, when made, was 

against the declarant’s penal interest. The proponent of such evidence must show “that 

the declarant is unavailable, that the declaration was against the declarant’s penal interest, 

and that the declaration was sufficiently reliable to warrant admission despite its hearsay 

character.”’ [Citation.] ‘The focus of the declaration against interest exception to the 

hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining 

whether a statement is truly against interest within the meaning of Evidence Code section 

1230, and hence is sufficiently trustworthy to be admissible, the court may take into 

account not just the words but the circumstances under which they were uttered, the 

possible motivation of the declarant, and the declarant’s relationship to the defendant.’ 

[Citation.] ‘[E]ven when a hearsay statement runs generally against the declarant’s penal 

interest and redaction has excised exculpatory portions, the statement may, in light of 

circumstances, lack sufficient indicia of trustworthiness to qualify for admission. . . . [¶] 

. . . We have recognized that, in this context, assessing trustworthiness “‘requires the 

court to apply to the peculiar facts of the individual case a broad and deep acquaintance 

with the ways human beings actually conduct themselves in the circumstances material 

under the exception.’”’ [Citation.]” (People v. Geier (2007) 41 Cal.4th 555, 584, 

disapproved on another ground in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.)

“In order for a statement to qualify as a declaration against penal interest the 

statement must be genuinely and specifically inculpatory of the declarant; this provides 

the ‘particularized guarantee of trustworthiness’ or ‘indicia of reliability’ that permits its 

admission in evidence without the constitutional requirement of cross-examination.” 

(People v. Greenberger (1997) 58 Cal.App.4th 298, 329.) A reviewing court may 

overturn the trial court’s trustworthiness finding only if there was an abuse of discretion. 

(People v. Cudjo (1993) 6 Cal.4th 585, 607.) 
16

C. Proceedings Below

James’s attorney, Richard Klink, filed a severance motion in which he argued that 

Lancaster’s statements would violate James’s confrontation rights because they were 

testimonial and constituted unreliable hearsay. The prosecution opposed the motion. At 

a hearing on the motion in January 2012, the prosecutor argued that the statements were 

admissible under the declaration against penal interest, and they were made under 

circumstances that ensured reliability. The court found that the statements were not 

testimonial, that they constituted a declaration against interest, and that they were 

reliable. The court denied the motion to sever. The court ruled that the statement was 

admissible against both defendants. 

At a proceeding in April 2012, the parties again discussed the jail cell conversation 

between Lancaster and Kerry in the context of what portions of the three-hour 

conversation would be used at trial. The trial court asked the prosecutor and Mr. Klink to 

precisely lay out what was being sought to be admitted and the objections. 

At the next proceeding, Mr. Klink argued that the entire three-hour conversation 

between Lancaster and Kerry Smith was hearsay except for the portion that the court had 

already ruled on as admissible, which consisted of Lancaster telling Kerry Smith about 

the shooting in which Smith was killed. There were three more excerpts of the recording 

that the prosecution wished to have admitted. Mr. Sanabria, Lancaster’s counsel, also 

objected, stating that the other portions were not relevant and were overly prejudicial, 

since they included discussions about other crimes. The prosecutor argued that the other 

portions were admissible under the rule of completeness in Evidence Code section 356.9 

The additional excerpts explained and provided context for the already admitted excerpt 

 

9 Evidence Code section 356 provides: “Where part of an act, declaration, 

conversation, or writing is given in evidence by one party, the whole on the same subject 

may be inquired into by an adverse party; when a letter is read, the answer may be given; 

and when a detached act, declaration, conversation, or writing is given in evidence, any 

other act, declaration, conversation, or writing which is necessary to make it understood 

may also be given in evidence.” 
17

in that they revealed the person to whom Lancaster was referring when he spoke about 

Lil E-Mack. Mr. Klink insisted that Lancaster was not present at the events he spoke 

about, leading to double hearsay. The prosecutor stated that he was bringing independent 

evidence of the incidents. With the excerpts, the prosecutor sought only to show 

Lancaster’s understanding of “who is who,” specifically, who Lil E-Mack was.

The court stated that its tentative ruling was that the disputed excerpts were 

hearsay. At argument on the following day, both defense counsel specified their specific 

objections to certain portions of the recording. The prosecutor explained line by line the 

portions of the recording he wished to use, as well as their meaning, since the language 

used by Lancaster and Kerry was obtuse gang jargon. The prosecutor also answered 

questions by the trial court regarding the hearsay or nonhearsay nature of the excerpts in 

question. After hearing further argument from Mr. Klink, the trial court ruled that it 

would admit all four excerpts, or audio files, requested by the prosecution. 

Prior to the audio files being heard by the jury, Mr. Klink again objected to certain 

portions of audio files one, two, and three on the basis of hearsay. The trial court 

overruled the objections. The prosecutor played the audio recordings during his direct 

examination of Detective Marullo, who explained what he heard on the recordings.

D. Statements Properly Admitted 

According to James, neither Lancaster nor Kerry had any reason to believe 

Lancaster’s statements would be used against him because they did not know their cell 

was bugged. James also notes that Detective Marullo stated that the shooting would 

actually enhance Lancaster’s position in the gang rather than place him in a negative 

light. Therefore, Lancaster’s statements do not constitute declarations against interest. 

James adds that, even if this Court should conclude that Lancaster’s statements were 

contrary to his social or penal interest, they still constituted inadmissible hearsay because 

they were not inherently trustworthy. This is because, although Lancaster admitted that 

he drove the car while James carried out the shooting, Lancaster also tried to distance 

himself from the killing and infliction of great bodily injury so that the onus fell on 

James. This attempt to shift blame onto James shows a lack of trustworthiness. (See 
18

People v. Duarte (2000) 24 Cal.4th 603, 614-615.) Thus the trial court erred in admitting 

the statements.

The recording transcript shows that Lancaster described telling his fellow gang 

members that “Boolaid” was out. Lancaster said he “was all ready” and “he was gonna 

do it” but the homies already wanted Little E-Mack to do it. Someone wanted a Lady 

Menlo to drive, but Lancaster said, “[H]ell, no . . . get in the [car].” They “go over there 

on Lanes do our stuff.” Later, he tells Smith that Kool Aid from Hoover was sitting in 

the back seat behind the passenger. His mama and his sister were in the passenger seat, 

and he was about to jump out. Lancaster was telling Little E, “Give me the burner, give 

me the burner” repeatedly. James replied, “[N]aw. . . I got it this mine this mine.” 

Lancaster pulled up right beside her when she pulled over and “Blood lit the bar up.” All 

one heard was “screaming and shit.” Lancaster described that they “don’t even get 

Blood. Killed Blood’s mama she got hit in the neck . . . and Blood’s two sisters get hit.”

We disagree with James’s assertions. The statements were trustworthy

declarations against interest and were therefore admissible under Evidence Code section 

1230. The fact that the conversation was surreptitiously recorded is of no consequence. 

In People v. Arauz (2012) 210 Cal.App.4th 1394 (Arauz), for example, the defendants, 

Arauz and Kline, complained that the trial court erred in admitting the jailhouse 

statements of an accomplice, Jose Velasquez, to an informant. (Id. at p. 1397.) 

Velasquez was placed in a cell next to the informant, and their conversation was secretly 

recorded. (Id. at p. 1399.) The informant said he was associated with the Mexican 

Mafia. He told Velasquez that Velasquez had been targeted by the Mexican Mafia 

because he and his associates had committed a drive-by shooting in violation of the 

Mexican Mafia’s rules. The informant said he would “run court” on Velazquez and 

report to other Mexican Mafia associates. (Ibid.)

Velasquez told the informant that he drove Arauz and Kline to the scene of the 

shooting and described the guns they had with them. He said that the two men got out of 

the car and shot two “‘homies’” from another gang. (Arauz, supra, 210 Cal.App.4th at p. 

1399.) With respect to the issue of “penal interest,” the Arauz court attached no 
19

significance to the fact that Velasquez had been surreptitiously recorded. The court noted 

only that, because Velasquez had no belief he was being recorded, his statements were 

not testimonial for confrontation clause purposes. (Id. at p. 1402.) In addition, the court 

held that, despite the fact that Velasquez thought he had been “greenlighted” and had 

named the other two gang members as the shooters, thereby shifting the blame, the 

statement was trustworthy. (Id. at p. 1401.) His statements were “‘“so far contrary to 

[Velasquez’s] interests ‘that a reasonable man in his position would not have [said it] 

unless he believed it to be true.”’” (Ibid.) Velasquez implicated himself, and his 

statements were in no way exculpatory. The specificity of his statements also added to 

their trustworthiness. The statements were thus specifically disserving and admissible as 

a declaration against penal interest. (Ibid.) The circumstances in which Lancaster made 

his statements are directly analogous to those of Velaquez. Indeed, the fact that 

Lancaster believed he could speak freely merely adds to the trustworthiness of his 

statements. (See People v. Greenberger, supra, 58 Cal.App.4th at p. 335.)

We further conclude that James cannot rely on the shooting’s potential to enhance 

Lancaster’s reputation as a means of negating that Lancaster’s statements were 

statements against his penal interest. In People v. Arceo (2011) 195 Cal.App.4th 556, the 

defendant was a gang member who was charged with two murders and with conspiracy to 

commit those murders as well as gang allegations. (Id. at p. 562.) Arceo objected to a 

witness’s testimony that an accomplice, Sergio, made boastful statements about the 

murders and described how Arceo shot one of the victims when she resisted. (Id. at p. 

576.) The court held that, to the extent Sergio’s boastful statements admitting his own 

involvement implicated Arceo, the statements were declarations against interest and 

admissible under Evidence Code section 1230. (Arceo, at p. 576.) The statements 

subjected Sergio to criminal liability, and statements that genuinely and specifically 

inculpate the declarant provide particularized guarantees of trustworthiness. (Ibid.) 

Thus, the fact that a declarant believes the criminal acts were worthy of bragging about 

does not diminish the reality of that declarant’s susceptibility to criminal liability. 
20

Sergio’s admission of his involvement “patently disserve[d] his penal interests.” (Id. at p. 

577.) 

Adding to the statements’ trustworthiness was the fact that they were not made in 

a custodial context or in a context that shifted the blame to another. (Arceo, supra, 195 

Cal.App.4th at p. 577.) Although James argues that Lancaster attempted to shift the 

blame to James by saying that James did the actual shooting while he merely drove the 

car, Lancaster’s role was similar to that of Sergio, who said he handed Arceo the gun to 

shoot one of the victims. The court deemed this an act that subjected Sergio to criminal 

liability for the murder. Lancaster admitted wanting to do the shooting and acquiring the 

gun and driving the car. He could have been under no illusion that he was shifting the 

blame. He was merely laying out the facts. Lancaster was undoubtedly aware that it was 

not wise to take credit for acts not performed, as Detective Murillo explained. Finally, 

the court noted that, as in this case, Sergio’s statements were made in the most reliable of 

circumstances, i.e., in a conversation between friends “‘“in a noncoercive setting that 

fosters uninhibited disclosures.”’” (Id. at p. 577, quoting People v. Cervantes (2004) 118 

Cal.App.4th 162, 175.) 

Lancaster’s words show that he took an active role in the crimes and that he and 

James were “relatively equally to blame.” (People v. Brown (2003) 31 Cal.4th 518, 537; 

People v. Cervantes, supra, 118 Cal.App.4th at p. 175.) “‘The question as to such 

declarations is whether under the circumstances the declarant would have been unlikely 

to say it had it not been true. To be against penal interest under the rule, the statement 

need not be made to persons who are likely to use it against the declarant in court 

proceedings. Declarations against penal interest are received notwithstanding that they 

were spoken in confidence in the expectation they would not be repeated to the 

authorities. [Citations.] Indeed, that makes such declarations more trustworthy.’ 

[Citation.]” (People v. Valdez (2012) 55 Cal. 4th 82, 144.) 

We have no doubt that, under the circumstances, Lancaster’s statements to Kerry 

met the requirements of declarations against interest and were trustworthy. We also 

reject James’s due process argument. Adherence to the rules of evidence, including 
21

Evidence Code section 1230, does not ordinarily violate due process. (People v. Lawley

(2002) 27 Cal.4th 102, 154-155; People v. Hawthorne (1992) 4 Cal.4th 43, 58.) 

II. Reopening of Jury Selection (Lancaster and James)

A. Defendants’ Arguments

Lancaster argues that, once a jury has been sworn, a trial court lacks the authority 

to allow the use of peremptory challenges to excuse a sworn juror. In this case, the trial 

court erred in reopening jury selection and seating another juror. Lancaster and James 

both contend the trial court’s failure to obtain their express waivers of this procedure 

violated the fundamental right to trial by the sworn jury and created a structural defect 

requiring reversal of the judgment of conviction. If this court finds waiver, their 

respective counsel were ineffective. 

B. Proceedings Below

On April 25, 2012, the prosecutor and the defense accepted the jury and the 12 

regular jurors were sworn. Immediately afterward, counsel approached the bench and 

Mr. Sanabria said, “I could be wrong, but did No. 4 mention something about wanting to 

talk.” The court said, “Yeah, No. 4.” Mr. Sanabria said he forgot to mention it and 

apologized. The prosecutor reminded the court that he had requested the court to delay 

swearing in the jurors until a further Evidence Code 402 hearing was held, but agreed that 

the issue with Juror No. 4 needed to be addressed as well. The prosecutor stated, “The 

court launched into it so quickly, I didn’t want to interrupt in front of the panel. And the 

People and counsel are all willing to stipulate that they be deemed unsworn at this point.” 

Mr. Sanabria and Mr. Klink both stated, “So stipulated.” The court stated, “And there is 

a stipulation that they be deemed unsworn, and I’m going to accept the stipulation, 

because I think we all agreed that they would not be sworn at this point.” 

Juror No. 4 told the court that she was a student, and her GPA would be 

compromised if she missed classes. She had been told it was too late for a refund. The 

prosecutor stated that, if he had known of her situation, he would have exercised a 

peremptory challenge on this juror, because he did not want a distracted juror. After a 

discussion, the trial court allowed the People to exercise a peremptory challenge on Juror 
22

No. 4. Another juror was selected, and the defense accepted the panel. The prosecutor 

also accepted the panel. 

The trial court pointed out that only two jurors were left for selection of alternates 

and asked if there were any objections to either of them. The prosecutor said he would 

exercise a peremptory challenge to one of them. The court then decided to select three 

alternate jurors from a new group of prospective jurors. After further voir dire, pursuant 

to a mutual agreement, the parties stipulated to three alternate jurors. The court agreed 

not to swear in the jurors until the pending Evidence Code section 402 hearing was 

finished. On the following day, the trial court held the hearing. After pre-instructing the 

jury, all of the jurors, both regular and alternate, were sworn.

C. Relevant Authority

Under the Trial Jury Selection and Management Act (the Act), a trial court has no 

discretion to reopen jury selection after the trial jury has been impaneled, even if the 

alternate jurors have not been sworn. (Code Civ. Proc., § 190 et seq.; People v. Cottle

(2006) 39 Cal.4th 246, 249 (Cottle).) The Act added Code of Civil Procedure sections 

226 and 231, subdivision (a), the latter of which provides that “‘[a] challenge to an 

individual juror may only be made before the jury is sworn.’” (Cottle, at p. 255, quoting 

Code Civ. Proc., § 226, subd. (a).) Once the jury was sworn, the trial court could 

discharge [a juror] only if there existed good cause for his [or her] removal. (Code Civ. 

Proc., §§ 233 & 234; Pen. Code, § 1089.)” (Cottle, at p. 255.) Although a trial court 

lacks authority to reopen jury selection once the 12 trial jurors are sworn, the court is not 

without recourse if a juror becomes unable to serve. “Code of Civil Procedure sections 

233 and 234 and Penal Code section 1089 provide for the removal of a juror upon a 

showing of good cause.” (Cottle, at p. 259.)

D. Waiver; Any Error Harmless

Under Cottle, once the jurors were sworn, the trial court lacked authority to reopen 

jury selection as to those trial jurors. (Cottle, supra, 39 Cal.4th at p. 255.) Cottle named 

no exceptions to this rule. Cottle reasoned that, if a party were allowed to use peremptory 

challenges to members of the jury after the jury was sworn, but before the alternates were 
23

selected, gamesmanship would be encouraged. (Id. at p. 257.) “For example, if a 

favorable juror was selected as an alternate, a party would then try to challenge a member 

of the jury so that the alternate could replace the juror. Nothing in the legislative history 

suggests an intention to create such a scheme.” (Ibid.) Since reopening jury selection 

was clearly error, it is necessary for us to decide whether defendants’ statutory rights 

under the Act were waived by defendants. 

At the outset, we disagree that defendants had to consent personally to waiving or 

forfeiting a violation of their statutory, nonconstitutional, rights. “‘The right to request a 

mistrial or to elect to continue with a particular jury is not one of the constitutional rights 

deemed to be so personal and fundamental that it may only be personally waived by the 

defendant.’” (People v. Mata (2013) 57 Cal.4th 178, 185-186.) We conclude defendants

waived any objection because their respective counsel expressly agreed to the procedure 

followed by the trial court. (People v. Benavides (2005) 35 Cal.4th 69, 88; People v. 

Ervin (2000) 22 Cal.4th 48, 73.) 

It was Lancaster’s counsel himself who reminded the court that they had forgotten 

about Juror No. 4’s request to speak to the court about her service. Immediately upon 

everyone’s realizing that the jury had been prematurely sworn, the court asked if the 

attorneys wanted to stipulate, and Mr. Sanabria said he was fine with that. The 

prosecutor, Mr. Sanabria, and Mr. Klink immediately stipulated that the jurors “be 

deemed unsworn” before the court and the parties learned what Juror No. 4’s problem 

was and before the prosecutor made any mention of the fact that the juror’s concern about 

missing classes made her an undesirable juror in his eyes. When the trial court allowed 

the prosecutor to exercise a peremptory challenge to Juror No. 4, there was no objection 

from either defense counsel. When Juror No. 15 was seated in Juror No. 4’s place, the 

prosecutor and both attorneys immediately accepted the jury panel as constituted. The 

prosecutor and both defense counsel then selected the alternate jurors by mutual 

agreement. We find no opportunity in these occurrences for the prosecutor to practice 

gamesmanship, which is one of the principal dangers that the Act sought to guard against. 

The prosecutor did not thereafter exercise another peremptory challenge on any of the 
24

jurors. Although “the parties are not free to waive, and the court is not free to forego, 

compliance with the statutory procedures which are designed to further the policy of 

random jury selection, equally important policies mandate that criminal convictions not 

be overturned on the basis of irregularities in jury selection to which the defendant did 

not object or in which he has acquiesced.” (People v. Visciotti (1992) 2 Cal.4th 1, 38.) It 

is unfair to the trial judge and to the prosecution to allow defendant to take advantage on 

appeal of an error that could have been corrected easily at trial. (People v. Saunders

(1993) 5 Cal.4th 580, 590.)

Even though the trial court, pursuant to Cottle, should not have reopened voir dire 

after the jury was sworn, defendants must show prejudice in order for their convictions to 

be reversed. (Cal. Const., art. VI, § 13; see also People v. Ervin, supra, 22 Cal.4th at p. 

73.) Defendants have made no showing that a more favorable result for them was 

reasonably probable. (Cottle, supra, 39 Cal.4th at pp. 255, 258 [error constitutes a 

statutory violation rather than a denial of a constitutional right]; People v. Anzalone

(2013) 56 Cal.4th 545, 555-557 (Anzalone) [applicable standard is whether appellants 

would have obtained a more favorable result in the absence of the error].) Lancaster 

makes no specific claim of prejudice. James claims that he suffered prejudice because 

reopening voir dire allowed the prosecutor to place on the panel a juror whom he thought 

was more favorable than Juror No. 4. As stated, the record reveals no specific advantage 

was accorded the prosecutor by the mutually agreed-upon arrangement. 

Both defendants argue that if this court finds they forfeited their objections to the 

unswearing of the jury and reopening of voir dire, their respective attorneys rendered 

ineffective assistance. In order to show ineffective assistance of counsel, defendants 

must demonstrate not only that counsel’s performance was deficient, but that “the 

deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 

U.S. 668, 687.) The defense is prejudiced whenever “there is a reasonable probability 

that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” 

(Id. at p. 695; People v. Young (2007) 156 Cal.App.4th 1165, 1172.) “A claim of 

ineffective assistance will not be accepted on direct appeal unless the appellate record 
25

makes clear that the challenged act or omission was a mistake beyond the range of 

reasonable competence.” (People v. Montiel (1993) 5 Cal.4th 877, 911.) 

We believe defendants have failed to make the necessary showing of prejudice. It 

was Mr. Sanabria, Lancaster’s counsel, who brought Juror No. 4 to the court’s attention. 

Although it is true that the prosecutor exercised a peremptory challenge to that juror, 

there is no indication in the record that either of the defense attorneys wanted to retain 

Juror No. 4. They stipulated to unswearing the jurors before Juror No. 4 discussed her 

problems. The failure to object to the court’s solicitation of a stipulation may have been 

a tactical choice made by both defense attorneys, as was allowing Juror No. 4 to be 

removed by the prosecutor’s peremptory challenge. A juror worried and distracted by 

events in his or her personal life is a disadvantage to both sides of the case.

Thus, there is not sufficient prejudice to find ineffective assistance of counsel and 

there is no reasonable probability that, absent the reopening of voir dire, a more favorable 

verdict would have resulted.

III. Taking of the Verdict (Lancaster and James)

A. Defendants’ Arguments

Lancaster and James contend that, because of the absence of one juror at the 

rendering of the verdict, they were denied their state constitutional rights to a unanimous 

verdict on all counts of conviction. They argue that their convictions must therefore be 

reversed. 

B. Proceedings Below

On the day the jury reached its verdict, the trial judge, Judge Lew, was absent. 

Judge Bacigalupo was assigned to handle the matter. It was revealed that the jury had 

reached a verdict the preceding day and had lodged those verdicts with the court clerk or 

bailiff. Judge Bacigalupo stated that there had been an in-chambers conference regarding 

Juror No. 6, who had suffered a heart attack the night before and was hospitalized. The 

juror’s wife had conveyed the information to the court. At the court’s request, Mr. 

Sanabria stated for the record that one suggestion was that, if there was a guilty verdict, 
26

they poll the 11 jurors who were present and communicate with Juror No. 6 via telephone 

at a later point or in person if he was healthy enough.

Judge Bacigalupo believed it best to contact Juror No. 6 by telephone that day. He 

had suggested this procedure to all parties off the record and everyone agreed that it 

would be a good idea. The court clerk had called Juror No. 6’s wife, who stated that 

Juror No. 6 was in the ICU unit where there was no telephone. She was on her way to 

see him and agreed to give her cell phone to her husband so that he could converse with 

the court.

The court stated that it was important that Juror No. 6 have the mental capacity to 

speak to them and that there would “be some obvious questions about his ability to fully 

understand what he did yesterday if in fact the verdict was reached yesterday and he 

voted on it.” The court noted that it would be necessary to find out if the juror was able 

to speak to them and if he was of sound mind. If so, he could be polled telephonically. 

Shortly thereafter, the court received a three-page fax from the hospital. Page 2

consisted of a letter stating: “To Whom It May Concern. The purpose of this letter is to 

verify that the juror, his name is (Juror No. 3508), and his date of birth . . . was admitted 

to Presbyterian Intercommunity Hospital on May 18, 2012, at 2:00 a.m. This 

hospitalization was unexpected. His duration is unknown. Thank you for your 

understanding regarding his jury duty absence.” Page 3 was a note stating, “(Juror No. 

3508) was taken by ambulance on May 18th at 2:00 a.m. and is hospitalized at this time, 

and henceforth unable to report to court.” 

After reading these communications, the court stated that Juror No. 6 was clearly a 

conscious person. The court suggested everyone wait to take the verdict until Juror 

No. 6’s wife arrived at the hospital and they could determine his medical condition, his 

ability to verbalize and think, and his ability to tell them what his verdict was. They 

could then poll the remaining 11 jurors. The court stated, “I would rather get him first 

before dealing with the 11.” The parties agreed to this procedure.

Mr. Klink suggested asking the attending physician whether the juror had been 

given pain medication. The court agreed that this was also a “prudent course of action.” 
27

The prosecutor pointed out that medical personnel would probably not release any 

information over the telephone. The court concluded that the juror could convey to them 

“how he’s feeling and how he’s thinking,” and the court and the parties could “get a 

sense from the patient.”

When the jurors were brought into the courtroom, Judge Bacigalupo informed 

them that Judge Lew was unavailable and that Juror No. 6 had a “medical emergency 

yesterday or last night.” The court said, “We want him to participate in this proceeding.” 

The court reviewed the verdict forms and noted that one of them was ambiguous 

“because it [was] filled out as to both. And so one is signed, one is not, but they’re both 

filled out. So I don’t know what you mean by that.” The court asked the jury to retire to 

the jury room and determine which form reflected their verdict. The court told the jury, 

“When you come back, we’ll get No. 6 on the telephone. He’s there ready to speak to us 

telephonically, and we’ll continue accordingly.” The jurors returned to the jury room for 

approximately five minutes.

When the jurors returned to the courtroom, the court announced, “The panel is 

back in the courtroom. The alternates are present. The defendants are present. All 

counsel are present. And Juror No. 6 is on the speaker phone; is that correct?” Juror 

No. 6 replied, “Yes, I am, Juror No. 6.” The court remarked, “I see the jurors are 

relieved. They’re smiling to hear your voice.” The court asked Juror No. 6 if he was 

able to “intelligently understand” the proceedings and whether he had the “mental 

faculties to understand what we are doing at this moment.” Juror No. 6 replied, “I do, 

yes, I do.” The court asked the juror, “And are you feeling any—that your head is not 

clear, that you cannot think, that you cannot understand what I’m saying or what we are 

doing?” Juror No. 6 replied, “No, I absolutely understand.” The court then asked, “And 

likewise, yesterday when the verdicts were reached, and you—and they were all finalized 

and submitted to the foreperson, and then they got sealed, did you understand what you 

were doing, and you understood what had transpired, and you had your full mental 

capacity to do that? Juror No. 6 stated, “Yes, I did. And I absolutely understood, yes.” 
28

The court asked the parties if they had any additional questions for Juror No. 6, and the 

parties said they did not. 

The court stated that it had reviewed the verdict forms, and they were signed and 

dated and filled out correctly. The court handed them to the clerk, who read the verdicts. 

Upon completing the reading, the clerk asked, “Is this your verdict, so say you one, so 

say you all?” The jurors answered collectively in the affirmative, and Juror No. 6 stated, 

“I do.” The court then asked the clerk to poll the jury beginning with Juror No. 6. When 

asked if this was his verdict as to each count as to each defendant, Juror No. 6 replied, “It 

is.” 

C. Relevant Authority 

Section 1147 provides: “When the jury have agreed upon their verdict, they must 

be conducted into court by the officer having them in charge. Their names must then be 

called, and if all do not appear, the rest must be discharged without giving a verdict. In 

that case the action may be again tried.” 

Section 1149 provides: “When the jury appear they must be asked by the Court, 

or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the 

affirmative, they must, on being required, declare the same.”

Section 1163 provides: “When a verdict is rendered, and before it is recorded, the 

jury may be polled, at the request of either party, in which case they must be severally 

asked whether it is their verdict, and if any one answer in the negative, the jury must be 

sent out for further deliberation.” 

Section 1164 provides: “(a) When the verdict given is receivable by the court, the 

clerk shall record it in full upon the minutes, and if requested by any party shall read it to

the jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact 

shall be entered upon the minutes and the jury again sent out; but if no disagreement is 

expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be 

discharged from the case. [¶] (b) No jury shall be discharged until the court has verified 

on the record that the jury has either reached a verdict or has formally declared its 

inability to reach a verdict on all issues before it, including, but not limited to, the degree 
29

of the crime or crimes charged, and the truth of any alleged prior conviction whether in 

the same proceeding or in a bifurcated proceeding.” 

Sections 1163 and 1164, when read together, “describe a culminating formal 

procedure for verifying the unanimity of the jury in open court, and thus they define the 

moment of transition for when a juror may and may not withdraw his or her affirmation 

of the verdict.” (People v. Bento (1998) 65 Cal.App.4th 179, 191.)

The jurors’ oral declaration is the true verdict regardless of the verdict forms. 

(People v. Traugott (2010) 184 Cal.App.4th 492, 500 [“it is ‘the oral declaration of the 

jurors, not the submission of the written verdict forms [that] constitutes the return of the 

verdict,’” quoting People v. Green (1995) 31 Cal.App.4th 1001, 1009]; People v. Mestas

(1967) 253 Cal.App.2d 780, 786.) Jury acknowledgement of the verdict in open court is 

essential to the validity of the verdict. (People v. Thornton (1984) 155 Cal.App.3d 845, 

858.) If the jury merely returns a written verdict, but fails to unanimously endorse the 

verdict in open court, the verdict cannot normally be sustained based solely on the written 

form. (Ibid.; see People v. Green, at p. 1009; People v. Mestas, at p. 786.)

D. Waiver; Any Error Harmless

As noted in Anzalone, a party must object to an incomplete polling to preserve the 

issue for appeal. (Anzalone, supra, 56 Cal.4th at p. 550, citing Keener v. Jeld-Wen, Inc.

(2009) 46 Cal.4th 247, 262-270.) “‘[T]he basis for the requirement of an objection to 

asserted imperfections in the polling of a jury concerning its verdict is no different from 

the basis for requiring objections to other equally important procedural matters at trial 

. . . . The requirement of an objection is premised upon the idea that a party should not sit 

on his or her hands, but instead must speak up and provide the court with an opportunity 

to address the alleged error at a time when it might be fixed.’” (Anzalone, at p. 550.) 

Anzalone also held that the failure to comply with section 1149 does not constitute 

structural error. (Id. at p. 557.) In the absence of structural error, the Watson standard10

for assessing prejudice is controlling. (Anzalone, at p. 555.) 

 

10 People v. Watson (1956) 46 Cal.2d 818.
30

In the instant case, counsel for both defendants not only did not object, they fully 

acquiesced and announced their satisfaction in the method devised by Judge Bacigalupo 

for including Juror No. 6 in the polling. Therefore, both defendants have forfeited the 

right to raise the issue on appeal. 

Even if this court were to reach the merits of the issue, however, we would find 

any error harmless. “[S]ection 1149 also requires that when the jury returns after 

reaching a verdict, the court or clerk must ask ‘whether they have agreed upon their 

verdict, and if the foreman answers in the affirmative, they must, on being required, 

declare the same.’” (Anzalone, supra, 56 Cal.4th at p. 551.) The court in Anzalone

explained that a foreman’s oral declaration is sufficient acknowledgement of the verdict. 

(Ibid.) The court asked the foreman whether the jury had reached a verdict, to which the 

foreman clearly answered in the affirmative. It is only in the individual polling that an 

irregularity occurred. 

Although a complete failure to orally acknowledge a written verdict in open court 

would normally invalidate the verdict (People v. Thornton, supra, 155 Cal.App.3d at pp. 

856-860), individual polling errors do not require reversal in the absence of a showing of 

prejudice. (People v. Masajo (1996) 41 Cal.App.4th 1335, 1339-1340.) Even on a cold 

record, it is clear that Juror No. 6 was alert and very much aware of his role as a juror. 

He demonstrated no equivocation when he was asked to affirm the verdict. Although 

there was no formal identification of his name on the record, he stated that he was Juror 

No. 6. The hospital had confirmed the juror’s name and birth date in the letter it sent to 

the court. The juror’s wife had communicated with the court, and it was her cell phone 

that was used to telephone the court. The record indicates that the other jurors recognized 

his voice. 

As for the initial discrepancy in the verdict forms noted by Judge Bacigalupo, it 

appeared to be a clerical mistake in that the jury had filled out a verdict but had signed 

another verdict form. The foreman corrected the discrepancy by scratching out his 

signature on the incorrect form. Thus, there was no difference in the verdicts reached the 

night before and the verdicts read out in the presence of the jurors. Accordingly, in view 
31

of Juror No. 6’s strong affirmation that the verdicts read in court were the verdicts he and 

the other jurors had reached during deliberations, defendants have failed to establish that 

they suffered prejudice by his telephonic appearance. 

With respect to defendants’ allusions to a violation of their due process rights, “not 

every violation of the state and federal right to a jury trial is a structural defect requiring 

reversal without regard to whether the defendant suffered actual prejudice.” (People v. 

Mil (2012) 53 Cal.4th 400, 411.) Accordingly, we conclude that in this case, 

noncompliance with section 1149 was procedural error, subject to harmless error review. 

(People v. Watson, supra, 46 Cal.2d at p. 836.) And for the reasons set out previously, 

we believe defendants suffered no miscarriage of justice as a result of the error.

IV. Error in Abstract of Judgment (James) 

James points out that the trial court imposed a sentence of 236 years to life, but the 

abstract of judgment shows a sentence of 253 years to life. James requests this court to 

correct the abstract of judgment. 

The record of the sentencing hearing shows that the court sentenced James to 180 

years to life plus 56 years of a determinate sentence. The total is 236 years to life. On 

the first page of the abstract of judgment pertaining to James’s determinate sentence, 

item 8 shows a total time, excluding any county jail term, of 236 years to life. On the 

following page, however, under item 11, entitled “Other orders” a line states “total term 

is 253 to life.” When the abstract of judgment does not reflect the sentence imposed in 

the oral pronouncement of judgment, the reviewing court has the power to correct the 

error. (People v. Jones (2012) 54 Cal.4th 1, 89.) The abstract must be amended to 

correct the error. 
32

DISPOSITION

The judgments are affirmed. The superior court is directed to correct the abstract 

of judgment pertaining to defendant James to conform to the correct total prison sentence

in all sections of the abstract and to forward a copy of the amended abstract to the 

Department of Corrections and Rehabilitation. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

CHAVEZ, J.

FERNS, J.*

_______________________________________________________________

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice

pursuant to article VI, section 6 of the California Constitution.