Section 3261 | CALCRIM (Jury Instructions)

540A. Felony Murder: First Degree—Defendant Allegedly
Committed Fatal Act (Pen. Code, § 189)
The defendant is charged [in Count
] with murder, under a
theory of first degree felony murder.
To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that:
1. The defendant committed [or attempted to commit]
<insert felony or felonies from Pen. Code, § 189>;
2. The defendant intended to commit
<insert felony or
felonies from Pen. Code, § 189>;
AND
3. While committing [or attempting to commit]
<insert
felony or felonies from Pen. Code, § 189>, the defendant personally
committed (an/the) act[s] that directly caused the death of
another person.
A person [who was the actual killer] may be guilty of felony murder
even if the killing was unintentional, accidental, or negligent.
To decide whether the defendant committed [or attempted to commit]
<insert felony or felonies from Pen. Code, § 189>, please
refer to the separate instructions that I (will give/have given) you on
(that/those) crime[s]. You must apply those instructions when you decide
whether the People have proved first degree murder under a theory of
felony murder.
<Make certain that all appropriate instructions on all underlying felonies are
given.>
[The defendant must have intended to commit the (felony/felonies) of
<insert felony or felonies from Pen. Code, § 189> before or at
the time that (he/she) caused the death.]
<If the facts raise an issue whether the commission of the felony continued
while a defendant was fleeing the scene, give the following sentence instead
of CALCRIM No. 3261, While Committing a Felony: Defined—Escape
Rule.>
[The crime of
<insert felony or felonies from Pen. Code,
§ 189> continues until a defendant has reached a place of temporary
safety.]
[It is not required that the person die immediately, as long as the act[s]
causing death occurred while the defendant was committing the (felony/
felonies).]
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
enhancement. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348,
147 L.Ed.2d 435].)
The court should give the bracketed definition of “firearm” unless the court has
already given the definition in other instructions. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
When two or more defendants are charged with an arming enhancement for the
same offense, the preferred approach is for the court to provide the jury with a
separate verdict form for the enhancement for each defendant. (People v. Paul
(1998) 18 Cal.4th 698, 708 [76 Cal.Rptr.2d 660, 958 P.2d 412].) However, this
procedure is not required. (Id. at p. 705.)
In the definition of “armed,” the court may give the bracketed phrase “or has a
firearm available” on request if the evidence shows that the firearm was at the scene
of the alleged crime and “available to the defendant to use in furtherance of the
und