When will a jury be allowed to consider premeditated murder?

Had this objection been raised, we cannot say that a determination more favorable to the defendant would not have resulted. (People v. Fosselman (1983) 33 Cal.3d 572, 574, 189 Cal.Rptr. 855, 659 P.2d 1144.) The trial court had already refused to instruct the jury on premeditated murder. The defendant would have faced, at most, a second degree murder conviction once the felony murder instructions were excluded. As the defendant stands presently convicted of first degree murder, we cannot conclude that his counsel's ineffective assistance was without prejudice.