C. MURDER: FIRST AND SECOND DEGREE
520 . First or Second Degree Murder With Malice Aforethought
(Pen. Code, § 187)
The defendant is charged [in Count ] with murder [in violation of
Penal Code section 187].
T o prove that the defendant is guilty of this crime, the People must
prove that:
[1A. The defendant committed an act that caused the death of
(another person/ [or] a fetus);]
[1B. The defendant had a legal duty to (help/care
for/rescue/warn/maintain the property of/ other required action[s]> ) __________ < insert description of decedent/person to whom duty is owed> and the defendant failed to perform that duty and that failure caused the death of (another person/ [or] a fetus);] 2. When the defendant (acted/ [or] failed to act), (he/she) had a state of mind called malice aforethought(;/.) 3. (He/She) killed without lawful (excuse/ [or] justification).] There ar e two kinds of malice afor ethought, express malice and implied malice. Proof of either is suff icient to establish the state of mind r equired for murder . The defendant had express malice if (he/she) unlawfully intended to kill. The defendant had implied malice if: 1. (He/She) intentionally (committed the act/ [or] failed to act); 2. The natural and probable consequences of the (act/ [or] failure to act) were dangerous to human life in that the (act/ [or] failure to act) involved a high degree of probability that it would result in 3. At the time (he/she) (acted/ [or] failed to act), (he/she) knew (his/ her) (act/ [or] failure to act) was dangerous to human life; 4. (He/She) deliberately (acted/ [or] failed to act) with conscious disregard for (human/ [or] fetal) life. Malice aforethought does not r equir e hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not requir e deliberation or the passage of any particular period of time. [It is not necessary that the defendant be aware of the existence of a fetus to be guilty of murdering that fetus.] [A fetus is an unborn human being that has progr essed beyond the embryonic stage after major structures have been outlined, which typically occurs at seven to eight weeks after fertilization.] [(An act/ [or] (A/a) failure to act) causes death if the death is the dir ect, natural, and probable consequence of the (act/ [or] failur e to act) and the death would not have happened without the (act/ [or] failure to act). A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and pr obable, consider all of the circumstances established by the evidence.] [There may be mor e than one cause of death. (An act/ [or] (A/a) failur e to act) causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor . However , it does not need to be the only factor that causes the death.] [(A/An) duty to (help/care for/r escue/warn/maintain the pr operty of/ decedent/person to whom duty is owed> .] possible degr ee of the crime for which the jury may r eturn a ver dict> [If you find the defendant guilty of murder , it is murder of the second first degr ee mur der> [If you decide that the defendant committed murder , it is murder of the second degree, unless the People have pr oved beyond a r easonable doubt that it is murder of the first degr ee as defined in CALCRIM No. New January 2006; Revised August 2009, October 2010, February 2013, August CALCRIM No. 520 HOMICIDE 2013, September 2017, Mar ch 2019, September 2019, Mar ch 2021, Mar ch 2024 BENCH NOTES Instructional Duty The court has a sua sponte duty to instruct on the first two elements of the crime. If there is suf ficient evidence of excuse or justification, the court has a sua sponte duty to include the third, bracketed element in the instruction. ( People v . Frye (1992) 7 Cal.App.4th 1 148, 1 155-1 156 [10 Cal.Rptr .2d 217].) The court also has a sua sponte duty to give any other appropriate defense instructions. (See CALCRIM Nos. 505-627, and CALCRIM Nos. 3470-3477.) If causation is at issue, the court has a sua sponte duty to instruct on proximate cause. ( People v . Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [35 Cal.Rptr . 401].) If the evidence indicates that there was only one cause of death, the court should give the “direct, natural, and probable” language in the first bracketed paragraph on causation. If there is evidence of multiple causes of death, the court should also give the “substantial factor” instruction and definition in the second bracketed causation paragraph. (See People v . Carney (2023) 14 Cal.5th 1130, 1 138-1 139 [310 Cal.Rptr .3d 685, 532 P .3d 696]; People v . Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr .2d 135]; People v . Pike (1988) 197 Cal.App.3d 732, 746-747 [243 Cal.Rptr . 54].) If there is an issue regarding a superseding or intervening cause, give the appropriate portion of CALCRIM No. 620, Causation: Special Issues . If the prosecution’ s theory of the case is that the defendant committed murder based on his or her failure to perform a legal duty , the court may give element 1B. Review the Bench Notes to CALCRIM No. 582, Involuntary Manslaughter: Failur e to Perform Legal Duty - Mur der Not Char ged . If the defendant is charged with first degree murder , give this instruction and CALCRIM No. 521, First Degr ee Mur der . If the defendant is charged with second degree murder , no other instruction need be given. If the defendant is also charged with first degree felony murder , instruct on that crime and give CALCRIM No. 548, Mur der: Alternative Theories . • Elements. Pen. Code, § 187. • Malice. Pen. Code, § 188; People v . Dellinger (1989) 49 Cal.3d 1212, 1217-1222 [264 Cal.Rptr . 841, 783 P .2d 200]; People v . Nieto Benitez (1992) 4 Cal.4th 91, 103-105 [13 Cal.Rptr .2d 864, 840 P .2d 969]; People v . Blakeley (2000) 23 Cal.4th 82, 87 [96 Cal.Rptr .2d 451, 999 P .2d 675]. • “Dangerous to Human Life” Defined. People v . Reyes (2023) 14 Cal.5th 981, 989 [309 Cal.Rptr .3d 832, 531 P .3d 357]. • Causation. People v . Carney (2023) 14 Cal.5th 1130, 1 137-1139 [310 Cal.Rptr .3d 685, 532 P .3d 696] [concurrent causation]; People v . Roberts (1992) 2 Cal.4th 271, 315-321 [6 Cal.Rptr .2d 276, 826 P .2d 274] [successive causation]. HOMICIDE CALCRIM No. 520 • “Fetus” Defined. People v . Davis (1994) 7 Cal.4th 797, 814-815 [30 Cal.Rptr .2d 50, 872 P .2d 591]; People v . T aylor (2004) 32 Cal.4th 863, 867 [1 1 Cal.Rptr .3d 510, 86 P .3d 881]. • Ill W ill Not Required for Malice. People v . Sedeno (1974) 10 Cal.3d 703, 722 [1 12 Cal.Rptr . 1, 518 P .2d 913], overruled on other grounds in People v . Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [160 Cal.Rptr . 84, 603 P .2d 1]; People v . Br everman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr .2d 870, 960 P .2d 1094]. • Prior V ersion of This Instruction Upheld. People v . Genovese (2008) 168 Cal.App.4th 817, 831 [85 Cal.Rptr .3d 664]. LESSER INCLUDED OFFENSES • V oluntary Manslaughter . Pen. Code, § 192(a). • Involuntary Manslaughter . Pen. Code, § 192(b). • Attempted Murder . Pen. Code, §§ 663, 189. • Sentence Enhancements and Special Circumstances Not Considered in Lesser Included Of fense Analysis. People v . Boswell (2016) 4 Cal.App.5th 55, 59-60 [208 Cal.Rptr .3d 244]. Gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5(a)) and vehicular manslaughter (Pen. Code, § 192(c)) are not lesser included of fenses of murder . ( People v . Sanchez (2001) 24 Cal.4th 983, 988-992 [103 Cal.Rptr .2d 698, 16 P .3d 1 18]; People v . Bettasso (2020) 49 Cal.App.5th 1050, 1059 [263 Cal.Rptr .3d 563].) Similarly , child abuse homicide (Pen. Code, § 273ab) is not a necessarily included of fense of murder . ( People v . Malfavon (2002) 102 Cal.App.4th 727, 744 [125 Cal.Rptr .2d 618].) RELA TED ISSUES Causation - Foreseeability Authority is divided on whether a causation instruction should include the concept of foreseeability . (See People v . Autry , supra, 37 Cal.App.4th at pp. 362-363; People v . T emple (1993) 19 Cal.App.4th 1750, 1756 [24 Cal.Rptr .2d 228] [refusing defense-requested instruction on foreseeability in favor of standard causation instruction]; but see People v . Gardner (1995) 37 Cal.App.4th 473, 483 [43 Cal.Rptr .2d 603] [suggesting the following language be used in a causation instruction: “[t]he death of another person must be foreseeable in order to be the natural and probable consequence of the defendant’ s act”].) It is clear , however , that it is error to instruct a jury that foreseeability is immaterial to causation. ( People v . Roberts, supra, 2 Cal.4th at p. 315 [error to instruct a jury that when deciding causation it “[w]as immaterial that the defendant could not reasonably have foreseen the harmful result”].) Second Degree Murder of a Fetus The defendant does not need to know a woman is pregnant to be convicted of second degree murder of her fetus. ( People v . T aylor (2004) 32 Cal.4th 863, 868 [1 1 Cal.Rptr .3d 510, 86 P .3d 881] [“[t]here is no requirement that the defendant CALCRIM No. 520 HOMICIDE specifically know of the existence of each victim”].) “[B]y engaging in the conduct he did, the defendant demonstrated a conscious disregard for all life, fetal or otherwise, and hence is liable for all deaths caused by his conduct.” ( Id. at p. 870.) SECONDAR Y SOURCES 1 W itkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the Person, §§ 96-101, 1 12-1 13. 6 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.04; Ch. 142, Crimes Against the Person, § 142.01 (Matthew Bender). HOMICIDE CALCRIM No. 520 Page last reviewed May 2024 In this second of a two-part series of columns, Professor Citron argues that Roberts re-established his control over the Court by successfully weakening the administrative state and expanding presidential immunity while simultaneously avoiding controversial decisions on gun rights and reproductive issues, ultimately demonstrating his ability to push a conservative agenda without incurring significant political backlash. Lawyers - Get Listed Now! Get a free directory profile listing
