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Defendant was convicted by jury of first degree murder. (Pen. Code, §§ 187, 189.) On appeal, he contends the trial court committed prejudicial instructional error. Among other things, he challenges CALJIC No. 8.25, which informed the jury that murder immediately preceded by lying in wait is first degree murder, and defined the term “lying in wait.”

We reject defendant’s contention that CALJIC No. 8.25 is deficient because it does not require a finding that the lying in wait was done with the intent to kill or injure. As we shall explain, Penal Code section 189, which defines murder of the first degree to include murder perpetrated by means of lying in wait, does not require the lying in wait to be done with the intent to till or injure. All the statute requires is that the waiting and watching was done with the intent to gain advantage and take the victim unawares in order to facilitate the act which constitutes murder. We also conclude CALJIC No. 8.25 adequately instructs the jury that, to find a defendant guilty of first degree murder on a lying in wait theory, the jurors must find the act constituting murder was perpetrated by means of lying in wait.

In the…