California Criminal Jury Instructions (CALCRIM) (2017)

548. Murder: Alternative Theories

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548.Murder: Alternative Theories
The defendant has been prosecuted for murder under two theories: (1)
malice aforethought, and (2) felony murder.
Each theory of murder has different requirements, and I will instruct
you on both.
You may not find the defendant guilty of murder unless all of you agree
that the People have proved that the defendant committed murder
under at least one of these theories. You do not all need to agree on the
same theory[, but you must unanimously agree whether the murder is
in the first or second degree].
New January 2006; Revised August 2014, February 2016
BENCH NOTES
Instructional Duty
This instruction is designed to be given when murder is charged on theories of
malice and felony murder to help the jury distinguish between the two theories.
This instruction should be given after the court has given any applicable
instructions on defenses to homicide and before CALCRIM No. 520, Murder With
Malice Aforethought.
If there is evidence of multiple acts from which the jury might conclude that the
defendant killed the decedent, the court may be required to give CALCRIM No.
3500, Unanimity. (See People v. Dellinger (1984) 163 Cal.App.3d 284, 300–302
[209 Cal.Rpt. 503] [error not to instruct on unanimity where evidence that the
victim was killed either by blunt force or by injection of cocaine].) Review the
Bench Notes for CALCRIM No. 3500 discussing when a unanimity instruction is
required.
AUTHORITY
• Unanimity on Degrees of Crime and Lesser Included Offenses. Pen. Code
§1157; People v. Sanchez (2013) 221 Cal.App.4th 1012, 1025 [164 Cal.Rptr.3d.
880]; People v. Aikin (1971) 19 Cal.App.3d 685, 704 [97 Cal.Rptr. 251],
disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 512
[119 Cal.Rptr. 225].
• Alternate Theories May Support Different Degrees of Murder. People v.
Sanchez (2013) 221 Cal.App.4th 1012, 1025 [164 Cal.Rptr.3d. 880].
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