Premeditation and Deliberation Is Not Alone Sufficient to Prove Lying In Wait
October 17th, 2016

In People v. Nelson (2016) 1 Cal.5th 513 the evidence of “a substantial period of watching and waiting” was insufficient, so the finding of lying in wait was set aside (both as a theory of first-degree murder and as a special circumstance).  “The evidence showed, directly or by reasonable inference, that Nelson rode his bicycle to the area near the Target parking lot, where he had reason to believe the victims would be waiting to go to work. He concealed his bicycle and came up behind his victims on foot to take them by surprise. He shot the two victims in quick succession. After ensuring his victims were dead by shooting them a second time, he retrieved his bicycle and left. [¶] There is no evidence, however, that Nelson arrived before the victims or waited in ambush for their arrival. In the absence of such evidence, there is no factual basis for an inference that before approaching the victims, he had concealed his bicycle and waited for a time when they would be vulnerable to surprise attack. The jury was presented with no evidence from which it could have chosen, beyond a reasonable doubt, that scenario over one in which defendant arrived after the victims, dismounted from his bicycle, and attacked them from behind without any distinct period of watchful waiting.” (1 C3d at 551.)

“[T]he fact that there was substantial evidence of premeditation and deliberation does not necessarily mean there was substantial evidence of watching and waiting for an opportune time to act [sufficient to support a finding of lying in wait].  (See People v. Sandoval (2015) 62 Cal.4th 394, 424.)” (1 C3d at 552.)

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