Section 520 | CALCRIM (Jury Instructions)

AND
4. (He/She) deliberately (acted/ [or] failed to act) with conscious
disregard for (human/ [or] fetal) life.
Malice aforethought does not require 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 require 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 progressed 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 direct,
natural, and probable consequence of the (act/ [or] failure 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 probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. (An act/ [or] (A/a) failure
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)
<insert description of person owing duty> has a legal
duty to (help/care for/rescue/warn/maintain the property of/
<insert other required action[s]>)
<insert description of
decedent/person to whom duty is owed>.]
<Give the following bracketed paragraph if the second degree is the only
possible degree of the crime for which the jury may return a verdict>
[If you find the defendant guilty of murder, it is murder of the second
degree.]
<Give the following bracketed paragraph if there is substantial evidence of
first degree murder>
[If you decide that the defendant committed murder, it is murder of the
second degree, unless the People have proved beyond a reasonable doubt
that it is murder of the first degree as defined in CALCRIM No.
<insert number of appropriate first degree murder instruction>.]
New January 2006; Revised August 2009, October 2010, February 2013, August
CALCRIM No. 520
HOMICIDE
250

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“Fetus” Defined. People v. Davis (1994) 7 Cal.4th 797, 814–815 [30 Cal.Rptr.2d
50, 872 P.2d 591]; People v. Taylor (2004) 32 Cal.4th 863, 867 [11 Cal.Rptr.3d
510, 86 P.3d 881].
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Ill Will Not Required for Malice. People v. Sedeno (1974) 10 Cal.3d 703, 722
[112 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.
Breverman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d 1094].
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Prior Version of This Instruction Upheld. People v. Genovese (2008) 168
Cal.App.4th 817, 831 [85 Cal.Rptr.3d 664].
LESSER INCLUDED OFFENSES
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Voluntary Manslaughter. Pen.