People v. Ceja

• Decision Date: 18 March 1993
• Docket Number: No. S026136,S026136
• Citation: 847 P.2d 55,4 Cal.4th 1134,17 Cal.Rptr.2d 375
• Court: California Supreme Court
• Parties: , 847 P.2d 55 The PEOPLE, Plaintiff and Respondent, v. Enrique Chavez CEJA, Defendant and Appellant.

Page 375

17 Cal.Rptr.2d 375

4 Cal.4th 1134, 847 P.2d 55

The PEOPLE, Plaintiff and Respondent, v. Enrique Chavez CEJA, Defendant and Appellant.

No. S026136.

Supreme Court of California,

In Bank.

March 18, 1993.

Rehearing Denied May 13, 1993.

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Jeanne Wolf and Douglas G. Ward, Deputy State Public Defenders, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., John H. Sugiyama and Ronald A. Bass, Asst. Attys. Gen., Stan M. Helfman and Sharon G. Birenbaum Deputy Attys. Gen., for plaintiff and respondent.

ARABIAN, Justice.

Defendant was convicted of first degree murder. The jury was allowed to consider two theories of first degree murder: (1) a deliberate and premeditated killing; and (2) murder by means of lying in wait. The Court of Appeal found insufficient evidence to support the theory of lying in wait and therefore reversed the conviction. We granted review to determine whether there was sufficient evidence of lying in wait and, if not, whether reversal is required in light of the remaining valid theory of first degree murder. 6 Cal.Rptr.2d 47. (Cf. People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468 with Griffin v. United States (1991) 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371.)

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, 4 Cal.4th 1116, 17 Cal.Rptr.2d 365, 847 P.2d 45.)

I. FACTS

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 evidence that the truck was parked next to the gate to the backyard. Around noon or 12:30 p.m., a social worker, Amada Bruce, arrived at the house and spoke in the living room with Diana, Ortega and Roque. Another occupant, Patricia Sierra, was in a bedroom watching television.

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.

II. DISCUSSION

The Court of Appeal found insufficient evidence to support a first degree murder verdict on a theory of lying in wait. The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738; see also Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.)

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.) The court must consider the evidence and all logical inferences from that evidence in light of the legal definition of lying in wait. (See People v. Perez (1992) 2 Cal.4th 1117, 1124, 9 Cal.Rptr.2d 577, 831 P.2d 1159 [regarding premeditation and deliberation].) But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt. (People v. Bean, supra, 46 Cal.3d at p. 933, 251 Cal.Rptr. 467, 760 P.2d 996.) Therefore, an appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. (Ibid.; see also People v. Perez, supra, 2 Cal.4th at p. 1126, 9 Cal.Rptr.2d 577, 831 P.2d 1159.) ¹

"All murder which is perpetrated by means of ... lying in wait" is first degree murder. (Pen.Code, § 189; see People v. Ruiz (1988) 44 Cal.3d 589, 613-614, 244 Cal.Rptr. 200, 749 P.2d 854.) The jury was instructed that "murder which is immediately preceded by lying in wait is murder of the first degree. [p] The term lying in wait is defined as waiting and watching for an opportune time to act, together with [a] concealment by ambush or other secret design to take the other person by surprise, even though the victim is aware of the murderer's presence. [p] The lying in wait need not continue for any period of time provided its duration is such to show a state of mind equivalent to premeditation or deliberation." (CALJIC No. 8.25 (1989 rev.); People v. Ruiz, supra, 44 Cal.3d at p. 614, 244 Cal.Rptr. 200, 749 P.2d 854; see also People v. Morales (1989) 48 Cal.3d 527, 555, 257 Cal.Rptr. 64, 770 P.2d 244 [interpreting the special circumstance of lying in wait].)

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 p. 557, 257 Cal.Rptr. 64, 770 P.2d 244, 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, 244 Cal.Rptr. 200, 749 P.2d 854.) 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); claim (3) was made and rejected in People v. Webster (1991) 54 Cal.3d 411, 449, 285 Cal.Rptr. 31, 814 P.2d 1273. As we said in People v. Edwards, supra, 54 Cal.3d at page 823, 1 Cal.Rptr.2d 696, 819 P.2d 436. "We did not require any particular phraseology in Morales, only the substance." The instruction contains the substance of all the legal requirements. ²

The required concealment need not be physical. It suffices if the defendant's purpose and intent are concealed by his actions or conduct, and the concealment of purpose puts the defendant in a position of advantage, from which the fact finder may infer that lying in wait was part of the defendant's plan to take the victim by surprise. (People v. Webster, supra, 54 Cal.3d at p. 448, 285 Cal.Rptr. 31, 814 P.2d 1273; People v. Morales, supra, 48 Cal.3d at pp. 554-555, 257 Cal.Rptr. 64, 770 P.2d 244.)

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...