If the jury finds the existence of one of the special circumstances, it is instructed to "take into account" a separate list of sentencing factors describing aspects of the defendant and the crime. Cal. Penal Code Ann. § 190.3 (West 1999). These sentencing factors include, as we have said, "the circumstances of the crime of which the defendant was convicted in the present proceeding."

If the jury finds the existence of one of the special circumstances, it is instructed to "take into account" a separate list of sentencing factors describing aspects of the defendant and the crime. Cal. Penal Code Ann. § 190.3 (West 1999). These sentencing factors include, as we have said, "the circumstances of the crime of which the defendant was convicted in the present proceeding.

Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cf. Cal. Penal Code Ann. § 190.3(k) ("any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime").That defense counsel did, in fact, want the jury to take into account respondent's future potential became manifest near the end of his argument.

Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cf. Cal. Penal Code Ann. § 190.3(k) ("any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime").That defense counsel did, in fact, want the jury to take into account respondent's future potential became manifest near the end of his argument.

Instead, we simply hold that by accepting an appointment, a registry attorney is not forever foreclosed from seeking compensation should he or she establish that, given the facts and circumstances of a particular case, compensation within the statutory cap would be confiscatory of his or her time, energy and talent and violate the principles outlined in Makemson and its progeny.Turner v. Calderon, 2002 U.S. App. LEXIS 2219 (9th Cir 2/12/2002) New evidentiary hearing ordered on Turner's claims relating to trial counsel's failure to investigate and present evidence of his long-term drug use and his abusive and difficult childhood.Turner claims prejudice in Mr. Ellery's failure to develop and introduce mitigating evidence during the penalty phase. In California, the admissibility of aggravating and mitigating factors is governed by California Penal Code § 190.3, which provides for a wide range of evidence to be considered by the jury in weighing whether the penalty of death or life without possibility of parole is [*94] the more appropriate penalty for the individual before it. Far from developing and introducing the statutorily indicated evidence to aid in the jury's heavy responsibility, Mr. Ellery admitted to the judge that he was not prepared to proceed with this phase of trial.

The short period of deliberation is more likely explained by the jurors' focus on the fear Coleman might be paroled if he were not sentenced to death, and their singular attention to that concern to the exclusion of the other factors they were instructed to consider. See Cal. Penal CodeS 190.3. At the very least, we "cannot say with fair assurance,after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error."