People v. Jurado

KENNARD, J., Concurring.

In 1993, in a concurring opinion in a noncapital case (People v. Ceja (1993) 4 Cal.4th 1134 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ]), I expressed a “growing concern” that the definition of lying in wait that this court had earlier adopted in People v. Morales (1989) 48 Cal.3d 527 [ 257 Cal.Rptr. 64 , 770 P.2d 244 ] “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 defendant who are ‘merely’ guilty of first degree murder.” (People v. Ceja, supra, at p. 1147.) I expressed this concern again in separate opinions in People v. Hillhouse (2002) 27 Cal.4th 469, 512 [ 117 Cal.Rptr.2d 45 , 40 P.3d 754 ], and People v. Combs (2004) 34 Cal.4th 821, 869 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ]. In none of these cases, however, did I indicate how I would decide this constitutional issue.

During the same period, without writing separately, I have concurred in decisions affirming judgments of death based in part on lying-in-wait special circumstances, including decisions rejecting claims that the lying-in-wait special circumstance is unconstitutional because it does not adequately narrow the class of death-eligible defendants. In each of these cases, however, the issue was not squarely presented because other special circumstances had been found true and the lying-in-wait special circumstance had no effect on the evidence presented at the penalty phase. (See Brown v. Sanders (2006) 546 U.S. 212 [ 163 L.Ed.2d 723 , 126 S.Ct. 884 ]; People v. Combs, supra, 34 Cal.4th 821, 869 .) Since I expressed concern about the lying-in-wait special circumstance in People v. Ceja, supra, 4 Cal.47th 1134, this court has not, until now, affirmed a judgment of death in which lying in wait was the only special circumstance. In this case, however, no other special circumstance was alleged, and defendant’s eligibility for the death penalty is based solely on the jury’s finding that defendant murdered Teresa Holloway while lying in wait. For this reason, I have taken a careful look at the constitutional issue to which I alluded in 1993.

*146 Since 1972, the United States Supreme Court has “required States to limit the class of murderers to which the death penalty may be applied.” (Brown v. Sanders, supra, 546 U.S. at p. 216 [ 126 S.Ct. at p. 889 ].) The court announced that requirement in Furman v. Georgia (1972) 408 U.S. 238 [ 33 L.Ed.2d 346 , 92 S.Ct. 2726 ]. Justice White’s concurring opinion in Furman identified the problem in the death penalty systems of Georgia and other states as the absence of a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” (Id. at p. 313.) In 1980, Justice Stewart’s plurality opinion in Godfrey v. Georgia (1980) 446 U.S. 420, 427 [ 64 L.Ed.2d 398 , 100 S.Ct. 1759 ], converted this description into a requirement: “A capital sentencing scheme must, in short, provide a ' “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” ’ ”

Over the ensuing years, the decisions of the United States Supreme Court gradually dispelled the impression that to satisfy the federal Constitution’s narrowing requirement only a small percentage of murders may be punishable by death. (See, e.g., Arave v. Creech (1993) 507 U.S. 463, 475 [ 123 L.Ed.2d 188 , 113 S.Ct. 1534 ].) In 1994, the court summarized in rather precise terms the federal Constitution’s requirements for death eligibility in a homicide case: “To render a defendant eligible for the death penalty in a homicide case, we have indicated that the trier of fact must convict the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at either the guilt or penalty phase. [Citations.] The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both). [Citation.] As we have explained, the aggravating circumstance must meet two requirements. First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder. [Citation.] Second, the aggravating circumstance may not be unconstitutionally vague. [Citations.]” (Tuilaepa v. California (1994) 512 U.S. 967, 971-972 [ 129 L.Ed.2d 750 , 114 S.Ct. 2630 ].) Under California’s death penalty law, the special circumstances listed in Penal Code section 190.2 function as the “aggravating circumstances” making a defendant eligible for the death penalty. (Brown v. Sanders, supra, 546 U.S. at p. 227 [ 126 S.Ct. at p. 892 ]; People v. Bacigalupo (1993) 6 Cal.4th 457, 467-468 [ 24 Cal.Rptr.2d 808 , 862 P.2d 808 ].)

The lying-in-wait special circumstance (Pen. Code, § 190.2, subd. (a)(15)), as this court defined it in People v. Morales, supra, 48 Cal.3d at page 557 , satisfies the constitutional requirements that the United States Supreme Court articulated in Tuilaepa v. California, supra, 512 U.S. 967. The special circumstance applies only to a subclass of murderers, not to all murderers, and it is not unconstitutionally vague; therefore, it satisfies the federal Constitution’s narrowing requirement for a death-eligibility factor. (See People v. Moon (2005) 37 Cal.4th 1, 44 [ 32 Cal.Rptr.3d 894 , 117 P.3d 591 ]; *147 People v. Nakahara (2003) 30 Cal.4th 705 , 721 [ 134 Cal.Rptr.2d 223 , 68 P.3d 1190 ]; People v. Gutierrez (2002) 28 Cal.4th 1083 [ 124 Cal.Rptr.2d 373 , 52 P.3d 572 ]; see also Morales v. Woodford (9th Cir. 2004) 388 F.3d 1159, 1174-1178 , cert. den. sub nom. Morales v. Brown (2005) 546 U.S. 935 [ 163 L.Ed.2d 320 , 126 S.Ct. 420 ]; People v. Earp (1999) 20 Cal.4th 826, 904-905 [ 85 Cal.Rptr.2d 857 , 978 P.2d 15 ]; People v. Sanchez (1995) 12 Cal.4th 1, 60-61 [ 47 Cal.Rptr.2d 843 , 906 P.2d 1129 ].)