CALCRIM No. 521

<Select the appropriate section[s]. Give the final paragraph in every case.>

<Give if multiple theories alleged.>

[The defendant has been prosecuted for first degree murder under

(two/ <insert number>) theories: (1) <insert first

theory, e.g., “the murder was willful, deliberate, and premeditated”> [and]

(2) <insert second theory, e.g., “the murder was committed by

lying in wait”> [and] [<insert additional theories>].

[Each theory of first degree murder has different requirements, and I

will instruct you on (both/all <insert number>).

Y ou may not find the defendant guilty of first degree murder unless all

of you agree that the People have proved that the defendant committed

murder. But all of you do not need to agree on the same theory.]

<A. Deliberation and Premeditation>

[The defendant is guilty of first degree murder if the People have proved

that (he/she) acted willfully, deliberately, and with premeditation. The

defendant acted willfully if (he/she) intended to kill. The defendant acted

deliberately if (he/she) carefully weighed the considerations for and

against (his/her) choice and, knowing the consequences, decided to kill.

The defendant acted with premeditation if (he/she) decided to kill before

completing the act[s] that caused death.

The length of time the person spends considering whether to kill does

not alone determine whether the 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

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.]

<B. Torture>

[The defendant is guilty of first degree murder if the People have proved

that the defendant committed murder by torture. The defendant

committed murder by torture if:

1. (He/She) willfully, deliberately, and with premeditation intended

to inflict extreme and prolonged pain on the person killed while

that person was still alive;

2. (He/She) intended to inflict such pain on the person killed for the

calculated purpose of revenge, extortion, persuasion, or any other

sadistic reason;

3. The acts causing death involved a high degree of probability of

death;

AND

4. The torture was a cause of death.]

[A person commits an act willfully when he or she does it willingly or on

purpose. A person commits an act deliberately if he or she carefully

weighs the considerations for and against his or her choice and, knowing

the consequences, decides to act. A person commits an act with

premeditation if (he/she) decided to inflict extreme and prolonged pain on

a person before completing the act[s] that caused death.]

[There is no requirement that the person killed be aware of the pain.]

[A finding of torture does not require that the defendant intended to

kill.]

<C. Lying in Wait>

[The defendant is guilty of first degree murder if the People have proved

that the defendant committed murder while lying in wait or immediately

thereafter. The defendant committed murder by lying in wait if:

1. (He/She) concealed (his/her) purpose from the person killed;

2. (He/She) waited and watched for an opportunity to act;

AND

3. Then, from a position of advantage, (he/she) intended to and did

make a surprise attack on the person killed.

The lying in wait does not need to continue for any particular period of

time, but its duration must be substantial enough to show a state of

mind equivalent to deliberation or premeditation. [Deliberation means

carefully weighing the considerations for and against a choice and,

knowing the consequences, deciding to act. An act is done with

premeditation if the decision to commit the act is made before the act is

done.]

[A person can conceal his or her purpose even if the person killed is

aware of the person’s physical presence.]

[The concealment can be accomplished by ambush or some other secret

plan.]]

<D. Destructive Device or Explosive>

[The defendant is guilty of first degree murder if the People have proved

that the defendant committed murder by using a destructive device or

explosive.]

CALCRIM No. 521 HOMICIDE

[An explosive is any substance, or combination of substances, (1) whose

main or common purpose is to detonate or rapidly combust and (2)

which is capable of a relatively instantaneous or rapid release of gas and

heat.]

[An explosive is [also] any substance whose main purpose is to be

combined with other substances to create a new substance that can

release gas and heat rapidly or relatively instantaneously.]

[<insert type of explosive from Health & Saf. Code, § 12000>

is an explosive.]

[A destructive device is <insert definition supported by

evidence from Pen. Code, § 16460>.]

[<insert type of destructive device from Pen. Code, § 16460>

is a destructive device.]

<E. Weapon of Mass Destruction>

[The defendant is guilty of first degree murder if the People have proved

that the defendant committed murder by using a weapon of mass

destruction.]

[<insert type of weapon from Pen. Code, § 11417(a)(1)> is a

weapon of mass destruction.]

[<insert type of agent from Pen. Code, § 11417(a)(2)> is a

chemical warfare agent.]]

<F. Penetrating Ammunition>

[The defendant is guilty of first degree murder if the People have proved

that when the defendant committed murder, (he/she) used ammunition

designed primarily to penetrate metal or armor to commit the murder

and (he/she) knew that the ammunition was designed primarily to

penetrate metal or armor.]

<G. Discharge From V ehicle>

[The defendant is guilty of first degree murder if the People have proved

that the defendant committed murder by shooting a firearm from a

motor vehicle. The defendant committed this kind of murder if:

1. (He/She) shot a firearm from a motor vehicle;

2. (He/She) intentionally shot at a person who was outside the

vehicle;

AND

3. (He/She) intended to kill that person.

A firearm is any device designed to be used as a weapon, from which a

HOMICIDE CALCRIM No. 521

projectile is discharged or expelled through a barrel by the force of an

explosion or other form of combustion.

A motor vehicle includes (a/an) (passenger vehicle/motorcycle/motor

scooter/bus/school bus/commercial vehicle/truck tractor and

trailer/ <insert other type of motor vehicle>).]

<H. Poison>

[The defendant is guilty of first degree murder if the People have proved

that the defendant committed murder by using poison. The defendant

committed murder by poison if:

1. (He/She) deliberately gave <insert name of victim>

poison;

AND

2. When giving the poison, the defendant intended to kill

<insert name of victim> or to inflict injury likely to

cause <insert name of victim>’s death.

[Poison is a substance, applied externally to the body or introduced into

the body, that can kill by its own inherent qualities.]]

[<insert name of substance> is a poison.]

[The requirements for second degree murder based on express or

implied malice are explained in CALCRIM No. 520, First or Second

Degree Murder With Malice Aforethought.]

The People have the burden of proving beyond a reasonable doubt that

the killing was first degree murder rather than a lesser crime. If the

People have not met this burden, you must find the defendant not guilty

of first degree murder and the murder is second degree murder.

New January 2006; Revised August 2006, June 2007, April 2010, October 2010,

February 2012, February 2013, February 2015, August 2015, September 2017,

September 2022, September 2023