Justia Criminal Law California Criminal Jury Instructions (CALCRIM) (2017) Homicide CALCRIM No. 541A. Felony Murder: Second Degree - Defendant Allegedly Committed Fatal Act

CALCRIM No. 541A. Felony Murder: Second Degree - Defendant Allegedly Committed Fatal Act

Judicial Council of California Criminal Jury Instructions (2017 edition)

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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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