California Criminal Jury Instructions (CALCRIM) (2017)

560. Homicide: Provocative Act by Defendant

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E. ALTERNATE THEORIES OF LIABILITY
560.Homicide: Provocative Act by Defendant
[The defendant is charged [in Count ] with <insert
underlying crime>.] The defendant is [also] charged [in Count ]
with murder. A person can be guilty of murder under the provocative
act doctrine even if someone else did the actual killing.
To prove that the defendant is guilty of murder under the provocative
act doctrine, the People must prove that:
1. In (committing/ [or] attempting to commit) <insert
underlying crime>, the defendant intentionally did a provocative
act;
2. The defendant knew that the natural and probable consequences
of the provocative act were dangerous to human life and then
acted with conscious disregard for life;
3. In response to the defendant’s provocative act,
<insert name or description of third party> killed
<insert name of decedent>;
AND
4. ’s <insert name of decedent> death was the natural
and probable consequence of the defendant’s provocative act.
Aprovocative act is an act:
1. [That goes beyond what is necessary to accomplish the
<insert underlying crime>;]
[AND
2.] Whose natural and probable consequences are dangerous to
human life, because there is a high probability that the act will
provoke a deadly response.
In order to prove that ’s <insert name of decedent> death
was the natural and probable consequence of the defendant’s provocative
act, the People must prove that:
1. A reasonable person in the defendant’s position would have
foreseen that there was a high probability that his or her act
could begin a chain of events resulting in someone’s death;
2. The defendant’s act was a direct and substantial factor in
causing ’s <insert name of decedent> death;
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AND
3. ’s <insert name of decedent> death would not have
happened if the defendant had not committed the provocative
act.
Asubstantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the death.
<Multiple Provocative Acts>
[The People alleged that the defendant committed the following
provocative acts: <insert acts alleged>. You may not find
the defendant guilty unless you all agree that the People have proved
that the defendant committed at least one of these acts. However, you
do not all need to agree on which act.]
<Independent Criminal Act>
[A defendant is not guilty of murder if the killing of
<insert name of decedent> was caused solely by the independent criminal
act of someone else. An independent criminal act is a free, deliberate,
and informed criminal act by a person who is not acting with the
defendant.]
<Degree of Murder>
[[If you decide that the defendant is guilty of murder, you must decide
whether the murder is first or second degree.]
<Give if multiple theories alleged.>
[The defendant has been prosecuted for first degree murder under (two/
<insert number>) theories: (1) <insert first theory,
e.g., “the provocative act was willful, deliberate, and premeditated (murder/
attempted murder)”> [and] (2) <insert second theory, e.g.,
“the provocative act was committed during the defendant’s perpetration of
an enumerated felony> [<insert additional theories>”].
Each theory of first degree murder has different requirements, and I
will instruct you on (both/all <insert number>.)
You may not find the defendant guilty of first degree murder unless all
of you agree that the People have proved that the defendant committed
murder. But all of you do not need to agree on the same theory.]
<A. Deliberation and Premeditation>
[The defendant is guilty of first degree murder if the People have
proved that (his/her) provocative act was a (murder/attempted murder)
committed willfully, deliberately, and with premeditation. The defendant
acted willfully in committing this provocative act if (he/she) intended to
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kill. The defendant acted deliberately if (he/she) carefully weighed the
considerations for and against (his/her) choice and, knowing the
consequences, decided to kill. The defendant acted with premeditation if
(he/she) decided to kill before committing the provocative act[s] that
(caused/(was/were) intended to cause) death.
The length of time the person spends considering whether to kill does
not alone determine whether the (killing/attempted killing) is deliberate
and premeditated. The amount of time required for deliberation and
premeditation may vary from person to person and according to the
circumstances. A decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated. On the other
hand, a cold, calculated decision to kill can be reached quickly. The test
is the extent of the reflection, not the length of time.]
<Give the following paragraph if more than one defendant was involved in
the provocative act>
For a defendant to be found guilty of first degree murder, (he/she)
personally must have acted willfully, deliberately, and with
premeditation when the (murder/attempted murder) was committed.
<B. Enumerated Felony>
[To prove that the defendant is guilty of first degree murder, the People
must prove that:
1. As a result of the defendant’s provocative act,
<insert name of decedent> was killed during the commission of
<insert Pen. Code, § 189 felony>;
AND
2. Defendant intended to commit <insert Pen. Code,
§ 189 felony> when (he/she) did the provocative act.
2. In deciding whether the defendant intended to commit
<insert Pen. Code, § 189 felony> and whether the
death occurred during the commission of <insert
Pen. Code, § 189 felony>, you should refer to the instructions I
have given you on <insert Pen. Code, § 189 felony>.]
<C. If there is another theory, see Bench Note below and modify and use
CALCRIM No. 521 in a manner consistent with the modifications in section
A. Deliberation and Premeditation>
The People have the burden of proving beyond a reasonable doubt that
the killing was first degree murder rather than a lesser crime. If the
People have not met this burden, you must find the defendant not guilty
of first degree murder.
Any murder that does not meet these requirements for first degree
murder is second degree murder.]
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[If you decide that the defendant committed murder, that crime is
murder in the second degree.]
New January 2006; Revised April 2011, February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction if the provocative act
doctrine is one of the general principles of law relevant to the issues raised by the
evidence. (People v. Hood (1969) 1 Cal.3d 444, 449 [82 Cal.Rptr. 618, 462 P.2d
370].) If the prosecution relies on a first degree murder theory based on a Penal
Code section 189 felony, the court has a sua sponte duty to give instructions
relating to the underlying felony, whether or not it is separately charged.
If the defendant is an accomplice, aider and abettor, or coconspirator of the person
who did the provocative act, give CALCRIM No. 561, Homicide: Provocative Act
by Accomplice, instead of this instruction.
The first bracketed sentence of this instruction should only be given if the
underlying felony is separately charged.
In the definition of “provocative act,” the court should always give the bracketed
phrase that begins, “that goes beyond what is necessary,” unless the court
determines that this element is not required because the underlying felony includes
malice as an element. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60 [212
Cal.Rptr. 868]; see also People v. Briscoe (2001) 92 Cal.App.4th 568, 582 [112
Cal.Rptr.2d 401]; People v. Gonzalez (2010) 190 Cal.App.4th 968 [118 Cal.Rptr.3d
637].) See discussion in the Related Issues section below.
If the evidence suggests that there is more than one provocative act, give the
bracketed paragraph on “multiple provocative acts,” which instructs the jury that
they need not unanimously agree about which provocative act caused the killing.
(People v. Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401].)
If there is evidence that the actual perpetrator may have committed an independent
criminal act, give on request the bracketed paragraph that begins with “A defendant
is not guilty of murder if . . . .” (See People v. Cervantes (2001) 26 Cal.4th 860,
874 [111 Cal.Rptr.2d 148, 29 P.3d 225].)
If the prosecution is not seeking a first degree murder conviction, omit those
bracketed paragraphs relating to first degree murder and simply give the last
bracketed sentence of the instruction. As an alternative, the court may omit all
instructions relating to the degree and secure a stipulation that if a guilty verdict is
returned, the degree of murder is set at second degree. If the prosecution is seeking
a first degree murder conviction, give the bracketed section on “degree of murder.”
If there is a theory of first degree murder other than A. Deliberation and
Premeditation, or B. Enumerated Felony, e.g., torture, insert relevant portions of
CALCRIM No. 521. That instruction must be modified to reflect the circumstances
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of the case. For example, if the defendant’s provocative act is the torture of A,
which causes B to shoot and kill C, the defendant will not have inflicted the
required pain on “the person killed,” C, but on “the person tortured,” People v.
Concha I (2010) 47 Cal.4th 653, 666 [101 Cal.Rptr.3d 141, 218 P.3d 660].
AUTHORITY
• Provocative Act Doctrine. People v. Gallegos (1997) 54 Cal.App.4th 453, 461
[63 Cal.Rptr.2d 382].
• Felony-Murder Rule Invoked to Determine Degree. People v. Gilbert (1965)
63 Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365]; Pizano v. Superior Court
(1978) 21 Cal.3d 128, 139, fn. 4 [145 Cal.Rptr. 524, 577 P.2d 659]; see People
v. Caldwell (1984) 36 Cal.3d 210, 216–217, fn. 2 [203 Cal.Rptr. 433, 681 P.2d
274].
• Independent Intervening Act by Third Person. People v. Cervantes (2001) 26
Cal.4th 860, 874 [111 Cal.Rptr.2d 148, 29 P.3d 225].
• Natural and Probable Consequences Doctrine. People v. Gardner (1995) 37
Cal.App.4th 473, 479 [43 Cal.Rptr.2d 603].
• Response of Third Party Need Not Be Reasonable. People v. Gardner (1995)
37 Cal.App.4th 473, 482 [43 Cal.Rptr.2d 603].
• Unanimity on Which Act Constitutes Provocative Act is Not Required.
People v. Briscoe (2001) 92 Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401]
[multiple provocative acts].
• This Instruction Upheld. People v. Baker-Riley (2012) 207 Cal.App.4th 631,
635–636 [143 Cal.Rptr.3d 737].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, §§ 147–155.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.01[1][a], [2][c] (Matthew Bender).
RELATED ISSUES
Act “Beyond What is Necessary”
The general rule that has arisen in the context of robbery cases is that the
provocative act must be one that goes beyond what is necessary to accomplish the
underlying felony. However, more recent cases make clear that this requirement is
not universal. In attempted murder or assault with a deadly weapon cases, the
crime itself may be a provocative act because it demonstrates either express or
implied malice. (In re Aurelio R. (1985) 167 Cal.App.3d 52, 59–60 [212 Cal.Rptr.
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868]; see Pizano v. Superior Court (1978) 21 Cal.3d 128, 134 [145 Cal.Rptr. 524,
577 P.2d 659].)
Death of a Fetus
The California Supreme Court has declined to decide whether the felony-murder
doctrine could constitutionally apply to the death of a fetus that did not result from
a direct attack on the mother. (People v. Davis (1994) 7 Cal.4th 797, 810, fn. 2 [30
Cal.Rptr.2d 50, 872 P.2d 591].) That ambiguity could extend to the provocative act
doctrine as well.
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