540A. Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act

The defendant is charged [in Count ______] with murder, under a theory of felony murder.

To prove that the defendant is guilty of first degree murder under this theory, the People must prove that:

1. The defendant committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>;

2. The defendant intended to commit <insert felony or felonies from Pen. Code, § 189>;

AND

3. While committing [or attempting to commit] , <insert felony or felonies from Pen. Code, § 189> the defendant did an act that caused the death of another person.

A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.

To decide whether the defendant committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>, please refer to the separate instructions that I (will give/ have given) you on (that/those) crime[s]. You must apply those instructions when you decide whether the People have proved first degree murder under a theory of felony murder.

<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON ALL UNDERLYING FELONIES ARE GIVEN.>

[The defendant must have intended to commit the (felony/ felonies) of <insert felony or felonies from Pen. Code, § 189> before or at the time of the act causing the death.]

[It is not required that the person die immediately, as long as the act causing the death and the (felony/felonies) are part of one continuous transaction.]

[It is not required that the person killed be the (victim/intended victim) of the (felony/felonies).]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. The court also has a sua sponte duty to instruct on the elements of any underlying felonies. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481, 892 P.2d 1224].) Give all appropriate instructions on all underlying felonies with this instruction. The court may need to modify the first sentence of the instruction on an underlying felony if the defendant is not separately charged with that offense.

If causation is an issue, the court has a sua sponte duty to give CALCRIM No. 240, Causation.

The felonies that support a charge of first degree felony murder are arson, rape, carjacking, robbery, burglary, kidnapping, mayhem, train wrecking, sodomy, lewd or lascivious acts on a child, oral copulation, and sexual penetration. (See Pen. Code, § 189.)

If there is evidence that the defendant did not form the intent to commit the felony until after the homicide, the defendant is entitled on request to an instruction pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124-127 [287 P.2d 497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].) Give the bracketed sentence that begins with "The defendant must have intended to commit the felony." For an instruction specially tailored to robbery-murder cases, see People v. Turner (1990) 50 Cal.3d 668, 691 [268 Cal.Rptr. 706, 789 P.2d 887].

Give the bracketed sentence that begins with "It is not required that the person die immediately" on request if relevant based on the evidence.

The felony-murder rule does not require that the person killed be the victim of the underlying felony. (People v. Johnson (1972) 28 Cal.App.3d 653, 658 [104 Cal.Rptr. 807] [accomplice]; People v. Welch (1972) 8 Cal.3d 106, 117-119 [104 Cal.Rptr. 217, 501 P.2d 225] [innocent bystander]; People v. Salas (1972) 7 Cal.3d 812, 823 [103 Cal.Rptr. 431, 500 P.2d 7] [police officer].) Give the bracketed sentence that begins with "It is not required that the person killed be" on request.

The Supreme Court has not decided whether the trial court has a sua sponte duty to instruct on the meaning of "one continuous transaction." (See People v. Cavitt (2004) 33 Cal.4th 187, 204 [14 Cal.Rptr.3d 281, 91 P.3d 222].) If the evidence raises an issue of whether the act causing the death and the felony were part of "one continuous transaction," the committee recommends that the court also give CALCRIM No. 549, Felony Murder: One Continuous Transaction—Defined.

Drive-By Shooting

The drive-by shooting clause in Penal Code section 189 is not an enumerated felony for purposes of the felony-murder rule. (People v. Chavez (2004) 118 Cal.App.4th 379, 386-387 [12 Cal.Rptr.3d 837].) A finding of a specific intent to kill is required in order to find first degree murder under this clause. (Ibid.)

If the prosecutor is proceeding under both malice and felony-murder theories, also give CALCRIM No. 548, Murder: Alternative Theories. If the prosecutor is relying only on a theory of felony murder, no instruction on malice should be given. (See People v. Cain (1995) 10 Cal.4th 1, 35-37 [40 Cal.Rptr.2d 481, 892 P.2d 1224] [error to instruct on malice when felony murder only theory].)

Related Instructions—Other Causes of Death

This instruction should be used only when the prosecution alleges that the defendant committed the act causing the death.

If the prosecution alleges that another coparticipant in the felony committed the fatal act, give CALCRIM No. 540B, Felony Murder: First Degree— Coparticipant Allegedly Committed Fatal Act. If the evidence indicates that either the defendant or a coparticipant may have committed the fatal act, give both instructions.

When the alleged victim dies during the course of the 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, give CALCRIM No. 540C, Felony Murder: First Degree— Other Acts Allegedly Caused Death. (People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542]; People v. Stamp (1969) 2 Cal.App.3d 203, 209-211 [82 Cal.Rptr. 598]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]; but see People v. Gunnerson (1977) 74 Cal.App.3d 370, 378-381 [141 Cal.Rptr. 488] [a simultaneous or coincidental death is not a killing].)

If the evidence indicates that someone other than the defendant or a coparticipant committed the fatal act, then the crime is not felony murder. (People v. Washington (1965) 62 Cal.2d 777, 782-783 [44 Cal.Rptr. 442, 402 P.2d 130]; People v. Caldwell (1984) 36 Cal.3d 210, 216 [203 Cal.Rptr. 433, 681 P.2d 274]; see also People v. Gardner (1995) 37 Cal.App.4th 473, 477 [43 Cal.Rptr.2d 603].) Liability may be imposed, however, under the provocative act doctrine. (Pizano v. Superior Court (1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524, 577 P.2d 659]; see CALCRIM No. 560, Homicide: Provocative Act by Defendant.)

Authority

Felony Murder: First Degree. Pen. Code, § 189; People v. Cavitt (2004) 33 Cal.4th 187, 197 [14 Cal.Rptr.3d 281, 91 P.3d 222].

Specific Intent to Commit Felony Required. People v. Cavitt (2004) 33 Cal.4th 187, 197 [14 Cal.Rptr.3d 281, 91 P.3d 222].

Continuous Transaction Requirement. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.3d 281, 91 P.3d 222].

Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222-223 [58 Cal.Rptr.2d 385, 926 P.2d 365].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 134-147.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death Penalty, § 87.13[7] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[1][e], [2][b] (Matthew Bender).

Lesser Included Offenses

Second Degree Murder. Pen. Code, § 187.

Voluntary Manslaughter. Pen. Code, § 192(a).

Involuntary Manslaughter. Pen. Code, § 192(b).

Attempted Murder. Pen. Code, §§ 663, 189.

Related Issues

Does Not Apply Where Felony Committed Only to Facilitate Murder

If a felony, such as robbery, is committed merely to facilitate an intentional murder, then the felony-murder rule does not apply. (People v. Green (1980) 27 Cal.3d 1, 61 [164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99] [robbery committed to facilitate murder did not satisfy felony-murder special circumstance].) If the defense requests a special instruction on this point, see CALCRIM No. 730, Special Circumstances: Murder in Commission of Felony, Pen. Code, § 190.2(a)(17).

No Duty to Instruct on Lesser Included Offenses of Uncharged Predicate Felony

"Although a trial court on its own initiative must instruct the jury on lesser included offenses of charged offenses, this duty does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine." (People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769] [original italics]; see People v. Cash (2002) 28 Cal.4th 703, 736-737 [122 Cal.Rptr.2d 545] [no duty to instruct on theft as lesser included offense of uncharged predicate offense of robbery].)

Auto Burglary

Auto burglary may form the basis for a first degree felony-murder conviction. (People v. Fuller (1978) 86 Cal.App.3d 618, 622-623, 628 [150 Cal.Rptr. 515] [noting the problems of applying the felony-murder rule to a nondangerous daytime auto burglary].)

Duress

"[D]uress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony." (People v. Anderson (2002) 28 Cal.4th 767, 784 [122 Cal.Rptr.2d 587, 50 P.3d 368] [dictum]; see also CALCRIM No. 3402, Duress or Threats.)

Imperfect Self-Defense

Imperfect self-defense is not a defense to felony murder because malice aforethought, which imperfect self-defense negates, is not an element of felony murder. (People v. Tabios (1998) 67 Cal.App.4th 1, 6-9 [78 Cal.Rptr.2d 752].)

Merger: Ireland Rule