601. Attempted Murder: Deliberation and Premeditation
If you find the defendant guilty of attempted murder [under Count ______], you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation.
(The defendant/ <insert name or description of principal if not defendant>) acted willfully if (he/she) intended to kill when (he/she) acted. (The defendant/ <insert name or description of principal if not defendant>) deliberated if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill. (The defendant/ <insert name or description of principal if not defendant>) premeditated if (he/she) decided to kill before acting.
[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or <insert name or description of principal> or both of them acted with that state of mind.]
The length of time the person spends considering whether to kill does not alone determine whether the attempted 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 of the choice and its consequences 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.
The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.
The court has a sua sponte duty to give this instruction defining the elements of the sentencing enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 475-476, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Pen. Code, § 664(a).) Give this instruction when an enhancement for deliberation and premeditation is charged.
This instruction must be given with CALCRIM No. 600, Attempted Murder.
Willful, Deliberate, and Premeditated Murder. Pen. Code, § 189.
Willful, Deliberate, and Premeditated Attempted Murder. Pen. Code, § 664(a).
Premeditation and Deliberation Defined. 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].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, §§ 53-67.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02; Ch. 141, Conspiracy, Solicitation, and Attempt, §§ 141.20, 141.21; Ch. 142, Crimes Against the Person, § 142.01[e], [g], [e] (Matthew Bender).
An aider and abettor is subject to this penalty provision where the principal attempted a willful, deliberate, and premeditated murder even though the accomplice did not personally deliberate or premeditate. (People v. Lee (2003) 31 Cal.4th 613, 622-623 [3 Cal.Rptr.3d 402, 74 P.3d 176]; People v. Laster (1997) 52 Cal.App.4th 1450, 1473 [61 Cal.Rptr.2d 680].) The accomplice must still share the intent to kill. (People v. Lee, supra, 31 Cal.4th at pp. 623-624.)
Penal Code section 664(a) is a sentencing enhancement, and does not create a greater degree of attempted murder. (People v. Bright (1996) 12 Cal.4th 652, 656-657 [49 Cal.Rptr.2d 732, 909 P.2d 1354]; but see Jones v. Smith (9th Cir. 2001) 231 F.3d 1227, 1236 [questioning the continuing validity of Bright in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]].)
See also the Related Issues Section to CALCRIM No. 521, Murder: Degrees for discussion of "deliberate and premeditated."
(New January 2006)