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

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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 first degree 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>;
4. While committing [or attempting to commit] <insert
felony or felonies from Pen. Code, § 189>, the perpetrator caused
the death of another person;
4. <Alternative for Pen. Code § 189(e)(2) and (e)(3) liability>
[5A. The defendant intended to kill;
AND
5B. The defendant (aided and abetted[,])/ [or] counseled[,]/ [or]
commanded[,]/ [or] induced[,]/ [or] solicited[,]/ [or] requested[,]/
[or] assisted) the perpetrator in the commission of first degree
murder(./;)]
[OR]
[(5A/6A). The defendant was a major participant in the
<insert felony or felonies from Pen. Code § 189>;
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AND
(5B/6B). When the defendant participated in the <insert
felony or felonies from Pen. Code § 189>, (he/she) acted with
reckless indifference to human life(./;)]
[OR]
(5B/6B). <Alternative for Pen. Code § 189(f) liability>
[(5A/6A/7A). <insert offıcer’s name, excluding title>was a
peace officer lawfully performing (his/her) duties as a
peace officer;
AND
(5B/6B/7B). When the defendant acted, (he/she) knew, or reasonably
should have known, that <insert offıcer’s name,
excluding title>was a peace officer performing (his/her)
duties.]
[A person may be guilty of felony murder of a peace officer 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
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.
[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 of 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
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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.]
<The following instructions can be given when reckless indifference and
major participant under Pen. Code § 189(e)(3) applies>
[A person acts with reckless indifference to human life when he or she
knowingly engages in criminal activity that he or she knows involves a
grave risk of death.]
[When you decide whether the defendant acted with reckless indifference
to human life, consider all the evidence. No one of the following factors is
necessary, nor is any one of them necessarily enough, to determine
whether the defendant acted with reckless indifference to human life.
Among the factors you may consider are:
[• Did the defendant know that [a] lethal weapon[s] would be
present during the <insert underlying felony>?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
likely to be used?]
[• Did the defendant know that [a] lethal weapon[s] (was/were)
used?]
[• Did the defendant know the number of weapons involved?]
[• Was the defendant near the person(s) killed when the killing
occurred?]
[• Did the defendant have an opportunity to stop the killing or to
help the victim(s)?]
[• How long did the crime last?]
[• Was the defendant aware of anything that would make a
coparticipant likely to kill?]
[• Did the defendant try to minimize the possibility of violence?]
[• <insert any other relevant factors>]]
[When you decide whether the defendant was a major participant,
consider all the evidence. No one of the following factors is necessary,
nor is any one of them necessarily enough, to determine whether the
defendant was a major participant. Among the factors you may consider
are:
[• What was the defendant’s role in planning the crime that led to
the death[s]?]
[• What was the defendant’s role in supplying or using lethal
weapons?]
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[• What did the defendant know about dangers posed by the crime,
any weapons used, or past experience or conduct of the other
participant[s]?]
[• Was the defendant in a position to facilitate or to prevent the
death?]
[• Did the defendant’s action or inaction play a role in the death?]
[• What did the defendant do after lethal force was used?]
[• <insert any other relevant factors.>]]
<Give the following instructions when Pen. Code § 189(f) applies>
[A person who is employed as a police officer by <insert
name of agency that employs police offıcer> is a peace officer.]
[A person employed by <insert name of agency that employs
peace offıcer, e.g., “the Department of Fish and Wildlife”> is a peace officer
if <insert description of facts necessary to make employee a
peace offıcer, e.g, “designated by the director of the agency as a peace
offıcer”>.]
[The duties of (a/an) <insert title of peace offıcer> include
<insert job duties>.]
New January 2006; Revised April 2010, August 2013, February 2015, September
2019, April 2020, September 2020
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].)
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 court has a sua sponte duty to instruct on aiding and abetting when the
prosecutor relies on it as a theory of culpability. (People v. Beeman (1984) 35
Cal.3d 547, 560-561 [199 Cal.Rptr.60, 674 P.2d 1318].) The court has a sua sponte
duty to instruct on conspiracy when the prosecution has introduced evidence of a
conspiracy to prove liability for other offenses. (See, e.g., People v. Pike (1962) 58
Cal.2d 70, 88 [22 Cal.Rptr. 664, 372 P.2d 656]; People v. Ditson (1962) 57 Cal.2d
415, 447 [20 Cal.Rptr. 165, 369 P.2d 714].)
Give all appropriate instructions on all underlying felonies, aiding and abetting,
and conspiracy.
If the prosecution’s theory is that the defendant, as well as the perpetrator,
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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 . . . .”
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, or is
proceeding under multiple felony-murder theories, give CALCRIM No. 548,
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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
<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].
In People v. Banks (2015) 61 Cal.4th 788, 803-808 [189 Cal.Rptr.3d 208, 351 P.3d
330], the court identified certain factors to guide the jury in its determination of
whether the defendant was a major participant but stopped short of holding that the
court has a sua sponte duty to instruct on those factors. The trial court should
determine whether the Banks factors need be given.
The court does not have a sua sponte duty to define “reckless indifference to human
life.” (People v. Estrada (1995) 11 Cal.4th 568, 578 [46 Cal.Rptr.2d 586, 904 P.2d
1197].) However, this “holding should not be understood to discourage trial courts
from amplifying the statutory language for the jury.” (Id. at p. 579.) The court may
give the bracketed definition of reckless indifference if requested.
In People v. Clark (2016) 63 Cal.4th 522, 614-620 [203 Cal.Rptr.3d 407, 372 P.3d
811], the court identified certain factors to guide the jury in its determination of
whether the defendant acted with reckless indifference to human life but did not
hold that the court has a sua sponte duty to instruct on those factors. Clark noted
that these factors had been applied by appellate courts “in cases involving
nonshooter aiders and abettors to commercial armed robbery felony murders.” (Id. at
p. 618.) The trial court should determine whether the Clark factors need be given.
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.
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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].
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].
Reckless Indifference to Human Life. People v. Clark (2016) 63 Cal.4th 522,
614-620 [203 Cal.Rptr.3d 407, 372 P.3d 811]; People v. Banks (2015) 61 Cal.4th
788, 807-811 [189 Cal.Rptr.3d 208, 351 P.3d 330]; People v. Estrada (1995) 11
Cal.4th 568, 578 [46 Cal.Rptr.2d 586, 904 P.2d 1197]; Tison v. Arizona (1987)
481 U.S. 137, 157-158 [107 S.Ct. 1676, 95 L.Ed.2d 127].
Major Participant. People v. Banks (2015) 61 Cal.4th 788, 803-808 [189
Cal.Rptr.3d 208, 351 P.3d 330].
RELATED ISSUES
See the Related Issues section of CALCRIM No. 540A, Felony Murder: First
Degree - Defendant Allegedly Committed Fatal Act.
See the Related Issues section of CALCRIM No. 2670, Lawful Performance: Peace
Offıcer.
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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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© Judicial Council of California.