Concurring and Dissenting. I join in the concurring and dissenting opinion of Justice Mosk. As he and Justice Kennard point out, defendant’s conviction for robbery and the special circumstance of felony murder based upon robbery cannot stand, because the victim’s car—the object of the robbery—was not taken from the person or immediate presence of the victim. I agree also with Justice Mosk that the special circumstance of murder while lying in wait should be set aside, but write separately to explain more fully my views on this subject.
First, I doubt whether the evidence supports a special circumstance of lying in wait in the present case. In People v. Morales (1989) 48 Cal.3d 527 [257 Cal.Rptr. 64, 770 P.2d 244], the leading decision defining that special circumstance, the court held that physical concealment is not required—only concealment of purpose—but emphasized that such concealment must be accompanied by “a substantial period of watching and waiting for an opportune time to act.” (P. 557.) The court distinguished Richards v. Superior Court (1983) 146 Cal.App.3d 306 [194 Cal.Rptr. 120], a case in which, according to Morales, “the victim was stabbed to death and robbed after *464being lured to a garage by the defendants on the pretext that they needed to recover some of their tools.” (48 Cal.3d at p. 556.) Morales disapproved Richards’s reasoning to the extent that Richards required physical concealment, but approved Richards’s result, on the ground that in Richards there was an absence of “any period of watchful waiting on the defendant’s part. They simply lured their victim to a garage and killed him.” (Ibid.)
The facts of the present case closely parallel Richards. In that case the defendants persuaded the victim to go with them to a garage where they intended to kill him. When he arrived they killed him as planned. Here the defendants persuaded the victim to come with them to their riverside camp where they intended to kill him. When he arrived they carried out their plan. I see no factual distinction. If Richards was rightly decided (as Morales implied) on the ground that there was no period of watchful waiting, we should reach the same conclusion here.
If we assume for sake of argument that the present case is one of murder while lying in wait as that concept is defined in Morales, we reach the question whether that concept provides a constitutionally adequate basis for deciding which murderers are subject to the death penalty. As I will explain, lying in wait originally served an entirely different purpose—to classify as first degree murder those killings committed by means which conclusively demonstrated premeditation. It was not intended to and does not serve to distinguish among premeditated first degree murders so as to single out those particularly heinous killings which may warrant death.
The concept of murder by lying in wait entered California law in 1856. (Stats. 1856, ch. 139, § 2, p. 219.) Its function was explained in People v. Sanchez (1864) 24 Cal. 17: “In dividing murder into two degrees, the Legislature intended ... to establish a test by which the degree of every case of murder may be readily ascertained. That test may be thus stated: Is the killing wilful, (that is to say, intentional,) deliberate, and premeditated? If it is, the case falls within the first, and if not, within the second degree. There are certain kinds of murder which carry with them conclusive evidence of premeditation. These the Legislature has enumerated in the statute .... These cases are of two classes. First—Where the killing is perpetrated by . . . means of poison, lying in wait, or torture. . . .” (Pp. 28-29.) In short, the prosecution could either prove premeditation directly, or it could prove it indirectly by proving poison, lying in wait, or torture, since it was inconceivable that a defendant who used such means would not have premeditated.
Current Penal Code section 189, enacted in 1872, codified the reasoning of Sanchez. It provides that “[a]ll murder which is perpetrated by means of *465. . . lying in wait, or by any other kind of wilful, deliberate, and premeditated killing ... is murder of the first degree.” The reference to “any other kind of wilful, deliberate, and premeditated killing” (italics added) makes it clear that murder by lying in wait is considered to be simply one kind of premeditated murder.
The California courts construed the concept of lying in wait as providing an alternative method for showing premeditation. Thus in People v. Thomas (1953) 41 Cal.2d 470 [261 P.2d 1], Justice Traynor noted that “[t]here must ... be substantial evidence of a long enough period of waiting and watching in concealment to show a state of mind equivalent to premeditation and deliberation before the court can properly give an instruction on lying in wait.” {Id. at p. 481 (conc, opn.); see People v. Hyde (1985) 166 Cal.App.3d 463, 475 [212 Cal.Rptr. 440].)
Consequently the courts did not require physical concealment for lying in wait, for proof of physical concealment is not necessary to show premeditation. Proof that a defendant waited for the opportunity to kill the victim, concealing his purpose (People v. Tuthill (1947) 31 Cal.2d 92, 100-101 [187 P.2d 16]) or his identity (People v. Hyde, supra, 166 Cal.App.3d 463, 475-476) is sufficient to show premeditation.
The 1978 death penalty initiative, however, added many special circumstances to Penal Code section 190.2, including one under which a defendant must be sentenced to death or life imprisonment without possibility of parole if the “defendant intentionally killed the victim while lying in wait.” (Pen. Code, § 190.2, subd. (a)(15).) In this setting, lying in wait is not a means of proving premeditation in order to show the murder is one of the first degree. To the contrary, the murder must already have been found to be first degree before the jury reaches the question of special circumstance.
Instead, the special circumstance of lying in wait serves—and to be constitutional, must serve—a different purpose: it must provide a “1 “meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” ’ ” (Godfrey v. Georgia (1980) 446 U.S. 420, 427 [64 L.Ed.2d 398, 406, 100 S.Ct. 1759], quoting Furman v. Georgia (1972) 408 U.S. 238, 313 [33 L.Ed.2d 346, 392, 92 S.Ct. 2726] (White, J., conc.); see McCleskey v. Kemp (1987) 481 U.S. 279, 305-306 [95 L.Ed.2d 262, 287, 107 S.Ct. 1756] (state must establish rational criteria for death eligibility).) Past cases which define lying in wait by looking to actions which demonstrate premeditation are of no help in this setting. Instead, we must define murder by lying in wait so there is a qualitative moral difference between such murders and those which do not involve lying in wait—one of such significance that a person who kills by *466lying in wait should be executed, or at least imprisoned for life without possibility of parole, while one who kills without lying in wait (or any other special circumstance) deserves at most life imprisonment with possibility of parole.
Recognizing this constitutional imperative, the court in People v. Morales, supra, 48 Cal.3d 527, 557, said, “we believe that an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, presents a factual matrix sufficiently distinct from ‘ordinary’ premeditated murder to justify treating it as a special circumstance.” But this analysis is inadequate. To be sure, a murder meeting these criteria is different from one that does not, as a murder in summer is different from one in winter. But to meet constitutional requirements, the difference must be such that murder while lying in wait deserves a punishment far more severe than an otherwise identical murder which does not involve lying in wait. Morales made no attempt to show that a murder by lying in wait is more heinous than an “ordinary” murder, or that the difference, if any, is sufficient to justify the disparity in penalty.
Consider, for example, the following comparison: Killer A learns that the victim will be at a certain place, goes directly there, and shoots the unsuspecting victim in the back. Killer B does the same, except that the victim is delayed, and B must wait for a substantial period for the victim to appear. Under Morales, B commits the special circumstance of lying in wait, but A does not. Yet would anyone claim on these facts that B deserves a far more severe punishment than A?
Morales listed three criteria for the lying in wait special circumstance, but those criteria do not fulfill the constitutional test. The first criterion listed in Morales, concealment of purpose, is, as Morales itself noted, characteristic of many “routine” murders. The second—a period of watching and waiting—is the key element in lying in wait when that concept is used to prove premeditation, but is of no significance in connection with special circumstances. As I have said, there seems no reason to punish more severely the killer who waits for his victim than the killer who hunts down the victim. The last criterion—a surprise attack on an unsuspecting victim from a position of advantage—adds little. Since the first criterion was concealment of purpose, the attack is necessarily a surprise and the victim unsuspecting. The only new element is that the killer occupy a “position of advantage,” and no cases tell us what that means. It would seem to me that a premeditating killer confronting an unsuspecting victim always has an advantage.
*467In the present case, for example, defendant Madrigal preceded the victim down the trail and defendant Webster followed the victim. Both attacked the victim with knives and killed him. The jury found Webster, but not Madrigal, guilty of the special circumstance of lying in wait. Was that because Webster had a “position of advantage” because he was behind the victim, but Madrigal did not? Whether or not that was the jury’s reasoning, when two people conspire to kill a victim and attack him simultaneously, does it make any sense to sentence one to be executed on the ground that he alone had a “position of advantage?”
In short, a murder by lying in wait is simply an ordinary premeditated murder in which the killer chooses to wait for his victim to come to him instead of going to the victim. Morales, as I have noted, makes no attempt to explain why lying in wait is included in the list of special circumstances. A Court of Appeal case attempted an explanation, but the reasons suggested are so preposterous that the author ends up writing tongue in cheek.
In Richards v. Superior Court, supra, 146 Cal.App.3d 306, 314, footnote 5, the court speculated that “[o]ne supposes that ... it is perceived as a particularly cowardly form of murder—hence the opprobrium heaped on the western villain who killed from ambush. And in earlier, more religious times, special scorn was reserved for those who murdered victims in a fashion intended to deprive them of the opportunity for reflection and contrition. Thus, the piteous complaint of Hamlet’s father that he was murdered ‘in the blossoms of my sin/ Unhousel’d, disappointed, unanel’d/ No reckoning made, but sent to my account/ With all my imperfections on my head . . . .’ (Hamlet, act I, scene v., line 66ff.)”
I do not believe the drafters and voters in 1978 included the lying-in-wait special circumstance because of a 400-year-old notion that an honorable killer allows the victim time to confess his sins, or even a 100-year-old notion that a honorable killer waits until the victim has a chance to draw first. In any case, the lying-in-wait special circumstance, as construed in Morales, embodied neither notion. To the contrary, Morales specifically rejected the contention that the special circumstance only applies if the killer ambushes the victim.
Neither is there any societal consensus that a murder while lying in wait is more heinous than an ordinary murder, and thus more deserving of death. Of the 35 other states imposing the death penalty, only 3 treat lying in wait as either a special circumstance or an aggravating factor. (Colo. Rev. Stat. § 16-ll-103(6)(f); Ind. Code Ann. § 35-50-2-9; Mont. Code Ann. § 45-5-102.) Indiana requires that the defendant be physically concealed from the victim. (Davis v. State (Ind. 1985) 477 N.E.2d 889, 895-896.) Thus there are *468at most two other states which would permit imposition of the death penalty for murders falling under the Morales criteria; at least forty-seven states would not.
I conclude that the special circumstance of lying in wait, as construed in Morales, does not meet minimum constitutional criteria: it does not provide a principled or rational ground for determining which murderers should be death eligible. Lying in wait proves premeditation, and thus proves that a murder is of the first degree. But those first degree murderers who lie in wait are no more deserving of death than those who act with dispatch.
Since the evidence does not support the special circumstance of felony murder, and the special circumstance of lying in wait is constitutionally invalid, we should reverse the penalty judgment.