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Understanding What the DA Must Prove for Murder Charges

Jury Instruction 520: First or Second Degree Murder Explained

The defendant is charged [in Count ] with murder [in violation of Penal Code section 187].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of (another person/ [or] a fetus);

[AND]

2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

<Give element 3 when instructing on justifiable or excusable homicide.>

[AND

3. (He/She) killed without lawful (excuse/[or] justification).]

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1. (He/She) intentionally committed an act;

2. The natural and probable consequences of the act were dangerous to human life;

3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life; AND

4. (He/She) deliberately acted 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 occurs at seven to eight weeks of development.]

[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the 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 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 or/rescue/warn/maintain the property of/ <insert other required action[s]>) <insert description of decedent/person to whom duty is owed>.

If you conclude that the defendant owed a duty to <insert name of decedent>, and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.]

<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, you must then decide whether it is murder of the first or second degree].