People v. Howard CA3

background of this case. We do not rely on these facts in resolving the issue raised in this appeal.

2 [¶] 1. The defendant committed robbery in violation of Penal Code section 211; 2. The defendant intended to commit robbery; and 3. While committing robbery the defendant did an act that caused the death of another person.” (CALCRIM No. 540A.) The court instructed the jury on murder with malice aforethought that required the jury to find that defendant committed an act that caused the death of another person and he acted with a state of mind called malice aforethought. (CALCRIM No. 520.) The court instructed the jury on the lying-in-wait special circumstance with CALCRIM No. 728, as follows: “To prove that this special circumstance is true, the People must prove that: 1. The defendant intentionally killed Donte Rogers; and 2. The defendant committed the murder by means of lying in wait. A person commits a murder by means of lying in wait if: 1. He or she concealed his or her purpose from the person killed; 2. He or she waited and watched for an opportunity to act; 3. Then he or she made a surprise attack on the person killed from a position of advantage; and 4. He or she intended…