Is felony murder in the course of a robbery a theft-related crime?

The Attorney General argues felony murder in the course of a robbery is a theft-related offense; therefore, it is not erroneous to include felony murder in CALCRIM No. 376. The Attorney General cites People v. Harden, supra, 110 Cal.App.4th 848 in support. In Harden, the modified instruction for possession of stolen property included murder during the commission of robbery and burglary: "'If you find that the defendant was in conscious possession of recently stolen property, the fact of that possession is not by itself sufficient to permit an inference that the defendant is guilty of the crimes of robbery and burglary, as alleged in counts 2 and 3 of the information, and that the allegations alleged in count 1 of the information, that the murder of [the victim] was committed by the defendant during the commission of the crimes of robbery and burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant's guilt. However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt. . . .'" (Id. at pp. 855-856, original italics.) The Harden court found no valid reason to preclude the instruction's use regarding theft-related allegations when the allegations included elements of robbery or burglary, because if properly worded, the instruction would benefit the defendant by warning the jury not to infer the existence of the element of robbery or burglary from the defendant's possession of stolen property. (Id. at p. 857.)

A theft-related offense is not synonymous with a theft-related allegation. (People v. Harden, supra, 110 Cal.App.4th 848.) Although Harden found no reason to preclude a properly worded CALJIC No. 2.15 for use with theft-related allegations, our

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