California Criminal Jury Instructions (CALCRIM) (2017)

541C. Felony Murder: Second Degree - Other Acts Allegedly Caused Death

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541C.Felony Murder: Second Degree—Other Acts Allegedly
Caused Death
The defendant is charged [in Count ] with 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 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>;
<Give element 3 if defendant did not personally commit or attempt
felony.>
[3. The perpetrator committed [or attempted to commit]
<insert inherently dangerous felony or felonies>;]
[AND]
(3/4). The commission [or attempted commission of] the
<insert inherently dangerous felony or felonies> 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] aided and
abetted[,]/ [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).]
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.]
[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.]
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 the
underlying felony. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481,
892 P.2d 1224].)
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]; People v. Cervantes (2001) 26 Cal.4th 860, 865–874].) Because causation is
likely to be an issue in any case where 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].)
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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 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 an instruction on the 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
[also] 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 an instruction on the 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.”
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.
If the defendant was a nonkiller who fled, leaving behind an accomplice who
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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].
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].
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 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] [a simultaneous or coincidental death is not a killing].)
See the Bench Notes to CALCRIM No. 541B, Felony Murder: Second
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
• 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], 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].
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• 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] [a simultaneous or coincidental death is not a killing].
• 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, § 190.
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).
LESSER INCLUDED OFFENSES
• Voluntary Manslaughter. Pen. Code, § 192(a).
Involuntary Manslaughter. Pen. Code, § 192(b).
• Attempted Murder. Pen. Code, §§ 663, 189.
RELATED ISSUES
Accidental Death of Accomplice During Commission of Arson
In People v. Ferlin (1928) 203 Cal. 587, 596–597 [265 P. 230], the Supreme Court
held that an aider and abettor is not liable for the accidental death of an accomplice
to arson when (1) the defendant was neither present nor actively participating in the
arson when it was committed; (2) the accomplice acted alone in actually
perpetrating the arson; and (3) the accomplice killed only himself or herself and not
another person. More recently, the court stated,
We conclude that felony-murder liability for any death in the course of arson
attaches to all accomplices in the felony at least where, as here, one or more
surviving accomplices were present at the scene and active participants in the
crime. We need not decide here whether Ferlin was correct on its facts.
(People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].)
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See the Related Issues section of CALCRIM No. 540A, Felony Murder: First
Degree—Defendant Allegedly Committed Fatal Act; CALCRIM No. 540B, Felony
Murder: First Degree—Coparticipant Allegedly Committed Fatal Act; and 541A,
Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act.
542–547. Reserved for Future Use
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