SERIES 500 HOMICIDE
F 540A Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act
TABLE OF CONTENTS
F 540A.6 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Defense Theories
F 540A.6 Inst 1 First Degree Felony Murder: Inapplicable To Burglary (PC 189 & PC 459)
F 540A.6 Inst 2 Felony Murder: Not To Be Predicated Upon An Assault
F 540A.6 Inst 3 (a & b) Felony Murder: Killing Must Be For An Independent Felonious Purpose
F 540A.6 Inst 4 Felony Murder: Specific Intent To Commit General Intent Offense
F 540A.6 Inst 5 (a-d) Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
F 540A.7 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Preliminary Fact Issues [Reserved]
F 540A.8 Felony Murder: First Degree— Defendant Allegedly Committed Fatal Act—Unanimity/ Duplicity/ Multiplicity [Reserved]
F 540A.9 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 540A.6 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Defense Theories
F 540A.6 Inst 1 First Degree Felony Murder: Inapplicable To Burglary (PC 189 & PC 459)
*Add to CC 540A:
You may not convict the defendant of first degree murder based upon the commission or attempted commission of burglary if the defendant entered the premises with the intent to commit [murder] [assault]. You may return a first degree verdict based on the burglary only if you find that the defendant had the non-assaultive intent to __________ when [he] [she] entered.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Merger Rule—CALCRIM 540A discussed the merger doctrine under the Related Issues notes but the instruction does not contain any provision for modification of the instruction when the underlying felony is a burglary and the alleged intent includes an intent to commit murder. In this situation, the instructions may be confusing because the intent to murder is a proper basis for conviction of burglary but it is not a proper basis for imposition of first degree murder based on the felony murder rule. In People v. Farmer (1989) 47 C3d 888, 915, the court recognized this potential confusion but failed to resolve it because “even if the instructions had been models of clarity, the jury also made a specific finding beyond a reasonable doubt, that the murder was committed with premeditation and deliberation.” (Id. at 915; see also People v. Garrison (1989) 47 C3d 746, 778, regarding application of the merger doctrine explained in People v. Ireland (1969) 70 C2d 522.)
The above supplement to CC 540A should be given to avoid juror confusion in these circumstances.
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.
CALJIC NOTE: See FORECITE F 8.21c.
F 540A.6 Inst 2 Felony Murder: Not To Be Predicated Upon An Assault
*Add at end of CC 540A:
Even if you conclude that the homicide resulted from the perpetration or attempt to perpetrate an assault [with a deadly weapon], you may not find first degree murder based upon the assault.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Felony Murder Not Applicable To ADW—In People v. Morris (1991) 53 C3d 152, 212, the Supreme Court rejected the defendant’s argument that the failure to specifically instruct the jury that felony murder does not apply to assault with a deadly weapon was prejudicial. The court rejected as speculation the defendant’s suggestion that the jury found him guilty of felony murder based on the assault.
However, the court’s conclusion that the failure to so instruct was not prejudicial does not eliminate the potential usefulness of such an instruction to assure that the jury is not confused. Moreover, Morris did not involve any separate charges of assault with a deadly weapon. When such charges are included in the information, the need to admonish the jury not to predicate felony murder upon the assault would be especially important.
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.
RESEARCH NOTES
See Annotation, Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 ALR3d 1341 and Later Case Service.
CALJIC NOTE: See FORECITE F 8.21d.
F 540A.6 Inst 3 (a & b) Felony Murder: Killing Must Be For An Independent Felonious Purpose
*Add to CC 540A:
Alternative a:
To prove first degree murder on a felony murder theory, the prosecution must prove beyond a reasonable doubt that the defendant committed the __________ [insert felony] for an independent felonious purpose rather than merely to facilitate or conceal the murder. This requires the prosecution to prove that the defendant had an independent purpose to commit the felony of ___________ wholly independent of the murder. If after considering all of the evidence you have a reasonable doubt that the defendant had such an independent felonious purpose, you must give the defendant the benefit of the doubt and find [him] [her] not guilty on the felony murder theory.
Alternative b:
To prove the felony murder theory of first degree murder, the prosecution must prove beyond a reasonable doubt that the __________ [insert felony] was done for the independent purpose of committing the felony rather than for the purpose of committing the homicide. If the defendant’s primary purpose was to kill or if [he] [she] committed the __________ [insert felony] to facilitate or conceal the homicide, then there was no independent felonious purpose. If from all the evidence you have a reasonable doubt that the defendant committed the ___________ for such independent felonious purpose, you must find the defendant not guilty on the felony murder theory.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Propriety Of Instruction On Green Rule—The notes to CALCRIM 540A refer to CALCRIM 730 on special circumstances. However, the above instructions are specifically tailored to first degree murder and are more comprehensive.
It is well settled that the felony murder rule (PC 189) does not apply when the felony is committed after the killing. (People v. Anderson (1968) 70 C2d 15, 34.) The rationale for this rule is that commission of the felony must be the defendant’s primary purpose in order to rationally further the legislative objective of deterring killings which occur as a result of or during the commission of the defendant’s commission of one of the enumerated felonies. (See People v. Green (1980) 27 C3d 1, 61-62.) Based on these principles, the defendant should not be held liable for felonies under PC 189 if the primary intent was to kill. In other words, the prosecution must prove beyond a reasonable doubt that the defendant had an independent felonious purpose to commit one of the felonies enumerated in PC 189. (Ibid; [although Green dealt with the felony-murder special circumstance, the same rationale, especially in light of Anderson, applies to PC 189]; but see, Williams v. Calderon (9th Cir. 1995) 52 F3d 1465, 1476 [independent felonious purpose serves narrowing finding necessary for capital eligibility].)
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.
ALERT: People v. Farley (2009) 46 C4th 1053, 1118-20 overruled People v. Wilson (1969) 1 C3d 431 which precluded the application of the felony murder rule to assaultive burglaries. However, Wilson still applies to crimes committed prior to the finality of the Farley decision.
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.
CALJIC NOTE: See FORECITE F 8.21f.
F 540A.6 Inst 4 Felony Murder: Specific Intent To Commit General Intent Offense
*Add to CC 540A:
You should understand the difference between the intent element for the substantive offense of [insert substantive offense] and the intent element for felony murder based on a killing occurring during the commission of a [insert substantive offense]. To convict the defendant of the substantive crime of [insert substantive offense], it is necessary to find general criminal intent as defined elsewhere in these instructions. [[Voluntary intoxication] [mental disease defect or disorder] do not negate such intent.]
Felony murder, on the other hand, requires that the defendant harbor an intent to commit the crime of [insert substantive offense]. Hence, even though the substantive crime of [insert substantive offense] requires a general intent, felony murder requires a higher level of intent which may be negated by [voluntary intoxication] [mental disease defect or disorder].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Specific Intent To Commit Predicate Felony Is Required—When the defendant is charged with felony murder based on a predicate felony that requires only a general intent (e.g., rape), the jury is instructed upon the predicate charge both in terms of specific intent (CJ 8.21) and general intent (CJ 3.30). The Supreme Court has recognized that, “the casual use or misuse of [the terms general intent and specific intent] may cause mischief.” (People v. Ochoa (1998) 19 C4th 353, 421; see also People v. Hart (1999) 20 C4th 546, 608 [rape]; People v. Hernandez (1998) 47 C3d 315, 346 [rape and sodomy]; FORECITE F 8.21 n15.) Accordingly, even though the Supreme Court has concluded that the jury would not be confused by the conflict between CJ 3.30, CJ 3.31 and CJ 8.21, the defendant should have a right, upon request, to an instruction which clarifies these potentially confusing instructions.
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.
CALJIC NOTE: See FORECITE F 8.21i.
F 540A.6 Inst 5 (a-d) Felony Murder: Applicability Of Duress/Coercion To Underlying Felony
* Add to CC 540A:
Alternative a:
If you have a reasonable doubt whether the defendant is guilty of _____________ <the named felony> after considering all of the evidence including any threats and menaces as defined in these instructions, [you must acquit the defendant of that felony and] you cannot convict the defendant of murder [based on the allegation that [he] [she] participated in the commission of a ___________ <the named felony>.
Alternative b [CC 3400 Format]:
The prosecution must prove that the defendant committed the crime of _______________ <insert predicate felony> which is the predicate for the felony murder rule. The defendant contends (he/she) did not commit the crime of _______________ <insert predicate felony> because (he/she) committed the alleged acts under duress. The prosecution must prove all of the elements of the crime of _______________ <insert predicate felony> including that the defendant was not acting under duress. The defendant does not need to prove (he/she) acted under duress. If you have a reasonable doubt about whether the defendant is guilty of the alleged _______________ <insert predicate felony>, you must find (him/her) not guilty.
Alternative c [CALJIC 2.91 Format; see also CJ 4.30 and CJ 4.50]:
It is a defense theory that the defendant is not guilty of the alleged [robbery] [burglary] [arson] [__________] <other predicate offense per PC 189> because [he] [she] was acting under threats and menaces as defined elsewhere in these instructions.
If, after considering the evidence of threats and menaces, together with all the other evidence, you have a reasonable doubt that the defendant is guilty of the alleged [robbery] [burglary] [arson] [__________] <other predicate offense per PC 189>, you must give the defendant the benefit of that doubt and find [him] [her] not guilty of [murder.] [murder based on the commission of a felony.]
Alternative d:
It is a defense theory that the defendant is not guilty of the alleged __________ <predicate felony> because [he] [she] was acting under threats and menaces as defined elsewhere in these instructions.
If, after considering the evidence of threats and menaces, together with all the other evidence, any juror has a reasonable doubt that the defendant is guilty of the alleged __________ <predicate felony>, that juror [must] [is duty-bound] to vote not guilty as to the [murder charge] [the charge of murder based on the commission of a felony.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Applicability Of Duress To Predicate Felony—In People v. Anderson (2002) 28 C4th 767, 784 the California Supreme Court observed:
“On a final point, we note, contrary to the Attorney General’s argument, that duress can, in effect, provide a defense to murder on a felony-murder theory by negating the underlying felony. (See People v. Anderson (1991) 233 CA3d 1646, 1666-1667, fn. 18; see also In re Nourn (2006) 145 CA 4th 820 [IAC for counsel’s failure to investigate battered woman’s syndrome as a defense to underlying felony]; Perkins & Boyce, Criminal Law, supra, ch. 9, §2, pp. 1058-1059; LaFave, Criminal Law, supra, §5.3(b), pp. 468-469.) If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony. Here, for example, the court instructed the jury that duress could be a defense to the kidnapping charge. It also instructed on felony murder with kidnapping as the underlying felony. If the jury had found defendant not guilty of kidnapping due to duress (it did not), it could not have found that he killed during the commission of that kidnapping. Defendant could not have killed during the perpetration of a crime of which he was innocent.
As another court explained: “An exception to the rule that duress is not available as a defense to murder is in felony murder cases, where one confederate is held responsible for a killing committed by his co-actor during the commission of the underlying felony. If the defendant participated in the underlying felony under threat of death or serious harm by his co-actor, and the co-actor kills another in the commission of the felony, duress excuses the defendant’s participation in the underlying felony and thereby excuses the defendant for the unintended killing committed by his co-actor.” (Pugliese v. Commonwealth (VA 1993) 428 SE2d 16, 26; State v. Dunn (KS 1988) 758 P2d 718, 725-26; see also LaFave & Scott, Substantive Criminal Law (West, 1986) §5.3(b), p. 618; but see State v. Ng (WA 1988) 750 P2d 632, 636 [duress not applicable to murder but special four-part defense to felony murder is applicable].)
This is so because “[i]t is compatible with the common law policy of duress that the defense should attach where the defendant consented, by duress, only to the commission of the lesser crime and not to the killing, and, at the time of his participation in the lesser felony, had reason to believe his life or the life of another was immediately in danger unless he participated.” (Tully v. State (OK 1986) 730 P2d 1206, 1210; see also State v. Hunter (KS 1987) 740 P2d 559, 568; People v. Serrano (IL 1997) 676 NE2d 1011, 1015 [if the defendant was compelled to commit this robbery, he should not be convicted of a murder that those who compelled him unexpectedly committed].) LaFave & Scott explain that ‘[t]he law properly recognizes that one is justified in aiding a robbery if he is forced by threats to do so to save his life; he should not lose the defense because his threateners unexpectedly kill someone in the course of the robbery and thus convert a mere robbery into a murder.’ [Citation.]” (LaFave, Scott, Substantive Criminal Law (West, 1986) §5.3(b), p. 618.)
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.
CALJIC NOTE: See FORECITE F 8.21j.
F 540A.7 Felony Murder: First Degree— Defendant Allegedly Committed Fatal Act—Preliminary Fact Issues [Reserved]
F 540A.8 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Unanimity/Duplicity/Multiplicity [Reserved]
F 540A.9 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—Lesser Offense Issues [Reserved]
