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Felony Murder: One Continuous Transaction–Defined

 

People v. Wilkins (2013) 56 Cal. 4th 333, 342, noted that the Bench Notes for CC 3261 maintain that an instruction on the “escape rule” should not be given in a case involving felony murder. However, in a felony murder case where the facts warranted it, the court must instruct the jury under CC No. 3261 that the felony continues only until the perpetrator has reached a place of temporary safety. (Id. at 343-344.)

 

The CC Committee responded in July, 2013, by deleting CC 549 in its entirety. It added a bench note in CC 540B and C, and CC 541B and C, to consult Cavitt and the discussion of Cavitt in Wilkins “[i]f the defendant was a nonkiller who fled, leaving behind an accomplice who killed.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013, at p. 3, referring to People v. Cavitt (2004) 33 Cal. 4th 187, and People v. Wilkins (2013) 56 Cal. 4th 333, 344.)

 

The committee explained the revisions as follows: “Wilkins held it was error to give [CC 549] on the ‘One Continuous Transaction’ rule in a felony murder case when the defendant had been away from the scene of the crime for hours before the homicide took place.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 2.. . .[¶].) “In discussing the ‘One Continuous Transaction’ rule the court limited the application of People v. Cavitt. [] That case found that it was not error to instruct on ‘One Continuous Transaction’ in the unusual circumstances of that case. [] It stands to reason, however, that Cavitt’s limited holding on unusual facts was never meant to be the basis for standard jury instructions on felony murder, although the original Task Force on Criminal Jury Instructions mistakenly interpreted it that way.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 2, referring to People v. Cavitt (2004) 33 Cal. 4th 187.) As described by the Committee, in Cavitt, “Three defendants plan to commit a burglary in the home of one defendant’s stepmother. The stepdaughter pretends to be a crime victim. Both ‘victims’ are bound and left on a bed. The stepmother is alive when the other two defendants flee, but she dies later, either from suffocation due to her bonds, or due to subsequent, deliberate acts by the stepdaughter.” (Advisory Committee on Criminal Jury Instructions report, supra, at pp. 2-3, fn. 4.)

 

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Felony Murder: Applicability of Duress to Underlying Felony

 

When a murder is based on a felony murder theory, the court has a sua sponte duty to give a duress defense instruction (CC 3402) if the defendant claims that he or she committed the underlying felony under duress. (CC 3402 Bench Notes.)  However, if the defendant formed the intent to be an aider and abettor to the underlying felony before there was any coercion, then it is not necessary to give the instruction. (People v. Fiore (2014) 227 Cal. App. 4th 1362.)

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Act Causing Death Not Distinct from Underlying Felony

 

On April 23, 2010, CC 540A, as well as CC 540B and CC 540C, were revised. As explained by the CC Committee, it was pointed out to them that the first degree felony murder instructions refer to the “act causing death” as though it were distinct from the underlying felony and this could be misleading when the act causing death and the underlying felony are the same, as in arson cases. The Committee hence “made the necessary revisions throughout these instructions to eliminate potential references to a separate ‘act.’”

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Definition of Deadly Weapon Corrected

 

People v. Brown (2012) 210 Cal. App. 4th 1, 4, considered weapons such as BB guns, and noted that CC 375’s definition of a “deadly weapon,” “which includes objects that are inherently ‘dangerous’ as well as inherently ‘deadly,’ is, at best, ambiguous and, at worst, overbroad.” “[CC 875] may impermissibly allow a jury to convict a defendant of assault with a deadly weapon if it finds the weapon employed was inherently dangerous, even if it rejects the notion that the instrument was inherently deadly or used in a manner capable of causing and likely to cause death or great bodily injury. That possibility, however theoretical it may be in most cases, should be obviated by an appropriate modification of the language in [CC 875].” (Id. at 11.)

 

In response to the Court of Appeal in Brown, the CC Committee revised CC 875, as well as other CC instructions which contained the definition of a deadly weapon, to delete the word “dangerous.” The CC Committee explained, “In People v. Brown (2012) 210 Cal. App.4th 1, the Court of Appeal for the Second Appellate District found fault with the definition of deadly weapon in [CC 875] and [CC 3145] because it contained a superfluous reference to the weapon also being “dangerous.” In response to that opinion, the advisory committee proposes deleting that word from [CC 875], bracketing as optional in [CC 3145], as well as deleting the word from seven other instructions, [CC 860], [CC 862], [CC 863],[CC 982], [CC 983], [CC 2503], and [CC 3130]. [¶] With the proposed revisions, the definition returns to the original language that the committee first circulated for public comment in 2004, based on the language of People v. Aguilar (1997) 16 Cal. 4th 1023, 1028-29.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, p. 3.)

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Assault Instruction May Confuse Jurors in Multiple Victim Situations

“Element No. 1 of [CC 875] requires that the prosecution prove that ‘The defendant did an act with a deadly weapon that by its nature would directly and probably result in the application of force to a person.’ But Element 2 merely requires that ‘When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone.’”(People v. Velasquez (2012) 211 Cal. App. 4th 1170.)

 

As the Velasquez court observed, “[T]he potential for jury confusion is obvious. One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant’s aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that by its nature would directly and probably result in application of force to John Doe.” (Ibid.) 

 

Accordingly, the reviewing court reversed the defendant’s multiple convictions with a firearm.

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Definition of Balcony

 

People v. Yarborough (2012) 54 Cal. 4th 889, 894, expressly disapproved its dictum in People v. Valencia (2002) 28 Cal. 4th 1, 11, and held that “Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building and the balcony is designed to be entered only from inside the apartment (thus extending the apartment’s living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment’s “outer boundary”. . .any slight crossing of which is an entry for purposes of the burglary statute.” (Id. at 894.)

 

An attached balcony designed to be entered only from inside of a private, residential apartment on the second or higher floor of a building is inside a building’s outer boundary.

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CC Imperfect Self Defense Instruction: Error Identified By Court Of Appeal

 

People v. Por Ye Heri (2009) 181 Cal. App. 4th 349, identified the following error in CC 571: “For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense. . .]Citation.] Where, as in the CC instructions, the ‘belief in the need to defend’ is described as two beliefs–(1) the belief in imminent danger of death or great bodily injury; and (2) the belief in the need to use deadly force to defend against that danger–the unreasonableness of either belief would be sufficient to transform perfect self-defense into imperfect self-defense.”

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Felony Murder: Disagreements and Confusion

 

On April 23, 2010, CC 521 was revised. As explained by the CC Committee, “the definition of deliberation and premeditation in [CC No. 521], Murder: Degrees could be misleading in cases in which an extended act, such as strangling or drowning, causes the homicide.” (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of April 23, 2010, p. 4.)  The Committee thus changed the word “committing” to “completing” in the last sentence of the instruction, and provided an optional plural form for the word “act” so that this part now reads, “The defendant acted with premeditation if (he/she) decided to kill before completing the act[s] that caused death.”

 

On February 25, 2013, the CC Committee revised CC 521 again, and also revised the last paragraph of CC 520. The CC Committee explained:

 

Two judges from the Superior Court of Los Angeles County reported that these instructions are confusing to jurors, because there is no distinct explanation of second degree murder. Apparently, recent revisions to these instructions may not have had the desired effect because jurors continue to ask judges for a definition of second degree murder. The committee considered  two different, specific suggestions for clarifying this concept, which prompted the proposed changes in the current drafts. When the proposed changes circulated for public comment, several commentators stated that they found the change to [CC 521], First Degree Murder, confusing because they believed the proposed language suggested jurors would need to find the defendant guilty of second degree murder if they determined that defendant was not guilty of first degree murder.

 
The committee disagrees with these comments, because jurors hear and interpret the instructions as a whole, and not in isolation. Jurors hear [CC 520], First or Second Degree Murder with Malice Aforethought, immediately before hearing [CC 521]. [CC 520] guides jurors in deciding whether the defendant committed murder, regardless of the degree. The purpose of [CC 521], First Degree Murder, is to walk jurors through the process of determining whether any murder committed is of the first degree, as the third paragraph of the instruction indicates. Any murder that does not meet the requirements for first degree murder is by default a second degree murder. Jurors will also hear either [CC 640] or [CC 641], the instructions about lesser included offenses when a defendant is charged with first degree murder. These instructions guide jurors through the decision-making process in careful detail. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, pp. 2-3.)

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Whether Defendant May Be Convicted Based Only on an Admission/Confession

 

CC 359 is deficient to the extent it lends itself to an interpretation that criminal defendants could be convicted on the basis of extrajudicial statements alone that they committed a crime. (People v. Rivas (2013) 214 Cal. App. 4th 1410.) The first paragraph of CC 359 correctly informed the jury that, “A defendant may not be convicted of any crime based on his out-of-court statements alone. You may only rely on the defendant’s out-of-court statements to convict him if you conclude that other evidence shows that the charged crimes were committed.” However, the instruction’s third paragraph told the jury that, “The identity of the person who committed the crimes and the degree of the crimes may be proved by the defendant’s statement alone.” The reviewing court complained that “It may well be that in the third paragraph of [CC 359] the drafters intended simply to convey the idea that identity is not part of the corpus delicti rule which requires corroboration. But they did so in a most unfortunate way.” The Court of Appeal urged the drafters of the CC to reconsider its wording.

 

However, another court decision concluded that CC 359 accurately states the law concerning proof of identity by a defendant’s extrajudicial statements. (People v. Rosales (2014) 222 Cal. App. 4th 1254, 1259-1260.)