541A. Felony Murder: Second 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 second degree murder under this theory, the People must prove that:
1. The defendant committed [or attempted to commit] <insert inherently dangerous felony or felonies>;
2. The defendant intended to commit <insert inherently dangerous felony or felonies>;
3. The defendant did an act that caused the death of another person;
AND
4. The act causing the death and the <insert inherently dangerous felony or felonies> [or attempted <insert inherently dangerous felony or felonies>] were part of one continuous transaction.
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 inherently dangerous felony or felonies>, 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 second 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 inherently dangerous felony or felonies> 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.
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."
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.
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 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. 541B, Felony Murder: Second 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. 541C, Felony Murder: Second 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
Inherently Dangerous Felonies. People v. Satchell (1971) 6 Cal.3d 28, 33-41 [98 Cal.Rptr. 33, 489 P.2d 1361], overruled on other grounds in
People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Patterson (1989) 49 Cal.3d 615, 622-625 [262 Cal.Rptr. 195, 778 P.2d 549].
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.
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
Voluntary Manslaughter. Pen. Code, § 192(a).
Involuntary Manslaughter. Pen. Code, § 192(b).
Attempted Murder. Pen. Code, §§ 663, 189.
Related Issues
Merger: Ireland Rule
Assault or assault with a deadly weapon cannot form the basis for a charge of second degree felony murder because the assaultive conduct "merges" with the homicide. (People v. Ireland (1969) 70 Cal.2d 522, 539-540 [75 Cal.Rptr. 188, 450 P.2d 580] [merger based on assault with a deadly weapon]; see also People v. Garrison (1989) 47 Cal.3d 746, 778 [254 Cal.Rptr. 257, 765 P.2d 419] [first degree felony murder cannot be based on burglary where intent on entry is to commit assault].) The Supreme Court has emphasized that the purpose of the merger doctrine is to ensure that the judicially developed second degree felony-murder rule does not "subvert legislative intent" by elevating most felony assaults to murder without any inquiry into malice aforethought. (People v. Ireland, supra, 70
Cal.2d at pp. 539-540; see People v. Robertson (2004) 34 Cal.4th 156, 170 [17 Cal.Rptr.3d 604, 95 P.3d 872].) In People v. Robertson, supra, 34 Cal.4th at p. 171, the Supreme Court discussed what standard the trial court should use to determine if the merger doctrine applies, In [People v. Mattison (1971) 4 Cal.3d 177, 185 [93 Cal.Rptr. 185, 481 P.2d 193]], we concluded that use of the second degree felony-murder rule was appropriate when the purpose of the predicate felony was independent of or collateral to an intent to cause injury that would result in death. Although the collateral purpose rationale may have its drawbacks in some situations [People v. Hansen (1994) 9 Cal.4th 300, 315 [36 Cal.Rptr.2d 609, 885 P.2d 1022]], we believe it provides the most appropriate framework to determine whether, under the facts of the present case, the trial court properly instructed the jury.
Previously, in People v. Hansen, supra, 9 Cal.4th at p. 315, the court stated, We decline . . . to adopt as the critical test determinative of merger in all cases the following language that appears in Taylor . . . "that the rationale for the merger doctrine does not encompass a felony committed with a collateral and independent felonious design." . . . Rather than rely upon a somewhat artificial test that may lead to an anomalous result, we focus upon the principles and rationale underlying the foregoing language in Taylor, namely, that with respect to certain inherently dangerous felonies, their use as the predicate felony supporting application of the felony-murder rule will not elevate all felonious assaults to murder or otherwise subvert the legislative intent.
When determining whether the merger doctrine applies, the court should consider both of these standards.
Second Degree Felony Murder: Inherently Dangerous Felonies
The second degree felony-murder doctrine is triggered when a homicide occurs during the commission of a felony that is inherently dangerous to human life. (People v. Satchell (1971) 6 Cal.3d 28, 33-41 [98 Cal.Rptr. 33, 489 P.2d 1361] and People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180], both overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].) In
People v. Burroughs (1984) 35 Cal.3d 824, 833 [201 Cal.Rptr. 319, 6788 P.2d 894], the court described an inherently dangerous felony as one that cannot be committed without creating a substantial risk that someone will be killed. However, in People v. Patterson (1989) 49 Cal.3d 615, 618, 626-627 [262 Cal.Rptr. 195, 778 P.2d 549], the court defined an inherently dangerous felony as "an offense carrying a high probability that death will result." (See People v. Coleman (1992) 5 Cal.App.4th 646, 649-650 [7 Cal.Rptr.2d 40] [court explicitly adopts Patterson definition of inherently dangerous felony].)
Whether a felony is inherently dangerous is a legal question for the court to determine. (See People v. Schaefer (2004) 118 Cal.App.4th 893, 900- 902 [13 Cal.Rptr.3d 442] [rule not changed by Apprendi].) In making this determination, the court should assess "the elements of the felony in the abstract, not the particular facts of the case," and consider the statutory definition of the felony in its entirety. (People v. Satchell, supra, 6 Cal.3d at p. 36; People v. Henderson, supra, 19 Cal.3d at pp. 93-94.) If the statute at issue prohibits a diverse range of conduct, the court must analyze whether the entire statute or only the part relating to the specific conduct at issue is applicable. (See People v. Patterson, supra, 49 Cal.3d at pp. 622-625 [analyzing Health & Saf. Code, § 11352, which prohibits range of drug-related behavior, and holding that only conduct at issue should be considered when determining dangerousness].)
The following felonies have been found inherently dangerous for purposes of second degree felony murder (but note that since Proposition 115 amended Penal Code section 189 in 1990, that code section includes kidnapping in its list of first degree felony murder felonies):
Attempted Escape From Prison by Force or Violence. Pen. Code, § 4530; People v. Lynn (1971) 16 Cal.App.3d 259, 272 [94 Cal.Rptr. 492]; People v. Snyder (1989) 208 Cal.App.3d 1141, 1143-1146 [256 Cal.Rptr. 601].
Furnishing Poisonous Substance. Pen. Code, § 347; People v. Mattison (1971) 4 Cal.3d 177, 182-184 [93 Cal.Rptr. 185, 481 P.2d 193].
Kidnapping for Ransom, Extortion, or Reward. Pen. Code, § 209(a); People v. Ordonez (1991) 226 Cal.App.3d 1207, 1227-1228 [277 Cal.Rptr. 382].
Manufacturing Methamphetamine. Health & Saf. Code, § 11379.6(a); People v. James (1998) 62 Cal.App.4th 244, 270-271 [74 Cal.Rptr.2d 7].
Reckless Possession of Bomb. Pen. Code, § 12303.2; People v. Morse (1992) 2 Cal.App.4th 620, 646, 655 [3 Cal.Rptr.2d 343].
Shooting Firearm in Grossly Negligent Manner. Pen. Code, § 246.3; People v. Clem (2000) 78 Cal.App.4th 346, 351 [92 Cal.Rptr.2d 727]; People v. Robertson (2004) 34 Cal.4th 156, 173 [17 Cal.Rptr.3d 604, 95 P.3d 872] [merger doctrine does not apply].
Shooting at Inhabited Dwelling. Pen. Code, § 246; People v. Tabios (1998) 67 Cal.App.4th 1, 9-10 [78 Cal.Rptr.2d 753].
Shooting at Occupied Vehicle. Pen. Code, § 246; People v. Tabios (1998) 67 Cal.App.4th 1, 10-11 [78 Cal.Rptr.2d 753].
Shooting From Vehicle at Inhabited Dwelling. People v. Hansen (1994) 9 Cal.4th 300, 311 [36 Cal.Rptr.2d 609, 885 P.2d 1022].
The following felonies have been found to be not inherently dangerous for purposes of second degree felony murder:
Conspiracy to Possess Methedrine. People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.Rptr. 7, 406 P.2d 647].
Driving with Willful or Wanton Disregard for Safety While Fleeing a Pursuing Officer. People v. Howard (2005) 34 Cal.4th 1129, 1138 [23 Cal.Rptr.3d 306].
Extortion. Pen. Code, §§ 518, 519; People v. Smith (1998) 62 Cal.App.4th 1233, 1237-1238 [72 Cal.Rptr.2d 918].
False Imprisonment. Pen. Code, § 236; People v. Henderson (1977) 19 Cal.3d 86, 92-96 [137 Cal.Rptr. 1, 560 P.2d 1180], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
Felon in Possession of Firearm. Pen. Code, § 12021; People v. Satchell (1971) 6 Cal.3d 28, 39-41 [98 Cal.Rptr. 33, 489 P.2d 1361], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
Felonious Practice of Medicine Without License. People v. Burroughs (1984) 35 Cal.3d 824, 830-833 [201 Cal.Rptr. 319, 678 P.2d 894].
Felony Child Abuse. Pen. Code, § 273a; People v. Lee (1991) 234 Cal.App.3d 1214, 1228 [286 Cal.Rptr. 117].
Felony Escape From Prison Without Force or Violence. Pen. Code, § 4530(b); People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372].
Felony Evasion of Peace Officer Causing Injury or Death. Veh. Code, § 2800.3; People v. Sanchez (2001) 86 Cal.App.4th 970, 979-980 [103 Cal.Rptr.2d 809].
Furnishing PCP. Health & Saf. Code, § 11379.5; People v. Taylor (1992) 6 Cal.App.4th 1084, 1100-1101 [8 Cal.Rptr.2d 439].
Grand Theft Under False Pretenses. People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
Grand Theft From the Person. Pen. Code, § 487.2; People v. Morales (1975) 49 Cal.App.3d 134, 142-143 [122 Cal.Rptr. 157].
See the Related Issues section of CACLRIM No. 540A, Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act.
(New January 2006)