Does the independent felonious purpose rule apply to murder?

This court has recognized that the independent felonious purpose rule is not an element of the special circumstance, on which a court must instruct in every case in which a felony murder special circumstance has been alleged. (People v. Kimble (1988) 44 Cal.3d 480, 501, 244 Cal.Rptr. 148, 749 P.2d 803.) The rule "merely clarifies the scope of the requirement that the murder must have taken place during the commission of a felony." (People v. Harris, supra, 43 Cal.4th at p. 1299, 78 Cal.Rptr.3d 295, 185 P.3d 727 ; Kimble , at p. 501, 244 Cal.Rptr. 148, 749 P.2d 803.) From this we have concluded that a trial court has no duty to instruct on the

[3 Cal.5th 118]

independent felonious purpose rule "unless the evidence supports an inference that the defendant might have intended to murder the victim without having an independent intent to commit the specified felony." (People v. Monterroso (2004) 34 Cal.4th 743, 767, 22 Cal.Rptr.3d 1, 101 P.3d 956 ; accord People v. D'Arcy (2010) 48 Cal.4th 257, 297, 106 Cal.Rptr.3d 459, 226 P.3d 949 ; Kimble , at p. 503, 244 Cal.Rptr. 148, 749 P.2d 803.) Put in affirmative terms, a court has a duty to instruct the jury, on its own motion, that the felony cannot have been merely incidental to the murder when

[219 Cal.Rptr.3d 432]