521. Murder: Degrees
If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree.
<Select the appropriate section[s]. Give the final two paragraphs in every case.>
<Give if multiple theories alleged.>
[The defendant has been prosecuted for first degree murder under (two/ <insert number>) theories: (1) <insert first theory, e.g., "the murder was willful, deliberate, and premeditated"> [and] (2) <insert second theory, e.g., "the murder was committed by lying in wait"> [ <insert additional theories>].
Each theory of first degree murder has different requirements, and I will instruct you on (both/all <insert number>.)
You may not find the defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory.]
<A. Deliberation and Premeditation>
[The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation. The defendant acted willfully if (he/she) intended to kill. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death.
The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.]
<B. Torture>
[The defendant is guilty of first degree murder if the People have proved that the defendant murdered by torture. The defendant murdered by torture if:
1. (he/she) willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain on the person killed while that person was still alive;
2. (he/she) intended to inflict such pain on the person killed for the calculated purpose of revenge, extortion, persuasion, or any other sadistic reason;
AND
3. The torture was a cause of death.]
[A person commits an act willfully when he or she does it willingly or on purpose. A person deliberates if he or she carefully weighs the considerations for and against his or her choice and, knowing the consequences, decides to act. An act is done with premeditation if the decision to commit the act is made before the act is done.]
[There is no requirement that the person killed be aware of the pain.]
[A finding of torture does not require that the defendant intended to kill.]
<C. Lying in Wait>
[The defendant is guilty of first degree murder if the People have proved that the defendant murdered while lying in wait or immediately thereafter. The defendant murdered by lying in wait if:
1. (he/she) concealed (his/her) purpose from the person killed;
2. (he/she) waited and watched for an opportunity to act;
AND
3. Then, from a position of advantage, (he/she) intended to and did make a surprise attack on the person killed.
The lying in wait does not need to continue for any particular period of time, but its duration must show a state of mind equivalent to deliberation and premeditation. [Deliberation means carefully weighing the considerations for and against a choice and, knowing the consequences, deciding to act. An act is done with premeditation if the decision to commit the act is made before the act is done.]
[A person can conceal his or her purpose even if the person killed is aware of the person's physical presence.]
[The concealment can be accomplished by ambush or some other secret plan.]
<D. Destructive Device or Explosive>
[The defendant is guilty of first degree murder if the People have proved that the defendant murdered by using a destructive device or explosive.]
[An explosive is any substance, or combination of substances, (1) whose main or common purpose is to detonate or rapidly combust and (2) which is capable of a relatively instantaneous or rapid release of gas and heat.]
[An explosive is [also] any substance whose main purpose is to be combined with other substances to create a new substance that can release gas and heat rapidly or relatively instantaneously.]
[ <insert type of explosive from Health & Saf. Code, § 12000> is an explosive.]
[A destructive device is <insert definition supported by evidence from Pen. Code, § 12301>.]
[ <insert type of destructive device from Pen. Code, § 12301> is a destructive device.]
<E. Weapon of Mass Destruction>
[The defendant is guilty of first degree murder if the People have proved that the defendant murdered by using a weapon of mass destruction.
[ <insert type of weapon from Pen. Code, § 11417(a)(1)> is a weapon of mass destruction.]
[ <insert type of agent from Pen. Code, § 11417(a)(2)> is a chemical warfare agent.]]
<F. Penetrating Ammunition>
[The defendant is guilty of first degree murder if the People have proved that when the defendant murdered, (he/she) used ammunition designed primarily to penetrate metal or armor to commit the murder and (he/she) knew that the ammunition was designed primarily to penetrate metal or armor.]
<G. Discharge From Vehicle>
[The defendant is guilty of first degree murder if the People have proved that the defendant murdered by shooting a firearm from a motor vehicle. The defendant committed this kind of murder if:
1. (he/she) shot a firearm from a motor vehicle;
2. (he/she) intentionally shot at a person who was outside the vehicle;
AND
3. (he/she) intended to kill that person.
A firearm is any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.
A motor vehicle includes (a/an) (passenger vehicle/motorcycle/ motor scooter/bus/school bus/commercial vehicle/truck tractor and trailer/ <insert other type of motor vehicle>).]
<H. Poison>
[The defendant is guilty of first degree murder if the People have proved that the defendant murdered by using poison.
[Poison is a substance, applied externally to the body or introduced into the body, that can kill by its own inherent qualities.]]
[ <insert name of substance> is a poison.]
<GIVE FINAL TWO PARAGRAPHS IN EVERY CASE.>
All other murders are of the second degree.
The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder.
Bench Notes
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the crime. Before giving this instruction, the court must give CALCRIM No. 520, Murder With Malice Aforethought. Depending on the theory of first degree murder relied on by the prosecution, give the appropriate alternatives A through H.
The court must give the final two paragraphs in every case.
If the prosecution alleges two or more theories for first degree murder, give the bracketed section that begins with "The defendant has been prosecuted for first degree murder under." If the prosecution alleges felony murder in addition to one of the theories of first degree murder in this instruction, give CALCRIM No. 548, Murder: Alternative Theories, instead of the bracketed paragraph contained in this instruction.
When instructing on torture or lying in wait, give the bracketed sections explaining the meaning of "deliberate" and "premeditated" if those terms have not already been defined for the jury.
When instructing on murder by weapon of mass destruction, explosive, or destructive device, the court may use the bracketed sentence stating, " is a weapon of mass destruction" or "is a chemical warfare agent," only if the device used is listed in the code section noted in the instruction. For example, "Sarin is a chemical warfare agent." However, the court may not instruct the jury that the defendant used the prohibited weapon. For example, the court may not state, "the defendant used a chemical warfare agent, sarin," or "the material used by the defendant, sarin, was a chemical warfare agent." (People v. Dimitrov (1995) 33 Cal.App.4th 18, 25-26 39 Cal.Rptr.2d 257].)
Authority
Types of Statutory First Degree Murder. Pen. Code, § 189.
Armor Piercing Ammunition Defined. Pen. Code, § 12323(b).
Destructive Device Defined. Pen. Code, § 12301.
Explosive Defined. Health & Saf. Code, § 12000; People v. Clark (1990) 50 Cal.3d 583, 604 [268 Cal.Rptr. 399, 789 P.2d 127].
Weapon of Mass Destruction Defined. Pen. Code, § 11417.
Discharge From Vehicle. People v. Chavez (2004) 118 Cal.App.4th 379, 386-387 [12 Cal.Rptr.3d 837] [drive-by shooting clause is not an enumerated felony for purposes of the felony murder rule].
Lying in Wait Requirements. People v. Stanley (1995) 10 Cal.4th 764, 794 [42 Cal.Rptr.2d 543, 897 P.2d 481]; People v. Ceja (1993) 4 Cal.4th 1134, 1139 [17 Cal.Rptr.2d 375, 847 P.2d 55]; People v. Webster (1991) 54 Cal.3d 411, 448 [285 Cal.Rptr. 31, 814 P.2d 1273]; People v. Laws (1993) 12 Cal.App.4th 786, 794-795 [15 Cal.Rptr.2d 668].
Poison Defined. People v. Van Deleer (1878) 53 Cal. 147, 149.
Premeditation and Deliberation Defined. People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942]; People v. Bender (1945) 27 Cal.2d 164, 183-184 [163 P.2d 8]; People v. Daugherty (1953) 40 Cal.2d 876, 901-902 [256 P.2d 911].
Torture Requirements. People v. Pensinger (1991) 52 Cal.3d 1210, 1239 [278 Cal.Rptr. 640, 805 P.2d 899]; People v. Bittaker (1989) 48 Cal.3d 1046, 1101 [259 Cal.Rptr. 630, 774 P.2d 659], habeas corpus granted in part on other grounds in In re Bittaker (1997) 55 Cal.App.4th 1004 [64 Cal.Rptr.2d 679]; People v. Wiley (1976) 18 Cal.3d 162, 168-172 [133 Cal.Rptr. 135, 554 P.2d 881]; see also People v. Pre (2004) 117 Cal.App.4th 413, 419-420 [11 Cal.Rptr.3d 739] [comparing torture murder with torture].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 102-162.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01 (Matthew Bender).
Lesser Included Offenses
Murder. Pen. Code, § 187.
Voluntary Manslaughter. Pen. Code, § 192(a).
Involuntary Manslaughter. Pen. Code, § 192(b).
Attempted First Degree Murder. Pen. Code, §§ 663, 189.
Attempted Murder. Pen. Code, §§ 663, 187.
Related Issues
Premeditation and Deliberation—Anderson Factors
Evidence in any combination from the following categories suggests premeditation and deliberation: (1) events before the murder that indicate planning; (2) motive, specifically evidence of a relationship between the victim and the defendant; and (3) method of the killing that is particular and exacting and evinces a preconceived design to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 [73 Cal.Rptr. 550, 447 P.2d 942].) Although these categories have been relied on to decide whether premeditation and deliberation are present, an instruction that suggests that each of these factors must be found in order to find deliberation and premeditation is not proper. (People v. Lucero (1988) 44 Cal.3d 1006, 1020-1021 [245 Cal.Rptr. 185, 750 P.2d 1342].) Anderson also noted that the brutality of the killing alone is not sufficient to support a finding that the killer acted with premeditation and deliberation. Thus, the infliction of multiple acts of violence on the victim without any other evidence indicating premeditation will not support a first degree murder conviction. (People v. Anderson, supra, 70 Cal.2d at pp. 24-25.) However, "[t]he Anderson guidelines are descriptive, not normative." (People v. Perez (1992) 2 Cal.4th 1117, 1125 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) The holding did not alter the elements of murder or substantive law but was intended to provide a "framework to aid in appellate review." (Ibid.)
Premeditation and Deliberation—Heat of Passion Provocation
Provocation may reduce murder from first to second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable doubt about premeditation or deliberation, "leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation"]; see People v. Padilla (2002) 103 Cal.App.4th 675, 679 [126 Cal.Rptr.2d 889] [evidence of hallucination is admissible at guilt phase to negate deliberation and premeditation and to reduce first degree murder to second degree murder].) There is, however, no sua sponte duty to instruct the jury on this issue. (People v. Middleton (1997) 52 Cal.App.4th 19, 31-33 [60 Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) On request, give CALCRIM No. 522, Provocation: Effect on Degree of Murder.
Torture—Causation
The finding of murder by torture encompasses the totality of the brutal acts and circumstances that led to a victim's death. "The acts of torture may not be segregated into their constituent elements in order to determine whether any single act by itself caused the death; rather, it is the continuum of sadistic violence that constitutes the torture [citation]." (People v. Proctor (1992) 4 Cal.4th 499, 530-531 [15 Cal.Rptr.2d 340, 842 P.2d 1100].)
Torture—Instruction on Voluntary Intoxication
"[A] court should instruct a jury in a torture-murder case, when evidence of intoxication warrants it, that intoxication is relevant to the specific intent to inflict cruel suffering." (People v. Pensinger (1991) 52 Cal.3d 1210, 1242 [278 Cal.Rptr. 640, 805 P.2d 899]; see CALCRIM No. 625, Voluntary Intoxication: Effects on Homicide Crimes.)
Torture—Pain Not an Element
All that is required for first degree murder by torture is the calculated intent to cause pain for the purpose of revenge, extortion, persuasion, or any other sadistic purpose. There is no requirement that the victim actually suffer pain. (People v. Pensinger (1991) 52 Cal.3d 1210, 1239 [278 Cal.Rptr. 640, 805 P.2d 899].)
Torture—Premeditated Intent to Inflict Pain
Torture-murder, unlike the substantive crime of torture, requires that the defendant acted with deliberation and premeditation when inflicting the pain. (People v. Pre (2004) 117 Cal.App.4th 413, 419-420 [11 Cal.Rptr.3d 739]; People v. Mincey (1992) 2 Cal.4th 408, 434-436 [6 Cal.Rptr.2d 822, 827 P.2d 388].)
Lying in Wait—Length of Time Equivalent to Premeditation and Deliberation
In People v. Stanley (1995) 10 Cal.4th 764, 794 [42 Cal.Rptr.2d 543, 897 P.2d 481], the court approved this instruction regarding the length of time a person lies in wait: "[T]he lying in wait need not continue for any particular time, provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation."
Discharge From a Vehicle—Vehicle Does Not Have to Be Moving
Penal Code section 189 does not require the vehicle to be moving when the shots are fired. (Pen. Code, § 189; see also People v. Bostick (1996) 46 Cal.App.4th 287, 291 [53 Cal.Rptr.2d 760] [finding vehicle movement is not required in context of enhancement for discharging firearm from motor vehicle under Pen. Code, § 12022.55].)
(New January 2006)