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June 30, 1994

JORGE L. CALDERON, Petitioner,
ROBERT BORG, Respondents.

The opinion of the court was delivered by: CHARLES A. LEGGE


 Petitioner Jorge L. Calderon is a prisoner of the State of California. He was convicted by a jury in state court of first degree murder. He is serving a sentence of life imprisonment without possibility of parole.

 He has filed this petition for a writ of habeas corpus alleging violations of the United States Constitution. His basic claim, and the one discussed in this order, is an alleged violation of the Sixth Amendment and the Fourteenth Amendment, because his trial was submitted to the jury on a theory of, and with instructions on, murder by lying in wait (LIW).


 The procedural history of this petition is lengthy, both in this court and in the state courts. However, most of that history is not relevant to the present status of the petition or to this court's decision. Suffice it to say that petitioner has now exhausted his state court remedies as to the issues raised in the petition. In addition, the State of California has withdrawn its previous argument that petitioner's claims are barred by the state procedural bar rule (see filing by State of California, dated September 7, 1993). Petitioner has been granted in forma pauperis status, and counsel has been appointed to represent him. The State of California has opposed the petition.

 The petition is now before this court after briefing, oral argument, and submission to this court of the LIW claim. Petitioner has alleged three other constitutional violations, but they have not as yet been briefed; and in view of this court's decision on the LIW issue in this order, further proceedings on those three other claims are unnecessary.

 Both petitioner and the state agreed that an evidentiary hearing was not necessary on the LIW claim. The court has reviewed the petition, the state's opposition to it, the briefs, the arguments of counsel, the cited portions of the state record, and the applicable authorities. The court concludes that the petition should be granted and petitioner accorded a new trial.


 As stated, petitioner's claim concerns the submission of the LIW theory of murder to the jury. Petitioner contends that he was not given constitutionally adequate notice of that theory; and that he was prejudiced in his defense at trial by the introduction of that theory to the jury after he had testified in his own behalf.

 There is an important difference in the state's burden of proof in a premeditated first degree murder charge, as compared to a LIW charge. The state can show murder by LIW if it proves the following elements: (1) waiting and watching for an opportune time to act, together with concealment by ambush or some other secret design to take the other person by surprise; (2) the lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation; and (3) that defendant performed these acts in order to take his victim unawares and thereby facilitate his attack on the victim. People v. McDermand, 162 Cal. App. 3d 770, 211 Cal. Rptr. 773, 783 (Cal.App. 1 Dist. 1984). If the state proves those elements, it need not prove the higher levels of active intent, malice and premeditation usually necessary for a first degree murder conviction. LIW "does not include the intent to kill or injure the victim." People v. Laws, 12 Cal. App. 4th 786, 15 Cal. Rptr. 2d 668 (1993). The differences between LIW and premeditated murder were stressed by the prosecutor in closing argument.


 A number of Ninth Circuit cases have dealt with issues concerning California's system for charging murder without separately specifying such theories as LIW or felony murder. These have included Gray v. Raines, 662 F.2d 569 (9th Cir. 1981) and Givens v. Housewright, 786 F.2d 1378 (9th Cir. 1986). More recently, the Ninth Circuit granted a habeas corpus petition in Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989), because the accused had not been given constitutionally adequate notice of a felony murder theory. Based on the trial record in that case, which need not be reviewed here, the Ninth Circuit held that "a pattern of government conduct affirmatively misled the defendant, denying him an effective opportunity to prepare a defense. 'The defendant was ambushed.'" Id. at 1236. That rule was subsequently reviewed in Morrison v. Estelle, 981 F.2d 425 (9th Cir. 1992), affirming the denial of a habeas corpus petition. The Ninth Circuit decided that the accused there had received adequate notice of a felony murder theory before it was submitted to the jury. Id. at 428-29. Morrison seems to give a narrow interpretation to Sheppard, but specifically referred to the fact that there was no indication of "ambush" in Morrison.

 Taking the Ninth Circuit cases together, this court believes that the present state of the law in this circuit is the following: Notice to a defendant that he is being charged with murder under such a theory as LIW or felony murder need not be contained in the indictment itself. Adequate notice can be given to a defendant by means other than the indictment itself. (This court previously applied that interpretation in Usher v. Gomez, C-89-2940 (1991); affd. 91-16603 (9th Cir. 1992)). The record of each case must be examined to determine whether a defendant received constitutionally adequate notice. And the adequacy of the notice is measured by whether the government's conduct misled the defendant and thereby denied him an effective opportunity to defendant himself. That is in effect an ambush rule. Both Sheppard and Morrison also hold that if there was constitutionally inadequate notice, it is not cured by a harmless error analysis. Sheppard at 1235, 1237-38, and Morrison at 428.

 The inquiry for the court here is therefore whether there was a pattern of government conduct that misled Calderon at his trial and which denied him an effective opportunity to defend himself.


 The following facts are disclosed by the transcript of the state court proceedings and the record in this case:


 The original charges against petitioner included LIW as a special circumstance. At the conclusion of the preliminary hearing, the municipal court judge found that there was probable cause to believe that petitioner had committed first degree murder with special circumstances. However, the judge specifically said, "I do not find that there has been sufficient evidence and it is purely speculative as to the LIW allegation."

 B. The information was then filed in state superior court, charging petitioner with the following crimes: Count 1: First degree murder. Special Circumstance: In the course of a robbery. Count 2: First degree murder. Special Circumstance: In the course of a robbery. Special Circumstance: Multiple murders. Count 3: Robbery


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