CALCRIM No. 541C. Felony Murder: Second Degree - Other Acts Allegedly Caused Death

Judicial Council of California Criminal Jury Instructions (2020 edition)

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Appendix to CALCRIM 541C

541C.Felony Murder: Second Degree - Other Acts Allegedly

Caused Death

The defendant is charged [in Count ] with murder, under a

theory of felony murder.

The defendant may be guilty of murder, under a theory of felony

murder, even if another person did the act that resulted in the death. I

will call the other person the perpetrator.

To prove that the defendant is guilty of second degree murder under this

theory, the People must prove that:

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>;

2. The defendant (intended to commit[,]/ [or] intended to aid and

abet the perpetrator in committing[,]/ [or] intended that one or

more of the members of the conspiracy commit)

<insert inherently dangerous felony or felonies>;

<Give element 3 if defendant did not personally commit or attempt

felony.>

[3. The perpetrator committed [or attempted to commit]

<insert inherently dangerous felony or felonies>;]

[AND]

(3/4). The commission [or attempted commission of] the

<insert inherently dangerous felony or felonies> caused the death of

another person.

A person may be guilty of felony murder even if the killing was

unintentional, accidental, or negligent.

To decide whether (the defendant/ [and] the perpetrator) committed [or

attempted to commit] <insert inherently dangerous felony or

felonies>, please refer to the separate instructions that I (will give/have

given) you on (that/those) crime[s]. [To decide whether the defendant

aided and abetted a crime, please refer to the separate instructions that I

(will give/have given) you on aiding and abetting.] [To decide whether

the defendant was a member of a conspiracy to commit a crime, please

refer to the separate instructions that I (will give/have given) you on

conspiracy.] You must apply those instructions when you decide whether

the People have proved second degree murder under a theory of felony

murder.

317

<Make certain that all appropriate instructions on all underlying felonies,

aiding and abetting, and conspiracy are given.>

[The defendant must have (intended to commit[,]/ [or] aided and

abetted[,]/ [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.]

[It is not required that the person die immediately, as long as the act

causing death occurred while the defendant was committing the (felony/

felonies).]

An act causes death if the death is the direct, natural, and probable

consequence of the act and the death would not have happened without

the act. A natural and probable consequence is one that a reasonable

person would know is likely to happen if nothing unusual intervenes. In

deciding whether a consequence is natural and probable, consider all the

circumstances established by the evidence.

[There may be more than one cause of death. An act causes death only if

it is a substantial factor in causing the death. A substantial factor is more

than a trivial or remote factor. However, it does not need to be the only

factor that causes the death.]

[It is not required that the person killed be the (victim/intended victim)

of the (felony/felonies).]

[It is not required that the defendant be present when the act causing

the death occurs.]

New January 2006; Revised August 2009, August 2013

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the

crime. The court also has a sua sponte duty to instruct on the elements of the

underlying felony. (People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481, 892

P.2d 1224].)

If causation is at issue, the court has a sua sponte duty to instruct on proximate

cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591 [35 Cal.Rptr.

401]; People v. Cervantes (2001) 26 Cal.4th 860, 865-874].) Because causation is

likely to be an issue in any case where this instruction is given, the committee has

included the paragraph that begins with “An act causes death if.” If there is

evidence of multiple potential causes, the court should also give the bracketed

paragraph that begins with “There may be more than one cause of death.” (People v.

Sanchez (2001) 26 Cal.4th 834, 845-849 [111 Cal.Rptr.2d 129, 29 P.3d 209]; People

v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135].)

CALCRIM No. 541C HOMICIDE

318

Insert the appropriate, nonassaultive, inherently dangerous felony or felonies in the

blanks provided in accordance with the Supreme Court’s ruling in People v. Chun

(2009) 45 Cal.4th 1172, 1199 [91 Cal.Rptr.3d 106, 203 P.3d 425] [when underlying

felony is assaultive in nature, felony merges with homicide and cannot be basis of a

felony-murder instruction].

If the prosecution’s theory is that the defendant committed or attempted to commit

the underlying felony, then select “committed [or attempted to commit]” in element

1 and “intended to commit” in element 2. In addition, in the paragraph that begins

with “To decide whether,” select “the defendant” in the first sentence. Give all

appropriate instructions on any underlying felonies with this instruction. The court

may need to modify the first sentence of an instruction on the underlying felony if

the defendant is not separately charged with that offense.

If the prosecution’s theory is that the defendant aided and abetted or conspired to

commit the felony, select one of these options in element 1 and the corresponding

intent requirement in element 2. Give bracketed element 3. Give the bracketed

sentence at the beginning of the instruction that begins with “The defendant may

[also] be guilty of murder.” In addition, in the paragraph that begins with “To

decide whether,” select “the perpetrator” in the first sentence. Give the second and/

or third bracketed sentences. Give all appropriate instructions on any underlying

felonies and on aiding and abetting and/or conspiracy with this instruction. The

court may need to modify the first sentence of an instruction on the underlying

felony if the defendant is not separately charged with that offense. The court may

also need to modify the instruction to state “the perpetrator committed,” rather than

“the defendant,” in the instructions on the underlying felony.

If there is evidence that the defendant did not form the intent to commit the felony

until after the homicide, or did not join the conspiracy or aid and abet the felony

until after the homicide, the defendant is entitled on request to an instruction

pinpointing this issue. (People v. Hudson (1955) 45 Cal.2d 121, 124-127 [287 P.2d

497]; People v. Silva (2001) 25 Cal.4th 345, 371 [106 Cal.Rptr.2d 93, 21 P.3d 769].)

Give the bracketed sentence that begins with “The defendant must have (intended to

commit.”

Give the bracketed sentence that begins with “It is not required that the person die

immediately” on request if relevant based on the evidence.

The felony-murder rule does not require that the person killed be the victim of the

underlying felony. (People v. Johnson (1972) 28 Cal.App.3d 653, 658 [104 Cal.Rptr.

807] [accomplice]; People v. Welch (1972) 8 Cal.3d 106, 117-119 [104 Cal.Rptr.

217, 501 P.2d 225] [innocent bystander]; People v. Salas (1972) 7 Cal.3d 812, 823

[103 Cal.Rptr. 431, 500 P.2d 7] [police officer].) Give the bracketed sentence that

begins with “It is not required that the person killed be” on request.

Give the last bracketed sentence, stating that the defendant need not be present, on

request.

If the defendant was a nonkiller who fled, leaving behind an accomplice who killed,

HOMICIDE CALCRIM No. 541C

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see People v. Cavitt (2004) 33 Cal.4th 187, 206, fn. 7 [14 Cal.Rtpr.3d 281, 91 P.3d

222] [continuous transaction] and the discussion of Cavitt in People v. Wilkins

(2013) 56 Cal.4th 333, 344 [153 Cal.Rptr.3d 519, 295 P.3d 903].

There is no sua sponte duty to clarify the logical nexus between the felony and the

homicidal act. If an issue about the logical nexus requirement arises, the court may

give the following language:

There must be a logical connection between the cause of death and the

<insert inherently dangerous felony or felonies> [or attempted

<insert inherently dangerous felony or felonies>]. The

connection between the cause of death and the <insert

inherently dangerous felony or felonies> [or attempted <insert

inherently dangerous felony or felonies>] must involve more than just their

occurrence at the same time and place.]

People v. Cavitt (2004) 33 Cal.4th 187, 203-204 [14 Cal.Rtpr.3d 281, 91 P.3d 222];

People v. Wilkins (2013) 56 Cal.4th 333, 347 [153 Cal.Rptr.3d 519, 295 P.3d 903].

If the prosecutor is proceeding under both malice and felony-murder theories, give

CALCRIM No. 548, Murder: Alternative Theories. If the prosecutor is relying only

on a theory of felony murder, no instruction on malice should be given. (See People

v. Cain (1995) 10 Cal.4th 1, 35-37 [40 Cal.Rptr.2d 481, 892 P.2d 1224] [error to

instruct on malice when felony murder only theory].)

Related Instructions - Other Causes of Death

This instruction should be used only when the alleged victim dies during the course

of the felony as a result of a heart attack, fire, or a similar cause rather than as a

result of some act of force or violence committed against the victim by one of the

participants in the felony. (Cf. People v. Billa (2003) 31 Cal.4th 1064, 1072 [6

Cal.Rptr.3d 425, 79 P.3d 542] [arson causing death of accomplice]; People v. Stamp

(1969) 2 Cal.App.3d 203, 209-211 [82 Cal.Rptr. 598] [heart attack caused by

robbery]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]

[same]; but see People v. Gunnerson (1977) 74 Cal.App.3d 370, 378-381 [141

Cal.Rptr. 488] [a simultaneous or coincidental death is not a killing].)

See the Bench Notes to CALCRIM No. 541B, Felony Murder: Second

Degree - Defendant Allegedly Committed Fatal Act for a discussion of other

instructions to use if the evidence indicates a person committed an act of force or

violence causing the death.

AUTHORITY

• Inherently Dangerous Felonies. People v. Satchell (1971) 6 Cal.3d 28, 33-41

[98 Cal.Rptr. 33, 489 P.2d 1361], overruled on other grounds in People v. Flood

(1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v.

Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1], overruled on other

grounds in People v. Flood (1998) 18 Cal.4th 470, 484 [76 Cal.Rptr.2d 180, 957

P.2d 869]; People v. Patterson (1989) 49 Cal.3d 615, 622-625 [262 Cal.Rptr.

195, 778 P.2d 549].

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• Specific Intent to Commit Felony Required. People v. Gutierrez (2002) 28

Cal.4th 1083, 1140 [124 Cal.Rptr.2d 373, 52 P.3d 572].

• Infliction of Fatal Injury. People v. Alvarez (1996) 14 Cal.4th 155, 222-223 [58

Cal.Rptr.2d 385, 926 P.2d 365].

• Defendant Must Join Felonious Enterprise Before or During Killing of Victim.

People v. Pulido (1997) 15 Cal.4th 713, 726 [63 Cal.Rptr.2d 625, 936 P.2d

1235].

• Death Caused by Felony but Not by Act of Force or Violence Against

Victim. People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79

P.3d 542] [arson causing death of accomplice]; People v. Stamp (1969) 2

Cal.App.3d 203, 209-211 [82 Cal.Rptr. 598] [heart attack caused by robbery];

People v. Hernandez (1985) 169 Cal.App.3d 282, 287 [215 Cal.Rptr. 166]

[same]; but see People v. Gunnerson (1977) 74 Cal.App.3d 370, 378-381 [141

Cal.Rptr. 488] [a simultaneous or coincidental death is not a killing].

• Merger Doctrine Applies if Elements of Crime Have Assaultive Aspect. People

v. Chun (2009) 45 Cal.4th 1172, 1199 [91 Cal.Rptr.3d 106, 203 P.3d 425].

LESSER INCLUDED OFFENSES

• Voluntary Manslaughter. Pen. Code, § 192(a).

• Involuntary Manslaughter. Pen. Code, § 192(b).

• Attempted Murder. Pen. Code, §§ 663, 189.

RELATED ISSUES

Accidental Death of Accomplice During Commission of Arson

In People v. Ferlin (1928) 203 Cal. 587, 596-597 [265 P. 230], the Supreme Court

held that an aider and abettor is not liable for the accidental death of an accomplice

to arson when (1) the defendant was neither present nor actively participating in the

arson when it was committed; (2) the accomplice acted alone in actually

perpetrating the arson; and (3) the accomplice killed only himself or herself and not

another person. More recently, the court stated,

We conclude that felony-murder liability for any death in the course of arson

attaches to all accomplices in the felony at least where, as here, one or more

surviving accomplices were present at the scene and active participants in the

crime. We need not decide here whether Ferlin was correct on its facts.

(People v. Billa (2003) 31 Cal.4th 1064, 1072 [6 Cal.Rptr.3d 425, 79 P.3d 542].)

See the Related Issues section of CALCRIM No. 540A, Felony Murder: First

Degree - Defendant Allegedly Committed Fatal Act; CALCRIM No. 540B, Felony

Murder: First Degree - Coparticipant Allegedly Committed Fatal Act; and 541A,

Felony Murder: Second Degree - Defendant Allegedly Committed Fatal Act.

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, § 190.

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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,

Challenges to Crimes, §§ 140.04, 140.10[3][b], Ch. 142, Crimes Against the Person,

§ 142.01[1][e], [2][b] (Matthew Bender).

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Page last updated October 2020

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