California Criminal Jury Instructions (CALCRIM) (2017)

541A. Felony Murder: Second Degree - Defendant Allegedly Committed Fatal Act

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541A.Felony Murder: Second Degree—Defendant Allegedly
Committed Fatal Act
The defendant is charged [in Count ] with murder, under a
theory of felony murder.
To prove that the defendant is guilty of second degree murder under
this theory, the People must prove that:
1. The defendant committed [or attempted to commit]
<insert inherently dangerous felony or felonies>;
2. The defendant intended to commit <insert inherently
dangerous felony or felonies>;
AND
3. The defendant did an act that 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 committed [or attempted to commit]
<insert inherently dangerous felony or felonies>, please refer
to the separate instructions that I (will give/have given) you on (that/
those) crime[s]. You must apply those instructions when you decide
whether the People have proved second degree murder under a theory
of felony murder.
<Make certain that all appropriate instructions on all underlying felonies
are given.>
[The defendant must have intended to commit the (felony/felonies) of
<insert inherently dangerous felony or felonies> before or at
the time of the act causing the death.]
<If the facts raise an issue whether the commission of the felony continued
while a defendant was fleeing the scene, give the following sentence instead
of CALCRIM No. 3261, While Committing a Felony: Defined—Escape
Rule.>
[The crime of <insert inherently dangerous felony or
felonies> continues until a defendant has reached a place of temporary
safety.]
[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)
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of the (felony/felonies).]
New January 2006; Revised August 2009, February 2012, 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].) Give all appropriate instructions on all 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.
Insert the appropriate, nonassaultive, inherently dangerous felony or felonies in the
blanks provided in accordance with the Supreme Court’s ruling in People v. Chun
(2009) 45 Cal.4th 1172, 1199 [91 Cal.Rptr.3d 106, 203 P.3d 425] [when underlying
felony is assaultive in nature, felony merges with homicide and cannot be basis of
a felony-murder instruction].
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 there is evidence that the defendant did not form the intent to commit 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 the felony.”
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.
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 inherently dangerous felony or felonies> [or attempted
<insert inherently dangerous felony or felonies>]. The
connection between the cause of death and the <insert
inherently dangerous felony or felonies> [or attempted <insert
inherently dangerous felony or felonies>] must involve more than just their
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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].
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].)
Related Instructions—Other Causes of Death
This instruction should be used only when the prosecution alleges that the
defendant committed the act causing the death.
If the prosecution alleges that another coparticipant in the felony committed the
fatal act, give CALCRIM No. 541B, Felony Murder: Second
Degree—Coparticipant Allegedly Committed Fatal Act. If the evidence indicates
that either the defendant or a coparticipant may have committed the fatal act, give
both instructions.
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. 541C, Felony Murder: Second 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] [a
simultaneous or coincidental death is not a 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 (1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524, 577 P.2d 659]; see
CALCRIM No. 560, Homicide: Provocative Act by Defendant.)
AUTHORITY
• Inherently Dangerous Felonies. People v. Satchell (1971) 6 Cal.3d 28, 33–41
[98 Cal.Rptr. 33, 489 P.2d 1361], overruled on other grounds in People v. Flood
(1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v.
Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180], overruled
on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d
180, 957 P.2d 869]; People v. Patterson (1989) 49 Cal.3d 615, 622–625 [262
Cal.Rptr. 195, 778 P.2d 549].
• Specific Intent to Commit Felony Required. People v. Gutierrez (2002) 28
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Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].
• Continuous Transaction Requirement. People v. Cavitt (2004) 33 Cal.4th 187,
206–209 [14 Cal.Rptr.3d 281, 91 P.3d 222].
• Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222–223
[58 Cal.Rptr.2d 385, 926 P.2d 365].
• Merger Doctrine Applies if Elements of Crime Have Assaultive
Aspect. People v. Chun (2009) 45 Cal.4th 1172, 1199 [91 Cal.Rptr.3d 106,
203 P.3d 425].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 151–168.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[1][e], [2][b] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Voluntary Manslaughter. Pen. Code, § 192(a).
• Involuntary Manslaughter. Pen. Code, § 192(b).
• Attempted Murder. Pen. Code, §§ 663, 189.
RELATED ISSUES
Second Degree Felony Murder: Inherently Dangerous Felonies
The second degree felony-murder doctrine is triggered when a homicide occurs
during the commission of a felony that is inherently dangerous to human life.
(People v. Satchell (1971) 6 Cal.3d 28, 33–41 [98 Cal.Rptr. 33, 489 P.2d 1361] and
People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180],
both overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76
Cal.Rptr.2d 180, 957 P.2d 869].) In People v. Burroughs (1984) 35 Cal.3d 824, 833
[201 Cal.Rptr. 319, 678 P.2d 894], the court described an inherently dangerous
felony as one that cannot be committed without creating a substantial risk that
someone will be killed. However, in People v. Patterson (1989) 49 Cal.3d 615,
618, 626–627 [262 Cal.Rptr. 195, 778 P.2d 549], the court defined an inherently
dangerous felony as “an offense carrying a high probability that death will result.”
(See People v. Coleman (1992) 5 Cal.App.4th 646, 649–650 [7 Cal.Rptr.2d 40]
[court explicitly adopts Patterson definition of inherently dangerous felony].)
Whether a felony is inherently dangerous is a legal question for the court to
determine. (See People v. Schaefer (2004) 118 Cal.App.4th 893, 900–902 [13
Cal.Rptr.3d 442] [rule not changed by Apprendi].) In making this determination, the
court should assess “the elements of the felony in the abstract, not the particular
facts of the case,” and consider the statutory definition of the felony in its entirety.
(People v. Satchell, supra, 6 Cal.3d at p. 36; People v. Henderson, supra, 19 Cal.3d
at pp. 93–94.) If the statute at issue prohibits a diverse range of conduct, the court
must analyze whether the entire statute or only the part relating to the specific
conduct at issue is applicable. (See People v. Patterson, supra, 49 Cal.3d at pp.
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622–625 [analyzing Health & Saf. Code, § 11352, which prohibits range of drug-
related behavior, and holding that only conduct at issue should be considered when
determining dangerousness].)
The following felonies have been found inherently dangerous for purposes of
second degree felony murder (but note that since Proposition 115 amended Penal
Code section 189 in 1990, that code section includes kidnapping in its list of first
degree felony murder felonies):
• Attempted Escape From Prison by Force or Violence. Pen. Code, § 4530;
People v. Lynn (1971) 16 Cal.App.3d 259, 272 [94 Cal.Rptr. 16]; People v.
Snyder (1989) 208 Cal.App.3d 1141, 1143–1146 [256 Cal.Rptr. 601].
• Furnishing Poisonous Substance. Pen. Code, § 347; People v. Mattison (1971)
4 Cal.3d 177, 182–184 [93 Cal.Rptr. 185, 481 P.2d 193].
• Kidnapping for Ransom, Extortion, or Reward. Pen. Code, § 209(a); People v.
Ordonez (1991) 226 Cal.App.3d 1207, 1227–1228 [277 Cal.Rptr. 382].
• Manufacturing Methamphetamine. Health & Saf. Code, § 11379.6(a); People
v. James (1998) 62 Cal.App.4th 244, 270–271 [74 Cal.Rptr.2d 7].
• Reckless Possession of Destructive or Explosive Device. Pen. Code, § 18715;
People v. Morse (1992) 2 Cal.App.4th 620, 646, 655 [3 Cal.Rptr.2d 343].
• Shooting Firearm in Grossly Negligent Manner. Pen. Code, § 246.3; People v.
Clem (2000) 78 Cal.App.4th 346, 351 [92 Cal.Rptr.2d 727]; People v.
Robertson (2004) 34 Cal.4th 156, 173 [17 Cal.Rptr.3d 604, 95 P.3d 872]
[merger doctrine does not apply].
• Shooting at Inhabited Dwelling. Pen. Code, § 246; People v. Tabios (1998) 67
Cal.App.4th 1, 9–10 [78 Cal.Rptr.2d 753].
• Shooting at Occupied Vehicle. Pen. Code, § 246; People v. Tabios (1998) 67
Cal.App.4th 1, 10–11 [78 Cal.Rptr.2d 753].
• Shooting From Vehicle at Inhabited Dwelling. People v. Hansen (1994) 9
Cal.4th 300, 311 [36 Cal.Rptr.2d 609, 885 P.2d 1022].
The following felonies have been found to be not inherently dangerous for
purposes of second degree felony murder:
• Conspiracy to Possess Methedrine. People v. Williams (1965) 63 Cal.2d 452,
458 [47 Cal.Rptr. 7, 406 P.2d 647].
• Driving With Willful or Wanton Disregard for Safety While Fleeing a Pursuing
Officer. People v. Howard (2005) 34 Cal.4th 1129, 1138 [23 Cal.Rptr.3d 306].
• Extortion. Pen. Code, §§ 518, 519; People v. Smith (1998) 62 Cal.App.4th
1233, 1237–1238 [72 Cal.Rptr.2d 918].
• False Imprisonment. Pen. Code, § 236; People v. Henderson (1977) 19 Cal.3d
86, 92–96 [137 Cal.Rptr. 1, 560 P.2d 1180], overruled on other grounds in
People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
• Felon in Possession of Firearm. Pen. Code, § 29800; People v. Satchell (1971)
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6 Cal.3d 28, 39–41 [98 Cal.Rptr. 33, 489 P.2d 1361], overruled on other
grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180,
957 P.2d 869].
• Felonious Practice of Medicine Without License. People v. Burroughs (1984)
35 Cal.3d 824, 830–833 [201 Cal.Rptr. 319, 678 P.2d 894].
• Felony Child Abuse. Pen. Code, § 273a; People v. Lee (1991) 234 Cal.App.3d
1214, 1228 [286 Cal.Rptr. 117].
• Felony Escape From Prison Without Force or Violence. Pen. Code, § 4530(b);
People v. Lopez (1971) 6 Cal.3d 45, 51–52 [98 Cal.Rptr. 44, 489 P.2d 1372].
• Felony Evasion of Peace Officer Causing Injury or Death. Veh. Code,
§ 2800.3; People v. Sanchez (2001) 86 Cal.App.4th 970, 979–980 [103
Cal.Rptr.2d 809].
• Furnishing PCP. Health & Saf. Code, § 11379.5; People v. Taylor (1992) 6
Cal.App.4th 1084, 1100–1101 [8 Cal.Rptr.2d 439].
• Grand Theft Under False Pretenses. People v. Phillips (1966) 64 Cal.2d 574
[51 Cal.Rptr. 225, 414 P.2d 353], overruled on other grounds in People v. Flood
(1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869].
• Grand Theft From the Person. Pen. Code, § 487(c); People v. Morales (1975)
49 Cal.App.3d 134, 142–143 [122 Cal.Rptr. 157].
See the Related Issues section of CALCRIM No. 540A, Felony Murder: First
Degree—Defendant Allegedly Committed Fatal Act.
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