CALCRIM No. 526. Implied Malice Murder: Aiding and Abetting
Judicial Council of California Criminal Jury Instructions (2025 edition)
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526.Implied Malice Murder: Aiding and Abetting
To prove that the defendant is guilty of aiding and abetting murder by
acting with implied malice, the People must prove that:
1. The perpetrator committed [an] act[s] that (was/were) dangerous
to human life;
2. The perpetrator’s act[s] caused the death of (another person/ [or]
a fetus);
3. The defendant knew that the perpetrator intended to commit the
act[s] that (was/were) dangerous to human life;
4. Before or during the commission of the perpetrator’s act[s], the
defendant intended to aid and abet the perpetrator in committing
the act[s] that (was/were) dangerous to human life;
5. Before or during the commission of the perpetrator’s act[s], the
defendant knew the perpetrator’s act[s] (was/were) dangerous to
human life, and the defendant deliberately acted with conscious
disregard for human life;
5. AND
6. By words or conduct, the defendant did in fact aid and abet the
perpetrator’s commission of the act[s].
If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty as
an aider and abettor.
Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.
An act is dangerous to human life if there is a high degree of probability
that the act will result in death.
[If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that a
person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[It is not necessary that the perpetrator or 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
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typically occurs at seven to eight weeks after fertilization.]
[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.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime.
1. AND
2. He or she must do everything reasonably within his or her power
to prevent the crime from being committed. He or she does not
have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
New September 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560-561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed paragraph that begins with: “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557 fn.14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is evidence that the defendant withdrew from participation in the crime, the
court has a sua sponte duty to give the bracketed portion regarding withdrawal.
(People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87]; People v. Ross
(1979) 92 Cal.App.3d 391, 404-405 [154 Cal.Rptr. 783].)
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 modify this instruction,
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consistent with the language in CALCRIM No. 520, First or Second Degree Murder
With Malice Aforethought.
Related Instructions
Give CALCRIM No. 520, Murder: First or Second Degree Murder With Malice
Aforethought and CALCRIM No. 400, Aiding and Abetting: General Principles,
before this instruction. Note that Penal Code section 30 uses “principal” but that
CALCRIM Nos. 400 and 526 substitute “perpetrator” for clarity.
AUTHORITY
• Instructional Requirements. People v. Reyes (2023) 14 Cal.5th 981, 992 [309
Cal.Rptr.3d 832, 531 P.3d 357].
• Aiding and Abetting Liability for Implied Malice Murder. People v. Reyes,
supra, 14 Cal.5th at pp. 990-991; People v. Gentile (2020) 10 Cal.5th 830,
850-851 [272 Cal.Rptr.3d 814, 477 P.3d 539].
• Presence or Knowledge Insufficient. People v. Boyd (1990) 222 Cal.App.3d 541,
557 fn.14 [271 Cal.Rptr. 738]; In re Michael T., supra, 84 Cal.App.3d at p. 911.
• “Dangerous to Human Life” Defined. People v. Reyes, supra, 14 Cal.5th at p.
989.
• 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].
• Withdrawal. People v. Norton, supra, 161 Cal.App.2d at p. 403; People v. Ross
(1979) 92 Cal.App.3d 391, 404-405 [154 Cal.Rptr. 783].
COMMENTARY
In recognizing that Penal Code section 188(a)(3) bars imputed malice, and therefore
bars conviction of second degree murder under a natural and probable consequences
theory, the California Supreme Court further held that: “an aider and abettor who
does not expressly intend to aid a killing can still be convicted of second degree
murder if the person knows that his or her conduct endangers the life of another and
acts with conscious disregard for life.” (People v. Gentile, supra, 10 Cal.5th at pp.
850-851.) Unlike imputed malice, which involves vicarious liability, implied malice
involves the concept of natural and probable consequences, which is still permissible
because implied malice: “is based upon the natural and probable consequences of a
defendant’s own act committed with knowledge of and disregard for the risk of
death the act carries.” (People v. Vargas, supra, 84 Cal.App.5th at p. 953 fn. 6.)
Therefore, aiding and abetting implied malice murder remains a valid theory of
liability, notwithstanding the statutory changes effected by Senate Bill 1437 (Stats.
2018, ch. 1015) and Senate Bill 775 (Stats. 2021, ch. 551). (See People v. Reyes,
supra, 14 Cal.5th at pp. 990-991.)
527-540. Reserved for Future Use
CALCRIM No. 526 HOMICIDE
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D. FELONY MURDER
Introduction to Felony-Murder Series
Senate Bill No. 1437 (2017-2018 Reg. Sess.) substantially changed accomplice
liability for felony murder. Malice may no longer be imputed simply from
participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant
participated in the commission or attempted commission of a designated felony
when a person was killed, the defendant is now liable under the felony-murder rule
only if: (1) the defendant was the actual killer; (2) the defendant was not the actual
killer but, with intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in committing murder in the first
degree; or (3) the defendant was a major participant in the underlying designated
felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).)
These restrictions do not apply when the victim was a peace officer and the
defendant knew or reasonably should have known that the victim was a peace
officer acting within the performance of his or her duties. (Pen. Code, § 189(f).)
As a result of these changes, the committee has modified CALCRIM Nos. 540B and
540C to incorporate the additional statutory elements for accomplice liability. The
committee has also removed CALCRIM Nos. 541A, 541B, and 541C which
addressed second degree felony murder.
The three separate instructions for felony murder present the following options:
A. Defendant Allegedly Committed Fatal Act
B. Coparticipant Allegedly Committed Fatal Act
C. Other Acts Allegedly Caused Death
For a simple case in which the defendant allegedly personally caused the death by
committing a direct act of force or violence against the victim, the court may use
CALCRIM No. 540A. This instruction contains the least amount of bracketed
material and requires the least amount of modification by the court.
In a case where the prosecution alleges that a participant in the felony other than the
defendant caused the death, the court must use CALCRIM No. 540B. This
instruction allows the court to instruct that the defendant may have committed the
underlying felony or may have aided and abetted or conspired to commit an
underlying felony that actually was committed by a coparticipant.
If the evidence indicates that either the defendant or a coparticipant may have
committed the fatal act, the court should give both CALCRIM No. 540A and
CALCRIM No. 540B.
In addition, the committee has provided CALCRIM No. 540C to account for the
unusual factual situations where a victim dies during the course of a felony as a
result of a heart attack, a fire, or a similar cause, rather than as a result of some act
of force or violence committed against the victim by one of the participants. (See
People v. Billa (2003) 31 Cal.4th 1064, 1072.) This instruction is the most
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complicated of the three instructions. Thus, although CALCRIM No. 540C is broad
enough to cover most felony-murder scenarios, the committee recommends using
CALCRIM Nos. 540A or 540B whenever appropriate to avoid providing the jury
with unnecessarily complicated instructions.
In People v. Wilkins (2013) 56 Cal.4th 333, 344, the Supreme Court clarified the
temporal component necessary for liability for a death under the felony-murder rule
and noted the limited usefulness of former CALCRIM No. 549, Felony Murder, One
Continuous Transaction - Defined. To avoid any potential confusion, the committee
has deleted that instruction and replaced it with appropriate bench note references. If
the defendant committed the homicidal act and fled, that killing did not occur in the
commission of the felony if the fleeing felon has reached a place of temporary
safety. (People v. Wilkins, supra, at p. 345.)
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