Does the court have a sua sponte duty to instruct on accomplice liability for felony murder?

The court has a sua sponte duty to instruct on accomplice liability when a special circumstance is charged and there is sufficient evidence to support the finding that the defendant was not the actual killer, regardless of the prosecution's theory of the case. (People v. Jones (2003) 30 Cal.4th 1084, 1117.) In this case, however, there was no evidence that supported any instructions on aiding or abetting, or accomplice liability for felony murder. The jury was presented with evidence of two vastly different scenarios: that defendant was either the lone killer, consistent with the People's evidence, or an

Page 54

unknown person killed Rodriguez during the brief time defendant left the house, based on defendant's trial testimony. While the court gave CALCRIM No. 540B, it also instructed the jury with CALCRIM No. 200, that some of the instructions "may not apply" and not to assume "just because I give a particular instruction that I am in any way suggesting anything about the facts or findings you are to make." "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case. [Citation.]" (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) The jury was thus instructed to disregard the accomplice instructions that were given since there was no evidence to support that theory.