CALCRIM No. 561. Homicide: Provocative Act by Accomplice

Judicial Council of California Criminal Jury Instructions (2024 edition)

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561.Homicide: Provocative Act by Accomplice

[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. The defendant was an accomplice of <insert name[s]

or description[s] of alleged provocateur[s]> in (committing/ [or]

attempting to commit) <insert underlying crime>;

2. In (committing/ [or] attempting to commit) <insert

underlying crime>,<insert name[s] or description[s]

of alleged provocateur[s]> intentionally did a provocative act;

3. <insert name[s] or description[s] of alleged

provocateur[s]> knew that the natural and probable consequences

of the provocative act were dangerous to human life and then

acted with conscious disregard for life;

4. In response to ’s <insert name[s] or description[s] of

alleged provocateur[s]> provocative act, <insert name

or description of third party> killed <insert name of

decedent>;

AND

5. ’s <insert name of decedent> death was the natural

and probable consequence of ’s <insert name[s] or

description[s] of alleged provocateur[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.

The defendant is an accomplice of <insert name[s] or

description[s] of alleged provocateur[s]> if the defendant is subject to

prosecution for the identical offense that you conclude

<insert name[s] or description[s] of alleged provocateur[s]> (committed/

[or] attempted to commit). The defendant is subject to prosecution if (he/

305

she) (committed/ [or] attempted to commit) the crime or if:

1. (He/She) knew of ’s <insert name[s] or description[s]

of alleged provocateur[s]> criminal purpose to commit

<insert underlying crime>;

AND

2. The defendant intended to, and did in fact, (aid, facilitate,

promote, encourage, or instigate the commission of

<insert underlying crime>/ [or] participate in a criminal

conspiracy to commit <insert underlying crime>).

[An accomplice does not need to be present when the crime is

committed. On the other hand, a person is not an accomplice just

because he or she is at the scene of a crime, even if he or she knows that

a crime [will be committed or] is being committed and does nothing to

stop it.]

In order to prove that ’s <insert name of decedent> death

was the natural and probable consequence of ’s <insert

name[s] or description[s] of alleged provocateur[s]> provocative act, the

People must prove that:

1. A reasonable person in ’s <insert name[s] or

description[s] of alleged provocateur[s]> position would have

foreseen that there was a high probability that (his/her/their) act

could begin a chain of events resulting in someone’s death;

2. ’s <insert name[s] or description[s] of alleged

provocateur[s]> act was a direct and substantial factor in causing

’s <insert name of decedent> death;

AND

3. ’s <insert name or description of decedent> death

would not have happened if <insert name[s] or

description[s] of alleged provocateur[s]> 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.

[The People alleged the following provocative acts: <insert

acts alleged>. You may not find the defendant guilty unless you all agree

that the People have proved that:

1. <insert name[s] or description[s] of alleged

provocateur[s]> committed at least one provocative act;

AND

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2. At least one of the provocative acts committed by

<insert name[s] or description[s] of alleged provocateur[s]> was a

direct and substantial factor that caused the killing.

However, you do not all need to agree on which provocative act has been

proved.]

[If you decide that the only provocative act that caused ’s

<insert name of deceased accomplice> death was committed by

<insert name of deceased accomplice>, then the defendant is

not guilty of ’s <insert name of deceased accomplice>

murder.]

[A defendant is not guilty of murder if the killing of <insert

name or description of decedent> was caused solely by the independent

criminal act of someone other than the defendant or <insert

name[s] or description[s] of all alleged accomplice[s]>. An independent

criminal act is a free, deliberate, and informed criminal act by a person

who is not acting with the defendant.]

[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 ’s <insert name[s] or description[s] of

alleged provocateur[s]> provocative act, <insert name

of decedent> was killed while <insert name[s] or

description[s] of alleged provocateur[s]> (was/were) committing

<insert Pen. Code, § 189 felony>;

AND

2. <insert name[s] or description[s] of alleged

provocateur[s]> specifically intended to commit ___________

<insert Pen. Code, § 189 felony> when (he/she/they) did the

provocative act.

In deciding whether <insert name[s] or description[s] of

alleged provocateur[s]> 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>.

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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.]

New January 2006; Revised August 2014, September 2019

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.

Penal Code section 188, as amended by Statutes 2018, ch. 1015 (S.B. 1437),

became effective January 1, 2019. The amendment added “malice shall not be

imputed to a person based solely on his or her participation in a crime.” The

continued legality of provocative act murder liability when an accomplice

committed the provocative act may be affected by this statutory change.

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 to CALCRIM No. 560,

Homicide: Provocative Act by Defendant.

In the paragraph that begins with “An accomplice does not need to be present,” use

the bracketed phrase “will be committed or” if appropriate under the facts of the

case.

If a deceased accomplice participated in provocative acts leading to his or her own

death, give the bracketed sentence that begins, “If you decide that the only

provocative act that caused . . . .” (See People v. Garcia (1999) 69 Cal.App.4th

1324, 1330 [82 Cal.Rptr.2d 254]; People v. Superior Court (Shamis) (1997) 58

Cal.App.4th 833, 846 [68 Cal.Rptr.2d 388]; Taylor v. Superior Court (1970) 3

Cal.3d 578, 583-584 [91 Cal.Rptr. 275, 477 P.2d 131]; People v. Antick (1975) 15

Cal.3d 79, 90 [123 Cal.Rptr. 475, 539 P.2d 43], disapproved on other grounds in

People v. McCoy (20010 25 Cal.4th 1111, 1123 [108 Cal.Rptr.2d 188, 24 P.3d

1210].)

If there is evidence that the actual perpetrator may have committed an independent

criminal act, give on request the bracketed paragraph that begins, “A defendant is

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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 evidence suggests that there is more than one provocative act, give the

bracketed section on “Multiple Provocative Acts.” (People v. Briscoe (2001) 92

Cal.App.4th 568, 591 [112 Cal.Rptr.2d 401].)

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 murder 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.”

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].

• Implied Malice May Be Imputed to Absent Mastermind. People v. Johnson

(2013) 221 Cal.App.4th 623, 633 [164 Cal.Rptr.3d 505].

RELATED ISSUES

See the Related Issues section to CALCRIM No. 560, Homicide: Provocative Act by

Defendant.

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 168-177.

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,

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Challenges to Crimes, §§ 140.04, 140.10, Ch. 142, Crimes Against the Person,

§ 142.01[1][a], [2][c] (Matthew Bender).

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Page last reviewed May 2024