What is the test for a trial court to instruct on second degree murder as a lesser included offense of felony murder?
California, United States of America
The following excerpt is from People v. Mendez, B272175 (Cal. App. 2017):
As defendant recognizes, the upshot of these governing legal principles is that the trial court was obligated to instruct on second degree murder and voluntary manslaughter only if there was substantial evidence to support a finding defendant did not commit felony murder (in other words, if there was evidence that only the lesser and not the greater crime was committed). (People v. Banks (2014) 59 Cal.4th 1113, 1161 [error not to instruct on second degree murder as lesser included offense of felony murder because "evidence permitted the inference that [the] defendant shot [the victim] with malice in the course of an argument or fight, not necessarily in the course of a robbery], disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 386-387; People v. Anderson (2006) 141 Cal.App.4th 430, 446 [duty to instruct on second degree murder and voluntary manslaughter as lesser included offenses of felony murder only arises if there is substantial evidence to support a finding that the events of the crime did not constitute a felony murder].)
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