P. v. Vanbatenburg

P. v. Vanbatenburg

Filed 9/30/08 P. v. Vanbatenburg CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Shari K. Silver, Judge. Affirmed.

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George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted William Vanbatenburg of the first degree murder of Beverly Snellings. The jury also found true, as a special circumstance, that the murder was committed by means of lying in wait. Based on this verdict, the trial court sentenced Vanbatenburg to life in prison without possibility of parole. On appeal Vanbatenburg argues that the lying in wait special circumstance must be reversed because it is not supported by sufficient evidence and because the phrase by means of lying in wait as used in the special circumstance statute is unconstitutionally vague on its face and as applied. We find no merit to these arguments and affirm the judgment.

FACTS AND PROCEEDINGS BELOW

Vanbatenburg and Snellings had an on-again-off-again relationship for approximately 25 years. Their adult daughter, Victoria Vanbatenburg, lived with Snellings at the time of the murder.

In April and May 2005, Vanbatenburg placed several calls to Snellings at work and came there to see her on at least one occasion. Snellings told Vanbatenburg that things were over between them, she did not want to speak to him and to stop calling her at work. During this same period Vanbatenburg left notes on Snellings car telling her the day and time he would be coming to her home. When he arrived Snellings would refuse to come to the door.

At 7:30 a.m. on June 3, 2005, Holly Terry, a neighbor of Snellings, looked out her window and saw Vanbatenburg sitting in his car in the parking lot of Snellings apartment building. He was still there when Terry looked out her window five minutes later. He had parked behind Snellings car, blocking it.

Sometime between 7:35 and 8:00 a.m. Vanbatenburg got out of his car and went to Snellings apartment. He stood outside her front door holding a bouquet of flowers and told Snellings he wanted to talk to her. Snellings told him they had nothing left to talk about and to go away. Snellings and Victoria then left their apartment and started walking to the parking lot, preparing to drive to work. Vanbatenburg followed, walking behind Snellings, saying nothing. When they arrived at the parking lot Vanbatenburg asked: Whos driving? and Snellings replied: I am. As Snellings stood next to the drivers side door of her car waiting for Victoria to put some clothes in the trunk, Vanbatenburg walked up behind Snellings and shot her.

A jury found Vanbatenburg guilty of first degree murder and found true the special circumstance allegation that Vanbatenburg committed the murder by means of lying in wait. The jury also found true various gun use allegations. The trial court sentenced Vanbatenburg to life without possibility of parole for the murder and imposed a consecutive term of 25 years to life for the discharge of a firearm causing death. The court imposed and stayed sentences of 20 and 10 years respectively for the discharge of a firearm and use of a firearm. Vanbatenburg filed a timely appeal.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE OF LYING IN WAIT

Vanbatenburg contends the evidence was insufficient to support the jurys finding that he murdered Snellings by means of lying in wait. (Pen. Code, 190.2, subd. (a)(15).) We disagree.

To qualify as a special circumstance, a murder by means of lying in wait requires (1) a concealment of purpose, (2) a substantial period of watching and waiting for a favorable or opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. (People v. Cole (2004) 33 Cal.4th 1158, 1205; citations omitted.)^[1]

Vanbatenburg concealed his purpose to kill Snellings by coming to her apartment with flowers and asking her to speak with him. He had made similar requests in the past and had never resorted to violence when Snellings refused his invitation to talk. Concealment of purpose does not require the defendant to physically conceal himself from the victim as in an ambush. It is sufficient that a defendants true intent and purpose were concealed by his actions or conduct. (People v. Morales (1989) 48 Cal.3d 527, 555, citation omitted.) In other words, there is a concealment of purpose if the killer engages in a pretense or subterfuge to keep the victim from raising her guard.

Following Snellings as she walked to her car constituted a substantial period of watching and waiting for an opportune time to act. A sufficient period of watching and waiting can consist of just a few minutes. (People v. Moon (2005) 37 Cal.4th 1, 23.) Watching and waiting from behind the victim is a classic example of murder by lying in wait. In People v. Combs (2004) 34 Cal.4th 821, 853, the defendant, whom the driver knew was sitting in the back seat of her car, waited until she parked the car in an isolated area then surprised her by reaching over the seat, placing an electrical cord over her head and strangling her.

A surprise attack on an unsuspecting victim occurred when, upon their arrival at Snellings car, Vanbatenburg shot Snellings from behinda position of advantage since it afforded Snellings no opportunity to duck, run or defend herself. (Cf.People v. Hillhouse (2002) 27 Cal.4th 469, 501 [defendant, who had displayed no previous sign of menace, waited until the victim was urinating at the side of the road before stabbing him].) Although Vanbatenburg had earlier opportunities to kill Snellings as they walked from her apartment to her car, the defendant need not strike at the first available opportunity. (People v. Ceja (1993) 4 Cal.4th 1134, 1145.) The surprise attack element is satisfied [a]s long as the murder is immediately preceded by lying in wait. (Ibid.)

II. VOID FOR VAGUENESS CLAIM

Vanbatenburg contends the lying in wait special circumstance statute, Penal Code section 190.2, subdivision (a)(15), is void for vagueness because it is indistinguishable from first degree murder based on lying in wait, Penal Code section 189. Our Supreme Court rejected that contention in People v. Lewis (2008) 43 Cal.4th 415, 516 noting that the special circumstance requires an intent to kill, while first degree murder by lying in wait does not.

Alternatively, Vanbatenburg argues that the special circumstance statute is unconstitutionally vague as applied to the facts of his case. Vanbatenburgs argument that the lying in wait special circumstance is too broad if the facts of his case fall within it is simply another way of making a facial attack on the statute, which we have rejected above. (People v. Lewis, supra, 43 Cal.4th at p. 517.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

HASTINGS, J.^*

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^[1] Proposition 18, an initiative approved by the voters in the March 7, 2000, Primary Election, and effective March 8, 2000, changed the language of the lying in wait special circumstance to delete the word while and substitute in its place by means of.

^* Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.