541B. Felony Murder: Second Degree - Coparticipant Allegedly Committed Fatal Act
<Give the following introductory sentence when not giving Instruction 541A.>
[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 second 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 inherently dangerous felony or felonies>;
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 inherently dangerous felony or felonies>;
3. The perpetrator committed [or attempted to commit] <insert inherently dangerous felony or felonies>;
4. The perpetrator did an act that caused the death of another person;
[AND]
5. 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(;/.)
<Give element 6 if the court concludes it must instruct on causal relationship between felony and death; see Bench Notes.>
[AND
6. There was a logical connection between the act causing the death and the <insert inherently dangerous felony or felonies>. The connection between the fatal act and the <insert inherently dangerous felony or felonies> 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 inherently dangerous felony or felonies>, 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 second 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 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 underlying (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 6 is based on People v. Cavitt (2004) 33 Cal.4th 187, 193 [14 Cal.Rptr.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.html">Felony Murder: First Degree— Coparticipant Allegedly Committed Fatal Act.)
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 [45 Cal.Rptr.2d 121, 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 felony." For an instruction specially tailored to robbery-murder cases, see People v. Turner (1990) 50 Cal.3d 668, 691 [267 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.
If the prosecution alleges that the defendant committed the fatal act, give CALCRIM No. 541A, Felony Murder: Second Degree—Defendant 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.)
Related Instructions
CALCRIM No. 400 et seq., Aiding and Abetting: General Principles.
CALCRIM No. 415 et seq., Conspiracy.
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 22].
Continuous Transaction Requirement. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.3d 281, 91 P.3d 22].
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 22].
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
See the Related Issues section of CALCRIM No. 540B, Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act and CALCRIM No. 541A, Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act.
(New January 2006)