California Criminal Jury Instructions (CALCRIM) (2017)

540C. Felony Murder: First Degree - Other Acts Allegedly Caused Death

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540C.Felony Murder: First Degree—Other Acts Allegedly Caused
Death (Pen. Code, § 189)
The defendant is charged [in Count ] with murder, under a
theory of felony murder.
The defendant may 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>;
<Give element 3 if defendant did not personally commit or attempt
felony.>
[3. A perpetrator, (whom the defendant was aiding and abetting/
[or] with whom the defendant conspired), personally committed
[or attempted to commit] <insert felony or felonies
from Pen. Code, § 189>;]
AND
(3/4). The commission [or attempted commission] of the
<insert felony or felonies from Pen. Code, § 189> was a substantial
factor in causing 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 crime, please refer to the separate instructions that I (will
give/have given) you on conspiracy.] You must apply those instructions
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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.>
An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all
the circumstances established by the evidence.
[There may be more than one cause of death. An act causes death only
if it is a substantial factor in causing the death. A substantial factor is
more than a trivial or remote factor. However, it does not need to be the
only factor that causes the death.]
[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.]
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].)
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401]; see generally, People v. Cervantes (2001) 26 Cal.4th 860, 866–874 [111
Cal.Rptr.2d 148, 29 P.3d 225].) Because causation is likely to be an issue in any
case in which this instruction is given, the committee has included the paragraph
that begins with “An act causes death if.” If there is evidence of multiple potential
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causes, the court should also give the bracketed paragraph that begins with “There
may be more than one cause of death.” (People v. Sanchez (2001) 26 Cal.4th 834,
845–849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People v. Autry (1995) 37
Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135].)
If the prosecution’s theory is that the defendant committed or attempted to commit
the underlying felony, 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 “the defendant” in the first sentence. 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.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit the felony, select one of these options in element 1 and the corresponding
intent requirement in element 2. Give bracketed element 3. Give the bracketed
sentence at the beginning of the instruction that begins with “The defendant may be
guilty of murder.” 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 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 defendant was a nonkiller who fled, leaving behind an accomplice who
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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 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 <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 alleged victim dies during the course
of the felony as a result of a heart attack, 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 in the felony. (Cf. People v. Billa (2003) 31 Cal.4th 1064, 1072 [6
Cal.Rptr.3d 425, 79 P.3d 542] [arson causing death of accomplice]; People v. Stamp
(1969) 2 Cal.App.3d 203, 209–211 [82 Cal.Rptr. 598] [heart attack caused by
robbery]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]
[same]; but see People v. Gunnerson (1977) 74 Cal.App.3d 370, 378–381 [141
Cal.Rptr. 488] [simultaneous or coincidental death is not killing].)
See the Bench Notes to CALCRIM No. 540A, Felony Murder: First
Degree—Defendant Allegedly Committed Fatal Act, for a discussion of other
instructions to use if the evidence indicates a person committed an act of force or
violence causing the death.
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
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Victim. People v. Pulido (1997) 15 Cal.4th 713, 726 [63 Cal.Rptr.2d 625, 936
P.2d 1235].
• Death Caused by Felony but Not by Act of Force or Violence Against
Victim. People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79
P.3d 542] [arson causing death of accomplice]; People v. Stamp (1969) 2
Cal.App.3d 203, 209–211 [82 Cal.Rptr. 598] [heart attack caused by robbery];
People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]
[same]; but see People v. Gunnerson (1977) 74 Cal.App.3d 370, 378–381 [141
Cal.Rptr. 488] [simultaneous or coincidental death is not killing].
• Logical Nexus Between Felony and Killing. People v. Dominguez (2006) 39
Cal.4th 1141 [47 Cal.Rptr.3d 575, 140 P.3d 866]; People v. Cavitt (2004) 33
Cal.4th 187, 197–206 [14 Cal.Rptr.3d 281, 91 P.3d 222].
• 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, §§ 118–168.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.04, 140.10[3][b], Ch. 142, Crimes Against the
Person, § 142.01[1][e], [2][b] (Matthew Bender).
RELATED ISSUES
Accidental Death of Accomplice During Commission of Arson
In People v. Ferlin (1928) 203 Cal. 587, 596–597 [265 P. 230], the Supreme Court
held that an aider and abettor is not liable for the accidental death of an accomplice
to arson when (1) the defendant was neither present nor actively participating in the
arson when it was committed; (2) the accomplice acted alone in actually
perpetrating the arson; and (3) the accomplice killed only himself or herself and not
another person. More recently, the court stated,
We conclude that felony-murder liability for any death in the course of arson
attaches to all accomplices in the felony at least where, as here, one or more
surviving accomplices were present at the scene and active participants in the
crime. We need not decide here whether Ferlin was correct on its facts.
(People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].)
See the Related Issues section to CALCRIM No. 540A, Felony Murder: First
Degree—Defendant Allegedly Committed Fatal Act, and CALCRIM No. 540B,
Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act.
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