Does a defendant have a duty to instruct the trial court on lesser included offenses of felony-murder?

Contrary to defendant's position, the duty to instruct on lesser included offenses is linked to the allegations of the accusatory pleading. (See People v. Banks (2014) 59 Cal.4th 1113, 1160.) In fact, that was the basis for our reversal of the judgment in the first appeal. There, the accusatory pleading included allegations of malice-murder as well as felony-murder, obligating the trial court to instruct on the elements, defenses, and lesser included offenses of both species of murder. After the remand, and the People's amendment, the accusatory pleading did not allege a malice murder theory for which the instructions on lesser offenses and defenses would have been appropriate.

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