Does improper instruction in a case affect the determination of a jury to convict a defendant of first degree murder?

When considered as a whole and when considered with the jury's findings, there is no reasonable probability that the instructions misled the jury. (People v. Duncan (1991) 53 Cal.3d 955, 972-973, 281 Cal.Rptr. 273, 810 P.2d 131.)

The improper instruction related to the offense of murder, but not its degree. The jury found defendant guilty of first degree murder based on instructions that required it to find premeditation and deliberation or torture murder, or both. In addition, the special circumstance verdict required a jury finding of intent to kill. The jury's first degree murder verdict and its special circumstance finding establish that the jury did not base its conviction on the felony-murder theory. (See People v. Morris (1988) 46 Cal.3d 1, 24, 249 Cal.Rptr. 119, 756 P.2d 843.)

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