THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; GABRIEL JOHN BRADWAY, Real Party in Interest.
No. D040580
Fourth Dist., Div. One.
Jan. 14, 2003.
297
Paul J. Pfingst, District Attorney, Thomas F. McArdle, Anthony Lovett and Richard S. Armstrong, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Steven J. Carroll, Public Defender, Mark Kirkness, Matthew Braner, and Gary Nichols, Deputy Public Defenders, for Real Party in Interest.
OPINION
HUFFMAN, J.—The People of the State of California petition for a writ of mandate commanding respondent court to vacate its order of May 24, 2002, granting real party in interest Gabriel John Bradway‘s motion to dismiss the allegation of special circumstances under
BACKGROUND AND PROCEDURE
On November 5, 2001, Bradway was charged in a criminal complaint with first degree murder (
The evidence presented at a January 9, 2002 preliminary hearing showed that on November 1, 2002, Bradway had called 911 to ask for medical assistance for Kelin at her apartment, saying she had a headache and needed to go to the emergency room. Deputy sheriffs responding to the call found Kelin in her apartment bludgeoned and strangled to death. In her bedroom closet, sheriff‘s detectives found bloody clothing and a hammer with part of its handle sawed off.
Bradway was arrested later that evening, waived his Miranda2 rights and spoke to a detective, telling him he had been planning to kill Kelin for about a month. Bradway said he had arranged, as a ruse, to go to Kelin‘s apartment to use her computer and pick up his pager, but that his real reason was to kill her. In preparation of such plan, he had sawed off part of the handle of a friend‘s hammer so he could hide it in his waistband.
When Bradway arrived at Kelin‘s apartment, she let him in and he made sure he was nice so as to make her feel comfortable. He was in the apartment for 10 to 20 minutes “before he destroyed her.” During that time, they walked into the master bedroom to use her computer. When she noticed there was no paper in the printer, she walked to the closet, obtained some, then got down on her knees to place it in the printer which was on the floor. Bradway, who stood behind, and over her, took out the hammer and struck Kelin on the head several times. He “caught her by surprise,” but then to his surprise, she fought back. He then threw her on the bed and strangled her with both hands and a telephone cord he wrapped around her neck. Bradway estimated the murder took 30 minutes to complete.
Afterwards, Bradway noticed a large amount of blood on his clothes, so he removed his clothing and placed it inside the master bedroom closet with the
In a subsequent search of defendant‘s apartment, deputies found Kelin‘s clothing he had worn from her apartment, a pair of bloody socks, and the sawed-off handle to the hammer. Bradway conceded that his actions in making up a false reason for going to Kelin‘s apartment and making her feel comfortable were “setting the trap.”
After hearing this evidence, the magistrate found there was sufficient probable cause to hold Bradway to answer to the murder charge and the deadly weapon use allegation, but declined to make any finding on the lying-in-wait special-circumstance allegation.
On January 28, 2002, Bradway was charged by information with first degree murder and was alleged to have personally used a deadly weapon in committing such crime. In addition the People realleged that the murder was committed under the special circumstance of lying in wait.
On March 8, 2002, Bradway filed a motion to dismiss the lying-in-wait allegation under
On May 10, 2002, the court heard argument on the motion, deferring any ruling to May 24, 2002. The court, however, tentatively noted it found sufficient evidence to support the lying-in-wait special circumstance, but was having difficulty with the change in language in the special circumstance made by Proposition 18; it did not know whether the fact the first degree murder by lying in wait and the lying-in-wait special circumstance now had the same language would be enough for Bradway to raise an issue of unconstitutional vagueness. The People‘s position at the hearing was that the matter regarding constitutionality should wait until trial.
Nevertheless, on May 20, 2002, the People filed points and authorities regarding the constitutionality of
On May 24, 2002, the court pronounced its ruling in open court and filed its written order, holding there was a sufficient factual basis for the lying-in-wait allegation presented at the preliminary hearing, but that the Proposition 18 amendment had rendered
The People filed a notice of appeal from the order dismissing the lying-in-wait special circumstance on July 29, 2002. (People v. Bradway (July 29,
DISCUSSION
Before considering the essential question raised by this petition, i.e., whether the change in the wording of
In order to prove a defendant guilty of first degree murder under a theory of lying in wait, the prosecution needs to present evidence from which the jury can find the defendant has “perpetrated [an unlawful killing with malice aforethought] by means of . . . lying in wait.” (
Once a defendant is found guilty of first degree murder, he is exposed to three possible penalties: death, life imprisonment without possibility of parole (LWOP), or a 25-year-to-life prison term (
Up until March 8, 2000,
However, as the Supreme Court in People v. Ceja (1993) 4 Cal.4th 1134 [17 Cal.Rptr.2d 375, 847 P.2d 55] stressed, although lying in wait as a form of first degree murder and the special circumstance of lying in wait overlap to an extent, they are different because the special circumstance requires an intentional killing “while” lying in wait rather than “by means of ” lying in wait. (Id. at p. 1140, fn. 2.) Lying-in-wait murder does not have an intentional murder requirement (ibid); rather it only requires wanton and reckless intent to inflict injury likely to cause death. (People v. Webster (1991) 54 Cal.3d 411, 448 [285 Cal.Rptr. 31, 814 P.2d 1273] (Webster).)
In a challenge to the sufficiency of the evidence to support the lying-in-wait special circumstance added to the Penal Code by California‘s 1978 Death Penalty Initiative (Prop. 7, Gen. Elec. (Nov. 7, 1978)), the majority in Domino, supra, 129 Cal.App.3d 1000, found the word “while” in the special circumstances definition of lying in wait indicated a closer temporal proximity than required for first degree murder lying in wait, which used the
In a concurring and dissenting opinion, Justice Barry-Deal strongly disagreed with the striking of the lying-in-wait special circumstance. (Domino, supra, 129 Cal.App.3d at p. 1012.) Justice Barry-Deal stated: “Although the complete text of the special circumstance provision uses the terminology, ‘[t]he defendant intentionally killed the victim while lying in wait,’ the operative words are ‘intentionally killed’ and ‘lying in wait.’ The intent of the initiative proponents was to make the new death penalty law (
Justice Barry-Deal found the purpose of the initiative clear, that it did not violate the federal Constitution, and was greatly troubled “because legislation passed by initiative may not be amended or repealed except by a vote of the electors” which would require a new initiative to change the word “while” to “by means of” to correct the limiting judicial construction by the majority. (Domino, supra, 129 Cal.App.3d at p. 1012 (con. & dis. opn. of Barry-Deal, J.).)
Proposition 18, adopted by the voters on March 7, 2000, changed the word “while” in the lying-in-wait special circumstance to “by means of” so that it would conform with the lying-in-wait language defining first degree murder to essentially eliminate the immediacy requirement that case law had placed on the special circumstance. (See Ballot Pamp., Primary Elec. (Mar. 7, 2000) Legis. Analyst‘s analysis of Prop. 18, p. 33; Chief Counsel, Rep. on
In the June 23, 1998 report on Senate Bill No. 1878 by chief counsel to the Assembly Committee on Public Safety, it was noted that in Morales, supra, 48 Cal.3d 527 and Edelbacher, supra, 47 Cal.3d 983, our Supreme Court had stated that as a constitutional matter an intentional killing committed by means of lying in wait was a valid basis to impose the death penalty and that in Edelbacher had held that first degree murder committed by means of lying in wait where the murder was committed with an intent to kill was a valid basis alone to impose the death sentence. (Chief Counsel, Rep. on Sen. Bill No. 1878 (1997-1998 Reg. Sess.) to Assem. Com. on Public Safety, June 23, 1998 hearing, p. 10.) The report recognized the language of “while” in the special circumstance of lying in wait had been interpreted by the court in Domino, supra, 129 Cal.App.3d 1000, to require the murder be committed during the time the person was lying in wait, that such view had been accepted by our Supreme Court, and that such current distinction between “the category of first-degree murder and the special circumstance has caused substantial confusion, particularly in the area of jury instructions.” (Chief Counsel, Rep. on Sen. Bill No. 1878 (1997-1998 Reg. Sess.) to Assem. Com. on Public Safety, June 23, 1998 hearing, p. 10.) The report thus recommended the change in the language in the lying-in-wait special circumstance to conform to that in
With this background in mind, we return to the question of whether the trial court improperly found the change in the lying-in-wait special
Here, because Bradway no longer faces the death penalty, and no First Amendment rights are implicated, we merely examine the statute as applied to him under the facts of the instant case. (Maynard v. Cartwright, supra, 486 U.S. at pp. 361-362 [108 S.Ct. at pp. 1857-1858].) Such facts show that Bradway decided to kill his victim, established a ruse to take her by surprise, prepared a weapon he could conceal when he went to her home under the ruse, where he watched and waited for an opportune time to strike his unsuspecting victim from a position of advantage, and when she kneeled on the floor with her back to him, did so strike her according to his plan. As the trial court correctly found, the facts satisfied the terms of the newly amended lying-in-wait special circumstance.
Nonetheless, the court found the new statute unconstitutionally vague because it felt there was no longer any cognizable way to differentiate between an intentional first degree murder committed by means of lying in wait and murder with the special circumstance of lying in wait. To the extent the court was concerned that both would have the same elements, and therefore failed to narrow the class of persons eligible for the death penalty or an LWOP term, its reasoning was flawed. 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 Proposition 18, reveal that even after Proposition 18 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. (See Webster, supra, 54 Cal.3d
As for the court‘s finding that the amended
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.]” (People v. Arias (1996) 13 Cal.4th 92, 189 [51 Cal.Rptr.2d 770, 913 P.2d 980].) 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
Moreover, the trial court‘s reliance on Houston, supra, 177 F.3d 901, a federal circuit case, to find the amended lying-in-wait special-circumstance statute invalid as unconstitutionally vague is questionable. Although the temporal distinction made by the majority in Domino, supra, 129 Cal.App.3d 1000, between the terms “by means of” in the lying-in-wait murder and “while” in the lying-in-wait special circumstance relied upon by the court in Houston for its holding has been recognized by our Supreme Court, the correctness of such distinction or “the validity of Domino‘s restrictive interpretation of the special circumstance provision” has not. (Morales, supra, 48 Cal.3d at p. 558; see Edwards, supra, 54 Cal.3d at p. 826; Edelbacher, supra, 47 Cal.3d at p. 1022.) Nor need we reach the issue in this case, as the 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.]” (Edelbacher, supra, 47 Cal.3d at p. 1023.) Such “‘principled way to distinguish this case’ from other first degree murders . . . comports with the Eighth Amendment requirements” of narrowing the class of murders for which death may be imposed. (Ibid.)
Having determined that the trial court erred in determining
DISPOSITION
Let a writ of mandate issue directing the Superior Court of San Diego to vacate its order of May 24, 2002, granting Bradway‘s motion to dismiss the allegation of special circumstances under
O‘Rourke, J., concurred.
MCDONALD, Acting P. J., Dissenting.—In my view the adoption of Proposition 18, which eliminated the temporal distinction between lying in wait as a means of establishing premeditation for first degree murder (
The most recent declaration of the California Supreme Court of the distinction between lying-in-wait first degree murder and the lying-in-wait special circumstance appears in People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149 [124 Cal.Rptr.2d 373, 52 P.3d 572]. The Gutierrez decision rejected a constitutional challenge to the lying-in-wait special circumstance as it existed before the adoption of Proposition 18. The court identified the two distinguishing characteristics between lying-in-wait first degree murder and the lying-in-wait special circumstance as follows: “[(1)] ‘[M]urder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death’ [and] [i]n contrast, the lying-in-wait special circumstance requires ‘an intentional murder’ [; and (2)] 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 . . . .‘” (Id. at pp. 1148-1149.) Proposition 18 removed the temporal distinction referred to by the Supreme Court in Gutierrez. The issue in the instant petition therefore is whether the alternate distinction referred to by the Supreme Court, which is the intent to kill relied on by the majority opinion in this case, is sufficient to satisfy the Eighth Amendment and due process, which require a meaningful narrowing of the circumstances for which the death penalty may be imposed from the circumstances for which it
The sole current distinction between murder by means of lying in wait (
Although superficially it appears that the distinction between lying-in-wait murder, which purportedly requires express or implied malice, and the lying-in-wait special circumstance, which requires express malice, is a meaningful distinction, on closer examination it is my view that because the definition of lying in wait is identical for both, there is no distinction. Both lying-in-wait murder and the lying-in-wait special circumstance incorporate the identical definition of lying in wait. As set forth in CALJIC Nos. 8.25 and 8.81.15.1, “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 word ‘premeditation’ means considered beforehand. [¶] 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.” Therefore to establish either lying-in-wait murder or the lying-in-wait special circumstance, the defendant must be proved to have acted with premeditation and deliberation. As stated by the Supreme Court, “lying in wait as a theory of murder is ‘the functional equivalent of proof of premeditation, deliberation and intent to kill.’ (People v. Ruiz [(1988)] 44 Cal.3d [589,] 614 [244 Cal.Rptr. 200, 749 P.2d 854], and cases cited; see
As a result of Proposition 18‘s deletion of the temporal requirement of lying in wait as a special circumstance under
On January 16, 2003, the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied April 9, 2003. Kennard, J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.