What are the elements of the lying-in-wait special circumstance?

"[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court ... sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal or writ, moreover, the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer. [Citations.]" (People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278.) Based on our independent review of the evidence, we hold that the magistrate was correct when he concluded the People had presented sufficient evidence at the preliminary hearing to hold defendant to answer on the lying-in-wait special circumstance.

The evidentiary showing required for a preliminary hearing is not substantial. A defendant may be held to answer "if there is some rational ground for assuming the possibility that an offense has been committed and that the accused is guilty of it. [Citation.] The information will be set aside only where there is no evidence that a crime has been committed or there is no evidence to connect the defendant with a crime shown to have been committed. [Citation.] Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. [Citation.]" (People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 864, 225 Cal.Rptr. 62, original italics.) "[O]ur function is to determine whether a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion that the defendant committed the crime charged." (Id. at pp. 864-865, 225 Cal.Rptr.

Page 324

The elements of the lying-in-wait special circumstance are "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...." (People v. Carpenter (1997) 15 Cal.4th 312, 388, 63 Cal.Rptr.2d 1, 935 P.2d 708; People v. Morales (1989) 48 Cal.3d 527, 557, 257 Cal.Rptr. 64, 770 P.2d 244.)