In what circumstances have courts found that the special circumstance of lying in wait is unconstitutional?

In People v. Gutierrez (2002) 28 Cal.4th 1083, the defendant contended "the special circumstance of lying in wait is unconstitutional because there is no significant distinction between the theory of first degree murder by lying in wait . . . and the special circumstance of lying in wait, and that the special circumstance therefore fails to meaningfully narrow death eligibility." (Id. at p. 1148.) The court noted "[w]e have repeatedly rejected the same contention with respect to analogous facts and circumstances . . . [Citations.]" (Ibid.) "The distinguishing factors . . . that characterize the lying-in-wait special circumstance constitute 'clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty.' [Citation.]" (Id. at p. 1149, italics added.)

With respect to the specific issue before us, as noted above, the court in People v. Stevens, supra, 41 Cal.4th 182, held that CALCRIM No. 728 survived constitutional

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