California Criminal Jury Instructions (CALCRIM) (2017)

521. Murder: Degrees

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521.First Degree Murder (Pen. Code, § 189)
<Select the appropriate section[s]. Give the final paragraph 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 completing the act[s] 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;
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3. The acts causing death involved a high degree of probability of
death;
AND
4. 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. The defendant acted with premeditation if
(he/she) decided to kill before completing the act[s] that caused death.]
[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 be substantial enough to show a state of
mind equivalent to deliberation or 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
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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, § 16460>.]
[<insert type of destructive device from Pen. Code, § 16460>
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.
Afirearm 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
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explosion or other form of combustion.
Amotor 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.]
[The requirements for second degree murder based on express or
implied malice are explained in CALCRIM No. 520, First or Second
Degree Murder With Malice Aforethought.]
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 and the murder is second degree murder.
New January 2006; Revised August 2006, June 2007, April 2010, October 2010,
February 2012, February 2013, February 2015, August 2015
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 paragraph 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,”
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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].)
Do not modify this instruction to include the factors set forth in People v.
Anderson (1968) 70 Cal.2d 15, 26–27 [73 Cal.Rptr. 550, 447 P.2d 942]. Although
those factors may assist in appellate review of the sufficiency of the evidence to
support findings of premeditation and deliberation, they neither define the elements
of first degree murder nor guide a jury’s determination of the degree of the offense.
(People v. Moon (2005) 37 Cal.4th 1, 31 [32 Cal.Rptr.3d 894, 117 P.3d 591];
People v. Steele (2002) 27 Cal.4th 1230, 1254 [120 Cal.Rptr.2d 432, 47 P.3d 225];
People v. Lucero (1988) 44 Cal.3d 1006, 1020 [245 Cal.Rptr. 185, 750 P.2d 1342].)
AUTHORITY
• Types of Statutory First Degree Murder Pen. Code, § 189.
Armor Piercing Ammunition Defined Pen. Code, § 16660.
• Destructive Device Defined Pen. Code, § 16460.
• For Torture, Act Causing Death Must Involve a High Degree of Probability of
Death People v. Cook (2006) 39 Cal.4th 566, 602 [47 Cal.Rptr.3d 22, 139
P.3d 492].
• Mental State Required for Implied Malice People v. Knoller (2007) 41 Cal.4th
139, 143 [59 Cal.Rptr.3d 157, 158 P.3d 731].
• 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. Poindexter (2006) 144 Cal.App.4th
572, 582–585 [50 Cal.Rptr.3d 489]; 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. Pearson (2013) 56 Cal.4th
393, 443–444 [154 Cal.Rptr.3d 541, 297 P.3d 793]; 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].
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• 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 (4th ed. 2012) Crimes Against the
Person, § 117.
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—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
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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].)
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