CALCRIM Proposes Changes to Felony Murder/Accomplice Instructions Per SB 1437 to Be Effective September 24, 2019
June 14th, 2019

The proposed modifications are summarized in an “Invitation to Comment” (5/28 – 7/5/19; CALCRIM-2019-01). The proposed effective date of the changes is 9/24/19. CALCRIM summarizes the proposed felony murder/accomplice changes as follows:


Senate Bill No. 1437 (2017-2018 Reg. Sess.) substantially changed accomplice liability for felony murder. Malice may no longer be imputed simply from participation in a designated crime. (Pen. Code, § 188(a)(3).) If a defendant participated in the commission or attempted commission of a designated felony when a person was killed, the defendant is now liable under the felony- murder rule only if: (1) the defendant was the actual killer; (2) the defendant was not the actual killer but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in committing murder in the first degree; or (3) the defendant was a major participant in the underlying designated felony and acted with reckless indifference to human life. (Pen. Code, § 189(e).) These restrictions do not apply when the victim was a peace officer and the defendant knew or reasonably should have known that the victim was a peace officer acting within the performance of his or her duties. (Pen. Code, § 189(f).)


As a result of these changes, the committee has modified CALCRIM Nos. 540B and 540C to incorporate the additional statutory elements for accomplice liability. The committee has also removed CALCRIM Nos. 541A, 541B, and 541C which addressed second degree felony murder. These instructions are included in an appendix, along with the former versions of Nos. 540A, 540B, and 540C.


It is further proposed that the felony murder instructions should be used as follows:

For a simple case in which the defendant allegedly personally caused the death by committing a direct act of force or violence against the victim, the court may use CALCRIM No. 540A. This instruction contains the least amount of bracketed material and requires the least amount of modification by the court.


In a case where the prosecution alleges that a participant in the felony other than the defendant caused the death is a “nonkiller cofelon” liable under the felony-murder rule for a death caused by in the felony, then the court must use CALCRIM No. 540B. This instruction allows the court to instruct that the defendant may have committed the underlying felony or may have aided and abetted or conspired to commit an underlying felony that actually was committed by a coparticipant.


If the evidence indicates that either the defendant or a coparticipant may have committed the fatal act, the court should give both CALCRIM No. 540A and CALCRIM No. 540B.


In addition, the committee has provided CALCRIM No. 540C to account for the unusual factual situations where a victim dies during the course of a felony as a result of a heart attack, a fire, or a similar cause, rather than as a result of some act of force or violence committed against the victim by one of the participants. (See People v. Billa (2003) 31 Cal.4th 1064, 1072.) This instruction is the most complicated of the three instructions. Thus, although C CALCRIM No. 540C is broad enough to cover most felony-murder scenarios, the committee recommends using instruction CALCRIM Nos. 540A or 540B whenever appropriate to avoid providing the jury with unnecessarily complicated instructions.


The CC instructions affected by these above proposals are the following:



Instruction Number


Instruction Title




Felony Murder: Defendant Actual Killer


540B & 540C


Felony Murder: Accomplice Liability


541A, 541B, 541C


Second Degree Felony Murder


402 & 403


Natural and Probable Consequences


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