Concurring and Dissenting. I concur in the affirmance of the judgment as to defendant’s conviction of first degree murder, conspiracy to commit first degree murder, and grand theft of an automobile (together with the various sentence-enhancement findings). I also concur in the denial of the petition for writ of habeas corpus.
Otherwise, I dissent.
To begin with, I would reverse defendant’s conviction of robbery. The evidence is insufficient on at least one of the theories presented to the jury, specifically, that relating to the taking of the automobile.
Robbery has been defined by the Legislature as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, § 211.)
It is indisputable that the automobile was not taken from the victim’s “immediate presence”—so long as that crucial phrase is given a reasonable construction, as it was in our recent decision in People v. Hayes (1990) 52 Cal.3d 577 [276 Cal.Rptr. 874, 802 P.2d 376]: “[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.” (Id. at pp. 626-627, internal quotation marks omitted.) The automobile here was at least a quarter of a mile from the victim.
The majority’s analysis expands the crime of robbery in an altogether novel fashion and beyond any reasonable limit marked by the Legislature’s definition. Not only does the offense cover—as it has always and properly covered—the “taking” of an item of personal property from a person’s “immediate presence” “by means of force or fear.” But today for the first time, it is extended to the “taking” of the person from the item’s “immediate *461presence” by any means whatever—including, as here, deceit totally devoid of force or fear. The legislative definition has been redefined.
The majority’s analysis also overrules Hayes sub silentio. As noted, the rule of that case is that an item of personal property is in a person’s “immediate presence” if it “is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.” (52 Cal.3d at p. 627, internal quotation marks omitted.) The majority effectively “restate” the rule to the following effect: the item is in the person’s “immediate presence” if it “is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, regain his possession of it.” As so “restated,” the rule disappears. This is because a person, if not for violence or fear, can conceivably regain possession of any item, no matter how far distant it is.
As shown above, the evidence is insufficient to support the robbery conviction on at least one of the theories presented to the jury. When such is the case, the conviction must be reversed. (People v. Green (1980) 27 Cal.3d 1, 69-71 [164 Cal.Rptr. 1, 609 P.2d 468].)
I would then set aside the felony-murder-robbery special-circumstance finding. The underlying special circumstance, of course, requires a robbery. (Pen. Code, § 190.2, subd. (a)(17)(i).) But as shown, the evidence of robbery is insufficient. It follows that the evidence of the special circumstance is insufficient as well.
Next, I would set aside the lying-in-wait special-circumstance finding.
This finding is factually unsupported. As I explained in my concurring and dissenting opinion in People v. Morales (1989) 48 Cal.3d 527, 574 [257 Cal.Rptr. 64, 770 P.2d 244], the lyiñg-in-wait special circumstance requires waiting, watching, and concealment. “Concealment” means actual physical concealment of the killer’s person, and not merely—as a majority of this court inexplicably held in Morales at page 555—mere concealment of his true intent and purpose. “[T]he gist of ‘lying in wait’ is that the person places himself in a position where he is waiting and watching and concealed from the person killed with the intention of inflicting bodily injury upon such person or of killing such person.” (People v. Morales, supra, at p. 574, internal quotation marks omitted, italics in original (conc. & dis. opn. of Mosk, J.).) The evidence here establishes without dispute that there was no actual physical concealment of defendant’s person from the victim.
The lying-in-wait special-circumstance finding is legally unsupported as well. The underlying special circumstance, as defined by the holding of the *462majority in Morales and by the instructions of the trial court here, requires concealment of only the killer’s true intent and purpose. So defined, it is inadequate as a predicate for the determination of death eligibility under the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution—and, a fortiori, under the cruel or unusual punishment clause of article I, section 17, of the California Constitution.
As I also explained in my concurring and dissénting opinion in Morales —without substantive response on the part of the majority therein: “To withstand scrutiny under the Eighth Amendment as a valid predicate for the determination of death-eligibility, a special circumstance ‘ . . must . . . provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’ ” ’ [Citations.] Whether the basis for distinguishing between cases is ‘meaningful’ depends on whether it serves the principal social goals of the death penalty: retribution and deterrence. [Citation.]
“In my view, the lying-in-wait special circumstance does not pass constitutional muster. My reasons are as follows. First, this special circumstance does not distinguish the few cases in which the death penalty is imposed from the many in which it is not. Indeed, it is so broad in scope as to embrace virtually all intentional killings. Almost always the perpetrator waits, watches, and conceals his true purpose and intent before attacking his victim; almost never does he happen on his victim and immediately mount his attack with a declaration of his bloody aim. Second, the lying-in-wait special circumstance does not provide a meaningful basis for distinguishing between murderers who may be subjected to the death penalty and those who may not. To my mind, the killer who waits, watches, and conceals is no more worthy of blame or sensitive to deterrence than the killer who attacks immediately and openly.” (People v. Morales, supra, 48 Cal.3d at p. 575 (conc. & dis. opn. of Mosk, J.).)
Because the lying-in-wait special circumstance, as defined to require concealment of only the killer’s true intent and purpose, is inadequate as a predicate for death eligibility under the cruel and unusual punishments clauses, the related finding in this case is constitutionally invalid.
Finally, I would reverse the sentence of death. When the felony-murder-robbery and lying-in-wait special-circumstance findings are set aside, there remains no valid special-circumstance finding. Without such a finding, as relevant here, a defendant is not eligible for the ultimate sanction. (See Pen. Code, § 190.2, subd. (a).) As a result, the sentence of death in this case is *463unsupported as a matter of law. (E.g., People v. Guerra (1985) 40 Cal.3d 377, 389 [220 Cal.Rptr. 374, 708 P.2d 1252].)1
For the reasons stated above, I would reverse defendant’s conviction of robbery, set aside the felony-murder-robbery and lying-in-wait special-circumstance findings, and reverse the sentence of death.
In passing, I note the following. The majority make the statement, which purports to derive ultimately from People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44], that “Denial of the motion [for substitution of appointed counsel] is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (Maj. opn., ante, at p. 435.)
A review of Marsden and other applicable authorities teaches that the quoted statement should not be read literally. Otherwise, it would “immunize” each and every denial of a substitution motion that does not “ ‘substantially impair’ the defendant’s right to assistance of counsel”—no matter how unreasonable any such denial might in fact be.
In Marsden we held: “[T]he decision whether to permit a defendant to discharge his appointed counsel and substitute another attorney ... is within the discretion of the trial court, and a defendant has no absolute right to more than one appointed attorney. ‘A defendant’s right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. . . .’" (2 Cal.3d at p. 123.)
The Marsden holding entails the following proposition—which I have cast in the majority’s terms: when the defendant shows that a failure to replace his appointed attorney would “substantially impair” his right to the assistance of counsel, the trial court must replace the attorney; otherwise, it may replace the attorney or not depending on the totality of the relevant circumstances.