Return to CALJIC Part 5-8 – Contents
F 8.25 n1 Lying In Wait: Research Notes (PC 189).
See Annotation, What Constitutes “Lying in Wait,” 89 ALR2d 1140 and Later Case Service.
F 8.25 n2 Lying In Wait: CJ 8.25 Approved (PC 189).
In People v. Webster (91) 54 C3d 411, 448-49 [285 CR 31], the Supreme Court approved the language of CJ 8.25 which requires that lying in wait only include a “wanton and reckless intent to inflict injury likely to cause death” and which defines the temporal relationship between concealment and attack by requiring that the killing must be “immediately preceded” by lying in wait. (See also People v. Edwards (91) 54 C3d 787, 822-24 [1 CR2d 696].)
F 8.25 n3 Lying In Wait: Only Concealment Of Purpose Is Required (PC 189).
The concealment required for lying in wait “is that which puts the defendant in a position of advantage, from which the fact finder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. [Citation] It is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim. [Citations].” (People v. Morales (89) 48 C3d 527, 555 [257 CR 64].)
F 8.25 n4 8th Amendment Challenge To Lying In Wait Special (PC 189).
See FORECITE F 8.81.15 n1 for a proposed federal constitutional attack upon the lying in wait special circumstance.
F 8.25 n5 Lying In Wait: No Need To Instruct On Substantial Period Of Waiting (PC 189).
See People v. Edwards (91) 54 C3d 787, 822-24 [1 CR2d 696], rejecting various challenges to the Morales definition of lying in wait for purposes of first degree murder liability (PC 189). (E.g., no need to instruct on “substantial period” of waiting even though such a requirement is included in CJ 8.81.15 re: lying in wait special circumstance.) (See also People v. Fitzpatrick (92) 2 CA4th 1285, 1291-93 [3 CR2d 808].)
F 8.25 n6 Lying In Wait: No Intent To Injure Is Required (PC 189).
In People v. Laws (93) 12 CA4th 786 [15 CR2d 668], the court rejected the defendant’s argument that CJ 8.25 is defective because “it fails to require a finding that the act of ‘lying in wait’ be with the intention of killing or physically injuring the victim as opposed to concealment intended to accomplish some non-injurious, non-assaultive, or even benign purpose.” (Id. at 791.) The Court of Appeal concluded that “nothing in the statute requires the lying in wait to have been done with intent to injure.” (Id. at 794.)
F 8.25 n7 Lying In Wait: Premeditation And Deliberation Not Required (PC 189).
Argument rejected that CJ 8.25 must include premeditation and deliberation. (People v. Hardy (92) 2 C4th 86, 162-163 [5 CR2d 796].)
F 8.25 n8 Lying In Wait: Clarification Of Causal Relationship (PC 189).
In People v. Laws (93) 12 CA4th 786, 796 [15 CR2d 668], the court held that there is no sua sponte duty to instruct upon the causal relationship between the lying in wait and the killing; i.e., that the lying in wait be the “means” by which the murder was accomplished. However, in rejecting a sua sponte duty to provide such an instruction, the court noted that “[t]o the extent defendant believed the instruction on murder perpetrated by means of lying in wait required elaboration or clarification to insure that the jurors understood the requisite causal relationship between the lying in wait and the murder, he had an obligation to request the trial court to give an amplifying instruction.” Hence, there remains a basis for requesting a pinpoint instruction upon this issue. [See Brief Bank # B-539 for additional briefing is available on this issue.]
F 8.25 n9 Lying In Wait: Consciousness Of Guilt: Does Not Prove Degree Of Crime (PC 189).
The essence of consciousness of guilt evidence is that it shows a fear of apprehension and, hence, is probative of whether the defendant committed the crime. Fear of apprehension, however, while relevant to the issue of whether a crime was committed, does not have any logical relevance as to the degree of the crime the defendant committed. [For a sample limiting instruction, and additional authorities on this point, see FORECITE F 2.06a.]
F 8.25 n10 Lying In Wait: No Requirement Of Temporal Proximity.
Although CJ 8.25 requires that the murder be “immediately preceded by lying in wait,” this is not a requirement for lying in wait as a theory of first degree murder under PC 189. (See Houston v. Roe (9th Cir. 1999) 177 F3d 901.) Instead, the temporal proximity requirement applies only to lying in wait as a special circumstance. (PC 190.2(a)(15).)
“Hot Anger” May Negate Mens Rea Of Lying In Wait
*Add to CJ 8.25 [added language is capitalized]:
In the crime of MURDER BY LYING IN WAIT of which the defendant is accused a necessary element is the existence in the mind of the defendant A CONCEALED PURPOSE OR PLAN TO SURPRISE THE VICTIM.
If the evidence shows that the defendant ACTED IN HOT ANGER WITHOUT REFLECTION, you should consider that fact in determining whether defendant had a PLAN OR CONCEALED PURPOSE TO SURPRISE.
If from all the evidence you have a reasonable doubt whether the defendant had such a CONCEALED PURPOSE OR PLAN, you must find that [he] [she] did not have such PURPOSE OR PLAN and find [him] [her] not guilty of MURDER BY LYING IN WAIT. The evidence that defendant acted in hot anger without reflection may be sufficient by itself to leave you with a reasonable doubt as to defendant’s guilt of first degree murder.
Points and Authorities
In People v. Ceja (93) 4 C4th 1134 [17 CR2d 375], the Court of Appeal had held that the evidence of lying in wait was insufficient because it was “more suggestive that the killing was a product of appellant’s ‘hot anger of the moment and was executed without reflection’ rather than the result of any plan, secrecy or concealment.” (Id. at 1142.) The California Supreme Court, while disagreeing with the Court of Appeal’s conclusion that the evidence was insufficient, did not dispute the lower court’s common sense suggestion that “hot anger of the moment” may negate the mens rea for lying in wait which requires a mental state equivalent to premeditation or deliberation (CJ 8.25). Hence, the defense has the right to a pinpoint instruction such as the one above, which relates the “hot anger” theory to the mental elements of lying in wait. (See People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364]; see e.g. CJ 8.73.) (The above proposed instruction follows the form of CJ 4.21.)
Because this instruction relates a theory of the defense to an element of the charge, it should also relate the burden of proof to the issues addressed. (EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506]; see e.g., CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15; see also FORECITE PG III(D)&(E).) Also, because the prosecution has the burden to prove the charge beyond a reasonable doubt, it is a given that any evidence which leaves you with a reasonable doubt as to any element of the charge requires acquittal. (See, e.g., CJ 2.40.)
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.]
As to the reasonable doubt language in the last paragraph of the proposed instruction, counsel should consider whether or not to ask for the last sentence which includes the “by itself” language from CJ 2.40. The first sentence alone (“give the defendant the benefit of any reasonable doubt”) may be more acceptable to some judges as it is analogous to language in several standard CALJIC instructions. (E.g, CJ 2.92, CJ 4.30, CJ 4.50, CJ 5.15.)
Applicability To Diminished Actuality. The reasoning underlying the above instruction would also justify an instruction relating intoxication or mental defect, etc. to the mens rea for lying in wait.