PEOPLE v. RICKS

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Wayne RICKS, Defendant and Appellant,

No. B017709.

Decided: February 25, 1988

Anson and Milberg, and Jonathan Milberg, Los Angeles, for defendant and appellant. Ephraim Margolin, San Francisco, and Bradford L. Battson, Los Angeles, for Crim. Justice, as amici curiae on behalf of defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Robert R. Anderson and Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent. Kent S. Scheidegger, Sacramento, and Lon D. Hamburger, Jackson, Crim. Justice Legal Foundation, as amici curiae on behalf of plaintiff and respondent.

Defendant, Jeffrey Wayne Ricks, was charged in the information with one count of murder (Pen.Code § 187,1 count I) and one count of robbery (§ 211, count II).   As to count I, a special circumstance within the meaning of section 190.2, subd. (a)(17)(i) was alleged that the murder was committed while defendant was engaged in the commission, or attempted commission, of a robbery.   It was also alleged that in the commission of counts I and II the defendant personally used a firearm within the meaning of section 12022.5.

At the beginning of the jury trial, defendant made a motion that the prosecution be required to make an election between murder with malice aforethought and felony murder as to the murder charge.   The prosecution opposed the motion, claiming that the People were not required by law to make such an election.   The motion was denied by the trial court.

Defendant admitted committing the acts of robbing and shooting the victim but claimed diminished capacity.   At the close of trial, defendant requested CALJIC 2 instructions defining malice aforethought, second degree murder, manslaughter, and the absence of premeditation, deliberation, malice, or intent to kill due to diminished capacity.

However, because the prosecution requested instructions solely on the crime of first degree felony murder (§ 189) 3 the trial court refused to give the instructions requested by the defendant.   As a result, the jury was compelled either to acquit defendant outright or convict him of robbery and first degree felony murder.

Defendant was found guilty of robbery and first degree murder.   The jury found true the enhancement allegations accompanying each count that defendant personally used a firearm.   Having received the Carlos4 instruction that intent to kill was an element of the felony-murder special circumstances, coupled with the diminished capacity instruction as it pertains to the Carlos instruction, the jury was unable to reach a finding on the special circumstances allegations.

A second trial of the felony-murder special circumstances allegations resulted in another deadlocked jury.   The trial court dismissed the special circumstances allegation under section 1385, finding that there was no reasonable possibility that the People could prove it beyond a reasonable doubt.   Following the trial court's denial of the defendant's motion to reduce the degree of murder to second degree, pursuant to People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, he was sentenced to state prison for a total term of 27 years to life.   Defendant appeals from the judgment of conviction.

At issue on appeal are (1) whether the defendant was convicted of a crime not fairly charged in the accusatory pleading, (2) whether the trial court prejudicially refused to give jury instructions requested by the defendant, (3) whether the trial court erroneously allowed the prosecution to introduce highly prejudicial evidence of defendant's gang affiliation, and (4) whether the trial court abused its discretion in denying defendant's Dillon motion to reduce the degree of the murder.

FACTUAL AND PROCEDURAL BACKGROUND

It is unnecessary to set forth a detailed statement of the facts in this case, since the sufficiency of the evidence is not being challenged.   Nonetheless, the facts are not complicated and are essentially undisputed.   During the early evening of July 19, 1981, at approximately 5:30 p.m., defendant and several other individuals were in an abandoned house known as the “shack” located in Los Angeles on 60th street near Figueroa Street, drinking beer and smoking PCP-laced cigarettes.

After the group ran out of beer, the defendant decided to go and purchase some more but realized that he did not have sufficient funds.   Meanwhile an ice cream truck vendor had stopped on 60th street to serve some customers.   Defendant announced in the shack that he “was going to rob the ice cream truck.”   Defendant left the shack and went to the ice cream vendor while the others in the shack went on the porch to watch.   Defendant pointed a handgun at the vendor, told him “this is a hold-up,” took his money, and began to walk away.   For no apparent reason, defendant then turned and shot the vendor twice, killing him in front of approximately 30 witnesses, many of whom knew defendant.

Before the selection of the jury, as previously noted, the defendant made a motion that the People be required to make an election between murder with malice aforethought and felony murder as to the murder charge.   The prosecutor opposed the motion, arguing that the law did not require such an election.   The court denied the motion.

Despite this, from the tenor of prosecutor's opening statement to the jury, it appeared that the People were planning to proceed against the defendant on both first degree premeditated murder with malice aforethought and first degree felony murder.   In addition to telling the jury that the People intended to prove that the defendant is guilty of first degree felony murder, the prosecutor also told the jury that the evidence would establish that, when the defendant shot the victim twice, he intended to eliminate him as a witness to the robbery.

At trial, defendant admitted that he committed the acts of robbing and shooting the victim, but presented a defense of diminished capacity 5 due to below normal intelligence, use of PCP, and alcohol intoxication.   His trial strategy was to create a reasonable doubt about the existence of the specific mental state essential to the commission of the offenses, including the existence of malice aforethought.   Although he did not testify, he offered the testimony of several witnesses about his consumption of beer and use of PCP-laced cigarettes while he was in the shack.   He also presented two expert witnesses on the question of his mental state at the time of the offenses.

At the close of trial, defendant, citing People v. Geiger (1984) 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303 and People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342, requested that the jury be instructed on malice aforethought, second degree murder, manslaughter, and absence of malice, premeditation, and intent to kill due to diminished capacity.   The trial court refused to give the defendant's requested instructions.   Instead, the trial court instructed the jury as requested by the prosecution on felony murder only.

Among other instructions, the trial court instructed the jury that defendant is charged in Count I of the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code, and that the crime of murder “is the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.”   The court further told the jury that robbery is a felony inherently dangerous to human life.   The court also informed the jury that, in the crime of murder of which the defendant is accused in Count I of the information, a necessary element is the existence in the mind of the defendant of the specific intent to commit the crime of robbery.

In connection with the defense of diminished capacity, the court informed the jury that it should not find defendant guilty of either robbery or murder if it determined from all the evidence that the specific intent to commit the offense of robbery was rebutted by evidence of the defendant's diminished capacity.

In argument to the jury, after the court had ruled that no instructions on malice aforethought, second degree murder, manslaughter, and the absence of premeditation, malice, and intent to kill due to diminished capacity would be given, defendant's counsel stressed that the defense wanted to give the jury a range of choices, but that, since the prosecutor elected to rely solely on the theory of felony murder, the jury was locked into a choice of either convicting the defendant of first degree felony murder or acquitting him.

After the case was submitted to the jury, the jury requested the court to answer the following questions:  “Once we've established the intent for the robbery, do we have to establish an intent for the murder?   Or does the felony murder rule allow us to disregard finding an intent for the murder?”

In answering the jury's questions, the court first read to the jury CALJIC Instructions Nos. 8.10 (1983 Revision, as modified) defining murder, 8.79 (1981 Revision) defining specific intent to commit underlying crime in felony murder, and 8.21 defining first degree felony-murder.   Next, the court told the jury that, to find the defendant guilty of the crime of murder, “it need not be shown that the defendant had the intent to murder anyone;  that is not a required element.”

The jury found defendant guilty of robbery and first degree murder.6  It also found true the use allegations, but was unable to agree on the felony-murder special circumstances allegation.   The court declared a mistrial on the felony-murder special circumstances, and set the matter for trial.   The second jury trial on the felony-murder special circumstances resulted in another deadlocked jury.   The trial court then dismissed the felony murder special circumstances allegation pursuant to section 1385.

DISCUSSION

The two principal issues on appeal are whether the defendant was convicted of a crime not fairly charged in the accusatory pleading and whether the trial court prejudicially refused to give jury instructions requested by the defendant.   In order to properly understand these issues, we must first examine the felony-murder doctrine and its development and application in California since the enactment of the Penal Code in 1872.

A. Felony–Murder Doctrine In California

Historically, the felony-murder doctrine has cast two separate, different, and distinct substantive profiles in California.   The statutory framework, which has defined and determined the contours of each concept, has been sections 187, 188, and 189, enacted in 1872.   As previously noted, section 187 defines the crime of murder in California as the unlawful killing of a human being, with malice aforethought.   The definition of malice aforethought is found in section 188, which provides that such malice may be express or implied.   Express malice is “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.”   Implied malice is “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”   Section 189 defines murder in the first degree, classifying all other murders as second degree.

1. Felony Murder As Governed by Section 187

In 1904, the first substantive profile of the felony-murder rule under the above statutory framework appeared in the case law.  (People v. Milton (1904) 145 Cal. 169, 170–172, 78 P. 549.)   As fully developed, it simply provided that when a homicide results from a defendant's commission of, or attempt to commit, a felony inherently dangerous to human life, malice aforethought is presumed from the commission of, or attempt to commit, the underlying felony, thus making the homicide a murder within the meaning of section 187.  (See People v. Ketchel (1969) 71 Cal.2d 635, 641–642, 79 Cal.Rptr. 92, 456 P.2d 660.)   Hence, this profile was built essentially on the notion that there is only one crime of murder in California, which is defined by section 187.

For example, after recognizing that the concept of murder contained in section 187 consists of two elements, namely the unlawful killing of a human being and that the the commission of the killing be done with malice aforethought, the Milton court held that both elements are present in the context of felony murder.  (145 Cal. at pp. 171–172, 78 P. 549.)   In explaining the law to the defendant, the court stated:  “The murder, under section 187 of the Penal Code, is established, in that the killing is unlawful, it having been perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime you are attempting to commit.”   (Ibid.)

After its initial development and application in Milton, this substantive concept of felony murder was applied in several early cases, thus essentially settling the question of malice as required by section 187.7  (See, e.g., People v. Witt (1915) 170 Cal. 104, 107, 148 P. 928;  People v. Hadley (1917) 175 Cal. 118, 122, 165 P. 442;  and People v. Denman (1918) 179 Cal. 497, 499, 177 P. 461.)   Later cases were concerned principally with refining the concept.  (See, e.g., People v. Coefield (1951) 37 Cal.2d 865, 868, 236 Cal.Rptr. 570;  People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892;  People v. Washington (1965) 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 402 P.2d 130;  People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6, 51 Cal.Rptr. 225, 414 P.2d 353;  People v. Ketchel, supra, 71 Cal.2d 635, 642, 79 Cal.Rptr. 92, 456 P.2d 660;  and People v. Burton (1971) 6 Cal.3d 375, 385, 99 Cal.Rptr. 1, 491 P.2d 793.)

In Ketchel, for example, where the prosecution advanced a felony-murder theory based on a robbery and killing, the defendants argued that, since murder is defined in section 187 as an unlawful killing with malice aforethought, the prosecution must therefore prove that the defendants harbored malice, not merely that they possessed the specific intent to commit robbery.   In rejecting this argument, the Supreme Court stated:  “ ‘[W]hen one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime, and the law fixes upon the offender the intent which makes any killing the perpetration of or attempt to perpetrate the robbery a murder of the first degree.’  (Citations.)  In short, the law presumes malice aforethought on the basis of the commission of the felony.”  (71 Cal.2d at p. 642, 79 Cal.Rptr. 92, 456 P.2d 660;  emphasis added.)

Similarly, in People v. Washington, supra, 62 Cal.2d at p. 780, 44 Cal.Rptr. 442, 402 P.2d 130, the Supreme Court stated:  “ ‘Murder is the unlawful killing of a human being, with malice aforethought.’  [Citation.]  ․ The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony.”

Another important principle was also present in Milton.   In analyzing section 189, the degree-fixing statute, the court determined that this section contained two distinct theories of first degree murder, namely, premeditation and felony murder.  (Id., 145 Cal. at pp. 170–171, 78 P. 549.)   This principle would later play an important role in the application of the Milton substantive concept of the felony-murder rule.  (See, e.g., People v. Chavez (1951) 37 Cal.2d 656, 670–672, 234 P.2d 632.)

In 1914, a rule of pleading murder was judicially declared to implement the Milton concept of felony murder.  (People v. Witt, supra, 170 Cal. 104, 148 P. 928.)   In substance, it provided that a jury may be instructed on felony murder and the defendant convicted thereof, even though the accusatory pleading merely charged murder with malice aforethought in the language of section 187.  (Id., at pp. 107–108, 148 P. 928.)

In Witt, the information had charged the defendant with the crime of murder as follows:  That the defendant “on the 22nd day of December, 1914, at and in the county of Los Angeles, state of California, did willfully, unlawfully, feloniously and with malice aforethought, kill and murder one William M. Alexander, a human being.”  (Witt, supra, at p. 107, 148 P. 928.)

On appeal, the defendant, having been convicted of first degree felony murder, contended that the information did not sufficiently allege the kind of murder proved in the case.   After reviewing the Milton substantive concept of felony murder, the Witt court rejected defendant's contention, stating that it is sufficient to charge the offense of murder in the language of the statute defining it, whatever the circumstances of the particular case.  (Witt, supra, at pp. 107–108, 148 P. 928.)   In explaining this conclusion, the court stated:  “ ‘ “Murder is the unlawful killing of a human being with malice aforethought” (Pen.Code, sec. 187).   Murder, thus defined, includes murder in the first degree and murder in the second degree.   It has many times been decided by this court that it is sufficient to charge the offense committed in the language of the statute defining it.’ ”  (Witt, supra, at p. 108, 148 P. 928.)   The Witt rule of pleading murder has been followed in subsequent cases.  (See, e.g., People v. Golston (1962) 58 Cal.2d 535, 539, 25 Cal.Rptr. 83, 375 P.2d 51;  In re Walker (1974) 10 Cal.3d 764, 781, 112 Cal.Rptr. 177, 518 P.2d 1129.)8

From the time of its first appearance in 1904 under the above statutory framework, the Milton concept of the felony-murder rule, premised on the definition of murder in section 187, remained in force in California until 1983.

An instructive, chronological history of the Milton concept of the felony-murder rule in California is found in the several editions of CALJIC.   Both the original edition of CALJIC in 1946 and its subsequent 1958 edition, for example, provided that the jury instruction defining murder and malice aforethought, set forth in the margin, should precede the giving of jury instructions on felony murder.9

After the decision in People v. Washington, supra, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, as to what constitutes “implied malice,” CALJIC No. 301 defining murder and malice aforethought was revised in the 1967 supplement to the 1958 edition of CALJIC.   It provided, after defining murder, malice aforethought, and express malice, that:  “Malice is implied (1) when the killing results from an act involving a high degree of probability that it will result in death, which act is intentionally done for a base, antisocial motive and with wanton disregard for human life;  or (2) when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.  [¶] The term “malice” does not necessarily imply a pre-existing hatred or enmity toward the person killed.”  (Emphasis added.)

The 1970 third edition of CALJIC placed the definition of murder under CALJIC No. 8.10, which provided:  “Murder is the unlawful killing of a human being, with malice aforethought.”   The jury instruction defining malice aforethought was revised and placed under CALJIC No. 8.11, which included, inter alia, the above italicized language of revised CALJIC No. 301.

Moreover, the above italicized language was also continued in both the 1974 and 1979 revisions of CALJIC No. 8.11 defining malice aforethought.   It was not, however, included in the 1983 revision of CALJIC No. 8.11 as explained later.

Starting in 1965, another important development was taking place in the case law.   California courts began to recognize the substantial body of criticism levelled at the felony-murder doctrine, acknowledging that in almost all cases in which the felony-murder doctrine was applied, it was unnecessary and that it eroded the relation between criminal liability and moral culpability.   (People v. Washington, supra, 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 402 P.2d 130.)   This judicial recognition gave rise to a concern that the felony-murder doctrine not be extended beyond its rational function.  (Ibid.)  As a result of this continuing concern, the courts have refused to apply the doctrine in certain situations and “have sought to insure that the ‘highly artificial concept’ (citation) of strict criminal liability incorporate [sic] the felony-murder doctrine be given the narrowest possible application consistent with its ostensible purpose-which is to deter those engaged in felonies from killing negligently or accidentally (citation).”  (People v. Satchell (1971) 6 Cal.3d 28, 34, 98 Cal.Rptr. 33, 489 P.2d 1361.)   Thus, the doctrine's field of application has been considerably narrowed.10

2. Felony Murder As Governed by Section 189

In 1983, despite the widespread criticism of the doctrine and the limitations placed on its application by case law, the felony-murder rule demonstrated its resiliency by casting itself in yet another substantive profile.   While as we have indicated, section 189 had previously been consistently interpreted as a degree-setting statute, in People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the California Supreme Court attributed an entirely new meaning to the provision—it interpreted the statute as a codification of the felony-murder rule.  (Id., at p. 465, 194 Cal.Rptr. 390, 668 P.2d 697.)   Under this concept, the elements of felony murder are simply the intentional commission of a felony inherently dangerous to human life and the killing of a human being in the course thereof.   Thus, “malice aforethought” is not an element of murder under the felony-murder doctrine.   (Id., at p. 475, 194 Cal.Rptr. 390, 668 P.2d 697.)

More importantly, however, in comparing premeditated murder with malice aforethought (§§ 187, 189) and first degree felony murder (§ 189), the court held that, since malice is not an element of felony murder, the two kinds of murder in this state are not the “same” crimes.  (Dillon, supra, 34 Cal.3d at p. 476, fn. 23, 194 Cal.Rptr. 390, 668 P.2d 697.)   Moreover, in the case of first degree premeditated murder with malice aforethought, “the defendant's state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt;  in the case of first degree felony murder it is entirely irrelevant and need not be proved at all.”  (Id., at p. 477, fn. omitted, 194 Cal.Rptr. 390, 668 P.2d 697.)11

Hence, it would appear that Dillon, as explained later, has completely undermined the ratio decidendi of the Witt line of cases.

In order to appreciate the full impact of Dillon, we must closely examine the defendant's two-fold attack in Dillon on the first degree felony-murder rule.   He first contended that the first degree felony-murder rule in California is an uncodified common law rule that should be abolished.   After an exhaustive review of the legislative history of section 189 and the felony murder doctrine in California, the court rejected this contention, deciding that the first degree felony-murder rule in this state is a statutory creation, embodied in section 189.  (Id., at p. 463, 194 Cal.Rptr. 390, 668 P.2d 697.)

The defendant in Dillon next contended that if section 189 codifies the first degree felony-murder rule, the statute is unconstitutional in that the rule violates due process of law in two respects.   First, quoting from In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, he urged that “Due Process protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”  (Dillon, supra, 34 Cal.3d at p. 472, 194 Cal.Rptr. 390, 668 P.2d 697)  Next, relying on Mullaney v. Wilbur (1975) 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 50812 and Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39,13 he reasoned that, because malice aforethought is an element of the crime of murder as defined in section 187, Winship requires the People to prove malice beyond a reasonable doubt in every murder prosecution.   However, when such a prosecution is conducted on a theory of felony murder, the felony-murder rule relieves the People of this burden of proof because it raises a “presumption” of malice from the defendant's intent to commit the underlying felony.   In rejecting this contention, the Dillon court determined that “malice aforethought” is not an element of murder under the felony-murder doctrine and, therefore, concluded that the felony-murder doctrine in California does not violate the due process clause as construed in Mullaney or Sandstrom.  (Dillon, supra, 34 Cal.3d at pp. 475–476, 194 Cal.Rptr. 390, 668 P.2d 697)

Apparently, this new substantive profile of the felony-murder rule was a child of necessity to avoid the constitutional challenge.  (See Roth & Sundby, The Felony–Murder Rule:  A Doctrine At Constitutional Crossroads (1985) 70 Cornell L. Review 446, 470, fn. 145)

B. Fair Notice of The Felony–Murder Charge

In light of the above history of the felony-murder doctrine in California, the question which we must first address is whether the defendant in the instant case was convicted of a crime not fairly charged in the accusatory pleading.

 It is fundamental that “When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.  [Citations.]  This reasoning rests upon a constitutional basis:  ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’  [Citation.]”  (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409;  see also People v. Lohbauer (1981) 29 Cal.3d 364, 368, 173 Cal.Rptr. 453, 627 P.2d 183;  In re Hess (1955) 45 Cal.2d 171, 174–175, 288 P.2d 5.)

Since the accusatory pleading here is partially similar to the one in People v. Witt, supra, 170 Cal. 104, 148 P. 928,—where the court held that a jury may be instructed on felony murder and the defendant convicted thereof, even though the information merely charged murder with malice in the language of section 187,—our initial task today is to assess the continuing vitality of Witt in light of the developed concept of felony murder in Dillon.   It is an established rule of law that a later decision overrules prior decisions which conflict with it, whether such prior decisions are mentioned and commented upon or not.  (In re Lane (1962) 58 Cal.2d 99, 105, 22 Cal.Rptr. 857, 372 P.2d 897.)

The fundamental underpinning of Witt is that there was only one crime of murder in California, which was defined in section 187.  (Witt, supra, 170 Cal. at pp. 107–108, 148 P. 928.)   The Witt court reached this conclusion by adhering to the reasoning of Milton,—namely that malice aforethought is presumed from the commission of the underlying felony and, therefore, felony murder falls within the purview of section 187.   The Witt court moreover used this premise for the proposition that a jury may be instructed on felony murder where the information merely charges murder with malice.

Dillon—holding that murder with malice and felony murder, the two kinds of murder in this state, are not the “same” crimes—appears, however, to have completely undermined the ratio decidendi of Witt and its progeny despite the simplified pleading of murder ushered in by the 1927 and 1929 amendments of those statutes.

Where an information charges only murder with malice, as in Witt, and where the particular circumstances of the offense as reflected in the preliminary hearing transcript show implied malice (see, e.g., People v. Washington, supra, 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130), it would appear that the prosecution has made an election to prosecute the accused for murder with malice only, since murder with malice is included within the culpability range of the felony-murder rule.  (Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697).   In such a situation, it would appear that an accused could only be convicted of murder with malice aforethought or a lesser included offense, but not felony murder, since felony murder was not specifically charged against him in the information, nor necessarily included within the charged offense of murder with malice.  (See, e.g., In re Hess, supra, 45 Cal.2d 171, 174, 288 P.2d 5;  People v. Wilson (1969) 271 Cal.App.2d 60, 76, 76 Cal.Rptr. 195;  People v. Lohbauer, supra, 29 Cal.3d at pp. 368–369, 173 Cal.Rptr. 453, 627 P.2d 183.)   In fact, due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise.  (People v. Lohbauer, supra, 29 Cal.3d at pp. 367–368, 173 Cal.Rptr. 453, 627 P.2d 183.)

Thus, it would appear that, in logic and law, Dillon has sub silentio undermined the rule of pleading set forth in Witt.   It is an established principle “that the authority of an older case may be as effectively dissipated by a later trend of decision as by a statement expressly overruling it.”   (Sei Fujii v. State of California (1952) 38 Cal.2d 718, 728, 242 P.2d 617.)   We realize that, in making such an observation, we have done expressly what we feel our Supreme Court has done by indirection.   Yet we feel safe that our position is sound.14

 Nonetheless, we conclude that the defendant here was convicted of a crime fairly charged in the accusatory pleading.   Unlike Witt, the defendant here, in addition to being charged with the crime of murder in violation of section 187 in that he did “willfully, unlawfully, and with malice aforethought, murder Reza Fathollahi, a human being,” was also charged with robbery of the same victim.   Looking at the specific language of the accusatory pleading as a yardstick, we conclude that, because the information charged defendant with robbing and killing the same victim, the two elements of felony-murder under Dillon, he was put on notice that he should be prepared not only to defend against murder with malice but also felony murder.  (See People v. Marshall (1957) 48 Cal.2d 394, 405–406, 309 P.2d 456.)

C. Instructional Error

Next, we turn to the question of whether the trial court committed prejudicial error in refusing to give certain jury instructions requested by defendant.

 It is well established that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  (People v. Geiger (1984) 35 Cal.3d 510, 519, 199 Cal.Rptr. 45, 674 P.2d 1303;  People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311;  People v. Modesto (1963) 59 Cal.2d 722, 730, 31 Cal.Rptr. 225, 382 P.2d 330.)   This means that even in the absence of a request the jury must be instructed on the general principles of law closely and openly connected with the facts before the court (People v. St. Martin (1970) 1 Cal.3d 524, 531, 83 Cal.Rptr. 166, 463 P.2d 390) including the giving of instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present.  (People v. Wickersham, supra, 32 Cal.3d at p. 323, 185 Cal.Rptr. 436, 650 P.2d 311.)

“The fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts-not limited by the strategy, ignorance, or mistakes of the parties.   The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories.”   (Wickersham, supra, 32 Cal.3d at p. 324, 185 Cal.Rptr. 436, 650 P.2d 311.)

In this case, as previously noted, the defendant was charged in the information with murder with malice (§ 187) and felony murder (§ 189), each a different crime.   Notwithstanding this, the trial court instructed the jury with a modified version of the 1983 revision of CALJIC No. 8.10 defining murder only in terms of felony murder.

It read:  “Defendant is charged in Count 1 of the information with the commission of the crime of murder, a violation of Section 187 of the Penal Code.  [¶] The crime of murder is the unlawful killing of a human being which occurs during the commission or attempt to commit a felony inherently dangerous to human life.  [¶] In order to prove the commission of the crime of murder, each of the following elements must be proved:  [¶] 1. That a human being was killed, 2. That the killing was unlawful, and 3. That the killing occurred during the commission or attempt to commit a felony inherently dangerous to human life.   Robbery is a felony inherently dangerous to human life.”

 We conclude that the trial court committed error in failing to give the instructions, defining malice aforethought, second degree murder, manslaughter, and the absence of premeditation, deliberation, malice, or intent to kill due to diminished capacity, requested by defendants, since these instructions were “closely and openly connected with the facts before the court.”  (Wickersham, supra, 32 Cal.3d at p. 323, 185 Cal.Rptr. 436, 650 P.2d 311.)

 Where a defendant, like here, does an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life, malice may be properly implied and, therefore, he may be guilty of murder.  (See, e.g., People v. Washington, supra, 62 Cal.2d at p. 782, 44 Cal.Rptr. 442, 402 P.2d 130;  People v. Fuller (1978) 86 Cal.App.3d 618, 628, 150 Cal.Rptr. 515.)   Moreover, a charge of murder includes by implication a charge of the lesser degree of murder as well as voluntary and involuntary manslaughter.  (People v. Thomas (1987) 43 Cal.3d 818, 824, 239 Cal.Rptr. 307, 740 P.2d 419;  Stone v. Superior Court (1982) 31 Cal.3d 503, 517, 183 Cal.Rptr. 647, 646 P.2d 809.)   Furthermore, since the trial court was of the opinion that there was sufficient evidence of intoxication worthy of consideration by the jury in connection with the underlying felony, all appropriate instructions on diminished capacity in connection with the charge of murder with malice (§ 187) should have been given.  (See People v. Poddar (1974) 10 Cal.3d 750, 758, 111 Cal.Rptr. 910, 518 P.2d 342;  People v. Griffin (1971) 18 Cal.App.3d 864, 870, 96 Cal.Rptr. 218.)

 We next turn to the question of whether the instructional error is prejudicial.   An error in failing to instruct on lesser included (or related 15 ) offenses requires reversal unless it can be determined that the factual question posed by the omitted instructions was necessarily resolved adversely to the defendant under other, properly given instructions.  (People v. Ramkeesoon (1985) 39 Cal.3d 346, 351–352, 216 Cal.Rptr. 455, 702 P.2d 613;  People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913.)   Such error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.   (People v. Ramkeesoon, supra, 39 Cal.3d at p. 352, 216 Cal.Rptr. 455, 702 P.2d 613;  People v. Wickersham, supra, 32 Cal.3d at p. 335, 185 Cal.Rptr. 436, 650 P.2d 311.)

 In the present case, the jury was never presented with the factual question of defendant's state of mind with respect to the homicide posed by the instructions requested by defendant during its deliberations on the substantive crimes.   Rather, it dealt with this question in the context of the felony (robbery)-murder special circumstances after the defendant was convicted of murder and robbery.   It is unclear whether the jury's deliberations on the felony-murder special circumstances are helpful to us here, since they became necessary only after the defendant was convicted of the substantive crimes of robbery and first degree felony murder under the jury instruction (1984 revision of CALJIC No. 8.80) given by the trial court.   Still they do provide an open window into how the jury would have handled this question in the context of the instructions requested by the defendant.

Having received the Carlos instruction that intent to kill was an element of the felony-murder special circumstances, coupled with the diminished capacity instruction as it pertains to the Carlos instruction, two separate juries were unable to find that the defendant intended to kill the victim.   Since the jury was deprived of the “third option” of convicting defendant of a lesser offense, it cannot be said that a verdict finding defendant guilty of robbery and first degree felony murder necessarily resolved the issue posed by defendant's requested instructions adversely to him.  (See, e.g., People v. Ramkeesoon, supra, 39 Cal.3d 346, 352, 216 Cal.Rptr. 415, 702 P.2d 613;  People v. Griffin, supra, 18 Cal.App.3d 864, 870, 96 Cal.Rptr. 218)

The jury here was left with an “all-or-nothing choice.”   The omission of the instructions requested by defendant practically guaranteed his convictions of robbery and first degree felony murder since the defendant had admitted robbing and killing the victim, but offered the sole defense of diminished capacity with respect to the mens rea elements of robbery and murder.   We feel that, implicit in the defendant's unsuccessful request, made at the beginning of the trial, to force the prosecution to an election, was an effort on the defendant's part to prevent the prosecution from using the felony-murder rule to make defenses normally available in a homicide case, such as diminished capacity, practically irrelevant.

Despite this effort, the defendant's defense to the homicide, however, became meaningless when the prosecution requested, and the trial court agreed, to give instructions only on felony murder, since in the case of first degree felony murder the defendant's state of mind with respect to the homicide is irrelevant.  (See Dillon, supra, 34 Cal.3d at p. 477, 194 Cal.Rptr. 390, 668 P.2d 697.)   This left his defense only applicable to the underlying felony of robbery.   But such a defense is usually ineffective when so applied.   The felonies listed in section 189, such as robbery, have lower intent requirements than does murder.  (See Note, The California Supreme Court Assaults the Felony–Murder Rule, (1970) 22 Stanford L.Rev. 1059, 1062, fn. 21.)

More importantly, the defendant was exposed to the substantial risk that where a jury is faced with a “all-or-nothing” choice, as here, it is likely to resolve its doubt in favor of conviction.   This would be especially true where, as here, a defendant is plainly guilty of some offense, even though, as a theoretical matter, the jury could return a verdict of acquittal.  (People v. Geiger, supra, 35 Cal.3d 510, 518, 199 Cal.Rptr. 45, 674 P.2d 1303.)

 Thus, where the defense is that the defendant has committed an offense other than that on which the prosecution case is predicated, and he has presented evidence which if believed supports his theory, reliability in the factfinding process demands that the jury be instructed on that offense in order to afford the jury the “third option.”  (People v. Geiger, supra, 35 Cal.3d at p. 525, 199 Cal.Rptr. 45, 674 P.2d 1303.)

The importance of this principle is underscored by the questions posed by the jury to the trial judge after the case had been submitted to it.   These questions went to the heart of the instructions requested by defendant—the defendant's state of mind with respect to the homicide.   But the jury was told by the trial judge that, in order to find defendant guilty of the crime of murder, “it need not be shown that the defendant had the intent to murder anyone.”

Hence, the error in failing to give the instructions requested by defendant cannot be deemed harmless with respect to his conviction of murder.

The error however does not affect his conviction of robbery.   Here the trial court properly instructed the jury on the substantive crime of robbery and defendant's defense of diminished capacity.   Moreover, the defendant here, for example, may be convicted of the crime of robbery as well as ordinary second degree murder.  (See, e.g., People v. Fuller, supra, 86 Cal.App.3d 618, 628, 150 Cal.Rptr. 515.)

CONCLUSION

Because we conclude that the failure to give the instructions requested by defendant requires reversal of his conviction of murder, it is unnecessary to reach his claim that the trial court abused its discretion in denying his Dillon motion to reduce the degree of the murder.   His other claim that the trial court committed prejudicial error in allowing the prosecution to introduce evidence of his gang membership is without merit.  (See People v. Harris (1985) 175 Cal.App.3d 944, 957, 221 Cal.Rptr. 321.)

Accordingly, the judgment of conviction of defendant in count I, namely first degree murder, is reversed and remanded for further proceedings consistent with the views expressed herein.   The judgment of conviction of defendant in count II, namely robbery, is affirmed.

I concur in that portion of the majority opinion holding that defendant was put on notice that he should be prepared to defend against a charge of felony murder as well as murder with malice, and that he was convicted of a crime fairly charged in the accusatory pleading.   I also agree that at the conclusion of the case there remained for disposition two charges of first degree murder—murder with malice aforethought (§ 187, Pen.Code) as alleged in count I,1 and felony murder (§ 189, Pen.Code) for, under the circumstance of the prosecutor's failure to make an unequivocal election until the cause was ready for submission to the jury and make some disposition of count I, I am not prepared to say that the charge of murder with malice was properly removed from the jury's consideration.   Thus, inasmuch as the murder with malice count remained in the accusatory pleading notwithstanding the People's request for instructions solely on the charge of first degree felony murder, the refusal of defendant's requested instructions on murder with malice as charged in count I, defining malice aforethought, lesser included offenses of second degree murder, voluntary manslaughter and involuntary manslaughter and absence of premeditation, deliberation, malice or intent to kill due to diminished capacity, was error.

However, I respectfully dissent from that portion of the majority opinion calling for a reversal of the judgment of conviction of felony murder because of error in failing to instruct on count I (murder with malice).2  Having examined the remaining contentions of appellant and found them to be without merit, I would affirm the judgment.

On the state of the record here, it is my position that a failure to properly instruct on the one separate and independent count of murder with malice (count I) could have had no effect whatever on the conviction of the separate, distinct and independent charge of felony murder.

First, People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 teaches that murder with malice, as alleged in count I of the information, is a crime entirely different and separate from and independent of felony murder.   “[T]he two kinds of first degree murder in this state differ in a fundamental respect:  in the case of deliberate and premeditated murder with malice aforethought, the defendant's state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt;  in the case of first degree felony murder it is entirely irrelevant and need not be proved at all.   From this profound legal difference flows an equally significant factual distinction, to wit, that first degree felony murder encompasses a far wider range of individual culpability than deliberate and premeditated murder.   It includes not only the latter, but also a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident;  it embraces both calculated conduct and acts committed in panic or rage, or under the dominion of mental illness, drugs, or alcohol;  and it condemns alike consequences that are highly probable, conceivably possible, or wholly unforseeable.”  (Pp. 476–477, fn. omitted, 194 Cal.Rptr. 390, 668 P.2d 697.)

Second, the error here is the refusal to give the requested instructions on murder with malice (count I) defining malice aforethought, lesser included offenses and absence of intent to kill due to diminished capacity.   I fail to see how such error on the one count could affect the verdict on the entirely separate charge of felony murder, for had the requested instructions been given, they would have been immaterial to the felony murder charge inasmuch as the intent or state of mind of defendant when he killed the ice cream vendor would have been irrelevant to felony murder.  (People v. Dillon, 34 Cal.3d 441, 476–477, 194 Cal.Rptr. 390, 668 P.2d 697.)

The prosecution proved, and at trial the defense conceded, that defendant robbed an ice cream vendor and during the commission of that robbery, shot and killed him;  the sole defense was a lack of specific intent to rob due to diminished capacity.   To be robbery, the taking must be with the specific intent to steal, i.e., to appropriate property of another and permanently deprive him of its possession.  (See People v. Ford, 60 Cal.2d 772, 793, 36 Cal.Rptr. 620, 388 P.2d 892.)

A brief summary of the People's evidence demonstrates the strong showing of defendant's specific intent to commit the robbery.   In the late afternoon, defendant and a number of other persons were in “the shack” drinking beer and smoking PCP laced cigarettes;  they ran out of beer, and defendant decided to go out and buy some more but realized he did not have enough money;  meanwhile an ice cream truck had entered the neighborhood to service its customers, and defendant announced to the others in “the shack” he was going to rob the ice cream truck;  defendant left “the shack” with a gun, and the others went out onto the porch to watch;  defendant flagged down the truck, walked up to the vendor, pointed the gun at him, said “this is a hold up” and took the vendor's cash box;  defendant then started to walk away with the money and, after a few steps, turned and in cold blood shot the vendor twice, killing him.   To negate the specific intent to rob, defendant who did not testify, offered through other witnesses including two experts, a defense of diminished capacity based on below normal intelligence, ingestion of PCP and beer consumption.   It is this defense defendant sought to use also to rebut the specific mental state essential to the commission of murder with malice as charged in count I to reduce the crime to a lesser degree of murder or manslaughter under the lesser included offense instructions requested by him.

Third, on the evidence here, I cannot find it is reasonably probable that a different verdict more favorable to the defendant would have resulted on the felony murder charge had defendant's requested instructions on murder with malice (count I) defining malice aforethought, second degree murder, voluntary manslaughter, involuntary manslaughter and absence of premeditation, deliberation, malice or intent to kill due to diminished capacity, been given and the cause on count I submitted to the jury.   The People proved, and the defense conceded at trial that he robbed, and shot and killed the same victim during the commission of the robbery.   His only defense was diminished capacity, evidence of which was not strong enough to negate the specific intent to commit the robbery.   A reading of the defense testimony against the clear evidence of defendant's specific intent to steal, i.e., to permanently deprive the ice cream vendor of his money, convinces me that, indeed, it was a weak defense.   The jury also found it to be weak and not sufficient to rebut the specific intent to rob, and twice rejected the defense—in finding him guilty of robbery of the ice cream vendor alleged in count II, and in finding him guilty of felony murder of the vendor whom he killed during commission of the robbery.

Thus, on the undisputed facts of the robbery and the killing of the same victim during the commission of that robbery, when the jury rejected the diminished capacity defense and found defendant had the specific intent to rob, the die was cast—the People were entitled to a conviction of felony murder regardless of the state of mind or intent with which he killed the victim.   The same situation would have prevailed had the requested instructions on count I been given.   In the circumstances here, there is no way in which those instructions offered on the murder with malice count, could have produced a verdict more favorable to defendant on the entirely separate and distinct charge of felony murder unless they were impermissibly used as a resort to a softhearted jury's exercise of leniency to acquit him of felony murder even though it had been proved beyond a reasonable doubt, and find him guilty of some lesser included offense on count I.  (See People v. Geiger, 35 Cal.3d 510, 521, 531, 199 Cal.Rptr. 45, 674 P.2d 1303.)   But neither the prosecution nor the defendant is entitled to a compromise verdict;  it neither serves justice nor preserves the integrity of the fact-finding process.

Any claim that the absence of defendant's requested instructions “practically guaranteed his conviction of robbery and first degree felony murder” because there was no option or alternative other than acquittal and felony murder, is not persuasive in the context of the accusatory pleading, the defense concession at trial that he killed the ice cream vendor during the commission of the robbery, the strong evidence of specific intent to commit the underlying robbery, the jury's rejection of the defense of diminished capacity and its finding defendant was guilty of robbery as charged in count II.   The truth is, his conviction of felony murder was guaranteed because the People had proved defendant guilty of that offense beyond a reasonable doubt, not because there was no “third option.”   This is not the kind of case in which there can be any concern “that a ‘jury's practice will diverge from theory’ and a defendant may be convicted of a crime for which all elements have not been proven․” (United States v. Johnson (9th Cir.1980) 637 F.2d 1224, 1238–1239, citing Keeble v. United States (1973) 412 U.S. 205, 212, 93 S.Ct. 1993, 1997, 36 L.Ed.2d 844;  see also People v. Geiger, 35 Cal.3d 510, 522, 199 Cal.Rptr. 45, 674 P.2d 1303.)   But of greater significance, even had the requested instructions been given, there still would and could have been no “option” or “alternative” other than acquittal and felony murder for the jury to consider on that charge, because murder with malice and the lesser included offenses encompassed in those instructions pertained only to count I (murder with malice) since state of mind or intent as to the homicide is irrelevant to felony murder.

Fourth, while it is true that had the requested instructions been given on count I they would have offered a “third option” to the jury in its deliberations on the charge of murder with malice as alleged in count I, it is my view that those instructions on malice, varying lesser degrees of murder and manslaughter, and intent to kill on count I could not have properly offered an alternative or “third option” to the jury in its deliberations on the felony murder charge.   The only alternative or “third option” the requested instructions could have offered would have gone solely to the charge of murder with malice (count I)—in addition to acquittal or conviction of murder with malice aforethought, the jury would have had the option on count I of finding defendant guilty of second degree murder or manslaughter.   But on the evidence here, this “option” simply could not apply to the charge of felony murder.

Thus, bearing in mind that the requested instructions were for lesser included offenses than murder with malice alleged in count I, an entirely separate and distinct charge from that of felony murder, those instructions would have posed a substantial needless risk of an additional conviction.   After finding defendant guilty of felony murder, if the jury felt that defendant should be punished for the cold-blooded manner in which he shot and killed the ice cream vendor, it also could have found him guilty of murder with malice or any applicable lesser included offense.   An additional conviction would have been no boon to defendant, whether or not he could have been sentenced on it.

Even if it can be said, although on this record I cannot agree, that there was a showing of diminished capacity strong enough to rebut the specific intent to rob, defendant would have been entitled to an acquittal of felony murder—nothing less.   In such a situation, had the requested instructions been given, defendant would have run the considerable risk of an unwarranted conviction of another offense.   Notwithstanding the obligation to acquit if guilt is not proved beyond a reasonable doubt, those instructions here would have offered a great temptation to the jury to punish him for his wrongful acts by finding defendant guilty of something else on another count.

I am well aware that it is no answer to defendant's request for instructions on varying lesser degrees of murder and manslaughter on the charge of murder with malice to argue that he would be better off without such instructions (People v. Geiger, 35 Cal.3d 510, 518, 199 Cal.Rptr. 45, 674 P.2d 1303), but here we are not dealing with the issue whether it was error to refuse them but, having already made that determination, whether on this record it can be said that had the instructions been given, the verdict on the felony murder charge would have been more favorable to defendant.

My views hereinabove expressed dispose of the assertion that the jury's question of the court—“Once we've established the intent for the robbery, do we have to establish an intent for the murder?   Or does the murder-felony rule allow us to disregard finding an intent for the murder?”—went to “the heart of the instructions requested by defendant—the defendant's state of mind with respect to the homicide” and in the absence of the requested instructions on murder with malice (count I) and the lesser included offenses, the jury was deprived of a “third option” in addition to felony murder and acquittal.

Any “third option” based upon such instructions would have been available to the jury only in its deliberations on count I (murder with malice) and would have been far from useful on the evidence here and the finding of “intent for the robbery” made by the jury early in its deliberations, as reflected in its question to the court, unless an outright appeal was made to the jury to exercise leniency regardless of defendant's guilt of felony murder.   The time and the manner in which this jury question surfaced, the nature of the question and the context in which it was posed, tell me that when it was framed, the jury had already “established the intent for the robbery” and rejected the defense of diminished capacity;  thus, the jury having made such a finding, defendant's fate was then and there sealed because his state of mind with respect to the homicide was irrelevant to the charge of felony murder.   While the question did go to the “intent for the murder,” even had defendant's requested instructions been given, on the evidence here and in light of the jury's obvious finding, his state of mind when he killed the ice cream vendor could not have affected the verdict.   The killing could have been intentional, unintentional, accidental—second degree murder or nonstatutory voluntary manslaughter—and the crime still could have been nothing less than felony murder.

I disagree that a consideration of the jury's deliberations and inability to agree on a finding on the felony murder special circumstances allegation is of any value here.   The findings necessary on the two causes are entirely different—for the crime of felony murder, the jury had only to find that the death occurred during the commission of the robbery (before defendant reached a place of temporary safety [People v. Salas, 7 Cal.3d 812, 823, 103 Cal.Rptr. 431, 500 P.2d 7;  see also People v. Fields, 35 Cal.3d 329, 367, 197 Cal.Rptr. 803, 673 P.2d 680] );  for the special circumstances allegation (murder in commission of robbery), it was necessary to find in addition to a murder committed while defendant was engaged in the commission of a robbery and defendant's intent to kill, “that the murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection.”  (See CALJIC 8.81.17;  also People v. Green, 27 Cal.3d 1, 60–62, 164 Cal.Rptr. 1, 609 P.2d 468.)   As to the latter, the evidence does not support, and the jury could not make such a finding.   The evidence supported only a finding that the shooting was an execution type killing done as an act of bravado to impress others from “the shack” who had come out onto the porch to watch.   It is clear that the killing was not done to advance the commission of the robbery because defendant had already robbed the victim, or to facilitate his escape or to avoid detection because 25 or 30 people had watched him rob the ice cream vendor and kill him, and defendant made no attempt to eliminate any of them as witnesses, and none of them was in the way of his escape.   Thus, there is really no basis for any conclusion that the failure of the jury to make a finding on the special circumstances allegation is any indication of how the jury would have handled defendant's “intent to kill” in the context of the instructions requested by defendant.   But more importantly, there would have been no necessity for considering the “intent to kill” in that context for on the evidence here, “intent to kill” was irrelevant—if the jury found defendant had the specific intent to commit the robbery, he was guilty of felony murder;  if it found he had not, he was entitled to an acquittal.

Finally, I do not agree that under the doctrine of lesser related offenses (People v. Geiger, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303) defendant would have been entitled to the requested instructions had he been charged solely with felony murder.   We are dealing with apples and oranges.   In the case of deliberate and premeditated murder with malice aforethought and its lesser included offenses, defendant's state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt;  in the case of felony murder, defendant's state of mind with respect to the homicide is entirely irrelevant, for the homicide could be deliberate and premeditated, unintended or accidental, or committed in the heat of passion or under the dominion of mental illness, drugs or alcohol.  (People v. Dillon, 34 Cal.3d 441, 477, 194 Cal.Rptr. 390, 668 P.2d 697.)   Thus, while a defendant's diminished capacity might rebut the specific intent to commit the underlying felony, it is irrelevant to the homicide itself.   Had the sole charge been felony murder, there is here neither a legal nor factual basis for a conviction of a crime less than felony murder, nor can I find on the facts of this case any one of the lesser offenses listed in the requested instructions to be closely related to felony murder.   Defendant cannot create for himself a lesser related offense where none exists merely by offering evidence of a defense, such as diminished capacity, which is not relevant to the homicide in the charged offense (felony murder).   However, inasmuch as defendant was not charged solely with felony murder, there is no issue concerning the application of the lesser related offense doctrine in this case.

I would affirm the judgment.

FOOTNOTES

1.   In defining murder, Penal Code section 187, subdivision (a), provides “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”Unless otherwise indicated, all statutory references are to the Penal Code.

2.   Unless otherwise indicated, all references to “CALJIC” herein are to California Jury Instructions—Criminal (4th ed. 1979).

3.   Section 189 provides, in pertinent part, “All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree;  and all other kinds of murders are of the second degree.”

4.   In Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, the Supreme Court held that intent to kill was an element of the felony-murder special circumstances regardless of whether or not the defendant was the actual killer.   Recently, the Supreme Court in People v. Anderson (1987) 43 Cal.3d 1104, 1147, 240 Cal.Rptr. 585, 742 P.2d 1306, overruled Carlos and held that the intent to kill is not an element of the felony-murder special circumstances except where the defendant is an aider and abettor rather than the actual killer.

5.   Effective January 1, 1982,—a date after the factual circumstances giving rise to the criminal charges here—the Legislature did away with diminished “capacity” as a defense while still permitting evidence of voluntary intoxication or mental disorder on the issue of whether the defendant “actually formed” the requisite mental state.  (§§ 22 & 28;  Amended/added, respectively, by Stats.1981, ch. 404, p. 1992, §§ 2 & 4)

6.   One of the verdict forms, signed by the foreman, read in pertinent part:  “We, the jury in the above-entitled action, find the Defendant Jeffrey Wayne Ricks guilty of the crime of MURDER, in violation of Section 187, Penal Code, a felony, as charged in Count I of the information, and find it to be MURDER OF THE FIRST DEGREE.”

7.   During this period, a judicially declared second degree felony-murder rule was also developed.  (See, e.g., People v. Wright (1914) 167 Cal. 1, 138 P. 349;  see also Pike, What is Second Degree Murder in California, (1936) S.Cal.L.Rev. 112, 118–119 for a summary of the early development of the common-law felony-murder rule in California.)   This rule provides in substance that when a homicide occurs during the commission of a felony which is inherently dangerous to human life, and is not one of the enumerated felonies in section 189, it may be deemed to be second degree felony murder.  (People v. Williams (1965) 63 Cal.2d 452, 457, 47 Cal.Rptr. 7, 406 P.2d 647;  People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353.)

8.   Another important, judicially developed principle to implement the Milton concept of felony murder appeared much later.   It involved the question of whether it is necessary for the jury to agree unanimously on a specific theory of murder.   Simply stated, this principle provided that in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution;  it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by the statute.  (See People v. Chavez, supra, 37 Cal.2d 656, 670–672, 234 P.2d 632;  People v. Nye (1965) 63 Cal.2d 166, 173, 45 Cal.Rptr. 328, 403 P.2d 736;  People v. Milan (1973) 9 Cal.3d 185, 194, 107 Cal.Rptr. 68, 507 P.2d 956;  and People v. Nicholas (1980) 112 Cal.App.3d 249, 273, 169 Cal.Rptr. 497.)

9.   CALJIC No. 301 in the 1958 revised edition, for example, read:  “Murder is the unlawful killing of a human being with malice aforethought.  [¶] Such malice may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.  [¶] Malice aforethought, either express or implied, is manifested by the doing of a felonious act intentionally, deliberately, and without legal cause or excuse.   It does not imply a pre-existing hatred or enmity toward the individual injured.”

10.   For example, the courts have refused to apply the doctrine in cases where the killing is committed by a person other than the defendant or an accomplice acting in furtherance of a common felonious design (see People v. Washington, supra, 62 Cal.2d 777, 781–783, 44 Cal.Rptr. 442, 402 P.2d 130);  in cases where the operation of the doctrine depends upon “a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged” (People v. Ireland (1969) 70 Cal.2d 522, 539, fn. omitted, 75 Cal.Rptr. 188, 450 P.2d 580;  People v. Wilson (1969) 1 Cal.3d 431, 437–442, 82 Cal.Rptr. 494, 462 P.2d 22;  and People v. Sears (1970) 2 Cal.3d 180, 185–189, 84 Cal.Rptr. 711, 465 P.2d 847);  and in cases where the underlying felony is not one of the enumerated felonies in section 189 and is not inherently dangerous to human life, which is determined by the court looking at the elements of the felony in the abstract rather than at the particular facts of the case (see People v. Phillips (1966) 64 Cal.2d 574, 582–584, 51 Cal.Rptr. 225, 414 P.2d 353;  People v. Williams, supra, 63 Cal.2d 452, 457–458, 47 Cal.Rptr. 7, 406 P.2d 647).

11.   The editors of the 1983 revision of CALJIC No. 8.11 defining malice aforethought cautioned judges in a use note not to use that instruction if the only murder charge is felony murder because felony murder does not involve malice.   In support of this cautionary advice, they relied on People v. Dillon, supra, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697.

12.   In Mullaney, the United States Supreme Court unanimously held it a denial of due process to shift to a defendant the burden of disproving an essential element of a crime, even though it affected only the degree of his guilt.  (421 U.S. at p. 698, 95 S.Ct. at 1889)  There, a defendant had been convicted of murder under a Maine law which defined murder as an unlawful killing with malice aforethought, yet required the prosecution to prove beyond a reasonable doubt only that the homicide was unlawful and intentional.   When the prosecution established those two elements, malice would be presumed unless the defendant could prove by a preponderance of the evidence that he had acted in the heat of passion on sudden provocation, i.e., without malice.  (Id., at p. 686, including fn. 4, 95 S.Ct. at p. 1884, including fn. 4.)

13.   In Sandstrom, the defendant was convicted of “deliberate homicide,” defined by Montana law as a killing which is “purposely or knowingly” committed.   The trial judge had instructed the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts.   In finding this instruction unconstitutional, a unanimous Court reasoned that if the jury understood the challenged instruction to state a conclusive presumption, it would deny the defendant the benefit of the presumption of innocence on the mental element of the crime, a procedure unconstitutional under Morissette v. United States (1952) 342 U.S. 246, 274–275, 72 S.Ct. 240, 255–56, 96 L.Ed. 288.  (442 U.S. at pp. 521–523, 99 S.Ct. at pp. 2458–59.)   On the other hand, if the jury took the instruction to raise a rebuttable presumption, it would have shifted to the defendant the burden of disproving the same element, a procedure unconstitutional under Mullaney.  (Id., at p. 524, 99 S.Ct. at p. 2459.)

14.   We are not persuaded by the reasoning of People v. Watkins (1987) 195 Cal.App.3d 258, 240 Cal.Rptr. 626, which recently held that the holding of Witt —that a jury may be instructed on felony murder where the information charges murder with malice—is still sound law.   (Id., at pp. 266–267, 240 Cal.Rptr. 626.)

15.   We feel that had the defendant been charged only with felony murder he would have been entitled to the requested instructions under the doctrine of lesser related offenses.  (People v. Geiger, supra, 35 Cal.3d 510, 199 Cal.Rptr. 45, 674 P.2d 1303.)   In Geiger, the court held that a jury should have the opportunity to find a defendant guilty of a “lesser related offense” where the lesser offense is “closely related to that charged, there is evidence of its commission, and defendant's theory of defense is consistent with such a finding.”  (Id., at p. 514, 199 Cal.Rptr. 45, 674 P.2d 1303.)

1.   In instructing the jury on felony murder, the trial court incorrectly referred to that charge as count I;  count I charged murder with malice aforethought.   In light of the distinction made in People v. Dillon, 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697 between the crime of murder with malice and the crime of felony murder, it appears that had the information been formally amended to add the charge of felony murder, it would have been included as an additional count.

2.   The instructional error went only to count I;  thus, inasmuch as the murder with malice in count I was not submitted to the jury, no verdict was ever rendered on that cause and no judgment was entered thereon, there is no conviction or judgment based on murder with malice to reverse.   An order to return the cause to the superior court for trial on the charge of murder with malice as alleged in count I hardly would be of benefit to defendant, for there is nothing about the conviction of felony murder that justifies reversal of the judgment on that charge.

THOMPSON, Associate Justice.

JOHNSON, J., concurs.