People v. Combs

*869 KENNARD, J., Concurring.

I agree with the majority, except for its summary rejection of defendant’s claim that the lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)) does not adequately distinguish between cases in which the death penalty is appropriate and those in which it is not, a function required by the Eighth Amendment to the federal Constitution. (Maj. opn., ante, at p. 868.) In previous decisions, I have expressed a “growing concern” that in expansively construing the scope of the lying-in-wait special circumstance, this court’s decisions “may have undermined the critical narrowing function of the lying-in-wait special circumstance: to separate defendants whose acts warrant the death penalty from those defendants who are ‘merely’ guilty of first degree murder.” (People v. Ceja (1993) 4 Cal.4th 1134, 1147 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ] (conc. opn. of Kennard, J.); see also People v. Hillhouse (2002) 27 Cal.4th 469, 512 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ] (conc. opn. of Kennard, J.).) Recently, a federal circuit judge concluded, albeit in dissent, that California’s lying-in-wait special circumstance is so broad that it violates the Eighth Amendment. (Morales v. Woodford (9th Cir. 2004) 388 F.3d 1159, 1180-1189 (conc. & dis. opn. of McKeown, J.).)

I first expressed my concerns about the lying-in-wait special circumstance 11 years ago in People v. Ceja, supra, 4 Cal.4th 1134. In over 150 death penalty cases decided by this court since then, we have seen none in which lying in wait was the only special circumstance found true by the jury. This may well reflect a view that lying in wait should not be the sole basis for imposing the death penalty.

Here, I need not decide whether the lying-in-wait special circumstance, as construed by this court, violates the Eighth Amendment. For, as I explain below, even if the trial court erred by instructing the jury on the lying-in-wait special circumstance, the error was harmless.

The jury found true not only the special circumstance allegation that defendant committed the murder by lying in wait, but also a special circumstance allegation that the murder occurred in the commission of a robbery. (Pen. Code, § 190.2, subd. (a)(17).) Thus, even without a lying-in-wait special circumstance, the case would have proceeded to a penalty phase. And the lying-in-wait special circumstance had no effect on the evidence presented at the penalty phase: The prosecution could have presented the same aggravating evidence if that special circumstance had not been alleged and found true.

*870 The aggravating evidence was strong. Defendant and his girlfriend strangled and beat to death an acquaintance so they could rob her and steal her car. The killing was carefully planned and brutally carried out, and defendant showed absolutely no remorse for the crime. Moreover, he had a substantial criminal record that included four felony convictions as an adult and two juvenile adjudications for robbery. Thus, even if the trial court had not instructed the jury on the lying-in-wait special circumstance, I conclude, beyond a reasonable doubt, that the jury would still have returned a verdict of death. (See Sanders v. Woodford (9th Cir. 2004) 373 F.3d 1054, 1063 [beyond-a-reasonable-doubt standard applies when the jury considers an invalid special circumstance at the penalty phase].)