SERIES 500 HOMICIDE
F 540B Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act
TABLE OF CONTENTS
F 540B.1 Titles And Identification Of Parties
F 540B.1 Inst 1 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Title
F 540B.1 Inst 2 Identification Of Prosecution And Defendant
F 540B.2 Felony Murder: First Degree—Co-participant Allegedly Committed Fatal Act—Tailoring To Facts: Persons, Places, Things And Theories
F 540B.2 Inst 1 Deletion Of Argumentative, Duplicative And Non Case-Specific Language
F 540B.2 Inst 2 Specification Of Alleged Victims
F 540B.2 Inst 3 Felony Murder Premised Solely On Conspiracy Membership: Killing Must Further Common Plan And Purpose
F 540B.3 Felony Murder: First Degree—Co-participant Allegedly Committed Fatal Act—Language That Is Argumentative, Confusing, Etc.
F 540B.3 Inst 1 Deletion Of Argumentative And Duplicative Language
F 540B.3 Inst 2 Jury Not Required To Decide
F 540B.4 Felony Murder: First Degree—Co-participant Allegedly Committed Fatal Act— Burden Of Proof Issues
F 540B.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 540B.4 Inst 2 Element 3: Modification Of Burden Shifting Language; Separate Enumeration Of Combined Elements
F 540B.5 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Elements And Definitions
F 540B.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
F 540B.5 Inst 2 Felony Murder: Timing Of Intent To Commit Felony
F 540B.5 Inst 3 Felony Murder: Continuous Transaction As Element
F 540B.5 Inst 4 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
F 540B.5 Inst 5 Felony Murder: Liability For Accidental Death Of Accomplice Requires Active Participation And Presence At The Scene
F 540B.6 Felony Murder: First Degree—Coparticipant Allegedly Committed Fatal Act—Defense Theories
F 540B.6 Inst 1 Felony Murder: Defense Theory That Neither Defendant No Coparticipant Committed The Fatal Act
F 540B.6 Inst 2 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
F 540B.6 Inst 3 Felony Murder: After-Acquired Intent Of Aider And Abetter—Pinpoint Instruction (PC 189 & PC 459)
F 540B.7 Felony Murder: First Degree—Co-participant Allegedly Committed Fatal Act—Preliminary Fact Issues [Reserved]
F 540B.8 Felony Murder: First Degree—Co-participant Allegedly Committed Fatal Act—Unanimity/ Duplicity/ Multiplicity [Reserved]
F 540B.9 Felony Murder: First Degree—Co-participant Allegedly Committed Fatal Act— Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 540B.1 Titles And Identification Of Parties
F 540B.1 Inst 1 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 540B.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 540B.2 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Tailoring To Facts: Persons, Places, Things And Theories
F 540B.2 Inst 1 Deletion Of Argumentative, Duplicative And Non-Case-Specific Language
*Delete 540B, paragraph 2, 4, 8 & 9
*Elements 2, 3, and 4:
[Change ” perpetrator” to “[_____________] [or] ____________ <insert name of alleged perpetrator>.” ]
Points and Authorities
Paragraph 2, sentence 1, paragraphs 4, 8 & 9: Duplicative of what is already conveyed by the elements of the charge; argumentative. (See FORECITE F 416.3 Inst 4.)
Paragraph 2, sentence 2: Use of the term “perpetrator” is not case-specific. (See FORECITE F 400.2 Inst 1.)
F 540B.2 Inst 2 Specification Of Alleged Victims
See FORECITE F 540A.2 Inst 1.
F 540B.2 Inst 3 Felony Murder Premised Solely On Conspiracy Membership: Killing Must Further Common Plan And Purpose
*Modify Elements of CC 540B when felony murder liability is based solely on conspiracy membership:
Modify Element 5 to provide [added language is underlined; deleted language is stricken]:
5. There was a logical connection between the act causing the death ________ <insert felony or felonies from Pen. Code, §189> [or attempted ________ <insert felony or felonies from Pen. Code, §189>]. The connection between the fatal act and the ________ <insert felony or felonies from Pen. Code, §189> [or attempted ________ <insert felony or felonies from Pen. Code, §189>] and the alleged conspiracy which the defendant is alleged to have joined. This logical connection must involve more than just their the occurrence of the act causing the killing and the alleged conspiracy at the same time and place.];
AND
6. The act causing the death was the natural and probable consequence of the plan to ___________ <insert felony or felonies from Pen. Code, §189>;
AND
7. The killing occured in furtherance of the common plan of the conspiracy and to further the common purpose to commit ______________ <insert felony or felonies from Pen. Code, §189>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Element 5: Logical Connection—See CALCRIM 540B, Related Issues, last paragraph.
Element 6: Natural And Probable Consequences— See CALCRIM, 540B, Related Issues, last paragraph.
Definition Of Natural And Probable Consequences—See e.g., CALCRIM 402; FORECITE F 402.5 Inst 1; F 820.5 Inst 3.
Element 7: In Furtherance Of Common Plan And Purpose—See People v. Schader (1965) 62 C2d 716, 731-32; CALJIC 8.26.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 540B.3 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Language That Is Argumentative, Confusing, Etc.
F 540B.3 Inst 1 Deletion Of Argumentative And Duplicative Language
See FORECITE F 540A.3 Inst 1.
F 540B.3 Inst 2 Jury Not Required To Decide
See FORECITE F 540A.3 Inst 2.
F 540B.4 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Burden Of Proof Issues
F 540B.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 540B.4 Inst 2 Element 3: Modification Of Burden Shifting Language; Separate Enumeration Of Combined Elements
*Replace Element 3 with the following:
If any juror has a reasonable doubt that the defendant personally [committed] [or] [attempted to commit] ________________ <insert PC 189 felony>, then such juror must find beyond a reasonable doubt that:
A. ____________ <insert name of alleged perpetrator> personally [committed] [or] [attempted to commit] ____________________;
AND
B. [The defendant aided and abetted _______________<insert ______________> in [committing] [or] [attempting to commit] the __________________ <insert ______________>.]
B. [The defendant conspired with _______________<insert ______________> to [commit] [or] [attempt to commit] the _______________<insert ______________>.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Burden Shifting—CALCRIM 540B, Element 3, contains unconstitutional burden shifting language by implying that the jurors must find that “the defendant did not personally commit [or attempt to commit]” the felony. (See FORECITE F 404.2 Inst 1.)
Tailoring—Additionally, Element 3 is imprecise and cumbersome by failing to tailor the language and by combining the discrete elements of (1) personal commission as to the perpetrator and (2) the prosecution’s theory of vicarious liability (i.e., aiding and abetting or conspiracy) as to the defendant. (See FORECITE F 400.2 Inst 1.)
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 540B.5 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Elements And Definitions
F 540B.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
See FORECITE F 540A.5 Inst 1.
F 540B.5 Inst 2 Inst 2 Co-Participant Language Erroneously Omitted From CC 540B
*Modify 540B, paragraph 7, as follows [added language is underlined; deleted language is stricken]:
Alternative a [only co-participant alleged to cause death]:
[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy to commit) the (felony/felonies) of ________ <insert felony or felonies from Pen. Code, § 189> before or at the time that (he/she) the perpetrator caused the death.]
Alternative b [co-participant and/or defendant alleged to have caused the death]:
[The defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy to commit) the (felony/felonies) of ________ <insert felony or felonies from Pen. Code, § 189> before or at the time that (he/she) or the perpetrator caused the death.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
Tailoring: Perpetrator’s Name – CC 540B should be tailored to refer to the name of the perpetrator. (See FORECITE 540B.2 Inst 1.)
The CALCRIM Error – CC 540B is intended for use when a co-participant in the predicate crime committed the killing – i.e., “caused the death” – of the victim. However, in its Spring 2010 revision the CALCRIM Committee added the current language which applies to situations where the defendant personally, rather than the co-participant, committed the killing.
WARNING! Federal constitutional claims may be lost without proper federalization – To preserve federal claims counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 540B.5 Inst 3 Felony Murder: Continuous Transaction As Element
See FORECITE F 540A.5 Inst 2.
F 540B.5 Inst 4 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
See FORECITE F 540A.5 Inst 3.
F 540B.5 Inst 5 Felony Murder: Liability For Accidental Death Of Accomplice Requires Active Participation And Presence At The Scene
* Add at end of CC 540B 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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Active Participation And Presence At Scene—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 (1928) 203 C 587].)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 8.21k.
F 540B.6 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Defense Theories
F 540B.6 Inst 1 Felony Murder: Defense Theory That Neither Defendant Nor Co-Participant Committed The Fatal Act
*Add to CC 540B:
To prove the defendant guilty based upon the theory of felony murder set forth in this instruction, the prosecution must prove beyond a reasonable doubt that [the defendant] [or] [_________________ <name of co-participant>] [attempted to have committed the fatal act] [committed the fatal act which caused the death of _________________ <name of decedent>. The defense contends that ________________ <name of third party> committed the fatal act. However, the defense does not need to prove this contention. The prosecution has the burden of disproving it. If after consideration of all the evidence any juror is not sure beyond a reasonable doubt that [either] [the defendant] [or] [_____________ <name>] committed the fatal act, then juror must vote not to convict the defendant of murder based on the theory of felony murder.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Fatal Act Must Be Committed By Defendant Or A Co-Participant—Commission of the fatal act by the defendant or a co-participant in the felony is an essential prerequisite to felony murder liability. (See People v. Caldwell (1984) 36 C3d 210, 216; People v. Washington (1965) 62 C2d 777, 782-83; People v. Gardner (1995) 37 CA4th 473, 477.)
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 540B.6 Inst 2 Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
See FORECITE F 540A.6 Inst 5.
F 540B.6 Inst 3 Felony Murder: After-Acquired Intent Of Aider And Abettor—Pinpoint Instruction (PC 189 & PC 459)
*Add to CC 540B:
An aider and abettor 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
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
After-Acquired Intent As Defense Theory—See People v. Pulido (1997) 15 C4th 713, 726-30; People v. Esquivel (1994) 28 CA4th 1386, 1394-97; see also FORECITE F 8.27a.
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTES
Defendant Must Be Aware Of Prior Crimes—Even if it were proper to allow aider and abettor 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 abettor was aware of the prior crimes.
To be liable for felony murder, the aider and abettor must aid and abet the perpetrator prior to the killing.
[See Brief Bank # B-689 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 8.21a.
F 540B.7 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Preliminary Fact Issues [Reserved]
F 540B.8 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Unanimity/Duplicity/Multiplicity [Reserved]
F 540B.9 Felony Murder: First Degree—Co-Participant Allegedly Committed Fatal Act—Lesser Offense Issues [Reserved]
