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Name: People v. Arellano
Case #: B170571
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 01/18/2005
Subsequent History: Revw den. 4/27/05

A defendant’s threats to a victim do not negate the surprise element of a lying-in-wait special circumstance. The defendant argued that insufficient evidence supported the special circumstance because the evidence did not establish that the victim was surprised. He argued that the victim could not have been taken by surprise because he had followed her for months, warned her that he planned to kill her, and had telephoned her continuously. The court rejected this argument, noting that while a victim of domestic violence might suspect that she will be fatally attacked at some point in the future, the victim in this case had no way of knowing when or where the attack would occur. Further, sufficient evidence established the element of concealment even though neighbors across the street could have seen the defendant waiting in the victim’s driveway, because the important issue is whether the concealment puts the defendant in a position of advantage over the victim.