CALCRIM No. 540A. Felony Murder: First Degree - Defendant Allegedly Committed Fatal Act (Pen. Code, § 189)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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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 first degree 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 personally
committed (an/the) act[s] that directly caused the death of
another person.
A person [who was the actual killer] 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[s]
causing death occurred while the defendant was committing the (felony/
felonies).]
273
[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, September 2019, March 2023
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an 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.
When giving this instruction with CALCRIM No. 540B or with CALCRIM No.
540C, give the bracketed phrase [who was the actual killer].
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(a).)
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
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274
<insert felony or felonies from Pen. Code, § 189>]. The
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>] 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].
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, supra, 10 Cal.4th at pp. 35-37 [error to instruct on malice when
felony murder only theory].)
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.)
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.
Garcia (2022) 82 Cal.App.5th 956, 966-971 [299 Cal.Rptr.3d 131] [defendant liable
as actual killer for robbing elderly victim who died of heart attack an hour later];
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.
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560, Homicide: Provocative Act by Defendant.)
AUTHORITY
• Felony Murder: First Degree. Pen. Code, § 189.
• 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].
• Meaning of “Actual Killer.” People v. Garcia (2020) 46 Cal.App.5th 123, 151
[259 Cal.Rptr.3d 600]; People v. Lopez (2022) 78 Cal.App.5th 1, 4 [293
Cal.Rptr.3d 272]; People v. Vang (2022) 82 Cal.App.5th 64, 88 [297 Cal.Rptr.3d
806]; People v. Garcia (2022) 82 Cal.App.5th 956, 966-971 [299 Cal.Rptr.3d
131].
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, supra, 25 Cal.4th at p. 371 [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. (See People v. Tabios (1998) 67 Cal.App.4th 1, 6-9 [78 Cal.Rptr.2d 753],
disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172,
1198-1199 [91 Cal.Rptr.3d 106, 203 P.3d 425].)
Actual Killer vs. Aider and Abettor
The meaning of actual killer is literal. It is not enough that the defendant’s act
formed part of a series of events that resulted in the death, if the act itself would not
cause death. (People v. Garcia (2020) 46 Cal.App.5th 123, 149-155 [259
Cal.Rptr.3d 600].)
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).
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© Judicial Council of California.
