What is the accusatory pleading test for second degree murder?

lesser." (People v. Banks, supra, 54 Cal.4th at p. 1160, internal citations and quotation omitted.) In Banks, the accusatory pleading alleged the defendant "willfully, unlawfully, and with malice aforethought murdered" the victim and also alleged the murder occurred during the commission of a felony within the meaning of section 190.2(a)(17). (People v. Banks, supra, 59 Cal.4th at p. 1157.) The court found second degree murder was a lesser included offense of felony murder under the accusatory pleading test because the murder count alleged both felony murder and that the murder was committed willfully and maliciously. It found further that the failure to instruct on second degree murder was error (albeit harmless), because evidence that the defendant argued with the victim before shooting him and did not take any property or money from the victim after the shooting supported an inference that the killing did not occur during a robbery but was committed willfully and maliciously, matching the elements of second degree murder. (Id. at p. 1161.)