Return to CALJIC Part 5-8 – Contents
F 8.21 n1 Felony Murder: Rape Victim Must Be Alive (PC 189).
Felony murder may not be predicated upon a charge of rape unless the victim was alive at the time intercourse occurred. (See FORECITE F 10.00a.) However, such conduct, if coupled with a reasonable belief that the victim was alive, may constitute attempted rape which is a predicate to felony murder liability. (People v. Thompson (93) 12 CA4th 195, 203 [15 CR2d 333]; see also People v. San Nicolas (2004) 34 C4th 614, 661 [mistaken belief that victim is alive warrants conviction of attempt to commit the underlying felony]; People v. Kelly (92) 1 C4th 495, 524-28 [3 CR2d 677].)
(See also FORECITE F 10.00a [Rape: Requirement That Victim Be Alive (PC 261).)
NOTES
Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n2 Felony Murder: Court Must Instruct On Misdemeanor As LIO Of Burglary (PC 189).
When burglary is predicated upon an intent to commit an offense for which there is a lesser included misdemeanor, failure to instruct upon the misdemeanor (except theft) may be reversible error because burglary requires an intent to commit a felony or theft. (PC 459; e.g., People v. Peters UNPUBLISHED (C008103) [burglary conviction reversed for failure to instruct on misdemeanor false imprisonment as a lesser included of felony false imprisonment].) [See Opinion Bank # O-110 for the Peters opinion.]
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n3 Felony Murder: Failure To Request Lesser Related Misdemeanor As IAC (PC 189).
In felony murder cases counsel should be alert to lesser included or related misdemeanors. (See e.g., People v. Morris/In re Morris UNPUBLISHED (E008083 / E008775) [failure to request instruction on joy riding and vehicle theft as lesser related to robbery was IAC].) [See Opinion Bank # O-102 for the Morris opinion.]
[See also FORECITE F 8.21 n12.]
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n4 Felony Murder: Proposition 115 Due Process/Ex Post Facto Issues: “Yoshiato Window” (PC 189).
Prior to June 6, 1990, felony murder under PC 189 could not be predicated upon kidnapping (PC 207), kidnapping for robbery (PC 209), or sex crimes other than rape or PC 288 violations. However, Proposition 115 amended PC 189 to add PC 207 and PC 209 kidnapping as well as train wrecking and the sex crimes defined in PC 286 and PC 289.
Therefore, at a minimum, for killing committed prior to June 6, 1990 ex post facto principles preclude predicating felony murder upon any of the crimes added by Proposition 115. (Tapia v. Superior Court (91) 53 C3d 282, 297-99 [279 CR 592]; People v. Sweet (89) 207 CA3d 78, 82 [254 CR 567].)
Moreover, because of the confusion regarding whether Proposition 114 would take precedence over Proposition 115, it may also be argued that Proposition 115 may not be applied to crimes committed before June 25, 1992, when the Supreme Court’s decision in Yoshiato v. Superior Court (92) 2 C4th 978 [9 CR2d 102] clarified the validity of Proposition 115.
There are at least three legal principles upon which such a claim may be made:
1) Due Process/Notice under the State (Art. I § 15) and Federal (14th Amendment) constitutions. (See People v. Green (91) 227 CA3d 692, 698 [278 CR 140].)
2) Ex Post Facto / Due Process principle which preclude the courts from judicial constructions which retroactively impose criminal liability. (See In re Baert (88) 205 CA3d 514, 518 [252 CR 418].)
3) Federal Due Process principles which preclude the states from arbitrarily denying a state-created right. (See Hicks v. Oklahoma (80) 447 US 343, 346 [65 LEd2d 175].)
(An even stronger argument applies to the window between the Court of Appeal decision in Yoshiato and the grant of review: 8/5/91 – 10/24/91.) [Additional analysis of “Yoshiato Window” (Phillips and Thoma) published in CACJ Forum Vol. 20 / No. 1, pp. 66-71, is available to FORECITE subscribers. Ask for Article Bank # A-28.]
However, in People v. Superior Court (Clark) (94) 22 CA4th 1541, 1550-51 [28 CR2d 46], the court rejected the argument that the subsequently superseded opinion in Yoshiato raises due process and ex post facto issues regarding crimes committed during the period between issuance of the Yoshiato appellate opinion and acceptance of the case for review by the California Supreme Court. The argument was rejected on the basis that the Yoshiato opinion was never final and therefore never had any precedential value.
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n5 Instruction Upon Felony Murder Improper Unless Charged (PC 189).
ALERT #1: To avoid waiving this issue, it may be necessary to formally ask to reopen the case to present defense evidence when the uncharged theory is advanced. (See People v. Memro (95) 11 C4th 786, 869 [47 CR2d 219; see also People v. Silva (2001) 25 C4th 345, 368 [106 CR2d 93, 111].)
ALERT #2: The rationale of cases such as Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348]; Ring v. Arizona (2002) 536 US 584 [153 LEd2d 556; 122 SCt 2428] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531] provide a basis for arguing that felony murder must be charged since it is a factual element which potentially increases the criminal liability of the accused. (See generally FORECITE PG VII(C)(32).) This argument was rejected in People v. Nakahara (2003) 30 C4th 705 [134 CR2d 223] but may still be viable in federal court on habeas corpus or certiorari. (See also FORECITE PG VII(C)(11.1).)
Prior to 1983, the cases consistently held that a charge of murder under PC 187 necessarily included a charge of felony murder under PC 189 because PC 189 simply created a presumption of the malice element of PC 187. (See People v. Witt (15) 170 C 104, 107-08 [148 P 928]; see also In re Walker (74) 10 C3d 764, 781 [112 CR 177-518].)
However, in People v. Dillon (83) 34 C3d 441, 476, fn 3 [194 CR 390], the Supreme Court determined that malice murder under PC 187 and felony murder under PC 189 are not the “same crimes.” Accordingly, because the accusatory pleading “must contain … [a] statement of the public offense or offenses charged therein” (PC 950), it would seem that Dillon requires specific pleading of felony murder under PC 189.
Nor is the decision of People v. Watkins (87) 195 CA3d 258, 267 [240 CR 626], persuasive authority to the contrary. Watkins fails to recognize and discuss the interrelationship between the presumption of malice and Witt‘s conclusion that the pleading need not specify PC 189. Further, Watkins erroneously concluded that Dillon “interprets rather than reinterprets § 189 and therefore should not be read to change the [Witt rule].” (Watkins at 267.) This is not an accurate characterization of Dillon. Dillon expressly contradicted Witt to the extent that it concluded that malice is an element of murder. The Dillon court attributed an entirely new meaning to PC 189 — it interpreted the statute as a codification of the felony murder rule. (Dillon at 465.) Hence, Watkins‘ conclusion that Witt is still good law should not be followed.
Moreover, the failure to charge felony murder violates the defendant’s federal constitutional rights (6th and 14th Amendments) to notice and due process. (See also Calif. Constitution, Art. III, § 15; PC 950.) The failure to charge felony murder was found to be a prejudicial 6th Amendment violation in Sheppard v. Rees (9th Cir. 1990) 909 F2d 1234.
The California courts of appeal have not followed Sheppard for two reasons. First, they have found Sheppard “difficult to square” with People v. Murtishaw (81) 29 C3d 733, 750-52 [175 CR 738]. Second, the California courts of appeal have distinguished Sheppard on its facts because the defendant “could not have been misled and, therefore, there was no 6th Amendment violation. (See People v. Gallego (90) 52 C3d 115, 188-89 [276 CR 679]; People v. Scott (91) 229 CA3d 707, 716-18 [280 CR 274]; People v. Crawford (90) 224 CA3d 1, 7-9 [273 CR 472]; but see People v. Ricks DEPUBLISHED (88) 198 CA3d 1266 [244 CR 696]; see also, Stephens v. Borg (9th Cir. 1995) 59 F3d 932 [distinguishing Sheppard v. Rees]; Morrison v. Estelle (9th Cir. 1992) 981 F2d 425 [distinguishing Sheppard on the basis of actual notice]; see also, Calderon v. Prunty (9th Cir. 1995) 59 F3d 1005 [dismissal of lying-in-wait special circumstance for insufficient evidence does not preclude use of lying-in-wait theory for first degree murder].)
However, these cases do not necessarily preclude application of Sheppard in an appropriate case. First, Murtishaw predated Dillon, which first held that felony murder is a separate and distinct offense. Therefore, neither Murtishaw nor People v. Thomas (87) 43 C3d 818, 829, fn 5 [239 CR 307] — which failed to address the argument advanced in Sheppard and which rely on cases predating Dillon — may be relied upon for the proposition that the Supreme Court has rejected the argument that Dillon created a new form of murder which must be separately charged. (Gallego cited Sheppard but did not discuss Dillon.)
Second, implicit in the California cases is the assumption that if the defendant is misled by the failure to charge felony murder then constitutional principles may be implicated. Accordingly, if it can be established that the felony murder instruction was a new theory which was unexpected by the defense and resulted in the inability of the defense to adequately defend against the charge, then a viable constitutional challenge may be made.
People v. Johnson (91) 233 CA3d 425, 453-57 [284 CR 579], the only case to consider the impact of Dillon, concluded that felony murder and malice murder are really not “two kinds of first degree murder.” In so doing, however, the Johnson court erroneously concluded that Dillon (34 C3d at 476, fn 23) was merely answering the defendant’s “narrow equal protection” argument when it concluded that felony murder and malice murder contain different elements. This is a misreading of Dillon. In point of fact, the court’s recognition that there are “two kinds” of first degree murder was an essential underpinning of Dillon. (See People v. Saille (91) 54 C3d 1103, 1116 [2 CR2d 364], recognizing that Dillon deleted malice as an element of “the crime of felony murder.” [Emphasis added].) Absent such an interpretation the felony murder rule would unconstitutionally presume the malice element of murder. (See Dillon at 475-76; see also People v. Bobo (90) 229 CA3d 1417, 1442 [3 CR2d 747] [legislature can limit the statutory definition of a crime and thereby curtail use of mens rea defenses]; see also Roth & Sundby, The Felony Murder Rule: A Doctrine of Constitutional Crossroads (1985) 70 Cornell L. Review, 446, 470, fn 145; but see FORECITE F 4.21 n11.) Hence, the reference in Dillon at fn 23 to two kinds of murder, “[a]s shown above,” is not limited to the narrow equal protection argument as concluded in Johnson but refers to the due process analysis at pp. 475-76 where the Supreme Court concluded that malice is not an element of felony murder.) (See also FORECITE F 17.01 n5; People v. Ricks DEPUBLISHED (88) 198 CA3d 1266 [244 CR 696].)
In sum, despite the purported disapproval of Sheppard by several California courts of appeal, the due process underpinnings of Sheppard have not been persuasively challenged. In the appropriate case a due process challenge to instruction on felony murder should be made based upon the failure to charge felony murder as a separate offense. (See also Alford v. State (95) 906 P2d 714 [111 Nev. 1409] [“It was simply not fair for the prosecution to bring in charges of felony-murder after the close of the case”].)
PRACTICE NOTE: The lack of notice in the Sheppard case was held to be prejudicial in large part due to the record made by trial counsel below indicating that the felony murder instruction was a new theory which was unexpected by the defense resulting in the inability of the defense to adequately defend against the charge. Counsel should take advantage of every opportunity to place in the record his surprise at the new theory and the manner in which it impairs his ability to defend against the charges.
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n6 Duty To Instruct On Termination Of Underlying Felony (PC 189).
Felony murder does not apply unless the underlying felony and the killing are part of “a continuous transaction.” (People v. Thompson (90) 50 C3d 134, 171 [266 CR 309].) While a robbery remains in progress for purposes of the felony murder rule until the perpetrator has reached a place of temporary safety (see FORECITE F 8.81.17b and FORECITE F 8.21.1b), for other crimes such as kidnapping and sex crimes the felony is complete when the victim is no longer detained (see FORECITE F 8.81.17b). (See also People v. Castro (94) 27 CA4th 578, 586 [32 CR2d 529].
Therefore, when the evidence may be interpreted to conclude that the underlying felony had ended before the killing occurred, the trial court is under a sua sponte obligation to instruct the jury as to when the underlying felony ends and that murder may not be predicated upon the killing which occurs after the felony has ended. (See People v. Pearch (91) 229 CA3d 1282, 1299 [280 CR 584].)
In robbery and burglary the felony and killing are part of “a continuous transaction” unless the defendant has reached “a place of temporary safety.” (See People v. Haynes (98) 61 CA4th 1282, 1292 [72 CR2d 143] [temporary safety basis for termination of robbery may be measured by victim safety, robber safety, robber’s common purpose and motive, or the indivisible or continuous nature of the transaction]; see also People v. Thongvilay (98) 62 CA4th 71 [72 CR2d 738] [felony murder doctrine applies when defendants cause death while driving away after committing a burglary]; People v. Salas (72) 7 C3d 812, 822-24 [103 CR 431]; People v. Fuller (78) 86 CA3d 618, 623 [150 CR 515] [burglary]; People v. Bodely (95) 32 CA4th 311 [38 CR2d 72].) The only CALJIC discussion of temporary safety is in CJ 8.21.1. (See FORECITE F 8.21.1 et al.)
RESEARCH NOTE: See Annotation, What constitutes termination of felony for purpose of felony-murder rule, 58 ALR3d 851 and Later Case Service.
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n7 Felony Murder: Sua Sponte Duty To Instruct Upon Defenses, Etc. When Underlying Felony Is Not Substantively Charged (PC 189).
When a defendant is charged with a felony murder special circumstance but not the substantive felony, the court has a sua sponte duty to instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.” (People v. Mickey (91) 54 C3d 612, 675-77 [286 CR 801].) The same reasoning should apply to non-special circumstance felony murder.
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n8 Felony Murder: “Drive-By” Murder (PC 189).
(See FORECITE F 8.25.1 n2.)
F 8.21 n9 Carjacking As Predicate For First Degree Felony Murder (PC 189).
Effective 10/1/93, the crime of carjacking (PC 215) may be a predicate for first degree felony murder.
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n10 Felony Murder: No Lesser Instruction Required For Felony Which Is Basis For Special Circumstance Allegation But Is Not Separately Charged (PC 189).
In People v. Miller (94) 28 CA4th 522, 526-27 [33 CR2d 663], the court held that there was no error in refusing to instruct upon request on a lesser included offense of a felony which was the basis of a felony murder and special circumstance allegation but was not separately charged. The court relied upon PC 1159 to conclude that the included offense doctrine applies only to charged offenses. This result raises several federal constitutional issues.
First, the failure to instruct upon lesser included offenses may implicate federal due process and, in capital cases, also the 8th Amendment (see FORECITE PG VII(C)(13).)
Second, in a non-capital case, the defendant’s federal constitutional rights (due process, to present a defense, compulsory process and a fair jury trial — 6th and 14th Amendments) are abridged when rejection of a requested lesser instruction prevents presentation of a defense theory to the jury. (See Bashor v. Risley (9th Cir. 1984) 730 F2d 1228, 1240.)
Third, apart from any federal constitutional right to instruction on lesser offenses, the prosecution should not be able to arbitrarily deny the defendant’s state created right to lesser offense instructions by use of “artful pleading.” (See Miller 28 CA4th at 531-32, dissenting opinion.) Arbitrary denial of a state created right implicates due process (U.S. Const., 14th Amendment.) (See FORECITE PG VII(C)(17).)
The dissent argued that the prosecution cannot deny the defendant, through “artful pleading,” the due process right to avoid “all or nothing” jury choices when some version of the evidence will support conviction of a lesser offense. (Miller 28 CA4th at 528-32 citing People v. Geiger (84) 35 C3d 510 [199 CR 45]. (See also People v. Peters UNPUBLISHED (C008103) [court has obligation to give instructions on LIOs when the evidence raises a question as to whether all of the elements of the charged offense are present; jury given an “all or nothing” choice when there was evidence from which they could have found the lesser charge].)
[Research Note: See FORECITE BIBLIO 8.21]
F 8.21 n11 Reduction Of Degree.
[See FORECITE LIO V(B).]
F 8.21 n12 Felony Murder Requirement That Jury Be Instructed On Lesser-included Offense Of The Underlying Felony.
In Villafuerte v. Stewart (9th Cir. 1997) 111 F3d 616, the Ninth Circuit held that the jury should have been instructed on a lesser-included offense of the felony underlying the felony murder charge [i.e., false imprisonment as lesser of kidnapping]. (However, the error did not require reversal because under the circumstances the jurors were not required to find the defendant guilty of murder if they found him guilty of kidnapping.) (See also FORECITE F 8.21 n3 [Failure To Request Lesser-related Misdemeanor To Underlying Offense As Ineffective Assistance of Counsel (IAC)].)
F 8.21 n13 Felony Murder: Double Jeopardy Violated By Reliance On Predicate Felony For Which Prior Juvenile Conviction Had Previously Been Returned.
(See Ficklin v. Hatcher (9th Cir. 1999) 177 F3d 1147.)
F 8.21 n14 Felony Murder: Intent To Steal Upon Entry Does Not Make Homicide And Burglary One Continuous Transaction.
In People v. Sakarias (2000) 22 C4th 596 [94 CR2d 17] the trial court told the jurors that if they found that the defendant entered the premises with the intent to steal, the homicide and burglary were part of one continuous transaction for purposes of the felony murder rule. The appellate court held that it is for the jury to decide whether the existence of a single transaction was proven beyond a reasonable doubt and that the trial court’s instruction removed that factual issue from the jury’s consideration. (Ibid.)
F 8.21 n15 Felony Murder: Intent To Commit Misdemeanor Not Sufficient (PC 189).
A conviction under the felony-murder doctrine requires proof the defendant acted with the specific intent to commit the underlying felony, even if the underlying felony does not itself require specific intent. (People v. Hart (99) 20 C4th 546, 608 [85 CR2d 132] [rape]; People v. Hernandez (98) 47 C3d 315, 346 [253 CR 199] [rape and sodomy]; People v. Sears (65) 62 C2d 737, 744 [44 CR 330] [mayhem]; see also FORECITE F 8.21i.) Hence, if the defendant only intended to commit a misdemeanor the felony murder rule does not apply. (See e.g., People v. Jones (2000) 82 CA4th 663, 669-70 [98 CR2d 724] [intent to evade a police officer (VC 2800.1) insufficient].)
F 8.21 n16 Felony Murder May Not Be Predicated On Intent To Evade Police Officer Resulting In Great Bodily Injury (GBI) (VC 2800.3).
(See FORECITE F 8.32 n9.)
F 8.21 n17 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony.
See FORECITE F 8.21j.
F 8.21 n18 Felony Murder: Use Of “In Furtherance” Language May Be Confusing.
“Although we have used the `in furtherance’ phrase with some frequency in our opinions, we also recognize that this wording has the potential to sow confusion if used in the instructions to the jury. [Citations.]” (People v. Cavitt (2004) 33 C4th 187, 202.)
F 8.21 n19 Felony Murder: Temporary Safety By Some, But Not All, Perpetrators.
(See People v. Cavitt (2004) 33 C4th 187, 209 [suggesting that under the escape rule, a felony continues as long as any one of the perpetrators retains control over the victim or is in flight from the crime scene, but not resolving the issue].)
F 8.21 n20 Felony Murder: Independent Animus.
(See FORECITE F 8.27c.)
F 8.21 n21 Felony Murder: Conspiracy as Lesser Included Offense.
(See People v. Nguyen DEPUBLISHED (2003) 111 CA4th 184 [When the prosecution relies on a conspiracy theory to establish liability for the underlying felony, conspiracy becomes a lesser included offense of felony murder and the jury must be given the option of returning a conspiracy verdict if there is substantial evidence of withdrawal from the conspiracy prior to the killing].)
F 8.21 n22 Felony Murder: Propriety of Instruction On Uncharged Lesser Included Of Predicate Felony.
The duty of the trial court to instruct on its own initiative on lesser included offenses of charged offenses, this duty does not extend to uncharged offenses relevant only as predicate offenses under the felony-murder doctrine. (People v. Seaton (2001) 26 C4th 598, 670; People v. Silva (2001) 25 C4th 345, 371; People v. Miller (1994) 28 CA4th 522, 526-527.)
However, when commission of lesser offense is a theory of the defense upon which instruction is requested, explanation of the lesser offenses to the predicate felony may be necessary. (See e.g., Seaton, 26 C4th at 670 [“trial court defined the crime of theft and told the jury that if defendant decided to take [the victim’s] property after killing him, he was guilty of theft, not robbery, and he thus could not be convicted of felony murder on the theory that he killed in the commission of a robbery.”].)
F 8.21 n23 Felony Murder: Unpremeditated Second Degree Murder As Lesser Included Offense.
(See People v. Valdez (2004) 32 C4th 73 [trial court’s failure to instruct on first and second degree murder as lesser includeds of felony murder did not deny due process because there was no substantial evidence that the killing was other than robbery murder. But see Chin dissent, with Kennard and Brown].)
F 8.21 n24 Arson Felony Murder: PC 453 As Lesser Included.
If the evidence provides a basis for instruction on PC 452 as a lesser included offense of arson (PC 451), then the jury should be instructed that felony murder is inapplicable if the crime was a violation of PC 452 rather than arson. (Cf. People v. Cole (2004) 33 C4th 1158, 1218-19; see also FORECITE F 8.21 n2.)
<span” id=”F 8.21a”>F 8.21a
Felony Murder: After-Acquired Intent Of Aider And Abetter
(PC 189 & PC 459)
SUBSEQUENT HISTORY: In the January 1998 Pocket Part CJ 8.27 was modified in light of People v. Pulido (97) 15 C4th 713, 729 [63 CR2d 625], by adding the second paragraph, which limits the liability of late aider and abettors.
*Add to CJ 8.21:
An aider and abetter may not be found guilty of murder under this instruction unless the aiding and abetting occurred before or during the killing. If you have a reasonable doubt that the defendant formed the intent to aid and abet before or during the killing, and/or that the act of aiding and abetting occurred before or during the killing, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of murder.
Points and Authorities
People v. Pulido (97) 15 C4th 713, 726-30 [63 CR2d 625]; People v. Esquivel (94) 28 CA4th 1386, 1394-97 [34 CR2d 324]; see also FORECITE F 8.27a.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon or failure to adequately instruct upon a defense or defense theory violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII.]
NOTES
[See Brief Bank # B-689 for additional briefing on this issue.]
Defendant Must Be Aware Of Prior Crimes. Even if it were proper to allow aider and abetter liability for other crimes committed by the perpetrator before the defendant aided and abetted, at a minimum, the jury should be instructed that the aider and abetter was aware of the prior crimes. [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-627.]
To be liable for felony murder, the aider and abetter must aid and abet the perpetrator prior to the killing. [See Brief Bank # B-689 for additional briefing on this issue.]
F 8.21b
Robbery Felony Murder After Acquired Intent Of Aider And Abettor
(PC 189 & PC 211)
*To be added at end of CJ 8.21:
For an accused to be guilty of robbery felony murder as an aider and abettor, [he] [she] must have formed the intent to encourage or facilitate prior to or during the commission of the robbery. The commission of a robbery continues so long as “the loot” is being carried away to a place of temporary safety.
Points and Authorities
As set forth in FORECITE F 9.40e, an aider and abettor should not be held liable for robbery when the intent to aid was formed after the completion of the robbery. The commission of a robbery continues so long as the perpetrator is carrying “the loot” to a place of temporary safety. (See FORECITE F 9.40c.)
However, because CJ 8.21 focuses upon the intent of the perpetrator, it fails to make clear to the jury that felony murder liability may not be predicated upon the after-acquired intent of the aider and abettor. Accordingly, the above supplemental instruction should be given to assure that the jury properly understands this rule. (See also FORECITE F 8.21.1 et al.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 8.21c
First Degree Felony Murder: Inapplicable To Burglary
(PC 189 & PC 459)
*Add to CJ 8.21:
You may not convict the defendant of first degree murder based upon the commission or attempted commission of burglary if the defendant entered the premises with the intent to commit [murder] [assault]. You may return a first degree verdict based on the burglary only if you find that the defendant had the non-assaultive intent to __________ when [he] [she] entered.
Points and Authorities
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
The January 1990 CALJIC pocket part comment to CJ 8.21 contained a reference to People v. Garrison (89) 47 C3d 746, 778 [254 CR 257], regarding application of the merger doctrine explained in People v. Ireland (69) 70 C2d 522 [75 CR 188]. However, neither the instruction nor the use note contain any provision for modification of the instruction when the underlying felony is a burglary and the alleged intent include an intent to commit murder. In this situation, the instructions may be confusing because the intent to murder is a proper basis for conviction of burglary but it is not a proper basis for imposition of first degree murder based on the felony murder rule. In People v. Farmer (89) 47 C3d 888, 915 [254 CR 508], the court recognized this potential confusion but failed to resolve it because “even if the instructions had been models of clarity, the jury also made a specific finding beyond a reasonable doubt, that the murder was committed with premeditation and deliberation.” (Id. at 915.)
The above supplement to CJ 8.21 should be given to avoid juror confusion in these circumstances.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 8.21d
Felony Murder: Not To Be Predicated Upon An Assault
*Add at end of CJ 8.21:
Even if you conclude that the homicide resulted from the perpetration or attempt to perpetrate an assault [with a deadly weapon] you may not find first degree murder based upon the assault.
Points and Authorities
In People v. Morris (91) 53 C3d 152, 212 [279 CR 720], the Supreme Court rejected the defendant’s argument that the failure to specifically instruct the jury that felony murder does not apply to assault with a deadly weapon was prejudicial. The court rejected as speculation the defendant’s suggestion that the jury found him guilty of felony murder based on the assault.
However, the court’s conclusion that the failure to so instruct was not prejudicial does not eliminate the potential usefulness of such an instruction to assure that the jury is not confused. Moreover, Morris did not involve any separate charges of assault with a deadly weapon. When such charges are included in the information the need to admonish the jury not to predicate felony murder upon the assault would be especially important.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
RESEARCH NOTES
See Annotation, Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 ALR3d 1341 and Later Case Service.
F 8.21e
Felony Murder: Causation Requirement
*Modify 1st ¶ of CJ 8.21 to provide as follows [added language is capitalized; deleted language is between <<>>]:
The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of __________ (insert felony) < > AND as a direct causal result of __________ (insert felony) is murder of the first degree when the perpetrator had the specific intent to commit such crime.
The specific intent to commit __________ and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.
Points and Authorities
Several California cases have suggested that a causal relationship between the charged felony and the killing of the victim is not required in a felony murder prosecution. (See People v. Tapia (94) 25 CA4th 984, 1024-25 [30 CR2d 851]; People v. Pock (93) 19 CA4th 1263, 1276 [23 CR2d 900], and cases cited therein; but see People v. Stamp (69) 2 CA3d 203, 210 [82 CR 598] [“So long as the victim’s predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber’s ignorance of it, in no way destroys the robber’s criminal responsibility for the death”].) However, this is contrary to the common law which provides that an intervening cause of death (i.e., the victim’s suicide) may be considered a superseding cause which may negate felony murder liability. (See LaFave & Scott (1986), Substantive Criminal Law § 7.5(d), pp. 213-21.) For example, in Regina v. Horsey (1862) 3 F. & F. 287, 176 Eng. Rep. 129, the felony was arson. Defendant unlawfully set fire to a stack of straw and a person was burned to death. The death in an immediate sense was thus produced by the very mechanism which the felony of arson forseeably and naturally creates a danger of, i.e., death by burning. But there was doubt whether the decedent had been present before the blaze was started. As there seemed to be no normal reason why the decedent should have gone into the flames, the court ruled that there could be no conviction of murder if the deceased, in fact, went in afterwards for the purpose of committing suicide, for in such case the deceased’s own act “intervened between the death and the act of the prisoner.” (176 Eng. Rep. at 131-32; see also discussion of Horsey in Boyce, Criminal Law (3d Ed. 1982) Ch. 6, § 9, p. 811.) [See Brief Bank # B-796 for additional briefing arguing that causation applies to felony murder.]
Accordingly, contrary to the CJ use note, causation is an element of felony murder, even when the death occurs during the felony, and the jury should be so instructed.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
NOTES
[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-620.]
F 8.21f
Felony Murder: Killing Must Be For An Independent Felonious Purpose
*Add to CJ 8.21:
To prove first degree murder on a felony murder theory, the prosecution must prove beyond a reasonable doubt that the defendant committed the __________ [insert felony] for an independent felonious purpose rather than merely to facilitate or conceal the murder. This requires the prosecution to prove that the defendant had an independent purpose to commit the felony of ___________ wholly independent of the murder. If after considering all of the evidence you have a reasonable doubt that the defendant had such an independent felonious purpose, you must give the defendant the benefit of the doubt and find [him] [her] not guilty on the felony murder theory.
ALTERNATIVE FORM
To prove the felony murder theory of first degree murder, the prosecution must prove beyond a reasonable doubt that the __________ [insert felony] was done for the independent purpose of committing the felony rather than for the purpose of committing the homicide. If the defendant’s primary purpose was to kill or if [he] [she] committed the __________ [insert felony] to facilitate or conceal the homicide, then there was no independent felonious purpose. If from all the evidence you have a reasonable doubt that the defendant committed the ___________ for such independent felonious purpose, you must find the defendant not guilty on the felony murder theory.
Points and Authorities
It is well settled that the felony murder rule (PC 189) does not apply when the felony is committed after the killing. (People v. Anderson (68) 70 C2d 15, 34 [73 CR 550].) The rationale for this rule is that commission of the felony must be the defendant’s primary purpose in order to rationally further the legislative objective of deterring killings which occur as a result of or during the commission of the defendant’s commission of one of the enumerated felonies. (See People v. Green (80) 27 C3d 1, 61-62 [164 CR 1].) Based on these principles, the defendant should not be held liable for felonies under PC 189 if the primary intent was to kill. In other words, the prosecution must prove beyond a reasonable doubt that the defendant had an independent felonious purpose to commit one of the felonies enumerated in PC 189. (Ibid; [although Green dealt with the felony murder special circumstance, the same rationale, especially in light of Anderson, applies to PC 189]; but see, Williams v. Calderon (9th Cir. 1995) 52 F3d 1465, 1476 [independent felonious purpose serves narrowing finding necessary for capital eligibility].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII.]
F 8.21g
No Felony Murder Liability Based On After-Acquired Intent To Commit Felony
*Add to CJ 8.21:
To establish the defendant’s guilt of first degree murder on the theory that [he] [she] committed the killing during the perpetration or attempted perpetration of __________ [insert enumerated felony from PC 189], the prosecution must prove beyond a reasonable doubt that prior to or during the infliction of the fatal wounds the defendant:
[1. Personally committed or attempted to commit _____] [or]
[1. Aided and abetted the commission or attempted commission of _____] and
2. Personally harbored the specific intent to commit ____.
Points and Authorities
It is established that to be liable for felony murder, the aider and abetter must aid and abet the perpetrator prior to the killing. (People v. Pulido (97) 15 C4th 713, 726-30 [63 CR2d 625]; People v. Esquivel (94) 28 CA4th 1386, 1394-97 [34 CR2d 324]; see also FORECITE F 8.27a.) [See Brief Bank # B-689 for additional briefing on this issue.]
Similarly, if the defendant is charged with felony murder as a perpetrator, the instructions must require the jury to find that the defendant had the intent to commit the underlying felony “immediately prior to” or “during…infliction of the fatal wounds.” (People v. Anderson (68) 70 C2d 15, 34 [73 CR 550]; see also People v. Musselwhite (98) 17 C4th 1216, 1249 [74 CR2d 212] [recognizing concurrent intent requirement but holding no instruction beyond CJ 8.21 and CJ 3.31 is required sua sponte].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
PRACTICE TIP: See PG VI(C)(10) for strategies in response to refusal of specific pinpoint or defense theory instruction as covered by other more general instructions.
F 8.21h
Modification When Crime Involves Fetal Victim
*Modify CJ 8.21 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
F 8.21i
Felony Murder: Specific Intent To Commit General Intent Offense
*Add to CJ 8.21:
You should understand the difference between the intent element for the substantive offense of [insert substantive offense] and the intent element for felony murder based on a killing occurring during the commission of a [insert substantive offense]. To convict the defendant of the substantive crime of [insert substantive offense] it is necessary to find general criminal intent as defined elsewhere in these instructions. [[Voluntary intoxication] [mental disease defect or disorder] do not negate such intent.]
Felony murder, on the other hand, requires that the defendant harbor a specific intent to commit the crime of [insert substantive offense]. Hence, even though the substantive crime of [insert substantive offense] requires a general intent, felony murder requires a higher level of specific intent which may be negated by [voluntary intoxication] [mental disease defect or disorder].
Points and Authorities
When the defendant is charged with felony murder based on a predicate felony that requires only a general intent (e.g., rape), the jury is instructed upon the predicate charge both in terms of specific intent (CJ 8.21) and general intent (CJ 3.30). The Supreme Court has recognized that, “the casual use or misuse of [the terms general intent and specific intent] may cause mischief.” (People v. Ochoa (98) 19 C4th 353, 421 [79 CR2d 408]; see also People v. Hart (99) 20 C4th 546, 608 [85 CR2d 132] [rape]; People v. Hernandez (98) 47 C3d 315, 346 [253 CR 199] [rape and sodomy]; FORECITE F 8.21 n15.) Accordingly, even though the Supreme Court has concluded that the jury would not be confused by the conflict between CJ 3.30, CJ 3.31 and CJ 8.21, the defendant should have a right, upon request, to an instruction which clarifies these potentially confusing instructions.
F 8.21j
Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
* Add to CJ 8.21:
SAMPLE INSTRUCTION # 1:
If you have a reasonable doubt whether the defendant is guilty of _____________ (the named felony) after considering all of the evidence including any threats and menaces as defined in these instructions, [you must acquit the defendant of that felony and] you cannot convict the defendant of murder [.] [based on the allegation that [he] [she] participated in the commission of a ___________ (the named felony).
SAMPLE INSTRUCTION # 2:
It is a defense theory that the defendant is not guilty of the alleged [robbery] [burglary] [arson] [__________] (other predicate offense per PC 189) because [he] [she] was acting under threats and menaces as defined elsewhere in these instructions.
If, after considering the evidence of threats and menaces, together with all the other evidence, you have a reasonable doubt that the defendant is guilty of the alleged [robbery] [burglary] [arson] [__________] (other predicate offense per PC 189) you must give the defendant the benefit of that doubt and find [him] [her] not guilty of [murder.] [murder based on the commission of a felony.]
[Based on CALJIC format in CJ 2.91; see also CJ 4.30 and CJ 4.50.]
SAMPLE INSTRUCTION # 3:
It is a defense theory that the defendant is not guilty of the alleged __________ (predicate felony) because [he] [she] was acting under threats and menaces as defined elsewhere in these instructions.
If, after considering the evidence of threats and menaces, together with all the other evidence, any juror has a reasonable doubt that the defendant is guilty of the alleged __________ (predicate felony), that juror [must] [is duty-bound] to vote not guilty as to the [murder charge.] [the charge of murder based on the commission of a felony.]
Points and Authorities
See FORECITE F 540A.6 Inst 5
F 8.21k
Felony Murder: Liability For Accidental Death Of
Accomplice Requires Active Participation And
Presence At The Scene
* Add at end of CJ 8.21 when appropriate:
In addition to the above stated elements the prosecution must also prove beyond a reasonable doubt that one or more of the surviving perpetrators:
1. Was present at the scene of the killing, and
2. Was an active participant in the _______ [insert predicate crime for felony murder charge].
Points and Authorities
Felony murder liability for any death in the course of arson attaches to all accomplices in the felony at least where one or more surviving accomplices were present at the scene and active participants in the crime. (See People v. Billa (2003) 31 C4th 1064, 1072 [criticizing and distinguishing People v. Ferlin (28) 203 C 587].)
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