Lying in Wait Murder in California – Laws, Penalties & Defenses
In California, committing a killing while lying in wait makes it first-degree murder under Penal Code § 189. If prosecutors also allege and prove the lying-in-wait special circumstance under Penal Code § 190.2(a)(15)—which requires an intentional murder carried out while lying in wait—the sentence becomes life without the possibility of parole (LWOP) or death. California currently has a gubernatorial moratorium on executions, but the death-penalty statute remains in effect, and LWOP sentences are enforced.
What “Lying in Wait” Means
In California, a murder is “by lying in wait” when the killing is carried out through concealment, waiting, and a surprise attack:
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Concealment of purpose.
The defendant hid their intent from the victim. Physical hiding isn’t required—someone can stand in plain view yet mask a lethal purpose. -
A substantial period of watching and waiting.
There must be a meaningful interval of surveillance or waiting that shows planning and deliberation. There’s no fixed minimum time; courts look at the circumstances and whether the pause reflects calculated watchfulness. -
A surprise attack from a position of advantage.
The assault is launched when the victim is vulnerable or unsuspecting—an ambush rather than a face-to-face, spontaneous fight.
For first-degree murder under Penal Code § 189, prosecutors must also prove the intent to kill along with these lying-in-wait features. For the special circumstance under Penal Code § 190.2(a)(15), the jury must find an intentional murder committed while lying in wait.
Example
After a dispute, Alex studies Jordan’s routine and waits behind a hedge near Jordan’s front path for several minutes, staying quiet so Jordan won’t suspect anything. When Jordan approaches the door, Alex rushes out and attacks without warning, causing death. If proven, those facts support concealed purpose, watching and waiting, and a surprise attack, making it first-degree murder by lying in wait and exposing Alex to the special circumstance allegation.
Elements the Prosecution Must Prove
In California, to secure a conviction for first-degree murder by lying in wait, the prosecution must prove all of the following elements beyond a reasonable doubt:
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An unlawful killing occurred. The act resulted in the death of another human being, committed with malice aforethought.
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Intent to kill. The defendant acted with the specific purpose of causing the victim’s death.
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Murder committed while lying in wait. This means the defendant:
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concealed their purpose from the victim,
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engaged in a substantial period of watching and waiting that demonstrates planning and deliberation, and
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launched a surprise attack from a position of advantage when the victim was vulnerable.
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When the State alleges the lying-in-wait special circumstance under Penal Code § 190.2(a)(15), the jury must also find that the murder was intentional and committed while lying in wait. A true finding elevates the penalty from the standard 25 years to life for first-degree murder (Penal Code § 190(a)) to life without the possibility of parole (LWOP) or death.
Penalties and Sentencing for Lying-in-Wait Murder
A conviction for lying-in-wait murder carries the most severe punishments available under California law:
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First-degree murder (Penal Code § 189; § 190(a))
A killing proven to have been committed by lying in wait is automatically first-degree murder, punishable by 25 years to life in state prison. -
Special circumstance—lying in wait (Penal Code § 190.2(a)(15))
If the jury finds the lying-in-wait special circumstance true, the penalty increases to life without the possibility of parole (LWOP) or death. Although California currently has a moratorium on executions, the death penalty statute remains in effect, and LWOP sentences are actively enforced. -
Sentencing enhancements
Additional penalties can be imposed if other factors are proven, such as firearm use under Penal Code § 12022.53, which can add 10, 20, or 25 years to life depending on how the firearm was used.
Legal Defenses Against a Lying-in-Wait Murder Charge
Because a lying-in-wait allegation can turn a murder case into a life-without-parole sentence, the defense focuses on dismantling the prosecution’s theory element by element. Common defenses include:
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No concealment, no waiting, no surprise.
Prosecutors must show the defendant hid their purpose, watched and waited for an opportunity, and carried out a surprise attack. If the evidence shows a spontaneous confrontation or a fight that unfolded openly, those elements are missing. Without them, the charge cannot be lying-in-wait murder. -
Mistaken identity or weak identification.
Eyewitness accounts can be unreliable, especially in poor lighting, stressful situations, or with brief observation. Inconsistencies in timelines or physical descriptions can undermine the claim that the defendant was the attacker or present at all. -
Self-defense or imperfect self-defense.
If the accused reasonably believed deadly force was necessary to prevent imminent harm, the homicide may be justifiable. Even if that belief was unreasonable, it can reduce the charge to voluntary manslaughter under Penal Code § 192(a) by negating malice. -
Heat of passion.
When the killing followed a sudden quarrel or provocation that would cause an ordinary person to act rashly, malice may be eliminated, reducing murder to voluntary manslaughter. -
Suppression of unlawfully obtained evidence.
Statements taken without Miranda warnings, coerced confessions, or evidence obtained through illegal searches or seizures can be excluded. This is raised through motions under Penal Code § 1538.5, the Fourth and Fifth Amendments, and California Constitution, article I, section 13.
Speak With a Los Angeles Murder Defense Lawyer
If you or a loved one is under investigation or has been charged with lying in wait murder, it is critical to have an experienced defense attorney involved immediately. Speaking to police or investigators without legal representation can severely limit your options.
With over 20 years of experience defending homicide cases in Los Angeles County, Attorney Arash Hashemi provides focused, strategic representation in cases involving allegations of lying in wait. Our office works quickly to secure evidence, challenge the prosecution’s theory, and protect your rights at every stage of the case.
The Law Offices of Arash Hashemi
11845 W Olympic Blvd #520
Los Angeles, CA 90064
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