TRAYNOR, J. I concur, but wish to amplify the reasons for my concurrence.
Two basic questions are presented on this appeal : (1) Was [476]the instruction on lying in wait erroneous? (2) Was the evidence insufficient to warrant the giving of an instruction on lying in wait?
The instruction on lying in wait1 was erroneous in stating, “Where the killing is by ‘lying in wait’, and the act causing death was intentional, it is murder of the first degree, whether the killing was intentional or unintentional, as in such case it is not necessary that there exist in the mind of the perpetrator an intent to kill.”
A “killing” by means of lying in wait is not murder of the first degree unless it is first established that it is murder. Only then can the question arise whether it is murder of the first degree because perpetrated by lying in wait. Under the instruction given an unintentional killing that did not amount to murder would nevertheless be murder of the first degree. This error is fundamental.
The following statutory definitions of murder, malice aforethought, and first degree murder must first be carefully considered.
“Murder is the unlawful killing of a human being, with malice aforethought.” (Pen. Code, § 187.)
“Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Pen. Code, § 188.)
“All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, mayhem, or any act punishable under [477]Section 288 [lewd or lascivious act against a child], is murder of the first degree; and all other kinds of murder are of the second degree.” (Pen. Code, § 189.)
Section 189 does not state that a “killing” perpetrated by one of the enumerated means is murder of the first degree. It speaks only of “murder” that is so perpetrated. In People v. Coefield, 37 Cal.2d 865 [236 P.2d 570], the defendant, who had been convicted of murder of the first degree for a killing committed in the perpetration of a robbery, pointed out that “murder” is the grammatical antecedent of “which” in the clause “which is committed in the perpetration or attempt to perpetrate . . . robbery,” and contended that the killing was accidental and was therefore not with malice aforethought and was therefore not “murder” committed in the perpetration of a robbery, and accordingly was not murder of the first degree. We rejected this contention, holding not only that “malice is shown by the nature of the attempted crime, and the law fixes upon the offender the intent which makes any killing in the perpetration of or attempt to perpetrate the robbery a murder of the first degree” but that “in such a case the jury had no option but to return a verdict of murder of the first degree, whether the killing was done intentionally or accidentally.” (37 Cal.2d at 868, 869.) It is contended that since the poisoning or torturing of another or lying in wait to take him unawares involves substantial risk to human life, malice should also be found in the nature of such acts, and that a killing resulting therefrom should likewise be held to be murder of the first degree whether it was done intentionally or accidentally. Section 189, however, when read in the light of other sections of the Penal Code and the decisions of this court, is not amenable to that construction.
By the use of the phrase “or any other kind of willful, deliberate, and premeditated killing” (italics added) following the phrase “All murder which is perpetrated by means of poison, or lying in wait, torture,” the Legislature identified murder committed by any of the enumerated means as a “kind of” willful, deliberate, and premeditated killing. Ordinarily, to prove that a killing was willful, deliberate, and premeditated, evidence must be introduced from which the trier of fact can determine the state of mind of the defendant before he committed the act that resulted in his victim’s death, that is, whether the killing resulted from a deliberate intention to take human life.
[478]If the killing is murder within the meaning of Penal Code, sections 187 and 188, and is by one of the means enumerated in section 189, the use of such means makes the killing as a matter of law the equivalent of “a willful, deliberate, and premeditated killing.” Since any question as to the defendant’s willfulness, deliberation, and premeditation is taken from the trier of fact by force of the statute (People v. Bernard, 28 Cal.2d 207, 211 [169 P.2d 636] ; People v. Murphy, 1 Cal.2d 37, 41 [32 P.2d 635] ; see, also, the illuminating discussion in the early case of Riley v. State (1849), 28 Tenn. 646, 660-661), it bears emphasis that a “killing” by one of the three means enumerated in the statute is not the equivalent of a “willful, deliberate, and premeditated killing” unless it is first established that it is murder. Thus, if it is contended that a murder was committed by means of poison, it is not enough to show that a poison was administered and that a death resulted. If the poison was innocently given under the belief that it was a harmles drug and that no serious results would follow, there would be no malice, express or implied, and any resulting death would not be murder. (People v. Milton, 145 Cal. 169, 170-171 [78 P. 549].) If, however, the defendant administered poison to his victim for an evil purpose, so that malice aforethought is shown, it is no defense that he did not intend or expect the death of his victim. (People v. Coller, 2 Cal.App.2d 375, 380 [37 P.2d 869] ; see People v. Bernard, supra, 28 Cal.2d 207, 211.) Similarly, in the case of a killing by torture, it is not enough to show that the killing was by a means that incidentally caused pain and suffering to the victim. (People v. Bender, 27 Cal.2d 164, 177-178 [163 P.2d 8].) It must be established that the defendant intended to “cause cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or to satisfy some other untoward propensity.” (People v. Tubby, 34 Cal.2d 72, 77 [207 P.2d 51] ; People v. Daugherty, 40 Cal.2d 876, 886 [256 P.2d 911] ; People v. Martinez, 38 Cal.2d 556, 561 [241 P.2d 224].) The defendant need not intend that his victim die as a result of the torture, since , his intention to commit acts that involve a substantial risk to human life makes him guilty of first degree murder if a death results. (People v. Tubby, supra, 34 Cal.2d 72, 77.)
When it is contended that a killing is murder of the first degree on the ground that it was committed by lying in wait, it must likewise first be established that the killing was [479]murder.2 If the killing was not murder, it cannot be first degree murder, and it is immaterial that the defendant was lying in wait. Otherwise, absurd results might follow. Thus, a defendant might lie in wait to frighten a person. Unknown to defendant, that person might have a defective heart. His death from a heart attack as a result of the fright would not be murder. Again, a killing that unintentionally results from a fist fight is ordinarily involuntary manslaughter. (People v. Le Grant, 76 Cal.App.2d 148, 152 [172 P.2d 554] ; People v. Miller, 114 Cal.App. 293, 301 [299 P. 742].) If the defendant lay in wait for his victim to engage in a fist fight with him and the victim dies as a result of the fight, that fact alone is not sufficient to make it the equivalent of a “willful, deliberate, and premeditated killing.”
The instruction was also erroneous in stating that defendant was lying in wait if he was “waiting and watching and concealed from the person killed with the intention of inflicting bodily injury upon such person or of killing such person.” When read with the last paragraph of the instruction, the foregoing language directed the jury to find defendant guilty of first degree murder if he intended “bodily injury.” That definition falls short of the definition of murder in sections 187 and 188 of the Penal Code. It is true that murder may be committed without a specific intent to take human life if the killing is committed under circumstances that show an abandoned and malignant heart. To be so committed, however, the defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life. (See People v. Torres, 94 Cal.App.2d 146, 150 [210 P.2d 324] [striking victim with knife] ; People v. Semone, 140 Cal.App. 318, 324 [35 P.2d 379] [firing shotgun at trespassers] ; People v. Hubbard, 64 Cal.App. 27, 37 [220 P. 315] [shooting with intent only to wound] ; People v. Stein, 23 Cal.App. 108, 114 [137 P. 271] [firing shots at random into crowded dance hall].) As we have seen in considering the first error discussed above, a mere intent to inflict “bodily injury,” amounting to an as[480]sault and battery at most, would not be enough to constitute murder if a killing resulted therefrom.
From the foregoing discussion it is apparent that the instruction on lying in wait was defective largely because the court failed to explain that murder must first be established before the question of lying in wait can arise. Without such an explanation the instruction was not only misleading but a gross misstatement of the law. We would be compelled to hold that the instruction was prejudicial and resulted in a miscarriage of justice, if there was evidence in the record from which a reasonable jury could conclude that the killing was not murder. There is no such evidence.
Defendant confessed that he shot at Mrs. Bice for sexual pleasure. In one statement he said that she “had her coffee cup in her hand getting ready to drink her coffee which was what I was really aiming at . . . she had it right in front of her face.” In another statement he said that he simply “aimed at the woman in the stand, and pulled the trigger and drove off.” He said that he knew he was a poor shot. Under these circumstances there can be no doubt that malice must be implied and that the killing was murder. An intent to kill is not necessary for murder. Malice is implied “when the circumstances attending the killing show an abandoned and malignant heart.” (Pen. Code, § 188.) That is shown when, as here, the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death. By his own admissions defendant’s conduct demonstrates that he was not averse to endangering life for the sake of the sexual pleasure it gave him. Only a person with an “abandoned and malignant heart” could value the attainment of that pleasure more highly than human life. Since even if a proper instruction had been given, the jury could have come to no other conclusion than that the killing of Mrs. Bice was murder, the instruction did not result in a miscarriage of justice unless there was insufficient evidence to warrant the giving of any instruction on lying in wait.
We thus reach the crucial issue in this case: Was the evidence sufficient to warrant the giving of an instruction on lying in wait ?
Lying in wait requires the elements of waiting, watching, and concealment for the purpose of taking a victim unawares. (People v. Tuthill, 31 Cal.2d 92, 100-101 [187 P.2d 16] ; Barnards v. State, 88 Tenn. 183, 227 [12 S.W. 431].) It [481]does not mean that the defendant’s body must be in a lying position; it is immaterial whether he is lying, sitting, standing, or moving about, so long as the elements of waiting, watching, and concealment are all present for the purpose of taking the victim unawares. (People v. Repke, 103 Mich. 459, 468 [61 N.W. 861] ; State v. Walker, 170 N.C. 716, 718 [86 S.E. 1055].) The defendant may either wait for his victim to come to his place of hiding or he may go to a hiding place near his victim and wait for a favorable moment to murder him. (People v. Repke, supra, 103 Mich. 459, 468.)
The duration of the waiting, watching, and concealment necessary to constitute lying in wait cannot be arbitrarily fixed in units of time, just as the time necessary for the ordinary willful, deliberate, and premeditated killing cannot be so fixed. There must, however, be substantial evidence of a long enough period of waiting and watching in concealment to show a state of mind equivalent to premeditation and deliberation before the court can properly give an instruction on lying in wait. It is now settled that a mere specific intent to kill is not enough to constitute first degree murder under the classification of “any other kind of willful, deliberate, and premeditated killing,” and that there must be substantial evidence that the intent to kill was arrived at as a result of premeditation and deliberation. (People v. Holt, 25 Cal.2d 59, 90-91 [152 P.2d 21] ; People v. Thomas, 25 Cal.2d 880, 901 [156 P.2d 7] ; People v. Honeycutt, 29 Cal.2d 52, 61 [172 P.2d 698] ; People v. Valentine, 28 Cal.2d 121, 131 [169 P.2d 1].) If it is claimed that the murder was by one of the means enumerated in section 189, there must also be substantial evidence of the use of such means. Thus in the case of murder by lying in wait it is not enough that the victim be unaware of the presence of his assailant until the fatal wound is inflicted. It is also necessary that there be substantial evidence of the elements of waiting and watching. Otherwise a killing that was the result of a rash impulse would be converted into first degree murder.
In my opinion if the only evidence in this case was that with respect to the murder of Mrs. Bice, it would not be sufficient to sustain a finding of murder by means of lying in wait. Defendant saw deceased, a stranger to him, as he drove by in his automobile. He then drove around the block and parked in an alley in a position from which he could shoot at her. Standing alone, this evidence supplies no clue [482]as to whether defendant was waiting and watching for an opportunity to shoot at any victim who might present herself, or formed the intent to shoot only after the opportunity presented itself. Moreover, the fact that after seeing his victim, he drove round the block and parked in a position from which he could shoot, is not, when considered by itself, evidence of lying in wait. His victim was then at hand. He did not drive round the block into the alley to watch and wait for her but only to enable him to shoot her. Any delay in doing so after he had located his victim in an exposed position would not contribute to his success in executing his crime, but only increase the possibility that his victim might escape by moving from the area of danger. Thus unless defendant was watching and waiting for his victim before he came upon her, the murder was not committed by means of lying in wait.
The shooting of Mrs. Bice was not an isolated incident. On six other occasions defendant shot at women under similar circumstances. He carried his rifle with him in his automobile. His only motive for the shootings was sexual gratification. From this evidence the jury could reasonably infer that defendant drove about the city waiting and watching for whatever victims might present themselves. They could infer that he was waiting and watching for a victim on the night when he murdered decedent. Since in addition the murder was committed from a position of concealment, all of the elements necessary to constitute murder committed by means of lying in wait were present, and it was not error to present that theory to the jury.
Edmonds, J., concurred.
“The words ‘lying in wait’ do not refer to the position of the body of the person who commits a killing. There may be a ‘lying in wait’ within the meaning of the law where such person is sitting down, standing or to a degree moving about. The gist of ‘lying in wait’ is that the person place himself in a position where he is waiting and watching and concealed from the person killed with the intention of inflicting bodily injury upon such person or of killing such person. There is nothing in the law that requires that the ‘lying in wait’ exist for or consume any particular period of time before the firing of a shot or other act which caused the death. It is only necessary that the act causing death be preceded by and the outgrowth of the ‘lying in wait.’
“Where the killing is by ‘ lying in wait, ’ and the act causing death was intentional, it is murder of the first degree, whether the killing was intentional or unintentional, as in such ease it is not necessary that there exist in the mind of the perpetrator an intent to kill.”
In the California eases involving murder by lying in wait, there was no contention that the killing was not murder; the only question was whether it was of the first or second degree. (People v. Bernard, 28 Cal.2d 207 [169 P.2d 636] [victim struck with deadly weapon] ; People v. Tuthill, 31 Cal.2d 92 [187 P.2d 16] [victim shot with intent to kill] ; People v. Vukich, 201 Cal. 290 [257 P. 46] [same] ; People v. Miles, 55 Cal. 207 [same] ; People v. Gibson, 92 Cal.App.2d 55 [206 P.2d 375] [victim stabbed].)