Criminal Law

520. Murder With Malice Aforethought

The defendant is charged [in Count ______] with murder.

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

1. The defendant committed an act that caused the death of (another person/ [or] a fetus);


2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

<Give element 3 when instructing on justifiable or excusable homicide>


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 acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1. (he/she) intentionally committed an act;

2. The natural consequences of the act were dangerous to human life;

3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;


4. (he/she) deliberately acted with conscious 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.

[A fetus is an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which occurs at seven to eight weeks of development.]

[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the 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 causes death only if it is a substantial factor in causing the death. A substantial 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>.

If you conclude that the defendant owed a duty to <insert name of decedent>, and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.]

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 [43 Cal.Rptr.2d 135], 363; People v. Pike (1988) 197 Cal.App.3d 732, 746-747 [243 Cal.Rptr. 54].)

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 the bracketed portion that begins, "(a/an) <insert description of person owing duty> has a legal duty to." Review the Bench Notes to CALCRIM No. 582, Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not Charged.

Related Instructions

If the defendant is charged with first degree murder, give this instruction and CALCRIM No. 521, Murder: Degrees. If the defendant is charged with second degree murder, no other instruction need be given.

If the defendant is also charged with first or second degree felony murder, instruct on those crimes and give CALCRIM No. 548, Murder: Alternative Theories.

If there is an issue regarding a superseding or intervening cause, give the appropriate portion of CALCRIM No. 620, Causation: Special Issues.


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

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 91-97.

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).

Lesser Included Offenses

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

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

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

Gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5(a)) is not a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 988-992 [103 Cal.Rptr.2d 698, 16 P.3d 118].) 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


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.)

(New January 2006)