541C. Felony Murder: Second Degree - Other Acts Allegedly Caused Death
The defendant is charged [in Count ______] with murder, under a theory of felony murder.
The defendant may 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>;
<Give element 3 if defendant did not personally commit or attempt felony.>
[3. The perpetrator committed [or attempted to commit] <insert inherently dangerous felony or felonies>;]
(3/4). The commission [or attempted commission of] the <insert inherently dangerous felony or felonies> caused the death of another person;
(4/5). 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;
AND
(5/6). 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] aided and abetted[,]/ [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.]
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 the circumstances established by the evidence.
[There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor.
However, it does not need to be the only factor that causes the death.]
[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 the underlying felony. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481, 892 P.2d 1224].)
If causation is at issue, the court has a sua sponte duty to instruct on proximate cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590- 591 [35 Cal.Rptr. 401]; People v. Cervantes (2001) 26 Cal.4th 860, 856- 874 [11 Cal.Rptr.2d, 29 P.3d 225].) Because causation is likely to be an issue in any case where this instruction is given, the committee has included the paragraph that begins with "An act causes death if." If there is evidence of multiple potential causes, the court should also give the bracketed paragraph that begins with "There may be more than one cause of death." (People v. Sanchez (2001) 26 Cal.4th 834, 845-849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135].)
If the prosecution's theory is that the defendant committed or attempted to commit the underlying felony, 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 "the defendant" in the first sentence. Give all appropriate instructions on any underlying felonies with this instruction. The court may need to modify the first sentence of an instruction on the underlying felony if the defendant is not separately charged with that offense.
If the prosecution's theory is that the defendant aided and abetted or conspired to commit the felony, select one of these options in element 1 and the corresponding intent requirement in element 2. Give bracketed element 3. Give the bracketed sentence at the beginning of the instruction that begins with "The defendant may [also] be guilty of murder." 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 an instruction on the 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.
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."
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.2d 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 alleged victim dies during the course of the felony as a result of a heart attack, 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 in the felony. (People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542] [arson causing death of accomplice]; People v. Stamp (1969) 2 Cal.App.3d 203, 209-211 [82 Cal.Rptr. 598] [heart attack caused by robbery]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166] [same]; 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].)
See the Bench Notes to CALCRIM No. 541B, Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act for a discussion of other instructions to use if the evidence indicates a person committed an act of force or violence causing the death.
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], 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.2d 281, 91 P.3d 222].
Continuous Transaction Requirement. People v. Cavitt (2004) 33 Cal.4th 187, 206-209 [14 Cal.Rptr.2d 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.2d 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].
Death Caused by Felony but Not by Act of Force or Violence Against Victim. People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542] [arson causing death of accomplice]; People v. Stamp (1969) 2 Cal.App.3d 203, 209-211 [82 Cal.Rptr. 598] [heart attack caused by robbery]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166] [same]; 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].
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. 140, Challenges to Crimes, §§ 140.04, 140.10[3][b], 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
Accidental Death of Accomplice During Commission of Arson
In People v. Ferlin (1928) 203 Cal. 587, 596-597 [265 P. 230], the Supreme Court held that an aider and abettor is not liable for the accidental death of an accomplice to arson when (1) the defendant was neither present nor actively participating in the arson when it was committed; (2) the accomplice acted alone in actually perpetrating the arson; and (3) the accomplice killed only himself or herself and not another person. More recently, the court stated,
We conclude that felony-murder liability for any death in the course of arson attaches to all accomplices in the felony at least where, as here, one or more surviving accomplices were present at the scene and active participants in the crime. We need not decide here whether Ferlin was correct on its facts.
(People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].)
See the Related Issues section of CALCRIM No. 540A, Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act; CALCRIM No. 540B, Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act; and 541A, Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act.
(New January 2006)