The trial court properly instructed the jury on felony murder without including instructions regarding the independent felonious purpose rule. The independent felonious purpose rule, which originated under felony-murder special circumstance jurisprudence, requires the defendant to have had “an independent purpose” for the commission of the felony, that is, the commission of the felony was not merely incidental to the murder. The independent felonious purpose rule is not a requirement for felony murder, as opposed to the felony murder special circumstance. While the California Supreme Court has at times stated the felony must not be merely incidental to the killing, this principle does not appear to have been developed as a distinct element requiring sua sponte instruction. Additionally, the remaining instructions adequately instructed the jury that appellant must have possessed the intent to commit robbery at the time of the killing to be guilty of felony murder.

If an improper theory is incorrect only because the evidence does not support it, the appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. Because substantial evidence supported the direct aiding and abetting theory, and appellant failed to affirmatively show a reasonable probability that the jury relied on the felony-murder theory, the Court did not reach appellant’s evidentiary challenges to that theory.

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/D082890.PDF