What is the test for a jury to convict a defendant of first degree murder?

The trial court instructed the jury concerning two theories of first degree murder: (1) willful, deliberate, and premeditated murder, and (2) killing in the commission of specified felonies. ( 189.) The court initially indicated that it also would instruct the jury concerning the lesser included offense of second degree murder, but ultimately declined to do so, stating that, earlier, it "had not taken into consideration the nature of the gagging and the binding." The verdict did not indicate whether the conviction for first degree murder was based upon a finding that the murder was willful, deliberate, and premeditated, or that the killing occurred in the commission of specified felonies. As noted above, however, the jury found true the allegations that the murder was committed while defendant was engaged in the commission or attempted commission of the crimes of burglary, sodomy, and robbery. ( 190.2, subd. (a)(17)(A), (D), (G).) Because "the elements of felony murder and the special circumstance[s] coincide, the true finding[s] as to the . . . special circumstance[s] establish[] here that the jury would have convicted defendant of first degree murder under a felony-murder theory, at a minimum, regardless of whether more extensive instructions were given on second degree murder. [Citations.]" (People v. Elliot (2005) 37 Cal.4th 453, 476 (Elliot).) Therefore, the jury necessarily found defendant guilty of first degree felony murder, and any error in not instructing the jury concerning second degree murder was harmless beyond a reasonable doubt.

Defendant urges the court to hold that second degree murder is a lesser included offense of first degree felony murder. He notes that we declined in People v. Valdez (2004) 32 Cal.4th 73, 114, footnote 17, to address this issue. We noted, however, the Attorney General's contention that second degree murder is not a lesser included offense of first degree felony murder, because malice is an element of second degree murder, but is not an element of first degree felony

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