CALCRIM No. 728. Special Circumstances: Lying in Wait - After March 7, 2000 (Pen. Code, § 190.2(a)(15))
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
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 [in violation of Penal Code section
To prove that this special circumstance is true, the People must prove
1. The defendant intentionally killed <insert name of
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
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
New January 2006
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 285, 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
• Physical Concealment Not Required. People v. Morales (1989) 48 Cal.3d 527,
554-556 [257 Cal.Rptr. 64, 770 P.2d 244].
• Definition of Lying in Wait. People v. Poindexter (2006) 144 Cal.App.4th 572,
582-585 [50 Cal.Rptr.3d 489].
“[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].)
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13[b], 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[a][iv] (Matthew Bender).
CALCRIM No. 728 HOMICIDE