Opinion
E052539
05-15-2012
THE PEOPLE, Plaintiff and Respondent, v. ANDRES CAMPOS, Defendant and Appellant.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SWF022596)
OPINION
APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const). Affirmed in part; reversed in part with directions.
Diane Nichols, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine Gutierrez and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Andres Campos, of first degree murder (Pen. Code, § 187, subd. (a)), during which he discharged a firearm causing death (§ 12022.53, subd. (d)) and found true the special circumstances that the murder was committed while defendant was lying in wait (§ 190.2, subd. (a)(15)) and during a robbery (§ 190.2, subd. (a)(17)). He was sentenced to prison for life without the possibility of parole plus 25 years to life. He appeals, claiming there was insufficient evidence to support the robbery special circumstance, the lying in wait special circumstance is constitutionally defective, and sentencing error occurred. We reject his first two contentions and therefore affirm his conviction and the true findings. The parties agree that the sentencing court erroneously imposed an assessment and a fee and we reverse those. The parties also agree that the minutes of the sentencing hearing and the abstracts of judgment reflect the imposition of a parole revocation fine which the sentencing court did not order. Therefore, we direct the court to omit references to the assessment, the fee and the fine in the minutes of the sentencing hearing and abstracts of judgment. Otherwise, we affirm the sentence imposed.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS
On July 14, 2007, defendant, who was acquainted with the victim, lured the victim, who was driving his mother's Ford Expedition, to a remote portion of rural property on which defendant's family lived and fatally shot the victim three times. After delivering the final shot, defendant reached into the victim's pocket, removed the keys to the Expedition, drove it to Anaheim, where he left it for a while, then picked it up and drove it to Tijuana, where he attempted to sell it. He was arrested by the Mexican authorities. More facts will be mentioned in connection with the issues addressed.
ISSUES AND DISCUSSION
1. Insufficient Evidence of the Robbery Murder Special Circumstance
During his second interview with the police, defendant said he had killed the victim and the police were not going to find the victim's body. Defendant said that he killed the victim because the latter "fucked up." Defendant repeated this during his third interview, which was with the case agent. He explained during that interview that in May 2007, he was walking down a street in Corona, wearing an O.C. sweater, when a truck with several young men in it, including the victim, drove by and asked defendant if he lived around there and told defendant to remove his sweater. All the young men in the truck got out and each had a bat or knife. Defendant said he had to run away because the young men were going to kill him. They threw rocks at him. One of them cornered defendant in a garage "and was going to take out the gun[,]" but a lady came by and asked what was going on and started to dial her phone, causing defendant and his pursuer to leave.
Defendant said that he and the victim met up again on July 4, 2007, during which time the victim gave defendant an O.C. tattoo at the victim's house. Although defendant felt that the victim had done an unsatisfactory job with the tattoo that was not the reason defendant later killed the victim. That day, while defendant was riding around in the victim's car, he noticed the tattoo on the victim's right arm and recognized it as the same as the tattoo that had been on the arm of one of his assailants in May. Defendant hypothesized that the victim knew all along that defendant was the person the truck full of young men had accosted in May and the victim was planning to do "stupid shit" to defendant. Defendant felt it was a him-or-me situation and defendant was protecting himself by killing the victim. He began plotting the murder when he and the victim were together on July 4.
The victim's mother testified that the Expedition belonged to her and her husband and the victim has his own car, but he occasionally borrowed the Expedition. When defendant spoke about the Expedition during the third interview, he did not distinguish it from the vehicle the victim was driving on July 4. Specifically, he did not say that when the victim picked him up on July 14, he was driving a vehicle different from the one the victim had been driving on July 4, which would have been a natural thing for defendant to do. Therefore, defendant's assertion that he could not have planned to take the Expedition before the victim showed up to pick him up on July 14 is speculation. Moreover, even if the victim had been driving his own car and not the Expedition on July 4, defendant could have formed the intent to steal the victim's car before July 14, then, upon seeing the victim arrive in the Expedition on July 14, altered his intent to accommodate the different vehicle. Finally, defendant could have formed the intent to steal the Expedition immediately upon seeing it on July 14 and defendant still would have had independent, albeit concurrent, intents in killing the victim. (See discussion in text below.) As the People correctly point out, defendant need only to have formed the intent to take the Expedition before or while killing the victim (see People v. Lindberg (2008) 45 Cal.4th 1, 27).
Defendant said that he called the victim's cell phone on July 14 and asked the victim to come and pick him up and take him to the property where his family lived in Lake Elsinore. Defendant admitted that he planned the murder—he already had the gun when he called the victim. After they arrived there, the Expedition was parked outside the property as the gate was locked. Defendant asked the victim if the latter wanted to walk around and they walked down a road. They drank and talked about girls and "[stuff] like that." He deliberately took the victim deep into the property where defendant's family would not find the victim. Defendant asked the victim why the victim "fucked up" on defendant and for the identities of the victim's "homies" who had tried to "get" defendant during the May incident. The victim lied, saying he was not involved, so defendant felt he had to kill the victim. Defendant told the victim that he was a liar and shot him three times, while continuing to accuse the victim. Defendant said if he had not killed the victim, the victim would have killed him. After the third shot, defendant reached into the victim's pocket, retrieved the keys to the Expedition and left in it. Although he denied thinking about the Expedition before he shot the victim, at some point he realized he'd have to get rid of it so his parents wouldn't see it. He drove the Expedition to Anaheim and left it there, then returned days later with his roommate and brought it to Corona. He called another friend and asked the latter to go with him and his roommate to Tijuana, telling the latter that the vehicle had been "passed on to him." He tried to sell it in Tijuana and the Mexican police confronted and detained him and his companions. When the Expedition was returned to the victim's mother, the back seat and television/stereo were missing.
Defendant said that if his parents had been home when he got there, he would not have killed the victim there.
Defendant's sister testified that defendant's car was parked at the family's Lake Elsinore property, but it didn't run. Defendant came to the property two weeks before July 23, 2007 in the Expedition, with his roommate and another person, saying he was going to go for a walk. Defendant walked down towards the two others, then disappeared for half an hour, before returning to the family home.
When the Expedition was recovered in Tijuana, with defendant at the wheel, it had a license plate on it that belonged to another vehicle. A law enforcement officer testified that this was called "cold plating," whereby car thieves will put a plate from a vehicle that had not been stolen onto a vehicle that had been stolen because the police would be looking for vehicles with stolen plates. He also testified that car thieves often park a stolen car somewhere and leave it for a few days to figure out if the car has a theft detection system in it—if it does, the police will retrieve the vehicle during those few days.
The prosecutor argued to the jury, "[Defendant] had no vehicle. You saw pictures of [his] vehicle that obviously hadn't run in months. He would obviously have profited from this type of crime. This not just a murder. This was a taking of a vehicle that they planned to sell for a substantial amount of money." The prosecutor continued, "The third way to get to first degree murder is during the commission of a felony. . . . [Defendant] intended to . . . rob [the victim]. And [defendant] did, in fact, . . . rob [the victim]. And during that transaction, also killed [the victim]. As long as all of those happened, as part of the continuous transaction, and the defendant not only intended to commit murder, but also intended to commit th[i]s other crime, then it is felony murder. [¶] . . . [¶] The felon[y] do[es]n't count, however, if it's just an act of God, if it wasn't part of the original plan, if it was merely incidental to the murder. . . . [¶] Let's say a person intended to rape and kill a woman. And he does rape and . . . kill[] the person consistent with his plan. And after he does that, he decides to take a necklace . . . as a momento or a token of his crime. The rape would count for felony murder, because he had an independent intent to commit both the rape and murder. Those were both his end objectives. And that thought process occurred prior to the commission of the murder. [¶] The robbery . . . came along as an afterthought. It wasn't really one of the main purposes. It was just something he thought about afterwards. That would not count. [¶] In this case, if he had killed [the victim], and then [as] an afterthought [said, „W]hat am I going to do with the [Expedition] now? I've got to get it off my parents' property. They're going to find out I killed him.[' [Defendant is] going back to ditch the [Expedition] in a river. This is all stuff he came up with afterwards. The robbery would be incidental, because it was not part of the crime he intended to do, just something he came up with afterwards to conceal his crime. [¶] But that is not what happened here. It's just not an incidental afterthought. They took the time to cold plate the [Expedition], to conceal the stolen nature of the vehicle. They were able to obtain a plate to put on that car, as sophisticated car thieves do. [¶] . . . [T]hey must have left [the Expedition in Anaheim] for several days, . . . [w]hich would be something that experienced car thieves would do, leave the car for a period of time and find out if it's lojacked, if it's got a tracking mechanism. [']And we'll move it after it's been sitting a while.['] They took it down to T[ijuana] and they planned to sell it for $10,000. That is a whole lot of activity for something that was just an afterthought. [¶] . . . [¶] The robbery in this case is charged because of the taking of the keys. . . . [¶] You heard the defendant talk about taking the keys from the victim after the murder. . . . [T]hese are things that he must have planned to do prior to or during the murder. . . . This is not the same as saying that this was the motive for the murder, or the reason that the murder occurred. The murder may have well had to do with anything else. It could have nothing to do with the [Expedition], or the $10,000 they hoped to get. . . . [¶] The question is, whether or not he intended to commit th[i]s crime[] at the same time or prior to the murder. . . ."
As to the special circumstance of murder during a robbery, the jury was instructed, "To prove that this special circumstance is true, the People must prove that: [¶] 1. The defendant committed robbery . . . ; [¶] 2. The defendant intended to commit robbery . . . ; [¶] 3. The defendant did an act that caused the death of another person; [¶] AND [¶] 4. The act causing the death and the robbery . . . were part of one continuous transaction. [¶] . . . [¶] The defendant must have intended to commit the felony of robbery . . . before or at the time of the act causing the death. [¶] In addition, in order for this special circumstance to be true, the People must prove that the defendant intended to commit robbery . . . independent of the killing. If you find that the defendant only intended to commit murder and the commission of robbery . . . was merely part of or incidental to the commission of that murder, then the special circumstance has not been proved."
In People v. Green (1980) 27 Cal.3d 1, 61, 62 (Green) [overruled in part in People v. Dominguez (2006) 39 Cal.4th 1141, 1155], the California Supreme Court held there was insufficient evidence to support a robbery special circumstance where the robbery was committed to leave the victim's corpse without anything with which it could be identified, i.e., where its sole object was to facilitate or conceal the primary crime of murder.
The first California Supreme Court case dealing with this issue after Green was People v. Murtishaw (1981) 29 Cal.3d 733. Therein, the defendant and his companion had gone shooting in the desert, but their car became disabled. (Id. at p. 743.) Defendant and his companion encountered four college students who were in the desert making a film. (Ibid.) At trial, defendant's companion testified that defendant had suggested that the four students be killed. (Id. at p. 750.) As the students were preparing to leave, defendant began firing at them, killing all but one of them. (Ibid.) In the process of shooting the students, defendant hit their car with some bullets, making it leak liquid, which caused defendant to fear that it was inoperable. (Id. at pp. 746, 752.) Three prosecution psychiatrists testified that defendant killed the students in reaction to cumulative frustration, with none saying he did it to steal their car. (Id. at p. 751.) However, defendant's companion testified that defendant had also said that he wanted to steal their car "or something like that." (Id. at p. 750.) Although the California Supreme Court called evidence that defendant killed in the course of attempting to rob the students of their car "marginal," it concluded that the above-summarized evidence suggested that defendant "acted with the concurrent goals of killing the victims and taking their car." (Id. at p. 752, italics added.) This, the high court said, distinguished the instant case from Green in that, "In contrast to Green, in which a defendant stole the victim's clothes and personal effects to conceal her identity, the theft here was not ancillary to the murder, but if [defendant's companion]'s testimony is believed, a concurrent objective. As the [prosecutor] argued to the jury in this case, the fact that defendant had an independent intent to kill and in order to kill the victims was willing to risk disabling the car, does not preclude a finding that he also acted with the intent to steal the car." (Id. at p. 752, fn. 13, italics added.)
The next California Supreme Court case to address this issue was People v. Robertson (1982) 33 Cal.3d 21. Therein, the defendant picked up a female hitchhiker, then decided he was going to have intercourse with her. (Id. at p. 31.) When she refused, he put a knife to her neck and said they were going to have intercourse. (Ibid.) As he began to have intercourse with her, she called him a variety of names and he stabbed her and cut her throat. (Ibid.) After she was dead, he took panties, a cosmetic case and a cigarette lighter from her suitcase. (Ibid.) He said he decided to kill her when she began calling him names and saying that she was going to report him. (Ibid.) During a second incident, defendant picked up a prostitute, pulled a knife on her and drove to a secluded spot. (Id. at p. 32.) When she told him force was unnecessary, he put the knife away and they engaged in sex acts. (Ibid.) She then threatened to report him. (Ibid.) He stabbed her to death. (Ibid.) He took her address book, bra and panties. (Ibid.) As with the first victim, he said he did not intend to kill her until she threatened to report him. (Ibid.) The victim of yet a third encounter with defendant, who, luckily, survived it, testified that defendant took her underwear for his "collection" and took identification cards from her wallet, leaving her with the threat that he would kill her if she reported him. (Id. at p. 33.) The first victim's cigarette lighter was found on defendant's person and her cosmetic case and underwear and the second victim's underwear and address book, along with other women's underwear, were found in defendant's home. (Id. at p. 32.) In distinguishing this case from Green, the Supreme Court said, " . . . [T]he jury could reasonably have concluded from [the third victim's] testimony and from the collection of women's underwear . . . that from the outset of both incidents defendant harbored the intent to steal some of the victims' underwear or other personal property as well as the intent to assault them sexually. Unlike in Green, such an intent to steal was entirely independent of the murders and was not planned simply as a means of concealing the killings. Because the jury could also reasonably have found that defendant killed both victims when he became afraid that they would report his intended crimes, this case appears to fall within the class of cases as to which . . . the '[robbery]-murder' special circumstance . . . may properly apply." (Robertson, at p. 52, italics added.)
In People v. Williams (1988) 44 Cal.3d 883, 927, 928, the Supreme Court rejected the defendant's contention that the failure to instruct the jury that an element of kidnapping special circumstance was that the kidnapping have an independent felonious purpose, saying, "[Defendant] conceded that he intended to kill [the victim]. . . . He had no reason to [kidnap] her other than to prolong her life for the purpose of the sexual assault [which occurred during the kidnapping]. . . . Thus, unlike Green . . . , where the robbery was an opportunistic crime committed incidentally during the murder, here the inescapable conclusion is that the kidnapping had an independent, rather than incidental purpose. . . . [¶] . . . [N]o rational jury could have found that [defendant] did not have a felonious purpose other than his ultimate goal of killing [the victim]. . . . [N]o rational jury could have failed to find that a purpose other than and in addition to killing her precipitated the kidnapping." (Id. at p. 929.)
Other cases involving jury instructions include People v. Sanders (1990) 51 Cal.3d 471, where the California Supreme Court rejected the defendant's claim that the jury should have been instructed that but for his intent to prevent the victim from testifying against him (a special circumstance) the victim would not have been killed. The court reasoned that defendant had two intents—to rob the victim and to eliminate her as a witness to an earlier crime he committed—and to hold that the special circumstance did not apply in the situation would reward defendant for having "criminal ambition greater than one who kills motivated solely by the desire to eliminate a witness." (Id. at p. 519.)
Also, in People v. Bolden (2002) 29 Cal.4th 515, the California Supreme court rejected the defendant's contention that the jury should have been instructed that in order to find him guilty of robbery special circumstance, it had to be convinced beyond a reasonable doubt that the primary motive for the killing was robbery. (Id. at p. 557.) The High Court said, "More recently, . . . we have not phrased the requirement in terms of the defendant's 'primary' motivation but instead have stated that '[c]oncurrent intent to kill and to commit an independent felony will support a felonymurder special circumstance.' [Citation.]" (Id. at p. 558.)
Finally, in People v. Brents (2012) 53 Cal.4th 599, the defendant claimed there was insufficient evidence to support a kidnapping special circumstance because the evidence "showed that his intent from the outset was to kill [the victim], and . . . the kidnapping was merely incidental to that killing. [There was] no evidence of an independent purpose to kidnap [the victim]." (Id. at p. 609.) However, the Supreme Court held, "[E]ven if defendant intended from the beginning to kill [the victim] and even if that was his primary purpose, that point is irrelevant to our analysis. The jury only needed to find that defendant also had another concurrent objective when he kidnapped [the victim]. [Citations.] If defendant intended to kill [the victim], but he wanted first to drive her around in a locked [car] trunk, . . . terrifying her before she actually died, then the independent purpose requirement of . . . Green . . . is satisfied. [Citation.] [¶] . . . [I]f the terror was at least one of his purposes—then he had the independent, concurrent purpose for the crime of kidnapping that our case law requires. [¶] . . . [¶] . . . The relevant inquiry is whether it would be irrational for a jury to conclude that defendant intended to kidnap [the victim] for some reason (such as to instill fear) that was in addition to and independent of his intent to murder her. [Citation.] Although the evidence of such a goal is far from overwhelming, it is sufficient to support the jury's verdict." (Id. at pp. 610-611.)
The concept of independent, albeit, concurrent goals—to kill and to commit the underlying felony—as an exception to Green—has consistently appeared in California Supreme Court opinions in the years since Green. (Brents, supra, 53 Cal.4th at pp. 609-610; People v. Mendoza (2000) 24 Cal.4th 130, 183 (Mendoza) [evidence that defendant committed arson both to kill the victim and to cover up evidence that he had raped her]; People v. Barnett (1998) 17 Cal.4th 1044, 1154 (Barnett) [defendant had purpose for kidnapping independent of killing the victim, therefore kidnapping was not merely incidental to murder]; People v. Zapien (1993) 4 Cal.4th 929 [defendant intended both to kill the victim and to rob her]; People v. Raley (1992) 2 Cal.4th 870, 902 (Raley) [kidnap special circumstances upheld where there was evidence that defendant kidnapped the victim for a purpose other than to kill her]; People v. Clark (1990) 50 Cal.3d 606, 609 (Clark) [arson special circumstance upheld where defendant set fire to drive occupant out of house where defendant would shoot and kill him, but fire killed the victim].)
"We must examine the evidence in the light most favorable to the prosecution and decide whether a rational trier of fact could find beyond a reasonable doubt that defendant had a purpose for the [underlying felony] apart from murder." (Raley, supra, 2 Cal.4th 870, 902; accord, Mendoza, supra, 24 Cal.4th at p. 184; Barnett, supra, 17 Cal.4th 1044, 1070.) That we are not bound by the defendant's claim as to why he committed a murder was made clear in People v. Koontz (2002) 27 Cal.4th 1041, 1080 and People v. Turner (1990) 50 Cal.3d 668, 688. In Turner, the Supreme Court noted that the defendant testified that he killed the victim in panicked response to the victim's homosexual advance and only then decided to take property from the victim. The High Court said, "Defendant suggests this is the only evidence of what occurred and implies it must therefore be accepted at face value. However, the jury was permitted to draw reasonable inferences from all the . . . evidence, and could reject portions of defendant's story . . . . Here, the record as a whole amply supports the verdicts. [¶] . . . [W]hen one kills another and takes substantial property from the victim, it is ordinarily reasonable to presume the killing was for purposes of robbery. Defendant admitted killing [the victim] and was in possession of the victim's car, wallet and television . . . ." (Ibid.)
Here, defendant did not have a working car. He called the victim and asked the victim to come and pick him up and drive him to his family's property, then seeing that his parents were not home, walked him in to a remote part of that property. Immediately upon administering the final "coup de gras" shot to the victim's face, defendant sprang into action by reaching into the victim's pocket and retrieving the keys to the Expedition, driving it to Anaheim and leaving it there to make sure it had no theft detection device in it, then cold-plating it and attempting to sell it in Tijuana. Based on this, the jury could reasonably infer that defendant murdered the victim in order to steal the Expedition. The fact that defendant, who obviously wanted to curry the favor of the case agent during the third interview, claimed during the interview that he killed the victim to retaliate for the victim and his friends almost killing him in May or to prevent the victim from killing him (the "it was him-or-me" defense) rather than admit that he also killed the victim for the Expedition is of no moment. The jury could reasonably conclude that obtaining the Expedition was one of defendant's concurrent goals—along with killing the victim for revenge, anger or in preemptive self-defense. Alternatively, the jury could have rejected defendant's claim that he killed the victim for revenge, anger or in preemptive self-defense and relied upon the above-summarized evidence to find that he killed the victim solely to acquire the Expedition.
Defendant said during the interview that no one other than he and the victim went to his parents' property in the Expedition and there was no one at the family home when he got there. His sister testified otherwise on both scores.
During the interview, the following colloquy occurred between defendant and a detective who assisted the case agent in the interview,
"Q. [THE DETECTIVE]: . . . [Y]ou were able to convince [the victim] to go up there [where he was shot]. What were you going to do with the [Expedition]? Cuz [ sic] obviously it was his car.
"A [DEFENDANT]: I . . . wasn't thinking of anything, nothing. [¶] . . . ¶]
"Q [THE DETECTIVE]: . . . [I]f your parents had been there, . . .
"A [DEFENDANT]: I wouldn't have done it.
"Q [THE DETECTIVE]: You wouldn't have done it.
"A [DEFENDANT]: . . . [W]e would have had to go somewhere else. [¶] . . . [¶] From there, I wouldn't have done shit, nothing.
"Q [THE DETECTIVE]: But they weren't home so you realized—[']Oh, it's "on"[']. So now you are thinking in your mind, 'Well, I got to convince [the victim] to get up there, but what am I gonna do with the [Expedition] afterwards?'
"A [DEFENDANT]: Well, something, yeah, it's on the way, you know. . . . I knew I had to get it out of there . . . . [¶] I already know [sic] coming like half ways [sic]
"Q [THE DETECTIVE]: So, on the way up you knew you'd have to take the truck. [¶] . . . [¶]
2. Constitutionality of the Lying in Wait Special Circumstance
Defendant contends that the lying in wait special circumstance is unconstitutional because it does not provide a meaningful distinction between those cases where it is alleged (and, if proven, result in life without the possibility of parole) and those where it is not alleged (and a 25 years to life sentence is imposed for first degree murder by means of lying in wait). He concedes that the California Supreme Court upheld the constitutionality of this special circumstance in its pre-2000 incarnation. He further concedes that Division One of this court has upheld the constitutionality of the current version of the special circumstance on the basis that the necessary distinction between the
"A [DEFENDANT]: Yeah, like . . . somewhere around here—I was like, ['O]h, the truck—what am I gonna do about the truck?' I wasn't thinking about the truck. . . . [A]ll I knew was that I had to get it away from there . . . ."
To the extent defendant suggests that the foregoing proves that he did not think of the Expedition until he and the victim were halfway on their walk to the site of the murder, it must be remembered that much of what defendant said in this regard was the result of being led by the detective. Moreover, the jury was free to reject defendant's assertion that he gave no thought to the Expedition until this late in the chronology.
Defendant's assertion in his brief that he "wanted to remove the car to avoid [his parent's] involvement" in the murder is interesting in that he left the victim's body on his parents' property and his sister testified that he came into the family home before and after going with the victim to the murder site, so she could have told his parents that he had been there, whether the Expedition was parked outside the property or not. This would have given the jury ample grounds to reject defendant's claim that he got rid of the Expedition just to "save" his parents, or merely to facilitate the murder. two is that the special circumstance requires that the killing be intentional (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309, 310 (Bradway)).
Therein, Division One of this court explained that the pre-March 8, 2000 version of the lying in wait special circumstance, which required that the murder be committed "while lying in wait," had been interpreted by courts to mean that the murder must occur immediately upon a confrontation between the defendant and the victim, i.e., during the time the defendant was lying in wait, ruling out the application of the special circumstance when the defendant waited for the victim, captured the victim and transported the victim to another location before killing the victim. (Bradway, supra, 105 Cal.App.4th at p. 308.) The post-March 7, 2000 version, which required that the murder be committed "by means of lying in wait" was designed to encompass that formerly omitted type of killing. (Ibid.)
Division One observed, "the challenge [to a statute on vagueness grounds] comes under the due process clause and 'rest[s] on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.' [Citation.] Where there is no First Amendment right implicated, such due process challenges 'are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.' [Citation.]" (Bradway, supra, 105 Cal.App.4th at p. 309.)
Defendant makes no attempt to even discuss the facts of this case in the context of this issue, pointing out those that render his sentence arbitrary.
Bradway continued, "A careful reading of the case law explaining first degree murder by means of lying in wait and the lying-in-wait special circumstance, as well as the legislative history for [the 2000 amendment], reveal that even after [the 2000 amendment] changed the language of the lying-in-wait special circumstance to comport with the language of first degree murder 'by means of' lying in wait, the special circumstance remains distinguishable because it still requires the specific intent to kill, whereas first degree murder by lying in wait does not. [Citation.] The special circumstance under section 190.2, subdivisions (a)(15) therefore does not merely repeat the elements that make a killing by means of lying in wait a first degree murder. [Citation.] In addition, it has long been held that 'first degree murder liability and special circumstance findings may be based upon common elements without offending the Eighth Amendment. [Citations.]' [Citation.] [¶] [The allegation] that the amended section 190.2, subdivision (a)(15) does not provide sufficient notice of what conduct is prohibited and fails to provide guidelines to prevent arbitrary and discriminatory enforcement is likewise suspect. Section 190.2, subdivision (a)(15) provides a clear definition of what is required to satisfy its elements. In addition to the elements of lying in wait, which are now the same as for first degree murder, a person must specifically intend to kill 'by means of lying in wait.' Any reasonable person considering [the defendant's] conduct, or planning similar acts, would know that those acts constituted murder by means of lying in wait and that the special circumstance could be alleged if the person in addition specifically intended to kill his victim by such means. [¶] As for guidelines to prevent arbitrary and discriminatory enforcement, the statute is clear as to what conduct would subject a person to possible punishment by death or LWOP. Generally, where the facts support a special circumstance allegation, the prosecutor has the discretion to seek the death penalty . . . such '"[p]rosecutorial discretion to select those eligible cases in which the death penalty will actually be sought does not in and of itself evidence an arbitrary and capricious capital punishment system or offend principles of . . . due process, or cruel and/or unusual punishment." [Citations.]' [Citation.] If so charged, the jury would then have to make a specific finding on the special circumstance before a penalty phase could be held for determining whether a defendant were to be sentenced to death or receive LWOP. At that time the jury would have certain sentencing factors to consider in making such decision. The United States Supreme Court has upheld this procedure against claims it does not provide a meaningful basis for distinguishing the few murder cases in which death may be imposed from those in which it is not, and that it does not define those factors or properly guide the jury's sentencing discretion. [Citations.] [¶] . . . [T]he statute, as amended, when reviewed in light of the existing settled law in California still requires the distinguishing element of intentional murder, 'thus eliminating murders where only implied malice has been established. [Citation.]' [Citation.] Such '"principled way to distinguish this case" from other first degree murders . . . comports with the Eighth Amendment requirements' of narrowing the class or murder for which death may be imposed. [Citation.]" (Bradway, supra, 105 Cal.App.4th at pp. 309-311.)
Citing only the lone dissenting opinion in Bradway, defendant asserts that this distinction is "superficial and not meaningful." Defendant also cites a concurring opinion in People v. Stevens (2007) 41 Cal.4th 182 in which the special circumstance was said to be violative of the Eighth Amendment because "the meaning and significance of this circumstance has not been interpreted with sufficient intellectual rigor." However, lying in wait first degree murder requires only a wanton and reckless intent to inflict injury likely to cause death (People v. Gutierrez (2002) 28 Cal.4th 1083, 1148, 1149; People v. Webster (1991) 54 Cal.3d 411, 448) while the special circumstance requires an intent to kill (People v. Poindexter (2006) 144 Cal.App.4th 572, 580). And, it was precisely this requirement of the intent to kill that the California Supreme Court held in People v. Stevens (2007) 41 Cal.4th 182, 204 (Stevens), is the "narrowing distinction . . . between the lying-in-wait special circumstance and lying-in-wait murder" that overcomes a constitutional challenge to the special circumstance.
As almost an afterthought, defendant asserts that there is also no meaningful distinction between the special circumstance and premeditated and deliberate first degree murder. Again, we disagree. "'Premeditation simply' means "'considered beforehand.'" [Citation.] For lying in wait, by contrast, the prosecution must prove the elements of concealment of purpose together with 'a substantial period of watching and waiting for an opportune time to act, and . . . immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.' [Citation.] These circumstances, taken together, present ' a factual matrix . . . distinct from "ordinary" premeditated murder . . . .' [Citation.]" (People v. Stanley (1995) 10 Cal.4th 764, 795, 796) In Stevens, supra, 41 Cal.4th 182, 203, 204, the California Supreme Court held, "In distinction with premeditated first degree murder, the lying-in-wait special circumstance requires a physical concealment or concealment of purpose and a surprise attack on an unsuspecting victim from a position of advantage. [Citations.] Thus, any overlap between the premeditation element of first degree murder and the durational element of the lying-in-wait special circumstance does not undermine the narrowing function of the special circumstance. [Citation.] Moreover, . . . concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise. [Citation.]"
3. Sentencing
a. Court Security Fee and Criminal Conviction Assessments
The parties agree that the sentencing court improperly imposed a $30 criminal conviction assessment (Gov. Code, § 70373) and a $40 court security fee (§ 1465.8) for the gun discharge enhancement. Therefore, we will order both to be stricken.
b. Parole Revocation Fine
The sentencing court did not orally impose a parole revocation fine. However, the minutes of the sentencing hearing and the abstract of judgment incorrectly state that a $10,000 parole revocation fine was imposed. We will direct the trial court to amend both documents to omit references to this fine.
There are two indeterminate abstracts of judgment in the Clerks Transcript. Both purport to report the sentence that was imposed on December 10, 2010 and neither is marked as an amended abstract. The only difference between the two is that on the earlier one, the life sentence without parole is indicated to be consecutive and on the second, it is not and the forms used are different.
DISPOSITION
The $30 criminal conviction assessment and $40 court security fee imposed for the enhancement are reversed and the trial court is directed to omit references to them and to the $10,000 parole revocation fine from the minutes of the sentencing hearing and the abstract(s) of judgment. In all other respects, the judgment is affirmed.
See footnote seven, ante, page 21.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
RICHLI
J.
KING
J.