The opinion
KENNARD, J., Concurring.
The court’s opinion, which I have signed, states that the waiting and watching required to support a first degree murder conviction on a lying-in-wait theory need not continue for any particular length of time. For this reason, it rejects defendant’s argument that the trial court should have instructed the jury that the period of waiting and watching must be substantial. (Maj. opn., ante, at pp. 1242-1245.) I agree.
I write separately to explain why my concurrence here does not conflict with my concurring and dissenting opinion in People v. Stevens (2007) 41 Cal.4th 182, 214 [ 59 Cal.Rptr.3d 196 , 158 P.3d 763 ] (Stevens). There, I expressed the view that a period of waiting and watching must be substantial. But in Stevens I was addressing lying in wait as a special circumstance (Pen. Code, § 190.2, subd. (a)(15)) rather than, as here, lying in wait as a form of first degree murder.
As I explained in Stevens , California’s death penalty law, which the voters enacted in 1978, contains a list of special circumstances that make a first degree murder punishable by death. (Pen. Code, § 190.2, subd. (a).) The list includes lying in wait, but not premeditation and deliberation. In this way, the provisions of our death penalty law reflect a determination by the voters that lying-in-wait murder is “more heinous than premeditated murder.” (Stevens, supra, 41 Cal.4th at p. 215 (conc. & dis. opn. of Kennard, J.).) Thus, I concluded, the voters must have intended that the lying-in-wait special circumstance be defined “in a manner that differed significantly from premeditated murder.” (Ibid.)
To make that important distinction, I concluded that the waiting and watching required to support the lying-in-wait special circumstance must *1276 continue for a substantial period of time. (Stevens, supra, 41 Cal.4th at p. 215 (conc. & dis. opn. of Kennard, J.).) Because the issue defendant raises here concerns lying in wait as a form of first degree murder, and not as a special circumstance, there is not the same need to distinguish defendant’s crime from other premeditated and deliberate murders. Indeed, this court has held that, for establishing that a murder is of the first degree, “proof of lying-in-wait” is “the functional equivalent of proof of premeditation, deliberation and intent to kill.” (People v. Ruiz (1988) 44 Cal.3d 589, 614 [ 244 Cal.Rptr. 200 , 749 P.2d 854 ].) In other words, submitting evidence of lying in wait is merely one of several ways of establishing premeditation and deliberation. Therefore, I join in the court’s opinion that, for purposes of establishing the degree of a murder, waiting and watching need not continue for any particular length of time. (See People v. Moon (2005) 37 Cal.4th 1, 23 [ 32 Cal.Rptr.3d 894 , 117 P.3d 591 ].)
Appellant’s petition for a rehearing was denied December 21, 2010, and the opinion was modified to read as printed above. George, C. J., and Werdegar, J., did not participate therein.