Criminal Law

562. Transferred Intent

<A. Only unintended victim is killed.>

[If the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed.]

<B. Both intended and unintended victims are killed.>

[If the defendant intended to kill one person, but by mistake or accident also killed someone else, then the crime, if any, is the same for the unintended killing as it is for the intended killing.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction if transferred intent is one of the general principles of law relevant to the issues raised by the evidence. (People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d 370].)

Give optional paragraph A if only an unintended victim is killed. Give optional paragraph B if both the intended victim and an unintended victim or victims are killed. (See discussion in Commentary, below.)

Any defenses that apply to the intended killing apply to the unintended killing as well. (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024 [154 Cal.Rptr. 628].) This includes defenses that decrease the level of culpable homicide such as heat of passion or imperfect self-defense.

Do not give this instruction for a charge of attempted murder. The transferred intent doctrine does not apply to attempted murder. A defendant's guilt of attempted murder must be judged separately for each alleged victim. (People v. Bland (2002) 28 Cal.4th 313, 327-328, 331 [121 Cal.Rptr.2d 546, 48 P.3d 1107]; see CALCRIM No. 600, Attempted Murder.)

Related Instructions

Always give the appropriate related homicide instructions.


Common Law Doctrine of Transferred Intent. People v. Mathews (1979) 91 Cal.App.3d 1018, 1024 [154 Cal.Rptr. 628].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 13-15.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02[3][b], Ch. 142, Crimes Against the Person, § 142.01[2][b][vii] (Matthew Bender).


Intent Transfers to Unintended Victim

"[A] person's intent to kill the intended target is not 'used up' once it is employed to convict the person of murdering that target. It can also be used to convict of the murder of others the person also killed. . . . [A]ssuming legal causation, a person maliciously intending to kill is guilty of the murder of all persons actually killed. If the intent is premeditated, the murder or murders are first degree. . . . Intent to kill transfers to an unintended homicide victim even if the intended target is killed." (People v. Bland (2002) 28 Cal.4th 313, 322, 323-324, 326 [121 Cal.Rptr.2d 546, 48 P.3d 1107] [disapproving People v. Birreuta (1984) 162 Cal.App.3d 454, 458, 463 [208 Cal.Rptr. 635]].)

(New January 2006)