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

Judicial Council of California Criminal Jury Instructions (2022 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>;
<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>;]
(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;
<Alternative for Pen. Code § 189(e)(2) and (e)(3) liability>
[(4A/5A). The defendant intended to kill;
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(./;)]
[OR]
[(4A/5A/6A). The defendant was a major participant in the
<insert felony or felonies from Pen. Code § 189>;
AND
(4B/5B/6B). When the defendant participated in the
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<insert felony or felonies from Pen. Code § 189>, (he/she) acted
with reckless indifference to human life(./;)]
[OR]
<Alternative for Pen. Code § 189(f) liability>
[(4A/5A/6A/7A). <insert offıcers name, excluding title>
was a peace officer lawfully performing (his/her) duties as a peace
officer;
AND
(4B/5B/6B/7B). When the defendant acted, (he/she) knew, or
reasonably should have known, that <insert offıcers
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
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:
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[• [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.>]]
<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, September 2019, April 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].)
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].)
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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.
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.
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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 (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
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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
(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
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].
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
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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, 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).
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