California Criminal Jury Instructions (CALCRIM) (2017)

540A. Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act

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540A.Felony Murder: First Degree—Defendant Allegedly
Committed Fatal Act (Pen. Code, § 189)
The defendant is charged [in Count ] with murder, under a
theory of felony murder.
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]
<insert felony or felonies from Pen. Code, § 189>;
2. The defendant intended to commit <insert felony or
felonies from Pen. Code, § 189>;
AND
3. While committing [or attempting to commit] ,
<insert felony or felonies from Pen. Code, § 189> the defendant
caused the death of another person.
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 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]. 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
are given.>
[The defendant must have intended to commit the (felony/felonies) of
<insert felony or felonies from Pen. Code, § 189> before or
at the time that (he/she) caused the death.]
<If the facts raise an issue whether the commission of the felony continued
while a defendant was fleeing the scene, give the following sentence instead
of CALCRIM No. 3261, While Committing a Felony: Defined—Escape
Rule.>
[The crime of <insert felony or felonies from Pen. Code,
§ 189> continues until a defendant has reached a place of temporary
safety.]
[It is not required that the person die immediately, as long as the act
causing death occurred while the defendant was committing the (felony/
felonies).]
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[It is not required that the person killed be the (victim/intended victim)
of the (felony/felonies).]
New January 2006; Revised April 2010, August 2013
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 the facts raise an issue whether the homicidal act caused the death, the court has
asua sponte duty to give CALCRIM No. 240, Causation.
The felonies that support a charge of first degree felony murder are arson, rape,
carjacking, robbery, burglary, kidnapping, mayhem, train wrecking, sodomy, lewd
or lascivious acts on a child, oral copulation, and sexual penetration. (See Pen.
Code, § 189.)
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.” 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.
There is no sua sponte duty to clarify the logical nexus between the felony and the
homicidal act. If an issue about the logical nexus requirement arises, the court may
give the following language:
There must be a logical connection between the cause of 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 cause of death and the <insert
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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.]
People v. Cavitt (2004) 33 Cal.4th 187, 203–204 [14 Cal.Rtpr.3d 281, 91 P.3d 222];
People v. Wilkins (2013) 56 Cal.4th 333, 347 [153 Cal.Rptr.3d 519, 295 P.3d 903].
Drive-By Shooting
The drive-by shooting clause in Penal Code section 189 is not an enumerated
felony for purposes of the felony-murder rule. (People v. Chavez (2004) 118
Cal.App.4th 379, 386–387 [12 Cal.Rptr.3d 837].) A finding of a specific intent to
kill is required in order to find first degree murder under this clause. (Ibid.)
If the prosecutor is proceeding under both malice and felony-murder theories, also
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. 540B, Felony Murder: First 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. 540C, Felony Murder: First Degree—Other Acts Allegedly Caused Death. (Cf.
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
• Felony Murder: First Degree. Pen. Code, § 189.
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• Specific Intent to Commit Felony Required. People v. Gutierrez (2002) 28
Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].
• Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222–223
[58 Cal.Rptr.2d 385, 926 P.2d 365].
• Merger Doctrine Does Not Apply to First Degree Felony Murder. People v.
Farley (2009) 46 Cal.4th 1053, 1118–1120 [96 Cal.Rptr.3d 191, 210 P.3d 361].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 151–168.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, § 87.13[7] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[1][e], [2][b] (Matthew Bender).
RELATED ISSUES
Does Not Apply Where Felony Committed Only to Facilitate Murder
If a felony, such as robbery, is committed merely to facilitate an intentional murder,
then the felony-murder rule does not apply. (People v. Green (1980) 27 Cal.3d 1,
61 [164 Cal.Rptr. 1, 609 P.2d 468], disapproved on other grounds in People v. Hall
(1986) 41 Cal.3d 826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99] [robbery
committed to facilitate murder did not satisfy felony-murder special circumstance].)
If the defense requests a special instruction on this point, see CALCRIM No. 730,
Special Circumstances: Murder in Commission of Felony.
No Duty to Instruct on Lesser Included Offenses of Uncharged Predicate Felony
“Although a trial court on its own initiative must instruct the jury on lesser
included offenses of charged offenses, this duty does not extend to uncharged
offenses relevant only as predicate offenses under the felony-murder doctrine.”
(People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769]
[original italics]; see People v. Cash (2002) 28 Cal.4th 703, 736–737 [122
Cal.Rptr.2d 545] [no duty to instruct on theft as lesser included offense of
uncharged predicate offense of robbery].)
Auto Burglary
Auto burglary may form the basis for a first degree felony-murder conviction.
(People v. Fuller (1978) 86 Cal.App.3d 618, 622–623, 628 [150 Cal.Rptr. 515]
[noting problems of applying felony-murder rule to nondangerous daytime auto
burglary].)
Duress
“[D]uress can, in effect, provide a defense to murder on a felony-murder theory by
negating the underlying felony.” (People v. Anderson (2002) 28 Cal.4th 767, 784
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[122 Cal.Rptr.2d 587, 50 P.3d 368] [dictum]; see also CALCRIM No. 3402, Duress
or Threats.)
Imperfect Self-Defense
Imperfect self-defense is not a defense to felony murder because malice
aforethought, which imperfect self-defense negates, is not an element of felony
murder. (People v. Tabios (1998) 67 Cal.App.4th 1, 6–9 [78 Cal.Rptr.2d 753].)
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