SERIES 500 HOMICIDE
F 540A Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act
TABLE OF CONTENTS
F 540A.1 Titles And Identification Of Parties
F 540A.1 Inst 1 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Title
F 540A.1 Inst 2 Identification Of Prosecution And Defendant
F 540A.2 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Tailoring To Facts: Persons, Places, Things And Theories
F 540A.2 Inst 1 Specification Of Alleged Victims
F 540A.3 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Language That Is Argumentative, Confusing, Etc.
F 540A.3 Inst 1 Deletion Of Argumentative And Duplicative Language
F 540A.3 Inst 2 Jury Not Required To Decide
F 540A.4 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act— Burden Of Proof Issues
F 540A.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 540A.5 Felony Murder: First Degree—Defendant Allegedly Committed Fatal AcT—Elements And Definitions
F 540A.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
F 540A.5 Inst 2 Felony Murder: Continuous Transaction As Element
F 540A.5 Inst 3 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
Return to Series 500 Table of Contents.
F 540A.1 Titles And Identification Of Parties
F 540A.1 Inst 1 Felony Murder: First Degree—Defendant 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 540A.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 540A.2 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Tailoring To Facts: Persons, Places, Things And Theories
F 540A.2 Inst 1 Specification Of Alleged Victims
*Modify CC 540A, Element 1, as follows [added language is underlined]:
1. The defendant committed [or attempted to commit] __________ <insert felony or felonies from Pen. Code, §189> upon __________________<name of alleged victim(s)>;
*Modify Element 3 as follows [added language is underlined; deleted language is stricken]:
3. While committing [or attempting to commit] _____________, <insert felony or felonies from Pen. Code, §189>, the defendant did an act that caused the death of another person __________________<name of alleged victim(s)>.
Points and Authorities
See FORECITE F 820.2 Inst 1; see also F 400.2 Inst 1.
F 540A.3 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Language That Is Argumentative, Confusing, Etc.
F 540A.3 Inst 1 Deletion Of Argumentative And Duplicative Language
*Modify CC 540A, paragraph 3 as follows [deleted language is stricken]:
A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent.
*Modify paragraph 7 as follows [deleted language is stricken]:
[It is not required that the person killed be the (victim/intended victim) of the (felony/felonies).]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 540A.3 Inst 2 Jury Not Required To Decide
*Modify CC 540A, paragraph 4, sentence 1, as follow [added language is underlined]:
In attempting to decide …
Points and Authorities
*Modify paragraph 4, sentence 2 as follows:
You must apply those instructions when you attempt to decide …
Points and Authorities
See FORECITE F 100.7 Inst 1.
F 540A.4 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Burden Of Proof Issues
F 540A.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 540A.5 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Elements And Definitions
F 540A.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
*Modify CC 540A, by deleting paragraph 5 and adding it as Element 4 as follows [added language is underlined]:
4. [The defendant must have intended to commit the (felony/felonies) of __________ <insert felony or felonies from Pen. Code, §189> before or at the time of the act causing the death.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Timing Of Act—The timing of act and intent requirement for felony murder should be an element of the offense. (See PC 20; see also FORECITE F 251 Inst 3.)
It is established that to be liable for felony murder, the aider and abettor must aid and abet the perpetrator prior to the killing. (People v. Pulido (1997) 15 C4th 713, 726-30; People v. Esquivel (1994) 28 CA4th 1386, 1394-97; see also FORECITE F 8.27a.) [See Brief Bank # B-689 for additional briefing on this issue.]
Similarly, if the defendant is charged with felony murder as a perpetrator, the instructions must require the jury to find that the defendant had the intent to commit the underlying felony “immediately prior to” or “during…infliction of the fatal wounds.” (People v. Anderson (1968) 70 C2d 15, 34; see also People v. Musselwhite (1998) 17 C4th 1216, 1249 [recognizing concurrent intent requirement but holding no instruction beyond CJ 8.21 and CJ 3.31 is required sua sponte].)
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 540A.5 Inst 2 Felony Murder: Continuous Transaction As Element
*Modify CC 540A by deleting paragraph 6; add to Elements as follows [added language is underlined]:
5. The death of _________________ <name of decedentI> and the _______________ <insert felony/felonies> were part of one continuous transaction.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Continuous Transaction As Enumerated Element—To the extent that a continuous transaction is required for felony murder liability (see People v. Cavitt (2004) 33 C4th 187, 204), it should be included in the enumerated elements. (See e.g., CC 541A, Element 4.)
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 540A.5 Inst 3 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
*Replace paragraph 4 with the following paragraphs:
To prove Element 1 above that the defendant [committed] [or] [attempted to commit] ___________________ <insert PC 189 felony>, the prosecution must prove each of the following elements beyond a reasonable doubt:
[Insert elements of predicate felony tailored to facts, e.g., with name of alleged victim, etc.]
[Insert any relevant defense theory instructions such as claim of right, duress, etc.]
To prove Element 2 above, that defendant intended to commit _____________ <insert predicate felony>, the prosecution must prove beyond a reasonable doubt that the defendant had the specific intent to:
[Insert elements, tailored to fact of this trial, of predicate felony modified as necessary to reflect the required intent, e.g. for robbery:
1. Take the property of _____________ <insert name of alleged victim>;
2. Take the property by force or fear;
3. Take the property from the immediate presence of _____________ <insert name of alleged victim>;
4. Permanently deprive _____________ <insert name of alleged victim> of the property.]
[Insert defense theory instructions including matters which may negate specific intent such as voluntary intoxication, mental impairment, etc.]
[Insert defense pinpoint instruction negating specific intent if specific intent is an element of the predicate offense.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Predicate Elements Should Be Enumerated—CALCRIM 540A is cumbersome and imprecise because it fails to expressly enumerate the elements which the prosecution must prove to satisfy Elements 1 and 2 of the felony murder instruction. Such elements should be set forth in the instruction to which they apply and should be tailored to the facts in evidence. [See FORECITE F 402.5 Inst 6.]
As to Element 1, it is patent that the jurors cannot reliably find that the defendant committed an offense without finding every essential element of that offense. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE CG 2.2.)
As to Element 2, the required mens rea is the specific intent to commit the predicate offense. (See People v. Ochoa (1998) 19 C4th 353, 421; see also People v. Hart (1999) 20 C4th 546, 608; People v. Hernandez (1998) 47 C3d 315, 346.)
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.
