Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Homicide CALCRIM No. 540C. Felony Murder: First Degree - Other Acts Allegedly Caused Death (Pen. Code, § 189)

CALCRIM No. 540C. Felony Murder: First Degree - Other Acts Allegedly Caused Death (Pen. Code, § 189)

Judicial Council of California Criminal Jury Instructions (2024 edition)

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

Death (Pen. Code, § 189)

The defendant is charged [in Count ] with first degree

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>;

[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>;]

(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;

[(4A/5A). The defendant intended to kill;

[(4A/5A). AND

(4B/5B). The defendant (aided and abetted[,]/[or] counseled[,]/ [or]

commanded[,]/ [or] induced[,]/ [or] solicited[,]/ [or]

requested[,]/ [or] assisted) the perpetrator in the commission of

murder(./;)]

(4B/5B). [OR]

[(4A/5A/6A). The defendant was a major participant in the

<insert felony or felonies from Pen. Code, § 189>;

[(4A/5A/6A). AND

(4B/5B/6B). When the defendant participated in the <insert

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felony or felonies from Pen. Code, § 189>, (he/she) acted with

reckless indifference to human life(./;)]

(4B/5B/6B). [OR]

[(4A/5A/6A/7A). <insert offıcer’s name, excluding title> was

a peace officer lawfully performing (his/her) duties as a

peace officer;

[(4A/5A/6A/7A). AND

(4B/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.

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 of the death.]

[It is not required that the person die immediately, as long as the act

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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.]

<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

engages in criminal activity that a reasonable person would know

involves a grave risk of death and he or she knows that the activity

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?]

[• How old was the defendant?]

[• <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

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292

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?]

[• 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.>]]

[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, September 2019, April 2020,

September 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].)

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

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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 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

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.

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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 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, or is

proceeding under multiple 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, supra, 10

Cal.4th at pp. 35-37 [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, supra, 33 Cal.4th at pp. 203-204; 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

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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 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,

supra, 2 Cal.App.3d at pp. 209-211 [heart attack caused by robbery]; People v.

Hernandez, supra, 169 Cal.App.3d at p. 287 [same]; but see People v. Gunnerson,

supra, 74 Cal.App.3d at pp. 378-381 [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 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, supra, 31 Cal.4th at p. 1072 [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, supra, 33

Cal.4th at pp. 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. In re Scoggins (2020) 9 Cal.5th 667,

676-677 [264 Cal.Rptr.3d 804, 467 P.3d 198]; People v. Clark, supra, 63 Cal.4th

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at pp. 614-620; People v. Banks, supra, 61 Cal.4th at pp. 807-811; People v.

Estrada, supra, 11 Cal.4th at p. 578; Tison v. Arizona (1987) 481 U.S. 137,

157-158 [107 S.Ct. 1676, 95 L.Ed.2d 127].

• Major Participant. People v. Banks, supra, 61 Cal.4th at pp. 803-808.

• Objective Criminal Negligence Standard for Peace Officer Exception. People v.

Sifuentes (2022) 83 Cal.App.5th 217, 229-230 [299 Cal.Rptr.3d 320].

• Defendant’s Youth Can Be Relevant Factor When Determining Reckless

Indifference. People v. Jones (2022) 86 Cal.App.5th 1076, 1091-1093 [302

Cal.Rptr.3d 847] [20-year-old defendant]; People v. Keel (2022) 84 Cal.App.5th

546, 558-559 [300 Cal.Rptr.3d 483] [juvenile defendant]; People v. Ramirez

(2021) 71 Cal.App.5th 970, 987 [286 Cal.Rptr.3d 771] [juvenile defendant]; In

re Moore (2021) 68 Cal.App.5th 434, 454 [283 Cal.Rptr.3d 584] [juvenile

defendant].

RELATED ISSUES

See the Related Issues section of 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.

See the Related Issues section of CALCRIM No. 2670, Lawful Performance: Peace

Offıcer.

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).

541-547. Reserved for Future Use

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Page last reviewed May 2024