Criminal Law

728. Special Circumstances: Lying in Wait - After March 7, 2000, Pen. Code, § 190.2(a)(15)

The defendant is charged with the special circumstance of murder committed by means of lying in wait.

To prove that this special circumstance is true, the People must prove that:

1. The defendant intentionally killed <insert name of decedent>;


2. The defendant committed the murder by means of lying in wait.

A person commits a murder by means of 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. Then he or she made a surprise attack on the person killed from a position of advantage;


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 or 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.

[A person can conceal his or her purpose even if the person killed is aware of the other person's physical presence.]

[The concealment can be accomplished by ambush or some other secret plan.]

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].)

Effective March 8, 2000, the special circumstance was amended to require that the murder be committed "by means of" lying in wait rather than "while" lying in wait. (People v. Michaels (2002) 28 Cal.4th 486, 516-517 [122 Cal.Rptr.2d 185, 49 P.3d 1032] [noting amendment to statute]; People v. Superior Court (Bradway) (2003) 105 Cal.App.4th 297, 309 [129 Cal.Rptr.2d 324] [holding amended statute is not unconstitutionally vague].) Use this instruction for cases in which the alleged homicide occurred on or after March 8, 2000.

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.


Special Circumstance. Pen. Code, § 190.2(a)(15).

Amended Statute Not Unconstitutionally Vague. People v. Superior Court of San Diego County (Bradway) (2003) 105 Cal.App.4th 297, 309 [129 Cal.Rptr.2d 324].

Physical Concealment Not Required. People v. Morales (1989) 48 Cal.3d 527, 554-556 [257 Cal.Rptr. 64, 770 P.2d 244].

Secondary Sources

3 Witkin & Epstein, California Criminal Law (3d ed. 2000), Punishment, § 445.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, §§ 87.13[15][b], 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).

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 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].)

(New January 2006)