People v. Russell, 242 P.3d 68

In 1998 a jury convicted Timothy Russell of the murders of Riverside County Deputies Haugen and Lehmann and found true a rifle use enhancement, a special peace officer killing, and a multiple-murder special-circumstance.
After a mistrial in the first penalty phase, a retrial imposed a death sentence; other determinate firearm-use terms were imposed concurrent with the death sentences.
Russell, in a volatile relationship with Elaine Russell, had forcibly confronted her and threatened to kill her and police in prior incidents.
At the crime scene, Russell fired multiple shots from an M-1 rifle after threatening Brown and hiding ammunition, leading to the deputies’ deaths.
During custodial interrogation, Russell admitted firing; gunshot residue and trajectory evidence supported that firings were directed at officers, not ricocheted from elsewhere.
The trial court denied several pre-trial and post-trial motions, including requests for a jury view of the scene and challenges to jury instructions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lying-in-wait instruction was adequate	People contends CALJIC 8.25 adequately states elements.	Russell argues the instruction and state's theory were legally defective.	Instruction and theory found adequate; conviction supported by a legally adequate theory.
Whether denial of a jury view of the scene was error	State asserts view unnecessary given evidentiary proof of lighting and aim.	Russell contends view would aid understanding of lighting and aiming issues.	No abuse of discretion; view denied as unnecessary and harmless.
Whether CALJIC No. 2.03 consciousness of guilt instruction was erroneous	People argue inconsistent statements to police supported instruction.	Russell argues instruction inflated inference of guilt from conflicting statements.	Instruction upheld; evidence of false statements supported giving CALJIC 2.03.
Whether failure to require unanimity on theory of murder (lying-in-wait vs deliberated) was error	State maintains theories are not separate elements; Schad v. Arizona controls.	Russell contends lack of juror unanimity on theory violates due process.	No error; theories are alternative means of the same offense and unanimity not required.

People v. Cruz, 44 Cal.4th 636 (Cal. 2008) (lying-in-wait elements; substantial waiting not time-fixed)
People v. Moon, 37 Cal.4th 1 (Cal. 2005) (substantial waiting not fixed; frame of lying in wait)
People v. Ceja, 4 Cal.4th 1134 (Cal. 1993) (lying-in-wait defined; elements including concealment and wait)
People v. Hardy, 2 Cal.4th 86 (Cal. 1992) (lying-in-wait discussed in context of first-degree murder theories)
Schad v. Arizona, 501 U.S. 624 (U.S. 1991) (unanimity on theory of murder not required)
People v. Stevens, 41 Cal.4th 182 (Cal. 2007) (watching/waiting timing discussed in context of other cases)
People v. Avila, 38 Cal.4th 491 (Cal. 2006) (excusal of jurors based on questionnaire responses)
People v. Jurado, 38 Cal.4th 548 (Cal. 2006) (Green-like considerations for reliability in penalty phase)