What is a lesser included offense in a felony murder case?

necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (Birks, at p. 117.) Here, the information charged defendants with the first degree murder of Sanderson, with special circumstance allegations that the murder was committed during the commission of an attempted robbery and a burglary. There is but a single statutory offense of murder, though felony murder has elements distinct from those of murder with express or implied malice. (People v. Kipp (2001) 26 Cal.4th 1100, 1131.) Among those elements is that the killing occurred during the commission or attempted commission of the predicate felony -- in this case, robbery or burglary. ( 189.) Thus, felony murder cannot be committed without also committing or attempting to commit the predicate felony.

In most felony-murder prosecutions, the lesser included offense doctrine does not come into play. The duty to instruct on a lesser included offense does not arise unless substantial evidence supports a conclusion that the defendant is guilty only of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Ordinarily, a defendant charged with felony murder cannot be liable for the predicate felony alone; liability for murder "committed in the perpetration of" a designated felony flows inevitably from commission of the felony. ( 189.) To be entitled to verdict forms for conspiracy to commit the underlying felony in a felony-murder case, the defense must present evidence sufficient to support a withdrawal defense that would limit liability to the felony.

Nor will conspiracy be a lesser included offense when the facts might support the defendants' guilt of the felony on a conspiracy theory, but the prosecution makes no attempt to prove conspiracy. In such a case, the elements of conspiracy are not necessarily included in the elements of the felony murder. Thus, uncharged conspiracy as a theory of liability requires an exception to the usual rule that neither party's choice of strategy can preclude the jury's consideration of a lesser included offense. (See People v.

Page 43