"Lying in wait" theory of first-degree murder in California (Penal Code 189)

Murder by means of "lying in wait" is a type of criminal homicide. It refers to killings where the perpetrator waits and watches for an opportunity to attack an unsuspecting victim. The killer conceals his or her purpose and then surprises the victim from a position of advantage.

Murder in California can be charged as "first-degree" or "second-degree."  Along with premeditated murder and some other specific killings, California law designates murder by means of lying-in-wait as murder in the first-degree.

The state's penal code section 189 states (emphasis added):

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any [specified] act …, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.

All other kinds of murders are of the second degree.

Here are some examples of murder by means of lying-in-wait:

  • A victim of domestic violence wants to call the police. Her abuser husband told her months ago that if she calls the police he would kill them. She calls the police anyway. When two responding police officers arrive, the husband has a gun ready and shoots the two before they can defend themselves. Both officers die.[1] 
  • A drug dealer is unhappy with an associate. He hides a loaded gun in a garbage can where he knows their group will meet later in the week. When the victim arrives at this location, the drug dealer accuses the victim of stealing. He then walks and retrieves the gun. He shoots the victim, who dies.[2]
  • A man works at a gun club and frequents a local campground. One weekend after his recent divorce, he notices two girls walking through the campground. The man drives his pickup slowly past them and looks in their direction. A few minutes later he returns and drives up next to them. He stops the vehicle, acknowledges them, and then fires one pistol shot at each in the head. One is injured and the other dies.[3] 
  • A man seeking drug money stations himself in an alley by a building complex. As a passerby goes past, the man emerges and hits the passerby on the head with a baseball bat. He takes the passerby's money and belongings. He didn't intend to kill the passerby, but his victim dies from the injury.

As shown in the last example, lying-in-wait murder doesn't require intent-to-kill. It can be an unintentional killing. It requires only a surprise attack after concealing one's purpose and waiting for an opportune moment to strike.

Murder by means of lying-in-wait is proven when the state establishes the following elements surrounding the accused's killing:

  1. A concealed purpose that is deadly or dangerous-to-life,
  2. Waiting and watching for an opportune moment, and
  3. Surprising a victim from a position of advantage.[4] 

Defense strategies to this crime include demonstrating reasonable doubt about one or more of these three elements. If the accused, for example, does not conceal his or her purpose but kills with sudden intent, the crime is not first-degree murder. Additionally, a variety of defenses to homicides may also be relevant, including:

Murder perpetrated by lying-in-wait is one type of first-degree murder under state penal code section 189. As such, it carries a punishment of 25-years-to-life in California state prison.[5] Murder that is proven but does not amount to first-degree murder is second-degree murder. Second-degree murder, on the other hand, carries a punishment of 15-years-to-life in state prison.[6] Both first- and second-degree murders require heighten penalties above these baselines when additional facts or elements are proven, such as repeat offenses.[7]

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Our California criminal defense attorneys and personal injury lawyers work tirelessly for our clients. Collectively, our lawyers have more than 100 years of experience handling complex murder cases and seeking justice from our clients. With a team of private investigators, forensic analysts, DNA experts and jury consultants, we will fight to protect your rights and see to it that you get justice.

To help you better understand murder by means of lying-in-wait, our California criminal defense attorneys discuss below the following topics:

1. What is murder by means of "lying in wait"?

Murder by means of lying-in-wait occurs when a killer waits and watches for an opportune moment to surprise a victim. All murder charges in California require malice aforethought.[8] The lying-in-wait supplies the malice required under the law.[9] 

Example: A man sought to help his cousin get back at a person who was sleeping with the cousin's lover.

The man lures the victim into the front passenger seat of a car. While another person drives, the man, who is in the back seat, takes a belt and strangles the victim with it from behind. The victim dies during the event.

This killing could be found to be lying-in-wait murder. The man decided to hurt the victim but concealed this from the victim when they met. He then waited from a position of advantage in the back seat of the car. When an opportune moment arose, he surprised the victim with his attack. And the victim died through his wanton and reckless conduct which showed a conscious disregard for the value of life.[10]

Example: A man suspected his wife of being unfaithful. He left home for work but returned and eavesdropped on his wife's conversation with her visiting mother. Not liking what he heard, he entered the house. He began struggling with his wife and then with her and her mother. He pushed his wife out the door, and she fled. As she went, he shot her and she died.

This killing would not be murder by means of lying-in-wait. While the killer waited secretly to eavesdrop on his wife, he did not mount a surprise attack from a position of advantage. After eavesdropping, he entered the house and confronted her directly. He may have concealed the fact he was listening. But he didn't conceal his attack or attack from a special place of advantage.[11] 

A similar but distinct form of first-degree murder is known as felony-murder in California. This involves intentionally committing one or more predicate felonies which leads to someone's death.[12] It does not, however, require concealment of one's purpose or waiting for an opportune moment to strike a victim.

1.1. "Lying in wait" as a special circumstance for capital murder

Lying-in-wait is not only a type of first-degree murder in California. It is also a "special circumstance" for capital murder. California lists a number of "special circumstances" that legally justify imposition of capital punishment or life in state prison without the possibility of parole.[13] 

These special circumstances impose the very highest punishments in California law, including the possibility of capital punishment. Such killings are therefore known as capital murders.

State penal code section 190.2(a) states:

The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found … : 


(15) The defendant intentionally killed the victim by means of lying in wait.

As subsection 15 notes, murder by means of lying-in-wait may possess its own special circumstance. But to do so it must be an intentional killing. Consequently, where a killer takes a victim's life by lying-in-wait, and does so intentionally, he or she is subject to the punishment of section 190.02 capital murder.

Example: Consider the example above of the killer in the back seat of a car, the one who strangled a victim from behind with a belt. That killing may be first-degree murder, since it was by means of lying-in-wait. However, it was not an intentional killing. The killer only intended to hurt or "get back at" the victim. Therefore, neither capital punishment nor life-without-parole could be imposed under section 190.2. The murder would result in the general punishment for first-degree murder -- 25 years-to-life in state prison.

Imagine instead the man in the car began to strangle the victim but the belt broke. The man then used a hammer to hit the victim in the head repeatedly. The man confesses to having decided during the strangulation to take the victim's life. He admits that he lied-in-wait in the car and then opted to kill instead of just hurt the victim.

If convicted, the man now would be subject to the death penalty or life-without-parole under section 190.2. He committed murder by means of lying-in-wait, which is first-degree murder. And he did so intentionally, triggering the special circumstance and punishment of 190.2(a)(15).[14] 

2. How is murder by means of "lying in wait" proven?

Lying-in-wait murder is proven when the state's evidence demonstrates the elements of the crime beyond a reasonable doubt. 

Specifically, murder by means of lying-in-wait requires an unlawful killing, where the killer:

  1. Conceals his or her deadly or dangerous-to-life purpose from the victim,
  2. Watches and waits for an opportune time to act,
  3. Intentionally surprises an unsuspecting victim from a position of advantage[15]

The question of lying-in-wait is determined by the distinct facts of each case.[16] As such, no particular amount of time to lie-in-wait is required. The time only must be substantial enough to establish secret design, as for deliberation in other first-degree murders.[17]

Example:  A man was on parole and in illegal possession of handgun. He encountered a police officer while in the company of his girlfriend and another friend. The officer called the friend over to his patrol car to pat him down, leaving the man and his girlfriend at a short distance.

The man moved closely behind his girlfriend. He draped his left arm over her, freeing his right. He leaned on her and slowly pushed her towards the officer. They got within six or seven feet of the officer, him behind her. Then the man pushed his girlfriend aside, raised his gun, and shot the officer in the head. The officer died.

In this case, the man did not wait and watch very long to strike. But his concealment, waiting, and watching behind his girlfriend was substantial enough to deliberate about his actions. The time was sufficient for reflection and a decision to go forward with the crime. This constitutes waiting-and-watching for lying-in-wait murder.[18] 

Similarly, an attacker's concealment doesn't have to be physical. The element of concealment concerns one's deadly purpose, not one's visibility.[19] 

The state's evidence may convince a jury beyond a reasonable doubt that the accused committed the crime. The jury then renders a verdict of guilty.

3. What are defense strategies against a murder charge by means of "lying in wait"?

Strategies against murder by means of lying-in-wait seek to create reasonable doubt concerning the state's evidence. They often look to reduce the charge to second-degree murder or to an acquittal or dismissal of the charges based on a lack of evidence. Several other strategies, e.g., accident, self-defense, and mistaken identification, are potentially applicable in many homicide situation. 

3.1. Creating reasonable doubt

In homicide cases, there may be reasonable doubt of the evidence of the particular criminal charge. Despite an allegation of lying-in-wait, the killer may not have concealed his or her purpose or waited for an opportune moment to strike. And the killer may not have attempted to surprise the victim from a position of advantage. The defense may demonstrate the lack of evidence for one or more of these elements.

Example: A man kills a woman by entering her home and using a ligature to strangle her. At the home police find splintered wood around the broken-in front door. The state argues that these splinters show forced entry. The state argues additionally that the man must have broken in and lied-in-wait to attack the woman.

Here the court may not permit the jury to consider murder by means of lying-in-wait. The splintered wood and broken door do not establish that the man lied-in-wait. The man very well may have arrived after the woman was already home. He may have forced entry then, with no waiting or concealment of his purpose.[20] 

Example: A man and a woman get engaged. The man backs out of the marriage plans. The woman is greatly humiliated. Her mother has a nervous breakdown. The woman's brother wants the man to pay for what happened. He visits the man's home, says he's a friend, and is invited in until the man returns from playing golf.

When the man returns, the brother brandishes a gun and demands $20,000 from him for his sister to take a vacation to forget her pain. The man says he doesn't have that money now. The brother threatens to kill him and does by gunshot after a brief struggle.

In this case, the brother did not wait in order to strike from a position of advantage. He was simply present and waiting by normal means. And he confronted the man directly. Evidence for lying-in-wait is likely insufficient.[21]

3.2. Additional strategies

Other strategies include common defenses to many criminal homicides, such as:

  • Accident,
  • Self defense (and defense of others) / imperfect self defense, 
  • insanity, 
  • Mistaken identifications, and 
  • False or coerced confessions

4. What are the penalties for murder by means of "lying in wait"?

Criminal penalties for murder by means of lying-in-wait include lengthy terms in state prison. At minimum, the criminal penalty for a conviction of murder by means of lying-in-wait is 25 years-to-life in state prison. And the maximum criminal penalty is capital punishment or life in state prison without parole. Possible civil penalties include monetary damages as well. 

4.1. First-degree murder

Murder by means of lying-in-wait is one kind of first-degree murder under state penal code section189. A defendant convicted of this crime is subject to the standard punishment for first-degree murder, which is 25-years-to-life in state prison.[22] 

4.2. Hate crime

The punishment may be increased if the conviction involves what California law defines as a "hate crime."[23] For example, an accused person may have lied-in-wait for a particular victim, because of the victim's:

  • race
  • religion
  • gender
  • disability
  • sexual orientation, or
  • nationality.

If so, then the defendant faces a heightened state prison sentence of life without the possibility of parole.[24]

4.3. Capital murder

If the murder by means of lying-in-wait was also an intentional killing, then it becomes its own "special circumstance" under penal code section 190.2. This section on capital murders imposes the death penalty or life without the possibility of parole.

4.4. Additional penalties

In addition to the state prison terms above, California law subject those convicted to:

4.5. Civil penalties

Additional non-criminal penalties may arise in homicide cases from civil lawsuits. Even if a defendant is acquitted in criminal court, he or she may be found liable financially for wrongful death or a survival action.

Monetary damages in such cases are often found to be:

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Legal References:

  1. Facts based on People v. Russell, 50 Cal. 4th 1228, 117 Cal. Rptr. 615, 242 P.3d 68 (Cal. 2010). 
  2. Facts based on People v. Poindexter, 144 Cal. App. 4th 572, 50 Cal. Rptr. 3d 489 (Ct. App. 2006). 
  3. Facts based on People v. Edwards, 54 Cal. 3d 787, 1 Cal. Rptr. 2d 696, 819 P.2d 436 (Cal. 1991).
  4. People v. Poindexter, 144 Cal. App. 4th at 579, 50 Cal. Rptr. 3d at 494.
  5. California Penal Code sect. 190 PC: "(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life [as described in] Sections 190.1, 190.2, 190.3, 190.4, and 190.5."
  6. California Penal Code sect. 190 PC: "(b) Except as provided [below], every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life." 
  7. California Penal Code sect. 190 PC - 190.5 PC. 
  8. California Penal Code sect. 187 PC: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." Malice aforethought by means of lying-in-wait is either express malice or implied malice, depending on whether the killing was intentional or through intentional conduct showing a conscious disregard for life.
  9. People v. Battle, 198 Cal. App. 4th 50, 75, 129 Cal. Rptr. 3d 828, 848 (Ct. App. 2011). 
  10. Facts based on People v. Morales, 48 Cal. 3d 527, 257 Cal. Rptr. 64, 770 P.2d 244 (Cal. 1989).
  11. Facts based on People v. Thomas, 25 Cal. 2d 880, 156 P.2d 7 (Cal. 1945).
  12. California Penal Code sect. 189 PC (listing predicate felonies as arson, rape and other sexual crimes, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and any homicide committed by intentionally firing a gun from a motor vehicle at a person outside of the motor vehicle with the intention to cause death). 
  13. California Penal Code sect. 190.2(a)(15) PC (including, among others, murders that were "for financial gain;" after previous murder convictions; "by means of a district device, bomb, or explosive" and placed in a place dangerous to life; to escape arrest or custody; where the victim was a police officer, fireman, or judge; and other circumstances). 
  14. Facts based on People v. Morales, 48 Cal. 3d 527, above.
  15. People v. Poindexter, 144 Cal. App. 4th at 579, 50 Cal. Rptr. at 494.
  16. People v. Mendoza, 52 Cal. 4th 1056, 1075, 132 Cal. Rptr. 3d 808, 828, 263 P.3d 1, 29 (Cal. 2011).
  17. People v. Mendoza, 52 Cal. 4th at 1073, 132 Cal. Rptr 3d at 826-27, 263 P.3d at 25. 
  18. Facts based on People v. Mendoza 52 Cal. 4th 1056, above. 
  19. People v. Morales, 48 Cal. 3d at 557-558, 257 Cal. Rptr. at 81, 770 P.2d at 261.
  20. Facts based on People v. Carter, 36 Cal. 4th 1215, 32 Cal. Rptr. 838, 117 P.3d 544 (Cal. 2005). 
  21. Facts based on People v. Kahn, 198 Cal. App. 2d 326, 17 Cal. Rptr. 793 (Ct. App. 1961); People v. McDermand, 162 Cal. App. 3d 770, 787, 211 Cal. Rptr. 773, 784 (stating that "the evidence [in Kahn] conclusively established that [the] defendant simply walked up and confronted the victim with no attempt whatever to facilitate his attack by taking the victim unawares").
  22. California Penal Code sect. 190 PC. 
  23. California Penal Code sect. 422.55 PC. 
  24. California Penal Code sect. 190.03 PC: "A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole."
  25. California Penal Code sect. 12022.53 PC.  

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