Error and/or relief
The defendant was charged with first degree murder under two theories–deliberation and premeditation, and lying in wait. The jury was not required to agree unanimously on the theory. He was convicted of first degree murder, along with a count of attempted murder with premeditation and deliberation. We conclude that insufficient evidence supports the finding of lying in wait. One of the elements of lying in wait, namely, “a substantial period of watching and waiting for an opportune time to act,” is not supported by substantial evidence. That conclusion requires us to reverse the finding on the lying-in-wait special circumstance, but it does not require a reversal of the first degree murder convictions, as they are supported by the alternative theory of premeditation and deliberation.
First Holding:
The lying-in-wait special circumstance requires an intentional murder, committed under circumstances that include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) a surprise attack on an unsuspecting victim from a position of advantage It includes the elements of first degree lying-in-wait murder but requires the additional element that the killing was intentional, not merely committed with implied malice.
Authority:
PEN 190.2(a)(15)
People v. Flinner (2020) 10 Cal.5th 686, 74
Second Holding:
To support a finding of concealment of purpose, it is not required that a defendant be literally concealed from view before he attacks the victim. Rather, it is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. The concealment, in that sense, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. Concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise.
The lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack. To distinguish the circumstance from ordinary premeditation and deliberation, a distinct period of watchful waiting is required. “Watchful” does not require actual watching; it can include being alert and vigilant in anticipation of the victim’s arrival to take him or her by surprise.
Authority:
People v. Barrett (2025) 17 Cal.5th 897, 966–967
People v. Duong (2020) 10 Cal.5th 36, 67
People v. Stevens (2007) 41 Cal.4th 182, 204
People v. Clark (2016) 63 Cal.4th 522, 629
People v. Nelson (2016) 1 Cal.5th 513, 551
People v. Streeter (2012) 54 Cal.4th 205, 247
Third Holding:
In assessing a challenge to the sufficiency of the evidence, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. “Substantial evidence” includes circumstantial evidence and any reasonable inferences drawn from that evidence.
Authority:
People v. Brooks (2017) 3 Cal.5th 1, 57
Fourth Holding:
A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. The appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. In making that determination, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.
The defendant does not challenge the sufficiency of the evidence to support a finding of premeditation and deliberation. Thus, our inquiry is whether there is a reasonable probability that the jury returned a verdict of first degree murder based solely on lying in wait, rather than also on premeditation and deliberation. The jury’s express findings in connection with the attempted murder in count 2 preclude any reasonable probability the jury relied solely on lying in wait as the theory for first degree murder.
Authority:
People v. Nelson (2016) 1 Cal.5th 513, 552 [affirming first degree murder based on sufficient evidence of premeditation and deliberation despite insufficient evidence to support lying in wait]
People v. Guiton (1993) 4 Cal.4th 1116, 1130
Fifth Holding:
The court committed harmless error under Chapman in declining the defendant’s request to instruct the jury on the theory of imperfect self-defense. Under the doctrine of imperfect self-defense. if a person kills in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter, not murder.
Authority:
People v. Duff (2014) 58 Cal.4th 527, 561
People v. Rios (2000) 23 Cal.4th 450, 461
People v. Schuller (2023) 15 Cal.5th 237, 243
Chapman v. California (1967) 386 U.S. 18, 24
Sixth Holding:
The trial court was required to instruct on imperfect self-defense if there was substantial evidence to support the theory. “Substantial evidence” is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense of voluntary manslaughter was committed, but does not include evidence that is speculative, minimal, or insubstantial.
Authority:
People v. Schuller (2023) 15 Cal.5th 237, 253
People v. Simon (2016) 1 Cal.5th 98, 132
Seventh Holding:
We review de novo a trial court’s decision not to give an imperfect self-defense instruction. When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard. Under the Chapman standard, reversal is required unless it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Though there was insufficient evidence of the watchful waiting to support a finding of lying in wait, the jury returned a finding that the murder was committed by lying in wait.
There was sufficient evidence of the aspects of lying in wait other than watchful waiting. Because of its true finding on lying in wait, the jury could not have found an imperfect self-defense in which the defendant used deadly force against the victim because he unreasonably believed that doing so was necessary to defend himself.
Authority:
People v. Simon (2016) 1 Cal.5th 98, 133
People v. Schuller (2023) 15 Cal.5th 237, 243
Chapman v. California (1967) 386 U.S. 18
People v. Cruz (2008) 44 Cal.4th 636, 665 [a jury’s true finding on a lying-in-wait special circumstance negated any possibility that defendant was prejudiced from the failure to instruct on unreasonable self-defense theories of manslaughter]
