P. v. Church

Filed 3/14/07 P. v. Church CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Robert Matthew Church (Church) appeals from his conviction of the murder of Zachary Stone (Zachary).[1] He claims, inter alia, that the trial court erred in admitting certain evidence, that the court erred in instructing the jury on lying in wait as a basis for first degree murder, and that insufficient evidence supported the jurys finding of the lying-in-wait special circumstance. We affirm.

II.

PROCEDURAL BACKGROUND

The Humboldt County District Attorney charged Church by information with first degree murder. (Pen. Code,  187, subd. (a).)[2] The information also alleged that Church discharged a firearm causing great bodily injury and death ( 12022.53, subd. (d)), and killed Zachary by lying in wait ( 190.2, subd. (a)(15)).

Following trial, the jury found Church guilty of first degree murder, and found the firearm and lying-in-wait allegations to be true. The court sentenced Church to life in prison without the possibility of parole. This timely appeal followed.

III.

FACTUAL BACKGROUND

In the early morning of March 20, 2003,[3] Tommie Doyle (Doyle) brought Humboldt County law enforcement officers to Zacharys body. The body was located near Alderpoint Road and Dyersville Loop Road, in Humboldt County. Zacharys truck was found off the roadway at the McCann Bridge. Zachary had been killed by a gunshot wound to the back of his head.

Church and Zachary both grew and sold marijuana. Zachary also had an automotive shop in Redway, and was friends and partners with Frederick Richard Hoss (Hoss). Zacharys wife Bria worked manicuring marijuana for Zachary and Shane Miller (Miller), another marijuana grower.[4] Bria and Zachary were separated from about June 2002 through November 2002. During that time, Bria and Miller had a relationship. At the time of Zacharys killing, Zachary and Bria were attempting to reconcile, and he often stayed at her house.

Animosity developed between Church and Zachary in 2002, and Church told a number of people that he intended to kill Zachary. Church telephoned Barbara Truitt (Truitt), Zacharys mother and Churchs stepmother. He informed her [Zachary] had some things that he needed to do, and [Zachary] knew what they were. And [Truitt] better tell [Zachary] that he needed to do them because otherwise he was going to kill himkill him. And it was only out of respect for [Truitt] that he hadnt killed him already. Church called her again a few weeks later when [h]e was a fugitive, asking her for money. Truitt did not give him money, but visited him later after he was in jail.[5] During the visit, Church told her that [Zachary] knew what he needed to do, and he better do it or he was going to be facing all kinds of charges, assault charges, and worse.

Church came to Doyles cabin about 5:00 a.m. one morning in the fall of 2002, and told Doyle he had been l[ying] in wait with an AR-15 to kill [Zachary] when he showed up at the shop in Redway. When Zachary did not arrive, Church said he went to [Hosss] house to kill him.[6] Church entered Hosss home uninvited at 2:00 or 3:00 a.m. Hoss was not there, but his girlfriend Ligeia Hassall and her child were. Church told her that Hoss should not contact his family, and he would not contact Hosss family. Hassall told Hoss about the intrusion.

Doyle told Church that if he killed [Zachary], he would probably wind up in prison, spend the rest of his life in prison or be executed, because everybody knew that they had problems. And, there was no way he could kill [Zachary] and get away with it. Doyle proposed that he facilitate a meeting between Church and Zachary, where they could sit down and settle this peacefully without . . . [Zachary] dying and him going to prison. He also proposed a meeting between Church and Hoss, who wanted an apology from Church regarding the early-morning entry into his home.

Hoss and Church met at Doyles cabin before November 13, 2002, and Church apologized to Hoss. Doyle also arranged a meeting between Zachary and Church at his cabin, at which the two reached an agreement. Zachary would pay Church $25,000, give him a Camaro automobile, and attempt to persuade Ronnie Guerrero not to testify against him in the criminal case against Church then pending. Church agreed to return a wedding ring that belonged to Zachary. Doyle delivered the Camaro and $3000 on Zacharys behalf to Paul Hermes (Hermes), a friend of Churchs. Church had been staying at Hermess home in a room with a separate entrance. Church failed to deliver the ring, so Doyle retrieved the Camaro.

Zachary and Hoss were both in custody in early 2003 in connection with their arrests for a home invasion robbery. Miller was the victim of that crime.

At the time of Zacharys death, Church was romantically involved with Lauren Braverman. Her neighbor, Gemini Herzog, testified that in February, Braverman told her that she was afraid for herself and Zachary, because Church had told her he was going to kill Zachary. Brian Taylor testified that he and Doyle saw Braverman when they were visiting Hoss at the Humboldt County Jail. Taylor reviewed a letter Church had written her while in jail, asking for something back. Braverman explained that Church wanted his gun back, but she had disposed of it. Braverman testified, but had no recollection of these events. She denied disposing of the gun. She stated she had memory problems due to injuries sustained in a truck accident.

In March, after his release, Church telephoned Bria and asked to meet with her. Hermes dropped him off at the Miranda Cafe, where Church talked with Bria about his relationship with Zachary. Church told Bria that he felt Zach had betrayed him by shooting him in the leg. He also told her that Zach was dangerous and that he felt he needed to do something about Zach, and suggested that she might want to stay away from Zach.

Church attended a birthday party for Doyle on March 15th, and asked him to set up another meeting with Zachary. Church wanted to settle this peacefully so we can all quit looking over our shoulders and get on with our lives. Doyle arranged the meeting for March 17th, with the condition that no weapons be allowed. Hermes accompanied Church to the meeting. Though he knew about the no weapons condition, Hermes carried a concealed .45-caliber pistol. Hermes testified he did not tell Church he had the pistol, which was for his own personal safety. Zachary never arrived. At the request of Church and Hermes, Doyle arranged another meeting between Church and Zachary for the next evening, which Hermes did not attend. Hermes testified he did not care for Zachary, and did not trust Doyle.

Shortly before 8:00 p.m. on the evening of March 18th, Zachary told his wife Bria that he was going to Doyles cabin to meet Church. Zachary stopped at Josh Moodys home, at the bottom of the driveway to Doyles cabin, for a few minutes, and told him he was on his way to Doyles.

Zachary arrived at Doyles cabin at 8:00 p.m. Doyle searched him for weapons, finding none. Zachary was sitting in a chair inside the cabin when Church arrived alone a short time later. Doyle was on the porch when Churchs truck pulled up, and waited for him there. As Church approached the steps of the cabin, he opened his coat and pulled out a sawed-off double-barreled shotgun and a .41 Magnum revolver, and pointed them [in Doyles] direction as he came up the stairs. Church told Doyle to back up. Doyle complied, and Church entered the cabin with the guns pointed at Zachary. Church pointed one of the guns at Doyle, saying Back up Tommy, right now or Ill kill you. I ought to kill you anyway for hanging out with Zach. Doyle backed up into his kitchen, and Church hit Zachary in the head with the revolver. Zachary went down, hitting the wall and leaving blood, and the revolver went off. Church fired another round between Zachs legs, to get him up, and it worked.

Zachary got up, asking Doyle [W]hats going on? Church grabbed Zachary and marched him out the front door. Doyle bolted from the kitchen to the door, where he heard a gun go off. He stepped outside, and saw Zachary on the ground with his brains . . . scattered.

Church asked Doyle [a]re you with me on this? Doyle, not wanting to make a commitment or further antagonize Church, responded Im here, aint I? Church picked up a tarp from near the cabin and wrapped Zacharys body in it. He and Doyle loaded the body into Zacharys pickup truck. At Churchs request, Doyle brought him some cleaning supplies, which he used to clean up the blood and the brains and the dirt. Church put them in a green bucket, and placed it in the pickup truck. Police later found Churchs fingerprints on a bottle of lemon cleanser in Doyles cabin. Church poured a flammable liquid on the ground where Zacharys body had been, and set it on fire. He also cleaned the blood from the walls of the cabin. Church, driving Zacharys truck, instructed Doyle to follow him.

Also per Churchs instructions, Doyle called Hermes and asked him to meet them with fresh clothes for Church on Dyersville Loop Road. Hermes testified that Doyle called him asking for a change of clothes because it was an emergency. He drove to the spot indicated with the clothes, but left about half an hour later after no one arrived. Doyle and Church drove to the indicated spot and waited for about 10 minutes. While they were waiting, Church told Doyle that if youre worried about me capping you for being an eyewitness to this, you dont have to worry about that, brother, because I love and respect you. I wouldnt do that to you.

When they did not meet Hermes, Church and Doyle drove onto a dirt road, where Church pulled Zacharys body over the edge of an embankment. Church cleaned the back of the truck with water and newspapers. The men drove further down the road, and Church disposed of the tarp and some other things. Church then drove Zacharys truck onto a damaged bridge and left it. Church and Doyle returned to Doyles cabin in Doyles truck, and then went to Shane Millers home where Church got clean clothes and a duffle bag with weapons inside. The men drove to Sylvandale, where Church hid the duffle bag. Church and Doyle returned to Doyles cabin, where Church got in his truck and left.

On the evening of March 18th, Bria became concerned when Zachary did not return home. At about 10:00 p.m., she got in her car and drove by his automotive shop in Redway. When she did not find Zachary there, she went to the bottom of Tommie Doyles road and parked across the street. She waited there for two and a half to three hours. Bria saw Doyles truck return to the cabin, but could not see who was inside. She drove to another entrance to Doyles residence. Unable to see anything there, she drove by a bar parking lot in Garberville. She then drove by the caf in Miranda, and returned to her home at about 2:00 a.m. When she awoke later that morning, Zachary was not home. She learned that his truck had been found, and went to the location with friends. She spoke with Sheriff Swithenbank, and related Zacharys statement to her about going to meet Church at Doyles cabin. On the morning of March 20th, the coroner informed her that Zachary was dead.

Moody, Doyles neighbor, testified that he saw Zacharys truck leaving Doyles home on the evening of March 18th, between around 11:00 p.m. and midnight. Doyles truck was following it. Moody was suspicious because Zacharys vehicle ran through the gate at the bottom of the road without opening the gate.

Doyle was angry that Church had killed Zachary and violated his home, and he feared that Church would kill him. He decided to kill Church. Bria arrived at his cabin at about 10:00 a.m. on March 19th, looking for Zachary. Doyle had to lie to her to give himself time to find Church. When Doyle discussed his plan with his son-in-law, he realized killing Church would no longer [be] self defense. He decided instead to go to the police.

Doyle contacted the police, informed them that Church had killed Zachary, and showed them the location of Zacharys body. He testified under a grant of use immunity in regards to his possession of a firearm as a convicted felon.

IV.

DISCUSSION

A. Admission of Zacharys Statement to His Wife

Prior to trial, Church filed a motion to exclude evidence of Zacharys statement to his wife Bria on March 18th, telling her he was going to Doyles home to meet Church that evening. The trial court admitted the evidence under Evidence Code sections 1250 and 1252, instructing the jury that they consider it only as evidence of Zacharys intent. Church argues, however, that it was error to admit the statement for any purpose, claiming it was double hearsay, made under circumstances indicating a lack of trustworthiness, and denied him the opportunity for cross-examination under the Confrontation Clause.

The trial court admitted Zacharys statement to his wife pursuant to Evidence Code section 1250, as an exception to the hearsay rule. Section 1250 provides in part: (a) Subject to section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: (1) The evidence is offered to prove the declarants state of mind, emotion or physical sensation at that time . . . ; or (2) The evidence is offered to prove or explain acts or conduct of the declarant. Evidence Code section 1252 provides that [e]vidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness.

Section 1250 codified the Supreme Courts holding in People v. Alcalde (1944) 24 Cal.2d 177. (See People v. Jones (1996) 13 Cal.4th 535, 548.) In Alcalde, the court held that the murder victims statement that she was going out with Frank, the defendant, that evening was admissible. It was a declaration of intent to do an act in the future, offered as evidence that the deceased had the intent she declared and that the intent was probably carried out, namely, that she intended to and did go out that night with a man named Frank. [] From the declared intent to do a particular thing an inference that the thing was done may fairly be drawn. (People v. Alcalde, supra, 24 Cal.2d at p. 185.)

In People v. Jones, supra, the court held under Evidence Code section 1250 that the murder victims statement to her daughter that she was going to Oakland with [defendant] and that if she didnt come back . . . to call . . . Aunty Bobbi was admissible. (13 Cal.4th at p. 548.) The court explained that evidence of a murder victims hearsay statement regarding her intent to accompany the defendant is not inadmissible under the hearsay rule when offered to prove conduct of the declarant in conformity with that state of mind. (Ibid.) The court also held that Evidence Code section 1252 did not preclude the statements admission, noting that it was not made under circumstances that suggested untrustworthiness, even though the victim was a prostitute who typically did not tell her daughter where she was going. (Id. at pp. 548-549.)

Church argues that Zacharys statement included another layer of hearsay because Doyle told Zachary about the meeting with Church. He also maintains that this made Zacharys statement untrustworthy, because Doyle may have killed Zachary, giving him a motive to lie. Churchs claim that Zacharys statement to Bria is double hearsay is unsupported. Zachary did not tell Bria that Doyle or anyone else told him that he was going to meet Church. Zacharys announcement to Bria was a statement of his own intent regarding his plans for the evening: he intended to go to Doyles residence to meet with Church. Zacharys statement to his wife was made under circumstances demonstrating trustworthiness. Bria knew of his dispute with Church, and Zachary was explaining where he was going. The statement, even if it was based on a false statement from Doyle to Zachary, is still evidence of Zacharys intent and his conduct in conformity with that intent.

Church also maintains that his right to confront the witnesses against him precludes admission of the statement made by Zachary, relying on Crawford v. Washington (2004) 541 U.S. 36 (Crawford). In Crawford, the court explained that  [w]here testimonial [hearsay] evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. (Id. at . . . p. 68 . . . .) Although the court did not comprehensively define the term testimonial, it noted, [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. (Id. at p. 68 . . ., italics [omitted].) It further noted that The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Id. at p. 59, fn. 9 . . . .) (People v. Combs (2004) 34 Cal.4th 821, 842.)

Crawford provides no aid to Church. Zacharys statement to his wife Bria was not testimonial in nature. Even if it were, Zacharys statement was admitted solely for a nonhearsay purpose: evidence of his intent to meet with Church at Doyles cabin that evening, and the jury was so instructed at the time of his wifes testimony. Zacharys comment was made under circumstances in which Zachary had no motive to lie. Churchs contention that his rights under the Confrontation Clause were violated by admission of the claimed hearsay statement from Doyle to Zachary fails because, even if Zachary had told Bria that Doyle told him about meeting Church, Doyle testified at trial and Churchs counsel cross-examined him. Accordingly, Zacharys statement to his wife was admissible under Evidence Code sections 1250 and 1252, and was not barred by the Confrontation Clause.[7]

B. Evidence of Churchs Prior Offense

Church urges that the court abused its discretion under Evidence Code section 352 by denying his motion in limine, allowing evidence that he was in custody from November 13, 2002, through March 3, 2003, due to his conviction of a misdemeanor offense against Ronnie Guerrero. We review the trial courts ruling for abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.)

Following denial of Churchs motion in limine, the parties stipulated to the following facts: On November 13th 2002, [Church] first appeared in court on a complaint charging him with an offense against Ronnie Guerrero. A preliminary hearing was held on November 27, 2002, at which time Ronnie Guerrero testified as a witness for the prosecution. The case was resolved as a misdemeanor and [Church] was released from jail on March 3rd, 2003. He was continuously in custody from November 13th until his release. The court admonished the jury that this evidence, the stipulation . . . is not being received to show that [Church] is a person of bad character or that he has a disposition to commit crimes. [] It is received to establish [Churchs] whereabouts from November 13th, 2002 to March 3rd, 2003, and may be considered by you only for the limited purpose of determining if it tends to show a motive for the commission of the crime charged. [] For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all other evidence in the case. You are not permitted to consider such evidence for any other purpose.

Church maintains that it was error to admit this evidence because it had minimal probative value regarding motive, and because it was cumulative. To the contrary, the evidence related to a possible motive for Church to kill Zachary, based on their agreement reached in 2002. Part of that agreement was that Zachary agreed to give Church a Camaro and $25,000, and try to convince Ronnie Guerrero not to testify against Church. Zachary gave the Camaro and $3,000 to Doyle, who delivered it to Hermes while Church was in custody. Later, Zachary told Doyle he wanted to back out of the deal. Doyle retrieved the Camaro and returned it to Zachary. Church was convicted in the criminal case involving Guerrero, who testified against him. Given that this evidence was highly probative of motive, and the jury was instructed to consider it only for that purpose and to explain Churchs whereabouts, we do not find any abuse of discretion in the trial courts ruling.

C. Lying in Wait

Church asserts that the court erred in instructing the jury on lying in wait as a basis for finding first degree murder,[8] claiming the instruction was not supported by the evidence. He also maintains that no substantial evidence supports the jurys finding on the lying-in-wait special circumstance allegation. Church argues there was no evidence of a substantial period of watching and waiting, an element required for both lying-in-wait first degree murder and the lying-in-wait special circumstance.

The same standard of review applies to both contentions. (People v. Hillhouse (2002) 27 Cal.4th 469, 498.)   On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]  . . . (People v. Poindexter, supra, 144 Cal.App.4th at p. 577, citing People v. Gurule (2002) 28 Cal.4th 557, 630.) The same rule applies to the review of circumstantial evidence. The court must consider the evidence and all logical inferences from that evidence in light of the legal definition of lying in wait. [Citation.] But it is the jury, not the appellate court, which must be convinced of the defendants guilt beyond a reasonable doubt. . . . If the circumstances reasonably justify the jurys findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding. [Citations.] . . . (Id. at p. 577, citing People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.) Only if it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the verdict may we reverse.. . . (Id. at p. 577, citing People v. Redmond (1969) 71 Cal.2d 745, 755, italics added.)

Lying-in-wait first degree murder and the lying-in-wait special circumstance both require (1) a concealment of purpose,^[[9]^] (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 . . . . (the Morales factors). (People v. Morales, supra, 48 Cal.3d at p. 557;  190.2, subd. (a)(15).) [T]he Morales factors, including the requirement of a substantial period of watching and waiting, are a part of the factual matrix required both for first degree murder under a lying-in-wait theory, and for the lying-in-wait special circumstance. (People v. Poindexter, supra, 144 Cal.App.4th at pp. 584-585, fn. omitted.) The lying-in-wait special circumstance requires a finding of an additional factorthe killing must be intentional. ( 190.2, subd. (a)(15).)

Prior to 2000, the special circumstance also required a finding that the murder was committed while lying in wait, as opposed to by means of lying in wait, as lying-in-wait first degree murder required. Proposition 18, effective March 8, 2000, changed the word while lying in wait in the special circumstances to by means of [lying in wait,] . . . arguably to essentially eliminate the immediacy requirement that case law had placed on the special circumstance.. . . (People v. Poindexter, supra, 44 Cal.App.4th 580, fn. 10, quoting People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 307.) Accordingly, after Proposition 18, the distinction between lying-in-wait first degree murder and the special circumstance is that the latter requires a finding of an intentional murder, while the former does not. ( 190.2, subd. (a)(15).)

Church challenges the sufficiency of the evidence regarding only the substantial period of watching and waiting factor, claiming there was no evidence of any period of watchful and waiting immediately preceding the killing. The substantial period of watching and waiting factor, however, does not require any minimum period of time. (People v. Poindexter, supra, 144 Cal.App.4th at p. 585.) The requirement that the period of watching and waiting be substantial is satisfied so long as it is sufficient to demonstrate that defendant had a state of mind equivalent to premeditation or deliberation and does not require that it be for any particular length of time. (Ibid., citing People v. Ceja, supra, 4 Cal.4th at pp. 1139-1140.)  We have never required a certain minimum period of time, only a period not insubstantial. . . . (People v. Poindexter, supra, 14 Cal.App.4th at p. 585, citing People v. Edwards (1991) 54 Cal.3d 787, 823.)

In People v. Edwards, supra, the court held that the amount of time necessary to walk a quarter mile, a matter of minutes, constituted a substantial period. (54 Cal.3d at pp. 825-826.) People v. Hardy (1992) 2 Cal.4th 86 required even less to find that the evidence supported a substantial period of watching and waiting. There, the evidence supported an inference that the defendants entered the victims bedrooms while they slept and murdered them while they were helplessly sleeping. (People v. Poindexter, supra, 144 Cal.App.4th at p. 585.) The Hardy court explained that [f]rom this evidence, the jury could reasonably conclude defendants concealed their murderous intention and struck from a position of surprise and advantage, factors which are the hallmark of a murder by lying in wait. Insisting on a showing that defendants actually watched the victims sleeping and waited a moment before attacking reads the law in too literal a fashion. (People v. Hardy, supra, 2 Cal.4th at p. 164.)

In People v. Combs, the court held that the evidence amply supported the lying-in-wait special-circumstance finding where defendant devised a ruse about needing a ride to trick the victim into driving him to the desert. Defendant sat in the backseat behind the victim with cords that he had obtained earlier, waiting for an opportune time to strangle her. After the victim parked the car, defendant surprised her by placing the electrical cord over her head and strangling her. (People v. Combs, supra, 34 Cal.4th at pp. 853-854.) Likewise in People v. Morales, supra, the court found sufficient evidence of lying in wait where the defendant sat behind the victim in car, waited until car was in a more deserted location, and then killed her. (48 Cal.3d at p. 555.)

Here, the evidence demonstrated that Church planned to kill Zachary for months. He told Zacharys mother that he was going to kill Zachary unless Zachary took care of some things, and indicated that he had not killed him already out of respect for [her]. There was evidence that Church also told Braverman that he intended to kill Zachary, and told Bria that Zachary was dangerous and he needed to do something about him. Church arrived at the planned second meeting at Doyles cabin with two guns, despite the no weapons condition of the meeting. He also knew that Doyle had enforced this condition the previous night by frisking him for weapons. There was substantial evidence from which the jury could find that Church intended to murder Zachary, and that the Morales factors were met. The court did not err in instructing the jury with CALJIC No. 8.25.

D. Constitutionality of Lying-in-Wait Special Circumstance

Church argues that section 190.2, subdivision (a)(15),[10] specifying that a finding of lying in wait is a special circumstance under which a defendant can be sentenced to death or life in prison without possibility of parole, is unconstitutionally vague. The jurys finding of this special circumstance was the basis for Churchs sentence of life imprisonment without possibility of parole.

Church claims that section 190.2, subdivision (a)(15) is unconstitutionally vague because it makes no meaningful distinction between the lying-in-wait special circumstance and lying in wait as a theory of first degree murder. In People v. Superior Court (Bradway), supra, 105 Cal.App.4th 297, the court considered and rejected this claim, explaining that the distinction between the two is that the lying-in-wait special circumstance requires intent to kill, while lying in wait as a basis for first degree murder does not. (Id. at p. 306.)

Church acknowledges this decision, but asserts that the dissenting opinion in Bradway is legally correct. We disagree. Our Supreme Court has repeatedly held that [t]he lying-in-wait special circumstance adequately distinguishes between first degree murders that are death eligible and those that are not. [Citations.] (People v. Combs, supra, 34 Cal.4th at p. 868.) The Supreme Court has noted that the two distinguishing characteristics of the special circumstance, before the enactment of Proposition 18, were that it required an intent to kill and that the murder occurs while lying in wait. While the Supreme Court has not yet considered whether only the intent to kill requirement of the special circumstance is sufficient to distinguish it from first degree murder based on lying in wait, it has consistently emphasized that this was one of the distinguishing factors between the two.[11]

Church asserts that the intent to kill requirement alone is not enough to distinguish lying in wait first degree murder from the special circumstance. He claims the intent to kill requirement of the special circumstance is synonymous with premeditation or deliberation, thereby eliminating any distinction between lying-in-wait first degree murder and the special circumstance, stating lying in wait [first degree murder] is the functional equivalent of intent to kill as well as premeditation and deliberation.

A killing can be intentional, however, without being premeditated or involving deliberation. (See People v. Rogers (2006) 39 Cal.4th 826, 867.) Premeditated means considered beforehand (People v. Stanley (1995) 10 Cal.4th 764, 795, citing People v. Perez (1992) 2 Cal.4th 1117, 1123), while  [d]eliberation refers to careful weighing of considerations in forming a course of action . . . . (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The requirement under section 190.2, subdivision (a)(15) of finding the defendant intentionally killed the victim adequately distinguishes between lying-in-wait first degree murder and the lying-in-wait special circumstance.

V.

DISPOSITION

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Rivera, J.

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[1] Because a number of individuals referenced in this opinion share the same last name, we refer to them by their first names, where appropriate, for clarity. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)

[2] All further undesignated statutory references are to the Penal Code.

[3] All further references to dates are in 2003, unless otherwise noted.

[4] Bria testified under a grant of use immunity in this regard.

[5] Church was continuously in custody [on another charge] from November 13th until his release on March 3, 2003.

[6] It is not clear from the record whether Church went to Hosss home to kill Hoss or Zachary.

[7] Church also argues that the claimed error was not harmless, noting that no evidence other than Doyles testimony put him at the murder scene. While we find no error, we note that Hermes testified that the men planned another meeting between Church and Zachary at Doyles cabin for the night of March 18th, and Churchs fingerprints were found on a bottle of lemon cleanser in Doyles cabin.

[8] The court instructed the jury on lying in wait with CALJIC No. 8.25 as follows: Murder which is immediately preceded by lying in wait is murder of the first degree. The term lying in wait is defined as a waiting and watching for an opportune time to act, together with the concealment by ambush or by some other secret design to take the other person by surprise, even though the victim is aware of the murderers presence. [] The lying in wait need not continue for any particular period of time, provided its duration is such as to show a state of mind equivalent to premeditation or deliberation. Although [CALJIC No. 8.25] does not verbatim track our language in [People v. ] Morales, [(1989)] 48 Cal.3d [527,] 557, we have repeatedly upheld the instruction, and continue to do so. [Citations.] (People v. Ceja (1993) 4 Cal.4th 1134, 1139; see also People v. Poindexter (2006) 144 Cal.App.4th 572, 581.) Church does not dispute that the instruction given was a correct statement of the law, though he urges that the lying-in-wait instruction was legally incorrect because there was no evidence of any period of watchful waiting . . . .

[9] The concealment which is required, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendants plan to take the victim by surprise. [Citation.] It is sufficient that a defendants 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. [Citations.] (People v. Morales, supra, 48 Cal.3d at p. 555.)

[10] Section 190.2 provides in part: (a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without possibility of parole if one or more of the following special circumstances has been found . . . to be true: . . . (15) the defendant intentionally killed the victim by means of lying in wait. ( 190.2, subd. (a)(15).)

[11] While People v. Combs, supra, 34 Cal.4th 821, was decided after the enactment of Proposition 18, the murder in that case was committed before Proposition 18 took effective.