Return to CALJIC Part 5-8 – Contents
F 8.26 n1 Appellate Issue Alert: Pre-July ‘98 Version.
In the July 1998 Pocket Part, the CALJIC Committee modified CJ 8.26, adding the perpetration of or attempt to commit a PC 189 felony as an element. The failure to instruct on this element in the pre-1998 version of CJ 8.26 may be subject to challenge. Failure to instruct on an element of the charge violates 6th Amendment right to trial by jury (applied to the States through the 14th Amendment) (see U.S. v. Caldwell (9th Cir. 1993) 989 F2d 1056, 1060-61) and 14th Amendment right to due process. (People v. Cummings (93) 4 C4th 1233, 1312-14 [18 CR2d 796]; Osborne v. Ohio (90) 495 US 103, 123-24 [109 LEd2d 98; 110 SCt 1691]; Cole v. Young (7th Cir. 1987) 817 F2d 412, 423-426 [instruction in a state criminal trial which omits an element of a crime violates the due process clause of the 14th Amendment].)
F 8.26 n2 Felony Murder Rule Inapplicable To Conspiracy To Commit Assault With A Deadly Weapon.
A conspiracy to commit an assault with a deadly weapon is not subject to the felony murder rule under PC 189 for two reasons. First, assault is not one of the enumerated felonies under PC 189. (People v. Baker DEPUBLISHED (99) 72 CA4th 531 [85 CR2d 362].)
Second, the merger doctrine (People v. Ireland (69) 70 C2d 522, 538 [75 CR 188]) precludes predicating felony murder based upon an assault. (Baker, 72 CA4th at 535.)
“Therefore, because assault is not among the felonies enumerated in section 189, assault is not a predicate felony that elevates a killing to first degree murder. Thus, whether the defendant is liable as a principal, as an aider and abettor, or as a conspirator, he or she cannot be found guilty under felony murder principles of first degree murder where the target crime is a felonious assault that results in death.” (Baker, at 72 CA4th at 556, concurring opinion.) [See Opinion Bank # O-259 for a copy of the Baker opinion.
F 8.26 n3 CJ 8.26 Improperly Expanded The California Felony Murder Rule.
See Brief Bank # B-881 for briefing arguing that it is reversible error for the trial court to give CJ 8.26 [First Degree Felony Murder In Pursuance Of A Conspiracy].
F 8.26a
Felony Murder: Liability For Accidental Death
Of Accomplice Requires Active Participation And
Presence At The Scene
*Add at end of CJ 8.26 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 conspirators:
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].)
