Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Homicide CALCRIM No. 520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)

CALCRIM No. 520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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C. MURDER: FIRST AND SECOND DEGREE

520.First or Second Degree Murder With Malice Aforethought

(Pen. Code, § 187)

The defendant is charged [in Count ] with murder [in violation of

Penal Code section 187].

To prove that the defendant is guilty of this crime, the People must

prove that:

[1A. The defendant committed an act that caused the death of

(another person/ [or] a fetus);]

[OR]

[1B. The defendant had a legal duty to (help/care

for/rescue/warn/maintain the property of/ <insert

other required action[s]>)__________ <insert description of

decedent/person to whom duty is owed> and the defendant failed to

perform that duty and that failure caused the death of (another

person/ [or] a fetus);]

[AND]

2. When the defendant (acted/[or] failed to act), (he/she) had a state

of mind called malice aforethought(;/.)

[AND

3. (He/She) killed without lawful (excuse/[or] justification).]

There are two kinds of malice aforethought, express malice and implied

malice. Proof of either is sufficient to establish the state of mind required

for murder.

The defendant had express malice if (he/she) unlawfully intended to kill.

The defendant had implied malice if:

1. (He/She) intentionally (committed the act/[or] failed to act);

2. The natural and probable consequences of the (act/[or] failure to

act) were dangerous to human life;

3. At the time (he/she) (acted/[or] failed to act), (he/she) knew (his/

her) (act/[or] failure to act) was dangerous to human life;

AND

4. (He/She) deliberately (acted/[or] failed to act) with conscious

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disregard for (human/ [or] fetal) life.

Malice aforethought does not require hatred or ill will toward the victim.

It is a mental state that must be formed before the act that causes death

is committed. It does not require deliberation or the passage of any

particular period of time.

[It is not necessary that the defendant be aware of the existence of a

fetus to be guilty of murdering that fetus.]

[A fetus is an unborn human being that has progressed beyond the

embryonic stage after major structures have been outlined, which

typically occurs at seven to eight weeks after fertilization.]

[(An act/[or] (A/a) failure to act) causes death if the death is the direct,

natural, and probable consequence of the (act/[or] failure to act) and the

death would not have happened without the (act/[or] failure to act). A

natural and probable consequence is one that a reasonable person would

know is likely to happen if nothing unusual intervenes. In deciding

whether a consequence is natural and probable, consider all of the

circumstances established by the evidence.]

[There may be more than one cause of death. (An act/[or] (A/a) failure

to act) causes death only if it is a substantial factor in causing the death.

Asubstantial factor is more than a trivial or remote factor. However, it

does not need to be the only factor that causes the death.]

[(A/An) <insert description of person owing duty> has a legal

duty to (help/care for/rescue/warn/maintain the property of/

<insert other required action[s]>)<insert description of

decedent/person to whom duty is owed>.]

<Give the following bracketed paragraph if the second degree is the only

possible degree of the crime for which the jury may return a verdict>

[If you find the defendant guilty of murder, it is murder of the second

degree.]

<Give the following bracketed paragraph if there is substantial evidence of

first degree murder>

[If you decide that the defendant committed murder, it is murder of the

second degree, unless the People have proved beyond a reasonable doubt

that it is murder of the first degree as defined in CALCRIM No.

<insert number of appropriate first degree murder instruction>.]

New January 2006; Revised August 2009, October 2010, February 2013, August

2013, September 2017, March 2019, September 2019, March 2021

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BENCH NOTES

Instructional Duty

The court has a sua sponte duty to instruct on the first two elements of the crime. If

there is sufficient evidence of excuse or justification, the court has a sua sponte

duty to include the third, bracketed element in the instruction. (People v. Frye

(1992) 7 Cal.App.4th 1148, 1155-1156 [10 Cal.Rptr.2d 217].) The court also has a

sua sponte duty to give any other appropriate defense instructions. (See CALCRIM

Nos. 505-627, and CALCRIM Nos. 3470-3477.)

If causation is at issue, the court has a sua sponte duty to instruct on proximate

cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [35 Cal.Rptr.

401].) If the evidence indicates that there was only one cause of death, the court

should give the “direct, natural, and probable” language in the first bracketed

paragraph on causation. If there is evidence of multiple causes of death, the court

should also give the “substantial factor” instruction and definition in the second

bracketed causation paragraph. (See People v. Autry (1995) 37 Cal.App.4th 351, 363

[43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746-747 [243

Cal.Rptr. 54].) If there is an issue regarding a superseding or intervening cause, give

the appropriate portion of CALCRIM No. 620, Causation: Special Issues.

If the prosecution’s theory of the case is that the defendant committed murder based

on his or her failure to perform a legal duty, the court may give element 1B.

Review the Bench Notes to CALCRIM No. 582, Involuntary Manslaughter: Failure

to Perform Legal Duty - Murder Not Charged.

If the defendant is charged with first degree murder, give this instruction and

CALCRIM No. 521, First Degree Murder. If the defendant is charged with second

degree murder, no other instruction need be given.

If the defendant is also charged with first degree felony murder, instruct on that

crime and give CALCRIM No. 548, Murder: Alternative Theories.

AUTHORITY

• Elements. Pen. Code, § 187.

• Malice. Pen. Code, § 188; People v. Dellinger (1989) 49 Cal.3d 1212,

1217-1222 [264 Cal.Rptr. 841, 783 P.2d 200]; People v. Nieto Benitez (1992) 4

Cal.4th 91, 103-105 [13 Cal.Rptr.2d 864, 840 P.2d 969]; People v. Blakeley

(2000) 23 Cal.4th 82, 87 [96 Cal.Rptr.2d 451, 999 P.2d 675].

• Causation. People v. Roberts (1992) 2 Cal.4th 271, 315-321 [6 Cal.Rptr.2d 276,

826 P.2d 274].

• Fetus Defined. People v. Davis (1994) 7 Cal.4th 797, 814-815 [30 Cal.Rptr.2d

50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d

510, 86 P.3d 881].

• Ill Will Not Required for Malice. People v. Sedeno (1974) 10 Cal.3d 703, 722

[112 Cal.Rptr. 1, 518 P.2d 913], overruled on other grounds in People v. Flannel

(1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1]; People v.

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Breverman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d 1094].

• Prior Version of This Instruction Upheld. People v. Genovese (2008) 168

Cal.App.4th 817, 831 [85 Cal.Rptr.3d 664].

LESSER INCLUDED OFFENSES

• Voluntary Manslaughter. Pen. Code, § 192(a).

• Involuntary Manslaughter. Pen. Code, § 192(b).

• Attempted Murder. Pen. Code, §§ 663, 189.

• Sentence Enhancements and Special Circumstances Not Considered in Lesser

Included Offense Analysis. People v. Boswell (2016) 4 Cal.App.5th 55, 59-60

[208 Cal.Rptr.3d 244].

Gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5(a)) and

vehicular manslaughter (Pen. Code, § 192(c)) are not lesser included offenses of

murder. (People v. Sanchez (2001) 24 Cal.4th 983, 988-992 [103 Cal.Rptr.2d 698,

16 P.3d 118]; People v. Bettasso (2020) 49 Cal.App.5th 1050, 1059 [263 Cal.Rptr.3d

563].) Similarly, child abuse homicide (Pen. Code, § 273ab) is not a necessarily

included offense of murder. (People v. Malfavon (2002) 102 Cal.App.4th 727, 744

[125 Cal.Rptr.2d 618].)

RELATED ISSUES

Causation - Foreseeability

Authority is divided on whether a causation instruction should include the concept

of foreseeability. (See People v. Autry (1995) 37 Cal.App.4th 351, 362-363 [43

Cal.Rptr.2d 135]; People v. Temple (1993) 19 Cal.App.4th 1750, 1756 [24

Cal.Rptr.2d 228] [refusing defense-requested instruction on foreseeability in favor of

standard causation instruction]; but see People v. Gardner (1995) 37 Cal.App.4th

473, 483 [43 Cal.Rptr.2d 603] [suggesting the following language be used in a

causation instruction: “[t]he death of another person must be foreseeable in order to

be the natural and probable consequence of the defendant’s act”].) It is clear,

however, that it is error to instruct a jury that foreseeability is immaterial to

causation. (People v. Roberts (1992) 2 Cal.4th 271, 315 [6 Cal.Rptr.2d 276, 826

P.2d 274] [error to instruct a jury that when deciding causation it “[w]as immaterial

that the defendant could not reasonably have foreseen the harmful result”].)

Second Degree Murder of a Fetus

The defendant does not need to know a woman is pregnant to be convicted of

second degree murder of her fetus. (People v. Taylor (2004) 32 Cal.4th 863, 868 [11

Cal.Rptr.3d 510, 86 P.3d 881] [“[t]here is no requirement that the defendant

specifically know of the existence of each victim.”]) “[B]y engaging in the conduct

he did, the defendant demonstrated a conscious disregard for all life, fetal or

otherwise, and hence is liable for all deaths caused by his conduct.” (Id. at p. 870.)

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 96-101, 112-113.

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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,

Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person, § 142.01

(Matthew Bender).

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Page last reviewed May 2023