State v. Condon

343 P.3d 357, 182 Wash. 2d 307

Opinions

Gordon McCloud, J.

¶1 The defendant, Joel Condon, was charged with multiple offenses, including aggravated first degree (premeditated) murder and first degree felony murder, stemming from his involvement in a home invasion robbery attempt. A jury found Condon guilty of aggravated (premeditated) first degree murder, first degree burglary, and second degree unlawful possession of a firearm.¹

¶2 The primary questions before the court are whether there was sufficient evidence of premeditation and whether Condon was entitled to a jury instruction on second degree intentional murder as a lesser included offense to aggravated premeditated murder.

¶3 The Court of Appeals found there was sufficient evidence of premeditation, but that it was error to deny Condon’s request for an instruction on the lesser included crime. State v. Condon, noted at 174 Wn. App. 1041, 2013 WL 1628247, 2013 Wash. App. LEXIS 815. We affirm the Court of Appeals.

FACTS

¶4 On January 20, 2009 two men kicked down the door and entered the home where Carmelo Ramirez and Ene-dina Gregorio lived with their three children. The intruders apparently believed (mistakenly) that they were at the home of a drug dealer whom they planned to rob.

¶5 As the intruders entered and began shouting at the family, Ramirez and Gregorio’s son went to a bedroom where his two younger siblings were playing. Gregorio followed and told her children to escape through the bedroom window. She then returned to the living room, where Ramirez was trying to take a gun from the taller of the two intruders. The other intruder grabbed Gregorio, threw her facedown on a sofa, and held her hands behind her back.

¶6 At that moment a family friend, Martin Gutirrez, pulled into the driveway and, according to Gregorio, frightened the intruders. Gregorio heard gunshots, and the two intruders fled, leaving a cell phone behind. Ramirez stag gered out of the house and told Gutirrez that he had been shot. Gutirrez rushed him to a nearby Farm Workers Clinic for immediate help. The nurses were unable to save him there, and he died before reaching the hospital.

¶7 Approximately six weeks later, Jesus Lozano turned himself in and gave a statement to the police describing the break-in and shooting. Lozano was the owner of the cell phone left at the crime scene. He identified the other intruder as a man called “Wak-Wak,” a tall, light skinned Native American with a tattoo on his neck of a scroll with writing on it. State Ex. 1 (Recorded Statement of Jesus Lozano, Mar. 10, 2009); 4 Tr. of Proceedings (TP) (Jury Trial) (Jan. 27, 2011) at 788-90. He told police that Ramirez had gotten him in a choke hold during the struggle and that Wak-Wak had shot Ramirez just as Lozano was losing consciousness from lack of oxygen.

¶8 From Lozano’s description, police identified Joel Con-don as the man called Wak-Wak. State Ex. 1; 4 TP (Jury Trial) (Jan. 27, 2011) at 788-90. The State charged Condon with one count of aggravated first degree (premeditated) murder, in violation of RCW 9A.32.030(l)(a) and RCW 10.95.020(ll)(a); one count of first degree felony murder predicated on first degree burglary and attempted first degree robbery, in violation of RCW 9A.32.030(l)(c); one count of first degree burglary, in violation of RCW 9 A. 52-.020(l)(b); and one count of second degree unlawful possession of a firearm, in violation of RCW 9.41.040(2)(a)(i). Clerk’s Papers (CP) at 302-03. Some of the counts included firearm enhancements. With respect to the first degree (premeditated) murder charge, the aggravating circumstance alleged was that the murder took place “in the course of, in furtherance of, or in immediate flight from” a first degree burglary and/or an attempted first degree robbery. CP at 302.

¶9 At trial, the State presented Lozano’s testimony that Condon had been the shooter in the burglary, testimony by a jailhouse informant that Condon had admitted to shoot ing a victim when he “screwed up on a home invasion,” 5 TP (Jan. 31, 2011) at 1001, and Gregorio’s pretrial lineup and in-court identification of Condon. Condon argued mistaken identity, pointing out the lack of forensic evidence, impugning the credibility of the State’s witnesses, and criticizing the procedures used to facilitate Gregorio’s identification.²

¶10 Before closing arguments, defense counsel requested that the jury be instructed on second degree intentional murder as a lesser included offense to aggravated (premeditated) first degree murder. Counsel reasoned that the jury could find that he committed the murder but without premeditation. The court denied the request for two reasons: first, that the evidence presented did not support an inference that the shooting was not premeditated, and second, that second degree murder was a lesser included offense to the first degree (premeditated) murder charge, but not to the first degree felony murder charge.

¶11 The jury convicted Condon of aggravated first degree murder, first degree burglary, and second degree unlawful possession of a firearm. The trial court imposed the mandatory minimum penalty for aggravated first degree murder: life without the possibility of parole.

¶12 Condon appealed, and the Court of Appeals reversed. Condon, 2013 WL 1628247, 2013 Wash. App. LEXIS 815. It concluded that Condon was entitled to a lesser included instruction on second degree (nonpremeditated) murder. It then conducted a harmless error analysis and considered the probability that the jury might have found the murder “intentional but impulsive rather than premedi tated.” Condon, 2013 WL 1628247, at *8, 2013 Wash. App. LEXIS 815, at *20. It concluded that because the trial court failed to instruct the jury on second degree intentional murder, “[t]he instructions given ... did not draw the jury’s attention to the difference between premeditation and intent.” Condon, 2013 WL 1628247, at *7, 2013 Wash. App. LEXIS 815, at *20.

¶13 The State petitioned this court for review, arguing that the trial court properly refused to give the lesser included offense instruction. In his answer to the State’s petition, Condon raised several other issues. We granted review as to two issues in all: (1) the sufficiency of the evidence to support the jury’s finding of premeditation and (2) Condon’s entitlement to the lesser included offense instruction. State v. Condon, 178 Wn.2d 1010, 311 P.3d 26 (2013).

ANALYSIS

I. The Evidence Was Sufficient To Support the Jury’s Finding of Premeditation

¶14 In considering a sufficiency of the evidence challenge, we must determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Luvene, 127 Wn.2d 690, 712, 903 P.2d 960 (1995) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1970)), quoted in State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). “A claim of insufficiency [of evidence] admits the truth of the State’s evidence and all inferences that reasonably can be drawn [from it].” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

¶15 To convict Condon of first degree premeditated murder, the State had to prove that Condon caused the death of Ramirez with premeditated intent. RCW 9A.32-.030(l)(a). Condon argues there was insufficient evidence of premeditation because the facts all suggest that Condon was reacting to a struggle, not that he had planned the killing ahead of time. We disagree.

¶16 “Premeditation” is “ ‘the deliberate formation of and reflection upon the intent to take a human life’ ” and involves “ ‘the mental process of... deliberation, reflection, weighing or reasoning for a period of time, however short.’ ” State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995) (quoting State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995)). Premeditation must involve “more than a moment in point of time.” RCW 9A.32.020(1).

¶17 The State presented evidence that Condon entered the Toppenish home wielding a loaded handgun and intending to commit a robbery. That motive is relevant to establishing premeditation. See Pirtle, 127 Wn.2d at 644. Specifically, we have found that “ ‘[a] person can form a premeditated design to effect the death of another for the purpose of better enabling him to rob the person or premises of that other.’ ” State v. Miller, 164 Wash. 441, 447, 2 P.2d 738 (1931) (“When the appellant entered the express office [intending to rob it] and saw two men present, he may have very hastily concluded that it was advisable to dispose of Ivester so he would have but one man to contend with.” (quoting State v. Evans, 145 Wash. 4, 11, 258 P. 845 (1927))); Luvene, 127 Wn.2d at 713 (evidence showed the defendant entered liquor store to rob it and shot clerks; this sufficed to prove premeditation). Given that Condon entered the house with a loaded handgun, intending to rob a drug dealer, a rational jury could have found premeditation under our analysis in Miller and Luvene.

II. The Trial Court Erred by Denying Condon’s Request for an Instruction on Second Degree Murder

¶18 The standard of review applicable to jury instructions depends on the trial court decision under review. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). If the decision was based on a factual determination, it is reviewed for abuse of discretion. Id. at 772. If it was based on a legal conclusion, it is reviewed de novo. Id.

¶19 In this case, the trial court’s decision regarding the lesser included offense instruction had both factual and legal components. The trial court concluded as a matter of law that Condon was not entitled to the instruction on second degree intentional murder unless that crime was a lesser included offense of both alternative charges (aggravated (premeditated) first degree murder and first degree felony murder). That decision is reviewed de novo. Id. The trial court concluded as a matter of fact that the evidence did not support an inference that Condon committed the shooting without premeditation. That decision is reviewed for abuse of discretion. Id. at 771-72.

A. A party is entitled to a lesser included offense instruction whenever that instruction satisfies the two-pronged Workman test

¶20 The right to a lesser included offense instruction is statutory, codified at RCW 10.61.006. State v. Berlin, 133 Wn.2d 541, 545, 947 P.2d 700 (1997). In State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), this court set forth a two-pronged test to determine whether a party is entitled to an instruction on a lesser included offense under RCW 10.61.006. Under the first prong of the test (the legal prong), the court asks whether the lesser included offense consists solely of elements that are necessary to conviction of the greater, charged offense. Id. Under the second (factual) prong, the court asks whether the evidence presented in the case supports an inference that only the lesser offense was committed, to the exclusion of the greater, charged offense. Id. at 448. The requesting party is entitled to the lesser included offense instruction when the answer to both questions is yes. Id.

¶21 We took a short detour from this path about 20 years ago. In State v. Lucky, this court held that when a charged crime can be committed by alternative means, a defendant is entitled to an instruction on a lesser included offense only if it is a lesser included offense of every one of the (potentially) greater offense’s statutory means. 128 Wn.2d 727, 735, 912 P.2d 483 (1996), overruled by Berlin, 133 Wn.2d 541. Under the short-lived Lucky rule, it did not matter whether the State had actually charged any of the statutory alternative means; those means still had to be considered, no matter how logically irrelevant they were to the facts of the case. Id. at 733-34; see also Berlin, 133 Wn.2d at 547 (“[Lucky] required] us to look to ‘the elements of the pertinent charged offenses as they appeared in the context of the broad statutory perspective, and not in the more narrow perspective of the offenses as prosecuted.’ ” (quoting Lucky, 128 Wn.2d at 734)).

¶22 One year after Lucky was decided, this court heard two companion cases, Berlin, 133 Wn.2d at 547-49, and State v. Warden, 133 Wn.2d 559, 562-63, 947 P.2d 708 (1997). Petitioners in both cases — the State in one, the defendant in the other — asked us to overturn Lucky and reinstate the traditional Workman rule. In Berlin, 133 Wn.2d at 543-44, the State wanted a lesser included instruction that was prohibited under Lucky, in Warden, 133 Wn.2d at 561, the defendant wanted the instruction.

¶23 In both Berlin and Warden, the defendant had actually been charged with both intentional murder and felony murder. Berlin, 133 Wn.2d at 543 (second degree intentional murder and second degree felony murder based on assault); Warden, 133 Wn.2d at 561 (first degree premeditated murder and first degree felony murder based on robbery). In both cases, the Lucky rule precluded the requested lesser included instruction on manslaughter because manslaughter is a lesser included offense of intentional murder but not of felony murder. Berlin, 133 Wn.2d at 543; Warden, 133 Wn.2d at 561. In both cases, the petitioner argued that Lucky was incorrect and harmful, and in both cases, this court agreed. Berlin, 133 Wn.2d at 546-49; Warden, 133 Wn.2d at 562 (adopting the reasoning in Berlin).

¶24 The Berlin/Warden holding was based on statutory construction and equitable concerns. In each case, the court reasoned that the Lucky rule rendered RCW 10.61.006 (the lesser included offense statute) a virtual nullity since “[a] lesser [included] offense will seldom satisfy every statutory alternative means of committing the greater offense.” Berlin, 133 Wn.2d at 548. It noted that this outcome went against the “basic rule of statutory construction to avoid rendering meaningless any provision of a statute,” and it concluded that the Lucky rule was “inequitable” because it so often prevented a party from arguing a legitimate theory of its case. Id. at 547-48 (“As these companion cases so aptly illustrate, an inequity may arise for either the prosecution or the defense.”).

¶25 To prevent such inequities, the court reinstated Workman's legal prong in its original form. Id. at 548. Significantly for this case, it also held that in order to satisfy Workman's legal prong, a lesser included offense instruction need only satisfy that prong as to one of multiple charged offenses. Id. at 543-44, 550.

B. The instruction on the lesser included offense that Condon requested — second degree intentional murder — satisfies Workman's legal prong

¶26 The trial court ruled that Condon was not entitled to a lesser included offense instruction unless it satisfied Workman's legal prong as to both first degree (premeditated) murder and first degree felony murder.³ This was error. Under Berlin and Warden, Condon did not have to show that second degree intentional murder was a lesser included offense of both charges. Id. at 543-44. Second degree (intentional) murder is a lesser included offense with respect to aggravated first degree (premedi tated) murder under the legal test, because it consists solely of elements that are necessary for conviction of that greater offense.⁴ Thus, the requested second degree intentional murder instruction satisfies Workman’s legal prong in this case. Both parties agree. Suppl. Br. of Pet’r at 8 (“Second degree intentional murder meets the legal component of the Workman test because each element of that crime is a necessary element of first degree premeditated murder.”); Resp’t’s Second Suppl. Br. at 3 (“Petitioner concedes — as it must — that the legal prong is satisfied.”).

C. The requested lesser included offense instruction also satisfies Workman’s factual prong

¶27 Because Condon’s requested instruction satisfies Workman’s legal prong, we must determine whether it also satisfies Workman’s factual prong. Berlin, 133 Wn.2d at 551-52.

i. The evidence supported an inference that only second degree murder was committed, to the exclusion of the greater charged offense of aggravated first degree (premeditated) murder

¶28 As noted above, the trial court concluded that second degree intentional murder failed Workman’s factual prong because no rational juror could conclude that the shooting lacked premeditation. But the trial court based this conclusion on testimony that Condon reflected on the shooting after it had occurred:

[T]he factual prong requires that there be - that there be facts that raise an inference that only second degree murder was committed. And I don’t see that as being - surviving the facts in this case. . . .

Mr. Condon went in and I don’t find that there has to be a specific amount of time for this - premeditation to occur. The testimony seemed pretty clear, at least the unrebutted testimony is — is that - there was a - a scuffle between Mr. Ramirez and Mr. Padilla-Lozano. As a result of that scuffle ... Mr. Condon shot Mr. Ramirez twice and - was reflective enough, cool enough, to be able to say at some point that Padilla-Lozano was lucky he didn’t get shot and that ultimately he probably should have shot him too.

Now, and I recognize that the latter statement is - is offered sometime later and may reflect an overall strategy of how that could have been - this case could have been resolved. But as the facts occurred at the time it doesn’t occur to me that they lend themselves at all to an inference that only second degree murder was committed.

6 TP (Feb. 1, 2011) at 1083-84.

¶29 This reasoning is not sound. As the Court of Appeals correctly concluded, “[P]remeditation ... requires] ‘more than a moment in point of time.’ ” Condon, 2013 WL 1628247, at *6, 2013 Wash. App. LEXIS 815, at *16 (quoting RCW 9A.32.020). To prove premeditation the State must show “ ‘deliberate formation of and reflection upon the intent to take a human life [that] involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.’ ” Condon, 2013 WL 1628247, at *6, 2013 Wash. App. LEXIS 815, at *16 (alteration in original) (internal quotation marks omitted) (quoting State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006)). There was certainly evidence from which a jury could have inferred premeditation. But there was also evidence from which it could have inferred that premeditation was lacking. Specifically, the evidence supported an inference that the shooting was a sudden reaction, based in fear rather than “weighing or reasoning.” Condon, 2013 WL 1628247, at *6, 2013 Wash. App. LEXIS 815, at *16 (“A jury could conclude from the testimony of the eyewitnesses that Mr. Condon shot Mr. Ramirez in reaction to Mr. Ramirez trying to wrest the handgun from him, or that he shot Mr. Ramirez because Mr. Lozano was turning purple from Mr. Ramirez’s chokehold.”).

¶30 When applying Workman’s factual prong, a court must view the supporting evidence in the light most favorable to the party requesting the lesser included offense instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). The trial court here failed to do that. The evidence supported an inference that the shooting was impulsive and reactionary. Testimony that Condon later reflected on the shooting was not sufficient to defeat that inference for purposes of Workman’s factual prong.⁵

¶31 Because a rational jury could have had a reasonable doubt as to premeditation, the Court of Appeals correctly rejected the trial court’s reasoning about Workman’s factual prong. The trial court erred when it concluded that the evidence did not support an inference that second degree murder was committed to the exclusion of the greater charged offense of aggravated first degree (premeditated) murder.

ii. For purposes of the Workman test, the relevant charged offense is aggravated first degree (premeditated) murder; accordingly, we consider only that offense when applying Workman’s factual prong

¶32 On appeal, the State did not argue that the evidence was insufficient to support an inference that second degree murder was committed to the exclusion of aggravated first degree premeditated murder.⁶ Instead, it argued that even if the jury had a reasonable doubt as to premeditation, there was still no doubt that the fatal shooting occurred during the course of a burglary; thus, no juror could rationally conclude that Condon committed second degree intentional murder to the exclusion of first degree felony murder: “If the jury was convinced of [Condon’s] involvement in the burglary, but not premeditation, the only murder charge on which they could have convicted was the alternative, felony murder.” Br. of Resp’t at 16.

¶33 In other words, although the State recognizes that under Berlin and Warden, aggravated first degree (premeditated) murder is the only relevant charged offense for purposes of Workman's legal prong, the State argues that under Workman's factual prong we should also consider a second charged offense: first degree felony murder.

¶34 Condon does not argue that the evidence supports an inference that the fatal shooting occurred in a context other than a burglary. Instead, he argues — and the Court of Appeals agreed — that because the felony murder charge is irrelevant under Workman’s legal prong, it is also irrelevant under Workman's factual prong.

¶35 There is admittedly some tension in our case law regarding the application oí Workman’s factual test in cases where the State charges both intentional murder and felony murder. In some cases, we have applied Workman's factual test just as Condon urges and the Court of Appeals did below. In those cases, we have asked whether the facts support an inference that the defendant committed the lesser crime to the exclusion of only one charged offense— the greater, charged offense relevant under Workman’s legal prong. E.g., Berlin, 133 Wn.2d at 551-52 (concluding that Workman's factual prong was satisfied because the evidence supported an inference that the defendant had no ability to form the “requisite intent to kill” — an intent necessary for conviction of charged second degree murder, but not for charged felony murder); Warden, 133 Wn.2d at 564 (same); accord State v. Schaffer, 135 Wn.2d 355, 357, 957 P.2d 214 (1998); State v. Grier, 171 Wn.2d 17, 25, 246 P.3d 1260 (2011). Under that approach, we do not inquire whether the facts also support an inference that the defendant committed the lesser crime to the exclusion of the separate felony murder charged. Berlin, 133 Wn.2d at 551-52; Warden, 133 Wn.2d at 564.

¶36 But in other cases we have taken the approach advocated by the State. In those cases we have considered only one charged offense under Workman's legal prong (intentional or premeditated murder), but two charged offenses under Workman's factual prong (intentional or premeditated murder and felony murder). E.g., State v. Ortiz, 119 Wn.2d 294, 313-14, 831 P.2d 1060 (1992); State v. Bowerman, 115 Wn.2d 794, 805-08, 802 P.2d 116 (1990). These cases proceed on the theory that while the felony murder charge is irrelevant under Workman's legal test, it will still bar a lesser included offense instruction under Workman's factual test when the evidence does not support an inference that the lesser offense occurred to the exclusion of the felony murder charged. Ortiz, 119 Wn.2d at 313-14; Bowerman, 115 Wn.2d at 805-08.

¶37 The tension between these cases — the Ortiz line and the Berlin/Warden line — highlights some difficult issues regarding the interaction between felony murder and lesser included offense instructions. These issues include whether felony murder can ever be considered a greater offense with respect to manslaughter⁷ and whether felony murder can be an alternative offense to, or a lesser included offense of, aggravated premeditated murder.⁸ The specific difficult issue presented in this case — and the only one we address — is whether we should follow the Berlin line, under which Condon is entitled to a lesser included offense instruction on second degree intentional murder, or the Ortiz line, under which he is not.

¶38 For two reasons, we affirm the Berlin line and disapprove the analysis in the Ortiz line. First, Berlin and its progeny are the more recent precedent. Thus, to the extent the Ortiz line is inconsistent, its reasoning has been undermined by the Berlin line.

¶39 Second, the reasoning in Berlin and its companion case, Warden, is significantly more in-depth than the reasoning in Ortiz. As explained above, Berlin and Warden came to this court as a request to overrule the recent Lucky decision and prompted a wide-ranging analysis of this court’s cases on felony murder and the Workman test. See discussion of Berlin, 133 Wn.2d at 547-49, and Warden, 133 Wn.2d at 562, supra, pp. 316-18. We do not overturn precedent lightly and did so in Berlin/Warden only after carefully considering questions of statutory interpretation, precedent, policy, and equity. Such considerations are entirely absent from the Ortiz decision. 119 Wn.2d at 331.

¶40 Under Berlin’s approach, which we now expressly affirm, a defendant charged with both intentional (or premeditated) murder and felony murder is entitled to a lesser included offense instruction if it satisfies both prongs of the Workman test as to intentional (or premeditated) murder. In other words, the party requesting an instruction on a crime that is a lesser offense of intentional or premeditated murder under Workman’s legal test does not need to show that it is also a lesser included offense of felony murder under the legal test, or that the evidence supports an inference that the lesser crime occurred to the exclusion of felony murder under the factual test.

¶41 We know this because the evidence in Berlin did not support an inference that the defendant had committed manslaughter — the lesser included offense instruction requested — to the exclusion of the alternatively charged felony murder. Instead, the evidence — from Berlin’s own testimony — was that the defendant and the victim had “struggled” and that a gun in the defendant’s possession had accidentally discharged during the “struggle[ ].” 133 Wn.2d at 552. These facts established that the defendant had, at the very least, accomplished a killing during the course of an assault.⁹ Nevertheless, this court held that the defendant was entitled to the manslaughter instruction because “ample evidence was offered of [his] drinking to the point of potentially impairing his ability to form the requisite intent to kill” Id. (emphasis added).

¶42 The intent to kill is necessary for conviction of intentional murder, but not for conviction of felony murder. State v. Gamble, 154 Wn.2d 457, 468-69, 114 P.3d 646 (2005). Thus, it is clear that in Berlin, the felony murder charge played no role in the application of Workman’s factual test. Under that factual test, just as under the legal test, the Berlin court focused only on the intentional murder charge and did not ask whether the evidence also supported an inference that manslaughter occurred to the exclusion of felony murder.

¶43 The same was true in Warden, 133 Wn.2d 559, which is even closer factually to Condon’s case. In Warden, the defendant was charged with both first degree premeditated murder and felony murder predicated on robbery. Id. at 561. The defense asserted diminished capacity due to Warden’s posttraumatic stress disorder; a defense expert testified that “it was his opinion that Warden lacked the mental capacity to form the intent to kill.” Id. at 564. This court did not say anything about whether there was any evidence negating Warden’s intent to rob. It nevertheless held that the defendant was entitled to an instruction on the lesser included offense of manslaughter because her evidence of diminished capacity supported an inference that she “lacked the intent to kill . . . yet . . . acted recklessly or negligently in causing [the victim’s] death.” Id. It made no inquiry into whether the evidence supported an inference that the defendant lacked the requisite intent to commit the robbery supporting the felony murder charge.

¶44 We apply the same analysis here. At Condon’s trial, evidence was presented that supported an inference that second degree (intentional) murder occurred to the exclusion of premeditated murder. Under our Berlin line of cases, this is all that Workman's factual prong requires.

¶45 Finally, as the dissent acknowledges, our controlling precedent holds that the erroneous failure to instruct the jury on a lesser included offense necessitates reversal. See dissent at 331-32 (citing State v. Parker, 102 Wn.2d 161, 164, 683 P.2d 189 (1984)). No one has argued that Parker is incorrect and harmful; thus, we may not hold this error harmless. See In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (precedent will not be overturned absent a showing that it is both incorrect and harmful).

¶46 For the foregoing reasons, we affirm the decision of the Court of Appeals.

Owens, Stephens, and Wiggins, JJ., and Dwyer, J. Pro Tem., concur.

Footnotes

1

In accordance with its instructions, after finding Condon guilty of aggravated murder, the jury did not address the question of whether Condon was guilty of first degree felony murder.

2

See, e.g., 6 TP (Feb. 1, 2011) at 1139 (“The allegation of the State is that two people are in this house burst in by force, wrestled around, touching God knows what in that house and we saw photographs and a video. Is there a fingerprint anywhere that the authorities are able to pick up anywhere on anything? No.”), 1148 (“It’s up to you to evaluate the credibility of this person, who he is - trapped in the system and trying to scratch out whatever it is that he can scratch out and he’s not doing too badly. He would be willing to say anything.”), 1147 (“Ms. Gregorio told officers within an hour after this happened that these two people were either Hispanic or native and one was taller or shorter; one was taller, one was shorter. That’s all she said. Everything else came later.”).

3

6 TP (Feb. 1, 2011) at 1084-85 (“The other . . . question is can second degree murder be offered as a lesser included to the second alternative or the felony-murder and I don’t believe it is a lesser included .. . [s]o ... as a lesser included of the second alternative I don’t believe it survives the Workman test, particularly on the legal prong.”).

4

Compare RCW 9A.32.050 (person commits second degree murder when, with intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person), with RCW 9A.32.030(l)(a) (person commits first degree murder when, with a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person), and RCW 10.95.020 (listing aggravating circumstances).

5

Indeed, the trial court’s conclusion that reflection after the fact could show premeditation is probably wrong as a matter of law. To the extent that this is true, that decision is reviewed de novo. Walker, 136 Wn.2d at 771-72. Regardless of the standard applied, however, the trial court erred in concluding that the evidence did not support an inference that the shooting occurred without premeditation.

6

Br. of Resp’t at 14-15; Suppl. Br. of Pet’r at 9-10.

7

Compare State v. Tamalini, 134 Wn.2d 725, 728-36, 953 P.2d 450 (1998) (holding that the defendant, who was charged with felony murder, was not entitled to a lesser included instruction on manslaughter, because manslaughter is neither a lesser included offense nor an inferior degree crime with respect to felony murder), with Schaffer, 135 Wn.2d at 358-59 (remanding for retrial on sole charge of felony murder, recognizing that the evidence supported an inference that only manslaughter occurred, and holding that the defendant would be entitled to a “lesser offense” instruction on manslaughter even though manslaughter is not a lesser included offense to felony murder under Workman’s legal prong).

8

In In re Personal Restraint of Lord, 123 Wn.2d 296, 304, 868 P.2d 835, 870 P.2d 964 (1994), for example, we concluded that because “aggravated first degree murder and first degree felony murder are [neither] different means of commit ting the same offense, nor . . . greater and lesser offenses,” the jury may be instructed on both offenses only when the State has included both charges in the information. We based this conclusion on State v. Irizarry, 111 Wn.2d 591, 594, 763 P.2d 432 (1988), in which we held that aggravated premeditated murder did not “include! ]” the lesser crime of felony murder, even when the aggravator alleged was the fact that the homicide occurred during the commission of a felony. In this case, in contrast, the State explicitly charged aggravated murder and felony murder as “alternative” means of committing the same offense. CP at 302 (boldface omitted).

9

See State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396 (1995) (assault accomplished where defendant either “ ‘attempt[s], with unlawful force, to inflict bodily injury upon another, [and has] the apparent present ability to give effect to the attempt if not prevented,’ ” or intentionally creates in the victim’s mind a reasonable apprehension of harm (quoting Howell v. Winters, 58 Wash. 436, 438, 108 P. 1077 (1910))).