CALCRIM No. 727

(Former Pen. Code, § 190.2(a)(15))

The defendant is charged with the special circumstance of murder

committed while lying in wait [in violation of former Penal Code section

190.2(a)(15)].

To prove that this special circumstance is true, the People must prove

that:

1. The defendant intentionally killed <insert name of

decedent>;

AND

2. The defendant committed the murder while lying in wait.

A person commits murder while lying in wait if:

1. He or she concealed his or her purpose from the person killed;

2. He or she waited and watched for an opportunity to act;

3. Immediately after watching and waiting, he or she made a

surprise attack on the person killed from a position of advantage;

AND

4. He or she intended to kill the person by taking the person by

surprise.

The lying in wait does not need to continue for any particular period of

time, but its duration must be substantial and must show a state of mind

equivalent to deliberation and premeditation.

The defendant acted deliberately if (he/she) carefully weighed the

considerations for and against (his/her) choice and, knowing the

consequences, decided to kill. The defendant acted with premeditation if

(he/she) decided to kill before committing the act that caused death.

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 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. If you have a reasonable doubt whether the murder was committed

while lying in wait, you must find this special circumstance has not been

proved.

[A person can conceal his or her purpose even if the person killed is

aware of the other person’s physical presence.]

[The concealment can be accomplished by ambush or some other secret

plan.]

New January 2006