State v. Condon

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, NO. 88854-0
Petitioner,
v. ENBANC

JOEL CAMERON CONDON,
Respondent. Filed JAN 0 8 2015

GORDON McCLOUD, J.-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

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.
             
State v. Condon (Joel), No. 88854-0

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.

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.

We affirm the Court of Appeals.

FACTS

On January 20, 2009 two men kicked down the door and entered the home

where Carmelo Ramirez and Enedina Gregorio lived with their three children. The

intruders apparently believed (mistakenly) that they were at the home of a dn1g

dealer who they planned to rob.

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.

2
             
State v. Condon (Joel), No. 88854-0

At that moment a family friend, Martin Gutirrez, pulled into the driveway and,

according to Gregorio, frightened the intruders. Gregorio heard gun shots, and the

two intruders fled, leaving a cell phone behind. Ramirez staggered 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.

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-W ak," 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. ofProceedings (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.

From Lozano's description, police identified Joel Condon 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 ofRCW 9A.32.030(1)(a) and RCW 10.95.020(11)(a); one count of first

degree felony murder predicated on first degree burglary and attempted first degree

robbery, in violation ofRCW 9A.32.030(1)(c); one count of first degree burglary, in

3
             
State v. Condon (Joel), No. 88854-0

violation of RCW 9A.52.020(1)(b); and one count of second degree unlawful

possession of a firearm, in violation ofRCW 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 ot: in furtherance of, or in immediate flight

from" a first degree burglary and/or an attempted first degree robbery. CP at 302.

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 shooting 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

Before closing arguments, defense counsel requested that the jury be

instructed on second degree intentional murder as a lesser included offense to

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.").
4
             
State v. Condon (Joel), No. 88854-0

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.

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.

Condon appealed, and the Court of Appeals reversed. Condon, 2013 WL

162824 7. 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 premeditated." Id. at *8. 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." Id. at *7.

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

5
             
State v. Condon (Joel), No. 88854-0

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.3d26 (2013).

ANALYSIS

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

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).

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(1 )(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.
6
             
State v. Condon (Joel), No. 88854-0

"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 oftime." RCW 9A.32.020(1).

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

andLuvene.

7
             
State v. Condon (Joel), No. 88854-0

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

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). Ifthe 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.

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 offact 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-prong Workman test

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-

8
             
State v. Condon (Joel), No. 88854-0

prong 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. !d. at 448. The requesting party is entitled to the lesser

included offense instruction when the answer to both questions is yes. !d.

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] requir[ed] 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)).

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State v. Condon (Joel), No. 88854-0

One year after Lucky was decided, this court heard two companion cases,

Berlin, 133 Wn.2d at 547-549, 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.

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. !d. 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).

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

10
             
State v. Condon (Joel), No. 88854-0

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. I d.

at 54 7-48 ("As these companion cases so aptly illustrate, an inequity may arise for

either the prosecution or the defense.").

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. I d. at 543-44, 550.

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

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. ld. at 543-44. Second degree

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.").

11
             
State v. Condon (Joel), No. 88854-0

(intentional) murder is a lesser included offense with respect to aggravated first

degree (premeditated) murder under the legal test, because it consists solely of

elements that are necessary to 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

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.

1. 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

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(1)(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).
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State v. Condon (Joel), No. 88854-0

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.

This reasoning is not sound. As the Court of Appeals correctly concluded,

"premeditation ... requir[es] 'more than a moment in point of time."' Condon, 2013

WL 1628247, at *6 (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.'" I d.
13
             
State v. Condon (Joel), No. 88854-0

(emphasis and 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." Id. ("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.")

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

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.
14
             
State v. Condon (Joel), No. 88854-0

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

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. ofResp't at 16.

In other words, although the State recognizes that under Berlin and Warden,

aggravated first degree (premeditated) murder is the only relevant charged offense

6
Br. ofResp't at 14-15; Suppl. Br. ofPet'r at 9-10.
15
             
State v. Condon (Joel), No. 88854-0

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.

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.

There is admittedly some tension in our case law regarding the application of

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

16
             
State v. Condon (Joel), No. 88854-0

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.

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.

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

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
17
             
State v. Condon (Joel), No. 88854-0

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.

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.

Second, the reasomng m Berlin and its compamon case, Warden, is

significantly more in-depth than the reasoning in Ortiz. As explained above, Berlin

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 Pers. Restraint ofLord, 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 committing 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).
18
             
State v. Condon (Joel), No. 88854-0

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. 9-11. 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 31.

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.

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

19
             
State v. Condon (Joel), No. 88854-0

"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." !d.

at 552 (emphasis added).

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.

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

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))).
20
             
State v. Condon (Joel), No. 88854-0

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." ld. 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." ld. 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.

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.

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 7 (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

21
             
State v. Condon (Joel), No. 88854-0

649, 653, 466 P.2d 508 (1970) (precedent will not be overturned absent a showing

that it is both incorrect and harmful).

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

22
 State
v. Condon
  (Joel),
 
No. 88854-0      

WE CONCUR:

--~-----,..·-~

I -

23
             
State v. Condon, No. 88854-0 (Gonzalez, J., dissenting)

GONZALEZ, J. ( dissenting)-An instruction on a lesser included offense

is available to either the prosecution or the defense under a two-pronged test

articulated in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).

The instruction is available when (1) the lesser included offense consists solely

of elements that are necessary to convict on the greater, charged offense (the

legal prong) and (2) the evidence presented in the case supports an inference

that only the lesser offense was. committed to the exclusion of the greater,

charged offense (the factual prong). State v. Berlin, 133 Wn.2d 541, 546, 947

P.2d 700 (1997) (citing Workman, 90 Wn.2d at 447-48); State v. Fernandez-

Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000) (citing State v. Bowerman,

115 Wn.2d 794, 805, 802 P.2d 116 (1990)). The legal prong of the Workman

test incorporates the constitutional requirement that a defendant must have

notice of the offense of which he or she is charged. Berlin, 133 Wn.2d at 546

(citing State v. Ackles, 8 Wash. 462,464,36 P. 597 (1894)). If a defendant is

charged with offenses in the alternative, the constitutional requirement of

notice is satisfied as long as the legal test is met for one of the charged

alternatives. !d.; see also State v. Warden, 133 Wn.2d 559, 562-63, 947 P.2d

1
  
State v.  No.
Condon,  
88854-0 (Gonzalez,    
J., dissenting)  

708 (1997). I disagree with the majority opinion that from this it follows we

can ignore the charged alternative when determining whether there is a factual

basis to offer the lesser included instruction, and so I respectfully dissent.

Our lesser included statute, which dates back to 1854, was a codification

of a common law rule dating back at least to 16th century English common

law. RCW 10.61.006; LAWS OF 1854, § 123, at 20; State v. Miller, 841 N.W.2d

583, 586 (Iowa 2014) (quoting State v. Jeffries, 430 N.W.2d 728, 730 (Iowa

1988); Janis L. Ettinger, In Search of a Reasoned Approach to the Lesser

Included Offense, 50 BROOKLYN L. REv. 191, 195 (1984)); see also Berlin, 133

Wn.2d at 544 (citing Beck v. Alabama, 447 U.S. 625, 633, 100 S. Ct. 2382, 65

L. Ed. 2d 392 (1980)). The common law rule originally developed "as an aid to

the prosecution when the evidence introduced at trial failed to establish an

element ofthe crime charged." Berlin, 133 Wn.2d at 544 (citing Beck, 447

U.S. at 633); see also Keeble v. United States, 412 U.S. 205, 208, 93 S. Ct.

1993, 36 L. Ed. 2d 844 (1973). The doctrine evolved to play an important role

protecting procedural fairness and substantial justice for the accused as well.

See, e.g., Berlin, 133 Wn.2d at 544-45. Courts observed that "[ w]here one of

the elements of the offense charged remains in doubt, but the defendant is

plainly guilty of some offense, the jury is likely to resolve its doubts in favor of

conviction." Keeble, 412 U.S. at 212-13 (emphasis omitted). Thus, a

defendant must be able to argue an alternative theory of the case that is

2
             
State v. Condon, No. 88854-0 (Gonzalez, J., dissenting)

supported by the evidence to guarantee him or her the full benefit of the

reasonable doubt standard. I d.; see also Berlin, 133 Wn.2d at 544-45 (citing

Beck, 447 U.S. at 633).

I would affirm our line of cases where we permitted an instruction only

where the evidence presented would permit a rational jury to convict a

defendant of the lesser crime and acquit on both charged alternative means of

committing a crime. See State v. Ortiz, 119 Wn.2d 294, 314, 831 P .2d 1060

(1992); Bowerman, 115 Wn.2d at 807; Warden, 133 Wn.2d at 564. Workman's

factual prong requires that there is evidence to support an inference that only

the lesser included offense was committed to the exclusion of the charged

offense. Fernandez-Medina, 141 Wn.2d at 455 (citing Bowerman, 115 Wn.2d

at 805). Where the State charges the defendant with alternative means of

committing an offense, there is simply no factual basis for acquittal on the

greater charge and conviction on the lesser if the test is met as to one charged

alternative but not the other. Although criminal defendants should be given the

benefit of the doubt and all fair inferences should be indulged, "there must be

some rational basis for the lesser charge; otherwise it is merely a device for

defendant to invoke the mercy-dispensing prerogative of the jury, and that is

not by itself a permissible basis to require a lesser-included offense

instruction." United States v. Sinclair, 144 U.S. App. D.C. 13, 444 F.2d 888,

890 (1971) (footnote omitted) (citing Kelly v. United States, 125 U.S. App.

3
             
State v. Condon, No. 88854-0 (Gonzalez, J., dissenting)

D.C. 205, 207, 370 F.2d 227, 229 (D.C. Cir. 1966)); see also Sparfv. United

States, 156 U.S. 51,63-64, 15 S. Ct. 273, 39 L. Ed. 343 (1895). Our lesser

included jurisprudence has long emphasized the purpose of offering a lesser

included instruction is not to "'invite the jury to find for a lower grade than is

made by the evidence."' State v. McPhail, 39 Wash. 199, 205, 81 P. 683

(1905) (quoting State v. Wood, 124 Mo. 412, 27 S.W. 1114, 1114 (1894) and

citing State v. Bailey, 31 Wash. 89, 96, 71 P. 715 (1903)). Rather, it is to

ensure the defendant receives the full benefit of the reasonable doubt standard

where an alternative theory of the case is actually supported by the evidence.

In Bowerman, 115 Wn.2d at 807, we held it was not error for the trial

court to decline first and second degree manslaughter instructions where

Bowerman was charged with premeditated murder and, in the alternative,

felony murder predicated on burglary. Bowerman brought a diminished

capacity defense that went to negate her capacity to premeditate on, and form

the intent to bring about, the death of the victim. We found that this evidence,

which supported an inference that manslaughter was committed rather than

premeditated murder, "did nothing, however, to negate Bowerman's alternative

charge of first degree felony murder." !d. We pointed out that "Bowerman's

testimony establishe[ d] that she helped Hutcheson commit first degree

burglary" and there was no testimony that Bowerman "could not form the

intent to ... plan the illegal entry." !d.

4
  
State v.  No.
Condon,  
88854-0 (Gonzalez,    
J., dissenting)  

We followed the same principle in State v. Ortiz, 119 Wn.2d 294, 831

P.2d 1060 (1992). Ortiz was charged with premeditated murder and, in the

alternative, felony murder predicated on rape. We held an instruction on

second degree murder was unsupported by the evidence because "[i]t was

unrefuted that a rape was committed" and "the same person must have

committed the rape and the murder, as evidenced by the footprints sealed in

blood." Id. at 314. We concluded the instruction was not warranted then

because "at the very least, the crime committed was first degree felony

murder." Id.

In this case, an alternative theory that Condon committed the murder, but

that he did so without intending to commit a burglary, is not supported by the

evidence. Like in Ortiz, the crime committed was first degree felony murder at

the very least. !d. The instructions as they were given to the jury permitted

Condon to argue that the State failed to meet its burden of proof as to

premeditation, an alternative theory that was supported by the evidence.

Instead, Condon simply chose to argue that he did not participate in the events

that night. Because the factual prong is not met as to both charged alternatives

of first degree murder, the trial court properly denied a lesser included

instruction.

The majority acknowledges there is tension in our case law regarding the

application of Workman's factual test in cases where the State charges

5
             
State v. Condon, No. 88854-0 (Gonzalez, J., dissenting)

intentional murder and felony murder in the alternative. But the majority

follows a line of cases where we ignored, for whatever reason, a charged

alternative and asked only whether the facts supported an inference that the

defendant committed the lesser cri1ne to the exclusion of the greater, charged

offense relevant under Workman's legal prong. See majority at 16-17 (citing

Berlin, 133 Wn.2d at 551-52; State v. Shaffer, 135 Wn.2d 355,357,957 P.2d

214 (1998); State v. Grier, 171 Wn.2d 17, 25, 246 P.3d 1260 (2011)). The only

reasons the majority provides for its holding is that Ortiz is older and "the

reasoning in Berlin ... is significantly more in-depth" since Berlin "came to

this court as a request to overrule [precedent]." Majority at 19. In Berlin we

were asked to overrule our holding in State v. Lucky, 128 Wn.2d 727, 912 P.2d

483 (1996), that the legal prong of the Workman test could not be met unless

the elements of the lesser crime were included in every statutory alternative of

the charged crime, regardless of whether any of the alternatives were actually

charged. Berlin, 133 Wn.2d at 547-49. We overruled Lucky and returned to an

examination of the legal elements of the crime as actually charged and

prosecuted. I d. at 548. There was no controversy in Berlin about how to

decide whether there was a factual basis to offer the lesser included instruction,

and the "in-depth reasoning" in Berlin does not examine the question before us.

I also dissent because, even if it was error not to give the lesser included

instruction, it was harmless. A nonconstitutional error is harmless '"unless,

6
  
State v.  No.
Condon,  
88854-0 (Gonzalez,    
J., dissenting)  

within reasonable probabilities, had the error not occurred, the outcome of the

trial would have been materially affected.'" State v. Gresham, 173 Wn.2d 405,

425, 269 P.3d 207 (2012) (internal quotation marks omitted) (quoting State v.

Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).

I recognize that in State v. Parker, 102 Wn.2d 161, 164, 683 P .2d 189

(1984), we noted we have never held that failure to give a warranted lesser

included instruction may be harmless. In Parker, the trial court erroneously

declined to give a lesser included instruction and the jury was given an ali-or-

nothing choice to convict of the charged crime or to acquit. !d. at 166. The

nature of the error was such that it undermined confidence that the jury

followed the instructions and gave the defendant the full benefit of the

reasonable doubt standard, and so we did not employ the general presumption

that the jury followed the court's instructions. !d. at 164 (quoting State v.

Young, 22 Wash. 273,276-77,60 P. 650 (1900)). Instead, we declined to

speculate on the probable results had the instruction been given. !d. (quoting

Young, 22 Wash. at 276-77). But Parker is not controlling because in this case,

the jury was not given an ali-or-nothing choice. Other Washington courts have

found the failure to give a lesser included instruction harmless where the jury

was not presented with an ali-or-nothing choice, and an omitted instruction

would have been necessarily rejected because it is logically inconsistent with

the verdicts the jury actually reached. State v. Guilliot, 106 Wn. App. 355,

7
             
State v. Condon, No. 88854-0 (Gonzalez, J., dissenting)

368-69, 22 P.3d 1266 (2001); State v. Hansen, 46 Wn. App. 292, 296, 730 P.2d

706 (1986). We should follow this analytical approach.

For example, in State v. Hansen, 46 Wn. App. 292, 292, 730 P.2d 706

( 1986), the defendant was convicted of first degree kidnapping and rape while

armed with a deadly weapon. The jury was instructed on the lesser included

crime of second degree kidnapping, but the trial court declined to instruct on

the lesser included crime of unlawful imprisonment. !d. at 295-96. The Court

of Appeals found it was error for the trial court to refuse the unlawful

imprisonment instruction, but found it was harmless because the jury rejected

the intermediate offense of second degree kidnapping. !d. at 298. The Hansen

court explained:

In the case at bar, the jury was instructed on the intermediate
offense of second degree kidnapping. If the jury believed that Hansen
was less culpable because of his drug-induced mental disorder, logically
it would have returned a conviction on the lesser crime of second degree
kidnapping. Second degree kidnapping requires only an intent to abduct.
To convict Hansen of first degree kidnapping, the jury had to find he
intended to abduct the victim with the intent to facilitate the rape. In our
view, the jury's verdict on the highest offense was an implicit rejection
of all lesser included offenses that could have been based upon Hansen's
diminished capacity defense.

!d.

Employing the same logic, the Court of Appeals in Guilliot, 106 Wn.

App. at 368-69, found that failing to instruct the jury on first and second degree

manslaughter (lesser included crimes of premeditated murder that were

8
  
State v.   No.
Condon,  
88854-0 (Gonzalez,    
J., dissenting)  

warranted) was harmless because the jury was instructed on the intermediate

offense of second degree murder. There, Guilliot argued the shooting was

accidental. Id. at 369. The appellate court found the jury could have concluded

he acted negligently or recklessly by failing to appropriately monitor his blood

sugar or not acting with caution when showing the gun, but "[i]fthe jury

believed Guilliot was less culpable due to accident or hypoglycemia, logically

it would have returned a verdict on the lesser offense of second degree

murder." Id.

The verdicts entered in this case demonstrate the jury would not have

convicted Condon of second degree murder had the instruction been given, and

thus any error was harmless. In the absence of a reason to conclude otherwise,

we presume juries follow the instructions given by courts. State v. Ervin, 158

Wn.2d 746, 756, 147 P.3d 567 (2006) (citing State v. Stein, 144 Wn.2d 236,

247, 27 P.3d 184 (2001)). The jury was accurately instructed on the elements

of premeditated murder, and it entered a guilty verdict without reaching the

felony murder alternative. Applying that presumption, it follows that the jury

found the State proved premeditation. Even if the jury had rejected

premeditation, a verdict on second degree murder to the exclusion of felony

murder would have been inconsistent with the jury's guilty verdict on burglary.

That guilty verdict tells us the jury was not in the position of finding Condon

guilty of a murder without committing burglary.

9
   v.  No.
       
State Condon, 88854-0 (Gonzalez, J., dissenting)

The Court of Appeals erroneously concluded that any error in this case

could not be harmless because the jury's attention was not effectively drawn to

the difference between intent and premeditation. State v. Condon, noted at 174

Wn. App. 1041, 2013 WL 1628247, at *7-8. In fact, the jury was instructed on

the definitions of "intent" and "premeditation" because both arc elements of

premeditated murder. RCW 9A.32.030(1)(a). At least one other jurisdiction

has found the failure to instruct on a warranted lesser included offense is not

harmless where the elements of the charged crime are clearer when they are

viewed in contrast with the elements of a lesser included offense. State v.

Zolotojf, 354 Or. 711, 719, 320 P.3d 561 (2014). In other words, the error is

not harmless where an instruction on a lesser included offense would disclose a

legal distinction that is not otherwise patent and would be helpful to the jury in

deciding whether the defendant is guilty of the charged offense. For example,

in Zolotojf, the defendant was convicted of possession of a weapon by an

inmate and the Oregon Supreme Court found that an instruction on the lesser

included offense-attempted possession of a weapon-would have illuminated

a nuanced distinction that the alleged weapon was not in fact a weapon if it was

only partially made into a weapon. Id. at 719-20. Unlike the scenario in

Zolotojf, an instruction on second degree murder would not have provided any

additional clarity about the distinction between intent and premeditation.

10
   v.  No.
       
State Condon, 88854-0 (Gonzalez, J., dissenting)

I would hold Workman's factual prong must be met as to both charged

alternatives and so the lesser included instruction was not warranted.

Moreover, even if there was instructional error here, it was harmless. Thus r·

respectfully dissent.

11
             
State v. Condon, No. 88854-0 (Gonzalez, J., dissenting)

12
             

State v. Condon (Joel Cameron)

No. 88854-0

MADSEN, C.J. (concurring in the dissent)-! agree with the majority that Joel

Condon was entitled to a jury instruction on second degree intentional murder as a lesser

included offense to aggravated premeditated murder. However, considering that Condon

bases his challenge to the failure to instruct on a lesser offense on lack of premeditation

and the jury convicted Condon of premeditated murder and first degree burglary, as well

as the fact that the jury followed the instructions, which included an admonishment not to

consider felony murder unless it could not agree on aggravated premeditated murder,

convinces me that the error in failing to give the lesser included instruction was harmless

in this case. Therefore, I concur with the dissent in its harmless error analysis and its

result.

'/J{d-~) c /. (7