549. Felony Murder: One Continuous Transaction - Defined

In order for the People to prove that the defendant is guilty of murder under a theory of felony murder [and that the special circumstance of murder committed while engaged in the commission of <insert felony> is true], the People must prove that the <insert felony> [or attempted <insert felony>] and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time and in more than one location.

In deciding whether the act causing the death and the felony were part of one continuous transaction, you may consider the following factors:

1. Whether the felony and the fatal act occurred at the same place;

2. The time period, if any, between the felony and the fatal act;

3. Whether the fatal act was committed for the purpose of aiding the commission of the felony or escape after the felony;

4. Whether the fatal act occurred after the felony but while [one or more of] the perpetrator[s] continued to exercise control over the person who was the target of the felony;

5. Whether the fatal act occurred while the perpetrator[s] (was/were) fleeing from the scene of the felony or otherwise trying to prevent the discovery or reporting of the crime;

6. Whether the felony was the direct cause of the death;

AND

7. Whether the death was a natural and probable consequence of the felony.

It is not required that the People prove any one of these factors or any particular combination of these factors. The factors are given to assist you in deciding whether the fatal act and the felony were part of one continuous transaction.

Bench Notes

Instructional Duty

In People v. Cavitt (2004) 33 Cal.4th 187, 204 [14 Cal.Rptr.3d 281, 91 P.3d 222], the court stated that "there is no sua sponte duty to clarify the principles of the requisite relationship between the felony and the homicide without regard to whether the evidence supports such an instruction." If the evidence raises an issue of whether the felony and the homicide were part of one continuous transaction, give this instruction.

The court must also give the appropriate felony-murder instructions explaining the elements of the underlying offense.

Authority

Continuous Transaction. People v. Cavitt (2004) 33 Cal.4th 187, 206- 209 [14 Cal.Rptr.3d 281, 91 P.3d 222]; People v. Hart (1999) 20 Cal.4th 546, 608-609 [85 Cal.Rptr.2d 132, 976 P.2d 683]; People v. Ainsworth (1988) 45 Cal.3d 984, 1016 [248 Cal.Rptr. 568, 755 P.2d 1017]; People v. Hernandez (1988) 47 Cal.3d 315, 346 [253 Cal.Rptr. 199, 763 P.2d 1289]; People v. Stamp (1969) 2 Cal.App.3d 203, 210 [82 Cal.Rptr. 598]; People v. Whitehorn (1963) 60 Cal.2d 256, 264 [32 Cal.Rptr. 199, 383 P.2d 783].

Continuous Control of Victim. People v. Thompson (1990) 50 Cal.3d 134, 171-172 [266 Cal.Rptr. 309, 785 P.2d 857] [lewd acts]; People v. Carter (1993) 19 Cal.App.4th 1236, 1251-1252 [23 Cal.Rptr.2d 888] [robbery].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 139-142.

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

Related Issues

It is error to remove from the jury the factual question of whether the felony and the homicide are parts of a single "continuous transaction."

(People v. Sakarias (2000) 22 Cal.4th 596, 623-625 [94 Cal.Rptr.2d 17, 955 P.2d 152].)

(New January 2006)