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Name: People v. Russell
Case #: S075875
Court: CA Supreme Court
District CalSup
Opinion Date: 11/15/2010

For lying-in-wait murder, the period of time must be “substantial,” but there is no fixed time limit for the period of lying-in-wait. In this death penalty case, appellant was convicted of lying-in-wait murder for the deaths of two policemen. According to the evidence shown at trial, following a two-day estrangement, appellant returned to his wife’s house to talk to her. When she asked him to leave, he became upset and agitated. Appellant finally left, but warned his wife not to call the police. She fled to the neighbor’s house and summoned the police. Appellant then returned with an M-1 rifle, loaded it, walked outside, and fired the gun several times. When two police officers arrived and exited their patrol car, appellant fatally shot them before they could draw their guns. Appellant told the investigating detective that when he saw the police arrive, he turned the lights off and left the residence, hoping to sneak by the officers. Although it was dark, he realized that he could see the officer’s silhouettes. Concerned that they could see him, he decided to fire shots in front of them to scare them off. He fired several shots from a crouched position and then ran into the desert. He did not know the officers had been killed until he was arrested the following day. The jury was instructed with CALJIC No. 8.25 as to lying-in-wait murder. Lying-in-wait murder consists of (1) 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. Preliminarily, the Supreme Court found that the instruction was adequate. It then rejected appellant’s contention that the evidence was insufficient to establish a substantial period of time had passed before the shooting. The exact period of time is not critical. As long as the murder is immediately preceded by lying in wait, the defendant need not strike at the first available opportunity, but may wait to maximize his position of advantage before taking his victim by surprise. Here, appellant spent considerable time planning the crime. He found bullets and loaded the weapon. He went outside and fired the gun. He stated he intended to kill police. He made a plan to leave the house and sneak away. And he shot at the officers from a position of advantage.