In my view the adoption of Proposition 18, which eliminated the temporal distinction between lying in wait as a means of establishing premeditation for first degree murder (Pen. *312Code, § 189)1 and lying in wait as a special circumstance permitting imposition of the death penalty (§ 190.2, subd. (a)(15)), brought to fruition the concern Justice Kennard expressed in her concurring opinion in People v. Ceja (1993) 4 Cal.4th 1134, 1146-1147 [17 Cal.Rptr.2d 375, 847 P.2d 55] (conc. opn. of Kennard, J.). In her opinion, Justice Kennard stated: “Unlike first degree murder perpetuated by lying in wait, the lyihg-in-wait special circumstance must provide a meaningful basis for distinguishing capital and noncapital cases, so that the death penalty will not be imposed in an arbitrary or irrational manner. [Citation.] Recent decisions of this court have given expansive definitions to the term Tying in wait,’ while drawing little distinction between Tying in wait’ as a form of first degree murder and the lying-in-wait special circumstance, which subjects a defendant to the death penalty. [Citations.] Constrained by the principle of stare decisis, I concurred in the more recent of these decisions, which were reached after I joined this court. I have a growing concern, however, that these decisions may have undermined the critical narrowing function of the lying-in-wait special circumstance: to separate defendants whose acts warrant the death penalty from those defendants who are ‘merely’ guilty of first degree murder.” (Id. at p. 1147.)
The most recent declaration of the California Supreme Court of the distinction between lying-in-wait first degree murder and the lying-in-wait special circumstance appears in People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149 [124 Cal.Rptr.2d 373, 52 P.3d 572]. The Gutierrez decision rejected a constitutional challenge to the lying-in-wait special circumstance as it existed before the adoption of Proposition 18. The court identified the two distinguishing characteristics between lying-in-wait first degree murder and the lying-in-wait special circumstance as follows: “[(1)] ‘[M]urder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death’ [and] [i]n contrast, the lying-in-wait special circumstance requires ‘an intentional murder’ [; and (2)] the lying-in-wait special circumstance requires ‘that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait . . . .’” (Id. at pp. 1148-1149.) Proposition 18 removed the temporal distinction referred to by the Supreme Court in Gutierrez. The issue in the instant petition therefore is whether the alternate distinction referred to by the Supreme Court, which is the intent to kill relied on by the majority opinion in this case, is sufficient to satisfy the Eighth Amendment and due process, which require a meaningful narrowing of the circumstances for which the death penalty may be imposed from the circumstances for which it *313may not be imposed. (See People v. Edelbacher (1989) 47 Cal.3d 983, 1023 [254 Cal.Rptr. 586, 766 P.2d 1].)
The sole current distinction between murder by means of lying in wait (§ 189) and the special circumstance of lying in wait (§ 190.2, subd. (a)(15)) is purported to be that the latter requires the defendant intentionally killed the victim and the former requires that the defendant either intentionally killed the victim (express malice) or the killing resulted from the defendant’s intentional act, the consequences of which are dangerous to human life and was performed with knowledge of and with conscious disregard for human life (implied malice). (See CALJIC Nos. 8.25, 8.81.17.1, 8.10, 8.11.)
Although superficially it appears that the distinction between lying-in-wait murder, which purportedly requires express or implied malice, and the lying-in-wait special circumstance, which requires express malice, is a meaningful distinction, on closer examination it is my view that because the definition of lying in wait is identical for both, there is no distinction. Both lying-in-wait murder and the lying-in-wait special circumstance incorporate the identical definition of lying in wait. As set forth in CALJIC Nos. 8.25 and 8.81.15.1, “The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation, [f] The word ‘premeditation’ means considered beforehand, [f] The word ‘deliberation’ means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” Therefore to establish either lying-in-wait murder or the lying-in-wait special circumstance, the defendant must be proved to have acted with premeditation and deliberation. As stated by the Supreme Court, “lying in wait as a theory of murder 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], and cases cited; see § 189); hence, ‘a showing of lying in wait obviates the necessity of separately proving premeditation and deliberation . . . .’ [Citation.]” (People v. Gutierrez, supra, 28 Cal.4th at p. 1149, fn. 10.) If by definition lying in wait as a theory of murder is the equivalent of an intent to kill, and lying in wait is defined in the identical manner in the lying-in-wait special circumstance, then both must include the intent to kill and there is no meaningful distinction between them. The statement that lying-in-wait murder requires only implied malice appears incorrect because the concept of lying in wait is the functional equivalent of the intent to kill.
As a result of Proposition 18’s deletion of the temporal requirement of lying in wait as a special circumstance under section 190.2, subdivision *314(a)(15), there remains in my view no situation in which the lying-in-wait special circumstance for the death penalty is narrower than for lying-in-wait murder. I therefore agree with the trial court that the section 190.2, subdivision (a)(15) allegation of the special circumstance of lying in wait in this case should have been stricken and I would deny the petition for extraordinary writ.
On January 16, 2003, the opinion was modified to read as printed above. The petition of real party in interest for review by the Supreme Court was denied April 9, 2003. Kennard, J., Werdegar, J., and Moreno, J., were of the opinion that the petition should be granted.
All statutory references are to the Penal Code unless otherwise specified.