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F 8.81.15 n1 Lying In Wait Special: Constitutional Challenge.
To be constitutional the special circumstance of lying in wait must provide a “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” (Godfrey v. Georgia (80) 446 US 420, 427 [64 LEd2d 398].) In People v. Morales (89) 48 C3d 527, 557 [257 CR 64], the Supreme Court concluded that the lying in wait special circumstance is constitutional because it requires (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter a surprise attack on an unsuspecting victim from a position of advantage. However, even though these factors do render a lying in wait murder different from an ordinary premeditated murder, they do nothing to establish that the murder by lying in wait is sufficiently more heinous than an “ordinary” murder to justify the disparity in penalty.
In point of fact, a murder by lying in wait is simply an ordinary premeditated murder in which the killer chooses to wait for his victim to come to him instead of going to the victim. (See dissenting opinion of Mosk, J., in Morales48 C3d at 575, People v. Webster (91) 54 C3d 411, 461-63 [285 CR 31] and People v. Edwards (91) 54 C3d 787, 850 [1 CR2d 696]; see also dissenting opinion of Broussard, J. in Webster 54 C3d at 463-68.)
Nor is there any societal consensus that a murder while lying in wait is more heinous than an ordinary murder and thus more deserving of death. (Webster 54 C3d at 467-68.) Of the 35 other states imposing the death penalty, only 3 treat lying in wait as either a special circumstance or an aggravating factor. (Ibid.)
Hence, despite Morales, a federal constitutional challenge grounded on the 8th Amendment may still be advanced against the lying in wait special circumstance until the issue is resolved by the federal courts.
In People v. Ceja (93) 4 C4th 1134, 1147 [17 CR2d 375] Kennard, J., concurring, Justice Kennard recognized this potential federal constitutional issue: “Recent decisions of this court have given expansive definitions to the term ‘lying in wait’ while drawing little distinction between ‘lying in wait’ as a form of first degree murder and the lying-in-wait special circumstance, which subjects a defendant to the death penalty. [Citations] Constrained by the principle of stare decisis, I concurred in the more recent of these decisions, which were reached after I joined this court. I have a growing concern, however, that these decisions may have undermined the critical narrowing function of the lying-in-wait special circumstance: to separate defendants whose acts warrant the death penalty from those defendants who are ‘merely’ guilty of first degree murder.”
This concern was further amplified by Justice Johnson in a concurring opinion in Iniguez v. Superior Court DEPUBLISHED (93) 15 CA4th 809, 819 [19 CR2d 66]. Justice Johnson’s cogent analysis concluded as follows: “I respectfully request the California Supreme Court to reexamine the definition of the ‘lying-in-wait’ special circumstance as it is emerging in California law and consider whether that expansive interpretation fulfills the ‘critical narrowing function’ required by the Constitution. I further respectfully request the high court consider whether without the element of true “ambush” this special circumstance provides a rational and meaningful basis for distinguishing between capital and noncapital cases.”
People v. Superior Court (Bradway) (2003) 105 CA4th 297 [129 CR2d 324] held that the special circumstance of lying in wait is distinguishable from first-degree murder by lying in wait and thus not unconstitutionally vague]; but see dissenting opinion of McDonald, J.)
F 8.81.15 n2 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 8.81.15 failed to define “premeditation” and “deliberation.” (See CALJIC History CJ 8.81.15.)
F 8.81.15 n3 Lying In Wait Special Circumstance: Requirement That Time Concealed Be “Substantial.”
(See People v. Superior Court (Lujan) (99) 73 CA4th 1123 [87 CR2d 320].)
F 8.81.15 n4 Lying In Wait.
ALERT: (See Morales v. Woodford (9th Cir. 2003) 336 F3d 1136, 1150-51 [to prove the special circumstance of lying in wait, the government must prove an intentional murder plus the three elements of lying in wait: “waiting, watching, and concealment”].)
F 8.81.15 n5 Lying In Wait Special: Constitutional Challenge.
But see Morales v. Witford (9th Cir. 2003) 336 F3d 1136 [lying in wait special circumstance sufficiently narrows class of first degree murders eligible for death as required by the 8th Amendment because there are some first degree murders that do not involve lying in wait]; compare dissent of McKeown, J.
F 8.81.15a
Lying-In-Wait Special Circumstance: Lethal Acts Must “Flow Continuously”
*Modify CJ 8.81.15 ¶ 6 to provide as follows [added language is capitalized; deleted language is between <<>>]:
If there is a <<clear>> COGNIZABLE interruption separating the period of lying in wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special <<circumstances>> CIRCUMSTANCE is not proved. THE LETHAL ACTS MUST BEGIN AT AND FLOW CONTINUOUSLY FROM, THE MOMENT THE CONCEALMENT AND WATCHFUL WAITING ENDED.
Points and Authorities
The current CJ instruction on the lying-in-wait special circumstance (PC 190.2(a)(15)) does not fully and accurately set forth the requirement as established in Domino v. Superior Court (82) 129 CA3d 1000, 1011 [181 CR 486]. The above modifications to the CJ instruction are taken directly from Domino. (See also People v. Padayao (94) 24 CA4th 1610, 1616 [30 CR2d 13].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]