Does the Attorney General have any liability for failing to instruct the jury on implied malice in a second degree murder case?

Defendant now asserts the trial court should have instructed on implied malice. We need not decide whether the court should have done so, or whether defendant invited any error by asking the court not to instruct on second degree murder. The jury found true special circumstance allegations that defendant killed the victim in the course of a burglary and a robbery. Therefore, any conceivable error in refusing to instruct on implied malice was harmless. (People v. Earp, supra, 20 Cal.4th 826, 885-886, 85 Cal.Rptr.2d 857, 978 P.2d 15.)

Defendant contends the trial court erred in not instructing the jury that it could consider defendant's false statements to the police and his efforts to destroy evidence as showing consciousness of guilt. Although, as the Attorney General concedes, the trial court should have done so (see People v. Breaux (1991) 1 Cal.4th 281, 303-304, 3 Cal.Rptr.2d 81, 821 P.2d 585), the instructions would have benefited the prosecution, not the defense, and therefore the court's failure to give them was harmless.