CALCRIM No. 560

[The defendant is charged [in Count] with <insert

underlying crime>.] The defendant is [also] charged [in Count]

with murder. A person can be guilty of murder under the provocative act

doctrine even if someone else did the actual killing.

To prove that the defendant is guilty of murder under the provocative

act doctrine, the People must prove that:

1. In (committing/ [or] attempting to commit) <insert

underlying crime>, the defendant intentionally did a provocative

act;

2. The defendant knew that the natural and probable consequences

of the provocative act were dangerous to human life and then

acted with conscious disregard for life;

3. In response to the defendant’s provocative act,

<insert name or description of third party> killed

<insert name of decedent>;

AND

4. ’s <insert name of decedent> death was the natural

and probable consequence of the defendant’s provocative act.

A provocative act is an act:

1. [That goes beyond what is necessary to accomplish the

<insert underlying crime>;]

[AND

2.] Whose natural and probable consequences are dangerous to

human life, because there is a high probability that the act will

provoke a deadly response.

In order to prove that ’s <insert name of decedent> death

was the natural and probable consequence of the defendant’s provocative

act, the People must prove that:

1. A reasonable person in the defendant’s position would have

foreseen that there was a high probability that his or her act

could begin a chain of events resulting in someone’s death;

2. The defendant’s act was a direct and substantial factor in causing

’s <insert name of decedent> death;

AND

3. ’s <insert name of decedent> death would not have

happened if the defendant had not committed the provocative act.

A substantial factor is more than a trivial or remote factor. However, it

does not need to be the only factor that caused the death.

<Multiple Provocative Acts>

[The People alleged that the defendant committed the following

provocative acts: <insert acts alleged>. Y ou may not find

the defendant guilty unless you all agree that the People have proved

that the defendant committed at least one of these acts. However, you do

not all need to agree on which act.]

<Independent Criminal Act>

[A defendant is not guilty of murder if the killing of <insert

name of decedent> was caused solely by the independent criminal act of

someone else. An independent criminal act is a free, deliberate, and

informed criminal act by a person who is not acting with the defendant.]

<Degree of Murder>

[[If you decide that the defendant is guilty of murder, you must decide

whether the murder is first or second degree.]

<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 provocative act was willful, deliberate, and premeditated (murder/

attempted murder)”> [and] (2) <insert second theory, e.g.,

“the provocative act was committed during the defendant’s perpetration of an

enumerated felony> [<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 (his/her) provocative act was a (murder/attempted murder)

committed willfully, deliberately, and with premeditation. The defendant

acted willfully in committing this provocative act 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

CALCRIM No. 560 HOMICIDE

consequences, decided to kill. The defendant acted with premeditation if

(he/she) decided to kill before committing the provocative act[s] that

(caused/(was/were) intended to cause) death.

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

not alone determine whether the (killing/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 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.]

<Give the following paragraph if more than one defendant was involved in

the provocative act>

For a defendant to be found guilty of first degree murder, (he/she)

personally must have acted willfully, deliberately, and with premeditation

when the (murder/attempted murder) was committed.

<B. Enumerated Felony>

[To prove that the defendant is guilty of first degree murder, the People

must prove that:

1. As a result of the defendant’s provocative act,

<insert name of decedent> was killed during the commission of

<insert Pen. Code, § 189 felony>;

AND

2. Defendant intended to commit <insert Pen. Code,

§ 189 felony> when (he/she) did the provocative act.

2. In deciding whether the defendant intended to commit

<insert Pen. Code, § 189 felony> and whether the

death occurred during the commission of <insert

Pen. Code, § 189 felony>, you should refer to the instructions I

have given you on <insert Pen. Code, § 189 felony>.]

<C. If there is another theory, see Bench Note below and modify and use

CALCRIM No. 521 in a manner consistent with the modifications in section

A. Deliberation and Premeditation>

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.

Any murder that does not meet these requirements for first degree

murder is second degree murder.

HOMICIDE CALCRIM No. 560

[If you decide that the defendant committed murder, that crime is

murder in the second degree.]

New January 2006; Revised April 2011, February 2013