Is the Erroneous Failure to Instruct on Malice Murder Always Harmless Error When the Jury Finds the Defendant Guilty of First Degree Murder?
August 5th, 2016

People v. Campbell (2015) 233 CA4th 148, suggested that a jury’s guilty verdict on felony murder and its true finding on a robbery special circumstance allegation do not render the failure to instruct on LIOs of malice murder harmless under Watson:

While in the present case we are not dealing with the failure to give a lesser included on the underlying felony charge, the analysis is substantially the same. In Ramkeesoon [People v. Ramkeesoon (1985) 39 C3d 346] and here, there was substantial evidence that the underlying felony was not committed. In Ramkeesoon, it was the after-formed intent; here, it is whether Fort had the intent to aid and abet the robbery. In both cases, it is clear that the defendant killed another person. Because the Ramkeesoon court assumed for purposes of the appeal that the murder conviction was based on felony murder, the only way the jury in that case and in the present case could convict the defendant of the homicide was to find that the underlying felony had been committed by the defendant. As in Ramkeesoon, the jury here was left with an “‘unwarranted all-or-nothing choice.’” (People v. Ramkeesoon, supra, 39 C3d at p. 352.)

However, People v. Gonzalez (2016) 246 CA4th 1358, disagreed with Campbell.

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