If the evidence raises the potential for accomplice liability and the court concludes
that the accomplice need not personally intend to kill, then the court must modify
element 5 to state that the person who caused the death intended to kill. In such
cases, the court also has a sua sponte duty give CALCRIM No. 703, Special
Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony
Murder, Pen. Code, § 190.2(a)(17).
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 [111 Cal.Rptr.2d 148, 29
P.3d 225].) 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
If the prosecution’s theory is that the defendant committed or attempted to commit
arson, 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 arson.
If the prosecution’s theory is that the defendant aided and abetted or conspired to
commit arson, select one or both of these options in element 1 and the
corresponding intent requirement in element 2. Give bracketed element 3. 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 arson and on aiding and abetting and/or
conspiracy with this instruction.
When giving this instruction with CALCRIM No. 730, give the ﬁnal bracketed
CALCRIM No. 1502, Arson: Inhabited Structure.
• Special Circumstance. Pen. Code, § 190.2(a)(17)(B), (H) & (M).
3 Witkin & Epstein, California Criminal Law (4th ed. 2012) Punishment,
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 87, Death
Penalty, §§ 87.13, 87.14 (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[b] (Matthew Bender).
CALCRIM No. 732 HOMICIDE