SERIES 500 HOMICIDE
F 540C Felony Murder: First Degree—Other Acts Allegedly Caused Death
TABLE OF CONTENTS
F 540C.1 Titles And Identification Of Parties
F 540C.1 Inst 1 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Title
F 540C.1 Inst 2 Identification Of Prosecution And Defendant
F 540C.2 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Tailoring To Facts: Persons, Places, Things And Theories
F 540C.2 Inst 1 Tailoring To Facts: Specific Of Alleged Victims
F 540C.2 Inst 2 Felony Murder Premised Solely On Conspiracy Membership: Killing Must Further Common Plan And Purpose
F 540C.3 Felony Murder: First Degree— Other Acts Allegedly Caused Death—Language That Is Argumentative, Confusing, Etc.
F 540C.3 Inst 1 Deletion Of Argumentative And Duplicative Language
F 540C.3 Inst 2 Jury Not Required To Decide
F 540C.4 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Burden Of Proof Issues
F 540C.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 540C.4 Inst 2 Element 3: Modification Of Burden Shifting Language; Separate Enumeration Of Combined Elements
F 540C.5 Felony Murder: First Degree— Other Acts Allegedly Caused Death—Elements And Definitions
#F_540C.5_Inst_1 Felony Murder: Timing Of Intent To Commit Felony
F 540C.5 Inst 2 2 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
F 540C.6 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Defense Theories
F 540C.6 Inst 1 Felony Murder: Defense Theory That Neither Defendant No Coparticipant Committed The Fatal Act
F 540C.6 Inst 2 Act During Felony Must Be Cause Of Death
F 540C.7 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Preliminary Fact Issues [Reserved]
F 540C.8 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Unanimity/ Duplicity/ Multiplicity [Reserved]
F 540C.9 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Lesser Offense Issues [Reserved]
F 540C NOTE
F 540C Note 1 Felony Murder: First Degree—Defendant Allegedly Committed Fatal Act—CALCRIM Cross References And Research Notes
Return to Series 500 Table of Contents.
F 540C.1 Titles And Identification Of Parties
F 540C.1 Inst 1 Felony Murder: First Degree—Other Acts Allegedly Caused Death— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 540C.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 540C.2 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Tailoring To Facts: Persons, Places, Things And Theories
F 540C.2 Inst 1 Tailoring To Facts: Specific Of Alleged Victims
*Modify CC 540C, Element 1 as follows [added language is underlined]:
1. The defendant (committed [or attempted to commit][,]/[or] aided and abetted[,]/ [or] was a member of a conspiracy to commit) __________ <insert felony or felonies from Pen. Code,§189> upon ___________________ <name of alleged victim>;
*Element 3/4:
(3/4). The commission [or attempted commission] of the __________ <insert felony or felonies from Pen. Code, §189> was a substantial factor in causing the death of another person ___________________ <name of alleged victim>;
Points and Authorities
See FORECITE F 820.2 Inst 1.
F 540C.2 Inst 2 Felony Murder Premised Solely On Conspiracy Membership: Killing Must Further Common Plan And Purpose
See FORECITE F 540B2. Inst 3.
F 540C.3 Felony Murder: First Degree—Other Acts Allegedly Caused Death—anguage That Is Argumentative, Confusing, Etc.
F 540C.3 Inst 1 Deletion Of Argumentative And Duplicative Language
*Modify CC 540C as follows:
*Delete 540B, paragraph 2, 4, 9 & 10
*Elements 2, Elements, and 4:
[Change “perpetrator” to ” [_____________] [or] ____________ <insert name of alleged perpetrator>” ]
Points and Authorities
Paragraph 2, sentence 1, paragraphs 4, 9 & 10: Duplicative of what is already conveyed by the elements of the charge; argumentative. (See FORECITE F 416.3 Inst 4.)
Paragraph 2, sentence 2: Use of the term “perpetrator” is not case-specific. (See FORECITE F 400.2 Inst 1.)
F 540C.3 Inst 2 Jury Not Required To Decide
*Modify CC 540CA, paragraph 5, sentence 1, as follow [added language is underlined]:
In attempting to decide …
*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 540C.4 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Burden Of Proof Issues
F 540C.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 540C.4 Inst 2 Element 3: Modification Of Burden Shifting Language; Separate Enumeration Of Combined Elements
*Replace CC 540C Element 3 with the following:
If any juror has a reasonable doubt that the defendant personally [committed] [or] [attempted to commit] ________________ <insert PC 189 felony>, then such juror must find beyond a reasonable doubt that:
A. ____________ <insert name of alleged perpetrator> personally [committed] [or] [attempted to commit] ____________________;
AND
B. [The defendant aided and abetted _______________<insert ______________> in [committing] [or] [attempting to commit] the __________________ <insert ______________>.]
C. [The defendant conspired with _______________<insert ______________> to [commit] [or] [attempt to commit] the _______________<insert ______________>.]
Points and Authorities
See FORECITE F 540B.4 Inst 2.
F 540C.5 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Elements And Definitions
F 540C.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
*Modify CC 540C, by deleting paragraph 8 and adding it as an Element [added language is underlined]:
[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
See FORECITE F 540A.5 Inst 1.
F 540C.5 Inst 2 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
*Replace CC 540C, paragraph 5, 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>, 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
See FORECITE F 540A.5 Inst 3.
F 540C.6 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Defense Theories
F 540C.6 Inst 1 Felony Murder: Defense Theory That Neither Defendant Nor Co-Participant Committed The Fatal Act
*Add to CC 540B:
To prove the defendant guilty based upon the theory of felony murder set forth in this instruction, the prosecution must prove beyond a reasonable doubt that [the defendant] [or] [_________________ <name of co-participant>] [attempted to have committed the fatal act] [committed the fatal act which caused the death of _________________ <name of decedent>. The defense contends that ________________ <name of third party> committed the fatal act. However, the defense does not need to prove this contention. The prosecution has the burden of disproving it. If, after consideration of all the evidence, any juror is not sure beyond a reasonable doubt that [either] [the defendant] [or] [_____________ <name>] committed the fatal act, that juror must vote not to convict the defendant of murder based on the theory of felony murder.
Points and Authorities
See FORECITE F 540B.6 Inst 1.
F 540C.6 Inst 2 Act During Felony Must Be Cause Of Death
*Modify CC 540 CC, Element 3/4 as follows [added language is underlined; deleted language is stricken]:
(3/4). An act committed during the commission [or attempted commission] of the __________ <insert felony or felonies from Pen. Code, §189> was a substantial factor in causing caused the death of another person ________________<name of decedent>;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Act vs. Felony—The language of CC 540C, Element 3/4, does not correlate with the rest of the instruction. Element 3/4 speaks in terms of the “commission of the felony” as causing death. However, the other elements refer “an act” as the cause of death. (See Element 4/5 and 5/6; see also CC 540A and 540B.)
Substantial Factor—Because causation is defined elsewhere, the “substantial factor” language in CC 540C, Element 3/4, is surplusage and could mislead or confuse the jurors. (Compare CC 540B, 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 540C.7 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Preliminary Fact Issues [Reserved]
F 540C.8 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Unanimity/Duplicity/Multiplicity [Reserved]
F 540C.9 Felony Murder: First Degree—Other Acts Allegedly Caused Death—Lesser Offense Issues [Reserved]
F 540C Note
F 540C Note 1 Felony Murder: First Degree – Defendant Allegedly Committed Fatal Act – CALCRIM Cross References And Research Notes
See FORECITE F 540A Notes.
