388 F.3d 1159 | 9th Cir. | 2004
Lead Opinion
The opinion filed on July 28, 2003, is hereby amended. The clerk shall file the attached amended opinion and the attached dissent. The petition for rehearing and petition for rehearing en banc remains pending.
OPINION
Michael Morales, a state prisoner convicted of murder with special circumstances and sentenced to death, appeals the district court’s denial of his petition for a writ of habeas corpus.
We previously issued this opinion at 336 F.3d 1136 (2003). This version is identical to that one except for this paragraph, and the section on the lying-in-wait special circumstance, which appears in Part B of the Analysis section, pages 31 to 45.
Facts
A. The Murder and Investigation
Seventeen year-old Terri Winchell disappeared on a Thursday evening, January 8, 1981. Her mother lay sick in bed. Terri was getting ready to go out to pick up some food at a local restaurant. Before she left, she got a telephone call around 5:15 p.m. from Rick Ortega, a young man she knew through her friends. She spoke with him, then called her best friend Glenda Chavez. Terri told Glenda Chavez that Rick Ortega had asked her to go with him to the mall to pick out a present for his new girlfriend. Driving her mother’s car, she left to pick up the food, telling her mother she “would be right back” and would be “back within the hour.” Hours passed. Terri’s mother became increasingly worried. She called the police to report that her car was missing around 10:00 that night, and reported that Terri was missing at 8:00 a.m. the next morning.
That day, Friday, the police interviewed Terri Winchell’s mother, Terri’s best friend Glenda Chavez, and Teiri’s friend Christine Salaices. They also interviewed Terri Winchell’s boyfriend Randy Blythe.
The interviews led the police to Rick Ortega, whom they interviewed at a police station Friday night. Ortega gave the police permission to search his house and car, and they did, starting just before midnight Friday night. They found Ortega’s shoes, which were wet, and noted that the tires and undercarriage of his car were also wet. The police found blood splattered all over Ortega’s car, which smelled of ammonia. The officers returned to the station house around 1:00 a.m., Saturday morning. Around 2:00 a.m., Ortega led the police to a vineyard on the outskirts of town where they found Terri Winchell’s body.
Terri was found naked except for a shirt and bra, which were pulled up over her breasts. She had suffered six blows to the side of her head and seventeen blows to the back of her head. The base of her skull had been shattered. Her skull, cheek bones, and jaw were fractured. She had been stabbed four times in the chest. Her face and body were severely bruised and much of the skin of her front side was torn up. She had multiple wounds on her hands and forearms, typical of a person defending herself.
Michael Morales was Ortega’s cousin. He lived in Pat Flores’s house. The police came there the next morning, Saturday, with a search warrant. They found a claw hammer, not in a toolbox or tool drawer, but in the vegetable crisper in the refrigerator. Blood was found on the hammer, but there was not enough to get a blood type. They found a kitchen knife with the tip broken off in a kitchen cabinet. In a bedroom, they lifted the mattress off the box spring and found hidden between
Morales was arrested and tried and convicted for rape and murder. So was Ortega, but his separate case is not before us.
B. The Trial
The government tried Morales on three theories of first degree murder-murder with premeditation, murder by torture, and murder by lying-in-wait — and two special circumstances — intentional killing by torture and intentional killing by lying in wait. The prosecution theorized that Rick Ortega wanted to kill Terri Winchell out of jealousy, because Rick’s male lover, Randy Blythe, was also Terri Winchell’s boyfriend. Also, Terri had embarrassed Ortega by calling him a homosexual to her friends. Ortega recruited his cousin Michael Morales to help him kill her, and Morales agreed out of family loyalty.
Randy Blythe, Terri’s boyfriend, testified at Morales’s trial that he had indeed been in sexual relationships with both Rick Ortega and Terri Winchell. His relationship with Rick Ortega came first, though it was not entirely over when he became Terri Winchell’s boyfriend.
Rick’s former girlfriend Christine Sala-ices had been a friend of Terri Winchell. Christine testified that Rick Ortega had called her, crying, a few days after Terri and Randy Blythe started dating — ten months before the murder. Rick told Christine that he was crying because he had written Randy Blythe a letter proposing a sexual relationship, but that Randy then began seeing Terri. Christine then dumped Rick Ortega.
Randy Blythe testified that Terri Winchell did not know he was having sex with Rick Ortega, but Rick Ortega knew that he was having sex with Terri. After Randy Blythe began dating Terri, Rick told him that “I wish you wouldn’t spend so much time with her.” When Randy tried to end his relationship with Rick Ortega, Rick threatened to kill Randy and his family-
Christine Salaices, Rick Ortega’s previous girlfriend, testified that five months before the murder, in August 1980, she met Ortega at a restaurant, where Ortega had told her that “he wanted to go to Randy’s house and he wanted to ring the doorbell, and he was gonna wait for Randy to come to the door and to open the door. And he was gonna have a knife in his hand and he was gonna repeatedly stab Randy and turn the knife in him to see the expression on his face.” Christine testified that Ortega had told her that “his cousin Mikey [Morales] would be with him because Mikey wouldn’t let him stop. Mikey would help him and Mikey wouldn’t let him stop, that Mikey would be there.” According to Christine, Ortega said that “if Terri was there, she was gonna get it, too.” Around the same time, Ortega repeatedly asked Christine to help him kill Randy Blythe. Christine testified that she had told Terri Winchell about Rick Ortega’s threats. But, Christine, testified, by October 1980, three months before the murder, Rick Ortega “was supposedly feeling better about himself and trying to make amends with everyone that he had said these things to.”
Mike Morales’s girlfriend was Raquel Cardenas. Raquel testified that she had known Morales for seven months at the time of the murder. She testified that a few months before the murder, Morales told her that his “friend” had “gotten hurt by a girl, and ... that he was feeling close to his best friend since he got hurt by that girl.” Morales told her that this girl had
Glenda Chavez, Terri Winchell’s best friend, testified that two weeks before the murder, she spoke with Rick Ortega on the telephone. Rick told her that Terri “was going around saying that he was gay” and that Terri “was gonna pay back for everything she was saying about him.” But Rick Ortega called Glenda back a week later and told her “to tell Terri that everything was okay, that he wanted to.be friends with her, and that he was gonna come over sometime and talk with her.”
Pat Flores lived in the same house where Morales lived. She testified that the day before the murder, while she was sitting in her kitchen, “Mike [Morales] come up from behind me and he threw a belt around my neck and he tightened it up a little bit.... And then I ... took it off and I asked him what he was doing. He said he was practicing. I asked him, I said, ‘Well, who are you going to do this to?’ He goes, ‘Never mind.’ And I go, ‘Do I know him?’ He goes, ‘No. Neither do I.’ ”
Around 11:00 in the morning on the day of the murder, Morales’s girlfriend Raquel Cardenas went to Morales’s house, where he lived with Flores. Raquel testified that Morales got a phone call at 4:30 p.m. According to Raquel, Morales told her that it was Ortega, and that “Rick was gonna come over later” and “pick up a girl.” Raquel testified that Morales said “he was gonna do Rick a favor,” that “he was gonna hurt this girl,” that “he was gonna strangle her,” that “he was gonna use his belt” and “put it around her neck.”
Glenda Chavez also testified that Terri called her the afternoon before she was murdered. Terri told Glenda that Rick Ortega had called and asked Terri to come to the mall to help him pick out a present for his new girlfriend.
Raquel Cardenas, Morales’s girlfriend, testified that Flores came home to where Morales lived around 5:30 p.m. the afternoon of the murder, and that Rick Ortega showed up around 6:00 p.m. Rick stayed around ten minutes, then left with Flores to go to the store, and came back fifteen minutes later with some wine. Morales drank the whole bottle of wine. Raquel testified that Morales and Ortega left around 6:30 p.m. and someone said that “Rick was supposed to take a girl to the mall.” She testified on’ cross-examination that she didn’t see Morales leave with a knife or hammer and didn’t see whether he was wearing a belt.
Pat Flores likewise testified that, on the day of the murder, Ortega came to her house around 6:30 p.m. and went out with her to the store, about five minutes away, and came back with wine. Flores testified that after Mike Morales and Rick Ortega left, she noticed her hammer was missing when she looked for it to hang a picture. She also noticed that one of her set of two similar kitchen knives was missing. Flores identified this knife on the witness stand at Morales’s trial.
Raquel Cardenas testified that Morales and Ortega came back about an hour later. Morales put a purse on the table, and “dumped everything out of the purse and started searching it.” He showed her Terri’s high school identification card. Raquel testified that Morales “threw a belt at [her]” and “told [her] the belt broke.”
Pat Flores likewise testified that when Morales came back, he had a broken belt with him. Flores also testified that she saw Morales come in and start water running in the kitchen sink, then go back outside. She noticed spots on Ortega’s collar and sleeve, spots that Raquel thought appeared like blood, and testified that Ortega asked her how to get them out. Morales told Flores to look at Orte
Pat Flores testified that after Morales had driven Raquel home, he told Flores that “he had put a belt around someone’s neck and then that it broke and then he— he hit her with the hammer and then— then they took her into a — field—and he drug her out of the car and then he — he— ... He said that he stabbed her and then he said that he ‘fucked her.’ ” When Flores asked Morales why, he said, “Whatever my family wants me to do, I’ll do it.”
Raquel Cardenas also testified that Morales “told me how he killed her.” He said Rick was driving, Terri was in the front passenger seat, and he was sitting behind her. He “tried to strangle her ... with the belt and it broke so he hit her over the head ... with a hammer” and “he just kept hitting her, then he dragged her out of the car” and “left her in the vineyard.” Morales told Raquel “it took awhile,” that Terri “was a tough girl,” and that “she was screaming for Rick ... to make him stop.”
Randy Blythe (Terri Winchell’s boyfriend, and also Rick Ortega’s boyfriend) testified that around 8:30 that night, he got together with Rick Ortega in Ortega’s car. Rick performed a sex act on Randy. Randy testified that the car “smelled like ammonia.”
The prosecution also presented testimony from a jailhouse informant, Bruce Samuelson. Like Pat Flores and Raquel Cardenas, Samuelson testified that Morales had told him he had killed Terri Winchell. Samuelson testified that, Morales told him that Morales and Rick Ortega arranged how to murder Terri Winchell, and that Rick had called him after he had picked Terri up. Morales told Samuelson that he had prepared for the murder by taking a belt, a knife, and a hammer. Morales, according to what he had told Samuelson, attempted to strangle Terri, the belt broke, he beat her head with a hammer, dragged her out of the car, raped her, and stabbed her to death.
When the police searched the house where Pat Flores and Mike Morales lived, they found Terri Winchell’s purse. Christine Salaices, Rick Ortega’s former girlfriend, identified the purse as belonging to Terri, as did Terri’s best friend Glenda Chavez. The police also found blood in the floormats and all over the inside of Rick Ortega’s car, and the broken belt under the mattress, which had blood on it consistent with Terri Winchell’s blood type.
Raquel Cardenas testified that a year and a half after the murder, not long before the trial, Morales called her and told her to “get out of town some way so that [she would not] be handed a subpoena.” Referring to her prior statement to the police, Morales told her that “he forgave [her] the first time but wouldn’t forgive me the second time.”
The jury convicted Morales of first degree murder with premeditation, found both special circumstances — intentional killing by torture and intentional killing by lying in wait — and returned a verdict for the death penalty.
C. Post-conviction Proceedings
The California Supreme Court affirmed Morales’s conviction, and the United States Supreme Court denied certiorari.
Morales then amended his petition in the United States District Court. The district court considered the claims that the California Supreme Court had dismissed “on the merits and as untimely” as having been proeedurally defaulted, but we reversed.
Back in district court, Morales moved for an evidentiary hearing on 39 of his 52 claims. That motion was denied, and ultimately Morales’s petition was denied on the merits. So now, more than two decades after Terri Winchell was murdered, and after Morales was convicted by a jury in California Superior Court, lost his appeal in the California Supreme Court, was denied certiorari by the United States Supreme Court, lost his habeas case in the California Supreme Court, and lost his ha-beas case on the merits after some initial procedural skirmishing in the federal district court, we reexamine his ease.
Analysis
Morales’s petition for writ of habeas corpus was filed before the effective date of the Antiterrorism and Effective Death Penalty Act
The certificate of appealability from the district court did not specify which issues could be appealed. We may not review the merits of Morales’s appeal, however, unless we first determine with regard to each claim that Morales has
A. Torture Special Circumstance
The California statute governing death penalty procedures provides that, in the phase of the trial for determining whether the defendant is guilty of first degree murder, the trier of fact must “determine the truth of all special circumstances.”
One of the special circumstances, which the jury in the case at bar found to be true, is that “the murder was intentional and involved the infliction of torture.”
Morales’s jury received two instructions regarding torture, one directed at torture as an element making the murder first degree, and the other directed at the special circumstance. Morales asserts that the torture special circumstance instruction erroneously omitted the intent requirement. The first degree murder instruction told the jury that torture requires an “intent to cause cruel pain and suffering” but it also told them that this “instruction does not apply to the special circumstance allegation of murder by torture.”
We held in Wade v. Calderon that this same California torture special circumstance instruction violated the Eighth Amendment,
The case at bar is indistinguishable from Wade, as to the error regarding the instruction on the torture special circumstance. The next issue is whether, as in Wade, the writ must be granted unless a new sentence of death is imposed without the special circumstance.
The State argues that because Wade came down in 1994, after Morales’s conviction was final, it was a “new rule,” so it could not be applied to Morales’s case.
Following the California Supreme Court decision affirming Morales’s conviction,
The State also argues that the closing arguments by counsel sufficiently educated the jury that intent was essential. We must presume, however, that the jury took the court’s instructions as its authority on the law, and the instructions told the jury that intent is an element of torture as a basis for first degree murder but is not an element of the torture special circumstance. The instructions also informed the jury that the first degree murder torture element and the special circumstance of torture are different and one did not speak to the other. Thus, we cannot assume that the jury’s finding of intent with respect to the first degree murder instruction necessarily means that the jury would have found intent with respect to special circumstances. Although the jury made a finding that Terri Winchell “was aware of extreme physical pain inflicted by said defendant,” the jury did not make a finding that Morales intended to inflict it.
In Morales’s direct appeal, the California Supreme Court reasoned that the jury necessarily found as a matter of logic an intention to inflict severe pain on Terri Winchell, because otherwise “there would have been no purpose in its special finding regarding the victim’s awareness of the extreme physical pain.”
The State also argues that the error was harmless because the jury also found true the lying in wait special circumstance. Morales argues that the lying in wait instruction was also unconstitutional, but as we explain below, we conclude that it was constitutionally permissible.
The analysis of the instructional error depends, under controlling law, on whether California is a weighing or a non-weighing state.
We need not decide whether California is a weighing state to decide this ease. Assuming arguendo that it is, harmless
We note first that, although the jury weighed an invalid special circumstance, the California Supreme Court could have cured the error and affirmed Morales’s sentence in several ways.
Here, however the California Supreme Court simply asserted that the instructional error was harmless and did not engage in the analysis of the record necessary to conclude that the same result would have been obtained without relying on the torture special circumstance. Nor did the California Supreme Court perform any reweighing of the factors the jury considered, excluding the torture special circumstance, because it concluded (mistakenly in our view) that the finding that the victim suffered severe pain logically implied that it had found intended torture. Under our en banc decision in Valerio v. Crawford, this was insufficient.
We therefore have neither state appellate court reweighing nor harmless error analysis to which deference might be appropriate.
Ninth Circuit precedent requires us in this circumstance to apply Brecht harmless error review to the mistaken torture special circumstance instruction.
Brecht v. Abrahamson holds that where there is constitutional error but the review is collateral rather than direct, we should not apply the “harmless beyond a reasonable doubt” Chapman
There are some cases where an instructional error like the one Morales suffered would be, as a matter of law, not harmless under Brecht. For instance, in Wade, the error was not harmless as a matter of law because our invalidation of the special circumstance eliminated the only remaining special circumstance.
Applying the Brecht standard, we conclude, after thorough study of the record “as a whole,” that the instructional error regarding the torture special circumstance did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” The state’s testimonial and physical evidence implicating Morales was overwhelming. There was no conflicting evidence regarding whether Morales murdered Terri Winchell, why he murdered her, or how he murdered her. And it was an entirely gratuitous and terribly vicious murder.
As in Williams v. Calderon, consideration of the torture special circumstance as such “adds only an improper label.”
The evidence was so overwhelming that the constitutional error cannot be said to have had an effect upon the verdict in the case at hand.
Given the factual record here, it is mere speculation that the absence of the torture special circumstance would have mattered to the jury. Mere speculation is insufficient to grant the writ under Brecht, because speculation does not give rise to a “grave doubt” whether the error had a substantial effect in determining the jury’s verdict.
B. Lying-in-Wait Special Circumstance
The jury also found the special circumstance of lying in wait to be true. The instructions defined “lying in wait” as requiring “waiting, watching, and concealment,” followed by immediate, surprise attack. The instructions further defined “concealment” as “ambush” or, alternatively, “creation of a situation where the victim is taken unawares even though he sees his murderer.” The instructions given to the jury qualified this definition by explaining, “it is only concealment which puts the defendant in a position of advantage from which it can be inferred that lying in wait was part of the defendant’s plan to take his victim by surprise.” A “perceptible interruption” between the “concealment and watchful waiting” and the period during which the killing took place would defeat the special circumstance.
Under the California statutes at the time of Morales’s trial, murder committed “by means of’ lying in wait was, by virtue of that aggravating factor, first-degree murder.
Morales’s argument makes no reference to the actual instructions the jury was given or the evidence the jury heard in this case. Nor does Morales claim that the actual jury instructions failed to distinguish meaningfully between lying in wait and mere premeditation and deliberation. Without some connection between the claimed constitutional problems with the lying-in-wait circumstance and what actually occurred in Morales’s trial, we cannot
As for the constitutionality of the special circumstance on its face, a circumstance that makes one eligible for the death penalty must meet two requirements to satisfy the Eighth Amendment: “First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a sub-class of defendants convicted of murder. Second, the aggravating circumstance may not be unconstitutionally vague.”
We have revised this section of the opinion to respond to the dissent and to appellant’s clarification of his argument in his petition for rehearing. Though our opinion as previously published was unanimous, we have all carefully considered the petition for rehearing, and our dissenting colleague has changed her mind on this point. The dissent now takes the position that “the confluence of lying-in-wait and other types of murder is virtually complete.”
Under Godfrey v. Georgia, for death-penalty eligibility standards to satisfy the Eighth Amendment’s non-vagueness requirement, such eligibility criteria must provide “a meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not.”
We held in Houston v. Roe that the California “lying in wait” special circumstance is not unconstitutionally vague as an eligibility factor.
As the Supreme Court made clear in Tuilaepa,
The lying-in-wait circumstance is not overly broad such that it “applies] to every defendant convicted of a murder.” Such over breadth would render it inadequate under Tuilaepa.
To illustrate a non-lying-in-wait murder: a sadistic person who wants the victim to know what is coming, and who has no doubt of his ability to accomplish the crime, may confront the victim face to face, say “I’m going to kill you,” and do so. Or a person intending to kill another may threaten the victim, travel armed, and when he spots his intended victim by chance, approach him and shoot him face to face. Or, not uncommonly, the loser of a bar fight may say “I’m going to kill you,” go to his car or his home and get a gun, come back to the bar, confront the victim saying “now I’m going to kill you,” and do so. Even under the California Supreme Court’s liberal interpretations of lying in wait, these hypothetical first-degree murders would not merit the special circumstance. The dissent says that “like a Venn diagram of nearly overlapping circles, the confluence of lying-in-wait and other types of murder is virtually complete.”
Four California Supreme Court decisions similarly illustrate facts placing the cases in the set that our dissenting col
To us, it seems unimaginative, or perhaps blind to these and the many cases like them, to suppose that “the confluence of lying-in-wait and other types of murder is virtually complete.”
The dissent’s position is, in substance, that the California Supreme Court has not really meant what it said when it laid out the three requirements of lying in wait because it has interpreted them so broadly as to eliminate any discrimination between lying-in-wait murders and all other first-degree murders. The dissent says first-degree murders and lying-in-wait murders are “like a Venn diagram of nearly overlapping circles”
The dissent’s legal argument relies on mistaken use of quotations and citations pulled out of context from some California cases. As described above, lying in wait,
While the meanings of the term “lying in wait” in these two contexts are obviously related, they have been interpreted to mean different things. The California Supreme Court has expressly stated that lying in wait as a special circumstance for the death penalty contains “more stringent requirements” than lying in wait as an indicator of first-degree murder.
Despite the differences in the term’s meaning, the dissent quotes from and relies on several cases about the premeditation and deliberation substitute to make its point about the death-penalty special circumstance. The dissent’s citations manifest confusion about the distinction between the two uses of lying in wait. Because the term is used for a different purpose in the cases the dissent cites, those cases are inapposite. What’s more, even though the language in some of the dissent’s chosen cases is liberal and permissive, the facts in each case show that the defendant in each did in fact engage in a genuine ambush.
For example, the dissent quotes from People v. Ruiz to argue that the California Supreme Court has interpreted lying in wait as “ ‘the functional equivalent of proof of premeditation, deliberation and intent to kill.’ ”
Likewise, People v. Tuthill, upon which the dissent relies to argue that the watching-and-waiting element is meaningless, is also a case about lying in wait as a first-degree factor rather than as a death-penalty special circumstance.
People v. Hillhouse is the only case whose facts the dissent discusses that really is about lying in wait as a death-penalty special circumstance. The dissent says that Hillhouse establishes that “even concealment of purpose is not always necessary,” and that under California law “criminal defendants meet the concealment test regardless of whether they are hidden or seen, and even whether they conceal their intentions or reveal them.”
Not every ambush has to be from the bushes. Our dissenting colleague calls this remark “a simplistic syllogism,”
C. Knowing Use of Perjury
Morales argues that he was denied due process of law by the government’s knowing use of perjured testimony
In 1994, over a decade after the trial, Raquel Cardenas signed an affidavit for Morales saying that she had lied in her trial testimony. Specifically, she stated that she lied when she testified that Morales told her that he had murdered Terri Winehell, that he told her how he committed the murder, and that she saw blood in the car. Though Raquel’s recantation, if true, undermines some of her testimony it would not undermine all of it. Nor does her affidavit demonstrate that the prosecution knew that she was lying during her testimony at trial.
The due process requirement voids a conviction where the false evidence is “known to be such by representatives of the State.”
No evidentiary hearing is necessary with respect to the purported perjury claim. An evidentiary hearing is unnecessary because Raquel’s allegation that she perjured herself, even if proved, would not entitle the Morales to relief.
D. The Jailhouse Informant
Morales argues that the government put another prisoner, Bruce Samuelson, in a cell diagonally opposite to his in segregation, and offered him leniency, in order to have Samuelson extract a confession from Morales. He argues that he is entitled to the writ under Massiah v. United States
In support of his motion for an evidentiary hearing, Morales submitted as evidence an interview that an assistant attorney general and his investigator had with Samuelson in 1993, eleven years after the trial, as the attorney general’s office prepared for one of the habeas proceed
Morales argues that Samuelson is demonstrably lying about, this, because Samuelson says they spoke in Spanish, and Morales does not speak Spanish. But whether Samuelson is lying in his 1993 interview is not the question. Morales presents no evidence to demonstrate that the state planted Samuelson near him to get him to talk outside the presence of his attorney. On this record, the district court did not abuse its discretion in denying an evidentiary hearing on whether the state planted Samuelson.
E. Confrontation Clause
Morales argues that his constitutional right to confront witnesses against him was violated when the trial court allowed hearsay testimony from Rick Ortega’s former girlfriend Christine Salaices. Christine testified that Rick had told her some months before the murder that Rick planned to stab Terri Winchell, and would bring Morales with him because “Mikey wouldn’t let him stop.” We need not decide whether allowing in this testimony violated the Confrontation Clause, because, even assuming that it did, that error would be harmless. Under Brecht the writ cannot be granted for constitutional trial error where, as here, the erroneously admitted testimony did not have a “substantial and injurious effect or influence in determining the jury’s verdict.”
AFFIRMED.
. People v. Morales, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244 (1989), cert. denied, Morales v. California, 493 U.S. 984, 110 S.Ct. 520, 107 L.Ed.2d 520 (1989).
. Morales v. Calderon, 85 F.3d 1387, 1388 (9th Cir.1996).
. Id. at 1390-91.
. Pub.L. No. 104-132, April 24, 1996, 100 Stat. 1214.
. 270 F.3d 915 (9th Cir.2001) (en banc).
. Id. at 921 & n. 5 (citing Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
. See 28 U.S.C. § 2253 (2000).
. Morris v. Woodford, 229 F.3d 775, 779 (9th Cir.2000).
. 28 U.S.C. § 2253(c)(2).
. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (citation omitted) (quotation omitted).
. Mayfield, 270 F.3d at 922 (citations omitted) (quoting 28 U.S.C. § 2254(d) (1994)).
. 28 U.S.C. § 2253 (2000).
. Morris, 229 F.3d at 779.
. See 28 U.S.C. § 2253(c)(1). We also do not review Morales’s challenges to various collateral rulings of the district court because he has not properly presented them in his brief. See In re Lowensckuss, 67 F.3d 1394, 1402 (9th Cir.1995) (deeming as waived inadequately raised issues); International Olympic Committee v. San Francisco Arts & Athletics, 781 F.2d 733, 739 (9th Cir.1986) (declining to review an issue raised in a footnote and taking "the briefs as submitted” and limiting review "to the issues set forth in the briefs as required by Fed. R.App. P. 28(a)(2).”).
. Cal.Penal Code § 190.1.
. Id. at §§ 190(b), 190.2(a).
. Id. at § 190.2(a)(18).
. 29 F.3d 1312 (9th Cir.1994).
. The jury was instructed as follows on first degree torture murder;
Murder which is perpetrated by torture is murder of the first degree. The essential elements of such murder are one, that the act or acts which caused the death must involve a high degree of probability of death; and two, the defendant must commit such act or acts with intent to cause cruel pain and suffering ....
The crime of murder by torture does not necessarily require any proof that the ... deceased suffered pain.
This instruction does not apply to the special circumstance allegation of murder by torture. The elements required for that special circumstance allegation will appear later in these instructions.
(emphasis added).
. The jury was instructed as follows on the torture special circumstance:
To find that the special circumstance ... [of] murder involving infliction of torture is true, each of the following facts must be proved. One, that the murder was intentional; and two, that the murder involved the infliction of torture.
To prove the infliction of torture, the infliction of extreme physical pain must he proved no matter how long its duration.
Awareness of pain by the deceased is not a necessary element of torture.
(emphasis added).
. Wade, 29 F.3d at 1320.
. 41 Cal.3d 247, 221 Cal.Rptr. 794, 710 P.2d 861 (1985).
. See Wade, 29 F.3d at 1320 (citing Davenport, 221 Cal.Rptr. at 804, 710 P.2d 861).
. Id. at 1322, 221 Cal.Rptr. 794, 710 P.2d 861.
. See Teague v. Lane, 489 U.S. 288, 306-08, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
. See People v. Morales, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244 (Cal.1989).
. Id. at 83-84.
. Stringer v. Black, 503 U.S. 222, 229-30, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Williams v. Calderon, 52 F.3d 1465, 1477 (9th Cir.1995); Jeffers v. Lewis, 38 F.3d 411, 414-15 (9th Cir.1994) (en banc).
. Silva v. Woodford, 279 F.3d 825, 829 & n. 1 (9th Cir.2002).
. See Williams, 52 F.3d at 1479.
. See Stringer, 503 U.S. at 232, 112 S.Ct. 1130.
. Id.
. See Valerio v. Crawford, 306 F.3d 742, 756-57 (9th Cir.2002) (en banc).
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Valerio, 306 F.3d at 756.
. 494 U.S. 738, 748, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).
. Valerio, 306 F.3d at 756-60.
. Id. at 757.
. Id. at 761.
. See id. at 762. See also Wade, 29 F.3d at 1322. Because Morales is a state prisoner seeking a writ of habeas corpus, we must apply Brecht harmless error analysis. See Bains v. Cambra, 204 F.3d 964, 976-77 (9th Cir.2000). That Morales's sentence is for death does not change this analysis. See Valerio, 306 F.3d at 762.
. Valerio, 306 F.3d at 762 (citing Gray v. Klauser, 282 F.3d 633, 651 (9th Cir.2002)).
. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (referencing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).
. Id.
. Id. at 637, 113 S.Ct. 1710.
. As our opinion in Wade notes the other special circumstance Wade’s jury found to be true was invalidated by the California Supreme Court. See Wade, 29 F.3d at 1322-23.
. Valerio, 306 F.3d at 762.
. Williams, 52 F.3d at 1477.
. Id.
. See Coleman v. Calderon, 210 F.3d 1047, 1051 (9th Cir.2000) (citing O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)).
. See California v. Roy, 519 U.S. 2, 4, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam).
. Cal.Penal Code § 189.
. See id. §§ 190.1, 190.2(a)(15).
.See id. § 190.3.
. Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (internal citations omitted).
. Dissenting Op., at 1180.
. Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (internal quotation marks and editing omitted).
. Id. at 428, 100 S.Ct. 1759 (internal quotation marks and editing omitted).
. Id. (internal quotation marks omitted).
. Tuilaepa, 512 U.S. at 972-73, 114 S.Ct. 2630.
. Id. at 973, 114 S.Ct. 2630 (internal quotation marks omitted).
. Houston v. Roe, 177 F.3d 901, 907-08 (9th Cir.1999).
. Id. at 907.
. Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994).
. Dissenting Op., at 1181.
. Tuilaepa, 512 U.S. at 972, 114 S.Ct. 2630.
. Morales, 257 Cal.Rptr. 64, 770 P.2d at 261.
. Dissenting Op., at 1180.
. In re Andrews, 28 Cal.4th 1234, 124 Cal.Rptr.2d 473, 52 P.3d 656, 658 (2002).
. People v. Anderson, 28 Cal.4th 767, 122 Cal.Rptr.2d 587, 50 P.3d 368, 370 (2002).
. Id.
. People v. Reynoso, 31 Cal.4th 903, 3 Cal.Rptr.3d 769, 74 P.3d 852, 855 (2003).
. People v. Batts, 30 Cal.4th 660, 134 Cal.Rptr.2d 67, 68 P.3d 357, 361 (2003).
. Id. at 361-62.
. Dissenting Op., at 1180.
. Morales, 257 Cal.Rptr. 64, 770 P.2d at 261.
. Dissenting Op. at 1180.
. People v. Hillhouse, 27 Cal.4th 469, 117 Cal.Rptr.2d 45, 40 P.3d 754, 775 (2002) (internal quotation omitted).
. See People v. Gutierrez, 28 Cal.4th 1083, 124 Cal.Rptr.2d 373, 52 P.3d 572, 612-13 (2002).
. Dissenting Op., at 1185 (quoting People v. Ruiz, 44 Cal.3d 589, 244 Cal.Rptr. 200, 749 P.2d 854, 867 (1988)).
. See Ruiz, 244 Cal.Rptr. 200, 749 P.2d at 867.
. Dissenting Op., at 1187 n. 2 (citing People v. Tuthill, 31 Cal.2d 92, 187 P.2d 16, 20 (1947)).
. Tuthill, 187 P.2d at 21. The dissent also points to the fact that the defendant in Tuthill fell asleep while he waited, which the dissent says undermines any meaning that the "watchful and waiting" requirement would otherwise have. Dissenting Op., at 1187 n. 2. The dissent does not mention, however, that the court considered this point and concluded that "[djefendant's presence in the cabin was unexpected, and obviously [the victim] was unaware of her danger, of the tenacity of the defendant's grim objective and of his purpose to kill her.” Tuthill, 187 P.2d at 21. That the defendant fell asleep waiting for the victim of his ambush to arrive did not vitiate the fact that he ambushed his victim.
. Dissenting Op., at 1187.
. Hillhouse, 117 Cal.Rptr.2d 45, 40 P.3d at 775.
. Id.
. Id.
. Dissenting Op., at 1180.
. United States v. LaPage, 231 F.3d 488, 491 (9th Cir.2000).
. In the recantation affidavit, Raquel Cardenas says that Morales returned to the apartment "all riled up” after about an hour, "threw a purse at me,” and exclaimed that “the damn belt broke.” Though Raquel says she felt pressured when she made her statement to the police and when she testified, Raquel says nothing whatsoever in her recantation affidavit to suggest that the police or the prosecution knew she was lying.
. Id. (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)).
. Id. at 491-92.
. Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir.1999).
. 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
. 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980).
. See Rich, 187 F.3d at 1068.
. Brecht, 507 U.S. at 638, 113 S.Ct. 1710.
Concurrence in Part
concurring in part and dissenting in part:
The bedrock principles of our Eighth Amendment jurisprudence require that a state’s capital sentencing scheme must “genuinely narrow the class of persons eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). California’s scheme does not. The California lying-in-wait special circumstance, which triggers eligibility for the death penalty, has been expanded to such a degree that the line between premeditated murder and capital murder is but an illusory veil. To pass constitutional muster, a sentencing scheme must limit capital murders to a small realm within the universe of ordinary premeditated murders. But in California, like a Venn diagram of nearly overlapping circles, the confluence of lying-in-wait and other types of murder is virtually complete.
The Eighth Amendment analysis required in this challenge to the lying-in-wait provision confronts us with the intersection of a complex sentencing scheme and constitutional concepts that mean different things depending on the context. The questions raised in this appeal cannot be answered by a simplistic syllogism like “Not every ambush has to be from the bushes,” maj. op. at 1178, any more than I would suggest one must be lying down to
Michael Morales was found guilty of two special circumstances that made him eligible for the death penalty: torture and lying-in-wait. This Court previously determined that the torture murder special circumstance failed to meet the requirements of the Eighth Amendment. See Wade v. Calderon, 29 F.3d 1312, 1320 (9th Cir.1994) (holding that, in the absence of a narrowing construction, “the torture special circumstance would fail to provide a principled basis for distinguishing capital murder from any other murder”). I agree with the majority that the jury’s consideration of the torture special circumstance, in the context of this case, was harmless under either a weighing or non-weighing scheme, as long as the lying-in-wait special circumstance is valid. The critical question, then, is whether the lying-in-wait special circumstance comports with the Eighth Amendment, as Morales’s death sentence hinges on this special circumstance. This question is more difficult than the majority suggests, and ultimately I cannot agree with either the majority’s analysis or its conclusions.
Although I originally concurred in the majority’s opinion in full, upon conducting an Eighth Amendment-specific analysis, I can only conclude that the lying-in-wait special circumstance, as construed by California courts, is insufficiently narrow to pass constitutional muster. California’s three-prong test for the special circumstance has proven so permissive and penetrable that lying-in-wait murder is nearly indistinguishable from other murders. Upon reflection, and after considering Morales’s petition for rehearing and rehearing en banc, along with the brief of amici curiae, I would grant Morales’s ha-beas petition with respect to his sentence. I concur in the majority’s opinion denying his petition on the remaining grounds.
I. Fifth Amendment versus Eighth Amendment Analysis
My disagreement with the majority begins with its conflation of the specificity requirements of the Fifth and Eighth Amendments. In upholding his sentence of death, the majority answers Morales’s Eighth Amendment challenge by concluding that the lying-in-wait special circumstance is constitutional because it does not apply to every defendant convicted of murder. See Maj. Op. at 1175. Although the inquiry under both amendments asks whether there is a meaningful distinction between those individuals that are eligible for the sentence and those that are not, the two inquiries are substantively dissimilar.
The Eighth Amendment demands that the death penalty not be administered in a way that is cruel and unusual. Towards this end, the criteria that make defendants eligible for the death penalty — which in California are termed “special circumstances” — must “genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the impo
Although the Fifth Amendment also demands that laws not be unconstitutionally vague, the vagueness inquiry is not parallel to the Eighth Amendment analysis. Under the Fifth Amendment, due process is satisfied so long as “a penal statute define[s] the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Houston v. Roe, 177 F.3d 901, 907 (9th Cir.1999) (citing Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).
The difference between the constitutional inquiries applied under the Fifth and Eighth Amendments can be simply stated: the Fifth Amendment only looks for the existence of a line between the categories of murder, whereas under the Eighth Amendment, that line must be drawn in the right place — where capital murder is a small fraction of first degree murder. In other words, a void-for-vagueness challenge under the Due Process Clause asks whether the statutory language distinguishes among classes of murder so that defendants have proper notice, whereas a challenge under the Eighth Amendment’s cruel and unusual punishment clause asks whether the statute sufficiently narrows the application of the death penalty. Compare Kolender, 461 U.S. at 357, 103 S.Ct. 1855 (under due process, void-for-vagueness doctrine requires a penal statute to define criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement) and Houston, 177 F.3d at 907 (with reference to a due process challenge, the “legislature and courts have created a thin but meaningfully distinguishable line”) with Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (under the Eighth Amendment, capital sentencing scheme must provide a meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not).
The questions asked under the two Amendments make it easy to fall prey to mixing and matching the substantive analysis for each. Both look to see if the statutes or the state court’s interpretations of the statutes meaningfully distinguish among classes of defendants so that the penalty is not imposed in an arbitrary and capricious manner. But while the two inquiries are linguistically similar, the phrase “meaningfully distinguish” assumes significantly different meanings under each analysis. By substituting one standard for the other, the majority fails to apply the proper scrutiny to the California lying-in-wait special circumstance.
Although the majority opinion does not cite to Houston in its Eighth Amendment analysis, the majority’s reasoning suggests a reliance on Houston’s Fifth Amendment vagueness analysis when it attempts to demonstrate that the lying-in-wait special circumstance passes Eighth Amendment scrutiny simply because murder scenarios
Houston’s Fifth Amendment analysis cannot be stretched so wide that it swallows Morales’s Eighth Amendment claim. Although the majority is correct that Morales’s Fifth Amendment due process argument is foreclosed by Houston, the Houston court never reached the Eighth Amendment cruel and unusual punishment question. Houston in fact lacked standing to bring such a challenge because he was not sentenced to death. Id. at 905. As Houston expressly acknowledged, a Fifth Amendment challenge to a death penalty sentencing scheme differs significantly from an Eighth Amendment challenge. Id. at 907-08 & n. 1. (declining to reach Eighth Amendment challenge to application of the death penalty but deciding Fifth Amendment void-for-vagueness challenge).
The Supreme Court’s decision in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), illustrates the distinction between the levels of scrutiny under each challenge. In Maynard, the Court considered an Eighth Amendment challenge to Oklahoma’s “especially heinous, atrocious, or cruel” statutory aggravating circumstance, which makes a defendant eligible for the death penalty. In its defense, the State argued that the statutory provision was not unconstitutionally vague because certain classes of convicted murderers would fall outside its definition. The Court rejected this approach: “The difficulty with the State’s argument is that it presents a Due Process Clause approach to vagueness and fails to recognize the rationale of our cases construing and applying the Eighth Amendment.” Id. at 361, 108 S.Ct. 1853.
Here, the majority adopts the rationale rejected in Maynard. The majority posits that the California lying-in-wait special circumstance does not violate the Eighth Amendment because the special circumstance “embraces some first-degree murders, but not all.” Maj. Op. at 1175. This rationale mistakes the Fifth Amendment for the Eighth Amendment and ignores the differences between the requirements of the two amendments. Although Houston found a “thin but meaningful distinction” with respect to the due process problem of notice, the due process bar is not only different but is also lower than what the Eighth Amendment requires under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny. That is, a statute may very well satisfy due process because adequate notice only demands that statutes distinguish crimes in a way that “embraces some ... but not all.” But the very same statute would nonetheless fail to meet the requirements of the Cruel and Unusual Punishment Clause if it does not “genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant, 462 U.S. at 877, 103 S.Ct. 2733.
Because the concept of narrowness is so crucial to proper Eighth Amendment scrutiny, as well as in distinguishing Tuilaepa, a few words of background are helpful. The Eighth Amendment requires that the types of conduct that render a defendant eligible for the death penalty must be sufficiently narrow to result in a significantly small subclass of murder defendants who qualify for death penalty consideration. This narrowing occurs at a stage known as “death eligibility.” The Eighth Amendment also requires that the actual selection of the death penalty as punishment for an individual defendant must meet certain criteria, such as having proper consideration of aggravating and mitigating circumstances. This narrowing occurs at a stage known as “death selection.” Although the Eighth Amendment demands that capital sentencing schemes sufficiently narrow the possible application of the death penalty at both death eligibility and death selection, the concept of narrowness takes on different forms of analysis during the two stages.
At the first stage, eligibility for the death penalty must be restricted to a class of crimes in which death is a proportionate punishment. See, e.g., Coker v. Georgia, 433 U.S. 584, 595-96, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death penalty as punishment for rape unconstitutional). Eligibility for the death penalty is not a matter of juror discretion. “Eligibility factors almost of necessity require an answer to a question with a factual nexus to the crime or the defendant so as to ‘make rationally reviewable the process for imposing a sentence of death.’ ” Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (quoting Arave v. Creech, 507 U.S. 463, 471, 113 S.Ct. 1534, 123 L.Ed.2d 188 (1993)).
At the second stage, the Eighth Amendment requires the actual selection of the death penalty for a particular defendant be based upon an individualized determination directed to the individual and the circumstances of the crime. See Lockett v. Ohio, 438 U.S. 586, 601, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). Because of the constitutional demand for greater consideration of the individual at the selection phase, state sentencing schemes must afford juries greater discretion in the selection phase than the eligibility phase. See Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630.
Thus, narrowing is achieved in different ways at the two stages, and as a result, analysis of death selection in Tuilaepa cannot serve as a substitute for the required analysis of death eligibility. Nor is the fact that a statute fulfills the requirements of due process, as in Houston, dispositive of whether it is sufficiently narrow to meet Eighth Amendment standards. It is thus improper to extend the “thin but meaningful” distinction of Houston and not separately analyze whether the lying-in-wait special circumstance is sufficiently narrow under the Eighth Amendment. I turn now to that analysis.
Morales argues that the lying-in-wait special circumstance is unconstitutional under the Supreme Court’s Eighth Amendment jurisprudence. I agree. The California Supreme Court’s formulation of the limiting construction is so porous that it fails to strain out non-death eligible murders in a constitutionally meaningful way. See People v. Morales, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244 (1989).
A. Scope of Review
Review of an Eighth Amendment narrowing challenge is constrained by the Supreme Court’s decision in Arave v. Creech. At issue in Arave was an Eighth Amendment challenge to Idaho’s death penalty statute, which made a “cold-blooded, pitiless slayer” death eligible. The Court upheld the statute because the Idaho Supreme Court had adopted a limiting construction that satisfied constitutional requirements. See Arave, 507 U.S. at 471, 113 S.Ct. 1534.
In rejecting a claim that Idaho failed to apply its limiting construction consistently, the Court cautioned: “Under our precedents, a federal court may consider state court formulations of a limiting construction to ensure that they are consistent. But our decisions do not authorize review of state court cases to determine whether a limiting construction has been applied consistently.” Id. at 477, 113 S.Ct. 1534 (emphasis in original). That is, a reviewing court may not consider a claim of unconstitutionality on the grounds that other defendants with similar circumstances did not receive like sentences. But it remains the ardent and unmitigated duty of a reviewing federal court to ensure that state courts construe death penalty sentencing schemes in consonance with the Constitution. See, e.g., Sochor v. Florida, 504 U.S. 527, 536-37, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992).
B. California’s Formulation of its Limiting Construction
The California death penalty statute under which Morales was convicted provides that anyone found guilty of murder in the first degree shall be punished by death or life without parole if “the defendant intentionally killed the victim while lying in wait.” Cal.Penal Code § 190.2(a)(15) (1989). The California Supreme Court applies a three-pronged limiting construction of the lying-in-wait special circumstance. Murder committed while lying-in-wait must contain the following elements: (1) a concealment of purpose; (2) a substantial period of watching and waiting for an opportune time to act; and, (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. See People v. Morales, 257 Cal.Rptr. 64, 770 P.2d at 260-61. Yet, far from creating “a factual matrix sufficiently distinct from ‘ordinary’ premeditated murder,” id. at 261, the lying-in-wait special circumstance reaches so far that it encompasses almost all lying-in-wait first degree murders, and as a result, also includes most premeditated murders. That is, there is virtually no line between premeditated murder and lying-in-wait first degree murder, and likewise virtually no line between lying-in-wait first degree murder and the special circumstance. Whereas the Constitution demands a funnel narrowing the pool of defendants eligible for the death penalty, California gives us a bucket. Indeed, the California Supreme Court has instructed that the lying-in-wait circumstance, as outlined in the standard jury instructions, is “the functional equivalent of proof of premeditation, deliberation and intent to kill.” People v. Ruiz, 44 Cal.3d 589, 244 Cal.Rptr. 200, 749 P.2d 854, 867 (1988).
Ironically, the concealment prong, which by virtue of plain English adheres to the conventional and ordinary understanding of lying-in-wait as ambush, see e.g., People v. Merkouris, 46 Cal.2d 540, 297 P.2d 999, 1011-12 (1956), has been expanded rather than narrowed by the California courts. Instead of the traditional rule that lying-in-wait requires evidence of physical concealment or surprise, California has no definitive requirement for actual physical concealment. See Morales, 257 Cal.Rptr. 64, 770 P.2d at 259 (“[T]he concealment element ‘may manifest itself by either an ambush or by the creation of a situation where the victim is taken unawares even though he sees his murderer.’ ”) (emphasis in original); see also People v. Sutic, 41 Cal.2d 483, 261 P.2d 241, 245-46 (1953) (concealment in ambush unnecessary). Rather, the concealment portion of the lying-in-wait test is satisfied by the concealment of purpose, not physical concealment. See Morales, 257 Cal.Rptr. 64, 770 P.2d at 259; see also People v. Tuthill, 31 Cal.2d 92, 187 P.2d 16, 21 (1947). Thus, the cases preceding Morales established that the concealment criterion extended to more than mere ambush, as the term is commonly understood. Concealment, it turns out, can sometimes mean no more than a murderer’s failure to announce his intentions or a desire to conceal the murderous plan from the victim. What, then,
But even concealment of purpose is not always necessary, as subsequent cases demonstrate. In People v. Hillhouse, the California Supreme Court held that a defendant could be death eligible under the lying-in-wait special circumstance despite the fact that he announced his purpose to his victim, stating “I ought to kill you” prior to committing the murder. 27 Cal.4th 469, 117 Cal.Rptr.2d 45, 40 P.3d 754, 775 (2002). Under this recent iteration of the rule, criminal defendants meet the concealment test regardless of whether they are hidden or seen, and even whether they conceal their intentions or reveal them. Thus, rather than curing the over-breadth of the first part of the lying-in-wait test, subsequent cases manifest the same if not more problematic infirmities than those that existed before Morales’s case.
The second element of the limiting construction is even more permeable than the first. California requires “a substantial period of watching and waiting for an opportune time to act.”
Despite the need to distinguish cases eligible for the death penalty, the California Supreme Court has consistently construed the temporal requirement of the lying-in-wait circumstance to be no more than that of ordinary premeditated or deliberate murder. Thus, in People v. Ruiz, 244 Cal.Rptr. 200, 749 P.2d at 866 n. 3, the court reaffirmed the constitutionality of the lying-in-wait murder provision: “The lying-in-wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.” The formulation is the same for the lying-in-wait special circumstance. See Edwards, 1 Cal.Rptr.2d 696, 819 P.2d at 474 n. 16. Indeed, this broad construction of the “watching and waiting” requirement is identical to the definition of lying-in-wait given in the standard jury instruction at the time of Morales’s conviction.
Both the standard jury instructions regarding the lying-in-wait special circumstance and the California court’s construction of the test lead to the conclusion that any premeditated or deliberate murder would satisfy the watching and waiting-requirement. Under such a construction,
The third and final element of California’s three-part test requires the defendant to attack by surprise from a position of advantage. The California Supreme Court held that Morales satisfies this prong of the limiting construction because he was sitting behind the victim in a car. Under the loose construction of the first and second parts of the lying-in-wait test, Morales’s eligibility for the death penalty ultimately turns on whether he killed his victim by surprise. That is, even after a jury applies the first and second parts of the lying-in-wait test, the question of surprise is all that remains as a truly narrowing factor. And yet, taking a page from the California courts’ book on concealment, surprise apparently can be nothing more than concealment of purpose. Standing alone, I fail to see how this singular factor significantly narrows the pool of defendants eligible for the death penalty, and for that reason, it is not a proper litmus test for death eligibility under the Eighth Amendment.
The majority provides examples of cases in which the lying-in-wait special circumstance would not apply, and suggests that the scheme is overbroad only if “unimaginative” about the way murders are committed. Maj. Op. at 1176. I do not dispute that, with imagination and creativity, one can explain away the constitutional infirmities of the California death penalty. But that is beside the point. Under the Eighth Amendment, it is not enough that a death penalty statute applies to some but not all murder defendants. Rather, the inquiry is whether the statute is narrow enough-whether the subclass of death eligible defendants is sufficiently smaller than the overall class of murder defendants. See Maynard, 486 U.S. at 361, 108 S.Ct. 1853. The majority’s litany of examples underscores precisely the way in which the majority misconstrues the Eighth Amendment inquiry. By applying Fifth Amendment scrutiny to Morales’s Eighth Amendment challenge, the majority is able to sidestep the long reach of California’s construction of the lying-in-wait provision.
Under the California Supreme Court’s broad interpretation, it is difficult to see how the limiting construction selects those more deserving of the ultimate punishment. See Zant, 462 U.S. at 877, 103 S.Ct. 2733. To the extent that the special circumstance can be said to limit death eligibility, it does so in an arbitrary and capricious manner. See Godfrey, 446 U.S. at 428, 100 S.Ct. 1759. The lying-in-wait special circumstance has expanded so far beyond a constitutional foundation that it collapses under its own volume. Indeed, several commentators have underscored the infirmity of the California scheme. See Steven F. Shatz & Nina Rivkind, The California Death Penalty Scheme: Requiem for Furman?, 72 N.Y.U. L.Rev. 1283 (1997); Garth A. Osterman & Colleen Wilcox Heidenreieh, Note, Lying in Wait: A General Circumstance, 30 U.S.F. L.Rev. 1249 (1996). And in benchmarking the breadth of the scheme, it is useful to reference the words of one of our colleagues: “The majority must come to realize ... [¡Increasing the number of crimes punishable by death, widening the circumstances under which death may be imposed ... will not do a single thing to accomplish the objective, namely to ensure that the very worst members of our society ... are put to death.” Alex Kozinski & Sean Gallagher, Death: The Ultimate Run-On Sentence, 46 Case W. Res. L.Rev. 1, 29 (1995).
Absent proper limiting by the California courts, the lying-in-wait special circumstance does not survive Eighth Amendment scrutiny because it fails to narrow
. The majority criticizes the reliance on cases that deal with lying-in-wait first degree
What the majority fails to acknowledge is that the divisions along this spectrum are indiscernible, and are certainly not the kind of genuine narrowing required by the Eighth Amendment. Although, at the time Morales was convicted, the first degree murder provision and the special circumstance were separated by the paper-thin limiting construction that the murder occur "while” lying in wait, other prongs of the lying-in-wait test are identical. For example, in People v. Edwards, 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 819 P.2d 436 (1991), which is a special circumstances case, the California Supreme Court held that there is no difference in the temporal requirement between the special circumstance and the first-degree murder provision. Id. at 474 n. 16. Indeed, the Edwards court relied on People v. Ruiz, 44 Cal.3d 589, 244 Cal.Rptr. 200, 749 P.2d 854 (1988), a lying-in-wait first degree murder case, to interpret the special circumstance provision. Considering that the California Supreme Court itself recognizes the interchangeableness of the two provisions, I see no reason why we should not look to lying-in-wait first degree murder cases for California's construction of the same prongs in the special circumstance.
. Even the “watchful and waiting” element-perhaps the essence of lying-in-wait-has failed to restrain the applicability of the special circumstance. A defendant need not actually watch the victim, as long as he is watchful, or “alert and vigilant,” while waiting. See People v. Sims, 5 Cal.4th 405, 20 Cal.Rptr.2d 537, 853 P.2d 992, 1007-08 (1993). Yet, paradoxically, a defendant can be "alert and vigilant” even if he falls asleep while waiting for his intended victim. See People v. Tuthill, 187 P.2d at 21.
. The standard jury instructions for the lying-in-wait special circumstance explicitly incorporates by definition the instructions for lying-in-wait murder. See CALJIC 8.81.15. Those instructions read:
The term 'lying-in-wait' is defined as waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying-in-wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.
CALJIC 8.25 (West 4th Rev. Ed.1979).