CALCRIM No. 540B. Felony Murder: First Degree - Coparticipant Allegedly Committed Fatal Act (Pen. Code, § 189)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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Appendix to CALCRIM 540B
540B.Felony Murder: First Degree - Coparticipant Allegedly
Committed Fatal Act (Pen. Code, § 189)
<Give the following introductory sentence when not giving CALCRIM No.
540A.>
[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 first 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 felony or felonies from Pen. Code, § 189>;
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 felony or felonies from Pen. Code, § 189>;
3. If the defendant did not personally commit [or attempt to
commit] <insert felony or felonies from Pen. Code,
§ 189>, then a perpetrator, (whom the defendant was aiding and
abetting/ [or] with whom the defendant conspired), committed [or
attempted to commit] <insert felony or felonies from
Pen. Code, § 189>;
AND
4. While committing [or attempting to commit] <insert
felony or felonies from Pen. Code, § 189>, the [defendant or]
perpetrator 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/ [and] the perpetrator) 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]. [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
295
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 first 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 felony or felonies from Pen. Code, § 189> before or at
the time that (he/she) caused the death.]
[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).]
[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.]
[You may not find the defendant guilty of felony murder unless all of
you agree that the defendant or a perpetrator caused the death of
another. You do not all need to agree, however, whether the defendant or
a perpetrator caused that death.]
New January 2006; Revised April 2010, August 2013, February 2015
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 the facts raise an issue whether the homicidal act caused the death, the court has
asua 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 . . . .”
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296
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.
If the defendant was a nonkiller who fled, leaving behind an accomplice who killed,
see People v. Cavitt (2004) 33 Cal.4th 187, 206, fn. 7 [14 Cal.Rtpr.3d 281, 91 P.3d
222] [continuous transaction] and the discussion of Cavitt in People v. Wilkins
(2013) 56 Cal.4th 333, 344 [153 Cal.Rptr.3d 519, 295 P.3d 903].
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.” 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.
Give the last bracketed sentence, stating that the defendant need not be present, on
request.
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].)
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
HOMICIDE CALCRIM No. 540B
297
<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].
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.
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] [simultaneous
or coincidental death is not 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 of
Tulare County (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
• 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].
• 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].
• Logical Nexus Between Felony and Killing. People v. Dominguez (2006) 39
Cal.4th 1141]; People v. Cavitt (2004) 33 Cal.4th 187, 197-206].
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• 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].
RELATED ISSUES
Conspiracy Liability - Natural and Probable Consequences
In the context of nonhomicide crimes, a coconspirator is liable for any crime
committed by a member of the conspiracy that was a natural and probable
consequence of the conspiracy. (People v. Superior Court (Shamis) (1997) 58
Cal.App.4th 833, 842-843 [68 Cal.Rptr.2d 388].) This is analogous to the rule in
aiding and abetting that the defendant may be held liable for any unintended crime
that was the natural and probable consequence of the intended crime. (People v.
Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323].) In the context of
felony murder, the Supreme Court has explicitly held that the natural and probable
consequences doctrine does not apply to a defendant charged with felony murder
based on aiding and abetting the underlying felony. (See People v. Anderson (1991)
233 Cal.App.3d 1646, 1658 [285 Cal.Rptr. 523].) The court has not explicitly
addressed whether the natural and probable consequences doctrine continues to limit
liability for felony murder where the defendant’s liability is based solely on being a
member of a conspiracy.
In People v. Pulido (1997) 15 Cal.4th 713, 724 [63 Cal.Rptr.2d 625, 936 P.2d 1235],
the court stated in dicta, “[f]or purposes of complicity in a cofelon’s homicidal act,
the conspirator and the abettor stand in the same position. [Citation; quotation marks
omitted.] In stating the rule of felony-murder complicity we have not distinguished
accomplices whose responsibility for the underlying felony was pursuant to prior
agreement (conspirators) from those who intentionally assisted without such
agreement (aiders and abettors). [Citations].” In the court’s two most recent opinions
on felony-murder complicity, the court refers to the liability of “cofelons” or
“accomplices” without reference to whether liability is based on directly committing
the offense, aiding and abetting the offense, or conspiring to commit the offense.
(People v. Cavitt (2004) 33 Cal.4th 187, 197-205 [14 Cal.Rptr.3d 281, 91 P.3d 222];
People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].) On
the other hand, in both of these cases, the defendants were present at the scene of
the felony and directly committed the felonious acts. (People v. Cavitt, supra, 33
Cal.4th at p. 194; People v. Billa, supra, 31 Cal.4th at p. 1067.) Thus, the court has
not had occasion recently to address a situation in which the defendant was
convicted of felony murder based solely on a theory of coconspirator liability.
The requirement for a logical nexus between the felony and the act causing the
death, articulated in People v. Cavitt, supra, 33 Cal.4th at p. 193, may be sufficient
to hold a conspiring defendant liable for the resulting death under the felony-murder
rule. However, Cavitt did not clearly answer this question. Nor has any case
explicitly held that the natural and probable consequences doctrine does not apply in
the context of felony murder based on conspiracy.
Thus, if the trial court is faced with a factual situation in which the defendant’s
liability is premised solely on being a member of a conspiracy in which another
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coparticipant killed an individual, the committee recommends that the court do the
following: (1) give optional element on logical connection provided above; (2)
request briefing and review the current law on conspiracy liability and felony
murder; and (3) at the court’s discretion, add as an additional element: “The act
causing the death was a natural and probable consequence of the plan to commit
<insert felony or felonies from Pen. Code, § 189>.”
See the Related Issues section of CALCRIM No. 540A, Felony Murder: First
Degree - Defendant Allegedly Committed Fatal Act.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 98, 109.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 151-168, 178.
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).
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