Updated October 2026 | The Bulldog Law | California Homicide Defense

Lying in wait is a killing committed after the killer concealed their purpose, waited and watched for an opportunity, and then attacked an unsuspecting victim by surprise from a position of advantage. In California it does two things. Under Penal Code 189, it makes a murder first degree, 25 years to life, without separate proof of premeditation. Under Penal Code 190.2(a)(15), an intentional murder by lying in wait is a special circumstance, one of roughly two dozen on a list that includes murder for financial gain, multiple murders, murder of a police officer or a witness, torture, poison, a gang killing, and murder during a robbery, burglary, kidnapping, or rape, and a special circumstance found true raises the sentence to life without the possibility of parole or death. No parole hearing follows an LWOP sentence; release requires the Governor. The special circumstance must be pleaded and proven to the jury beyond a reasonable doubt, and in many of these cases it, rather than the killing, is where the defense is fought.

The Bulldog Law's attorneys defend special circumstances cases knowing what the allegation does to a case: it changes the sentence from one with a parole date to one without, it brings the possibility of a death verdict, it entitles the defendant to two attorneys and a penalty-phase investigation, and it reshapes every negotiation. A client charged with first-degree murder who faces 25 to life has a different case from the same client with a special circumstance alleged, and the difference is frequently a single fact, whether the killer waited, whether the victim was a witness, whether the robbery was the purpose or the afterthought, that the prosecution has to prove and the defense can contest. What follows is what lying in wait requires, what the other special circumstances are, how the aider-and-abettor rules work, what the penalty phase involves, and where these cases are defended. Call (888) 928-1609 or message our team.

Lying in wait: the elements

California's jury instruction for first-degree murder by lying in wait, CALCRIM 521, requires that the defendant concealed their purpose from the person killed; waited and watched for an opportunity to act; and then, from a position of advantage, intended to and did make a surprise attack on the person killed. The three components are read together. Concealment of purpose does not require physical hiding; a killer who approached openly, in a friendly manner, while concealing the intent to kill, has concealed their purpose, and most lying-in-wait cases involve an ambush by someone the victim knew. Watching and waiting requires a period of time, but no particular length; the courts require only a period substantial enough to show a state of mind equivalent to premeditation and deliberation, which can be minutes. The surprise attack from a position of advantage is the launch of the assault while the victim is unaware, and an attack that followed a confrontation, an argument, or a fight is not lying in wait, because the victim was not taken by surprise.

Lying in wait under Penal Code 189 is a theory of first-degree murder, listed alongside premeditation, poison, torture, destructive devices, and the enumerated felonies. It substitutes for premeditation: the prosecution that proves lying in wait need not separately prove that the defendant deliberated, because the waiting is the deliberation. It does not, under 189, require intent to kill; a killing that was the result of an ambush committed with implied malice, a conscious disregard for life, is first-degree murder by lying in wait. That distinction mattered more before 2000, when the special circumstance required a stricter showing; Proposition 18 amended Penal Code 190.2(a)(15) to its current form, an intentional killing while lying in wait, and the courts have since treated the two definitions as substantially the same, with the special circumstance adding only the intent-to-kill requirement. Our attorneys' pages on murder prosecutions and the line between murder and manslaughter cover the degrees and the theories lying in wait sits among.

The special circumstances: Penal Code 190.2

Penal Code 190.2 provides that the penalty for a defendant found guilty of first-degree murder is death or life without the possibility of parole if one or more of the listed special circumstances is found true. The list, in the statute's order:

Each special circumstance is pleaded in the information or indictment and tried to the jury with the murder charge, and the jury returns a separate true or not-true finding on each. A finding of true on any one is sufficient. The felony-murder special circumstance in subdivision (17) is the most frequently alleged, because robberies and burglaries that end in death are the most common first-degree murder cases; the gang special circumstance in (22) is next, and our attorneys' page on gang enhancements explains the active-participation element it shares. The witness and peace officer circumstances carry their own proof problems, including whether the defendant knew the victim's status, which the statute requires for most of them.

Aiders and abettors: subdivisions (c) and (d)

The actual killer is subject to the special circumstance on proof of the circumstance itself. A defendant who did not kill is subject to it only under two narrower rules. Under Penal Code 190.2(c), an aider and abettor who, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer is subject to the special circumstance. Under subdivision (d), for the felony-murder special circumstance only, an aider who was a major participant in the underlying felony and acted with reckless indifference to human life is subject to it even without intent to kill. The California Supreme Court narrowed subdivision (d) substantially in People v. Banks and People v. Clark in 2015 and 2016: major participation requires more than involvement in the felony, and reckless indifference requires a subjective awareness of a grave risk of death, judged by the defendant's role in planning, the weapons, the proximity to the killing, the opportunity to restrain the killer, and the conduct afterward. A getaway driver who did not know a gun was present is not a major participant acting with reckless indifference, and special circumstance findings resting on that theory have been reversed by the hundreds.

Those rulings connect to the felony murder reforms under SB 1437: a defendant whose murder conviction rested on felony murder or the natural and probable consequences doctrine may petition for resentencing, and a defendant whose special circumstance rested on a pre-Banks major-participant finding may challenge it by habeas. Our attorneys review every LWOP sentence imposed on an aider before 2016 for that claim.

The penalty: LWOP, death, and the penalty phase

A special circumstance found true leaves two sentences. Life without the possibility of parole means what it says for an adult: no parole hearing, no release date, and the only exits a commutation by the Governor, which is rare, or a successful legal challenge. The mandatory minimum statutes that judges may now strike do not reach LWOP, which is fixed by the special circumstance finding, though a judge may strike the special circumstance itself under Penal Code 1385 in limited circumstances. Two exceptions. A defendant who was under 18 at the time of the offense and is sentenced to LWOP becomes eligible for a youth offender parole hearing after 25 years under Penal Code 3051, following the Supreme Court's decisions in Miller v. Alabama and Montgomery v. Louisiana; our page on juvenile justice addresses the transfer of minors to adult court where these cases begin. And a defendant who was 18 to 25 at the time is not covered by 3051 for LWOP sentences, an exclusion the California courts have upheld and the Legislature has debated.

Death remains on the books. The prosecution decides whether to seek it, through a committee process in most district attorney's offices, and announces the decision early in the case. If it does, the trial has two phases: the guilt phase, in which the jury decides the murder and the special circumstances, and the penalty phase, in which the same jury hears aggravating and mitigating evidence under Penal Code 190.3 and decides between death and LWOP, with a unanimous verdict required for death. The defense is entitled to two attorneys, a mitigation specialist, and the funds for a penalty-phase investigation into the defendant's life, which is the work that produces LWOP verdicts in cases where death was sought. California has not executed anyone since 2006, and a 2019 executive moratorium remains in place, but death verdicts are still returned in a few counties, and a death sentence means decades on death row and automatic appeal to the California Supreme Court. Our page on the death penalty in California covers the status of the law. In practice, the prosecution's decision not to seek death, or its agreement to withdraw the request, is the most significant negotiated outcome in these cases, and it is obtained by presenting the mitigation early.

Defending the special circumstance

In many of these cases the killing is not disputed, and the defense is directed at the special circumstance, because the difference between 25 to life and LWOP is the difference between a parole hearing and none.

The elements of the circumstance. Lying in wait is contested on surprise: a killing that followed a confrontation, an argument, or a struggle was not an attack on an unsuspecting victim, and the prosecution's theory of concealment is tested against what the victim knew. The felony-murder circumstance is contested on whether the felony was the purpose of the encounter or incidental to a killing that had another motive; a killing in a dispute, followed by the taking of property, is not a murder during a robbery. The witness circumstance is contested on knowledge and purpose. The gang circumstance is contested on active participation and on the furtherance element, with the post-AB 333 standards. The financial gain circumstance is contested on whether gain was the motive or merely a consequence.

Intent to kill. The lying-in-wait, witness, gang, and most other special circumstances require that the defendant intentionally killed, and an aider is subject to them only with intent to kill or, for felony murder, as a major participant with reckless indifference. Where the killing was impulsive, intoxicated, or the act of another, the intent element and the Banks and Clark factors are the defense. Our pages on premeditation and malice address the mental states, and duress, which is not a defense to murder, remains relevant to whether an aider acted with intent to kill.

The degree. A special circumstance attaches only to first-degree murder. A verdict of second-degree murder or manslaughter, obtained through a defense to premeditation, a heat-of-passion or imperfect self-defense theory, or a challenge to the lying-in-wait or felony-murder theory of first degree, eliminates the special circumstance entirely, which is why the degree fight and the special circumstance fight are the same fight. An attempted murder charge, where the victim survived, carries no special circumstance at all.

The jury. Special circumstances cases are tried, and they are tried to juries that are death-qualified if death is sought, which the defense contests through voir dire. A hung jury on the special circumstance, with a verdict on the murder, is a result: the prosecution may retry the circumstance or accept the 25-to-life sentence, and often does.

Frequently asked questions

What does lying in wait mean in a murder case?

A killing committed after the killer concealed their purpose, waited and watched for an opportunity to act, and then launched a surprise attack on an unsuspecting victim from a position of advantage. It does not require literally hiding; concealment of purpose is enough, and the waiting period need only be long enough to show a state of mind equivalent to premeditation. In California, lying in wait makes a murder first degree under Penal Code 189, and it is also a special circumstance under Penal Code 190.2 that makes the sentence life without parole or death.

What are special circumstances in a California murder case?

The list of about two dozen facts in Penal Code 190.2 that, if found true along with a first-degree murder conviction, raise the sentence from 25 years to life to life without the possibility of parole or death. They include murder for financial gain, multiple murders, murder of a police officer or witness, murder by lying in wait, torture, poison, a hate-motivated killing, a gang killing, and murder during a listed felony such as robbery, burglary, kidnapping, or rape. The prosecution must plead them and prove them to the jury beyond a reasonable doubt.

What is the difference between lying in wait as first-degree murder and as a special circumstance?

The same conduct does two things. Under Penal Code 189, a murder committed by lying in wait is first-degree murder, 25 years to life, without the prosecution having to prove premeditation separately. Under Penal Code 190.2(a)(15), a murder committed intentionally while lying in wait is a special circumstance, which adds life without parole or death. The special circumstance requires an intentional killing; the first-degree theory does not require proof of intent to kill if the lying in wait is shown. Since a 2000 amendment, the two definitions are nearly identical, and a jury that finds one usually finds the other.

Is life without parole really without parole in California?

For adults, yes, with narrow exceptions. A sentence of life without the possibility of parole means no parole hearing, ever; release requires a commutation by the Governor, which is rare, or a successful legal challenge. The exceptions: a person sentenced to LWOP for a crime committed under age 18 becomes eligible for a youth offender parole hearing after 25 years under Penal Code 3051, and a person who was an aider rather than the actual killer may qualify for resentencing under the felony-murder reforms if the special circumstance rested on that theory.

Can the death penalty still be imposed in California?

It remains on the books, and prosecutors can still seek it, but no execution has occurred since 2006, and a 2019 executive moratorium halts executions while it stands. Juries in a handful of counties still return death verdicts. For a defendant facing special circumstances, the practical question is whether the prosecution will seek death, which drives the resources and the plea negotiations in the case, or will accept life without parole, which is the far more common outcome.

Related reading from our attorneys

• Murder prosecutions under Penal Code 187
• SB 1437 and felony murder resentencing
• The death penalty in California

Special circumstances alleged? The sentence is decided by a finding the prosecution has to earn

The Bulldog Law's homicide defense attorneys try special circumstances cases, contest LWOP and death allegations, and pursue Banks and Clark and SB 1437 relief for aiders sentenced under the old rules, in courts across California. Visit our criminal defense page, call (888) 928-1609, or reach us online.