California Criminal Jury Instructions (CALCRIM) (2017)

601. Attempted Murder: Deliberation and Premeditation

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601.Attempted Murder: Deliberation and Premeditation (Pen.
Code, §§ 21a, 189, 664(a))
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>) acted with premeditation if
(he/she) decided to kill before completing the act[s] of attempted
murder.
[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.
New January 2006; Revised February 2013, February 2015
BENCH NOTES
Instructional Duty
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.
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When a charged attempted murder also forms the basis for a charge of provocative
act murder, the court must take care to clarify that the defendant must have
personally premeditated and deliberated an attempted murder in order to be
convicted of first degree murder resulting from attempted murder under the
provocative act doctrine. As described in CALCRIM No. 560, Homicide:
Provocative Act by Defendant, the mental state for first degree murder under the
provocative act murder doctrine requires that the defendant “personally
premeditated and deliberated the attempted murder that provoked a lethal
response.” (People v. Gonzalez (2012) 54 Cal.4th 643, 662 [142 Cal.Rptr.3d 893,
278 P.3d 1242].)
AUTHORITY
• Willful, Deliberate, and Premeditated Murder. Pen. Code, § 189.
Willful, Deliberate, and Premeditated Attempted Murder. Pen. Code, § 664(a).
• 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].
• Attempted Premeditated Murder and the Natural and Probable Consequences
Doctrine. People v. Favor (2012) 54 Cal.4th 868, 879 [143 Cal.Rptr.3d 659,
279 P.3d 1131].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Elements, §§ 56–57.
6Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02[3]; Ch. 141, Conspiracy, Solicitation, and Attempt,
§§ 141.20[2], 141.21; Ch. 142, Crimes Against the Person, § 142.01[1][e], [g],
[3][e] (Matthew Bender).
RELATED ISSUES
Accomplice Liability
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.)
See the Related Issues Section to CALCRIM No. 521, Murder: Degrees for
discussion of “deliberate and premeditated.”
CALCRIM No. 601 HOMICIDE
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