People v. Superior Court (Bradway)

129 Cal.Rptr.2d 324

105 Cal.App.4th 297

The PEOPLE, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Gabriel John BRADWAY, Real Party in Interest.

No. D040580.

Court of Appeal, Fourth District, Division 1.

January 14, 2003.

As Modified January 16, 2003.

Review Denied April 9, 2003.^*

Paul J. Pfingst, District Attorney, Thomas F. McArdle, Anthony Lovett and Richard S. Armstrong, Deputy District Attorneys, for Petitioner.

Steven J. Carroll, Public Defender, Mark Kirkness, Matthew Braner, and Gary Nichols, Deputy Public Defenders, for Real Party in Interest.

HUFFMAN, J.

The People of the State of California petition for a writ of mandate commanding respondent court to vacate its order of May 24, 2002, granting real party in interest Gabriel John Bradway's motion to dismiss the allegation of special circumstances under Penal Code ¹ section 190.2, subdivision (a)(15) on grounds the statute, as amended in 2000 by the passage of Proposition 18 (Stats.1998, ch. 629, § 2, enacted as Prop. 18, approved by voters, Prim. Elec. (Mar. 7, 2000) eff. Mar. 8, 2000), is unconstitutionally vague, and to enter a new and different order denying the motion. The question essentially presented is whether the change in the wording of such special circumstance due to the 2000 amendment, from murder committed "while" lying in wait to "by means of lying in wait, renders the special circumstance unconstitutionally vague in violation of the United States Constitution. We answer the question in the negative and issue a writ of mandate to reinstate the lying-in-wait special circumstance for Bradway's trial.

BACKGROUND AND PROCEDURE

On November 5, 2001, Bradway was charged in a criminal complaint with first degree murder (§ 187, subd. (a)) by personal use of a deadly weapon (§ 12022, subd. (b)(1)) for the death of Julie Kelin on November 1, 2001. An amended complaint filed November 16, 2001, added a special circumstance alleging "lying in wait." (§ 190.2, subd. (a)(15).)

The evidence presented at a January 9, 2002 preliminary hearing showed that on November 1, 2002, Bradway had called 911 to ask for medical assistance for Kelin at her apartment, saying she had a headache and needed to go to the emergency room. Deputy sheriffs responding to the call found Kelin in her apartment bludgeoned and strangled to death. In her bedroom closet, sheriffs detectives found bloody clothing and a hammer with part of its handle sawed off.

Bradway was arrested later that evening, waived his Miranda² rights and spoke to a detective, telling him he had been planning to kill Kelin for about a month. Bradway said he had arranged, as a ruse, to go to Kelin's apartment to use her computer and pick up his pager, but that his real reason was to kill her. In preparation of such plan, he had sawed off part of the handle of a friend's hammer so he could hide it in his waistband.

When Bradway arrived at Kelin's apartment, she let him in and he made sure he was nice so as to make her feel comfortable. He was in the apartment for 10 to 20 minutes "before he destroyed her." During that time, they walked into the master bedroom to use her computer. When she noticed there was no paper in the printer, she walked to the closet, obtained some, then got down on her knees to place it in the printer which was on the floor. Bradway, who stood behind, and over her, took out the hammer and struck Kelin on the head several times. He "caught her by surprise," but then to his surprise, she fought back. He then threw her on the bed and strangled her with both hands and a telephone cord he wrapped around her neck. Bradway estimated the murder took 30 minutes to complete.

Afterwards, Bradway noticed a large amount of blood on his clothes, so he removed his clothing and placed it inside the master bedroom closet with the hammer. He put on a pair of Kelin's jeans and a Padres shirt, and left. He then made the 911 call so Kelin's daughter would not come home from school and discover her mother's body.

In a subsequent search of defendant's apartment, deputies found Kelin's clothing he had worn from her apartment, a pair of bloody socks, and the sawed-off handle to the hammer. Bradway conceded that his actions in making up a false reason for going to Kelin's apartment and making her feel comfortable were "setting the trap."

After hearing this evidence, the magistrate found there was sufficient probable cause to hold Bradway to answer to the murder charge and the deadly weapon use allegation, but declined to make any finding on the lying-in-wait special-circumstance allegation.

On January 28, 2002, Bradway was charged by information with first degree murder and was alleged to have personally used a deadly weapon in committing such crime. In addition the People realleged that the murder was committed under the special circumstance of lying in wait.

On March 8, 2002, Bradway filed a motion to dismiss the lying-in-wait allegation under section 995 on grounds there was insufficient evidence presented at the preliminary hearing to support the allegation, and section 190.2, subdivision (a)(15), as modified by the voters in 2000 through the passage of Proposition 18, is unconstitutionally vague and leads to arbitrary and capricious application of the death penalty in violation of both the Eighth Amendment and due process. The People's response filed on April 8, 2002, addressed only the factual basis for the allegation. Bradway's reply filed May 1, 2002, noted that his constitutional issue was unanswered.

On May 10, 2002, the court heard argument on the motion, deferring any ruling to May 24, 2002. The court, however, tentatively noted it found sufficient evidence to support the lying-in-wait special circumstance, but was having difficulty with the change in language in the special circumstance made by Proposition 18; it did not know whether the fact the first degree murder by lying in wait and the lying-in-wait special circumstance now had the same language would be enough for Bradway to raise an issue of unconstitutional vagueness. The People's position at the hearing was that the matter regarding constitutionality should wait until trial.

Nevertheless, on May 20, 2002, the People filed points and authorities regarding the constitutionality of section 190.2, subdivision (a)(15), asserting Bradway had no standing to contend that section was unconstitutionally vague or leads to arbitrary and capricious application of the death penalty because the People were not seeking the death penalty in this case. Alternatively, the People argued that Bradway was applying the Eighth Amendment to the lying-in-wait special circumstance too narrowly and that even after the language change brought by Proposition 18, the lying-in-wait special circumstance, which requires the specific intent to kill, remained distinguishable from lying-in-wait first degree murder, which does not contain such requirement.

On May 24, 2002, the court pronounced its ruling in open court and filed its written order, holding there was a sufficient factual basis for the lying-in-wait allegation presented at the preliminary hearing, but that the Proposition 18 amendment had rendered section 190.2, subdivision (a)(15) unconstitutionally vague. In doing so, the court noted the effect of the amendment "was to make the language of the special circumstance identical to the crime of first-degree murder by means of lying in wait as set forth in Penal Code sections] 187 and 189. The only substantive difference between the two statutes, since the amendment, is that in order for the special circumstance to be applicable it must be proven that the killing was intentional." Then relying on Houston v. Roe (9th Cir.1999) 177 F.3d 901 {Houston), which found "the temporal requirement" contained in the special circumstance of lying in wait as explained in Domino v. Superior Court (1982) 129 Cal.App.3d 1000, 181 Cal.Rptr. 486 (Domino)³ saved the circumstance from being unconstitutionally vague (Houston, supra, 177 F.3d at pp. 907-908), the court found the lack of such requirement after the 2000 amendment to be insufficient to give fair notice of what the lying-in-wait special circumstance prohibits and definite guidelines to prevent "`arbitrary or to provide discriminatory enforcement.' [Citation.]" The court determined it could not find a "meaningful distinguishable line between first degree murder lying in wait and special circumstances lying in wait" in cases where a person has the intent to murder and does so by means of lying in wait. The court indicated it found no direction in the statute to assist in the decision of choosing to subject a person to the death penalty, and found that the amendment to section 190.2, subdivision (a)(15) made it unconstitutionally vague. Based on such ruling, the court granted Bradway's motion to dismiss the lying-in-wait special circumstance allegation.

The People filed a notice of appeal from the order dismissing the lying-in-wait special circumstance on July 29, 2002. (People v. Bradway, D040591.) On August 5, 2002, the People filed the instant petition for writ of mandate, claiming the appeal is inadequate because it would require retrial on the special circumstance allegation. Finding the petition raises an important question, which is likely to recur, on September 4, 2002, we issued an order to show cause why the relief requested in the petition should not be granted and set a briefing schedule for the formal return and reply. Subsequently we have abated the appeal, stayed the December 9, 2002 trial date pending further order of this court, and heard oral argument.

DISCUSSION

Before considering the essential question raised by this petition, i.e., whether the change in the wording of section 190.2, subdivision (a)(15) made by Proposition 18 in 2000, from murder committed "while" lying in wait to "by means of lying in wait, renders the special circumstance unconstitutionally vague...