Return to CALJIC Part 5-8 – Contents
F 8.27 n1 Accomplice Felony Murder: Killing In Furtherance Of Common Design.
See People v. Anderson (91) 233 CA3d 1646, 1667-69 [285 CR 523]; dissenting opinion for a discussion of the argument that CJ 8.27 should be limited as in a conspiracy charge per CJ 8.26 to killings committed in furtherance of a common purpose.
F 8.27 n2 Deleted
F 8.27 n3 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.
F 8.27 n4 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 8.27 n5 Felony Murder: Aider And Abettor — Failure To Give CJ 8.27 Sua Sponte As Reversible Error.
See Brief Bank # B-892 for briefing on this issue.
F 8.27 n6 Accomplice Felony Murder: Failure To Instruct On Nexus Requirement–Analysis Of Prejudice. As the Supreme Court has now clarified, culpability for felony murder based on a killing by a co-felon requires “both a causal relationship and a temporal relationship between the underlying felony and the act resulting in death.” (People v. Cavitt (2004) 33 C4th 187, 193, italics added.) However, Cavitt suggested that the required temporal and causal connection would rarely be an issue where the victim of the underlying felony and the victim of the killing was the same person. (See Cavitt, 33 C4th at 204, fn 5; see also People v. Dominguez (2006) 39 C4th 1141, 1160-61.)
First Degree Felony-Murder: Limiting the Liability of Late Aiders and Abetters (PC 189).
*Modify CJ 8.27 as follows [added language is capitalized and underlined]:
THE RULE OF LIABILITY DESCRIBED IN THIS INSTRUCTION DOES NOT APPLY TO A PERSON WHO AIDS AND ABETS THE PERPETRATOR OF THE CRIME ONLY AFTER THE KILLING HAS BEEN COMPLETED.
If a human being is killed by any one of several persons engaged in the commission or attempted commission of the crime of _____, all persons, who either directly and actively commit the act constituting that crime, or who, BEFORE OR AT THE TIME OF THE KILLING, with knowledge of the unlawful purpose of the perpetrator of the crime and with the intent or purpose of committing, encouraging, or facilitating the commission of the offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty of murder of the first degree, whether the killing is intentional, unintentional, or accidental.
Points and Authorities
People v. Pulido (97) 15 C4th 713, 726-30 [63 CR2d 625]; People v. Asher (69) 273 CA2d 876, 890 fn 2 [78 CR 885]; People v. Esquivel (94) 28 CA4th 1386, 1394-97; see also FORECITE F 8.21g.)
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(C).]
Modification When Crime Involves Fetal Victim
*Modify CJ 8.27 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
Felony Murder Liability For Accomplice Who Did Not Kill:
Logical Nexus Requirement
If you have a reasonable doubt that the defendant was the actual killer you must not convict him as an aider and abettor under this instruction unless the prosecution also proves the following beyond a reasonable doubt:
1. All elements of aiding and abetting liability upon which I have already instructed you; and
2. A logical nexus, beyond mere coincidence of time and place, between the felony the parties were committing or attempting to commit and the act resulting in death.
Points and Authorities
“California law thus has long required some logical connection between the felony and the act resulting in death, and rightly so. Yet the requisite connection has not depended on proof that the homicidal act furthered or facilitated the underlying felony. Instead, for a nonkiller to be responsible for a homicide committed by a cofelon under the felony-murder rule, there must be a logical nexus, beyond mere coincidence of time and place, between the felony the parties were committing or attempting to commit and the act resulting in death.” (People v. Cavitt (2004) 33 C4th 187, 201.)
Hence, when the requisite nexus is “at issue” or when clarification is requested CJ 8.27 should be clarified regarding the nexus requirement. (See Cavitt, 33 C4th at 203-04; compare People v. Dominguez (2006) 39 C4th 1141 [failure to instruct harmless because defendant actively participated in the rape and kidnap].)