SERIES 500 HOMICIDE
F 541B Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act
TABLE OF CONTENTS
F 541B.1 Titles And Identification Of Parties
F 541B.1 Inst 1 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Title
F 541B.1 Inst 2 Identification Of Prosecution And Defendant
F 541B.2 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Tailoring To Facts: Persons, Places, Things And Theories
F 541B.2 Inst 1 Specification Of Alleged Victims
F 541B.2 Inst 2 Deletion Of Argumentative, Duplicative And Non Case-Specific—Language
F 541B.3 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Language That Is Argumentative, Confusing, Etc.
F 541B.3 Inst 1 Deletion Of Argumentative And Duplicative Language
F 541B.3 Inst 2 Jury Not Required To Decide
F 541B.4 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Burden Of Proof Issues
F 541B.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 541B.4 Inst 2 Element 3: Modification Of Burden Shifting Language; Separate Enumeration Of Combined Elements
F 541B.5 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Elements And Definitions
F 540B.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
F 541B.5 Inst 2 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
F 541B.6 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Defense Theories
F 540B.6 Inst 1 Felony Murder: Defense Theory That Neither Defendant No Co-Participant Committed The Fatal Act
F 541B.7 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Preliminary Fact Issues [Reserved]
F 541B.8 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Unanimity/ Duplicity/ Multiplicity [Reserved]
F 541B.9 Felony Murder: Second Degree—Co-participant Allegedly Committed Fatal Act—Lesser Offense Issues [Reserved]
Return to Series 500 Table of Contents.
F 541B.1 Titles And Identification Of Parties
F 541B.1 Inst 1 Felony Murder: Second Degree—Co-Participant 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 541B.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 541B.2 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Tailoring To Facts: Persons, Places, Things And Theories
541B.2 Inst 1 Specification Of Alleged Victims
*Modify CC 541B, 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 inherently dangerous felony or felonies> upon __________________<name of alleged victim(s)>;
*Modify Element 4 as follows [added language is underlined; deleted language is stricken]:
4. The perpetrator did an act that caused the death of another person __________________<name of alleged victim(s)>.
Points and Authorities
See FORECITE F 540A.2 Inst 1.
F 541B.2 Inst 2 Deletion Of Argumentative, Duplicative And Non Case-Specific Language
*Delete 541B, paragraph 2, 4, 8 & 9
*Change all references to perpetrator as follows:
[Change A perpetrator” to “[_____________] [or] ____________ <insert name of alleged perpetrator>.” ]
Points and Authorities
See FORECITE F 540A.2 Inst 1.
F 541B.3 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Language That Is Argumentative, Confusing, Etc.
F 541B.3 Inst 1 Deletion Of Argumentative And Duplicative Language
*Modify CC 541B, paragraph 4 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 8 as follows [deleted language is stricken]:
[It is not required that the person killed be the (victim/intended victim) of the underlying (felony/felonies).]
Points and Authorities
See FORECITE F 540A.3 Inst 1.
F 541B.3 Inst 2 Jury Not Required To Decide
*Modify CC 541B, paragraph 4, sentence 1, and bracketed sentences 2 & 3 as follow [added language is underlined]:
In attempting to decide …
Points and Authorities
*Modify paragraph 4, last sentence as follows:
You must apply those instructions when you attempt to decide …
Points and Authorities
See FORECITE F 540A.3 Inst 2.
F 541B.4 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Burden Of Proof Issues
F 541B.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 541B.4 Inst 2 Element 3: Modification Of Burden Shifting Language; Separate Enumeration Of Combined Elements
*Replace 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 541B.5 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Elements And Definitions
F 540B.5 Inst 1 Felony Murder: Timing Of Intent To Commit Felony
*Modify CC 541B, by deleting paragraph 6 and adding it as Element 7 as follows [added language is underlined]:
7. [The defendant must have (intended to commit[,]/ [or] aid and abet[,]/ [or] been a member of a conspiracy to commit) the (felony/felonies) of __________ <insert inherently dangerous felony or felonies> before or at the time of the act causing the death.]
Points and Authorities
See FORECITE F 540A.5 Inst 1.
F 541B.5 Inst 2 Specification Of Predicate Offense Elements Which Must Be Proven Beyond A Reasonable Doubt
*Replace CC 541B, 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 541B.6 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Defense Theories
F 540B.6 Inst 1 Felony Murder: Defense Theory That Neither Defendant No Co-Participant Committed The Fatal Act
*Add to CC 541B:
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 541B.7 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Preliminary Fact Issues [Reserved]
F 541B.8 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Unanimity/Duplicity/Multiplicity [Reserved]
F 541B.9 Felony Murder: Second Degree—Co-Participant Allegedly Committed Fatal Act—Lesser Offense Issues [Reserved]
