Does a jury's finding on a felony-murder special-circumstance allegation based on erroneous instruction that a jury would not have convicted appellant of second degree murder if the jury had been given the same instruction?

California, United States of America


The following excerpt is from People v. Salas, A138588 (Cal. App. 2016):

In addition, the jury's true finding on the felony-murder special-circumstance allegation based on this erroneous instruction thus does not show that the jury necessarily would have failed to find appellant guilty of second degree murder, had that instruction been given. (See People v. Campbell (2015) 233 Cal.App.4th 148, 167, 172 [true finding on felony-murder special-circumstance allegation did not automatically render harmless court's erroneous failure to instruct on lesser included offenses of second degree murder and voluntary manslaughter; consideration of entire record, including factual context and other instructions, was necessary].)

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