540B. Felony Murder: First Degree - Coparticipant Allegedly Committed Fatal Act

<Give the following introductory sentence when not giving Instruction 540A.>

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

The defendant may [also] be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator.

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][,]/ [or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) <insert felony or felonies from Pen. Code, § 189>;

2. The defendant (intended to commit[,]/ [or] intended to aid and abet the perpetrator in committing[,]/ [or] intended that one or more of the members of the conspiracy commit) <insert felony or felonies from Pen. Code, § 189>;

3. If the defendant did not personally commit [or attempt to commit] <insert felony or felonies from Pen. Code, § 189>, then a perpetrator, (whom the defendant was aiding and abetting/ [or] with whom the defendant conspired), personally committed [or attempted to commit] <insert felony or felonies from Pen. Code, § 189>;

[AND]

4. While committing [or attempting to commit] , <insert felony or felonies from Pen. Code, § 189> the perpetrator did an act that caused the death of another person(;/.)

<Give element 5 if the court concludes it must instruct on causal relationship between felony and death; see Bench Notes.>

[AND

5. There was a logical connection between the act causing the death and the <insert felony or felonies from Pen. Code, § 189> [or attempted <insert felony or felonies from Pen. Code, § 189>]. The connection between the fatal act and the <insert felony or felonies from Pen. Code, § 189> [or attempted <insert felony or felonies from Pen. Code, § 189>] must involve more than just their occurrence at the same time and place.]

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

To decide whether (the defendant/ [and] the perpetrator) 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]. [To decide whether the defendant aided and abetted a crime, please refer to the separate instructions that I (will give/ have given) you on aiding and abetting.] [To decide whether the defendant was a member of a conspiracy to commit a crime, please refer to the separate instructions that I (will give/have given) you on conspiracy.] 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, AIDING AND ABETTING, AND CONSPIRACY ARE GIVEN.>

[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy 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).]

[It is not required that the defendant be present when the act causing the death occurs.]

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].)

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

If the prosecution's theory is that the defendant, as well as the perpetrator, committed or attempted to commit the underlying felony or felonies, then select "committed [or attempted to commit]" in element 1 and "intended to commit" in element 2. In addition, in the paragraph that begins with "To decide whether," select both "the defendant and the perpetrator." Give all appropriate instructions on any 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. The court may also need to modify the instruction to state "the defendant and the perpetrator each committed [the crime] if . . . ."

If the prosecution's theory is that the defendant aided and abetted or conspired to commit the felony, select one or both of these options in element 1 and the corresponding intent requirements in element 2. In addition, in the paragraph that begins with "To decide whether," select "the perpetrator" in the first sentence. Give the second and/or third bracketed sentences. Give all appropriate instructions on any underlying felonies and on aiding and abetting and/or conspiracy 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. The court may also need to modify the instruction to state "the perpetrator committed," rather than "the defendant," in the instructions on the underlying felony.

Bracketed element 5 is based on People v. Cavitt (2004) 33 Cal.4th 187, 193 [14 Cal.Rtpr.3d 281, 91 P.3d 222]. In Cavitt, the Supreme Court clarified the liability of a nonkiller under the felony-murder rule when a cofelon commits a killing. The court held that "the felony-murder rule requires both a causal relationship and a temporal relationship between the underlying felony and the act causing the death. The causal relationship is established by proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the nonkiller committed or attempted to commit. The temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction." (Ibid. [italics in original].) The majority concluded that the court has no sua sponte duty to instruct on the necessary causal connection. (Id. at pp. 203-204.) In concurring opinions, Justice Werdegar, joined by Justice Kennard, and Justice Chin expressed the view that the jury should be instructed on the necessary causal relationship. (Id. at pp. 212-213.) Give bracketed element 5 if the evidence raises an issue over the causal connection between the felony and the killing. In addition, the court may give this bracketed element at its discretion in any case in which this instruction is given. If the prosecution alleges that the defendant did not commit the felony but aided and abetted or conspired to commit the felony, the committee recommends giving bracketed element 5. (See discussion of conspiracy liability in the Related Issues section below.)

If there is evidence that the defendant did not form the intent to commit the felony until after the homicide, or did not join the conspiracy or aid and abet 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." 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.

Give the last bracketed sentence, stating that the defendant need not be present, 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.

If the prosecutor is proceeding under both malice and felony-murder theories, 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 a coparticipant in the felony committed the act causing the death.

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 of Tulare County (1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524, 577 P.2d 659]; see CALCRIM No. 560, Homicide: Provocative Act by Defendant.)

Related Instructions

CALCRIM No. 400 et seq., Aiding and Abetting: General Principles.

CALCRIM No. 415 et seq., Conspiracy.

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].

Logical Connection Required for Liability of Nonkiller. 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].

Defendant Must Join Felonious Enterprise Before or During Killing of Victim. People v. Pulido (1997) 15 Cal.4th 713, 726 [63 Cal.Rptr.2d 625, 936 P.2d 1235].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Introduction to Crimes, §§ 80, 87; Crimes Against the Person, §§ 134-147, 156.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.10[3][b], 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

Conspiracy Liability—Natural and Probable Consequences

In the context of nonhomicide crimes, a coconspirator is liable for any crime committed by a member of the conspiracy that was a natural and probable consequence of the conspiracy. (People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 842-843 [68 Cal.Rptr.2d 388].) This is analogous to the rule in aiding and abetting that the defendant may be held liable for any unintended crime that was the natural and probable consequence of the intended crime. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323].) In the context of felony murder, the Supreme Court has explicitly held that the natural and probable consequences doctrine does not apply to a defendant charged with felony murder based on aiding and abetting the underlying felony. (See, People v. Anderson (1991) 233 Cal.App.3d 1646, 1658 [285 Cal.Rptr. 523].) The court has not explicitly addressed whether the natural and probable consequences doctrine continues to limit liability for felony murder where the defendant's liability is based solely on being a member of a conspiracy.

In People v. Pulido (1997) 15 Cal.4th 713, 724 [63 Cal.Rptr.2d 625, 936 P.2d 1235], the court stated in dicta, "[f]or purposes of complicity in a cofelon's homicidal act, the conspirator and the abettor stand in the same position. [Citation; quotation marks omitted.] In stating the rule of felony-murder complicity we have not distinguished accomplices whose responsibility for the underlying felony was pursuant to prior agreement (conspirators) from those who intentionally assisted without such agreement (aiders and abettors). [Citations]." In the court's two most recent opinions on felony-murder complicity, the court refers to the liability of "cofelons" or "accomplices" without reference to whether liability is based on directly committing the offense, aiding and abetting the offense, or conspiring to commit the offense. (People v. Cavitt (2004) 33 Cal.4th 187, 197-205 [14 Cal.Rptr.3d 281, 91 P.3d 222]; People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].) On the other hand, in both of these cases, the defendants were present at the scene of the felony and directly committed the felonious acts. (People v. Cavitt, supra, 33 Cal.4th at p. 194; People v. Billa, supra, 31 Cal.4th at p. 1067.) Thus, the court has not had occasion recently to address a situation in which the defendant was convicted of felony murder based solely on a theory of coconspirator liability.

The requirement for a logical nexus between the felony and the act causing the death, articulated in People v. Cavitt, supra, 33 Cal.4th at p. 193, may be sufficient to hold a conspiring defendant liable for the resulting death under the felony-murder rule. However, Cavitt did not clearly answer this question. Nor has any case explicitly held that the natural and probable consequences doctrine does not apply in the context of felony murder based on conspiracy.

Thus, if the trial court is faced with a factual situation in which the defendant's liability is premised solely on being a member of a conspiracy in which another coparticipant killed an individual, the committee recommends that the court do the following: (1) give bracketed element 6 requiring a logical nexus between the felony and the act causing death; (2) request briefing and review the current law on conspiracy liability and felony murder; and (3) at the court's discretion, add as element 7, "The act causing the death was a natural and probable consequence of the plan to commit <insert felony or felonies from Pen. Code, § 189>."

See the Related Issues section of CALCRIM No. 540A, Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act.

(New January 2006)