PRACTICE NOTE: When a defendant is charged with a felony murder but not the predicate underlying felony, “there is a requirement of proof beyond a reasonable doubt of the underlying felony” (People v. Hart (1999) 20 Cal.4th 546, 609) and “…the defendant is entitled, upon request, to a specific instruction on the necessity of proving the underlying felony beyond a reasonable doubt even though a general instruction on reasonable doubt has been given.[Citations].” (People v. Whitehorn (1963) 60 Cal.2d 256, 264; see also People v. Berryman (1993) 6 Cal.4th 1048, 1085; People v. Granados (1957) 49 Cal.2d 490, 495-96; People v. Huynh (2013) 212 Cal.App.4th 285, 306 [“The elements of the particular felony must be proved and the defendant is entitled, on request, to a specific instruction on the necessity of proving the underlying felony beyond a reasonable doubt. [Citation]”].)
Furthermore, a defense to the underlying felony is also a defense to the felony murder allegation. Therefore, instruction upon such defenses should be given. For example, it has been held that the court should instruct “as to the necessity for the concurrence of act and intent, or the availability of the defenses of diminished capacity and voluntary intoxication for the underlying felony.” People v Mickey (1991) 54 C3d 612, 675-77 [felony murder charged as death eligibility special circumstance].)
