CALCRIM No. 521. First Degree Murder (Pen. Code, § 189)

Judicial Council of California Criminal Jury Instructions (2024 edition)

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521.First Degree Murder (Pen. Code, § 189)

[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”> [and] [ <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 committed murder by torture. The defendant

committed murder 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;

254

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 commits an act deliberately if he or she carefully

weighs the considerations for and against his or her choice and, knowing

the consequences, decides to act. A person commits an act with

premeditation if (he/she) decided to inflict extreme and prolonged pain on

a person 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 committed murder while lying in wait or immediately

thereafter. The defendant committed murder 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 committed murder by using a destructive device or

explosive.]

HOMICIDE CALCRIM No. 521

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[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, § 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 committed murder 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 committed murder, (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 committed murder 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

CALCRIM No. 521 HOMICIDE

256

projectile is discharged or expelled through a barrel by the force of an

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 committed murder by using poison. The defendant

committed murder by poison if:

1. (He/She) deliberately gave <insert name of victim>

poison;

AND

2. When giving the poison, the defendant intended to kill

<insert name of victim> or to inflict injury likely to

cause <insert name of victim>’s death.

[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, September 2017,

September 2022, September 2023

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

HOMICIDE CALCRIM No. 521

257

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 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].)

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].

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• 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, supra,

70 Cal.2d at pp. 26-27; 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].

• Murder by Poison Requirements. People v. Brown (2023) 14 Cal.5th 453, 471

[305 Cal.Rptr.3d 127, 524 P.3d 1088].

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.

• Elements of 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].

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

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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, supra, 52 Cal.3d at p. 1242; 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, supra, 52 Cal.3d at p. 1239.)

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,

supra, 117 Cal.App.4th at pp. 419-420; 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, supra, 10 Cal.4th at p. 794, 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].)

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).

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Page last reviewed February 2025

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