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MURDER BY LYING IN WAIT

To constitute murder by lying in wait there must be an intentional infliction upon the person killed of bodily harm involving a high degree of probability that it will result in death and which shows a wanton disregard for human life. The concept of lying in wait does not relieve the prosecution from the burden of proving that the defendant harbored malice aforethought . . .Lying in wait is a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.According to California criminal law, the phrase "lying in wait" describes both a special circumstance and a theory of first degree murder. The factual situation necessary to sustain a jury's finding of lying in wait as a special circumstance is: " `an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage[.]' " People v. Sims, 853 P.2d 992, 1007 (Cal. 1993), cert. denied, 114 S. Ct. 2782 (1994) (quoting People v. Morales, 770 P.2d 244 (Cal.), cert. denied, 493 U.S. 984 (1989)).In contrast, the theory of first degree murder by means of lying in wait does not require the intent to murder the victim, but rather, "the intent to watch and wait for the purpose of gaining advantage and taking the victim unawares in order to facilitate the act which constitutes murder." People v. Laws, 15 Cal. Rptr. 2d 668, 674, 12 Cal. App. 4th 786, 795 (Cal. Ct. App. 1993). Moreover, the lying in wait need not continue for any particular period of time, provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. People v. Ruiz, 749 P.2d 854, 867 (Cal.), cert. denied, 488 U.S. 871 (1988)

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