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In Lying-in-Wait Murder, What Degree for Aider & Abettor?

Most law students who have taken criminal law will be able to immediately answer that defendant who kills another in a lying-in-wait murder is guilty of first-degree murder.  Indeed, lying-in-wait murder is the epitome of an intentional murder. 
Summary in 50 Words or Less: An aider and abettor in a lying-in-wait murder is guilty of second degree murder based on the natural and probable consequences doctrine, if alleged.  If the natural and probable consequences doctrine is not alleged, an aider and abettor can be convicted of first-degree murder (not second-degree murder) under a lying-in-wait theory, as the following case exemplified.
Therefore, is an aider and abettor in a lying-in-wait murder also guilty of first-degree murder?  The answer may not be so easily reached.  Indeed, in People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held that a defendant cannot be convicted of first-degree premeditated murder as an aider and abettor based on the natural and probable consequences doctrine.  Chiu held that punishment for second-degree murder is commensurate with a defendant’s culpability for aiding and abetting a target crime that would naturally, probably and foreseeably result in a murder under the natural and probable consequences doctrine.”  Therefore, does Chiu extend to a lying-in-wait murder, as that is arguably distinguishable from a natural and probable consequences murder?

This issue was before the Riverside Superior Court in the case of Victor Gastelum in the killing of another and the attempted murder of J.W.
On June 24, 2016, Gastelum was smoking next to a liquor store in Riverside, California.  J.W., a man Gastelum knew of from his time living on the streets, approached Gastelum because he believed Gastelum had assaulted a mutual friend.

Gastelum said something that angered J.W., who punched Gastelum several times, knocking him to his knees, and took a portable speaker Gastelum had.  J.W. then told Gastelum that if he wanted his speaker back, “Tell your cousin to come get it himself.”

Riverside Superior CourtRiverside Superior Court

Later than night, J.W. was hanging out at a gas station with L.M. and Terrance Rodgers.  Gastelum and his cousin, Jacob Gamboa, saw J.W. and parked their car “some distance” away from the gas station and took a circuitous route to approach J.W., L.M. and Rodgers.  Gastelum would later claim that he thought he was going to fight J.W. and that he was surprised when Gamboa pulled out a gun and started shooting the other three.

Rodgers died from the shooting and J.W. and L.M. survived, but with injuries.
Police later obtained a cell phone video recorded by Gastelum and Gamboa after the shooting wherein Gastelum said, “This video is for – fuck [J.W.] and all the niggas.”  Gamboa then commented, “[T]here was not – not a better night than this.  I – I got that fool. . . I fucking got that nigger.”  A few days later, Gastelum told a friend, “We took care of those niggers.”

A jury convicted Gastelum of first-degree murder of Rogers with the special circumstance of laying-in-wait (Penal Code §§ 187(a), 190.2(a)(15)) and the premeditated attempted murder of J.W. (§§ 187(a), 664(a)).  The jury found that Gastelum participated with the knowledge that another principal in the offense was armed with a firearm (§ 12022(a)(1)).  The court also found that Gastelum had suffered a prior prison term and not remained free of custody for five years (§ 667.5(b)).  The judge sentenced Gastelum to consecutive indeterminate terms of life imprisonment without the possibility of parole and life imprisonment with the possibility of parole, plus three years.

Gastelum appealed to the Fourth Appellate District Courts of Appeal in Riverside, arguing that under People v. Chiu, supra, meant he could not be convicted of first-degree lying-in-wait murder under the natural and probable consequences doctrine.  In other words, by citing to Chiu’s holding, Gastelum was arguing that he should have been convicted of second-degree murder rather than first-degree murder.

The Fourth Appellate District disagreed, pointing out that Chiu did not consider lying-in-wait murder and there is no reason why Chiu should be extended to apply in this case, particularly where Gastelum and the principal committed all the same actions that led to the murder.  Moreover, a lying-in-wait murder is morally and legally distinguishable from other murders (particularly one involving natural and probable consequences) due to its elements, so Chiu did not apply and the convictions were affirmed.

The citation for the Fourth Appellate District Court ruling discussed above is People v. Victor Gastelum (4th App. Dist., 2019) 40 Cal.App.5th 772.

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