P.v . Morgan

Filed 1/17/07  P.v . Morgan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of Riverside County.  Christian F. Thierbach, Judge.  Affirmed.

            Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steven T. Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

            A jury convicted defendant Robert Alexander Morgan of the first degree murder of Joe Valenza.  The jury also found true a special circumstance that defendant murdered Valenza while lying in wait.  The defendant was sentenced to life imprisonment without possibility of parole (LWOP).  On appeal, defendant argues that (1) there was insufficient evidence of the watching and waiting and the surprise elements of the lying-in-wait special circumstance; (2) the lying-in-wait special circumstance  is unconstitutional because it does not sufficiently narrow the class of murders eligible for the death penalty or LWOP; and (3) the trial court erroneously denied him pretrial custody credit.  We conclude that there was sufficient evidence to support the lying-in-wait special circumstance.  We also conclude that the lying-in-wait special circumstance comports with the Eighth Amendment.  Finally, we determine that the trial court's self-correction in awarding the defendant custody credit renders that issue moot.  As defendant's assignments of error are without merit, we will affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

            Joe Valenza, the murder victim, and his friend Johnny Lozano were drinking at a bar when the defendant batted around a pool table light, flicking it on and off, making it difficult to see in an already darkened bar.  Brianne Leon, the bartender, asked defendant to stop.  A while later, defendant again turned off the pool table light, causing the bar's patrons to be irritated by his behavior.  This time, Leon yelled at defendant to stop, causing everyone in the bar to turn around to look at him.  Valenza looked over his shoulder at the defendant  but because his glance lingered too long, it made the defendant think that Valenza was staring and â€