Is a defendant's claim that the trial court erred by instructing the jury on first degree murder because the information alleged only that the murder of Agent Cross was committed with malice aforethought?

Defendant contends the trial court erred by instructing the jury on first degree murder because the information alleged only that the murder of Agent Cross was committed with malice aforethought in violation of section 187. To the extent we may review this claim under section 1259 despite defendant's failure to raise it at trial because he alleges his substantial rights were affected, we previously have rejected this contention and discern no reason to revisit the issue. (See People v. Morgan (2007) 42 Cal.4th 593, 616-617, 67 Cal.Rptr.3d 753, 170 P.3d 129.)

Defendant also contends the trial court erred by failing to instruct that the jurors must unanimously agree on whether defendant was guilty of premeditated and deliberate first degree murder or felony first degree murder. Again, to the extent that we may review his claim under section 1259, it is without merit. ( People v. Riggs (2008) 44 Cal.4th 248, 313, 79 Cal.Rptr.3d 648, 187 P.3d 363.)

[235 P.3d 923]