(Super. Ct. No. 08F05934)
The opinion of the court was delivered by: Blease ,j.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Ronald Mitchell shot and killed Laprea Tyson, and shot and wounded Tyson's mother, Blanche Brisco, when the two women went to defendant's house to retrieve a skateboard defendant had taken from Blanche Brisco's 13 year-old son, Malik. There was evidence that defendant took the skateboard in order to lure Blanche Brisco, with whom he was having a relationship, to his house. After telling the women to wait by the front door because he had something to give Brisco, defendant opened his door and immediately began shooting.
A jury convicted defendant of the first degree murder of Laprea Tyson, and found as a special circumstance that he committed the murder while lying in wait. The jury also found true an enhancement to count one that defendant intentionally and personally discharged a firearm in the commission of the offense, causing great bodily injury to the victim. The trial court sentenced defendant to life without the possibility of parole for the murder with special circumstances, plus 25 years to life for the enhancement. The jury also convicted defendant of the attempted murder of Blanche Brisco, and found that he intentionally and personally discharged a firearm in the commission of the offense, causing great bodily injury to the victim. For this crime, the trial court sentenced defendant to a consecutive term of 14 years to life, plus 25 years to life for the firearm enhancement. Defendant thus received life without the possibility of parole, plus 64 years to life.
He argues there was insufficient evidence to support the lying-in-wait special circumstance, the trial court erred in admitting evidence of his prior acts of domestic violence, the trial court erred in excluding prior consistent statements he made in an application for a restraining order, the jury instructions on the lying-in-wait special circumstance and contrived self defense were erroneous, the instruction regarding other domestic violence violated due process and jury trial standards, and the lying-in-wait special circumstance is unconstitutionally vague as applied to him.
We find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The shooting occurred shortly after midnight on July 16, 2008. Brisco had begun dating defendant a little over a year earlier. She was still married to Ken Frazier, but they had separated. Brisco and her family lived across the street from defendant. She had four children: 13 year-old Malik, 17 year-old Roosevelt, 18 year-old Andrea, and 20 year-old Laprea.
On the afternoon before the shooting, Brisco got off of work at 3:00 p.m. Defendant drove her home, and they sat around talking, listening to music, and playing cards on his front porch. They did not argue. Brisco went home around 5:00 or 6:00 p.m. Laprea and Frazier showed up a couple of hours later. Defendant was sitting on his front porch when the two walked up, and defendant said, "that nigger over there again." Brisco answered that he (Frazier) was visiting.
Around 8:00 or 9:00 p.m., defendant came over to Brisco's house, knocked on the door and tried to push his way in. He said he wanted to talk to Brisco. Laprea answered the door. She told defendant that Brisco did not want to be bothered. Defendant told her, "tell your mom to come across the street. I've got something for her."
Brisco sat up a while in her bedroom talking to Frazier. Brisco told Frazier that she did not want to "mess around" with defendant anymore because he was "doing too much stuff[.]" As she was telling Frazier this, she kept hearing something on the side of the house, and she thought defendant was listening in on their conversation, but she did not know for sure. She got up to check on the others in the house. Her sons, Roosevelt and Malik, and her niece and nephew were all asleep in the living room.
Brisco and Frazier kept talking, and eventually dozed off in the bedroom. Shortly after midnight, defendant knocked loudly on Brisco's front door and opened it. Defendant asked where Brisco was, and he was told she was in the bedroom. Everyone in the living room, including Laprea, told defendant to go home. Defendant kept yelling that he needed to talk to Brisco. Defendant said, "I could have killed all of you, mother fuckers." Defendant was belligerent, and told them to wake up Brisco, to tell the bitch to come to the door, and to tell her to come across the street because he had something for her. Defendant left, but he took with him a skateboard that belonged to Malik. Laprea asked defendant to give the skateboard back, but defendant said, No, tell your mother to come get it."
Laprea woke up her mother and told her what had happened. Both women went across the street to defendant's house. Laprea was ahead of her mother, and was already on defendant's porch when Brisco left the house. Dabyus, Brisco's nephew, went over with Brisco. He stayed on the bottom step, while Brisco and Laprea went up on the front porch. Laprea was holding a stick. She told defendant to open the damn door so she could get her brother's skateboard. Roosevelt went up to the porch to try to get Laprea to get off the porch.
Defendant's front door was open, but his security screen was closed. The women could see the skateboard inside the house. Brisco told defendant to open the door and give her the skateboard. Defendant said, "I'm going to open it, hold on, just a minute. I'm gonna open it, you gonna see, I'm going to open it." Brisco told him to quit playing and open the door. Defendant responded, "I'm going to show you, I'm going to open the door in a minute." He said, "Just wait, you'll see what is taking so long." Brisco estimated that they were outside trying to get defendant to open the door for 10 to 15 minutes, however Roosevelt thought defendant only went inside for about two minutes. Defendant kept telling Brisco that he was coming, and that he would be there in a minute.
The next thing Brisco knew, the door opened and defendant started shooting. He shot Laprea in the head, and she fell to the ground. He shot Brisco, but she ran away, bleeding. Defendant fired the gun four or five times.
Laprea died of two gunshot wounds to the head. Brisco received a bullet wound to the right side of her chest. She suffered a significant amount of internal bleeding, and her surgeons were unable to remove the bullet.
Over defendant's objection, the trial court allowed several witnesses to testify to prior acts of violence committed by defendant.
Gray married defendant in August 2000. She decided to get a divorce about four months later. When she told defendant she wanted a divorce, he went into a rage. On December 5, 2000, she was driving down Franklin Boulevard around 9:00 a.m., when defendant started chasing her in his car. He kept bumping her bumper, and he hit the side of her car. She drove a few blocks, jumped out of the car, and screamed that he was trying to kill her. Gray ran into a meat company, and defendant chased after her. By then, the police had arrived.
Williams lived across the street from defendant. She had witnessed arguments between defendant and Brisco. On one occasion before the shooting, she heard defendant tell Brisco, "I'll kill you bitch." She also saw defendant break Brisco's window. She could not remember what he said when he broke the window, but his tone of voice was mad.
Charles is Blanche Brisco's brother. On August 20, 2007, Charles was at his sister's house when defendant came over to talk to Blanche Brisco. Defendant was angry at her because she owed him money. Charles Brisco told defendant he had to leave. Charles and Laprea were standing outside. Defendant got in his truck, drove to the corner of the block, then came back and tried to run over Charles Brisco and Laprea. A police officer happened to be driving by and saw the whole thing, but Charles did not want to press charges.
Zina Tarver is Blanche Brisco's sister. In December 2007, defendant came to her home. She heard him screaming a bad word, and the windows in her car were broken. She filed a police report. One time defendant left a message on her answering machine saying he was a walking time bomb and that he was going to kill the whole family.
Brisco testified to several of defendant's prior acts of violence. She testified that the time he broke Tarver's car windows, she was at Tarver's house, and he came over and started calling her names. He drove off for about 10 minutes, then drove back and broke Tarver's car window. Although he denied breaking the window at the time, he later admitted doing it. Another time when she was at Tarver's, he left a message on the phone, saying he would "kill all you F'ing Briscos . . . and your blind ass momma."
Another time in July 2007, defendant wanted Brisco to go somewhere with him, but she did not want to go. He got angry, grabbed her throat, started choking her, and put her in a headlock. Laprea saw them, told defendant to let her mother go, then picked up a bike wheel and hit him in the mouth with it. The police were called on this occasion, but no one was arrested.
On another occasion, they got into an argument when Brisco would not do something defendant wanted her to do. He hit her in the mouth and knocked out a tooth. Another time he broke a window in her apartment when they got into an argument. Laprea broke out one of his windows in retaliation.
Defendant testified in his own defense. He admitted firing a revolver, but claimed it was in self defense. He claimed he was afraid for his life because there was a mob coming at his door with knives and sticks and a gun.
Lying-in-Wait Special Circumstance
Defendant contends the evidence was insufficient to support the lying-in-wait special circumstance. An intentional murder must include: "'(1) a concealment of purpose, [and] (2) a substantial period of watching and waiting for an opportune time to act[.]'" (People v. Sims (1993) 5 Cal.4th 405, 432, quoting People v. Morales (1989) 48 Cal.3d 527, 557.) Prior to 2000, the special circumstance also required a finding that the attack occur immediately after the period of watching and waiting. However, Proposition 18, effective March 8, 2000, changed the wording of the special circumstance to require that the murder occur "by means of" lying-in-wait instead of "while" lying-in-wait. This "eliminate[d] the immediacy requirement that case law had placed on the ...