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>;
4. ______'s <insert name of decedent> death was the natural and probable consequence of the defendant's provocative act.
A provocative act is an act:
1. [That goes beyond what is necessary to accomplish the <insert underlying crime>;]
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;
3. ______'s <insert name of decedent> death would not have happened if the defendant had not committed the provocative act.
A substantial 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.
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>;
2. Defendant intended to commit <insert Pen. Code, § 189 felony> when (he/she) did the provocative act.
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>.
Any murder that does not meet these requirements for first degree murder is second degree murder.]
[If you decide that the defendant committed murder, that crime is murder in the second degree.]
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 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 [11 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."
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 [11 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].
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[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[a], [c] (Matthew Bender).
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 [21 Cal.Rptr. 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.
(New January 2006)