SERIES 700 HOMICIDE: SPECIAL CIRCUMSTANCES AND DEATH PENALTY
F 727 Special Circumstances: Lying In Wait—Before March 8, 2000, PC 190.2(a)(15)
TABLE OF CONTENTS
F 727.1 Titles And Identification Of Parties
F 727.1 Inst 1 Special Circumstances: Lying in Wait—Before March 8, 2000—Title
F 727.1 Inst 2 Identification Of Prosecution And Defendant
F 727.2 Instructions
F 727.2 Inst 1 Lying In Wait: Modification Of Burden Shifting Language
F 727.2 Inst 2 Lying In Wait: Enumeration Of Elements
F 727.2 Inst 3 Lying In Wait: Detectable Interval Pinpoint Instruction
F 727.2 Inst 4 Lying In Wait: Deletion Of Duplicative And Argumentative Passages
F 727.2 Inst 5 Linking Special Circumstance To the Murder To Which It Relates
F 727 NOTES
F 727 Note 1 Special Circumstances: Lying in Wait—Before March 8, 2000—CALCRIM Cross References And Research Notes
F 727 Note 2 Lying In Wait Special: Constitutional Challenge
F 727 Note 3 Lying In wait: Additional Consideration Of Domino’s Rationale May Be Warranted
Return to Series 700 Table of Contents.
F 727.1 Titles And Identification Of Parties
F 727.1 Inst 1 Special Circumstances: Lying In Wait—Before March 8, 2000—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 727.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 727.2 Instructions
F 727.2 Inst 1 Lying In Wait: Modification Of Burden Shifting Language
*Modify CC 727, paragraph 6, as follows [added language is underlined; deleted language is stricken]:
In order For a murder to be committed while lying in wait, the attack must immediately follow the period of watching and waiting. The lethal acts must begin at and flow continuously from the moment the concealment and watchful waiting ends. If there is a There must be no detectable interval between the period of watching and waiting and the period during which the killing takes place, then the murder is not committed while lying in wait.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Improper Burden Shifting—The language of CC 727 improperly implies a need to find a detectable interval. (See generally FORECITE F 404.2 Inst 1; see also FORECITE F 727.2 Inst 3 [detectable interval pinpoint].)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 727.2 Inst 2 Lying In Wait: Enumeration Of Elements
*Replace CC 727 paragraph 3 through 6 and Elements with the following [added language is underlined; deleted language is stricken]:
A person commits To prove the defendant committed murder while lying in wait the prosecution must prove beyond a reasonable doubt if that:
1. He or she The defendant concealed his or her purpose from the person killed;
2. He or she The defendant waited and watched for an opportunity to act;
3. Immediately after watching and waiting, he or she the defendant made a surprise attack on the person killed from a position of advantage;
AND
4. He or she The defendant intended to kill the person by taking the person by surprise.
5. The defendant waited and watched long enough to show a state of mind equivalent to premeditation and deliberation.
AND
6. The lethal act began at and flowed continuously, without any detectable interval, from the moment of the concealment and watchful waiting ended until the killing took place.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Enumeration Of Elements—The requirements for lying in wait should be directly enumerated as elements of the charge to assure the jurors properly consider them as elements which must be proven beyond a reasonable doubt. (See Domino v. Superior Court (1982) 129 CA3d 1000, 1011; People v. Padyao (1994) 24 CA4th 1610, 1616.) [FORECITE F 3500.2 Inst 1.]
Burden Shifting—Additionally, the no detectable interval requirement should not be conveyed with burden shifting language. (See FORECITE F 727.2 Inst 1.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 727.2 Inst 3 Lying In Wait: Detectable Interval Pinpoint Instruction
*Add to CC 727 when requested [CC 3400 Format]:
The defendant contends that lying in wait has not been proven because there was a detectable interval between the period of watching and waiting and the killing. However, the defendant does not need to prove the existence of such an interval. The prosecution must prove beyond a reasonable doubt that there was no interval. If you have a reasonable doubt that the prosecution has proven the absence of any detectable interval between the end of the watchful waiting and the killing, you must find the lying in wait special circumstance untrue.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank #CCM-001.]
Right To Pinpoint Instruction—See FORECITE F 315.1.2 Inst 2.
Improper Burden Shifting—See FORECITE F 727.2 Inst 1.
No Reference To “The People”—he defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank #CCM-005.]. By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 727.2 Inst 4 Lying In Wait: Deletion Of Duplicative And Argumentative Passages
*Modify CC 727 as follows:
[Delete paragraphs 7 & 8]
Points and Authorities
See FORECITE F 416.3 Inst 4.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 727.2 Inst 5 Linking Special Circumstance To The Murder To Which It Relates
See FORECITE F 720.2 Inst 1.
F 727 Notes
F 727 Note 1 Special Circumstances: Lying In Wait—Before March 8, 2000—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 701 [Special Circumstances: Intent Requirement for Accomplice Before June 6, 1990]
CALCRIM 702 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990C Other Than Felony Murder]
CALCRIM 703 [Special Circumstances: Intent Requirement for Accomplice After June 5, 1990C Felony Murder]
CALCRIM 704 [Special Circumstances: Circumstantial Evidence—Sufficiency]
CALCRIM 705 [Special Circumstances: Circumstantial Evidence—Intent or Mental State]
CALCRIM 706 [Special Circumstances: Jury May Not Consider Punishment]
CALCRIM 707 [Special Circumstances: Accomplice Testimony Must Be Corroborated—Dispute Whether Witness Is Accomplice]
CALCRIM 708 [Special Circumstances: Accomplice Testimony Must Be Corroborated—No Dispute Whether Witness Is Accomplice]
Research Notes:
See CLARAWEB Forum, Homicide—Series 500-700.
F 727 Note 2 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 (1980) 446 US 420, 427 [64 LEd2d 398].) In People v. Morales (1989) 48 C3d 527, 557, 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 Morales 48 C3d at 575, People v. Webster (1991) 54 C3d 411, 461-63 and People v. Edwards (1991) 54 C3d 787, 850; 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 (1993) 4 C4th 1134, 1147 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 (1993) 15 CA4th 809, 819. 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 [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.)
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.
CALJIC NOTE: See FORECITE F 8.81.15 n1.
F 727 Note 3 Lying In wait: Additional Consideration Of Domino’s Rationale May Be Warranted
People v. Lewis (2008) 43 C4th 415, 513-14: “The language of the instruction [CJ 8.81.15; see also CC 727] was drawn from Domino v. Superior Court (1982) 129 CA3d 1000 (Domino), a Court of Appeal decision on which defendant relies. (See Com. to CALJIC No. 8.81.15.) In that case, the victim was captured during the period the defendants were lying in wait, but was not killed until some one to five hours later. It is not clear what happened to the victim during the interim. The Court of Appeal granted a writ of prohibition restraining further proceedings on the special circumstance. Focusing on the difference in statutory language between first degree murder “by means of” lying in wait (§ 189) and the special circumstance of murder “while” lying in wait (§ 190.2, former subd. (a)(15)), the Court of Appeal in Domino concluded: “[T]o ignore or minimize the importance of the word ‘while’ would violate the policy of construing penal statutes in favor of the accused and would invade the legislative province. To give proper impact to the term ‘while’ we read it as creating a requirement that … the death penalty or life without possibility of parole may be imposed only if the appropriate temporal relationship exists between the killing and the lying in wait. … Thus, the killing must take place during the period of concealment and watchful waiting or the lethal acts must begin at and flow continuously from the moment the concealment and watchful waiting ends. If a cognizable interruption separates the period of lying in wait from the period during which the killing takes place, the circumstances calling for the ultimate penalty do not exist.” (Domino, supra, at p. 1011.)
In several cases, we have declined to decide whether Domino‘s “restrictive” reading of the lying-in-wait special circumstance is correct, choosing instead to conclude that, on the facts of the case before us, the Domino standard was satisfied. (E.g., People v. Morales (1989) 48 C3d 527, 558; accord, People v. Combs (2004) 34 C4th 821, 853–854 & fn. 7; People v. Edelbacher (1989) 47 C3d 983, 1022; see also People v. Michaels (2002) 28 C4th 486, 517; People v. Carpenter (1997) 15 C4th 312, 389; People v. Edwards (1991) 54 C3d 787, 826.)
In other cases, however, we seem to have assumed the viability of the Domino formulation. (E.g., People v. Sims (1993) 5 C4th a405, 434 [stating that CALJIC No. 8.81.15 “accurately sets forth the necessary elements” of the lying-in-wait special circumstance]; People v. Ceja (1993) 4 C4th 1134, 1140, fn. 2 [citing Domino in noting the difference between first degree murder by means of lying in wait and the special circumstance of murder “while” lying in wait]; People v. Webster (1991) 54 C3d 411, 449 [citing Domino with apparent approval].) In People v. Gutierrez, we stated that the lying-in-wait special-circumstance requirement that the murder occur “‘during the period of concealment and watchful waiting'” constituted a “‘clear and specific requirement[]'” that “‘justif[ied] the classification of that type of case as one warranting imposition of the death penalty'” within the meaning of the Eighth Amendment to the federal Constitution. (People v. Gutierrez (2002) 28 C4th 1083, 1149, quoting People v. Sims (1993) 5 C4th 405, 434.) Sims cited this court’s decision in People v. Edelbacher for the proposition that the murder must occur “during” the period of concealment and watchful waiting (Sims, supra, at p. 434); People v. Edelbacher in turn cited and quoted from the Court of Appeal’s decision in Domino (People v. Edelbacher, supra, 47 C3d at p. 1022).
Additional consideration of Domino‘s rationale may be warranted. But whatever “during” means in this context, this case falls outside the limits of that term. “During” means “at some point in the course of.” (Webster’s 3d New Internat. Dict. (2002) p. 703.) The facts here show that these killings did not occur in the course of lying in wait. The defendants accomplished the forcible kidnapping of each victim while lying in wait, but then drove the still living victims around in their cars for periods of one to three hours, while withdrawing money from the victims’ bank accounts, before killing them. By the time of the killings, the concealment, the watchful waiting, and the surprise attack all had taken place at least one and up to three hours earlier.”
