Opinion
A147513
11-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JASON ANTHONY WARREN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1301240)
A jury convicted defendant Jason Anthony Warren of two counts of first degree murder (Pen. Code, § 187, subd. (a); counts 1 & 2) and two counts of premeditated attempted murder (§§ 664, 187, subd. (a); counts 3 & 4). As to the first count of first degree murder, the prosecution presented three theories—lying in wait, torture, and premeditation and deliberation. As to the second count, the prosecution presented one theory—premeditation and deliberation. In addition to convicting defendant on both first degree murder counts, the jury found true special circumstances—torture and lying in wait as to the first count, and multiple murder as to both counts. (§ 190.2, subd. (a)(3), (a)(15) & (18).) The trial court sentenced defendant to two consecutive terms of life without the possibility of parole as to counts 1 and 2 and two consecutive terms of life with the possibility of parole as to counts 3 and 4.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges (1) the introduction of evidence of a prior attempted murder and an assault with a deadly weapon, (2) the sufficiency of the evidence to support the lying-in-wait and torture theories, and the special circumstances, as to the first count; (3) the constitutionality of the lying-in-wait special circumstance; and (4) the sufficiency of the evidence to support convictions of premeditated first degree murder on count 2 and attempted premeditated murder on counts 3 and 4. We affirm.
Defendant does not challenge the third theory, premeditation and deliberation.
BACKGROUND
We provide a summary of the case here and discuss other evidence in connection with our discussion of the issues on appeal.
In the very early morning hours of September 27, 2012, defendant killed Dorothy Ulrich. He then took a Kia sedan Ulrich had borrowed from a friend and drove toward Eureka. Along the way, on Old Arcata Road, he drove across the oncoming traffic lane and ran down a group of early morning joggers, killing one, Suzanne Seeman, and severely injuring the other two, J.H. and T.L.
We refer to these two surviving victims, and to other witnesses, by their initials to protect their privacy interests. (Cal. Rules of Court, rule 8.90.)
The Particulars of the Ulrich Murder
The day before the killing, Ulrich borrowed her friend's silver Kia sedan, so she could run errands at Western Union and a local mini market early the next day. The manager of the mini mart confirmed Ulrich did, indeed, go to the store as planned. The mini mart had a 16-camera surveillance system, and after the killing, the manager was able to retrieve and copy the video from that morning and provide it to the sheriff's department.
Ulrich returned home, accompanied by defendant. She then called her friend, told her she was done using the car and "she was gonna park it in the yard and that she would bring it back later" or her friend could pick it up.
Defendant was apparently there to help Ulrich with a number of tasks, including packing boxes, cleaning, and working on a surveillance camera Ulrich and her husband had installed on their property.
Ulrich's husband was a long-haul truck driver, and Ulrich planned to join him on the road, so she was packing their belongings.
Ulrich's neighbor, T.M., went over to Ulrich's house on and off during the day. She initially went over around 9:30 or 10:00 a.m. with the intention of helping Ulrich pack. She went over again "after lunchtime," to "bum cigarettes," and to "check on" Ulrich. That is when she first saw defendant, who was packing boxes. Defendant commented he thought he should be paid for his help. T.M. stayed for several hours and returned home around 9:30 p.m. Defendant was still at Ulrich's house when she left. T.M. did not observe any confrontation between Ulrich and defendant.
T.M. awoke around 1:30 a.m. the following morning because her older brother and his friends were "making a ruckus." She went outside to tell her brother to leave and saw defendant "walking up." As she escorted her brother and his friends away from the house, defendant went "back down towards" Ulrich's house. T.M. did not hear any commotion and eventually went back to bed.
Several hours later, still in the very early morning hours, defendant attacked Ulrich. Lead Investigator Chery Magnuson-Franco reviewed footage from the Ulrich's security system, which recorded audio as well as visual, to piece together the events leading up to the murder. No noise or argument preceded the attack, and Magnuson-Ford did not hear Ulrich say any name other than defendant's. She also did not see anyone else come to the house or leave until highway patrol officers arrived later in the day.
The audio recording was played for the jury. The attack was approximately three minutes long. Ulrich screamed repeatedly: "Jason, please stop it. Please, stop. Please, please." "You're hurting me bad. Ow. Jason, stop it. Please I can't do this. No more. No more. No more. No more. Jason." "Please, please, please, please, please. I can't do this any more. Please, I can't. Please, I can't do this. I can't . . . please, please, I can't stand any more. I can't. Please, please, I can't." At one point defendant said, "Shut up. It's too late." Investigator Magnuson-Franco stated that she counted approximately 59 to 65 "thuds or smacks or strikes" during the attack.
Defendant left Ulrich's house with "what appear[ed] to be a purse or a bag in his left hand," and a "long sword and the scabbard to the sword" in his right. He then got into the Kia car and left.
Later that morning, Highway Patrol Officer Erick Nelson, along with a tribal officer, arrived at Ulrich's friend's house. They inquired about her car, and she told them she had loaned it to Ulrich.
The officers then went over to Ulrich's house. No one answered knocks or inquiries. Approximately 15 minutes after they arrived, Ulrich's neighbor, T.M., approached.
T.M. saw the officers from her house and became "concerned" for Ulrich. After trying to get a response from Ulrich, herself, by knocking on the door, she returned to the house and, at Officer Nelson's request, tried calling Ulrich but got no answer. T.M. then called Ulrich's sister-in-law, who lived just across the highway. Ulrich's sister-in-law could see the officers at Ulrich's, and by the time she walked over, she had called Ulrich's husband and asked for a way to get into the house. He said to get in any way they could, and the two women were able to pry open a door.
Officer Nelson, who was waiting outside, heard "a scream, type of scream that you hear in a horror movie. Unadulterated, full, bloody scream. Multiple screams." He drew his weapon, ran towards the front door and saw Ulrich's "slumped body laying in blood on the threshold of the floor." Nelson ran out to obtain his medical bag, and when he returned found no vital signs. He observed a "pretty obvious[,] very severe injury," and could see brain matter in the skull area. The blood was "dark, coagulated-type blood," suggesting it was not fresh.
Ikechi Ogan, a forensic pathologist, performed the autopsy of Ulrich. Ogan saw stab wounds, incised wounds, bruising, abrasions, contusions, and "evidence of a chopping type of injury with a heavy implement." There were nine scalp lacerations, as well as a fracture across the back of her skull. From this occipital fracture, brain tissue was "oozing out" as a result of swelling caused by the trauma to her head. Ogan opined this injury "was so severe" Ulrich would have been "incapacitated instantly." She suffered a periorbital hematoma, meaning blood was "oozing from the skull base, down into the soft tissue around the eye," as well as a fractured nasal bone.
Additionally, Ogan found "six sharp force injuries, stab wounds" to Ulrich's torso, all measuring between "three and four inches from the skin, going into the body." One stab wound penetrated her heart, while her right lung was punctured twice, and both lungs were partially collapsed. Ogan also found evidence of petechiae, pinpoint hemorrhages in the eyes, indicating there was "some component of either choking or manual strangulation" or "any mechanism which would have cut off blood flow back and forth into the head could have caused those petechiae." Her hyoid bone was intact and there were no ligature marks, indicating to Ogan that, "during the altercation, at some point, there was some choking, release, choking, release." Ogan stated the cause of death "was multiple sharp and blunt force injuries." Ulrich also suffered defensive wounds on her extremities "consistent with someone being struck while they were covering their head." The sharp wounds, in conjunction with the blunt force trauma, indicated to Ogan "there was a beating that went along with the stabbing."
Ulrich's husband testified he "had no connection" with defendant and defendant had not frequented his home. He had seen defendant "in the Hoopa area over the years," but could not recall specific moments. As far as he knew, defendant was not a close friend or acquaintance of his wife. Ulrich's husband had been involved in martial arts and collected two Samurai swords for display. He had installed a security system two years earlier, which included four cameras. One camera showed the house, two others had views of the driveway, and the fourth showed the backyard. The cameras ran continuously, rather than being motion-activated. The camera facing the backyard had been moved from where he originally placed it.
Police officers reviewed the security footage at the scene, and immediately identified defendant as the man in the video. One video showed defendant "walking up the driveway," while another showed him "walking off the deck" of the home.
The Particulars of the Killing of and Severe Injuries to the Joggers
Suzanne Seeman, J.H. and T.L. belonged to a running club that met early in the morning about three times a week. As part of their running club gear, they wore reflective clothing, including reflective vests and headlamps. The group would run on the sidewalk or, if there was no sidewalk on their route, "on the edge of the road, facing the oncoming traffic." The group would typically run about five miles and only see "maybe a handful of cars." When they heard a car approaching, the joggers, who would "typically" be running side by side, would break off into single file.
On the morning Ulrich was killed, the group met as usual at a local market at 5:20 a.m. It was dark and overcast, but not foggy. All three women had on their reflective clothing and headlamps. J.H. brought her dog, which was wearing a "light-up leash." Because she was running with her dog, J.H. ran in front, with Seeman and T.L. running behind. The group was headed northbound on Old Arcata Road, but ran on the southbound shoulder. They were a little over a mile in to their five-mile run when defendant struck the group from behind. There was no evidence of braking.
The Kia was picked up by a surveillance camera at 5:28 a.m., heading south on Old Arcata Road from McKinleyville, where Ulrich was murdered, headed toward Eureka, where defendant's friend's house was. At 5:35 a.m., a witness who lived on the road, turned south to go to work in Eureka. Ahead of her, she saw a car that was perpendicular to the roadway, across the northbound lane, with its headlights pointing east. The car backed up, turned southward, and traveled briefly in the northbound lane before pulling into the southbound lane. The witness then came upon what, at first, looked like debris in the middle of the road. But then, on realizing it was a person, the witness turned her car around, headed northbound back to the scene, and called the police. She could not identify the make or color of the car or who was driving, and she did not know whether it "had anything to do with the striking" of the victims. It had appeared, however, to have been making a turn and changing direction in the roadway. Arcata Police Department Sergeant Ron Sligh also came upon the scene on his way to work. He saw a "figure laying in the roadway," a shoe lying in the roadway, and some "reflective items" and a headlamp, also on the roadway. J.H. was in and out of consciousness. T.L. was conscious and screaming, but unresponsive.
After another officer arrived on the scene, Sergeant Sligh searched for further victims. He found Seeman wearing a brightly colored shirt in a ditch, unresponsive and with no pulse. Sligh later also discovered J.H.'s dog, already dead, but still wearing its collar which was "lit up."
Shortly after arriving at the scene, California Highway Patrol Lieutenant Harold Rosendahl, who was a field sergeant at the time, was notified of an abandoned car at a senior center in Eureka. Rosendahl and another officer went to inspect the car, a Kia sedan. Rosendahl noticed the car had "severe front end damage," and that a piece of the car, which he described as "chrome molding," was missing, and he remembered seeing a similar piece at the scene of the incident. The officers determined Ulrich's friend was the registered owner. Ulrich's wallet was also found at the senior center.
On inspecting the accident site, Lieutenant Rosendahl did not see "any skidmarks anywhere in that whole field of debris and bodies." California Highway Patrol Officer Brent Walker assisted in preparing a diagram of the scene and marking the location of evidence. He recovered a "piece of plastic . . . treated with chrome" from the roadway that appeared to be "off the front grill of a car or a truck." He also marked the location of a side mirror, a "Kia headlight piece," multiple headlamps, a sock, batteries, and Seeman's shoe.
Jerome Cantrell, a civilian employee of the California Highway Patrol in the multi-disciplinary accident investigation team division, subsequently inspected the Kia. The car had a cracked windshield, the two side mirrors were folded inwards, and there was "redish-brown residue" on the windshield. He found there were no defects to the throttle peddle, steering system, suspension system, and brakes (in fact, the brakes were "relatively new"). Cantrell also found no mechanical defects or abnormalities "that contributed to the collision."
Senior criminologist Kay Belschner also examined the Kia, looking for trace and biological evidence consistent with the car "being involved in a hit and run with three victims." There was a crack on the lower bumper, damage to a chrome piece on the lip of the hood, and the windshield was "fully cracked with a very large hole in the center." She stated there would have to be an "amazing amount of force" to break the laminate of the windshield and send glass everywhere. Pieces of glass recovered from defendant's clothing "were similar to the glass from the Kia windshield." Belschner also found animal hair on the front bumper and a possible blood stain on the windshield and right side of the vehicle. She determined animal hair recovered from the car could have come from J.H.'s dog.
In addition to evidence of the hit and run, Belschner also found evidence connecting defendant to Ulrich's murder. There were possible blood stains inside the car on the driver and passenger's seats, and human hair was recovered from the car. A comparison of that hair to Ulrich's revealed the hair was similar. In addition, blood on defendant's shoe from Ulrich's murder was transferred to the Kia brake pedal and the driver's side floor mat.
Shortly after sunrise, defendant arrived at a friend's house in Eureka, and later in the morning defendant made multiple telephone calls to his wife. She eventually went over to defendant's friend's house to speak to defendant, and when she told defendant she was going back home, he asked for a ride. By this time, the police were looking for defendant, and Eureka Police Officer Patrick Bishop received a call to assist the Humboldt County Sherriff's Office in locating him. Officers then received word defendant was on the move with his wife, drove to the reported location, and at some point, after locating their vehicle, initiated a traffic stop. Defendant was in the back seat. When the officers handcuffed him, he remarked that his hands were " 'fucked up and swollen.' " The officers searched him and found several hypodermic needles, a chrome colored folding knife, a lighter, a pencil and a notebook.
J.H. and T.L. recalled very little about the day of the killings. J.H. remembered meeting in the morning around 5:20 a.m. T.L. arrived a couple of minutes late because she was "having trouble with her headlamp," which J.H. was able to help her fix. The group then started their run "wearing reflective clothing and headlamps." The next thing J.H. could remember was waking up in the hospital three days later. She suffered, among other things, a head injury, traumatic brain injury, a broken scapula, a fractured right tibia, an opened fibula, fractured bones in her right foot, a collapsed lung, an adrenal hemorrhage, and lacerations to her scalp and body that required stitches and staples. T.L.'s recollection was similar. She remembered getting help from J.H. to replace the batteries in her headlamp and then starting out for their run. She remembered J.H. and her dog, who had a light-up leash, were in front of her and Seeman. The next thing she could remember was waking up in a hospital with staff trying to take off her wedding ring. T.L. suffered a traumatic brain injury, damage to her optic nerve, a broken rib, bruising to her lung, cuts on her face, a hematoma to her left elbow, broken tibia and fibula on her right leg, pulmonary contusions, broken bone in her foot, and "lots of soft tissue damage" to her foot as well. T.L. also was able to provide the police with data from her GPS watch, which she wore when running.
Pathologist Ogan also performed Seeman's autopsy. He described the "main pattern" of visible injury as a "blunt force injury," either caused by "impact or a fall." Seeman suffered multiple injuries, including abrasions, contusions, hematomas, fractures, and lacerations located on her head, torso and extremities. She had radiating fractures in her skull, and intracranial bleeding and subdural hemorrhaging in her skull. Her lungs were punctured and partially collapsed. Ogan opined the cause of death "was skull fractures, brain injury, and intracranial hemorrhages due to multiple blunt impact injuries due to pedestrian struck by motor vehicle."
DISCUSSION
Admission of Evidence Code Section 1101 , subdivision (b) Evidence
The trial court admitted evidence of two prior crimes defendant admitted as a juvenile. He maintains the court erred in doing so.
Admissibility Standards
The rules governing the admissibility of evidence under Evidence Code section 1101 are well-settled. " ' " 'Evidence of the defendant's commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as [intent or absence of mistake or accident]. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care.' " ' " (People v. Jones (2013) 57 Cal.4th 899, 930, quoting People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 (Ewoldt).)
Ewoldt, supra, 7 Cal.4th 380, superseded by statute in part on other grounds as stated in People v. Robertson (2012) 208 Cal.App.4th 965, 991.
Evidence of prior criminal conduct may be admissible to prove some fact at issue, such as identity, opportunity, intent, knowledge, or the existence of a common plan or scheme. (Evid. Code, § 1101, subd. (b).) However, the prior criminal conduct must bear some degree of similarity to the charged crime(s) to be admissible to prove a fact at issue. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
"The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act. . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' " (Ewoldt, supra, 7 Cal.4th at p. 402; see generally Simons, Cal. Evidence Manual (2017 ed.) § 6:12, p. 509.)
Even when technically admissible, evidence of prior criminal conduct must be carefully scrutinized under Evidence Code section 352 and excluded if its probative value will be outweighed by undue consumption of time, or the evidence will create a substantial danger of prejudice, of confusing the issues, or of misleading the jury. (Ewoldt, supra, 7 Cal.4th at p. 404.)
" ' "We review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352." ' " (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 754.)
The Trial Court's Evidence Code Section 1101 Rulings
The prosecution moved to admit evidence "of a 2001 attempted murder by stabbing of a victim, theft of the victim's vehicle, and assault with a deadly weapon, to wit, a motor vehicle, against one or more separate victims, committed by Defendant." Specifically, defendant, who had been a juvenile at the time, admitted he willfully, unlawfully and with malice aforethought attempted to murder C.M., a cab driver, after C.M. picked him up and took him to McKinleyville (the attempted murder). He further admitted that he thereafter stole the taxi cab and used it to " 'willfully and unlawfully . . . by means of force likely to produce great bodily injury,' " assault F.H., who was riding a bicycle along the roadway (the vehicular assault). The People maintained this evidence was admissible to show intent to kill, both as to Ulrich and the joggers. The People further asserted the evidence was admissible to prove lack of accident or mistake and premeditation in the charged offenses involving the joggers.
Defendant, in turn, moved to exclude the evidence, asserting it was not relevant because he did not dispute intent as required for the charged offenses, the two prior crimes were not substantially similar to the charged crimes, and the prior vehicular assault and the charged offenses involving the joggers involved different mental states and proof of the mental state required for the vehicular assault "cannot create an inference . . . for the charges in the present matter." Additionally, defendant asserted the prejudicial effect of the prior crimes far outweighed any probative value under Evidence Code section 352. In response, the People pointed out that by pleading not guilty to the charged offenses, defendant "put intent, premeditation, and deliberation in issue," and that "[e]vidence of Defendant's prior offense is probative of the fact that the actions resulting in the deaths of the victims were perpetrated intentionally, with premeditation and deliberation."
At the evidentiary hearing, defense counsel reiterated that defendant had not "placed his intent in issue" and other evidence—the audio recording, the extent of Ulrich's injuries, the autopsy report—required a finding that whoever committed the assault against Ulrich "intended to kill," and therefore the proffered Evidence Code section 1101 evidence was cumulative as to the Ulrich murder. He also reiterated the prior vehicular assault neither contained an allegation of premeditation and deliberation nor could defendant's admission of the crime "support a finding of deliberation and premeditation under the facts."
The trial court ruled the prior attempted murder "would be relevant on the issues of intent and premeditation and deliberation" as to the Ulrich murder, that those issues were in dispute, and that the prior crime was sufficiently similar to the Ulrich murder. The court ruled the prior vehicular assault was admissible to show that defendant's driving down the joggers "was an intentional act and to the related issue of absence of mistake or accident," and that the two situations were "sufficiently similar." The court also observed that "there's even more similarity between the former incident and the current case, if we consider the former incidents as a single course of conduct." The court additionally found that the evidence of the prior crimes more probative than prejudicial.
The Prior Attempted Murder
The Evidence and Instructions
In accordance with the trial court's Evidence Code section 1101 ruling, Humboldt County Deputy Sheriff Rick Chandler testified about the attempted murder of the taxi cab driver, C.M. In the early morning hours of April 10, 2001, Chandler was dispatched to a house where he found C.M. "curled up in the fetal position" on the porch. C.M.'s breathing was labored, and he had stab wounds in his chest, back and shoulders.
C.M. also testified. Before he did, the court reminded the jury, "During voir dire and jury selection, there was mention that there would likely be evidence that was admitted for a limited purpose. You were advised that there would be a jury instruction which describes that evidence and states the limited purpose or purposes for which it may be considered. The limited purpose instruction will apply to all evidence regarding incidents that are alleged to have occurred in 2001. The specific instruction will be given at a later time." C.M. then testified that he worked as a cab driver in Eureka and was working the graveyard shift on April 10. "[S]ometime in the early morning hours," he picked defendant up at a motel in Eureka. Defendant "threw $40 over the seat" and asked if it was enough for C.M. to drive him to McKinleyville, to which C.M. responded that it was. Once in McKinleyville, however, defendant did not know where to go and had C.M. driving "around in circles." Defendant then "reached over" the seat and stabbed C.M. in his chest, arm, and back. While C.M. tried to get his seatbelt off so he could exit the vehicle, defendant stabbed him two more times in the back. Finally, C.M. was able to get the cab door open, and while the car was still moving, he jumped out. C.M. was able to make it to a nearby house, and the resident called the police. C.M. and defendant had not had any conversation, had never met before, and C.M. was "taken by surprise" when defendant stabbed him.
The People were also allowed to read into the record: " 'On November 15th, 2001, in the Superior Court of Humboldt County, the defendant, [] admitted that on or about April 10th, 2001, at and in the said County of Humboldt, did willfully, unlawfully, and with malice aforethought, attempt to murder [C.M.], a human being, in violation of section 664/187(a) of the Penal Code of the State of California. [¶] Also on November 15th, 2001, in the Superior Court of Humboldt County, the defendant, [] admitted that on or about April 10th, 2001, at and in the said County of Humboldt, did willfully and unlawfully commit assault upon [F.H.] with a deadly weapon, to wit, a vehicle, and by means of force likely to produce great bodily injury in violation of section 245(a)(1) of the Penal Code. . . ."
Following this statement, the court informed the jury: "There is a limiting instruction with regard to that evidence. 'This evidence may be used by the jury solely as to the issue of whether the defendant, [] committed the acts of stabbing [C.M.] on April 10th, 2001, and whether defendant [] hit [F.H.] and/or his bicycle on April 10th, 2001. They may not be used for any other purpose. The jury is reminded that the evidence of the allegations relating to the incidents in 2001 are admitted for the limited purposes which will be specifically set forth in the jury instructions.' "
At the close of evidence, the court instructed the jury: "The People presented evidence that the defendant committed an offense that was not charged in this case, namely stabbing [C.M.] in 2001. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the offense. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant acted with the intent to Murder and with Premeditation and Deliberation in this case, as to Count 1 only (victim—Dorothy Ulrich.) [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Count 1. The People must still prove every charge beyond a reasonable doubt."
The Prior Attempted Murder Was Admissible
Defendant contends the trial court erred in admitting evidence of the prior attempted murder.
First, he asserts "[t]here is a dire lack of similarity between the [C.M.] incident and the subject incident." He claims that while he and Ulrich knew each other, he and C.M. did not and the attack on C.M. was "completely unexpected." Defendant further points out the weapons he used to kill Ulrich "were apparently on hand," whereas he attempted to kill C.M. with a knife already in his possession. Finally, citing Graham v. Florida (2010) 560 U.S. 48, 68-69, he claims that because he was a juvenile when he attempted to murder C.M., any comparison between that crime and his killing of Ulrich is "inaccurate" because "there is an abundance of evidence suggesting that the juvenile brain is not as developed as an adult's."
None of the factual differences defendant points to undermine the trial court's ruling that there are sufficient similarities between the prior attempted murder of C.M. and his killing of Ulrich to allow admission under Evidence Code section 1101, subdivision (b). While defendant suggests he "knew" Ulrich, the evidence, at best, suggested a bare passing recognition. Ulrich's husband testified that while he had seen defendant in the area, he did not know him and he was not aware that his wife knew him, and there was no other evidence that defendant had any kind of relationship with Ulrich. In short, the evidence reflects that defendant interacted with both C.M. and Ulrich in temporary transactional circumstances—C.M., as a cab driver, and Ulrich, in need of assistance in packing and closing down her household. Similarly, both attacks were unprovoked by the victims. C.M. testified that after he and defendant arrived in McKinleyville, defendant was not sure where to go and then, after becoming "frustrated," reached over the seat and repeatedly stabbed him. As to Ulrich's murder, there similarly was no evidence of any altercation or argument during the day. Rather, later in the day, defendant complained to Ulrich's neighbor that he wanted to "be paid earlier in the day." It is true that defendant attempted to murder C.M. with a knife already in his possession and he killed Ulrich with the ceremonial swords in Ulrich's house, but this is not a difference of consequence. In both circumstances, defendant used weapons readily at hand, both were stabbing weapons, and he used the weapons to repeatedly stab the victims. As for defendant's citation to Graham, he acknowledges the case pertains to the sentencing of juveniles, and says nothing about the use of prior juvenile adjudications as evidence in later prosecutions for crimes committed as an adult.
Furthermore, in focusing separately on the prior attempted murder and the prior vehicular assault, defendant has disregarded the complete context of the prior criminal conduct, which consisted of an unprovoked, vicious stabbing of an individual he scarcely knew, followed immediately by his taking the victim's vehicle and running down a new victim along the roadway. In short, there are marked similarities between the first course of criminal conduct and the second. (See People v. Miller (1990) 50 Cal.3d 954, 987 ["features of substantial but lesser distinctiveness may yield a distinctive combination when considered together"].)
Second, citing to People v. Simon (1986) 184 Cal.App.3d 125 (Simon), defendant contends "there was no admission to a premeditated attempted murder, but rather an attempted murder with malice aforethought," the prior attempted murder evidence was inadmissible because "the prosecution must establish that the defendant committed the prior act with the required intent and/or mental state" of the charged act.
In Simon, the defendant was convicted of second degree murder for shooting and killing one Phillip Soto, after finding Soto in his girlfriend's apartment. Defendant claimed self-defense, as he asserted Soto had a gun and pointed it at him. The prosecution claimed defendant shot Soto out of jealousy. (Simon, supra, 184 Cal.App.3d at pp. 127-128.) The prosecution introduced evidence that the defendant had previously pulled a gun on another man, who he had found at his girlfriend's apartment selling her drugs. (Id. at pp. 128-129.) Defendant argued his motivation in the prior incident was merely a "desire to keep [his girlfriend] away from drug dealers." (Id. at p. 130.) The trial court allowed evidence of the prior assault, but only to rebut the defendant's claim of self-defense. (Id. at p. 130, fn. 4.) On appeal, the Court of Appeal agreed the prior conduct was not admissible as to motive or intent—the "mere pointing of a gun" at the prior individual, "whatever the circumstances surrounding it, had no tendency to prove that [the defendant] intended to kill" the victim. (Ibid., italics omitted.) As to self-defense, the appellate court ruled the prior assault was admissible only if it was motivated by jealousy. (Id. at p. 130.) Thus, while observing that the relevance of uncharged conduct is generally a legal question, it can, under certain circumstances present a factual question, which it did in the case at hand, since the defendant denied he had committed the crime with the same motive as the uncharged offense. (Id. at pp. 129-130.) Accordingly, the court concluded the jury should have been specifically instructed that before it could consider the prior assault, it would have to find, as a threshold matter, that defendant had not acted to protect his girlfriend and, in fact, had acted out of jealousy. (Id. at pp. 129-132.)
Here, in contrast, defendant admitted that he "willfully, unlawfully, and with malice aforethought," attempted to murder C.M. Accordingly, unlike in Simon, there was no dispute as to defendant's state of mind in connection with the prior attempted murder. Nor does Simon hold that the prior crime and the charged crime must require the identical mental state for admissibility under Evidence Code section 1101; rather Simon acknowledges that " 'other acts' " evidence "must have a tendency to prove or disprove a disputed material fact," such as the defendant's intent. (Id. at p. 129, italics added; Ewoldt, supra, 7 Cal.4th at p. 402 ["In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." ' "], italics added & quoting People v. Robbins (1988) 45 Cal.3d 867, 879, superseded on other grounds as stated in People v. Jennings (1991) 53 Cal.3d 334, 387, fn. 13.) Further, "[t]he least degree of similarity between the crimes is needed to prove intent" because, as our Supreme Court has explained, "the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous. Specifically, the more often one kills, especially under similar circumstances, the more reasonable the inference the killing was intended and premeditated." (People v. Steele (2002) 27 Cal.4th 1230, 1244, italics added.)
Accordingly, the trial court did not err in concluding evidence of the prior attempted murder was admissible under Evidence Code section 1101, subdivision (b) for the limited purpose of deciding whether or not defendant acted "with the intent to Murder and with Premeditation and Deliberation" in connection with the killing of Ulrich.
The Prior Vehicular Assault
The Evidence and Instructions
F.H. testified that he and a friend were out bike riding on the night of the attempted murder of C.M. F.H. was riding in the bike lane beside his friend, when the friend told him there was a light coming from behind, indicating a vehicle was approaching. F.H. then saw the car "move from the lane and drive into the bicycle lane" and accelerate toward him. He tried to move over, but was struck by the car on his rear, left side. He regained control of his bike just in time to stop from falling. He suffered a bruise on his "buttock area" and hurt his left hand. He found a piece of the vehicle's passenger side mirror on the ground and gave it to the police.
Chief Investigator of the Humboldt County District Attorney's Office, Wayne Cox, testified to finding C.M.'s abandoned cab later that morning and that the passenger-side rear view mirror was broken.
As we recited above, the prosecution additionally read into the record: " 'On November 15th, 2001, in the Superior Court of Humboldt County, the defendant, Jason Warren, admitted that on or about April 10th, 2001, at and in the said County of Humboldt, did willfully, unlawfully, and with malice aforethought, attempt to murder [C.M.], a human being, in violation of section 664/187(a) of the Penal Code of the State of California. [¶] Also on November 15th, 2001, in the Superior Court of Humboldt County, the defendant, Jason Warren, admitted that on or about April 10th, 2001, at and in the said County of Humboldt, did willfully and unlawfully commit an assault upon [F.H.] with a deadly weapon, to wit, a vehicle, and by means of force likely to produce great bodily injury in violation of section 245(a)(1) of the Penal Code. . . ." And following this statement, the court informed the jury, "There is a limiting instruction with regard to that evidence. 'This evidence may be used by the jury solely as to the issue of whether the defendant, [] committed the acts of stabbing [C.M.] on April 10th, 2001, and whether defendant [] hit [F.H.] and/or his bicycle on April 10th, 2001. They may not be used for any other purpose. The jury is reminded that the evidence of the allegations relating to the incidents in 2001 are admitted for the limited purposes which will be specifically set forth in the jury instructions.' "
At the close of evidence, the trial court instructed the jury as follows: "If you decide that the defendant committed the offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not: [¶] The defendant's alleged actions were the result of mistake or accident and whether or not the Defendant intended to strike one or more of the three joggers as alleged in Counts 2, 3, and 4."
The Prior Vehicular Assault Was Admissible
As to the prior vehicular assault, defendant contends it involved "a highly distinct set of facts, as well as highly distinct mental states." Defendant points out that in the prior vehicular assault, he "did not make enough contact with the bicycle to even damage it, let alone injure [the rider] so as to require medical intervention," whereas when he hit the joggers, they "suffered tremendous injuries." He further maintains that while he admitted the prior vehicular assault, if he had "intended to strike [F.H.], he could have easily accomplished it." He further contests F.H.'s testimony as to the facts of that assault, asserting F.H. could not have seen him approaching, since he approached the bicyclists from behind.
While the vehicular assault of F.H. and the vehicular collision with the joggers are not identical, there are striking similarities in the crimes. To begin with, as we have recited, both vehicular incidents followed on the heels of violent crimes—just before defendant ran into F.H., he had attempted to kill C.M., and just before he slammed into the joggers, he had murdered Ulrich. Both vehicular incidents were committed with a readily accessible, stolen vehicle. In both incidents, the victims were traversing alongside the roadway. In both incidents, the victims were readily observable. In both incidents, defendant came up on the victims from behind. In both incidents, defendant had to steer out of the lane of travel to strike the victims. The fact that defendant only inflicted minor injuries on F.H., but succeeded in inflicting mortal and catastrophic injuries on the joggers, does not begin to overshadow the similarities of the crimes. As for defendant's quarreling with F.H.'s recollection and testimony, it was up to the jury to determine the veracity of, and to weigh, his testimony. (See People v. Melton (1988) 44 Cal.3d 713, 744.) And as we have stated above the prior crime and the charged crime do not require identical mental states for admissibility under Evidence Code section 1101.
Accordingly, the trial court did not err in concluding the prior vehicular assault was admissible under Evidence Code section 1101, subdivision (b) for the limited purpose of deciding whether or not defendant's hitting the joggers with the Kia was "the result of mistake or accident" or whether he "intended to strike one or more" of them.
Evidence Code Section 352 Balancing
Defendant also claims the trial court abused its discretion under Evidence Code section 352 in weighing the probative value of the prior crimes evidence, against the potential for prejudice. While defendant complains that in ruling on the evidence, the court cited "only those factors in favor of admission," he acknowledges that the court "need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 213.) The record here so demonstrates.
The trial court stated: "In looking at the issues of [Evidence Code section] 352, which is a balancing-type test, I think that the evidence is highly probative." The court noted, for example, a number of similarities between the attempted murder of C.M. and the killing of Ulrich, including that a cutting instrument was used, the attacks were unprovoked and occurred in the early morning hours under cover of darkness, multiple wounds were inflicted, and after the attacks, defendant left in the victim's vehicle. Thus, it is clear the court understood balancing was required, and that it, in fact, weighed the required considerations. The prior crimes evidence did not consume an undue amount of trial time, nor was it confusing. That it was also highly probative as to the issues for which it was admitted did not render it unduly prejudicial for Evidence Code section 352 purposes. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408 [" ' " 'In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" [Citation.] [¶] The prejudice that section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citation.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " ' "].)
Defendant points out the prior attempted murder and vehicular assault occurred more than a decade ago and claims the trial court therefore abused its discretion in allowing the evidence because of remoteness in time. Though defendant states the time span between the prior and charged crimes was 14 years, that was the time between the prior crimes and the date of trial on the charged crimes. The prior and charged crimes, themselves, were 11 years apart. That period is not so great as to deprive the evidence of the prior crimes of its probative value. Furthermore, remoteness in time of prior criminal conduct is only one of numerous factors a trial court must take into account in deciding admissibility. (See People v. Branch (2001) 91 Cal.App.4th 274, 284-285 [affirming the admission of evidence of a series of uncharged prior offenses that occurred 30 years prior to the charged crimes; "[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible"].)
Accordingly, the trial court did not abuse its discretion under Evidence Code section 352 in ruling the probative value of the prior crimes outweighed the potential for prejudice.
Jury Instructions
Defendant also asserts the trial court erred in instructing the jury "they could consider the [prior attempted murder] as to the issue of premeditation and deliberation regarding the Ulrich homicide, and the [prior vehicular assault] as to the issue of intent to strike the joggers." This is essentially a retooling of his Evidence Code section 1101, subdivision (b) argument that the trial court erred in concluding the prior crimes were admissible because they did not carry the same "intent" requirements as the charged crimes. Specifically, defendant maintains that because his attempted murder admission was of a crime committed with " 'malice aforethought,' " instructing the jury that it could consider the prior attempted murder on the issues of premeditation and deliberation was error. Similarly, he claims that because he admitted that he " 'willfully and unlawfully' " committed an assault " 'with a deadly weapon, to wit, a vehicle, and by means of force likely to produce great bodily injury,' " it was error to instruct the jury it could consider the prior vehicular assault as to the crimes involving the joggers because that "equated appellant's admission to criminal assault, to the intent to kill required in all three counts involving the joggers."
As we have discussed above, the admissibility of prior crimes evidence does not depend on whether the prior crimes required the identical intent as the charged crimes, and the trial court did not err in concluding the prior crimes evidence was admissible under Evidence Code section 1101, subdivision (b). We therefore need not, and do not, discuss, defendant's claim of instructional error further.
Sufficiency of the Evidence
Count One (Ulrich's Murder)
The prosecution presented three theories of defendant's guilt of first degree murder as to Ulrich: (1) premediated, deliberate murder, (2) murder by means of torture, and (3) murder by means of lying in wait. The People also alleged, and the jury found, torture special circumstances and lying-in-wait special circumstances as to Ulrich's murder.
Defendant contends there was insufficient evidence to support first degree murder by means of torture or by lying in wait, or to support the torture and lying-in-wait special circumstance findings.
As we noted at the outset, defendant has not challenged the sufficiency of the evidence to support the third first degree murder theory advanced—premeditated, deliberate murder. Nor has he challenged the sufficiency of the evidence to support the multiple-murder special circumstance finding.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court, 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] The same standard of review applies to the sufficiency of the evidence supporting special circumstance findings." (People v. Powell (2018) 5 Cal.5th 921, 944 (Powell).)
Torture Murder and Torture Special Circumstance
" ' "All murder which is perpetrated by means of . . . torture . . . is murder of the first degree." (§ 189.) Murder by torture requires (1) an act or acts causing death that involve a high degree of probability of death, (2) a causal relationship between the tortuous act and death, (3) a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain on a person for the purpose of revenge, extortion, or for any other sadistic purpose, and (4) commission of the act or acts with such intent.' [Citation.] The elements of a torture-murder special circumstances (§ 190.2, subd. (a)(18)) are similar but not identical. 'To prove that special circumstance allegation, the prosecution had to establish that "defendant intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose." ' [Citation.] [¶]
"In a sufficiency of the evidence challenge to a torture-murder conviction or special circumstance finding, the focus is generally on 'defendant's tortuous intent.' [Citation.] The perpetrator must intend to ' " 'cause pain and suffering in addition to death.' " ' [Citation.] Torturous intent ' "is a state of mind which, unless established by the defendant's own statements (or by another witness's description of a defendant's behavior in committing the offenses), must be proved by the circumstances surrounding the commission of the offense [citations], which include the nature and severity of the victim's wounds." ' [Citation.] In this regard, 'evidence that the defendant intentionally inflicted nonlethal wounds on the victim may demonstrate the requisite " 'sadistic intent to cause the victim to suffer pain in addition to the pain of death.' " ' [Citation.] Such wounds support a finding of intent because they 'evidence[] deliberate and gratuitous violence beyond that which was necessary to kill the victim.' [Citation.] The focus, as noted, is on defendant's intent to inflict pain and suffering, which is 'at the heart of' torture murder. [Citation.] It need not be demonstrated that the victim was actually conscious and suffered pain at the time otherwise painful injuries were inflicted." (Powell, supra, 5 Cal.5th at pp. 944-945; see People v. Odom (2016) 244 Cal.App.4th 237, 248-249 (Odom).)
Defendant asserts "there were no statements by [him] constituting evidence of a state of mind intending to torture Ulrich, nor were there any suggestion[s] that [he] had the requisite sadistic purpose to commit torture, beyond the approximately three minutes that it took to slay her."
We disagree and conclude there was sufficient evidence to support torture murder and to support a torture special circumstance finding. Contrary to defendant's assertion, there is a statement by him evidencing sadistic intent to cause Ulrich to suffer pain. The audio tape recorded Ulrich screaming in agony and pleading with defendant to stop: "Ow, ow, ow, ow, ow, ow, ow, ow. What are you doing? What are you doing? What are you doing? Wait. Wait. Stop it. Make it stop. Please, stop. Please." "Jason, please stop it. Please, stop. Please, please." "You're hurting me bad. Ow. Jason, stop it. Please I can't do this. No more. No more. No more. Jason." "Please, please, please, please, please. I can't do this anymore. Please, I can't. Please, I can't do this. I can't . . . please, please, I can't stand any more. I can't. Please . . . please, I can't." It also recorded defendant's chilling response: "Shut up. It's too late." Whereupon he continued to attack her.
Furthermore, Investigator Magnuson-Franco testified that she counted approximately 59 to 65 "thuds or smacks or strikes," and responding law enforcement officers and the forensic pathologist testified to hideous wounds reflecting staggering brutality. In fact, the pathologist testified that "during the altercation, at some point, there was some choking, release, choking, release." In short, the killing "was savage and beyond that necessary to cause death." (Powell, supra, 5 Cal.5th at p. 946.)
While defendant maintains the killing was simply an "explosion of violence," that is certainly not the only view that can be taken of the evidence. The length of the attack, the multiple methods defendant employed (stabbing and choking), his cold response to Ulrich's pleas to stop, and the number and extreme severity of the wounds evidence an intent to inflict pain and suffering for their own sake. Accordingly, the torture murder theory and the torture special circumstance finding were supported by substantial evidence. (See Powell, supra, 5 Cal.5th at p. 946; Odom, supra, 244 Cal.App.4th at p. 250.)
Lying-In-Wait Murder and Lying-In-Wait Special Circumstance
"The requirements of lying in wait for first degree murder under . . . section 189 are 'slightly different' from the lying-in-wait special circumstance under . . . section 190.2, subdivision (a)(15). [Citation.] . . . We focus on the special circumstance because it contains the more stringent requirements. [Citation.] If, as we find, the evidence supports the special circumstance, it necessarily supports the theory of first degree murder. [¶] The lying-in-wait special circumstance requires 'an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. . . .' [Citations.] 'The element of concealment is satisfied by a showing " 'that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.' " ' " (People v. Carpenter (1997) 15 Cal.4th 312, 388, abrogated on another ground as stated in People v. Diaz (2015) 60 Cal.4th 1176, 1189-1190.)
We initially observe that having rejected defendant's sufficiency of the evidence challenges to the torture-murder theory and the torture special circumstances finding, we need not consider his sufficiency of the evidence challenges to the lying-in-wait murder theory and the lying-in-wait special circumstance finding. As our Supreme Court held in People v. Guiton, "[i]n cases governed by Griffin [v. United States (1991)] 502 U.S. 46 . . . , the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory." (People v. Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton).) Given the jury's torture special circumstance finding, it cannot be said that the record affirmatively demonstrates a reasonable probability that the jury convicted defendant of first degree murder solely on a lying-in-wait theory. And since the jury expressly found torture special circumstances, that finding, alone, is sufficient to support the enhanced sentence of LWOP. (See id. at p. 1130; People v. Marks (2003) 31 Cal.4th 197, 233 [because there was "sufficient evidence showing [the victim's] murder was premeditated and deliberate, there is no basis for reversal" even if "the jury considered the felony-murder theory and insufficient evidence supported it"].) Furthermore, defendant makes no challenge to the premeditation and deliberation first degree murder theory or to the multiple-murder special circumstance finding. While defendant suggests he is raising claims of legal error in connection with the lying-in-wait murder theory and the lying-in-wait special circumstances finding (i.e., that the evidence is legally insufficient to support the theory or the special circumstance), which would require reversal under People v. Green (1980) 27 Cal.3d 1, as construed in Guiton (Guiton, at pp. 1126-1129), his challenge is a typical attack on the sufficiency of the evidence. (Id. at p. 1131 [stating Court of Appeal's finding of "insufficient evidence to support a finding that defendant sold cocaine" was "a purely factual question," and the "jury was as well equipped as any court to analyze the evidence and to reach a rational conclusion," thus "the Griffin rule generally requiring affirmance applies"].)
Overruled on other grounds as stated in Odom, supra, 244 Cal.App.4th at page 254.
In any case, turning to the merits of defendant's challenges to the lying-in-wait murder theory and the lying-in-wait special circumstances finding, he asserts the "prosecution did not present any evidence that [he] concealed his purpose from Ulrich" or that he waited for an "opportune time to act." He posits that had he been intent on "conceal[ing]" himself and the crime, "it would have been more suitable to have acted while with her away from the property where their interaction was not being recorded." According to defendant, the most the evidence showed was " 'thinking about it' " and a " 'plan' " to kill Ulrich, which would support premeditation and deliberation, but not lying-in-wait.
Once again, while this may be defendant's view of the evidence, it is not the only reasonable view of the circumstances of Ulrich's murder. There was sufficient evidence supporting all three lying-in-wait requirements. First, there was no evidence that defendant gave any warning that he intended to harm Ulrich; in fact, the evidence suggests he lulled her into a false sense of security. (See People v. Johnson (2016) 62 Cal.4th 600, 631-632 (Johnson) ["physical concealment before the attack on the victim is not required"; " ' "[i]t is sufficient that a defendant's true intent and purpose were concealed by his actions or conduct" ' "], quoting People v. Morales (1989) 48 Cal.3d 527, 555 (Morales), disapproved on other grounds as stated in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Moon (2005) 37 Cal.4th 1, 22 [when the victim saw the defendant, he "remained silent, further concealing his purpose"; the "victim could not have anticipated [the] defendant's deadly intentions"]; People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 301 (Bradway) [defendant told the victim he was there to use her computer and when "she let him in he made sure he was nice so as to make her feel comfortable"].) Second, he worked with Ulrich at her house for the entire day before the murder and therefore had substantial time to watch and wait for an opportunity to attack her. (See People v. Ceja (1993) 4 Cal.4th 1134, 1143 [jury could infer from the defendant's hours' long wait that he waited and watched for an opportune time to act, i.e., "until his victim was alone with him in the relative isolation"].) Third, after leaving Ulrich's house and walking towards the neighbor's house in the wee hours of the morning, he returned to Ulrich's house and perpetrated a surprise attack on an unsuspecting Ulrich. The injuries and the position of the body when found—trauma to the back of Ulrich's head and her eyeglasses found underneath her body—also indicate Ulrich was attacked from behind, further indicating defendant was in a position of advantage. (See Johnson, at p. 631 [killers approached from behind].)
In his briefing on appeal, defendant cites a host of lying-in-wait cases involving different facts, which he maintains reflect true lying-in-wait circumstances. Indeed, he asserts that in "almost 60 years of case law," no decision has "embraced its application to circumstances" like those of Ulrich's murder. However, these cases do not, singularly or collectively, require the conclusion that the circumstances here cannot support lying-in-wait murder or special circumstances. (See Morales, supra, 48 Cal.3d at pp. 557-558 ["The question whether a lying-in-wait murder has occurred is often a difficult one which must be made on a case-by-case basis, scrutinizing all of the surrounding circumstances."].)
As to the lying-in-wait special circumstance, specifically, defendant makes an additional argument—that as applied in his case, the special circumstance is unconstitutionally vague.
The lying-in-wait special circumstance was upheld against constitutional challenges in Bradway, supra, 105 Cal.App.4th at pages 304-311 and Johnson, supra, 62 Cal.4th at pages 634-637. The defendants in both cases claimed the 2000 amendment to the lying-in-wait special circumstances statute (Proposition 18) removed all distinctions between lying-in-wait murder and lying-in-wait special circumstances, and this allowed, in violation of constitutional principles, the additional punishment permitted by a special circumstance finding to apply to any lying-in-wait murder, rather than to only a narrow class of such murders sufficiently heinous to warrant additional punishment. (Johnson, at p. 634 [defendant argued "the amendment rendered the special circumstance virtually identical to first degree lying-in-wait murder and thereby eliminated the guidance needed to prevent its arbitrary and capricious application in violation of the Eighth Amendment"]; Bradway, at p. 309 [special circumstance allegation had been dismissed on grounds the new statute eliminated "any cognizable way to differentiate between an intentional first degree murder committed by means of lying in wait and murder with the special circumstances of lying in wait" and "therefore failed to narrow the class of persons eligible for the death penalty or an LWOP term"].)
The amendment changed the former requirement that a defendant intentionally kill the victim "while lying in wait," to a requirement that the defendant commit an intentional killing "by means of lying in wait." (Johnson, supra, 62 Cal.4th at p. 634, italics omitted.) This change was made to overrule the construction the courts had given the special circumstance, requiring that the killing occur as the defendant lay in wait, and thus making the special circumstance inapplicable where the defendant lay in wait to kidnap the victim and then moved the victim to another locale where the actual killing occurred. In short, the "voters intended to conform the temporal connection between the killing and the lying in wait required for the special circumstance to that required for lying-in-wait first degree murder." (Id. at p. 635.)
Although the defendant in Johnson and the defendant in Bradway both made the same argument, the defendant in Johnson did so under the Eighth Amendment since he had been sentenced to death, whereas the defendant in Bradway did so as a matter of due process since he was not facing the death penalty. (Johnson, supra, 62 Cal.4th at p. 635, fn. 4.)
Both courts upheld the constitutionality of the amended lying-in-wait special circumstances statute. (Johnson, supra, 62 Cal.4th at pp. 634-637; Bradway, supra, 105 Cal.App.4th at pp. 304-311.) The Supreme Court explained that the particular "characteristics" of a lying-in-wait murder—an "intentional murder that [meets] the elements of concealment, watching and waiting, and a surprise attack from a position of advantage"—render it " 'sufficiently distinct from the "ordinary" premeditated murder to justify treating it as a special circumstance.' " (Johnson, at p. 636, quoting Morales, supra, 48 Cal.3d at p. 557.) Thus, even if the amendment made "the special circumstance identical to lying-in-wait first degree murder," the amended lying-in-wait special circumstance "satisf[ied] federal constitutional requirements" for enhanced punishment. (Johnson, at p. 636.) "[T]he murderer who kills by lying in wait acts surreptitiously, concealing himself or his purpose and making a surprise attack on his victim from a position of advantage, thereby denying the victim any chance of escape, aid, or self-defense. It is no surprise that a murder committed by lying in wait historically has been viewed as ' "a particularly heinous and repugnant crime." ' " (Id. at pp. 636-637, quoting People v. Edelbacher (1989) 47 Cal.3d 983, 1023.)
The Court of Appeal in Bradway employed a slightly different analysis, concluding first that the amended special circumstance statute did not "merely repeat" the elements of lying-in-wait murder. (Bradway, supra, 105 Cal.App.4th at p. 310.) "[T]he special circumstance remains distinguishable because it still requires the specific intent to kill, whereas first degree murder by lying in wait does not." (Id. at p. 309.) The appellate court then observed, as the Supreme Court emphasized in Johnson, that " 'first degree murder liability and special circumstances findings may be based upon common elements without offending the Eighth Amendment.' " (Id. at p. 310, quoting People v. Marshall (1990) 50 Cal.3d 907, 945-946.)
In addition to making a facial constitutional challenge to the amended lying-in-wait special circumstances statute, the defendant in Johnson also made an "as-applied challenge." (Johnson, supra, 62 Cal.4th at p. 637.) "Specifically," the defendant asserted "that because his liability for lying-in-wait first degree murder as an aider and abettor required a showing of intent to kill, there was no meaningful distinction between that theory of first degree murder and the lying-in-wait special circumstance in his case, making it unnecessary for the jury to consider any additional information when deciding the truth of the special circumstance allegation and rendering a true finding inevitable." (Ibid.) The Supreme Court also rejected this challenge, stating defendant's "as-applied challenge is essentially the same argument as his facial attack"—that there is no longer a constitutionally sufficient distinction between lying-in-wait murder and lying-in-wait special circumstances. (Ibid.) The court reiterated that a lying-in-wait special circumstance murder is sufficiently distinct and heinous to support heightened punishment, and also reiterated that substantial evidence supported the jury's lying-in-wait finding. (Id. at pp. 636-637.)
As we understand defendant's constitutional challenge here, it is somewhat different from the challenges made and rejected in Johnson and Bradway. Defendant does not complain that there is a constitutionally insufficient distinction between lying-in-wait murder and lying-in-wait special circumstances. Rather, he contends that on the facts of this case there is no distinction between first degree murder based on premeditation and deliberation, and a lying-in-wait special circumstances finding. He thus asserts he was subjected to heightened punishment without the "guidance needed to prevent [the special circumstances'] arbitrary and capricious application in violation" of constitutional principles. (Johnson, supra, 62 Cal.4th at p. 634.)
As we have observed, we need not address defendant's as-applied challenge, given that the jury also found two other special circumstances to be true—torture special circumstances and multiple murder special circumstances. We have already rejected defendant's challenge to the torture murder theory and the jury's torture special circumstances finding, and this finding, alone, supports the imposition of the LWOP sentence, as does the unchallenged multiple murder special circumstance finding. (See Guiton, supra, 4 Cal.4th at p. 1130; People v. Marks, supra, 31 Cal.4th at p. 233.)
Even were we to reach defendant's as-applied challenge, it is essentially a retooling of his challenge to the sufficiency of the evidence to support lying-in-wait murder and lying-in-wait special circumstances, and it is grounded on defendant's view that the evidence is not that of a " 'classic lying-in-wait special-circumstance murder.' " (Johnson, supra, 62 Cal.4th at p. 631, quoting People v. Bonilla (2007) 41 Cal.4th 313, 332, fn. 6.) However, as we have discussed, the evidence in this case was sufficient to support a lying-in-wait murder theory and a lying-in-wait special circumstance finding. The jury could reasonably find that defendant committed an " 'intentional' " murder that involved " 'a concealment of purpose and a meaningful period of watching and waiting for an opportune time to attack, followed by a surprise lethal attack on an unsuspecting victim from a position of advantage.' " (Johnson, at p. 637, quoting People v. Carasi (2008) 44 Cal.4th 1263, 1310.)
Counts Two , Three and Four
Defendant also challenges the sufficiency of the evidence to support premeditated first degree murder as to Seeman and attempted premeditated first degree murder as to J.H. and T.L.
Again, in reviewing a challenge to the sufficiency of the evidence, we review the entire record in a light most favorable to the judgment to determine whether it discloses substantial evidence to support the jury's findings. (People v. Osband (1996) 13 Cal.4th 622, 690; People v. Johnson (1980) 26 Cal.3d 557, 578.) " 'A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. . . . "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. . . . "The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' " ' " (People v. Cole (2004) 33 Cal.4th 1158, 1224 (Cole).) The evidence must be " 'supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' " (Ibid.)
These principles apply equally to attempted premeditated murder. (People v. Brito (1991) 232 Cal.App.3d 316, 323-324.)
Defendant maintains that, at most, the evidence indicates an intent to kill, but not advance planning or a calculated motive to kill. While he "may have run into the joggers in a fit of generalized anger against society in general," defendant contends there is no evidence the killings were "the product of careful consideration rather than rash impulse," and there was no evidence of any " 'motive' " that "led him to form a calculated plan to kill these three women."
Citing to People v. Anderson (1968) 70 Cal.2d 15, 26-27, defendant compartmentalizes the evidence into that pertaining to "planning activity," "motive to kill," and "manner of the killing," and asserts there is no evidence of any of these three factors. This particular mode of analysis, however, is not required. (See People v. Perez (1992) 2 Cal.4th 1117, 1125 ["Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation"; thus, the "Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive"].) The overarching question in any case is whether there was sufficient evidence from which the jury could reasonably find beyond a reasonable doubt each of the elements of premeditated and deliberate murder. (Id. at p. 1124 [assessing the sufficiency of the evidence supporting a "finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation"].) --------
Again, we do not agree that defendant's view is the only reasonable view of the evidence in this case. The joggers could be readily seen. The road, at the point of collision, was straight, with 1,100 feet of visibility. There were very few vehicles on the road at the time. Surveillance video showed the defendant heading eastbound onto Myrtle Avenue and southbound toward Eureka, at 5:28 a.m. Eight minutes later, the witness who first encountered the roadway carnage, turned onto the roadway, also heading south toward Eureka. She saw a car ahead of her that was perpendicular to the roadway and across the northbound lane and facing east, that backed up and then turned south, traveling briefly in the northbound lane and then moving into the southbound lane—consistent with defendant passing the joggers as he headed south, making a U-turn and coming up on the joggers from behind, and then making another turn in the roadway to resume heading south. The degree of damage and the debris field indicated that he took direct aim at the joggers. The car had no defects affecting its control, and he drove into the joggers without any effort to brake. In addition, defendant had engaged in this same kind of conduct before, when he deliberately ran down F.H., who was bicycling along a roadside. And in both cases, defendant had just committed a brutal stabbing, he was driving a stolen vehicle, and he fled the scene and abandoned the vehicle. The totality of this evidence is " 'supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.' " (Cole, supra, 33 Cal.4th at p. 1224.)
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Margulies, J.