California Criminal Jury Instructions (CALCRIM) (2017)

541B. Felony Murder: Second Degree - Coparticipant Allegedly Committed Fatal Act

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541B.Felony Murder: Second Degree—Coparticipant Allegedly
Committed Fatal Act
<Give the following introductory sentence when not giving CALCRIM No.
541A.>
[The defendant is charged [in Count ] with murder, under a
theory of felony murder.]
The defendant may [also] 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 second 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 inherently dangerous felony or
felonies>;
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 inherently dangerous felony or felonies>;
3. The perpetrator committed [or attempted to commit]
<insert inherently dangerous felony or felonies>;
AND
4. The perpetrator 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/ [and] the perpetrator) 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]. [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 second degree murder under a theory of felony
murder.
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<Make certain that all appropriate instructions on all underlying felonies,
aiding and abetting, and conspiracy are given.>
[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 inherently dangerous felony or felonies> before or at
the time of the act causing 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 underlying (felony/felonies).]
[It is not required that the defendant be present when the act causing
the death occurs.]
New January 2006; Revised August 2009, 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 the facts raise an issue whether the homicidal act caused the death, the court has
asua sponte duty to give CALCRIM No. 240, Causation.
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].
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
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].
HOMICIDE CALCRIM No. 541B
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If the prosecution’s theory is that the defendant, as well as the perpetrator,
committed or attempted to commit the underlying felony or felonies, 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 both “the defendant and the perpetrator.” 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. The court may also need to modify the
instruction to state “the defendant and the perpetrator each committed [the crime] if
....”
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit the felony, select one or both of these options in element 1 and the
corresponding intent requirements in element 2. 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 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 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.
CALCRIM No. 541B HOMICIDE
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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 a
coparticipant in the felony committed the act causing the death.
If the prosecution alleges that the defendant committed the fatal act, give
CALCRIM No. 541A, Felony Murder: Second Degree—Defendant 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.)
Related Instructions
CALCRIM No. 400 et seq., Aiding and Abetting: General Principles.
CALCRIM No. 415 et seq., Conspiracy.
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
Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].
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• 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].
• 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) Introduction to
Crimes, §§ 98, 109.
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, § 174.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3][b], Ch. 142, Crimes Against the Person,
§ 142.01[1][e], [2][b] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Second Degree Murder. Pen. Code, § 187.
Voluntary Manslaughter. Pen. Code, § 192(a).
• Involuntary Manslaughter. Pen. Code, § 192(b).
• Attempted Murder. Pen. Code, §§ 663, 189.
RELATED ISSUES
See the Related Issues section of CALCRIM No. 540B, Felony Murder: First
Degree—Coparticipant Allegedly Committed Fatal Act and CALCRIM No. 541A,
Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act.
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