Lying in Wait Murder in California – Definition, Examples, and Defenses

In California, lying in wait refers to a type of murder where a person watches and waits for their victim to launch a surprise, ambush-style attack.

Because of the calculated and predatory nature of this crime, California law treats lying in wait with extreme severity. It is not only an automatic pathway to a first-degree murder conviction, but it can also be charged as a special circumstance, which drastically increases the penalties.

An example of this offense is a spouse who, during dinner, secretly prepares a rope under the table to strangle his wife; as the partner looks away, the spouse whips the rope around her neck and kills her.

In this article, our Los Angeles criminal defense attorneys will address the following key topics regarding lying in wait in California murder cases:

• 1. Two Types of Charges
• 2. “Concealment of Purpose” Meaning
• 3. Examples
• 4. Defenses
• Frequently Asked Questions
• Additional Reading

1. Two Types of Charges

A critical distinction in California law is the difference between standard first-degree murder and the “special circumstance” allegation. They have different legal requirements regarding the killer’s intent.

1) First-Degree Murder

Under California Penal Code 189, a murder committed by means of lying in wait is automatically elevated to first-degree murder. To convict you under this statute, the prosecutor must prove:

1. You concealed your purpose from the person killed; and
2. You waited and watched for an opportunity to act; and
3. You made a surprise attack on the victim from a position of advantage.

For standard first-degree murder under PC 189, the prosecutor does not have to prove an intent to kill for first-degree lying-in-wait murder. Instead, prosecutors must prove murder with malice plus intent to make the surprise attack.

First-degree murder by means of lying in wait carries 25 years to life in prison.¹

2) Special Circumstance Allegation

If a prosecutor pursues a “special circumstance” lying in wait charge under California Penal Code 190.2, the stakes are much higher: A conviction results in life without the possibility of parole (LWOP) or the death penalty (though currently California is not carrying out executions).

Because the penalty is so severe, the legal standard is stricter. To prove a special circumstance by lying in wait, the prosecutor must prove all the elements of PC 189 plus that you acted with a specific intent to kill.

Following the passage of Proposition 18 in 2000, California law clarified that the fatal blow does not have to happen while the person is hiding; the ambush simply has to be the direct means by which the murder was accomplished.²

2. “Concealment of Purpose” Meaning

“Concealment of purpose” is the core element of any lying-in-wait case. It means you kept your deadly intentions a secret from the victim until it was too late.

You can conceal your purpose even if the victim can see you. Physical hiding (like crouching in the bushes) is not required. As long as your true intent—your “secrecy of design”—is hidden from the victim, the concealment element is met.³

3. Examples

Murder by lying in wait often includes acts like:

• Tracking a victim’s routine to find the perfect time to strike.
• Luring a victim to an isolated location under false pretenses.
• Launching a lethal attack before the victim has any time to react or defend themselves.

Example: A man learns when his former girlfriend leaves work each night. He hides behind a dumpster near her parking space, waits for her to approach her car, then suddenly attacks and kills her.

Example: A drug dealer believes an associate has been stealing from him. The dealer hides a loaded gun in a garbage can at a location where they are scheduled to meet. When the associate arrives, the dealer distracts him, grabs the hidden gun, and fatally shoots him.

What is NOT Lying in Wait:

Example: A man suspects his wife is cheating. He sneaks into the house, quietly eavesdrops on her phone conversation in the kitchen, and hears her mention another man’s name. Enraged, he steps into the kitchen, begins arguing with her, grabs a nearby weapon, and kills her.

While the husband temporarily concealed his physical presence to eavesdrop, he did not formulate a secret plan to launch a surprise attack. The killing was the result of a spontaneous, escalating argument rather than a premeditated ambush.

4. Defenses

Here at Shouse Law Group, we have represented countless people charged with homicide crimes, including murder by means of lying in wait. In our experience, the following four defenses have proven very effective with prosecutors, judges, and juries at getting murder cases reduced or dismissed:

1. There was no “lying in wait”: Perhaps the attack was a spontaneous, rash reaction rather than a calculated ambush. If prosecutors cannot prove beyond a reasonable doubt that there was a period of watching and waiting sufficient to demonstrate a state of mind equivalent to deliberation and premeditation, the lying-in-wait element can be defeated.
2. There was no specific intent to kill. If you are facing a “special circumstance murder” charge, your attorney can argue that you merely intended to scare, injure, or rob the victim. If prosecutors cannot prove beyond a reasonable doubt that you meant to kill the victim, this can remove the threat of LWOP or the death penalty.
3. You were legally insane. You can be found not guilty by reason of insanity if your attorney can show that you did not understand the nature of your act or could not distinguish between right and wrong. Bringing an insanity defense is a complicated procedure that involves medical experts and, if you are found insane, commitment to a mental institution.⁴
4. Your confession was coerced. Police may not use overbearing or abusive measures to force a confession. If law enforcement violated your Miranda rights or used unlawful coercion to get you to admit to “waiting” for the victim, a judge may exclude that confession from evidence entirely.

Frequently Asked Questions

How long do you have to wait for an attack to be considered “lying in wait”?

California law does not require the “waiting and watching” to last for any specific amount of time. You do not have to hide for hours or days.

However, the duration of the wait must be substantial enough to demonstrate a state of mind equivalent to deliberation and premeditation. Even a few minutes of waiting in secret for a victim to walk into a vulnerable position is enough to satisfy this element.

What happens if I “lie in wait” but the victim survives the attack?

Even if the victim does not die, you can still face extreme penalties. Under California Penal Code 664 and 187, you can be charged with attempted first-degree murder by means of lying in wait.

Because the attack was deliberate, premeditated, and carried out by means of lying in wait, prosecutors may charge attempted willful, deliberate, and premeditated murder, which carries a potential sentence of life with the possibility of parole.

Can I be charged with lying in wait if someone else actually committed the murder?

Yes. Under California’s aiding and abetting laws, you do not have to be the one who pulls the trigger or strikes the fatal blow.

If you help plan the ambush, act as a lookout, or lure the victim to the location knowing your accomplice is waiting to launch a surprise attack, you can be charged with first-degree murder (and the special circumstance allegation) just as if you had killed the victim yourself. In a special circumstance case, you would also need an intent to kill.

Are there lesser charges if the prosecutor cannot prove “lying in wait”?

If a defense attorney can successfully dismantle the “concealment of purpose” or “waiting and watching” elements, the prosecution’s lying-in-wait theory fails.

Depending on the facts of the case, the charges could be reduced to standard second-degree murder (which carries a lighter sentence of 15 years to life) or even voluntary manslaughter if the attack was triggered by a sudden quarrel or heat of passion.

What kind of evidence do prosecutors use to prove I was “lying in wait”?

To prove that you concealed your purpose and waited for an opportune moment, prosecutors cannot simply guess what was in your mind. They must rely on circumstantial and physical evidence, which often includes:

• Surveillance footage: Security cameras or doorbell cameras showing your movements, positioning, or wait time leading up to the attack.
• Eyewitness testimony: Statements from people who observed you loitering, hiding, or acting suspiciously near the crime scene before the victim arrived.
• Physical evidence: Items left at the scene indicating a stakeout, or the specific choice of a concealed weapon.
• Digital forensics and expert testimony: Cell phone location data showing you tracking the victim, or testimony from forensic specialists regarding how the ambush was executed.

Can it still be “lying in wait” if the victim saw me approaching?

Not necessarily. A crucial element of lying in wait is that the attacker must launch a surprise attack that deprives the victim of the chance to defend themselves or escape.

If the victim was fully aware of your hostile intentions and your approach—for example, if you were standing in plain sight outside a bar holding a weapon and mutually yelling at each other before a fight—your defense attorney can argue that there was no element of surprise and no concealment of purpose. This could defeat the lying in wait charge.

Will I face the death penalty for a special circumstance charge?

California continues to authorize the death penalty, and courts may still impose death sentences. However, Governor Newsom’s 2019 moratorium means California is not currently carrying out executions. If the moratorium is lifted or expires in the future, executions could resume.

Additional Reading

• Criminal Law: Homicide: Murder Committed by Lying in Wait – California Law Review.
• Evil and the Law of Murder – U.C. Davis Law Review
• How Should We Punish Murder – Marquette Law Review

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