What is the test for a charge of first degree lying-in-wait murder?

"A conviction for murder requires the commission of an act that causes death, done with the mental state of malice aforethought (malice). [Citation.] Malice may be either express or implied. [Citation.] Express malice is an intent to kill. [Citation.] Implied malice does not require an intent to kill. Malice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses. [Citation.]" (People v. Gonzalez (2012) 54 Cal.4th 643, 653.)

Page 42

First degree lying-in-wait murder can be committed without the intent to kill, although, in that case, it does require implied malice. (People v. Laws, supra, 12 Cal.App.4th at pp. 794-795.) Thus, the prosecutor's statements to the effect that a lying-in-wait theory of first degree murder does not require an intent to kill correctly stated the law.¹⁶