Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GA067745 Janice Claire Croft, Judge.
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, J.
On November 20, 2006, defendant and appellant Samuel Hernandez, an adult, armed himself with two knives and waited just inside his house for his mother, Mrs. Alicia Hernandez, to return home from work. When she arrived home, defendant attacked her immediately after she opened the front door to their house and pursued her down their driveway, stabbing her 86 times and killing her. During the court trial that followed, defendant was convicted of lying-in-wait murder, and a special circumstance allegation of lying-in-wait was found true. The trial court then sentenced defendant to life in prison without the possibility of parole.
Defendant appeals both his lying-in-wait murder conviction and the lying-in-wait special circumstance finding. He contends that his sentence violates the Eighth Amendment to the United States Constitution because the lying-in-wait special circumstance does not narrow the class of offenders deserving greater punishment in a principled manner. He also contends that there is insufficient evidence to support either his conviction of lying-in-wait murder or the lying-in-wait special circumstance finding. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts relayed are drawn from the testimony and exhibits presented at the preliminary hearing, on which both parties submitted at trial.
On the night of November 19, 2006, defendant was taking a shower around 11 p.m. while Mrs. Hernandez was trying to sleep. As she had on many other nights when defendant’s showers interfered with her sleep, Mrs. Hernandez turned off the water using a valve outside the house. Defendant did not object. As usual, he simply returned to his room. Mrs. Hernandez left the house around 4:00 a.m. and went to work.
In addition to his habit of taking hour-long showers, defendant’s habit of cutting his hair and leaving it in the bathroom sink had created some tension with his mother, although he always cleaned up his hair after Mrs. Hernandez chastised him. There appears to have been tension between them for some time, as defendant stated, about one or two years prior to the murder, that he was “going to kill” her.
Defendant followed a consistent routine when he waited for Mrs. Hernandez to return home from work. He would sit in a chair for hours behind the front door of the house, at times talking incomprehensibly and brushing himself off. When she returned from work, Mrs. Hernandez brought defendant tacos or hamburgers-the only food that he would eat. He then ate in his chair, as he refused to enter the kitchen for any reason.
On this particular day, something was different. Defendant obtained two knives, probably from the kitchen, while he was waiting for Mrs. Hernandez to return home from work. When Mrs. Hernandez returned home around 2:00 p.m. with food from Del Taco, she was attacked by defendant with at least one knife as she walked in the front door. Defendant pursued her down their concrete driveway and into the street, stabbing and beating her as she tried to escape. She died near a truck in the street from fatal stab wounds. Defendant continued to stab and beat her for a short time after her death. A coroner later determined that she had been stabbed 86 times-45 times before her death, 20 times at the time of her death, and 21 times after her death.
Lorena Calderon, who lived approximately eight houses down, saw defendant attacking someone on the ground near the truck and called 911. When Los Angeles County Deputy Sheriff Wayne Goodrich arrived shortly thereafter, he saw Mrs. Hernandez lying on the ground next to the truck and called the paramedics. Defendant came down the concrete driveway and laid down on the ground. When Deputy Goodrich asked what had happened, defendant told him that he had stabbed Mrs. Hernandez and that he had knives. Deputy Goodrich’s examination of defendant revealed blood on his hands and shoes and a bloody knife in the back pocket of his pants.
After defendant was secured, a search of the premises was conducted. Blood splatters were discovered on the interior wall immediately next to the front door of the house. A soft drink cup had been dropped in the doorway, after which a trail of blood and dropped items, including money, keys, a cell phone, and a paper bag with food from Del Taco, led down the driveway to Mrs. Hernandez’s body. A second knife was also discovered in the flower bed.
Defendant was subsequently charged with first degree murder “by means of... lying in wait” (Pen. Code, § 189) and the special circumstance of lying in wait (Pen. Code, § 190.2, subd. (a)(15)). It was also alleged that he personally used a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)).
Penal Code section 189 states in pertinent part that “[a]ll murder which is perpetrated by means of... lying in wait... is murder of the first degree.”
Penal Code section 190.2, subdivision (a)(15) identifies as a special circumstance that “[t]he defendant intentionally killed the victim by means of lying in wait.” If the special circumstance is found to be true, the 25 years in prison to life sentence is no longer available and the defendant may only be sentenced to life in prison without the possibility of parole or death. (Pen. Code, § 190.2, subd. (a).)
Penal Code section 12022, subdivision (b)(1) states that “[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.”
Defendant waived his right to a jury trial and agreed to a court trial, after which the parties submitted on the testimony and exhibits presented during the preliminary hearing. The trial court found defendant guilty as charged and sentenced him to life in prison without the possibility of parole. Defendant timely appealed.
CONTENTIONS ON APPEAL
On appeal, defendant contends (1) that the lying-in-wait circumstance is unconstitutional because it does not perform the narrowing function required by the Eighth Amendment to the United States Constitution and (2) that there was insufficient evidence to support either his conviction of first degree murder or the special circumstance that he intentionally committed the murder by means of lying in wait.
DISCUSSION
1. Constitutionality of the Lying-in-wait Special Circumstance
Defendant contends that the lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)) is unconstitutionally vague because it does not perform the narrowing function required by the Eighth Amendment to the United States Constitution. Stated differently, defendant contends that the lying-in-wait special circumstance is so similar to lying-in-wait murder that it does not provide a principled distinction for determining which offenders are deserving of greater punishment. However, the narrowing requirement only applies to death penalty cases. (Romano v. Oklahoma (1994) 512 U.S. 1, 6-7 [the Eighth Amendment’s concern that the death penalty only be imposed when appropriate requires states to satisfy the requirements of (1) principled narrowing of the eligible offenders and (2) individualized sentencing]; cf. Harmelin v. Michigan (1991) 501 U.S. 957, 995-996 [heightened Eighth Amendment protection of individualized sentencing in capital cases does not apply to noncapital cases].) Therefore, we address defendant’s contention as modified in his reply brief, in which he contends that his sentence violates the Eighth Amendment’s proportionality principle because his sentence is disproportionate to that of other murderers who commit identical crimes but receive 25 years to life in prison. Under his modified theory, the crux of his argument remains that there is no principled distinction between lying-in-wait murder and the lying-in-wait special circumstance. The outcome is the same under either theory.
The California Supreme Court has consistently upheld the lying-in-wait special circumstance against Eighth Amendment challenges. Lying-in-wait murder and the lying-in-wait special circumstance are similar in that both require “a concealment of purpose, a substantial period of watching and waiting for a favorable or opportune time to act, and... a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Gurule (2002) 28 Cal.4th 557, 630; People v. Bonilla (2007) 41 Cal.4th 313, 330; People v. Poindexter (2006) 144 Cal.App.4th 572, 577.) However, “[t]he special circumstance requirement that the defendant intentionally kill the victim continues to distinguish the special circumstance from first degree murder under a lying-in-wait theory. Lying-in-wait first degree murder ‘requires only a wanton and reckless intent to inflict injury likely to cause death.’ (Citations.)” (People v. Poindexter, supra, 144 Cal.App.4th at p. 580, fn. 10; People v. Stevens (2007) 41 Cal.4th 182, 204.)
The California Supreme Court previously required that the special circumstance only be found true when the attack immediately followed the lying-in-wait period. However, a 2000 amendment to Penal Code section 190.2, subdivision (a)(15) “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.’ (Citation.)” (People v. Poindexter, supra, 144 Cal.App.4th at p. 580, fn. 10.) Even had the immediacy requirement not been eliminated, the trier of fact found that defendant attacked Mrs. Hernandez immediately after his lying-in-wait period.
Defendant contends that this distinction is unprincipled because lying-in-wait murder also requires an intent to kill, despite express California Supreme Court precedent to the contrary. To reach this conclusion, defendant highlights that the substantial waiting and watching period must demonstrate a state of mind equivalent to premeditation or deliberation. (People v. Stevens, supra, 41 Cal.4th at p. 202.) This analysis fails because “[a]ll that is required of lying in wait is that the perpetrator exhibit a state of mind equivalent to, but not identical to, premeditation and deliberation. (Citation.) This state of mind simply is the intent to watch and wait for the purpose of gaining advantage and taking the victim unawares in order to facilitate the act which constitutes murder. (Citation.) It does not include the intent to kill or injure the victim.” (People v. Laws (1993) 12 Cal.App.4th 786, 795.) Therefore, the lying-in-wait special circumstance is constitutionally sound because it makes a class of murderers eligible for greater punishment in a principled manner. Defendant’s sentence is not arbitrarily longer than that of some other murderers, but rather is longer because he is more culpable than some others who commit lying-in-wait murder.
2. Sufficiency of the Evidence as to Defendant’s Conviction of First Degree Murder by Means of Lying in Wait and the Lying-in-Wait Special Circumstance
When considering an insufficiency of the evidence contention, we review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. To be substantial, the evidence must be reasonable, credible, and of solid value. When circumstantial evidence is present, we must consider not just the evidence, but all logical inferences that arise from the evidence. We may not substitute our judgment for that of the trier of fact. If the circumstances reasonably justify the verdict, we may not reverse merely because the circumstances might also support a contrary determination. Instead, we may reverse only if it clearly appears that there is insufficient substantial evidence to support any hypothesis of guilt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Poindexter, supra, 144 Cal.App.4th at p. 577.)
We review the special circumstance of lying in wait because it is subject to more stringent requirements than first degree murder by means of lying in wait. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1149.) If substantial evidence supports the special circumstance finding, it necessarily supports the conviction of first degree murder by means of lying in wait. (Ibid.)
To establish the lying-in-wait special circumstance, “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... a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Gurule, supra, 28 Cal.4th at p. 630; People v. Bonilla, supra, 41 Cal.4th at p. 330; People v. Poindexter, supra, 144 Cal.App.4th at pp. 577-581.) “ ‘ “ ‘The element of concealment is satisfied by a showing “ ‘that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.’ ” ’ ” ’ (People v. Stevens, supra, 41 Cal.4th at p. 202.) The substantial waiting and watching period need only be minutes, providing it demonstrates a state of mind equivalent to premeditation or deliberation. (Id. at p. 202.) Watching and waiting includes alertly waiting for a victim’s arrival. (People v. Sims (1993) 5 Cal.4th 405, 433.) “The factors of concealing murderous intent, and striking from a position of advantage and surprise, ‘are the hallmark of a murder by lying in wait.’ (Citation.)” (People v. Stevens, supra, 41 Cal.4th at p. 202.)
With these governing principles in mind, the record before us demonstrates that a reasonable trier of fact could find all four elements satisfied under any reasonable theory of events. The facts indicate that defendant obtained two knives, possibly from the place he almost invariably refused to venture, the kitchen. The blood splatter on the wall immediately next to the front door and the lack of any evidence of a struggle in the interior of the house supports the inference that defendant attacked Mrs. Hernandez with at least one knife immediately after she opened the door. In addition, defendant almost always sat inside the house in a chair that was positioned behind the front door when it was opened. Therefore, the trier of fact could conclude that defendant concealed his purpose, both by being hidden behind the front door and by, as is likely given the consistency of his actions prior to the incident, following the same routine with the hidden intent of killing Mrs. Hernandez with a knife. The evidence also supports the inference that defendant was watching and waiting for Mrs. Hernandez to return home with the intention of stabbing her and then launched an immediate surprise attack when she opened the door. The time between his preparation for the attack, when he obtained the knives, and the actual attack is a sufficiently substantial period of watching and waiting, regardless of the actual length of time.
Further, when the evidence above is combined with the fact that Mrs. Hernandez’s hands were likely occupied with carrying the various items that were found in the doorway and on the driveway, a reasonable trier of fact could conclude that defendant was in a position of advantage when the attack was launched. This was the point at which she was most defenseless and vulnerable. Finally, the trier of fact could conclude that defendant intended to kill Mrs. Hernandez because he attacked her with a deadly weapon, a knife, and stabbed her 86 times. While we recognize that contrary inferences might be drawn from the facts, it is the role of the trier of fact to decide which inferences should be drawn. Therefore, we hold that defendant’s conviction of both lying-in-wait murder and the lying-in-wait special circumstance are supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We Concur: KLEIN, P. J., KITCHING, J.