Is the jury instructed on two theories of second degree murder?

California, United States of America


The following excerpt is from People v. Lee, 234 Cal.App.3d 1214, 286 Cal.Rptr. 117 (Cal. App. 1991):

The jury was instructed on two theories of second degree murder: felony murder and implied malice. Instruction on the felony-murder theory constituted prejudicial error requiring reversal of appellants' convictions of second degree murder, because it cannot be determined whether the jury reached its verdict based upon a theory of implied malice, as to which we will find appellants contentions on appeal unmeritorious, . or felony murder. (People v. Smith, supra, 35 Cal.3d 798, 808, 201 Cal.Rptr. 311, 678 P.2d 886.)

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