I concur in the majority opinion, except that I would reverse the lying-in-wait special-circumstance finding, because it is not supported by substantial evidence.
“As construed by the United States Supreme Court, the Eighth Amendment requires that a death penalty law ‘rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not’ [citation], and establish ‘rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold.’ [Citation.]” (People v. Holt (1997) 15 Cal.4th 619, 697 [63 Cal.Rptr.2d 782, 937 P.2d 213].)
In California, this narrowing function is performed by requiring a finding that the murder involved special circumstances before a defendant is eligible to receive the death penalty. (Pen. Code, § 190.2) “[T]he special circumstances serve to ‘ “guide” ’ and ‘ “channel” ’ jury discretion ‘by strictly confining the class of offenders eligible for the death penalty.’ [Citation.]” (People v. Bacigalupo (1993) 6 Cal.4th 457, 467 [24 Cal.Rptr.2d 808, 862 P.2d 808].) In order to perform this constitutionally required function, a special circumstance finding “must genuinely narrow the class of persons eligible for the death penalty, and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” (Zant v. Stephens (1983) 462 U.S. 862, 877 [103 S.Ct. 2733, 2742, 77 L.Ed.2d 235].)
One special circumstance is that “[t]he defendant intentionally killed the victim by means of lying in wait.” (Pen. Code, § 190.2, subd. (a)(15).) We held in People v. Morales (1989) 48 Cal.3d 527 [257 Cal.Rptr. 64, 770 P.2d 244] that this lying-in-wait special circumstance could be established even if the defendant was not physically concealed before committing an intentional murder if the evidence showed “(1) 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.” (Id. at p. 557.) In the present case, there was insufficient evidence of the third requirement, that there be a surprise attack on an unsuspecting victim from a position of advantage.
In People v. Morales, supra, 48 Cal.3d 527, the victim was in the front passenger seat of an automobile driven by the defendant’s accomplice. The *514defendant entered the backseat, directly behind the victim. After they had driven “to a more isolated location, defendant reached over the seat and attempted to strangle [the victim] with [a] belt.” (Id. at p. 554.) When that failed, he hit her with a hammer. The victim’s “cries for help from [the defendant’s accomplice] indicated that she was taken by surprise . . . .” (Ibid.)
This court held there was sufficient evidence of lying in wait, despite the circumstance that the victim was aware of the defendant’s presence prior to the attack, “based on defendant’s watchful waiting, from a position of advantage in the backseat, while the car was driven to a more isolated area, and his sudden surprise attack, from behind and without warning . . . .” (People v. Morales, supra, 48 Cal.3d at p. 555.) We rejected the defendant’s argument that lying in wait required physical concealment, but took care to explain that “a mere concealment of purpose” is not sufficient to establish lying in wait because “many ‘routine’ murders are accomplished by such means, and the constitutional considerations raised by defendant might well prevent treating the commission of such murders as a special circumstance justifying the death penalty.” (Id. at p. 557.) Rather, as noted above, in addition to concealment of purpose and a substantial period of watching and waiting for an opportune time to act, we required “immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” (Ibid.)
The evidence in the present case does not satisfy the third prong of the Morales test. Defendant’s brother and accomplice, Lonnie Hillhouse, testified that defendant stated he planned to rob and kill the victim, who was passed out on the front seat of the victim’s truck. With defendant driving and Lonnie seated next to the victim, they drove out of Chico into a less populated area. At defendant’s direction, Lonnie removed money from the victim’s pockets and gave it to defendant. The victim woke up and, at his request, they turned around and headed back towards Chico. They pulled over at the victim’s request, and Lonnie walked to the back of the truck. The victim walked a couple of feet from the truck and began urinating. Defendant approached the victim and said something that Lonnie could not quite hear. The victim responded: “Don’t fuck with me while I’m peeing.” Defendant, who was standing in front of the victim, said: “I ought to kill you.” Lonnie then “heard a thunk” as defendant stabbed the victim in the chest. The victim began “gasping for air.” Lonnie turned away, but looked back when he felt something hit the truck and saw the victim leaning against the door with his hands on his chest. Defendant grabbed the victim, threw him to the ground and stabbed him three more times.
It is undisputed that defendant concealed his purpose to kill the victim until he felt the circumstances were conducive to committing the crime, but *515that is not enough to constitute lying in wait. If it were, most premeditated murders would involve lying in wait and this special circumstance would not perform its function of narrowing “ ‘the class of persons eligible for the death penalty’ ” and so “afford some objective basis for distinguishing a case in which the death penalty has been imposed from the many cases in which it has not.” (People v. Bacigalupo, supra, 6 Cal.4th 457, 465.) Moreover, mere advance planning or waiting for an opportune moment to attack the victim, without more, does not constitute lying in wait. The period of watchful waiting must result in the defendant achieving a position of advantage from which he or she can launch a surprise attack upon an unsuspecting victim.
In the present case, unlike in Morales, defendant did not surprise his unsuspecting victim from behind. Defendant approached the victim, spoke to him, and said that he ought to kill him, before he stabbed the victim in the chest. This evidence thus does not establish the third prong of the Morales test, i.e., “a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Morales, supra, 48 Cal.3d 527, 557.)
Accordingly, I would reverse the lying-in-wait special-circumstance finding. In all other respects, I concur in the majority opinion.
Appellant’s petition for a rehearing was denied May 15, 2002.