Hillhouse

*480 Opinion

A jury convicted defendant of the first degree murder (Pen. Code, § 187), 1 robbery (§ 211), and kidnapping for robbery (§ 209, subd. (b)) of Brett Schultz and found true special circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)), robbery murder (§ 190.2, subd. (a)(17)), and kidnapping murder (§ 190.2, subd. (a)(17)). The jury also found that defendant personally used a deadly weapon, a knife, as to all counts. (§ 12022, subd. (b).) After a penalty trial, the jury returned a verdict of death, and the court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).)

We reverse the kidnapping for robbery conviction and kidnapping-murder special circumstance and otherwise affirm the judgment.

I. Facts

A. Guilt Phase

1. Prosecution Evidence

The evidence showed that sometime during the night of March 8 or the morning of March 9, 1991, defendant and his brother, Lonnie Hillhouse, drove the victim, Brett Schultz, to a location in the Chico area, where, according to Lonnie, defendant stabbed him to death. Defendant and Lonnie took the victim’s truck and other property. Lonnie was originally a codefendant in this case, but he pleaded guilty to…

I concur in the majority opinion, except that I would reverse the lying-in-wait special-circumstance finding, because it is not supported by substantial evidence.

“As construed by the United States Supreme Court, the Eighth Amendment requires that a death penalty law ‘rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not’ [citation], and establish ‘rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold.’ [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 697 [ 63 Cal.Rptr.2d 782 , 937 P.2d 213 ].)

In California, this narrowing function is performed by requiring a finding that the murder involved special circumstances before a defendant is eligible to receive the death penalty. (Pen. Code, § 190.2) “[T]he special circumstances serve to ‘ “guide” ’ and ‘ “channel” ’ jury discretion ‘by strictly confining the class of offenders eligible for the death penalty.’ [Citation.]” (People v. Bacigalupo (1993) 6 Cal.4th 457, 467 [ 24 Cal.Rptr.2d 808 , 862 P.2d 808 ].) In order to perform this constitutionally required function, a special…

Justice Moreno in his concurring and dissenting opinion disagrees with the majority that substantial evidence supports the lying-in-wait special circumstance. Although the evidence is not strong, I agree with the majority that it is sufficient to support this special circumstance. I reiterate a concern, however, that I expressed nearly a decade ago in a concurring and dissenting opinion in People v. Ceja (1993) 4 Cal.4th 1134, 1146 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ], where I said: “Recent decisions of this court have given expansive definitions to the term Tying in wait,’ while drawing little distinction between Tying in wait’ as a form of first degree murder and the lying-in-wait special circumstance, which subjects a defendant to the death penalty. [Citations.] Constrained by the principle of stare decisis, I concurred in the more recent of these decisions, which were reached after I joined this court. I have a growing concern, however, that these decisions may have undermined the critical narrowing function of the lying-in-wait special circumstance: to separate defendants whose acts warrant the death penalty from those defendants who are ‘merely’ guilty of first degree…

A jury convicted defendant of the first degree murder (Pen.Code, § 187), [1] robbery (§ 211), and kidnapping for robbery (§ 209, subd. (b)) of Brett Schultz and found true special circumstance allegations of lying in wait (§ 190.2, subd. (a)(15)), robbery murder (§ 190.2, subd. (a)(17)), and kidnapping murder (§ 190.2, subd. (a)(17)). The jury also found that defendant personally used a deadly weapon, a knife, as to all counts. (§ 12022, subd. (b).) After a penalty trial, the jury returned a verdict of death, and the court imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).)

We reverse the kidnapping for robbery conviction and kidnapping-murder special circumstance and otherwise affirm the judgment.

The evidence showed that sometime during the night of March 8 or the morning of March 9, 1991, defendant and his brother, Lonnie Hillhouse, drove the victim, Brett Schultz, to a location in the Chico area, where, according to Lonnie, defendant stabbed him to death. Defendant and Lonnie took the victim's truck and other property. Lonnie was originally a codefendant in this case, but he pleaded guilty to second degree murder and testified at trial.

Lonnie…