Defendant was convicted of first degree murder. The jury was allowed to consider two theories of first degree murder: (1) a deliberate
We find that the evidence was sufficient to warrant instructions on lying in wait, and therefore need not decide the second question. (But see People v. Guiton, ante, p. 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
Defendant was convicted of shooting and killing Diana Hernandez (Diana) in the front yard of her brother's home in East Palo Alto on September 7, 1988.
Defendant, known as "Chico," was the father of Diana's infant son. During the summer of 1988, Diana and defendant lived together in a stormy relationship marked by frequent quarrels and occasional separations. About 10 days before the shooting, Diana left defendant and moved into the home of her brother, Hermenegildo Hernandez (Hermenegildo), and his wife, Maria Ortega. About four days before the shooting, Lupe Roque, who also lived at the house, heard defendant talking to Diana through a window. Defendant was not allowed to enter the house. Defendant told Diana to return everything he had given her, including her clothes and jewelry. He said that "if she was going to leave she was going to leave without nothing of his." Diana threw her clothes and shoes out the window.
Two or three days before the shooting, Diana and others went to a laundromat. Defendant followed in his car. Defendant attempted to speak with Diana at the laundromat, but she refused to talk to him. She did allow him to play with the baby outside the laundromat. Later, the two spoke at Hermenegildo's house. Still later, defendant and Hermenegildo spoke at a bar. Defendant, somewhat intoxicated, said he loved Diana and could not understand why she did not want to live with him. He gave Hermenegildo a gold chain to give her. Diana refused to accept the chain and told Hermenegildo to return it to defendant. The night before the shooting, Hermenegildo returned the chain to defendant. Defendant said he would kill himself if Diana did not come back to live with him.
Around 10 a.m. on the morning of the shooting, defendant's father's pickup truck was seen parked next to Hermenegildo's house. There was
Sometime after Bruce arrived, defendant knocked on the front door. Diana answered. Defendant gave a bag of clothes to either Diana or Sierra. Sierra then returned to her bedroom and resumed watching television. Defendant asked Roque if he could talk with Diana in the backyard. When Diana indicated to Roque that she did not want to go outside, Roque said "no." However, Roque did say they could sit in the front yard. During this time, at defendant's request, Diana got the baby. Diana, defendant, and the baby then went into the front yard. Roque went outside with them, watched them go to a sofa and sit down, then returned to the house.
At some point thereafter, Diana was heard to yell, "No, Chico, no," and call for help. Ortega and Roque rushed outside. Sierra looked out of the bedroom window. Exactly what happened next is disputed. It is clear, however, that after others, including Ortega, had arrived on the scene, defendant shot Diana three times with a handgun, killing her. He then fled on foot. During this time, Bruce, the social worker, dialed "911." She was on the telephone when she heard the shots. The time of the call was 1:13 p.m.
Defendant was arrested a year and a half later in Merced. Although he denied committing the crime, he told the police that he drove his father's pickup truck to Hermenegildo's house the morning of the shooting, and saw Diana briefly. He said he left the truck at the house because it would not start. At trial, he presented an alibi defense which the jury rejected.
The Court of Appeal found insufficient evidence to support a first degree murder verdict on a theory of lying in wait.
The same standard applies to the review of circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932 [251 Cal.Rptr. 467, 760 P.2d 996].)
In a letter brief filed shortly before oral argument, defendant argues that this instruction misstates or omits three elements of lying in wait: " a `substantial period of lying in wait';  that the attack proceed from a position of advantage; and  that the attack follow immediately after the watchful waiting." Although the instruction does not verbatim track our language in People v. Morales, supra, 48 Cal.3d at page 557, we have repeatedly upheld the instruction, and continue to do so. (People v. Hardy (1992) 2 Cal.4th 86, 161-163 [5 Cal.Rptr.2d 796, 825 P.2d 781]; People v. Ruiz, supra, 44 Cal.3d at pp. 613-615.) Defendant's specific claims were not made in Hardy or Ruiz, but claims (1) and (2) were made and rejected in People v. Edwards (1991) 54 Cal.3d 787, 821-823 [1 Cal.Rptr.2d 696, 819 P.2d 436] (involving only slightly different language from that used here);
In its essence, the issue here revolves around the occurrences from the time defendant approached the house to the shooting. Resolution of the question requires a close examination of the eyewitness testimony. Six witnesses testified about these events.
(1) Patricia Sierra
Sierra testified that while she was watching television in her bedroom, she heard voices outside. She could not hear the words. They were "just talking" at first, then the voices got louder. At trial, she "d[id]n't know" how long had elapsed from the time she was handed the bag of clothes to the time the voices got louder, but estimated it to be 10 to 20 minutes. About one minute after the voices got louder, Diana "started screaming for help." Diana was screaming for Ortega and others, and saying, "No, Chico, no." Sierra looked out the window, and saw defendant pointing a gun at Diana. "She was screaming and then he shot her" three times. Defendant may have "grabbed her by the hair or by the neck" before he shot her.
(2) Maria Ortega
Ortega testified that "about fifteen minutes, something like that," after defendant and Diana went to the front yard, she heard loud noises from outside. She heard Diana yelling, "No Chico, no, Chico," and calling for the others. Ortega ran outside, and saw defendant "holding her by the hair." "They were struggling." Ortega "told him something nasty [exactly what was not specified]. I told him to leave her alone, let her go." Then she "saw that he took the gun out," and was "holding it in his hand." She "didn't see where he took it from." He pointed the gun at Ortega, who took refuge behind a tree. Defendant "was struggling with [Diana] and then [Ortega] heard three shots."
(3) Amada Bruce
Bruce testified that she arrived at the house "sometime after noontime. It could have been about 12:15, 12:30 sometime." She spoke to the occupants for "about twenty-five minutes before something happened." Diana was called to the door. Then Diana came back to get the baby. Bruce resumed talking to the others. Then she heard someone say something like "he's hurting her." "Shortly after that somebody said call the police, he's hurting her again." All this happened "very fast." There was "so much panic" that Bruce "rushed to the phone and dialed 911." While on the telephone, she heard someone say "he has a gun" and "he's going to kill her." Then she heard two shots. From the time defendant arrived to the time of the shots "seemed quick." It was "[a] few minutes, and I can't really say how many minutes. It seemed like a few minutes; five, something like that." It was not "twenty minutes or something like that."
(4) Hermenegildo Hernandez
Hermenegildo testified that he was in the backyard when he heard Diana screaming, "No Chico, no Chico, no Chico." He "thought that they were just fighting." He walked towards the door of the house when he heard three shots.
(5) Guadalupe Roque
Roque testified that it was "not too long," "it seemed about five or ten" minutes from the time she saw defendant and Diana sit on the sofa to the time she heard a cry for help. She was talking with Bruce when she heard Diana yell for the others. She ran outside, and saw defendant and Diana "struggling." Defendant pointed a gun at Ortega, who hid behind a tree.
(6) Stacey Ashford
Ashford, a neighbor, testified that he heard what he characterized as an "argument" between defendant and Diana, who were about 100 to 200 feet away. He could not understand the words because they spoke Spanish, which he does not understand. He saw the two "fighting." Defendant "hit her numerous times, arguing at her, yelling at her, and knocking her on the ground." Ashford then heard shots, and saw defendant flee with a handgun.
Based on this record, the Court of Appeal found the evidence of lying in wait deficient in three respects. First, it found no evidence of watching and waiting. Second, it found no evidence of a plan or concealed purpose to take the victim by surprise, or, stated slightly differently, to "attack Diana unawares." On this point, the court stated: "Although Diana answered the door when appellant arrived at the house, he did not immediately assault her. Rather, they spent some time talking. Diana then reentered the house and returned with their son, whereupon the three of them visited together for a while. It was only after their meeting escalated into an argument and a physical confrontation and Ortega directed disparaging remarks to appellant, that the shooting occurred. The evidence is more suggestive that the killing was a product of appellant's `hot anger of the moment and was executed without reflection' rather than the result of any plan, secrecy or concealment. [Citation.]"
Third, the court found no evidence that defendant attacked the victim "from a position of advantage or seclusion." It reasoned that "[a]ppellant had no more advantage over Diana at the time he actually fired the fatal shot than he had at any time during and after they first met at the front door. To the contrary, the fact that appellant shot Diana in Ortega's presence during an argument, rather than while seated alone with her, suggests the killing resulted from anger and provocation rather than from a planned, surprise attack."
We also disagree with the second and third perceived evidentiary deficiencies. In essence, the Court of Appeal found, and defendant argues
The fact that some of the witnesses characterized the words spoken between Diana and defendant immediately before the shooting as an "argument" is not dispositive. The jury could reasonably have interpreted the events as showing, not a dispute, as defendant would have it, or "provocation," as the Court of Appeal termed it, but Diana screaming for help as soon as defendant's murderous scheme became apparent. Indeed, all the evidence regarding the content of the words, as distinguished from the tone of voice, showed no dispute but a plea by Diana for mercy from defendant and help from her friends.
Similarly, all the specific evidence regarding what some called the "fight" or "struggle" between defendant and Diana, or what the Court of Appeal characterized as a "physical confrontation," showed, not mutual combat, but solely defendant assaulting Diana. There was no evidence that Diana did anything confrontational or provocative, but merely sought to defend herself when defendant "grabbed her by the hair or by the neck" (Sierra), was "holding her by the hair" (Ortega), or "hit her numerous times" and "knock[ed] her on the ground" (Ashford). Moreover, the fact that the witnesses generally did not see the gun right away does not establish, as a matter of law, that defendant did not have it ready for use before it was seen. The jury could reasonably infer that defendant displayed the loaded handgun before Diana began struggling and pleading for her life. Finally, that Ortega said something "nasty" to defendant is hardly surprising, or even significant, under the circumstances; to argue as a matter of law that the remark triggered the shooting is to pervert settled rules of appellate review.
Contrary to the Court of Appeal's view, the jury could reasonably find that defendant sought and obtained a position of advantage before he shot Diana. When defendant met Diana at the door, others were nearby. He tried to get her alone in the backyard, near his truck. When that failed, he lured her to the front yard, a "more isolated area" (People v. Morales, supra, 48 Cal.3d at p. 555; see also People v. Webster, supra, 54 Cal.3d at p. 448) than the house, although perhaps not as ideal for his purposes as the backyard. It was not, however, until Roque returned to the house after accompanying defendant and Diana to the front yard that defendant was finally alone with his victim. At that point, the jury could reasonably find, defendant seized his advantage, and attacked. That the victim resisted long enough to cry for help, and for others to run out and witness the shooting, does not vitiate the lying in wait.
This testimony merely presented a jury question. The jury could reasonably have found the time period was shorter than defendant argues. Bruce's estimates regarding the time she arrived at the house, and the length of time that passed before defendant came, were necessarily vague. The jury was not required to treat them as mathematical certainties. Bruce also specifically testified that the events happened "very fast" and that the time from defendant's arrival to the shooting "seemed quick," about five minutes. The jury could reasonably have considered this latter testimony to be the more reliable. Roque also estimated the time between defendant's arrival and the shooting as about five or ten minutes.
The testimony of Bruce and Roque is "other substantial evidence in the case [which] supports a reasonable inference" that the shots were fired soon after the victim was isolated. (People v. Edelbacher, supra, 47 Cal.3d at p. 1020 [involving a similar conflict in the evidence regarding the elapsed time before the shooting].) Bruce, a neutral outsider, might well have been more persuasive than others who were more emotionally involved, and especially someone like Sierra who had been watching television in a different room.
For these reasons, we find ample evidence to support all the elements of lying-in-wait murder. Instructions on that theory were proper.
The judgment of the Court of Appeal is reversed.
Lucas, C.J., Panelli, J., Baxter, J., and George, J., concurred.
In his dissent, Justice Mosk argues with some force that the killing in this case was a "tragic fortuity," and that the evidence was insufficient to support a jury instruction on first degree murder perpetrated by lying in wait. I, on the other hand, am of the view that the evidence, although not overwhelming, was sufficient to support the instruction. I therefore agree with the majority that defendant's conviction should be affirmed.
Additional observations are in order. Unlike the bulk of recent decisions in which this court has considered the meaning of the term "lying in wait," this is not a capital case. Here, the prosecution used the lying-in-wait theory only as the basis for a charge of first degree murder.
In my view, the trial court committed reversible error by instructing the jury as it did on the theories of first degree murder (Pen. Code, § 189) presented by the prosecution.
Let us briefly review the general principles that are applicable on the facts of this case.
A trial court must instruct the jury on every theory that is supported by substantial evidence. (E.g., People v. Glenn (1991) 229 Cal.App.3d 1461, 1465 [280 Cal.Rptr. 609]; see, e.g., People v. Flannel (1979) 25 Cal.3d 668, 684-685 (plur. opn. by Tobriner, J.); id. at pp. 686-687 [160 Cal.Rptr. 84, 603 P.2d 1] (conc. opn. of Richardson, J.).) Conversely, it may not instruct on any that is not. (See, e.g., People v. Flannel, supra, at pp. 684-685 (plur. opn. by Tobriner, J.); id. at pp. 686-687 (conc. opn. of Richardson, J.).) Evidence is "substantial" if it allows a reasonable jury to make a determination in accordance with the theory presented under the proper standard of proof. (See, e.g., People v. Flannel, supra, at p. 684 (plur. opn. by Tobriner, J.); id. at pp. 686-687 (conc. opn. of Richardson, J.).) As pertinent here, it
At the prosecution's request, the trial court instructed the jury on first degree murder "perpetrated by means of ... willful, deliberate, and premeditated killing." (Pen. Code, § 189.) I shall assume for argument's sake that the evidence on this theory was substantial.
Also at the prosecution's request, but over defendant's objection, the trial court instructed the jury on first degree murder "perpetrated by means of ... lying in wait." (Pen. Code, § 189.) On this theory, however, the evidence was not substantial. Individually, the elements require waiting, watching, and concealment. (E.g., People v. Morales (1989) 48 Cal.3d 527, 554-557 [257 Cal.Rptr. 64, 770 P.2d 244].)
Under the rule of People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468] — to which I adhere (People v. Guiton, ante, p. 1116 at pp. 1131-1133 [17 Cal.Rptr.2d 365, 847 P.2d 45] (conc. opn. of Mosk, J.)) — the trial court's instructional error requires reversal of the judgment insofar as it convicts defendant on the jury's general verdict finding him guilty of first degree murder. "[W]hen," as here, "the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (People v. Green, supra, at p. 69.)
For the foregoing reasons, I dissent.
Appellant's petition for a rehearing was denied May 13, 1993. Mosk, J., was of the opinion that the petition should be granted.
We note that nothing in People v. Hardy, supra, 2 Cal.4th at pages 163 and 191, should be construed as eliminating the distinction between lying in wait as a form of first degree murder and lying in wait as a special circumstance, or as imposing an intentional murder requirement for lying-in-wait murder.
The question here does not concern the validity of the conviction, i.e., whether the verdict rendered by the jury was supported by substantial evidence. If it did, the focus of review would be on the jury. Also, the standard would be "highly deferential." (Cf. 2 Childress & Davis, Federal Standards of Review, supra, § 9.1, p. 9-3 [discussing federal appellate procedure].)
Inexplicably, the majority misapprehend the focus and standard of review. On the very first page of their opinion, they reveal their recognition that the question in this case involves instructional error. But they then proceed as though it concerned the validity of the conviction. As a consequence, they state inapplicable principles and cite inapposite decisions.