In what circumstances will a jury overturn a conviction for aiding and abetting the underlying felony of robbery?

While in the present case we are not dealing with the failure to give a lesser included on the underlying felony charge, the analysis is substantially the same. In Ramkeesoon and here, there was substantial evidence that the underlying felony was not committed. In Ramkeesoon, it was the after-formed intent; here, it is whether Fort had the intent to aid and abet the robbery. In both cases, it is clear that the defendant killed another person. Because the Ramkeesoon court assumed for purposes of the appeal that the murder conviction was based on felony murder, the only way the jury in that case and in the present case could convict the defendant of the homicide was to find that the underlying felony had been committed by the defendant. As in Ramkeesoon, the jury here was left with an unwarranted all-or-nothing choice. (People v. Ramkeesoon, supra, 39 Cal.3d at p. 352, 216 Cal.Rptr. 455, 702 P.2d 613.)

Finally in People v. Croy (1985) 41 Cal.3d 1, 221 Cal.Rptr. 592, 710 P.2d 392, the court reversed a first degree felony-murder conviction because the jury was misinstructed on the necessary mens rea for aiding and abetting the underlying felony of robbery. (Id. at p. 6, 221 Cal.Rptr. 592, 710 P.2d 392.) The defendant argued

[182 Cal.Rptr.3d 513]