D.                                 FELONY MURDER Introduction to Felony-Murder Series

The Supreme Court recently reiterated that the analysis to be used in determining whether a defendant is liable for a death under the felony- murder rule depends in part on whether the defendant personally caused the death. (People v. Cavitt (2004) 33 Cal.4th 187, 193; see also People v. Billa (2003) 31 Cal.4th 1064, 1072.) Based on the reasoning of Cavitt, the committee has provided three separate instructions for both first and second degree felony murder. These instructions present the following options:

A.      Defendant Allegedly Committed Fatal Act

B.      Coparticipant Allegedly Committed Fatal Act

C.      Other Acts Allegedly Caused Death

For a simple case in which the defendant allegedly personally caused the death by committing a direct act of force or violence against the victim, the court may use an option A instruction. This option contains the least amount of bracketed material and requires the least amount of modification by the court.

In a case where the prosecution alleges that the defendant is a “nonkiller cofelon” liable under the felony-murder rule for a death caused by another participant in the felony, then the court must use an option B instruction. This option allows the court (1) to instruct that the defendant may have committed the underlying felony or may have aided and abetted or conspired to commit an underlying felony that actually was committed by a coparticipant; and (2) to instruct on the additional logical nexus required to show that a nonkiller is liable for a death caused by a cofelon. (People v. Cavitt, supra, 33 Cal.4th at p. 193.)

If the evidence indicates that either the defendant or a coparticipant may have committed the fatal act, the court should give both option A and option B instructions.

In addition, the committee has provided option C instructions to account for the unusual factual situations where a victim dies during the course of a felony as a result of a heart attack, a 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. (See People v. Billa, supra, 31 Cal.4th at p. 1072.) Each option C instruction states that “[t]he commission [or attempted commission of] the      <insert felony or felonies> caused the death of another

Introduction to Felony-Murder Series Page 281
Introduction to Felony-Murder Series Page 282