Opinion
Defendant, convicted of first degree murder (Pen. Code, § 187, subd. (a)),
1
contends that there was insufficient evidence to support the verdict.
2
Specifically, he argues that certain elements necessary to
BACKGROUND
Victim Eric Johnson and his friend Erik Agreda stopped by the victim’s apartment on the evening of July 19, 2003, so the victim could pick up some money. Agreda parked in the back of the victim’s driveway on Fortune Way. While the victim went inside, Agreda stayed outside in the car. Agreda noticed there were several people in their mid-20’s around a car in the area. When the victim came back outside, he told Agreda that someone was looking at him “kind of hard.” Agreda saw defendant walking toward the victim, who was standing next to the passenger door of Agreda’s car. The victim asked what was going on.
Agreda jumped out of his car and heard defendant say, “What you doing back there?” The victim replied that he lived there. Defendant said that something had “come up missing” back there; the victim indicated that he did not care, that he did not know anything about something missing, and that it was his house. Defendant said something to the effect of, “Oh, you don’t care? Man, if you want to keep living here, man, stay here.” (Not an exact quоtation.) 4 Another witness, Mario Jacobs, testified that the last thing defendant said to the victim before leaving to get his shotgun was, “I’ma show you what I mean.” While defendant and the victim were talking, Jacobs drove up in his car and asked the victim if everything was all right. They had been friends since elementary school. The victim told Jacobs that he was all right and to come back later. After defendant walked away, Jacobs told the victim to get in his car and leave.
Defendant walked away. Another man from the group nearby approached and said, “Don’t trip E. He just don’t know you,” as though trying to calm down the situation. Defendant walked down Fortune Street and turned right onto Seminary Avenue. Within a minute of leaving, defendant returned with a shotgun. He carried the shotgun pointed down. He said something to the victim, who said, “It’s not that serious. It’s not that serious.” Defendant then shot the victim three times, and ran off toward Seminary.
James Lyles testified that a day or two before the shooting, defendant asked him to watch a garbage can at Seminary and Foothill. Lyles looked inside and saw a sawed-off shotgun. Lyles believed that defendant sold drugs in the area,
and that he had his stash in the area of the driveway across from his father’s home. The
The victim was shot three times with a shotgun: One entry wound was in his rear thigh, another in the rear of his arm, and the third in his arm and chest. The shot that entered his chest was fatal. The shotgun was fired from between five and 10 feet away. 6
Defendant was charged by information with murder (§ 187, subd. (a)), and with an enhancement for use of a firearm causing injury or death (§ 12022.53, subd. (d)). A second information charging possession of a firearm by a felon (§ 12021, subd. (a)) was consolidated with the murder charge. Defendant was convicted by jury of first degree murder and possession of a firearm by a felon, and the firearm allegation was found true. Defendant was sentenced to 50 years to life in state prison, consisting of 25 years to life for first degree murder, with a consecutive sentence of 25 years for the use enhancement; the sentence for felon in possession of a firearm was stayed pursuant to section 654. This timely appeal followed.
DISCUSSION
A. Lying in Wait.
The trial court instructed the jury on two theories of first degree murder: lying in wait and premeditation/deliberation. Defendant contends that insufficient evidence supports first degree murder under the theory of lying in wait, and that the trial court therefore erred in instructing on that theory. We disagree, but also find any error was harmless.
The trial court instructed on lying in wait, pursuant to CALJIC No. 8.25: “Murder which is immediately preceded by lying in wait is murder of the first degree, [f] 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 [even though the victim is aware of the murderer’s presence]. 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, [f] [The word ‘premeditation’ means considered beforehand.] [f] [The word ‘deliberation’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of aсtion.]”
Defendant maintains that the evidence was insufficient to support the jury’s finding of first degree murder on this theory. “The legal standard is a familiar one: ‘On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ ”
(People
v.
Gurule
(2002)
Defendant argues that “ ‘To prove lying in wait, the prosecution must prove there was a concealment of purpose, a substantial period of watching and waiting for a favorable or opportune time to act, and that immediately thereafter the defendant launched a surprise attack on an unsuspecting victim from a position of advantage,’ ” citing
Gurule, supra,
Defendant argues that under a lying-in-wait theory of first degree murder, the prosecution must prove that he waited for a
substantial
period of time. Respondent contends that this language is from the lying-in-wait special circumstance, which has more stringent requirements than lying-in-wait first degree murder. According to respondent, the substantial period of time requirement is only applicable in the lying-in-wait special circumstance, citing the definition of lying-in-wait first degree murder contained in CALJIC No. 8.25, and
People v. Moon
(2005)
The definition of lying in wait, cited by defendant from
Gurule, supra,
Respondent relies upon Supreme Court authority that has noted that lying-in-wait first degree murder is different from the related lying-in-wait special circumstance. The Supreme Court recently noted in
Moon, supra,
An examination of the standard jury instructions would be expected to lend some guidance on the issue of whether a “substantial period” of watching and waiting is required for lying-in-wait first degree murder, or if it is only required for the special circumstance. CALJIC defines lying in wait for both essentially the same way
12
which could be read to support the position that the definition of lying in wait is the same for both. The current version of CALJIC does not include the “substantial period of watching and waiting” language in either definition.
13
(CALJIC
CALCRIM appears to lend more guidance, in that those instructions draw a distinction between the definition of lying in wait for first degree murder and for the related special circumstance, insofar as the
Morales
factor of a substantial period of watching and waiting is concerned. CALCRIM No. 521 indicates that first degree murder lying in wait requires proof that the defendant murdered while lying in wait or immediately thereafter. The instruction indicates that a defendant murdered by lying in wait if he: (1) concealed his purpose from the victim; (2) waited and watched for an opportunity to act; and (3) then, from a position of advantage, intended to and did make a surprise attack on the person killed. The instruction further states that the lying in wait does not need to continue for any particular period of
time, and uses the same language as CALJIC No. 8.25 (that
the duration only need show a state of mind equivalent to deliberation or premeditation).
CALCRIM No. 728, defining the special circumstance of lying in wait, states that the
In another line of cases, the Supreme Court was faced with challenges to the constitutionality of the lying-in-wait special circumstance based upon the argument that it does not sufficiently narrow the scope of death-eligible defendants by defining lying in wait more narrowly than first degree murder under a lying-in-wait theory. In this context, in
Gutierrez, supra,
28 Cal.4th at pages 1148-1149, the Supreme Court indicated that it had frequently rejected similar claims and noted, “ ‘[Mjurder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death. [Citations.]’ In contrast, the lying-in-wait special circumstance requires ‘an
intentional
murder,
committed under circumstances which include
(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 . . .
[the
Morales
factors].’ [Citations.] Furthermore, the lying-in-wait special circumstance requires ‘that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation. [Citations.]’ ” (Some italics added and omitted.)
18
The court finally concludes that “The distinguishing factors indentified in
Morales
and
[People
v.]
Sims
[(1993)
The court had reached the same conclusion, in the context of sufficiency of the evidence to support a special circumstance allegation, in
People v. Sims, supra, 5
Cal.4th at page 432: “[T]he factual matrix that justifies treatment of lying in wait as a special circumstance is ‘an intentional murder,
committed under circumstances which include
(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[.]’
[Citations.]” (Italics added.) (Accord,
Moon, supra,
How then to reconcile the apparent discrepancies in the law and the standard jury instructions? Respondent would presumably argue that CALCRIM’s addition of the substantial duration language only to the special circumstance instruction demonstrates that the drafters of the CALCRIM instructions felt it applied only there, and not to lying-in-wait first degree murder, and that by including it they intended to indicate that something more than just a sufficient duratiоn to show a state of mind equivalent of premeditation or deliberation was required. 20 Defendant would undoubtedly counter that the Supreme Court’s decisions in Stanley, Hardy, Gurule, and Cole cannot be ignored, and that the failure to include the substantial duration language in the definition of lying-in-wait first degree murder was a mere oversight.
We believe that the most reasonable reconciliation of all the authority discussed above is that the
Morales
factors, including the requirement of a “substantial period” of watching and waiting, are a part of the factual matrix required both for first degree murder under a lying-in-wait theory, and for the
lying-in-wait special circumstance.
21
As repeatedly held by the Supreme Court, however, the jury instruction language need not exactly track the language of
Morales
in order to define adequately the required elеments, for either definition. The court has held that jury instructions defining the required period of lying in wait, which indicate that it need not be for any particular length of time (so long as it is sufficient to demonstrate that defendant had a state of mind equivalent to premeditation or deliberation), sufficiently reflect the
Morales
requirement that the period of watching and waiting be
Viewed in a light most favorable to the prosecution, the evidence here establishes that defendant and the victim were engaged in a verbal altercation on a public street, with several other individuals in the vicinity. Defendant told the victim something to the effect of “I’ll show you what I mean,” and “stay here if you want to live.” Defendant then walked to a nearby garbage can, retrieved a shotgun, and returned to the victim within a minute. He carried the shotgun in plain view, pointed down. He said something to the victim, who replied, “It’s not that serious.” Defendant then quickly 22 shot the victim three times with the shotgun, from a relatively close proximity, including a fatal shot to the chest.
A reasonable jury could conclude that defendant’s statеment to the victim, telling him to stay there if he wanted to live, was a subterfuge intended to convince the victim to stay put so defendant could go and get his shotgun and kill him, supporting the element of concealment of purpose. The evidence also would support a finding that the lying in wait was for a sufficient period of time, because, as more fully detailed post, it was sufficient to show a state of mind consistent with premeditation or deliberation. 23
CALJIC No. 8.20 defines “deliberate” as “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” It defines “premeditated” as “considered beforehand.” The instruction indicates: “If you find that the killing was preceded and accompanied by a clear, dеliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.” As to the period of time that must be involved, the instruction states, “The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [][] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived
Defendant told the victim to stay where he was. Defendant commented that he was going to show the victim what he meant. Defendant then went and retrieved a loaded shotgun. After exchanging brief remarks with the victim, defendant quickly shot the victim three times. Although very little time elapsed, this evidence was sufficient to support the verdict of first degree murder on a deliberation and premeditation theory. The mere fact that defendant approached initially with the shotgun pointed at the ground, and said something to the victim (to which the victim replied that it was not that serious), does not necessarily negate defendant’s deliberation and premeditation, as he contends. A reasonable jury could determine that defendant’s decision to retrieve the shotgun and to kill the victim was a “cold and calculated judgment and decision,” even though it occurred over a short period of time. A reasonable jury could conclude that motive for the murder was demonstrated by evidence that defendant did not want the victim in the area where drugs were stored or sold. Planning activity could reasonably be found in the evidence of defendant’s statement that he was going to show the victim “what he meant,” followed by his retrieval of the shotgun. The manner of killing, while not an execution-style single shot to the head, could still support a finding of premeditation and deliberation, as defendant quickly fired three shots at the victim, with a shotgun, from a relatively close range. Thoughts may indeed flow with great rapidity. The evidence here supports a reasonable conclusion that defendant’s decision to kill, although quickly formed, was the result of a cold and calculated judgment and decision. A rational trier of fact could have been so persuaded. That is all that is required to sustain the verdict.
(People
v.
Wharton
(1991)
B., C. *
DISPOSITION
The judgment is affirmed.
Ruvolo, P. J., and Rivera, J., concurred.
Appellant’s petition for review by the Supreme Court was denied February 14, 2007, S148453.
Notes
An enhancement for use of a firearm (Pen. Code, § 12022.53, subd. (d)) was found true; defendant was also convicted of possession of a firearm by an ex-felon (Pen. Code, § 12021, subd. (a)). All further section references are to the Penal Code.
Defendant also contends on appeal that he was denied a fair trial due to witness misconduct, and that the prosecutor improperly commented upon his failure to present evidence.
The jury was instructed on two theories of first degree murder: lying in wait and premeditation/deliberation.
Agreda testified that after defendant said something had “come up missing” back there, the victim replied that he stayed there; defendant then said something like, “Man, if you want to keep living here, man . . . .” He admitted, however, that he had told the police a slightly different version, wherein he indicated that defendant said, “He was like, you want to keep living, stay here,” or something to that effect.
Lyles testified to these beliefs based upon his general observations. He admitted on cross-examination, however, that he had never personally observed defendant store drugs in the garbage can.
The autopsy surgeon’s testimony was not conclusive regarding the distance from which the shots were fired. He indicated on direct that they were fired from a distance of five to 10 feet away; on cross-examination, he indicated the distance could not be precisely determined without test-firing the weapon. He further indicated that one or all of the shots could have been fired from that distance, or from a closer range.
We focus primarily on tills element, but the same analysis regarding the correctly applicable law defining the elements of first degree murder under a lying-in-wait theory applies as well to the other elements cited from Gurule, supra, 28 Cal.4th at pages 629-630. The factors cited from Gurule, other than the substantial period of watching and waiting, are mentioned in CALJIC No. 8.25, although the language does not exactly track the cited language from Gurule (see fn. 13, post). Respondent specifically contends that the substantial period of watching and waiting requirement applies only to the lying-in-wait special circumstance, hence our focus on this issue.
Moon dealt with both issues, the lying-in-wait special circumstance and first degree murder under a lying-in-wait theory. As Moon indicates, it focuses “on the special circumstance because it contains the more stringent requirements. [Citation.] If, as we find, the evidence supports the special circumstance, it necessarily supports the theory of first degree murder.” (Moon, supra, 37 Cal.4th at p. 22.) Several Supreme Court decisions addressing sufficiency of the evidence issues, where both lying-in-wait first degree murder and the related special circumstance have been involved, have taken a similar approach.
We reference that portion of
Morales
which indicates that an intentional murder, committed under circumstances which include (1) a concealment of purpose; (2) a substantial period of watching and waiting for an opportune time to act; and (3) a surprise attack following immediately on an unsuspecting victim from a position of advantage (the
Morales
factors), justifies treating it as a special circumstance. Only the numbered factors would be at issue in lying-in-wait first degree murder, as it does not require an intentional killing. (See fn. 12,
post.) (Morales, supra,
We note that Proposition 18 (Stats. 1998, ch. 629, § 2, enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000) changed the word “while” lying in wait in the special circumstance to “by means of,” conforming that part of the definition with lying-in-wait first degree murder, arguably “to essentially eliminate the immediacy requirement that case law had placed on the special circumstance.”
(People v. Superior Court
(Bradway) (2003)
Again, those include that there be (1) a concealment of purpose; (2) a substantial period of watching and waiting for an opportune time to act; and (3) a surprise attack from a position of advantage following immediately.
(Morales, supra,
We reference only the definition of the phrase “lying in wait” in these instructions. Both CALJIC and Judicial Council of California Criminal Jury Instructions (2006-2007) (CALCRIM) have an additional element for the special circumstance of lying in wait, above those required for first degree murder, which recognizes that the special circumstance requires an intentional tilling (and that the tilling be by mеans of lying in wait). (See discussion of Prop. 18, fn. 10, ante, modifying the language of the special circumstance to “by means of lying in wait,” rather than “while lying in wait.”)
Other Morales factors, such as concealment of purpose, waiting and watching for an opportune time to act, and surprise are mentioned in the CALJIC definitions, although the language does not exactly track the Morales language.
CALJIC No. 8.25 states that murder which is immediately preceded by lying in wait is murder of the first degree and then goes on to define lying in wait as: “a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise [even though the victim is aware of the murderer’s presence]. 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, [f] [The word ‘premeditation’ means considered beforehand.] [f] [The word ‘deliberation’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.]” (Italics added.)
After the
Morales
decision, CALJIC No. 8.81.15 was modified (in a bracketed paragraph) to specifically add the three
Morales
elements (concealment of purpose, substantial period of watching and waiting, and immediate surprise attack). CALJIC No. 8.25 was not similarly modified, but a use note was added, which indicated, “The Committee expresses no opinion as to whether [the language from Morales] is also appropriate for CALJIC No. 8.25 inasmuch as the Supreme Court did not specifically so indicate. However, it may be something that the trial court should consider.” (Use Note to CALJIC No. 8.25 (5th ed. 1990 pocket pt.) p. 49.) This use note no longer appears in the current version of the instruction (CALJIC No. 8.25 (Fall 2006 ed.)), having been deleted as of July 1992 (5th ed. 1992 pocket pt.) p. 86). (See
People
v.
Fitzpatrick
(1992)
The
Ceja
court indicated that the defendant’s first two allegedly omitted elements had been addressed, and rejected, in
People v. Edwards
(1991)
We note that CALCRIM includes the element of concealment, listed in Morales as being required for the special circumstance lying in wait, in both definitions. Both CALCRIM No. 521 and CALCRIM No. 728 also require that there be a surprise attack. CALCRIM includes the Morales factor of a substantial period of watching and waiting, however, only in the special circumstance instruction.
The crime in Gutierrez took place in 1986, long before the adoption of Proposition 18 in the year 2000.
CALCRIM reiterates that the lying in wait for the special circumstance need not continue for any particular period of time. As previously indicated, it required that the duration be both substantial and sufficient to demonstrate that the defendant had the state of mind equivalent to deliberation or premeditation. CALCRIM does, however, incorporate other Morales factors into both the lying-in-wait first degree murder instruction and the instruction for the related special circumstance. (CALCRIM Nos. 521 and 728; see fn. 16, ante)
This is supported by the fact that CALCRIM No. 728 indicates that the duration of lying in wait “must be substantial and must show a state of mind equivalent to deliberation or premeditation.” (CALCRIM No. 728, italics added.)
This conclusion comports with the court’s holding in Stanley, as well as its holding in Gutierrez. Gutierrez's indication that the Morales factors are a part of the factual matrix for the lying-in-wait special circumstance does not mean that they alone set apart the special circumstance from the related theory of first degree murder. As indicated ante, the court held in Gutierrez that an intentional murder committed under circumstances demonstrating the Morales factors, during the period of concealment and watchful waiting, sets the special circumstance murder apart from an ordinary lying-in-wait first degree murder, justifying classification as a crime warranting the imposition of the death penalty. (Gutierrez, supra, 28 Cal.4th at pp. 1148-1149.)
The precise amount of time that elapsed frоm when defendant returned with the shotgun, until the firing of the shots, was not established by the evidence. From the witnesses’ testimony, however, it appears that once defendant returned, the events followed one upon the other, in fairly quick succession.
A reasonable jury could also rely upon the fact that defendant, and others, were in the area prior to the victim’s arrival, as supporting a sufficient period of lying in wait. Even though a contrary inference could have been drawn, as defendant argues, the jury could have concluded that defendant was waiting for the victim. A reasonable jury could also have concluded that defendant’s obtaining of the gun, returning, and engaging the victim in a short conversation before opening fire, constituted waiting and watching for an opportune time to аct. Also, even though defendant did not attempt to isolate the victim, a reasonable jury could have reached the conclusion that if defendant’s statement to the victim to stay where he was acted as a subterfuge, then defendant’s returning with the shotgun to kill the victim was immediately launching a surprise attack on an unsuspecting victim from a position of advantage. These are the other Morales factors which defendant complains were not supported by sufficient evidence.
24This area of the law would benefit from such clarification.
The jury appears to have asked only for the readback of the testimony of James Lyles, regarding his description of the shotgun and his touching of it, when he discovered it in the garbage can. The trial lasted from April 6, 2005, through April 21, 2005; the jury deliberated for one day (and an hour on the next day) before returning its verdict.
See footnote, ante, page 572.