CALCRIM No. 727. Special Circumstances: Lying in Wait - Before March 8, 2000 (Former Pen. Code, § 190.2(a)(15))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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727.Special Circumstances: Lying in Wait - Before March 8, 2000
(Former Pen. Code, § 190.2(a)(15))
The defendant is charged with the special circumstance of murder
committed while lying in wait [in violation of former Penal Code section
190.2(a)(15)].
To prove that this special circumstance is true, the People must prove
that:
1. The defendant intentionally killed <insert name of
decedent>;
AND
2. The defendant committed the murder while lying in wait.
A person commits murder while lying in wait if:
1. He or she concealed his or her purpose from the person killed;
2. He or she waited and watched for an opportunity to act;
3. Immediately after watching and waiting, he or she made a
surprise attack on the person killed from a position of advantage;
AND
4. He or she intended to kill the person by taking the person by
surprise.
The lying in wait does not need to continue for any particular period of
time, but its duration must be substantial and must show a state of mind
equivalent to deliberation and premeditation.
The defendant acted deliberately if (he/she) carefully weighed the
considerations for and against (his/her) choice and, knowing the
consequences, decided to kill. The defendant acted with premeditation if
(he/she) decided to kill before committing the act that caused death.
In order for a murder to be committed while lying in wait, the attack
must immediately follow the period of watching and waiting. The lethal
acts must begin at and flow continuously from the moment the
concealment and watchful waiting ends. If there is a detectable interval
between the period of watching and waiting and the period during which
the killing takes place, then the murder is not committed while lying in
wait. If you have a reasonable doubt whether the murder was committed
while lying in wait, you must find this special circumstance has not been
proved.
[A person can conceal his or her purpose even if the person killed is
484
aware of the other person’s physical presence.]
[The concealment can be accomplished by ambush or some other secret
plan.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on the elements of the special
circumstance. (See People v. Williams (1997) 16 Cal.4th 635, 689 [66 Cal.Rptr.2d
573, 941 P.2d 752].)
Prior to March 8, 2000, the lying in wait special circumstance required that the
murder be committed “while” lying in wait. Effective March 8, 2000, the special
circumstance was amended to require that the murder be committed “by means of”
lying in wait. Use this instruction only for homicides alleged to have occurred prior
to March 8, 2000. (See Domino v. Superior Court (1982) 129 Cal.App.3d 1000,
1007 [181 Cal.Rptr. 486] [“while lying in wait” distinguished from “by means of
lying in wait”]; People v. Morales (1989) 48 Cal.3d 527, 558 [257 Cal.Rptr. 64, 770
P.2d 244].)
For cases after March 8, 2000, use CALCRIM No. 728, Special Circumstances:
Lying in Wait - After March 7, 2000, Pen. Code, § 190.2(a)(15). (People v. Michaels
(2002) 28 Cal.4th 486, 516-517 [122 Cal.Rptr.2d 285, 49 P.3d 1032] [noting
amendment to statute].)
Give the bracketed paragraph stating that physical concealment is not required if the
evidence shows that the decedent was aware of the defendant’s presence. (People v.
Morales (1989) 48 Cal.3d 527, 554-556 [257 Cal.Rptr. 64, 770 P.2d 244].) Give the
bracketed paragraph stating that concealment may be accomplished by ambush if the
evidence shows an attack from a hidden position.
AUTHORITY
• Special Circumstance. Pen. Code, § 190.2(a)(15) (before March 8, 2000).
• While Lying in Wait. Domino v. Superior Court (1982) 129 Cal.App.3d 1000,
1007 [181 Cal.Rptr. 486]; People v. Morales (1989) 48 Cal.3d 527, 558 [257
Cal.Rptr. 64, 770 P.2d 244]; People v. Michaels (2002) 28 Cal.4th 486, 516-517
[122 Cal.Rptr.2d 285, 49 P.3d 1032].
• Physical Concealment Not Required. People v. Morales (1989) 48 Cal.3d 527,
554-556 [257 Cal.Rptr. 64, 770 P.2d 244].
RELATED ISSUES
Dual Purpose
“[I]f a person lies in wait intending first to rape and second to kill, then immediately
proceeds to carry out that intent (or attempts to rape, then kills), the elements of the
HOMICIDE CALCRIM No. 727
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lying-in-wait special circumstance are met.” (People v. Carpenter (1997) 15 Cal.4th
312, 389 [63 Cal.Rptr.2d 1, 935 P.2d 708].)
SECONDARY SOURCES
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
§§ 525-526.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[15][a], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[2][a][iv] (Matthew Bender).
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