lying-in-wait instruction in California

1989It is not required that he be literally concealed from view before he attacks the victim. . . .’” (Accord People v. Berberena (1989) 209 Cal.App.3d 1099, 1105 [ 257 Cal.Rptr. 672 ].) Thus, in People v. Morales , the Supreme Court concluded a lying-in-wait instruction was appropriate where the defendant, while riding in the backseat of a car, concealed his intent to murder the victim who was sitting in the front seat until the car reached an isolated area. ( 48 Cal.3d at p. 555 .) Here, the evidence supports a finding Holguin concealed his true intent and waited and watched for the right moment

1989It is not required that he be literally concealed from view before he attacks the victim. . . .’” (Accord People v. Berberena (1989) 209 Cal.App.3d 1099, 1105 [ 257 Cal.Rptr. 672 ].) Thus, in People v. Morales , the Supreme Court concluded a lying-in-wait instruction was appropriate where the defendant, while riding in the backseat of a car, concealed his intent to murder the victim who was sitting in the front seat until the car reached an isolated area. ( 48 Cal.3d at p. 555 .) Here, the evidence supports a finding Holguin concealed his true intent and waited and watched for the right moment

2026(See § 1259 [appellate courts may review instructions absent an objection “if the substantial rights of the defendant were affected thereby”]; see also People v. Valdez (2004) 32 Cal.4th 73, 113 [a defendant who did not object at trial “may not now ‘complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete’ ”].) As explained below, we conclude that the lying in wait instruction should not have been given because there was not substantial evidence of lying in wait.

2022Indeed, the opposite is true, for we have previously explained that ‘[t]he precise period of time is also not critical’”]; People v. Battle (2011) 198 Cal.App.4th 50, 81 [“As shown by Moon, 90 seconds can be a sufficient period of time to support a lying-in-wait instruction”].) The failure of Juan’s secondary claim entirely negates his prejudice argument as to the instructional error on the intent to kill.

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v. Sims (1993) 5 Cal.4th 405, 432-433 ; see People v. Combs (2004) 34 Cal.4th 821, 853 .) ―[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.‖ (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 .) If we find that ―the evidence supports the special circumstance, it necessarily supports the theory of first degree murder.‖ (People v. Carpenter (1997) 15 Cal.4th 312, 388 .) Whether we review Nelson‘s claim as asserted instructio

2016(See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182 [ 171 Cal.Rptr.3d 234 , 324 P.3d 88 ].) We “review the whole record in the fight 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In determining whether a reasonable trier of fact could have found Nelson guilty beyond a reasonable doubt, we presume in

2016It is not required that he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v. Sims (1993) 5 Cal.4th 405, 432-433 ; see People v. Combs (2004) 34 Cal.4th 821, 853 .) ―[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.‖ (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 .) If we find that ―the evidence supports the special circumstance, it necessarily supports the theory of first degree murder.‖ (People v. Carpenter (1997) 15 Cal.4th 312, 388 .) Whether we review Nelson‘s claim as asserted instructio

2016(See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182 [ 171 Cal.Rptr.3d 234 , 324 P.3d 88 ].) We “review the whole record in the fight 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In determining whether a reasonable trier of fact could have found Nelson guilty beyond a reasonable doubt, we presume in

2016It is not required that he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v. Sims (1993) 5 Cal.4th 405, 432-433 ; see People v. Combs (2004) 34 Cal.4th 821, 853 .) ―[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.‖ (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 .) If we find that ―the evidence supports the special circumstance, it necessarily supports the theory of first degree murder.‖ (People v. Carpenter (1997) 15 Cal.4th 312, 388 .) Whether we review Nelson‘s claim as asserted instructio

2016(See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182 [ 171 Cal.Rptr.3d 234 , 324 P.3d 88 ].) We “review the whole record in the fight 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In determining whether a reasonable trier of fact could have found Nelson guilty beyond a reasonable doubt, we presume in

2016It is not required that he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v. Sims (1993) 5 Cal.4th 405, 432-433 ; see People v. Combs (2004) 34 Cal.4th 821, 853 .) ―[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.‖ (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 .) If we find that ―the evidence supports the special circumstance, it necessarily supports the theory of first degree murder.‖ (People v. Carpenter (1997) 15 Cal.4th 312, 388 .) Whether we review Nelson‘s claim as asserted instructio

2016(See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182 [ 171 Cal.Rptr.3d 234 , 324 P.3d 88 ].) We “review the whole record in the fight 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In determining whether a reasonable trier of fact could have found Nelson guilty beyond a reasonable doubt, we presume in

2016It is not required that he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v. Sims (1993) 5 Cal.4th 405, 432-433 ; see People v. Combs (2004) 34 Cal.4th 821, 853 .) ―[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.‖ (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 .) If we find that ―the evidence supports the special circumstance, it necessarily supports the theory of first degree murder.‖ (People v. Carpenter (1997) 15 Cal.4th 312, 388 .) Whether we review Nelson‘s claim as asserted instructio

2016(See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182 [ 171 Cal.Rptr.3d 234 , 324 P.3d 88 ].) We “review the whole record in the fight 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.” (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ].) In determining whether a reasonable trier of fact could have found Nelson guilty beyond a reasonable doubt, we presume in

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2016It is not required that he be literally concealed from view before he attacks the victim.” ’ ” (People v. Sims (1993) 5 Cal.4th 405, 432-433 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ]; see People v. Combs (2004) 34 Cal.4th 821, 853 [ 22 Cal.Rptr.3d 61 , 101 P.3d 1007 ].) “[T]he issue we must determine is whether there was substantial evidence to support a jury verdict based on that theory.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1 [ 17 Cal.Rptr.2d 375 , 847 P.2d 55 ].) If we find that “the evidence supports the special circumstance, it necessarily supports the theory of first degree murde

2015(See People v. Dennis (1998) 17 Cal.4th 468, 527 [“defense counsel reasonably could decide to forgo the [pinpoint] instruction for tactical reasons”].) III Lying in Wait Defendant contends no substantial evidence supported a lying-in-wait instruction and that the instruction that was given was incomplete.

2015Instead, as the jury was instructed, “A person can conceal his or her purpose even if the person killed is aware of the person’s physical presence.” Indeed, defendant concedes that a traditional ambush is not required, and that acting insidiously qualifies, pursuant to Supreme Court authority (see People v. Stevens (2007) 41 Cal.4th 182, 202 [lying-in-wait special circumstance]), as does an attack performed “in a purposeful manner that required stealth and maneuvering to gain a position of advantage over the” victim (People v. Mendoza (2011) 52 Cal.4th 1056, 1074 ).

2005(People v. Nakahara, supra, 30 Cal.4th at p. 721, and cases cited.) To the extent defendant contends our interpretation of the lying-in-wait doctrine to permit his conviction on the facts of this case raises grave constitutional questions, we reject that claim as well. *45 7.

1982Similarly, the instruction was warranted in People v. Rosoto (1962) 58 Cal.2d 304, 355 [ 23 Cal.Rptr. 779 , 373 P.2d 867 ], when the defendant waited two hours for the victim to come home and ran up from the side of the house to shoot him when he arrived at 3 a.m.

1982Similarly, the instruction was warranted in People v. Rosoto (1962) 58 Cal.2d 304, 355 [ 23 Cal.Rptr. 779 , 373 P.2d 867 ], when the defendant waited two hours for the victim to come home and ran up from the side of the house to shoot him when he arrived at 3 a.m.

1956With respect to the instructions, the majority opinion concludes that the trial court committed prejudicial error in giving any instruction on the subject of lying in wait, as “the evidence is not sufficient to justify the lying in wait instruction.” I cannot join in this conclusion, as I do not believe it can be reconciled with the decisions of this court in People v. Byrd, 42 Cal.2d 200 [ 266 P.2d 505 ]; People v. Sutic, 41 Cal.2d 483 [ 261 P.2d 241 ]; and People v. Tuthill, 31 Cal.2d 92 [ 187 P.2d 16 ].

1956With respect to the instructions, the majority opinion concludes that the trial court committed prejudicial error in giving any instruction on the subject of lying in wait, as “the evidence is not sufficient to justify the lying in wait instruction.” I cannot join in this conclusion, as I do not believe it can be reconciled with the decisions of this court in People v. Byrd, 42 Cal.2d 200 [ 266 P.2d 505 ]; People v. Sutic, 41 Cal.2d 483 [ 261 P.2d 241 ]; and People v. Tuthill, 31 Cal.2d 92 [ 187 P.2d 16 ].

1956With respect to the instructions, the majority opinion concludes that the trial court committed prejudicial error in giving any instruction on the subject of lying in wait, as “the evidence is not sufficient to justify the lying in wait instruction.” I cannot join in this conclusion, as I do not believe it can be reconciled with the decisions of this court in People v. Byrd, 42 Cal.2d 200 [ 266 P.2d 505 ]; People v. Sutic, 41 Cal.2d 483 [ 261 P.2d 241 ]; and People v. Tuthill, 31 Cal.2d 92 [ 187 P.2d 16 ].

1956With respect to the instructions, the majority opinion concludes that the trial court committed prejudicial error in giving any instruction on the subject of lying in wait, as “the evidence is not sufficient to justify the lying in wait instruction.” I cannot join in this conclusion, as I do not believe it can be reconciled with the decisions of this court in People v. Byrd, 42 Cal.2d 200 [ 266 P.2d 505 ]; People v. Sutic, 41 Cal.2d 483 [ 261 P.2d 241 ]; and People v. Tuthill, 31 Cal.2d 92 [ 187 P.2d 16 ].