Does section 1157 of the California Criminal Code apply when the prosecution alleges that the killing was committed during perpetration of robbery or burglary?

In People v. Mendoza (2000) 23 Cal.4th 896, 900 (Mendoza), the court held that section 1157 does not apply when the prosecution's only murder theory at trial is that the killing was committed during perpetration of robbery or burglary, which is first degree murder as a matter of law. The court explained that felony murder is not a crime " 'which is distinguished into degrees' " within the meaning of section 1157 because, if the jury finds that the homicide was committed during the commission of any of the offenses enumerated in section 189, the homicide is first degree murder by operation of law. (Id. at p. 908.) If the evidence supports only a finding of guilty or not guilty of felony murder and no other theory of murder, the trial court is justified in withdrawing the question of degree from the jury and instructing that the defendant is either not guilty, or is guilty of felony murder. (Id. at pp. 908-909.)