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The People v. Ronald Mitchell


December 2, 2011


(Super. Ct. No. 08F05934)

The opinion of the court was delivered by: Blease ,j.

P. v. Mitchell



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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.

Marietta Gray

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.

Bridgette Williams

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 Brisco

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

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.

Blanche Brisco

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 special circumstance." (People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 307.) Defendant contends the second element, a substantial period of watching and waiting, was missing here.

Defendant argues this was merely an escalating situation, and defendant's delay before shooting was attributable to his retrieving and/or loading a weapon as the women approached. He argues that doing things to enable him to shoot does not establish a period of watching and waiting.

There is no precise period of time that a defendant must watch and wait for an opportunity to act in order to satisfy the second element. (People v. Moon (2005) 37 Cal.4th 1, 23.) The purpose of this element "is to distinguish those cases in which a defendant acts insidiously from those in which he acts out of rash impulse." (People v. Stevens (2007) 41 Cal.4th 182, 202.) The period of time need merely be long enough to show a state of mind equivalent to premeditation or deliberation. (Ibid.)

Defendant's actions show a substantial period of watching and waiting. After luring the victims to his door by taking Malik's skateboard and telling Laprea that Brisco would have to come get it, defendant then waited out of sight inside his house until Brisco was on his front porch, continually telling the victims to wait outside his door. He immediately started shooting when he came out of the door.

Whether the victims waited at the door for two minutes or 20 minutes, defendant was using subterfuge to get them and keep them in a vulnerable position until he could start shooting. This was clearly an act of deliberation, and there is no merit to defendant's claim that the evidence does not support a substantial period of watchful waiting.


Evidence of Prior Acts of Domestic Violence

The trial court admitted the testimony of defendant's ex-wife Gray pursuant to both sections 1101 and 1109 of the Evidence Code, and further found pursuant to Evidence Code section 352, that the probative value of the evidence outweighed the probability that its admission would necessitate undue consumption of time, create undue prejudice, confuse the issues, or mislead the jury.

A. Evidence Code 1109 is Not Unconstitutional

Defendant first argues that Evidence Code section 1109 violates due process of law, both on its face and as applied in this case. He recognizes that the appellate courts of this state, following the Supreme Court's decision in People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), have concluded otherwise, but raises the issue in order to preserve it for further review.

Evidence Code section 1109, subdivision (a)(1) provides:

"Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."

Falsetta held that Evidence Code section 1108, which allows admission of prior sex offenses, does not violate due process. This court and other courts of appeal have uniformly rejected the argument that Evidence Code section 1109 violates due process, following the reasoning of Falsetta. (People v. Johnson (2000) 77 Cal.App.4th 410, 419; People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097, cert. den. sub nom. Escobar v. California (2001) 532 U.S. 1053 [149 L.Ed.2d 1026]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030.) We reject defendant's argument for the same reasons stated in these opinions.

Defendant argues that Evidence Code section 1109 was unconstitutional as applied in his case because it "unduly reduced the People's burden of proof, improperly permitted conviction based solely upon unduly inflammatory character evidence and status, and deprived appellant of a fair trial." This contention has no merit.

The jury was instructed that defendant was presumed innocent and that the People had the burden of proving him guilty beyond a reasonable doubt. The jury was also instructed that if it found defendant had committed the uncharged offenses, that finding was not enough to prove that defendant was guilty of the charged crimes, but that the People must still prove every charge and allegation beyond a reasonable doubt.

Defendant also argues Evidence Code section 1109 violated equal protection on its face and as applied to his case. He argues the section improperly singles out defendants accused of domestic violence and treats them differently from those accused of other crimes. This argument was rejected in People v. Jennings (2000) 81 Cal.App.4th 1301, 1310-1313 (Jennings).) Jennings held that the same equal protection analysis should be applied to sex offenses and domestic violence offenses. (Id. at p. 1311.) Like sex offenses, domestic violence offenses result in trials that are largely credibility contests because of their seriousness and the secretive nature of their commission. (Ibid.) This justifies the admission of relevant evidence of a defendant's commission of other like offenses, and provides a rational basis for the law. (Ibid.) Jennings, supra, held that the statute did not violate equal protection because "[t]he distinction drawn by section 1109 between domestic violence offenses and all other offenses is clearly relevant to the evidentiary purposes for which this distinction is made." (Ibid.) We agree with this reasoning.

B. Trial Court Exercised Discretion Appropriately

Defendant also argues the evidence of the incident involving Gray that occurred in 2000 should have been excluded pursuant to Evidence Code section 352. He argues the prior incident "was remote, uncertain, dissimilar to the charged shooting, and extravagant at best to show intentional attempted murder."

Evidence Code section 352 grants the court the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." We review the trial court's decision to admit evidence under this section for an abuse of discretion. (People v. Hamilton (2009) 45 Cal.4th 863, 930.)

The trial court admitted evidence of the incident involving Gray because it found the incident was not particularly remote in time, was similar in that it involved violence toward a spouse or girlfriend, and would not involve the addition of many witnesses. We will not reverse the trial court's decision unless it is arbitrary, capricious, or exercised in a patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The trial court did not abuse its discretion. It considered the relevant elements of Evidence Code section 352, and its decision was well within the dictates of the statute.


Prior Consistent Statements

Defendant argues the trial court erred in excluding evidence contained in an application for a restraining order against Brisco. He claims the hearsay statements contained in the restraining order should have been admitted as prior consistent statements pursuant to Evidence Code section 791.

Evidence Code section 791 provides:

"Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or

(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen."

The trial court allowed defendant to introduce into evidence a redacted application for a domestic violence restraining order. The police seized the application from defendant's house. The trial court did not allow defendant's hearsay statements made in support of the application to be admitted. These are the statements defendant claims the trial court erroneously excluded. He argues the excluded statements would have been relevant to bolster his self defense claim based on his fear of Brisco's family when they came at him the night of the shooting. He claims the excluded statements supported his claim that the family members were armed.

The excluded statements claimed: (1) that Brisco tried to cut defendant with a knife, threatened to kill him and his care worker, and broke his truck windshield while she was drunk and high on cocaine and marijuana; (2) that Brisco threatened to kill him and his care worker when he told her it was over between them, broke his windshield again, and broke a window in his house; (3) that Roosevelt threatened to shoot him and his care worker; (4) that Brisco and her family threatened to kill him and his care worker; and (5) that Brisco slapped him all the time and pushed him on his bad shoulder.

This is in marked contrast to defendant's testimony. In describing Brisco and her family the night of the shooting he stated: "I don't know what happened to them [Brisco's family], they was just all -- I don't know what was in them, they were totally different, I never seen them like that before." He testified that he "loved that whole family." He testified that the day before the shooting he had prepared a barbeque for Brisco and her family. Regarding Roosevelt, defendant testified that he was on "good terms" with Roosevelt, that he had no animosity toward him, and that "as a matter of fact, I supported him, come pick him up from his Juvenile Hall, take him to his Juvenile Hall appointments on what he had to do on weekends and so forth." Defendant stated he had "no problem" with Roosevelt.

Evidence Code section 791 clearly requires that the hearsay statement or statements sought to be admitted must be consistent with the witness's testimony. That was not the case here.

The prosecutor asked whether defendant's windows had been broken, and defendant admitted Laprea had broken his window. However, there was never any express or implied claim that defendant fabricated this testimony. In fact, Brisco herself testified that Laprea broke defendant's window.

Defendant also testified that Charles Brisco, Blanche's brother, pulled a gun on him, but this was not a statement made in the application for restraining order, and Charles Brisco was not present the night of the shooting.

The trial court correctly excluded the hearsay statements in the application for restraining order. The hearsay statements were not consistent with defendant's testimony for the most part, and to the extent they were consistent with his testimony, there was no claim, express or implied, that he fabricated that testimony.

To the extent defendant argues the exclusion of the evidence constituted a refusal to allow him to present a defense, we disagree. "'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.]' [Citation.]" (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) Where the trial court did not preclude defendant from presenting a defense, but merely rejected some evidence, any error is reviewed under People v. Watson (1956) 46 Cal.2d 818, to determine whether it is reasonably probable defendant would have achieved a more favorable result absent the exclusion of the evidence. (Ibid.) Defendant's due process right to present a defense does not include the right to present every bit of evidence he wants admitted. (People v. Milner (1988) 45 Cal.3d 227, 240, fn. 11.)

We conclude it is not reasonably probable defendant would have received a more favorable result. First, there was ample testimony presented by several witnesses that the relationship between defendant and Brisco was combative. There was other testimony that Laprea had been armed with a stick when she went to defendant's house the night of the shooting. Charles Brisco admitted he had previously threatened defendant. There was testimony regarding prior physical confrontations between Laprea and defendant. The hearsay statements defendant sought to admit were merely cumulative of the volatile nature of his relationship to Brisco and her family.

Second, defendant's self defense claim was patently unbelievable. According to defendant, he was at Brisco's apartment listening at the front door when he heard Laprea say to Frazier, "get your gun, we gonna go kill this old man." He walked back to his house, but did not lock his door. He did not call 911. Instead, he got his gun. Then he went to use the bathroom. Brisco and Laprea entered his house and attacked him. Laprea tried to take the gun from him and it went off. In another part of his testimony he claimed he shot into the air while he was on the ground. He shot into the air to scare them, and the next thing he knew someone says he shot her.

As the prosecutor argued below, defendant's claim that he was afraid for his life the night he shot Laprea and Brisco is inconsistent with the facts. "[I]f you hear a threat that someone is going to kill you, you're not going to rush to your house, not lock your door and just go to the bathroom. You're going to call 911."

Finally, defendant's account is completely at odds with the accounts of multiple witnesses that he told Brisco and Laprea to stay on the porch, that he was coming, and that he had something for Brisco.


Lying-in-Wait Instruction

Defendant argues the standard jury instruction on the lying-in-wait special circumstance given here was erroneous. He claims the instruction should have included an immediacy requirement.

The trial court gave the standard CALCRIM No. 728 instruction as follows:

"The defendant is charged with a special circumstance of murder committed while lying in wait in violation of Penal Code section 190.2(a)15. To prove that this special circumstance is true, the People must prove that the defendant intentionally killed Laprea Tyson, and the defendant committed the murder by means of lying in wait.

A person commits a murder by means of lying in wait if:

He concealed his purpose from the person killed;

He waited and watched for an opportunity to act, then he made a surprise attack on the person killed from a position of advantage, and he intended to kill the person by taking the person by surprise.

The lying in wait does not need to continue for any particular period of time, but its duration must be substantial and must show a state of mind equivalent to deliberations and premeditation.

The defendant acted deliberately, if he carefully weighed the considerations for and against his choice, and knowing the consequences and decided to kill. The defendant acted with premeditation if he decided to kill before committing the act that caused death.

A person can conceal his . . . purpose, even if the person killed is aware of the other person's physical presence.

The concealment can be accomplished by ambush or some other secret plan."

Although Penal Code section 190.2, subdivision (a)(15) states simply that the special circumstances applies if "[t]he defendant intentionally killed the victim by means of lying in wait[,]" defendant argues the jury should have been instructed that the defendant must have committed the murder while lying in wait or immediately thereafter. His reasoning is that this language is included in the instruction for first degree lying-in-wait murder, and it is incongruous that the requirement for the special circumstance would be less stringent than the requirement for the murder itself.

The instruction was a correct statement of law and to the extent defendant argues the instruction given should have been modified to add an immediacy requirement, such argument is forfeited because it was not raised below. (People v. Richardson (2008) 43 Cal.4th 959, 1022-1023.) As the court explained in People v. Superior Court (Bradway), supra, 105 Cal.App.4th at page 307, the voters passed Proposition 18 in 2000 to change the wording of the lying-in-wait special circumstance requirement to conform to the lying-in-wait language defining first degree murder. The change "essentially eliminate[d] the immediacy requirement that case law had placed on the special circumstance." (Ibid.)

There was no error in the instruction given.


Contrived Self Defense Instruction

Defendant argues it was error to give a jury instruction informing the jury that a person does not have a right to self defense if he provokes a fight or quarrel to create an excuse to use force because there was no evidence to support the instruction and because it was overbroad.

Defendant's overbreadth argument is that merely seeking a quarrel is insufficient to negate a claim of self defense. He claims a defendant must initiate a physical assault or commit a felony to lose the right to self defense.

The instruction given was a correct statement of the law. The jury was informed that a defendant may not claim self defense if he "provokes the fight or quarrel with the intent to create an excuse to use force." The court's instructions using the language of CALCRIM No. 3471 derives from People v. Hinshaw (1924) 194 Cal. 1, 26, wherein the court stated that it was a "recognized principle of law 'that self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for making a felonious assault.'"

To the extent defendant argues the instruction should have clarified the type of fight or quarrel a defendant must initiate to lose the right of self-defense, the issue is forfeited "because defendant did not request such clarification below." (People v. Jenkins (2000) 22 Cal.4th 900, 1020; People v. Guerra (2006) 37 Cal.4th 1067, 1138 ["Generally, a claim of instructional error is not cognizable on appeal if the instruction is correct in law and the defendant fails to request a clarification instruction."].)

Defendant's assertion that no evidence supported the instruction is without merit, and would not warrant a reversal in any event. The evidence showed that defendant came uninvited to Brisco's house and took her son's skateboard in order to lure her to his house, where he concealed himself before opening his door and firing his gun. On these facts, the court reasonably determined CALCRIM No. 3472 was appropriate. "A trial judge's superior ability to evaluate the evidence renders it highly inappropriate for an appellate court to lightly question his determination to submit an issue to the jury. A reviewing court certainly cannot do so where, as here, the trial court's determination was agreeable to both the defense and the prosecution." (People v. McKelvy (1987) 194 Cal.App.3d 694, 705.)

Even if we were to conclude there was insufficient basis for giving CALCRIM No. 3472, we would not reverse because the jury is presumed to disregard an instruction if it finds the evidence does not support its application. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.)


Instructions Regarding Other Domestic Violence

Defendant argues that even if Evidence Code section 1109 allowing evidence of prior acts of domestic violence is constitutional, the instruction given (CALCRIM No. 852) violated due process and jury trial standards because it permitted a finding of guilt based upon prior conduct, which was proven only by a preponderance of the evidence. Defendant's argument is unpersuasive.

The court gave this instruction at the close of the evidence:

"The People also presented evidence that the defendant committed domestic violence that was not charged in this case.

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged domestic violence.

Proof by a preponderance of the evidence is different, . . . 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 that 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 uncharged domestic violence, you may, but are not required, to conclude from the evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision, also conclude that the defendant was likely to commit and did commit attempted murder as charged here.

If you conclude that the defendant committed the uncharged domestic violence, 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 attempted murder. The People must still prove each charge and allegation of every charge beyond a reasonable doubt."

Defendant concedes that the California Supreme Court rejected his argument in People v. Reliford (2003) 29 Cal.4th 1007, 1016. The instruction considered in Reliford was the older CALJIC No 2.50.01, allowing evidence of a defendant's uncharged sex crimes. However, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit a certain type of offense (in this case domestic violence), and therefore likely to have committed the current offense. (See People v. Cromp (2007) 153 Cal.App.4th 476, 480 [regarding sexual offenses].) Therefore, we reject defendant's argument that the instruction violated his due process rights.

Defendant argues that the "instruction needs to explain that circumstantial evidence like prior offenses which is essential for guilt must be proved beyond a reasonable doubt." (Italics omitted.) He cites People v. James (2000) 81 Cal.App.4th 1343 in support of this proposition. James has no application here, because it involved the use of the pre-1999 versions of CALJIC Nos. 2.50.02 and 2.50.01. Those instructions permitted the jury to find by a preponderance of the evidence that the defendant had committed domestic abuse in the past, and to infer that the defendant committed the charged domestic abuse offense based on the past abuse alone. (Id. at pp. 1346-1347, 1349-1350.)

By contrast, the trial court instructed defendant's jury that the prior act of domestic violence was "only one factor to consider along with all the other evidence[,]" and that it was "not sufficient by itself to prove [guilt]. The People must still prove each charge and allegation of every charge beyond a reasonable doubt." This left no doubt as to the correct burden of proof necessary for a finding of guilt. The court did not err in giving the instruction.


Lying-in-Wait Special Circumstance

Defendant claims the lying-in-wait special circumstance is unconstitutionally vague as applied to him. He claims that a special circumstance must "genuinely narrow the class of persons subject to the death penalty as compared to other murder defendants[,]" and argues that this principle also applies to a sentence of life in prison without parole. He claims that the dual use of the same facts to support lying-in-wait first degree murder and lying-in-wait special circumstance violates the Eighth Amendment, federal due process and equal protection, cruel and unusual punishment guarantees, and deprived him of his state liberty interest in an informed jury determination on the issue.

Defendant recognizes that the California Supreme Court rejected the claim that the statute's vagueness violates federal and California standards of due process in People v. Morales, supra, 48 Cal.3d at page 557, but asserts the argument for the purpose of exhausting his state remedies.

The California Supreme Court has also "repeatedly" rejected the contention that the lying-in-wait special circumstance violates the Eighth Amendment "because it fails to narrow the class of persons eligible for the death penalty and fails to provide a meaningful basis for distinguishing cases in which the death penalty is imposed from those in which it is not." (People v. Lewis (2008) 43 Cal.4th 415, 515.) The lying-in-wait special circumstance requires an intent to kill, whereas lying-in-wait first degree murder does not. (People v. Superior Court (Bradway), supra, 105 Cal.App.4th at p. 311.) Assuming the Eight Amendment requires a special circumstance to genuinely narrow the class of persons subject to life without parole as opposed to other murder defendants, this is a sufficient distinction for narrowing the class of murderers subject to receiving a sentence of life without parole.


Cumulative Error

Defendant argues the cumulative effect of errors deprived him of due process and a fair trial. We have concluded there were no errors, accordingly no reversal is required.


Presentence Custody Credits

Defendant argues the abstract of judgment does not reflect an award of actual days in presentence custody. While this may constitute a technical error, we refuse to address it at this time, as defendant has been sentenced to life without the possibility of parole.


The judgment is affirmed.

We concur: RAYE , P. J. MURRAY , J.


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