In first degree murder trial, trial court erred by failing to instruct the jury sua sponte on second degree murder and voluntary manslaughter as lesser included offenses. A jury convicted appellants Campbell and Fort of first degree murder, two robberies, and found true a robbery special circumstance allegation based on evidence that Fort shot and killed the victim Leyva in front of his home during a drug robbery. There was conflicting evidence regarding whether Fort knew that Campbell was planning to rob Leyva and whether Fort fired his gun out of fear that someone was about to fire at him. Even though Fort was charged with malice murder committed with premeditation and deliberation (Pen. Code, § 187), the jury was only instructed on first degree felony murder, with robbery as the underlying felony. On appeal, Fort argued that, based on the accusatory pleading, the trial court had a sua sponte duty to instruct the jury on the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter. Held: Reversed. Under the accusatory pleading test, the allegation of malice murder with deliberation and premeditation gives rise to the trial court’s sua sponte duty to instruct on the possible lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter when warranted by the evidence. Here, there was substantial evidence from which a jury could reasonably conclude that Fort committed second degree murder or voluntary manslaughter based on imperfect self defense, but not the greater offense of first degree felony murder, given his stated lack of knowledge regarding the robbery and mental state during the killing. The error in failing to instruct on the lesser offenses was prejudicial. Because the instructional error may have led the jury to convict Fort of the robberies, those convictions must be reversed as well.

Based on the facts and instructions in this case, the jury’s true finding on the felony-murder special circumstance did not mean that the jury would have convicted Fort of felony murder even if it was instructed on lesser included offenses. The Attorney General asserted that the error in failing to instruct the jury on lesser included offenses was harmless because of the jury’s true finding on the robbery-murder special circumstance. The Attorney General relied on cases holding that a true finding on a felony-murder special circumstance means that the jury would have convicted the defendant of felony murder even if it was instructed on lesser included offenses and that, therefore, the failure to instruct on the lesser offenses was necessarily harmless. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292.) The court concluded that the cases were not controlling in this case. In each of the cited cases, the jury was instructed on felony murder and premeditated and deliberate murder. As a result, each jury had the option of finding the defendant guilty of first degree murder without having to find the special circumstance true. The jury here did not have that option because it was only instructed on felony murder. The cited cases were also distinguishable based on their facts.