What is the legal test for a defendant's argument that the evidence of premeditated murder under the lying-in-wait special circumstance is insufficient?

Defendant does not attack the sufficiency of the evidence of premeditated murder, he merely describes it as "hardly overwhelming." Because he does not challenge the factual sufficiency of premeditation, we would normally conclude that even if the theory of murder by lying in wait was not factually supported, the murder verdict should be affirmed on the alternate, factually uncontested ground of premeditation, even if the special circumstance had to be reversed, because contrary to defendant's view, the record does not show that the jury necessarily relied on lying in wait for the murder verdict, even though it found lying in wait as to the special circumstance. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.) But in this case analyzing the evidence of the lying-in-wait special circumstance embraces a review of the evidence of murder by lying in wait.

In assessing defendant's argument, we apply the familiar standard of review for claims of no substantial evidence:

"[T]the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The "position of advantage" element of lying in wait does not refer to a killer's relative advantage by choosing one method or location for the killing over another, but the killer's relative advantage over the victim. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1290-1291; People v. Arellano (2004) 125 Cal.App.4th 1088, 1094-1096.)