Filed 7/21/16 P. v. Kane CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL R. KANE,

Defendant and Appellant.

 B264639

 (Los Angeles County

 Super. Ct. No. LA074423)

APPEAL from a judgment of the Superior Court of Los Angeles County, Martin 

L. Herscovitz, Judge. Affirmed.

Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, 

Supervising Deputy Attorney General, David A. Wildman, Deputy Attorney General, for 

Plaintiff and Respondent.

_______________________
2

The jury convicted defendant and appellant Michael Kane in count 1 of first 

degree murder of his wife, in violation of Penal Code section 187, subdivision (a).1 The 

jury also found true the special circumstance that the murder was committed by lying-inwait, within the meaning of section 190.2, subdivision (a)(15), and that defendant used a 

deadly weapon, to wit, a knife, in the commission of the offense within the meaning of 

section 12022, subdivision (b)(1). The jury also found defendant guilty in count 2 of 

making a criminal threat (§ 422, subdivision (a)), and in count 5 of disobeying a domestic 

relations court order (§ 273.6). 

Defendant was sentenced in count 1 to life in prison without the possibility of 

parole, plus one year for the use of a knife. The mid-term of two years was imposed for 

the criminal threats conviction in count 4. Defendant was sentenced to one year in 

county jail in count 5, which the court stayed pursuant to section 654. 

Defendant contends that (1) insufficient evidence was presented to support the 

lying-in-wait special circumstance; and (2) the lying-in-wait special circumstance is 

unconstitutionally vague and violates the Eighth Amendment because it is 

indistinguishable from the lying-in-wait theory of first degree murder. 

We affirm. 

STATEMENT OF FACTS

Dissolution of the Marriage of Defendant and Michelle Kane

Defendant was married to the victim, Michelle Kane (Michelle).2 They had a son 

and daughter. Defendant moved out of the family home in February 2013. Michelle 

 

1 All further statutory citations are to the Penal Code unless otherwise indicated.

2 Because there are multiple women named Michelle in this case, for clarity we 

refer to the victim, Michelle Kane, by her first name. 
3

filed for dissolution of the marriage in April 2013. Michelle obtained a temporary 

restraining order on April 24, 2013, which ordered that defendant not threaten or harass 

her and authorized her to legally record conversations during custodial exchanges. The 

restraining order was in effect during the period spanning June 13-15, 2013. 

“The Beast is Hungry” and Other Threats

As part of a custody agreement, defendant and Michelle exchanged the children in 

the parking lot of the police station in Topanga on June 13, 2013. Michelle recorded 

defendant making various threats to her. Defendant said to Michelle, “The beast is 

hungry. He’s ready to feed. You’re not going to make it a week. Forget it, we’re not 

making it a week. [¶] . . . [¶] I could snap any second. You ain’t got three days. . . . 

Watch out for me. [¶] . . . [¶] I’ll beat you up right here, I’m ready to feed.” Defendant 

said that he had gone “beserk” and was not afraid of the police. 

That evening, Michelle sent the recording via email to her attorney, Matthew 

Skarin. Skarin listened to the recording and filed ex parte notice for an emergency 

hearing to address child custody and visitation rights. Michelle did not want defendant to 

have the children for Father’s Day weekend, so Skarin sent a copy of the request to the 

defendant’s attorney for notice. Skarin then suggested Michelle take the recording to the 

police station and notify the police that defendant violated the restraining order. 

Michelle went to the police station at 1 p.m., where she spoke with Officer Korina 

Bovaro about the recorded threats. Officer Bovaro feared for Michelle’s safety, so she 

advised that Michelle obtain a stay-away order, not return home, and stay with friends or 

family that night. Michelle left the station between 4 p.m. and 5 p.m. 

Purchase of Knives at a Big 5 Store

At about 10:45 a.m. on June 14, 2013, defendant went to a Big 5 sporting goods 

store and purchased two hunting knives from assistant manager Blake Blanchard. 
4

Defendant paid for both knives with his credit card. The transaction was captured by the 

store’s surveillance cameras. 

Events leading up to the murder

Also on June 14, Michelle contacted her friend, Michelle Levin (Levin), and 

explained that she had filed a police report against defendant for violating the restraining 

order. Michelle was planning on spending the night with her mother in Marina Del Rey, 

but stopped at the Levin residence beforehand to play the recording for Levin and her 

husband, Howard (Howard). While Michelle was playing the tape for the Levins, 

defendant called Michelle and left several voicemails, stating he wanted her to meet him 

at the family home with the police so he could pick up his belongings. Levin testified 

that defendant had moved out of the family home in February and already had all of his 

belongings. Levin said defendant told Michelle he was going to get her when the police 

were on their break. The Levins advised Michelle that she should not meet with 

defendant or return his phone calls. 

Later that evening, Michelle learned that defendant had stopped at her work 

around 3:50 p.m. while she was gone. Defendant asked Michelle’s coworker, Michelle 

Rosser (Rosser), to see Michelle so he could drop something off for the children. It 

appeared he had three pairs of rolled up adult sized jeans in a bag. Rosser told defendant 

Michelle was home sick with their daughter. Defendant thanked Rosser and left. 

Michelle called Skarin to tell him defendant had stopped by her work and violated the 

restraining order a second time. Skarin again advised her to contact the police. 

About an hour after her first visit, Michelle returned to the police station and 

spoke with Officer Bavaro a second time. Michelle explained that she was concerned 

because defendant had never previously visited her at work. Michelle played a voicemail 

for Officer Bavaro in which defendant said, “Where are you? I am looking for you. I 

have a bag of - - a backpack of things, clothing and things that I want to give to the 

children. You’re not at work, I went by there. Where are you?” Officer Bavaro found it 
5

bizarre that defendant repeated the same statement several times. Officer Bavaro again 

advised Michelle not to spend the night at home and to immediately call 9-1-1 if she 

spotted defendant. Michelle declined staying at a shelter and declined being given 

information about a shelter. 

Broken Windows at Michelle’s Home 

That same night, at about 5:30 p.m., the family’s neighbor Ella Isichei and her 

daughter heard glass breaking at the Kane family home. The two women watched 

defendant use a rod to smash the home’s garage windows and the window above the front 

door. Isichei wanted to go downstairs and tell defendant to stop, but her daughter begged 

her not to go. Isichei did not call the police because defendant was smashing the 

windows to his own family home. 

Defendant Appears at Daycare and Michelle Returns to the Levin’s Home

On June 14, 2013, Michelle intended to pick up clothing and other necessities 

before going to her mother’s house in Marina Del Rey. Michelle was crying when she 

arrived at her children’s daycare that morning. She told the owner, Mary Gossett, that 

defendant had threatened her and she was scared for her life. Michelle and Levin 

returned at 6 p.m. to pick up the children. As they drove off, defendant arrived at the 

daycare and asked for his children. Defendant gave Gossett a hug and told her “he was 

going to make the Jewish wife happy.” Gossett could smell alcohol on defendant and 

noted that the behavior was unusual. Defendant stated he loved everyone and had no 

money to give and then accused Michelle of having a male friend. Gossett called 

Michelle and left a message, expressing her concern that defendant may harm himself. 

Gossett was worried about both defendant and Michelle. 

Michelle, her children, and the Levins ate dinner around 7:30 p.m. at the Levin 

residence. Michelle asked Howard to escort her to her family home, but he was tired 
6

from work, so at about 8 p.m. Michelle and Levin drove to Michelle’s home. They 

immediately noticed the broken window above the garage door. Michelle called the 

police. The police arrived, checked the home to make sure it was clear, and took a report. 

Michelle then packed her belongings while Levin tried to clean up the glass. They 

realized it was past 10:00 p.m. and Levin asked that Michelle and her children stay at the 

Levin residence for the night instead of making the drive to Marina Del Rey. 

When they returned to the Levin residence, Michelle put her daughter to bed. Her 

son was having difficulty falling asleep. She decided to put him in the car and drive him 

around so that he would fall asleep. At approximately 11:30 p.m., while Michelle was 

out driving her son, Levin received a phone call from Michelle’s home alarm company. 

Levin was the emergency contact if the company could not reach Michelle directly. 

Levin gave the company permission to dispatch the police to Michelle’s home. Michelle 

returned to the Levin residence to drop off her son, then left on her own to meet the 

police at her home. 

Officer Albert Medrano met Michelle at her home and noticed that in addition to 

the broken glass, it looked like someone had bent the front door frame. Officer Medrano 

could tell Michelle was scared and wanted to leave the area as soon as possible. After 

speaking with Officer Medrano, Michelle returned to the Levin residence at about 

1:00 a.m. and spent the night. 

Defendant’s Strange Behavior

Angela Means lived in the same apartment complex as defendant in June 2013. 

Means knew defendant for a few months. She would see defendant smoking as she 

walked her dog. Means and defendant were friendly and they would talk about Michelle. 

Defendant told Means that he was very upset about how things were going and that his 

children were a “sore spot.” Means stated that defendant was always very fidgety, 

anxious, and frustrated. Almost every conversation they had was about his marriage and 

divorce. 
7

Means spotted defendant in the back stairwell of their building before 6:00 a.m. on 

June 15, 2013. Defendant’s hair and posture were different than usual. He seemed very 

calm and at peace. With a smile and chuckle, defendant told her that the divorce was 

getting rough. This behavior disturbed Means, so she told defendant she had to leave. 

Defendant then picked Means’s dog up, brought it close to his face, and said, “goodbye.” 

Means thought defendant was going to kill himself and the encounter made her uneasy 

for the whole morning. 

The Murder of Michelle by Defendant

Howard went to a 7-Eleven convenience store at about 6:30 a.m. on the morning 

of June 15, 2013. When Howard returned home he decided to park his car across the 

street because Michelle’s car was in the driveway. Michelle’s car had a personalized 

license plate that read, “Texan Girl.” He walked into his home and noticed Michelle on 

the phone with the insurance company. He told Michelle he admired her brave and calm 

behavior after all that had happened to her in the past couple of days. 

Howard went into his office to play with Michelle’s daughter. At close to 

8:00 a.m. Levin shouted, “Someone’s at the door.” Howard looked through the door’s 

peep hole and saw defendant, who was smiling. While Howard owns a pistol, he did not 

retrieve it. Howard opened the door, stepped outside, and closed the door behind him 

without locking it. He asked defendant what he was doing there. Defendant calmly 

replied that he had always considered the Levins friends of the family and he stopped by 

to check on the well-being of the children. Howard told defendant he needed to go home 

and get some rest, but defendant kept changing the subject. Howard mentioned the 

broken windows and told defendant he should go to the family home and help pick up the 

glass so no one would get cut. Defendant changed the subject, saying someone had 

broken his car window. Howard leaned over to look at defendant’s car window, but felt 

like he was being distracted because the direction defendant was pointing required 

Howard to move toward the street and away from the front door. Defendant looked at his 
8

wrist and then told Howard he had to speak with Michelle for a second. Howard replied, 

“That’s not going to happen.” Howard did not see anything in defendant’s hands during 

their conversation. 

While Howard was outside talking to defendant, Levin looked through the peep 

hole, noticed defendant, and told Michelle to call 9-1-1. Michelle was nervous, but kept 

calm during the phone call to 9-1-1. Michelle said to Levin, “I hope Howard can keep 

[defendant] here long enough for the police to come and arrest him.” 

The conversation between Howard and defendant went silent. Defendant quickly 

reached for the door handle, catching Howard by surprise. Howard and defendant fought 

over the door handle, but defendant overpowered Howard and broke into the house, 

leaving Howard on the floor. Defendant did not say anything and darted straight to 

Michelle. Howard yelled, “Call 911!” Levin said that she called 9-1-1, thinking it would 

deter defendant, but he sprinted past her towards Michelle. Michelle tried to back away 

from defendant, but he got close to her and punched her with an underhand motion, 

saying nothing while doing so. The Levins did not realize at the time that defendant was 

stabbing Michelle. 

After defendant punched Michelle three times, Howard came around the corner 

and bear-hugged defendant from behind. The two men struggled before falling to the 

ground. Howard yelled out to both women to run and call 9-1-1. Howard realized 

defendant had a knife.3 Michelle and Levin ran to a neighbor’s house. Levin banged on 

the neighbor’s door while Michelle stayed on the lawn, hunched over and holding her 

stomach. Michelle said, “He got me. He got me. . . . He stabbed me.” Michelle 

apologized to Levin by stating, “I’m sorry. I didn’t think he knew where you lived.”

Defendant ran out of the Levin residence, down their driveway, and headed toward 

the area where Michelle and Levin were standing. Michelle ran into the street, trying to 

avoid defendant as he was throwing right hook punching motions towards her. Levin 

noticed her husband run out of the house. He tripped at the bottom of his driveway. 

 

3 The knife used in the assault was one of the knives purchased at the Big 5 store. 
9

When she turned around, defendant was on top of Michelle, straddling her, stabbing her 

repeatedly from her head all the way down her waist. 

Levin ran back into her home, locked the door, set her alarm, and called 9-1-1. 

Howard went into the kitchen, thinking he needed to get a weapon, and instead washed 

blood from a cut on his hand, retrieved a towel, and walked outside to help Michelle, but 

she had already died.

Evidence Recovered and Autopsy Results

Detective David Peteque arrived on the scene at 9:25 a.m. and immediately 

secured the crime scene. He found a black folding knife, laying in the street, next to 

Michelle’s body. 

The autopsy report revealed that Michelle had been stabbed in the face, chest, 

abdomen region, back, and upper extremities. The coroner testified that in his opinion, 

the death was homicide by multiple sharp force injuries. Both lungs had been penetrated 

and Michelle’s trachea had been stabbed as well. The coroner identified 41 knife wounds 

on Michelle’s body. 

Defense Evidence

Jennifer Richter was a friend of Michelle’s; Richter described their relationship as 

being “the best of friends.” Richter sent Michelle a text message on June 15, 2013. She 

socialized primarily with Michelle and the two children, and defendant was invited to a 

birthday party for Richter’s husband. Defendant did not like the way someone at the 

party spoke to him and uttered something rude in response. Michelle disclosed to Richter 

that defendant was seeing a psychiatrist and was supposed to be on medication, but he 

often failed to take his medicine or show up for his appointments. Richter testified that 

she saw defendant be verbally abusive to Michelle on several occasions. She had never 

seen defendant be physically abusive to her. Michelle told Richter that defendant 
10

threatened to hurt and kill her. Michelle said defendant threatened to behead her. 

Michelle at one point called Richter and told her that defendant had accused 

Richter’s husband of smashing his car window. Michelle also said that defendant alleged 

she and Richter were having a lesbian relationship, which was untrue. 

Defendant’s medical records from Olive View Medical Center were admitted into 

evidence, including a number of different prescribed medications. Dr. Ronald Markman, 

a psychiatric expert witness for defendant, explained the uses of several drugs, including 

drugs prescribed for atypical antipsychotic behavior, bipolar disorder, schizophrenia, 

anxiety, and depression. 

DISCUSSION

Sufficiency of the Evidence of the Lying-In-Wait Special Circumstance

Defendant contends the prosecution failed to present sufficient evidence to support 

the lying-in-wait special circumstance finding. He argues that the elements of lying-inwait are not supported by the evidence because defendant did not conceal his intent to kill 

Michelle, nor did he engaging in a period of watching and waiting. We disagree.

Standard of Review

“In assessing the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it discloses evidence that is 

reasonable, credible, and of solid value such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is 

unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support the [the conviction].’ [Citation.]” (People v. Bolin (1998) 

18 Cal.4th 297, 331.)

“‘Although it is the duty of the jury to acquit a defendant if it finds that 
11

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt 

and the other innocence [citations], it is the jury, not the appellate court which must be 

convinced of the defendant’s guilt beyond a reasonable doubt. “‘If the circumstances 

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant a reversal of the judgment.’” [Citations.]’” (People v. Stanley (1995) 10 Cal.4th 

764, 792-793.)

Elements of the Lying-in Wait Special Circumstance

Section 190.2 provides in pertinent part: “(a) The penalty for a defendant who is 

found guilty of murder in the first degree is death or imprisonment in the state prison for 

life without the possibility of parole if . . . [¶] . . . [¶] (15) [t]he defendant intentionally 

killed the victim by means of lying in wait.” “‘The lying-in-wait special circumstance 

requires “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 . . . .” [Citations.]’” (People v. Moon

(2005) 37 Cal.4th 1, 22 (Moon).) 

Concealment of Purpose

“[An] element of the lying-in-wait special circumstance is that the murderer act by 

means of concealment.” (People v. Arellano (2004) 125 Cal.App.4th 1088, 1095 

(Arellano).) “‘[P]hysical concealment from, or an actual ambush of, the victim is not a 

necessary element of the offense of lying-in-wait murder.’” (Ibid.) Concealment is 

established by substantial evidence “‘“‘that a defendant’s true intent and purpose were 

concealed by his actions of conduct. It is not required that he be literally concealed from 

view prior to his attack.’”’ (People v. Hillhouse (2002) 27 Cal.4th 469, 500[].)” (People 
12

v. Stevens (2007) 41 Cal.4th 182, 202.) 

Relying on his conduct in the days prior to the killing, defendant contends he did 

not conceal his purpose or intentions from Michelle. Defendant points to the statements 

recorded by Michelle that “the beast is hungry” and she “was not going to make it a 

week.” Michelle responded by obtaining an emergency stay-away order and reporting 

the statements to the police. Defendant points out that Michelle told others defendant 

intended to kill her. She did not stay at home in an attempt to avoid defendant. From 

these circumstances, defendant reasons that Michelle was well aware of his intent, and 

the element of concealment is accordingly not supported by substantial evidence. 

Defendant’s persistent threats prior to the murder do not negate the element of 

concealment of purpose. (Arellano, supra, 125 Cal.App.4th at p. 1095.) In Arellano, the 

defendant warned his ex-wife for months that he intended to kill her, harassed her at 

work, and made threatening phone calls, including a call on the night of the murder. 

(Ibid.) The Arellano court rejected the defendant’s contention that the victim was aware 

of his purpose on the night of the murder based on the defendant’s prolonged history of 

threats of violence: “While a victim of domestic violence and continuing death threats 

might well suspect she will be attacked sometime in the future, she has no way of 

knowing exactly when or where that attack will occur. The very fact Arellano repeatedly

told [the victim] her death was imminent tended to dilute the effect of those warnings. 

Indeed, [the victim’s sister] testified [the victim] pointedly refused to curtail such 

activities as going to the movies in the face of Arellano’s continual death threats. We 

conclude Arellano’s death threats did not negate the surprise element of lying in wait.” 

(Ibid.; accord People v. Jantz (2006) 137 Cal.App.4th 1283, 1291 [“prior threats to the 

victim do not necessarily negate the concealment and surprise elements of murder by 

lying in wait” and “[a] victim of threats and domestic violence may be fearful of further 

violence, but is not charged with notice that he or she might be murdered”].)

The following circumstances demonstrate that Michelle, as well as the Levins, 

were unaware of defendant’s homicidal purpose for appearing at the Levin residence. 

Howard described defendant’s appearance at the door as “smiling, pretty relaxed 
13

looking.” Howard went outside, thinking he would simply talk to defendant and tell him 

he should not be there due to the restraining order. He neither locked the door to the 

house nor armed himself with the firearm he had in the home. Defendant said he stopped 

by to check on the well-being of the children, sounding “very, very calm and very nice.” 

Defendant’s tone remained calm, even as Howard told him he had to stop his conduct and 

to go home. Howard felt like defendant was manipulating him by not answering his 

questions and denying that he broke windows at the home the previous night. It was not 

until defendant distracted Howard by directing him to look at his car window that 

defendant moved to gain entry to the house. At no point outside did Howard see a knife 

in defendant’s hand. Howard explained he “never thought that he was going to break in 

and stab her to death.”

When Levin saw that was defendant outside her home, she advised Michelle to 

call 9-1-1, who did so. Michelle remained calm but was nervous. Michelle said she 

hoped Howard could keep defendant at the location long enough for the police to arrive 

and arrest him. She also apologized to Levin for defendant being at her house. Levin did 

not hear any noise from outside, confirming Howard’s version of the calm nature of his 

conversation with defendant. Levin and Michelle stayed in the kitchen, having a 

conversation, waiting for the police to arrive. The calm was broken when “the door flew 

open. You could see my husband fell into the house, like, holding the door. And 

[defendant] just ran right over him, past me at Michelle.” Defendant then stabbed 

Michelle with a motion “like, an underhanded punch with his left hand.”

Further, defendant argues that he clearly and unequivocally disclosed his intent to 

kill Michelle. However, the evidence presented at trial can reasonably be interpreted that 

he concealed his intent to imminently kill Michelle up until the moment he rushed past 

Howard to stab Michelle. According to Richter, Michelle disclosed that defendant had 

threatened to hurt and kill her, including a threat to decapitate her, at some point in the 

past. However, defendant had never been physically abusive to Michelle. As in 

Arellano, defendant’s continued harassment and threats diluted the effect of any threats 

he made leading up to the murder, concealing his true intentions from his victim. 
14

Further, defendant’s comments that he was “ready to feed” and that “we’re not making it 

a week” were not explicit threats to kill her. At the time he made these threats, he made 

no moves to harm Michelle. While Michelle was clearly scared and went to the police 

for help, a jury could reasonably believe that Michelle may have feared for her safety but 

not for her life. A jury could reasonably believe that Michelle thought these comments 

were part of a larger pattern of harassment, and not an explicit threat to kill her. Michelle 

could have also viewed defendant’s bizarre behavior as symptoms of his mental illness, 

rather than an express threat to kill her. Michelle’s actions leading up to her murder 

support an inference that she did not believe her murder imminent, and thus defendant 

concealed his true intent from her. Detective Bovaro advised Michelle to go to a shelter, 

but Michelle declined and refused to receive any information about a shelter, instead 

planning to go to her mother’s home.

The testimony of the Levins and Michelle’s responses to defendant’s actions 

constitute substantial evidence that defendant successfully concealed his homicidal intent 

up until the moment he forced his way into the house. Neither the Levins nor Michelle 

acted as if what was taking place was anything more than defendant’s ongoing harassing 

behavior. A rational trier of fact could conclude that defendant concealed his true intent 

for purposes of the lying-in-wait special circumstance. 

Watching and Waiting

Defendant next argues he did not watch and wait for an opportune time to attack 

Michelle. Defendant reasons that Michelle knew that he had been looking for her, he 

intended to hurt her, and she was aware defendant was outside of the Levin residence. 

Defendant’s approach to the house, he argues, was “in full view of many witnesses and 

[he] announced his arrival.” This is not correct, as substantial evidence supports the 

element of watching and waiting.

The lying-in-wait special circumstance requires a substantial period of watching 

and waiting for an opportune time to act. (Moon, supra, 37 Cal.4th at p. 22.)
15

“‘Watchful’ does not require actual watching; it can include being ‘alert and vigilant’ in 

anticipation of the victim’s arrival to take him or her by surprise. [Citation.]” (People v. 

Streeter (2012) 54 Cal.4th 205, 247 (Streeter).) Our Supreme Court has never fixed a 

minimum time period for watching and waiting. (People v. Mendoza (2011) 52 Cal.4th 

1056, 1073.) What is required in not a precise period of time, but a period of watchful 

waiting that is substantial. (Ibid., citing Moon, supra, at p. 23 [“a few minutes can 

suffice”].) Even a “relatively short” period of watching and waiting can be sufficient to 

satisfy the element. (Moon, supra, at p. 24.) “Although we have held the period of 

watchful waiting must be ‘substantial’ [citation], we have never placed a fixed time limit 

on this requirement. Indeed, the opposite is true, for we have previously explained that 

‘[t]he precise period of time is also not critical.’ [Citation.] Even accepting defendant’s 

testimony that he waited only a few scant minutes before killing [the victim], a few 

minutes can suffice. [Citation.]” (Id. at p. 23) 

Substantial evidence supports a finding that defendant watched and waited for a 

substantial period of time before seizing the opportunity to get past Howard and enter the 

house for the purpose of killing Michelle. Defendant had reason to believe Michelle was 

in the home, because her car with a personal license plate was in the driveway. 

Defendant arrived at the Levin residence with the knife he had recently purchased, but he 

kept the weapon concealed. Defendant calmly engaged in conversation with Howard, 

who tried to convince him to change his harassing behavior and return home. Defendant 

was non-responsive to some of Howard’s statements, prolonging his presence. He 

distracted Howard by directing him to a broken window on his car, waiting for an 

opportunity to get past Howard and enter the Levin residence. Defendant was at the 

location long enough to satisfy the requirement of watching, and he waited for the 

moment he felt he could gain entry by surprise. This is sufficient to satisfy the second 

element of the lying-in-wait special circumstance.

Constitutionality of the Lying-in-Wait Special Circumstance
16

Defendant contends the lying-in-wait special circumstance is unconstitutionally 

vague and overbroad in violation of the Eighth Amendment because it is 

indistinguishable from the lying-in-wait theory of first degree murder. Based on this 

premise, defendant argues the special circumstance “is unconstitutionally vague and 

creates an artificial application of the death penalty by failing to narrow the class of death 

[penalty] eligible defendants.” We reject the contention. 

First, we agree with the Attorney General that defendant lacks standing to make 

this argument because the prosecution did not seek the death penalty as punishment in 

this case. In other words, defendant is making a vagueness argument that has no impact 

on him. “‘“The rule is well established . . . that one will not be heard to attack a statute 

on [vagueness] grounds that are not shown to be applicable to himself and that a court 

will not consider every conceivable situation which might arise under the language of the 

statute and will not consider the question of constitutionality with reference to 

hypothetical situations.” [Citations.]’” (In re Perdue (2013) 221 Cal.App.4th 1070, 

1077-78.)

Second, our Supreme Court has repeatedly rejected the merits of defendant’s 

contention. “As we said in People v. Carasi (2008) 44 Cal.4th 1263, 1310 (Carasi ), 

‘[T]he lying-in-wait special circumstance . . . is limited to intentional murders that 

involve a concealment of purpose and a meaningful period of watching and waiting for 

an opportune time to attack, followed by a surprise lethal attack on an unsuspecting 

victim from a position of advantage.’ (See [People v.] Morales [(1989)] 48 Cal.3d [527,]

557.) Defendant acknowledges we have differentiated between the lying-in-wait special 

circumstance and lying in wait as a theory of first degree murder on the bases that the 

special circumstance requires an intent to kill (unlike first degree murder by lying in wait, 

which requires only a wanton and reckless intent to inflict injury likely to cause death) 

and requires that the murder be committed ‘while’ lying in wait, that is, within a 

continuous flow of events after the concealment and watching and waiting end. ([People 

v.] Michaels [(2002)] 28 Cal.4th [486,] 517; Morales, supra, at p. 558.) Contrary to 

defendant’s argument, the lying-in-wait special circumstance is not coextensive with 
17

either theory of first degree murder; it does not apply to all murders and is not 

constitutionally infirm. (Streeter, supra, 54 Cal.4th at p. 253; see People v. Johnson

(2016) 62 Cal.4th 600, 635–637.)” (People v. Casares (2016) 62 Cal.4th 808, 849.)

DISPOSITION

The judgment is affirmed. 

KRIEGLER, Acting P.J.

We concur:

BAKER, J.

RAPHAEL, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.