CALCRIM No. 520. Murder With Malice Aforethought

Judicial Council of California Criminal Jury Instructions (2017 edition)

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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:
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 and probable 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.
[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 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.]
<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
<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
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
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.
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 or second degree felony murder, instruct
on those crimes and give CALCRIM No. 548, Murder: Alternative Theories.
• 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. Breverman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d
• This Instruction Upheld. People v. Genovese (2008) 168 Cal.App.4th 817, 831
[85 Cal.Rptr.3d 664].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 96–101, 112–113.
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).
• 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].)
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.)

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