Foreign convictions do not constitute strikes if, based on a comparison of statutory language, the criminalized conduct differs from that defined by the relevant California statute. The court agreed that the defendants two Utah robbery convictions did not constitute serious or violent felony priors under California law, where the prosecution had not presented any evidence regarding the circumstances of those robberies, and the Utah robbery statute did not contain all the elements of a robbery under California law. Specifically, the Utah statute allows a conviction for robbery if the defendant steals property without the use of force or fear, but then uses force or fear against a second person during his flight from the scene of the theft. Unlike California law, Utah law does not require that the second person have a possessory interest in the stolen property. The court rejected the defendants argument that the prior conviction allegations could not be retried, however. The defendant argued that, under Apprendi v. New Jersey (2000) 530 U.S. 466, the trial of a foreign prior requires proof of facts beyond the mere fact of conviction, and thus requires a jury determination of the facts. The court rejected this attempt to distinguish Monge v. California (1998) 524 U.S. 721, and held that the prior conviction allegations could be retried if the prosecution obtained additional evidence regarding the facts of the Utah priors. Finally, the court held that the trial court did not err in refusing a defense request to instruct the jury on second degree murder as a necessarily included offense of first degree murder, where the prosecution theory was felony murder and there was no substantial evidence that would have absolved the defendant of felony murder, but not of express malice second degree murder.