Is it too late for a defendant to move to reopen the proceedings to allow the defense to produce evidence addressing the lying in-wait theory?

Here, assuming defendant first learned of the lying-in-wait theory when the parties were discussing appropriate instructions, it was not at that time too late to move to reopen the proceedings to allow the defense to produce evidence addressing the theory. (People v. Memro, supra, 11 Cal.4th at p. 869, 47 Cal.Rptr.2d 219, 905 P.2d 1305.) Defendant, then, had sufficient time to confront the facts that allegedly supported the theory, eliminating the possibility that any lack of notice was fatally unconstitutional. Sheppard v. Rees, supra, 909 F.2d 1234, is thus distinguishable.