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Court of Appeal, Second District, Division 7, California.

Hector INIGUEZ, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. The PEOPLE, Real Party in Interest.

No. B069469.

Decided: May 07, 1993

Wilbur F. Littlefield, Public Defender, Los Angeles County, Albert J. Menaster, Masamune Kojima, Dennis Cohen, and Henry J. Hall, Deputy Public Defenders, for petitioner. No appearance for respondent. Ira Reiner, Dist. Atty., Los Angeles County, Maurice H. Oppenheim and Glenn R. Britton, Deputy Dist. Attys., for real party in interest.

Was sufficient evidence presented at the preliminary hearing to justify the magistrate's order upholding the lying-in-wait (Pen.Code,1 § 190.2, subd. (a)(15) 2 ) special circumstance allegation?   If not, the petition should be granted.   If so, the petition should be denied.   We deny the petition.


On September 24, 1991, Rudy Gomez was fatally shot.   The district attorney charged petitioner with his murder and alleged he “intentionally killed the victim while lying in wait, within the meaning of Penal Code section 190.2(a)(15).”   On June 1, 1992, following the preliminary hearing, the magistrate held petitioner to answer and denied his motion to strike the lying-in-wait allegation.

In superior court petitioner pleaded not guilty and denied the lying-in-wait allegation.   Thereafter petitioner moved to set aside the lying-in-wait allegation (§ 995).   On August 10, 1992, the trial court denied the motion.

On August 26, 1992, petitioner filed the instant proceeding, an application for a writ of prohibition.   On September 1, 1992, this court summarily denied the petition.   On September 8, 1992, petitioner requested the California Supreme Court to review our summary denial.   On October 22, 1992, the Supreme Court issued the following order:  “Petition for review GRANTED.  [¶] The matter is transferred to the Court of Appeal, Second Appellate District, [Division] Seven, with directions to vacate its order denying prohibition and to issue an alternative writ to be heard before that court when the proceeding is ordered on calendar.”

Thereafter, on October 30, 1992, in compliance with the Supreme Court's order, we issued an alternative writ to the superior court directing it to either vacate its August 10, 1992, order (denying the motion to strike the lying-in-wait allegation) or to “show cause.”

Real party in interest (RPI or the district attorney), on November 19, 1992, filed its return and on December 2, 1992, petitioner filed his traverse.   We heard argument on February 4, 1993.   Thereafter, we permitted the parties to file supplementary letter briefs in order to consider the March 18, 1993, Supreme Court decision in People v. Ceja (1993) 4 Cal.4th 1134, 17 Cal.Rptr.2d 375, 847 P.2d 55.


1. Lying-in wait:  definition

 In People v. Morales (1989) 48 Cal.3d 527, 557–558, 257 Cal.Rptr. 64, 770 P.2d 244, the leading case on lying-in-wait, our Supreme Court stated “[t]he question whether a lying-in-wait murder has occurred is often a difficult one which must be made on a case-by-case basis, scrutinizing all of the surrounding circumstances.”   Despite this caveat, Morales listed three factual circumstances which, if present, constitute lying-in-wait.  Morales stated:  “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, presents a factual matrix sufficiently distinct from ‘ordinary’ premeditated murder to justify treating it as a special circumstance.”  (People v. Morales, supra, at p. 557, 257 Cal.Rptr. 64, 770 P.2d 244.) 3

Petitioner does not contest this definition.   Rather, he argues the preliminary hearing evidence failed to satisfy it.

2. Standard of review:  procedural posture

It bears noting:  this is not an appeal calling into question the sufficiency of evidence to sustain a criminal conviction or enhancement allegation.   We do not, here, apply a substantial evidence test.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110.)

 Instead, we review a magistrate's preliminary hearing order upholding a lying-in-wait allegation.   The question is—was there sufficient evidence “to permit the district attorney to file such allegation and take the matter to trial.” (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1225, 6 Cal.Rptr.2d 242.)   Only “probable cause” is necessary to support the magistrate's order.  (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474, 62 Cal.Rptr. 581, 432 P.2d 197.)   Probable cause “is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion ․” of the truth of the allegation.  (Ibid.) (Emphasis added;  internal quotation marks omitted.)   The magistrate's order must be upheld “if there is some rational ground for assuming the possibility that [a lying-in-wait] offense has been committed and the accused is guilty of it.”  (Ibid.)

“A reviewing court may not substitute its judgment as to the weight of the evidence for that of the magistrate, and, if there is some evidence to support the [magistrate's order], the court will not inquire into its sufficiency.  [Citations.]   Every legitimate inference that may be drawn from the evidence must be drawn in favor of the [magistrate's order].”  (Ibid.)

3. Preliminary hearing evidence

The preliminary hearing was held June 1, 1992.   During the hearing the magistrate received information from six persons.   Rose Ogeda, the victim's cousin, and Andy Gomez, the victim's 14–year–old brother (13 at the time of the murder) both testified.   Michael Depasquale, a Los Angeles Police Department detective assigned to a gang unit, not only testified but also recounted information he had obtained from two other (nontestifying) witnesses:  Leticia Reynoso, the victim's girlfriend, and Cesar Carillo, who heard the murder shots and saw the fleeing perpetrators.   The sixth person, Dr. James Wegner, was the autopsy coroner whose testimony and 23–page report were stipulated to.   Petitioner did not testify and no defense evidence was offered.   The transcript of the hearing is 87 pages (plus the 23–page coroner's report).

We summarize the preliminary hearing evidence and do so with a perspective favoring the magistrate's order.  (People v. Barnes, supra, 42 Cal.3d 284, 303–304, 228 Cal.Rptr. 228, 721 P.2d 110;  People v. Superior Court (Jurado), supra, 4 Cal.App.4th 1217, 1226, 6 Cal.Rptr.2d 242.

Seventeen-year-old Rudy Gomez (the victim) had been a member of the La Via gang for some time.   On his left hand and left forearm he had “Via” tattoos.   Recently, after being released from a Paso Robles juvenile camp in August 1991, he had decided not to continue his gang membership.   As a result, his girlfriend had received telephone calls and mail from the La Via gang threatening them both.

On Tuesday night, September 24, 1991, about 8 p.m., Rudy, his older sister Suzanna, and his cousin Rosa Ogeda went to a baptismal meeting at a church—Rosa was going to baptize Suzanna's child.   They remained for an hour, leaving approximately 9:15 p.m., and decided to visit their grandmother who lived only five blocks from the church.   They left in Rosa's car with Suzanna sitting in front and Rudy in back.

As Rosa slowed to park directly in front of her grandmother's apartment building, 410 Indiana Avenue, she noticed two men, both Hispanic, in a vacant lot across the street.   She saw no one else on the street or in the lot.   The two men, petitioner and his companion, were leaning against a white Cadillac and it seemed to Rosa they were trying to hide something.

Petitioner and his companion immediately started toward Rosa's car, walking “at a fast pace.”   They walked around Rosa's car and petitioner's companion asked:  “Hey, ese, where are you from?”   Petitioner pulled out a gun.

Rudy and his sister both said they didn't want any trouble.   Suzanna embraced Rudy, to protect him, and pleaded with petitioner and his companion not to do anything to her brother.   Rosa ran to her grandmother's apartment, only a short distance, and banged on the door and window.

Petitioner's companion pulled Suzanna apart from Rudy and pushed her aside.   Rudy bent over, attempted to duck, and petitioner shot him once or twice in the face.   Rudy fell to the ground, petitioner stood over him, and shot him several more times.   Petitioner and his companion then fled, running through a nearby alley to a waiting car in the 400 block of Vernon.   A third person was in the car and when petitioner and his companion got in, the car immediately left.

Rudy died at the scene.

Petitioner, a member of the La Via gang, was arrested some time later.

4. Sufficiency of evidence

a. Concealment of purpose

 Petitioner concedes that physical concealment is unnecessary to establish lying-in-wait.  (People v. Morales, supra, 48 Cal.3d 527, 556–557, 257 Cal.Rptr. 64, 770 P.2d 244;  People v. Sassounian (1986) 182 Cal.App.3d 361, 406–407, 226 Cal.Rptr. 880.)   Further, he does not dispute the preliminary hearing evidence sufficiently established this first Morales circumstance:  concealment of purpose.

b. Watching and waiting for an opportune time to act

Petitioner contends the evidence was insufficient to establish watching and waiting.   He argues there was no “stalking,” no “waiting,” and no selection of “an opportune time to act.”   Petitioner is mistaken.

 “Stalking”—stealthily pursuing one's quarry—although sometimes present in lying-in-wait murders (e.g., People v. Edwards (1991) 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 819 P.2d 436), is not a requirement and characteristically is absent.   Typically, the lying-in-wait murderer selects a murder location and waits there for the victim to arrive (People v. Sassounian, supra, 182 Cal.App.3d 361, 226 Cal.Rptr. 880), or lures the victim to the murder location (People v. Webster (1991) 54 Cal.3d 411, 285 Cal.Rptr. 31, 814 P.2d 1273) or goes to where the victim is (People v. Hardy (1992) 2 Cal.4th 86, 5 Cal.Rptr.2d 796, 825 P.2d 781;  People v. Byrd (1954) 42 Cal.2d 200, 266 P.2d 505, overruled on other grounds in People v. Green (1956) 47 Cal.2d 209, 232, 302 P.2d 307 and People v. Morse (1964) 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33) or is with the victim and attacks by surprise (People v. Morales, supra, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244;  People v. Superior Court (Jurado), supra, 4 Cal.App.4th 1217, 6 Cal.Rptr.2d 242).

In People v. Edwards the Supreme Court found “a matter of minutes”—time enough for the victims to walk a quarter of a mile—a substantial and sufficient period of “watching and waiting.”  (People v. Edwards, supra, 54 Cal.3d 787, 825–826, 1 Cal.Rptr.2d 696, 819 P.2d 436.)

 As we have described, the magistrate could have reasonably inferred petitioner was waiting at least “a matter of minutes” for the victim to arrive.   His getaway car was parked a block away from the attack location;  when Rosa Ogeda first noticed him he was “leaning” against a car, posture suggestive of lengthy waiting rather than recent arrival;  and because petitioner could not have known precisely when the victim might arrive he would have, himself, arrived “early” rather than “late.”   There was sufficient evidence of “watching and waiting.”

 Finally, petitioner asserts the evidence does not show “an opportune time to act” because the victim was not in an isolated location (as were the victims in People v. Edwards, supra, 54 Cal.3d 787, 1 Cal.Rptr.2d 696, 819 P.2d 436) nor alone.   The assertion is falsely based.   The law does not score or grade the murderer's method of attack and reject all those it gives less than an A+.  It suffices if, after “a period of watchful waiting ․ [there is] a surprise attack from a position of advantage․”  (People v. Morales, supra, at p. 556, 257 Cal.Rptr. 64, 770 P.2d 244.)   That was present here.   The victim was accosted and attacked at night, on the street, while weaponless, by surprise, according to plan, by two men, at least one armed with a gun, and with a third confederate waiting in a nearby getaway car.   It was “opportune” enough.

c. Surprise attack on an unsuspecting victim

 Petitioner's only contention regarding this circumstance is that because, before shooting the victim, his companion stated “Hey, ese, where are you from?”, the attack was not a surprise nor the victim unsuspecting.   Petitioner “reads the law in too literal a fashion.”  (People v. Hardy, supra, 2 Cal.4th 86, 164, 5 Cal.Rptr.2d 796, 825 P.2d 781.)   The utterance of these six words had no effect on the victim's predicament:  he was as vulnerable and helpless after they were uttered as he would have been had they not been uttered.  (Cf. People v. Byrd, supra, 42 Cal.2d 200, 266 P.2d 505 [Defendant enters his ex-wife's house, goes to her darkened bedroom, asks “Sue, is that you?”, and then fatally shoots her.].)

Evidence at the preliminary hearing sufficiently supports the lying-in-wait allegation.

5. People v. Ceja

We agree with petitioner that People v. Ceja “appears to have very little relevance to the issues raised by the [instant] case.”   It does not change the law regarding lying-in-wait but rather reaffirms existing law as stated in People v. Morales, supra, 48 Cal.3d 527, 257 Cal.Rptr. 64, 770 P.2d 244.

Although Ceja concerned lying-in-wait as a theory of first degree murder not, as in the instant case, as a special circumstance allegation, still, its factual discussion is instructive.  Ceja found sufficient evidence of lying-in-wait notwithstanding evidence the defendant sat on a front yard couch with the victim for 5–18 minutes before fatally shooting her.   The facts of the instant case, as we have discussed, present an a fortiori case of lying-in-wait.


The petition for a writ of prohibition is denied.

I concur in the result because under recent judicial interpretations of the “lying-in-wait” special circumstance it is apparent the prosecution's version of petitioner's conduct qualifies for that special circumstance.   I write separately to register my concern about the trend of California jurisprudence in defining the term “lying-in-wait.”

The definition has been expanded to the point it is in great danger of becoming a “general circumstance” rather than a “special circumstance,” one which is present in most premeditated murders not just a narrow category of those killings.   The problem with this, of course, is the nearly unbridled discretion it grants to prosecutors and jurors to treat virtually any murder as a capital crime.   This broad discretion allows subjective, inappropriate, invidiously discriminatory factors to predominate in these life and death decisions over whom to charge and whom to convict of crimes carrying the death penalty.   This is the very vice which the Constitution prohibits.  (Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346;  Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859;  Rockwell v. Superior Court (People) (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101.)

In this, I merely echo the concerns Justice Kennard expressed just a few months ago in her separate concurring opinion to People v. Ceja (1993) 4 Cal.4th 1134, 17 Cal.Rptr.2d 375, 847 P.2d 55.   As Justice Kennard observed:

“Unlike first degree murder perpetrated by lying in wait, the lying-in-wait special circumstance must provide a meaningful basis for distinguishing between capital and noncapital cases, so that the death penalty will not be imposed in an arbitrary or irrational manner.  (See People v. Edelbacher (1989) 47 Cal.3d 983, 1023, 254 Cal.Rptr. 586, 766 P.2d 1․)   Recent decisions of this court have given expansive definitions to the term ‘lying in wait,’ while drawing little distinction between ‘lying in wait’ as a form of first degree murder and the lying-in-wait special circumstance, which subjects a defendant to the death penalty.  (People v. Hardy (1992) 2 Cal.4th 86, 161–164, 191, 5 Cal.Rptr.2d 796, 825 P.2d 781 ․;  People v. Webster (1991) 54 Cal.3d 411, 448–449, 285 Cal.Rptr. 31, 814 P.2d 1273;  People v. Morales (1989) 48 Cal.3d 527, 553–559, 257 Cal.Rptr. 64, 770 P.2d 244;  People v. Ruiz (1988) 44 Cal.3d 589, 613–615, 244 Cal.Rptr. 200, 749 P.2d 854).   Constrained by the principle of stare decisis, I concurred in the more recent of these decisions, which were reached after I joined the court.   I have a growing concern, however, that these decisions may have undermined the critical narrowing function of the lying-in-wait special circumstance:  to separate defendants whose acts warrant the death penalty from those defendants who are ‘merely’ guilty of first degree murder.”  (People v. Ceja, supra, 4 Cal.4th 1134, 1147, 17 Cal.Rptr.2d 375, 847 P.2d 55, Kennard, J. concurring.)

By effectively stripping the “physical concealment” element from the “lying in wait” definition, California courts have converted the latter into a “waiting in wait” special circumstance.   As long as some significant time elapses from the moment the defendant first premeditates killing a victim and the act itself—and especially if the defendant remains in repose for even a minute or two—the crime will qualify as a “lying in wait” murder.

The remaining elements are present in nearly all premeditated murders.   How many persons who actually premeditate killing someone announce their purpose to the victim rather than “concealing” it?   How many of them fail to “watch and wait” for an opportune time to commit the fatal act?   And, how many of them don't “surprise their unsuspecting” victims?

Consider the classic premeditated spousal murder scenarios.   The husband conceals his murderous purpose and watches and waits until his wife emerges from the shower before surprising his unsuspecting victim by strangling her.   Or the wife conceals her murderous purpose and watches and waits in the living room until her husband returns from the kitchen before surprising her unsuspecting victim by shooting him dead.   Clearly these and other not uncommon patterns of premeditated murder qualify for the “lying-in-wait” special circumstance as that category is defined currently under California law.

Indeed I suspect a very high percentage of premeditated murders satisfy all three of the elements of the “lying-in-wait” special circumstance as those elements have been defined in recent California opinions.   Yet “lying in wait” is supposed to function as a special circumstance differentiating among different premeditated murders and identifying a narrow sub-category of people who commit these murders who warrant a very special punishment—the death penalty.

The instant case provides a pretty good illustration of some of the problems with the current expansive definition of the “lying in wait” category of special circumstance murder.   The defendants here did not hide behind a car and shoot the victim from that vantage point.   Nor did they suddenly emerge from hiding with their guns blazing.   No, they were merely waiting around in plain view for their victim to arrive in the neighborhood.

Were the defendants somehow more culpable because they lounged around in plain sight leaning on a parked automobile waiting for their victim to appear, than if they had arrived at the location a bit late so they would have appeared at the same moment the victim did.   If they had shown up at that more propitious time and walked directly to the victim's car as soon as it arrived, in the same way as they did in this case, presumably they would not have been considered to have “watched and waited” and thus would not have been eligible for the “lying-in-wait” special circumstance.   But they would have premeditated the murder just as long.   The victim would have been just as “surprised” as he was.   Everything would have been as it was, except the defendants would not have remained in repose in plain view for some period of time before the victim arrived.   Indeed there is nothing in the evidence to suggest defendants gained anything as far as their attack or that the victim suffered any more just because they happened to have shown up earlier and were leaning against a parked car when the victim pulled up in another vehicle.

As it turns out, for these defendants the difference between life and death may hinge on a simple matter of timing.   A few minutes later and it would have been “simple” premeditated murder.   A few minutes earlier and it constitutes “lying-in-wait” special circumstance murder.   Worse than that, it is a matter of timing which has nothing to do with the defendants' state of mind or the victim's suffering or any other meaningful reason for imposing death rather than life imprisonment as the maximum penalty.

I respectfully request the California Supreme Court to reexamine the definition of the “lying-in-wait” special circumstance as it is emerging in California law and consider whether that expansive interpretation fulfills the “critical narrowing function” required by the Constitution.   I further respectfully request the high court consider whether without the element of true “ambush” this special circumstance provides a rational and meaningful basis for distinguishing between capital and noncapital cases.


FN1. Unless otherwise noted all statutory references are to the Penal Code..  FN1. Unless otherwise noted all statutory references are to the Penal Code.

2.   It reads:  “The penalty for a defendant found guilty of murder in the first degree shall be death or confinement in state prison for a term of life without the possibility of parole in any case in which one or more of the following special circumstances has been charged and specially found under Section 190.4, to be true:  [¶] (15) The defendant intentionally killed the victim while lying in wait.”

3.   This formulation was approved in People v. Edwards (1991) 54 Cal.3d 787, 822, 1 Cal.Rptr.2d 696, 819 P.2d 436 and People v. Hardy (1992) 2 Cal.4th 86, 163, 5 Cal.Rptr.2d 796, 825 P.2d 781.   It has been incorporated into CALJIC No. 8.81.15 (1989 Revision) [“The term ‘while lying in wait’ within the meaning of the law of special circumstances is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise [even though the victim is aware of the murderer's presence].   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.”].

FRED WOODS, Associate Justice.

LILLIE, P.J., concurs.

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Docket No: No. B069469.

Decided: May 07, 1993

Court: Court of Appeal, Second District, Division 7, California.

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