Opinion
E072389
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. JACOB LEE WILCOX, Defendant and Appellant.
Cliff Gardner, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BAF1500371) OPINION APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Cliff Gardner, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
In April 2015, defendant and appellant Jacob Lee Wilcox convinced Joe Chavez to meet with him at a park in Banning where defendant was waiting with his girlfriend's 16-year-old daughter, E.L. Defendant shot Chavez three times, killing him. Several days before, defendant went to the home of Trayvon White and shot at him while White was in his garage.
Defendant was convicted of premeditated and deliberate first degree murder (Pen. Code, § 187; count 1). The jury also found true for this count the special circumstance that defendant was lying in wait (§ 190.2, subd. (a)(15)) and he personally and intentionally used a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). Defendant was also convicted of assault with a firearm (§ 245, subd. (a)(2); count 2) and shooting at an inhabited building (§ 246; count 3).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was originally charged with E.L. on count 1. She pled guilty and is not a party to the instant appeal.
On January 25, 2019, defendant was sentenced to life without the possibility of parole for the special circumstance murder in count 1, in addition to a sentence of 25 years to life for the firearm enhancement. He received an additional seven-year indeterminate sentence on count 3.
Defendant claims on appeal that (1) he could not be convicted of premeditated and deliberate first degree murder because first degree murder was not plead in the information; (2) the trial court improperly instructed the jury on malice for first degree murder in violation of his due process rights; and (3) section 190.2, subdivision (a)(15), the lying in wait special circumstance, violates the Eighth Amendment.
FACTUAL HISTORY
A. SHOOTING AT TRAYVON WHITE'S HOUSE
Misty Galbraith and her boyfriend, Franklin Wilcox, who was defendant's brother, moved from Indiana to Banning in the end of February 2015 and stayed with defendant in his house located on 4th Street in Banning. Defendant's girlfriend, Danielle Wilcott and E.L. also lived in the house.
In April 2015, Wilcott had kicked Galbraith out of the house due to Galbraith's drug use. Galbraith stayed the night at a house on Williams Street, which belonged to a person she knew as Tracy; his real name was Trayvon White. While she was staying with White, he tried to get her to have sex with a young boy who came over to White's house. She refused, and White kicked her out of the house. Galbraith went to Repplier Park, which was close to defendant's and White's homes, and contacted Franklin.
We refer to Franklin by his first name since he shares the same last name as defendant.
Franklin and defendant came to Repplier Park. Galbraith told Franklin what White had tried to get her to do and they all went back to White's house. Galbraith went into the open garage at White's house where she had left some of her clothes. White was in the garage. White grabbed Galbraith by the arm and Franklin told White to take his "fucking hands off of" her.
Defendant pointed at gun at White and White let go of Galbraith. At that point, White started to close the garage door. Defendant shot into the garage. White did not identify defendant in court despite identifying him from a six-pack photographic lineup prior to trial.
B. SHOOTING OF JOE CHAVEZ
Joe Chavez was friends with E.L. and defendant. After the incident at White's house, Franklin and Galbraith encountered Chavez at the store. Chavez threatened them that they needed to leave Banning because of the incident at White's house. Chavez put his hand to his waistband as though he had a gun but left the store. Chavez texted Franklin several times after the incident at the store, wanting to speak with defendant. Franklin told defendant that Chavez wanted to talk to him.
On April 27, 2015, E.L. was with a friend at Repplier Park when Chavez stopped to talk to her about wanting to talk with defendant. E.L. was upset with Chavez because he kept trying to get her to have sex with him. E.L. returned home and told defendant that Chavez had been looking for him. Defendant got angry and stated that he was going to take care of it. Defendant texted Chavez and then went to talk to their neighbor, David Mancha.
E.L. admitted her involvement in the shooting prior to trial and was promised a sentence of 21 years if she testified truthfully. --------
Defendant came back to the house and told E.L. he was going to the park to shoot Chavez and asked if she wanted to go with him. She agreed to go with him. She went with defendant to the garage where he retrieved his gun. They walked to Repplier Park and waited for Chavez. When Chavez did not show up, they walked across the street to a church located at the corner of 4th and George Streets. Chavez eventually arrived at the church and shook their hands. There was no conversation. Defendant pulled out his gun and shot Chavez three times. Chavez did not have any visible weapons.
Galbraith and Franklin were at defendant's house that night and heard defendant and E.L. say they were going to Repplier Park to meet with Chavez. Franklin was outside on the porch smoking a cigarette when he heard three quick gunshots; he estimated he heard them two or three minutes after defendant and E.L. left the house. He and Wilcott ran out to the street and saw E.L. and defendant running back toward the house. Galbraith estimated E.L. and defendant returned less than 10 minutes after they left. Both E.L. and defendant appeared nervous and out of breath.
Mancha heard three gunshots after defendant left his house. Shortly thereafter, he saw defendant and E.L. run up the driveway. Another one of defendant's neighbors saw defendant and another person walk toward Repplier Park at around 10:30 or 10:45 p.m. on April 27. He then heard three quick gunshots. He looked back out the window several minutes later and observed someone lying on the ground in front of the church. Surveillance video was obtained from a house near where Chavez's body was found. It showed two people walking on 4th Street around 10:31 p.m., and another person walk in the same direction eight minutes later. Approximately one minute later, the video showed two persons running away.
After defendant and E.L. ran back to the house, they cleaned off the gun. Wolcott drove E.L. and defendant to a friend's house to get rid of the gun. The next day Galbraith heard defendant talking on the phone to someone and he said that he had taken care "of that fool."
Banning Police Sergeant Mike Bennett investigated Chavez's murder. Chavez was pronounced dead at 10:51 p.m. He died as a result of three gunshot wounds and blunt force injury to his head likely caused by falling to the ground. Chavez still had his cellular telephone clipped to his belt. He had a cigarette lighter in his hand. When they moved Chavez's body, they found a machete secreted in his waist band that went down his thigh; it was not visible until his shirt was pulled up.
Sergeant Bennett was contacted by Mancha on June 1, 2015. Mancha told Sergeant Bennett he had been working out in his room around 10:00 p.m. on April 27 when he observed defendant and E.L. leave their house and walk to the park. Defendant told Mancha he was going to the park to take care of something for the family. Approximately 15 or 20 minutes later, Mancha heard gunshots and E.L. and defendant came running back to the house. Defendant yelled to Wilcott that he "took care of" him.
Sergeant Bennett found text messages between defendant and Chavez sent the night of Chavez's murder. Defendant texted to Chavez, "Hey, I heard you just went by my pad. What's up?" Chavez indicated he wanted to see him. Defendant responded, "Yeah. Meet me at the park." Chavez responded, "Okay. Bring a cigarette." The messages were sent near the time of the murder. There was also a phone call between defendant and Chavez at 10:27 p.m. on April 27.
Sergeant Bennett interviewed Franklin on May 13, 2018, and May 18, 2015. Between the two interviews, defendant talked to Franklin and asked, "You didn't tell on me, did you?" Franklin asked defendant about what, and he responded, "About me murdering him."
DISCUSSION
A. THE CHARGE OF FIRST DEGREE MURDER
Defendant insists he was not charged with first degree murder committed with premeditation and deliberation in the information. His conviction of first degree murder was obtained in violation of his due process rights under the state and federal Constitutions and must be reduced to second degree murder.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant was charged in the first felony complaint on May 29, 2015, with murder within the meaning of section 187, subdivision (a) in that he "willfully and unlawfully" murdered Joe Chavez. The complaint also alleged the weapons use enhancement under section 12022.53, subdivision (d). A second amended complaint included the same charges, but added the special circumstance that defendant intentionally killed Chavez while lying in wait within the meaning of section 190.2, subdivision (a)(15). A third amended felony complaint was filed adding the two charges involving White.
The preliminary hearing was conducted on January 22, 2016. Defendant was present. The prosecutor stated at the end of the preliminary hearing that the complaint charged first degree murder in count 1. Defendant's counsel asked that he not be held on the lying in wait special circumstance. The trial court found there was sufficient evidence to hold defendant on count 1 and the special circumstance.
The information was filed on February 18, 2016. It charged defendant in count 1 as follows: "The District Attorney of the County of Riverside hereby accuses JACOB LEE WILCOX AND [E.L.] of a violation of Penal Code section 187, subdivision (a), a felony, in that on or about April 27, 2015, in the County of Riverside, State of California, the defendant(s) did willfully and unlawfully murder JOE CHAVEZ, a human being." The special circumstance of lying in wait was charged.
After the information was filed, defendant was granted the right to represent himself. He filed a motion to dismiss all counts in the information pursuant to section 995. He argued that the evidence at the preliminary hearing was insufficient to hold him to answer on the charge of murder. He argued that the testimony at the preliminary hearing did not support that he acted with premeditation and deliberation in committing the murder of Chavez. The motion was denied. The jury was instructed that in order to find defendant guilty of first degree murder, it had to conclude that he acted willfully, deliberately and with premeditation.
2. ANALYSIS
" 'It is fundamental that "When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: 'Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' " ' " (People v. Parks (2004) 118 Cal.App.4th 1, 5-6.; see also People v. Hamernik (2016) 1 Cal.App.5th 412, 425-426 [" ' "No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal" ' "].)
Section 187, subdivision (a) provides, "Murder is the unlawful killing of a human being, . . . with malice aforethought." In People v. De La Cour Soto (1883) 63 Cal. 165, 166, the California Supreme Court concluded that "Murder, thus defined, includes murder in the first degree and murder in the second degree." Section 189 defines the degrees of murder and provides that willful, premeditated and deliberate murder is first degree murder.
In People v. Mendez (1945) 27 Cal.2d 20, the defendant made the claim that since the information only charged him under section 187, subdivision (a), he could only be convicted of second degree malice murder. He could not be convicted of first degree murder unless the information included language that the murder was premeditated, deliberate and willful. (Mendez, at p. 23.) The California Supreme Court referred to the definitions of murder in sections 187 and 189. It concluded, "The charge, which was substantially in the language of section 187 defining murder, was sufficient. [Citations.] The degree of the murder was not required to be included in the charge. It is an issue of fact for the jury under the plea of 'not guilty.' [Citation.] . . . Under the charge as worded in the information either the jury or the court, exercising their respective functions, could find that the defendant was guilty of first degree murder if the evidence warranted that finding." (Mendez, at pp. 23-24.) The California Supreme Court reiterated this principle in People v. Hughes (2002) 27 Cal.4th 287, 369, finding "[A]n accusatory pleading charging a defendant with murder need not specify the theory of murder upon which the prosecution intends to rely."
In People v. Contreras (2013) 58 Cal.4th 123 (Contreras), the defendant was charged in the information with " 'MURDER, in violation of PENAL CODE SECTION 187 (a)' and [it was] alleged he acted 'willfully, unlawfully, and with malice aforethought.' " (Id. at p. 147.) The defendant contended on appeal that the information only charged him with " 'second degree malice murder' " and he could not be convicted of first degree felony murder because he was not properly charged with that crime under section 189. The defendant argued that the "trial court exceeded its jurisdiction and violated his federal and state constitutional rights to due process and a fair trial, trial by jury, and a reliable guilt determination [citations]" requiring reversal of his first degree murder conviction. (Ibid.)
The California Supreme Court rejected this contention. It concluded, "[O]ur cases have long made clear than an accusatory pleading charging malice murder supports conviction of first degree murder on a felony-murder theory. Malice murder and felony murder are two forms of the single statutory offense of murder. Thus, a charge of murder not specifying the degree is sufficient to charge murder in any degree. The information also need not specify the theory of murder on which the prosecution relies at trial." (Contreras, supra, 58 Cal.4th at p. 147.) It concluded, "[T]he section 187 charge brought here supported a murder conviction in any degree, including first degree felony murder." (Id. at p. 148.)
Similarly, here, defendant was charged in the information with committing willful and unlawful murder within the meaning of section 187, subdivision (a). Although the People did not additionally include language that it was committed with premeditation and deliberation, the pleading of a violation of section 187, subdivision (a), alerted defendant that he could be convicted of first degree murder.
Moreover, defendant received notice that the prosecution's theory of the case was that he committed first degree murder from the preliminary hearing. (People v. Diaz (1992) 3 Cal.4th 495, 557 ["generally the accused will receive adequate notice of the prosecution's theory of the case from the testimony presented at the preliminary hearing"].) Defendant was present at the preliminary hearing and heard the prosecutor state at the end of the hearing that defendant was being charged with first degree murder. Further, it is clear defendant understood he was being charged with first degree murder on a theory of premeditation and deliberation based on the section 995 motion he filed while representing himself. Finally, defendant was charged with the lying in wait special circumstance, which is only applicable to a first degree murder charge. Such pleading of the special circumstance further advised defendant that the People were proceeding on a first degree murder charge. (See People v. Morgan (2007) 42 Cal.4th 593, 617.) Defendant was adequately advised that he was facing a first degree murder charge in this case.
Defendant insists that despite the above case law, the United States Supreme Court cases of Jones v. United States (1999) 526 U.S. 227 and Apprendi v. New Jersey (2000) 530 U.S. 466, requires that the People charge premeditation and deliberation in the information. The Contreras court rejected this same argument. "In his final challenge to the murder charge, defendant argues that the foregoing principles and authorities have been abrogated by Apprendi v. New Jersey (2000) 530 U.S. 466 . . . . The sole support for this claim is a statement in Apprendi that ' "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt." [Citation.] The 'fact' defendant claims was fatally omitted from murder as charged in the information here was his alleged commission of the serious felony (robbery) on which the first degree felony-murder verdict was ultimately based." (Contreras, supra, 58 Cal.4th at p. 148.)
The California Supreme Court found, "Contrary to what defendant implies, the Apprendi court expressly declined to address the constitutional implications, if any, of omitting sentencing factors from accusatory pleadings. [Citations.] Absent any authority compelling a different result, we conclude here, as in other cases, that defendant's reliance on Apprendi is misplaced." (Contreras, supra, 58 Cal.4th at p. 148.) The court concluded Apprendi had no effect on pleading requirements, finding, "[T]his court does not violate Apprendi by continuing to apply the traditional California rule that a murder charge under section 187 places the defense on notice of, and allows trial and conviction on, all degrees and theories of murder, including first degree felony murder under section 189." (Contreras, at p. 149.)
Contreras resolves the issue raised by defendant. We are bound to follow the decision in Contreras. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Defendant further contends that such a finding presents an anomaly in cases charging murder and those charging attempted murder. Other courts have concluded that, when a defendant has been convicted of attempted murder with a finding it was committed with premeditation and deliberation, which carries a life sentence, the defendant must have been given notice of the enhancement for premeditation and deliberation in the pleading.
Section 664, subdivision (a) provides that the sentence for the crime of attempted murder is one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, it further provides, "[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole." Section 664, subdivision (a) further provides, "The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact."
In People v. Perez (2017) 18 Cal.App.5th 598, 614 through 619 and People v. Arias (2010) 182 Cal.App.4th 1009, 1019 through 1022, cases relied on by defendant, the defendants' life sentences were reversed due to the failure to comply with the directives of section 664, subdivision (a), to plead premeditation and deliberation in the information giving the defendants notice of the enhanced punishment provision for attempted murder.
"The crime of attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez (2012) 54 Cal.4th 643, 654, italics added.) As such, in order to inform a defendant charged with attempted murder that he is facing a life sentence, he must be informed, and the jury must find, premeditation and deliberation as an "enhancement." On the other hand, when charged with murder, a charge of section 187 makes it clear that a defendant is subject to first or second degree murder as stated by the California Supreme Court on numerous occasions. (People v. Hughes, supra, 27 Cal.4th at p. 369; People v. Mendez, supra, 27 Cal.2d at pp. 23-24.) The pleading requirement for an enhancement on attempted murder has no bearing on the pleading requirements for the degrees of murder.
Defendant's conviction of first degree murder did not violate his right to due process. He was given adequate notice that the People were proceeding on a theory of first degree murder.
B. MALICE INSTRUCTION
Defendant contends the jury was given a "fundamentally incorrect definition of malice" for first degree murder requiring reversal of his conviction. After reviewing the instructions, defendant's claim lacks merit.
1. ADDITIONAL FACTUAL BACKGROUND
There was no discussion of the jury instructions on the record but defendant's counsel stated on the record that he had no objection to the instructions given.
The preliminary instructions advised jurors, "Pay careful attention to all these instructions and consider them together." The jury was instructed with CALCRIM No. 520 that defendant was charged with murder in violation of section 187. It was instructed, "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant committed an act that caused the death of another person; [¶] And two, when the defendant acted, he had a state of mind called malice aforethought. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant acted with express malice if he unlawfully intended to kill. [¶] A defendant acted with implied malice if: [¶] One, he intentionally committed an act; [¶] Two, the natural and probable consequences of the act were dangerous to human life; [¶] Three, at the time he acted, he knew his act was dangerous to human life; [¶] And four, he deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time."
The jury was additionally instructed, "the requirements for second-degree murder based on express and implied malice are explained in CALCRIM 520, First or Second Degree with Malice Aforethought, which I just read to you a moment ago." It was then instructed on the completion of the verdict forms for count 1 and the special circumstance.
The jury was then instructed on counts 2 and 3 in regards to the shooting at White. It was instructed for the crime of shooting at an inhabited dwelling as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant willfully and maliciously shot a firearm; [¶] And two, the defendant shot the firearm at an inhabited house. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with unlawful intent to disturb, defraud, annoy, or injure someone else. [¶] A 'house' includes any structure or garage that is attached to the house and functionally connected with it. [¶] A 'firearm' has been defined elsewhere." (Italics added.)
Finally, the jury was instructed that the mental state for count 2 was general intent. It was then instructed as to counts 1 and 3, that "All the remaining crimes, including any lesser included crime and all the allegations require a specific intent or mental state. For you to find a person guilty of these crimes, or to find the allegations true, that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime or allegation."
2. ANALYSIS
Defendant insists that error occurred because "the trial court did not specifically tell jurors what malice definitions applied to what crimes." However, this ignores that the definitions of malice given to the jurors were part of the elements of the two separate crimes of murder and shooting at an inhabited dwelling.
"Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.] ' "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." ' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) We review the correctness of instructions de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)
Section 188 defines malice for murder as follows: "[M]alice may be express or implied. [¶] [It] is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." " 'Malice is implied when the killing is proximately caused by " 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " " (People v. Cravens (2012) 53 Cal.4th 500, 507.)
While the jury was informed that it should consider all of the instructions together, based on the form of the instructions, it is inconceivable that the jurors were confused as to the definition of malice for first degree murder. CALCRIM No. 520 set forth the elements of murder that included a finding of either express or implied malice. As admitted by defendant, the jury was properly instructed on express and implied malice for murder. Jurors were then given instructions on how to complete their verdict forms on count 1, including the finding on the weapons use enhancement and lying in wait special circumstance. Thereafter, the jurors were advised on the elements of the crime of shooting at an inhabited dwelling. As part of the definition of the crime, it was advised on the non-homicide definition of malice, which was based on the unlawful intent to disturb, defraud, annoy, or injure someone else. The instructions on the two crimes were separate in the jury instructions, and the definitions of malice only appeared as elements of the separate crimes. It is beyond contemplation that the jurors applied the non-homicide definition of malice to the murder charge.
Further, the jury was instructed that the mental state for each crime was included in the definition of the crimes. Based on the foregoing instructions, the jury could not possibly have been confused that they could consider the definition of malice listed as an element of the shooting at an inhabited dwelling charge in finding defendant guilty of first degree murder.
Defendant relies on People v. Shade (1986) 185 Cal.App.3d 711 to support his claim that the jury was improperly instructed on malice. However, as noted by the People, in that case there was only one charge of murder and the jury was given two different instructions on malice: non-homicide malice and homicide theory of malice. The appellate court concluded such instruction with non-homicide malice for a charge of murder was error. (Id. at pp. 714-715.)
In contrast with Shade, here, there were two separate crimes and the jury was instructed with the elements of each crime. Each crime included its own definition of malice and nothing supports that the jury was confused that it could apply the non-homicide definition of malice to the murder charge. No instructional error occurred.
C. CONSTITUTIONALITY OF SPECIAL CIRCUMSTANCE
Defendant contends the lying in wait special circumstance must be reversed because it violates the Eighth Amendment. Specifically, he claims that the instruction on lying in wait fails to appropriately narrow the class of persons eligible for the death penalty because it fails to distinguish between lying in wait murders and ordinary premeditated murders. Defendant recognizes that this exact contention has been rejected by the California Supreme Court in People v. Morales (1989) 48 Cal.3d 527, 557, overruled on other grounds in People v. Williams (2010) 49 Cal.4th 405, but insists that Morales was wrongly decided. We are bound by California Supreme Court precedent to follow the decision in Morales. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County, supra, 57 Cal.2d at p. 455.) Moreover, the California Supreme Court has repeatedly found that its interpretation of the lying in wait special circumstance does not violate the Eighth Amendment of the federal constitution. (People v. Jurado (2006) 38 Cal.4th 72, 127; People v. Nakahara (2003) 30 Cal.4th 705, 721.) " '[D]efendant fails to convince us the matter warrants our reconsideration.' " (Jurado, at p. 127.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. McKINSTER
J.