I dissent. The majority recognize that the trial court erred in failing to instruct on the lesser included offense of theft and in failing to provide theft verdict forms. The errors are of constitutional dimension, depriving a defendant of the fundamental fairness demanded by due process.
The majority fail to recognize the extent of prejudice flowing from the errors. Defendant told a plausible story that the fight was triggered by decedent’s attack and that he decided to steal after the death. The prosecution theory is hard to believe in light of the undisputed circumstantial evidence: it is difficult to believe, when defendant set out from Fresno to Merced and brought along only a knife that he intended to rob. It is equally difficult to believe that after spending time with decedent and his friends and acquaintances, defendant decided to rob. The choice of weapon is uncommon for robbery and people seldom rob when they may be so easily identified and located.
In a case such as this, where the defendant takes the stand and confesses to theft, the effect of the errors is to deny the defendant any instruction on his defense. Instead, the jurors were placed in the position that, if they were to credit defendant’s testimony, they would have to acquit defendant even though they heard him confess to felonies from the witness stand. In these circumstances, it is likely that the jurors, rather than give defendant the benefit of the reasonable-doubt instruction that is fundamental to our criminal law, would lean over backward to find defendant guilty of robbery in order to avoid acquitting a confessed felon. The unfairness is manifest.
The majority argue that the errors were not prejudicial because the factual question posed by the omitted instruction was necessarily resolved against defendant under other, proper instructions. However, those instructions were applicable on the basis of a finding of robbery, which is the result of the error, and the jury once having made the factual determination that the intent to steal preceded the fight could not be expected to fairly reconsider the same factual issue. The later instructions did not eliminate the *720prejudice flowing from the errors. The asserted factual finding flowing from those instructions in effect flows directly from the errors.
I. The Errors
The right to instructions on lesser included offenses is an aspect of the fundamental fairness demanded by due process, and such instructions are required in capital cases by the federal Constitution. (Beck v. Alabama (1980) 447 U.S. 625, 627 et seq. [65 L.Ed.2d 392, 396, 100 S.Ct. 2382].) The right in noncapital cases is an incident to due process guaranteed by our state Constitution. Absence of lesser-included-offense instructions diminishes the reliability of the determination. (People v. Geiger (1984) 35 Cal.3d 510, 518-520 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055].)
Theft is a lesser included offense to robbery, which includes the additional element of force or fear. (People v. Melton (1988) 44 Cal.3d 713, 746 [244 Cal.Rptr. 867, 750 P.2d 741]; People v. Covington (1934) 1 Cal.2d 316, 320-321 [34 P.2d 1019].) The court must instruct on a lesser included offense on its own motion “ ‘when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ ” (People v. Melton, supra, 44 Cal. 3d 713, 746.) Had a properly instructed jury convicted defendant of theft, the evidence would be sufficient to uphold the conviction.
People v. Ramkeesoon (1985) 39 Cal.3d 346 [216 Cal.Rptr. 455, 702 P.2d 613] presented an analogous record, in that defendant was charged with robbery and murder, and the court failed to instruct on theft where the defendant testified that his intent to steal arose after the killing. There, defendant’s convictions of first degree murder and robbery were reversed on the ground that the trial court erred in refusing to instruct on larceny and theft as a lesser included offense of robbery.
The court in its unanimous opinion stated: “It cannot be seriously disputed that the court erred. . . . It is well settled that the trial court is obligated to instruct on necessarily included offenses—even without a request—when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. (People v. Wickersham (1982) 32 Cal.3d 307, 325 [185 Cal.Rptr. 436, 650 P.2d 311]; People v. Sedeno (1974) 10 Cal.3d 703, 715 [112 Cal.Rptr. 1, 518 P.2d 913].)
“The necessity for instructions on lesser included offenses is based in the defendant’s constitutional right to have the jury determine every material issue presented by the evidence. (People v. Geiger (1984) 35 Cal.3d 510, 519 *721[199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055]; People v. Modesto (1963) 59 Cal.2d 722, 730 [31 Cal.Rptr. 225, 382 P.2d 33].) As the United States Supreme Court explained in Keeble v. United States (1973) 412 U.S. 205, 212 [36 L.Ed.2d 844, 850, 93 S.Ct. 1993]: ‘[I]t is no answer to petitioner’s demand for a jury instruction on a lesser included offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other— precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where 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.’ (See also People v. St. Martin (1970) 1 Cal.3d 524, 533 [83 Cal.Rptr. 166, 463 P.2d 390].)
“Clearly the evidence in this case warranted an instruction on theft as a lesser included offense. Defendant testified that he had not thought about stealing any of Mullins’ property until after the assault was completed. If defendant had not harbored a larcenous intent before or during the assault, the taking was theft rather than robbery. (People v. Green (1980) 27 Cal.3d 1, 54 [164 Cal.Rptr. 1, 609 P.2d 468].) Although the jury was not required to believe defendant’s testimony, it was credible enough to have supported a verdict of theft instead of robbery. (See People v. Wickersham, supra, 32 Cal.3d at p. 325.)” (People v. Ramkeesoon, supra, 39 Cal.3d 346, 351, italics in original.)
Defendant in the instant case, as in Ramkeesoon, testified that he had not thought about stealing any property until after the fight was completed. If he did not harbor larcenous intent before or during the fight, the taking was theft instead of robbery. He confessed from the witness stand to taking the television set and stealing the car. The fact that he said he panicked would not preclude a finding of theft. Defendant’s testimony and the similar statements related by the psychiatrist were sufficiently credible to have supported a verdict of theft instead of robbery.
I conclude, as the majority do, that the trial court erred in failing to instruct on the lesser included offense of theft.
II. The Prejudice
As in Ramkeesoon (supra, 39 Cal.3d at pp. 351-353), the error is prejudicial in the circumstances of this case. Defendant’s testimony that the fight *722erupted when decedent attempted to attack him sexually was plausible under the other evidence in the case.
The crucial factual issue presented by the case, since defendant admitted killing and stealing, was the time defendant formed the intent to steal.1 Defendant testified that decedent attempted to rape him, that he responded using his buck knife to stab decedent, that they fought as he continued to cut and stab decedent, and that it was only after he found decedent dead that he decided to steal anything. There was circumstantial evidence that supported defendant’s testimony. Thus, there was circumstantial evidence that in hiring defendant, who had a full-time job and lived in another city, to do gardening work, decedent may have had an ulterior sexual motive. I do not understand the majority to argue otherwise. (See maj. opn., ante, at p. 689.) There was also the evidence that decedent ejaculated. The prosecution presented expert testimony that ejaculation has been known to occur immediately prior to death, apparently when no sexual activity was involved. This evidence precluded the ejaculation evidence from being conclusive on the sexual-conduct issue but did not mean that the ejaculation evidence was not entitled to substantial weight in evaluating defendant’s claim that decedent attacked him.
The majority fail to mention that decedent was six feet three inches tall and suffered from a weight problem. The evidence is important to the defense because it suggests that decedent probably would have been able to subdue defendant in a physical attack in the absence of any weapon. (But cf. maj. opn., ante, at p. 689.)
The omitted fact takes on much more importance when it is considered in the light of the prosecution’s version of the facts. Both the prosecution and the defense evidence established that decedent knew defendant and knew where to find him. The prosecution theory was that defendant determined to rob decedent and determined to kill him so that he could steal decedent’s possessions. Defendant’s weapon was a knife, which requires close combat. It is difficult to believe that defendant formed the intent to rob and kill before he left Fresno for Merced in view of his weapon and the size of decedent. After defendant was introduced to and spoke at length with decedent’s friends and acquaintances, there is little likelihood that he *723formed the intent to rob when he could be easily identified by decedent’s friends and acquaintances. Further, it must be obvious to even the stupidest of criminals that the knife attack had to be successful on the first stab because if there was a protracted battle decedent’s large stature and weight might prove determinative. Yet there was no evidence of the deep knife wound which would be expected if defendant had initiated the violent confrontation.
The majority characterize as implausible defendant’s testimony that he only stole the television set from the house and did not steal the other personal property missing from the house. (See maj. opn., ante, at pp. 689-690.) There was some corroborative evidence that there was a second theft. Decedent’s head was found resting on a pillow. Despite all of the blood on decedent, in the area and on defendant, there was no blood on the pillow, suggesting that it had been placed there after the blood had dried but before the body was discovered. In addition, although police officers searched for the missing personal property, including searching defendant’s home, they were unable to find any of it, apart from the television and the automobile. Finally, after the locks were changed on decedent’s house following the killing, a broken key was found in the new front door lock, suggesting that some unidentified person had access to decedent’s home.
While the above evidence indicating that there may have been a second theft may not be strongly persuasive, the evidence pointed to by the majority as indicating that the intent to steal was formed before the killing is, at least, equally weak. Moreover, the evidence relied upon by the majority could also be viewed consistently with defendant’s claim that he formed the intent to steal after decedent was dead, and that the evidence does not show that defendant decided to rob and kill when he could be so easily identified and located.
Based on the evidence before the jury, an error in the instructions tilting the jury in favor of finding that defendant formed his intent to steal before the killing has to be prejudicial. The evidence that defendant formed the intent to steal before the fight is not overwhelming; it is not compelling or even very persuasive. On the record before us, the conclusion that he killed in order to steal is barely plausible. It is likely that a properly instructed jury would have found theft rather than robbery.
The majority argue that the errors were not prejudicial because the jury resolved the issue of the time the intent to rob occurred under other, proper instructions. However, the jury findings under those instructions were the product of the errors and may not properly be relied upon to eliminate the prejudice resulting from the errors.
*724In People v. Sedeno (1974) 10 Cal.3d 703, 721 [112 Cal.Rptr. 1, 518 P.2d 913], it was pointed out that “in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only a lesser offense has been committed has been rejected by the jury.” The Sedeño rule has been applied in other cases of failure to instruct on a lesser included offense. (People v. Melton, supra, 44 Cal. 3d 713, 746; People v. Ramkeesoon, supra, 39 Cal.3d 346, 351-353; see also People v. Bean (1988) 46 Cal.3d 919, 951 [251 Cal.Rptr. 467, 760 P.2d 996]; People v. Miranda (1987) 44 Cal.3d 57, 92 [241 Cal.Rptr. 594, 744 P.2d 1127].)
In Sedeño, supra, 10 Cal.3d 703, there was error in the failure to instruct on involuntary manslaughter based on the defendant’s diminished capacity defense, but it was concluded that the failure to instruct was not prejudicial to the issue of intent to kill because the jury, when it concluded that the offense was first degree murder rather than second degree, necessarily rejected defendant’s evidence that diminished capacity negated intent to kill. Under that determination, the offense could not have been less than voluntary manslaughter.
In Melton, the defendant argued that properly instructed the jury might have found that the intent to steal arose after the assault making the crime theft rather than robbery. The error in failing to instruct was found nonprejudicial because the jury had found burglary under instructions that the entry to the victim’s residence must have been for the purpose of theft or robbery and the entry to the residence occurred prior to the assault. Thus, the jury had determined that the intent to steal arose prior to the assault. (44 Cal.3d at p. 746.)
However, when the subsequent instructions are merely repetitive of the incomplete instructions, it cannot be said that the jury has necessarily resolved the issue in another context under proper instructions. Our unanimous decision in People v. Ramkeesoon, supra, 39 Cal.3d 346, 352, is squarely on point. There, defendant testified that he had been invited to decedent’s home, that he refused an invitation to go to bed with the victim, that the victim attacked him, that a struggle ensued during which he stabbed the victim several times, and that only after he took a shower to wash the blood away did it occur to him to steal. Theft instructions were *725erroneously omitted and robbery and felony-murder instructions were given.
The fact that the jury found not only robbery but also robbery-murder did not eliminate the prejudice flowing from the error. The unanimous opinion pointed out that the “omission of the theft instructions practically guaranteed robbery and felony-murder convictions since defendant had admitted taking [decedent’s] property and robbery was the only available theft offense.” Similarly, in People v. Morales (1975) 49 Cal.App.3d 134, 139-141 [122 Cal.Rptr. 157], it was held that a verdict of robbery and of felony murder did not necessarily resolve the question that would have been properly presented by instructions on grand theft from the person, whether the force used in snatching the victim’s purse was sufficient for robbery.
In the instant case, we cannot say that the jury determined in another context that the intent to steal arose before the assault. The majority first rely upon the detailed robbery instructions as showing that the theft issue was necessarily determined by the jury. Those instructions made it clear that the jury must find that defendant intended to steal prior to the use of force. However, the prejudice involved in a failure to instruct on the lesser offense is not based on a failure of the jurors to find the elements of the greater offense, as in the instant case, that the intent to steal arose before the fight. The jurors in such cases obviously found the elements of the greater offense. The prejudice lies in the danger that the jurors, to avoid acquittal of a confessed felon, leaned over backward to find the elements of the greater offense.
When there is an error in failing to instruct on a lesser included offense, the prejudice is not eliminated by proper instructions on the elements of the greater offense. For example, in People v. Wickersham (1982) 32 Cal.3d 307, 335-336 [185 Cal.Rptr. 436, 650 P.2d 311], the jury convicted the defendant of first degree premeditated and deliberate murder after the trial court erroneously omitted instructions on the lesser included offense of second degree murder. It was held that “ ‘the factual question posed by the omitted instruction’—whether appellant had acted with malice and intent, but without premeditation and deliberation—was not ‘necessarily resolved adversely to the defendant under other, properly given instructions.’ (Sedeno, supra, 10 Cal.3d at p. 721.)”
The jury’s determination based on the elements of the greater offense is not a determination in another context as occurred in Sedeno, supra, 10 Cal.3d 703, and Melton, supra, 44 Cal.3d 713. Use of the instructions on the elements of the greater offense to eliminate prejudice resulting from erroneous omission to instruct on the lesser would mean that the error was never *726prejudicial unless there was also error in the instructions on the elements of the greater. Detailed instructions on the elements of the greater offense do not eliminate or minimize the all-or-nothing choice given to the jury by the failure to instruct on the lesser.
The felony-murder instruction and the special circumstance instruction next relied upon by the majority both were tied to the issue of robbery rather than some other offense or theft. The factual issue as to when the intent to steal occurred was the same under the robbery, the felony-murder, and the special circumstance instructions, and the jury, having determined that the intent to steal arose before the fight under fundamentally unfair instructions, could not thereafter consistently have found that the intent to steal occurred later or that there was no felony murder or special circumstance.
In both Sedeño and Melton, the tainted finding did not compel the findings relied upon to eliminate prejudice. Thus, in Sedeño the failure to instruct on involuntary manslaughter tainted the finding of intentional homicide, but it did not compel the jury findings of premeditation and deliberation. The jury could, consistent with the tainted finding, find second degree murder, and since the jury was free to reject premeditation and deliberation it was appropriate to rely upon the findings of premeditation and deliberation to show that the error in failing to instruct on involuntary manslaughter was not prejudicial.
In Melton the tainted determination of robbery that the intent to steal arose before the homicide did not require a determination that the intent to steal arose prior to entry of the house. Because consistent with the tainted finding the jury could reject burglary, the finding of burglary was not the product of the error, and it was proper to rely upon the finding to show that the tainted finding was not prejudicial.
It is simply not logical to use the products of the error to dispel the prejudice arising from the error, as the majority does. Moreover, the majority offer no valid basis to distinguish the unanimous decision in Ramkeesoon. It is improper to speculate that the instructions in that case on robbery and felony murder failed to set forth the elements of the offenses. If the instructions were incomplete the court in reversing the convictions obviously would have mentioned the fact.
The prejudice flowing from a failure to instruct on a lesser included offense, as we have seen, is that the jury, given the choice between conviction of the greater offense and outright acquittal, when the evidence obviously establishes some offense, is likely to resolve its doubts in favor of *727conviction in violation of our most fundamental rule of criminal law. In the instant case, the jury was never given an option to find that defendant’s offense was theft rather than robbery and that therefore there was no felony murder or special circumstance. Repetitious instructions on the elements of the greater offense do not eliminate the prejudice. The manifest unfairness of the original instruction as to the time the intent to steal occurred carried over to the subsequent instructions.
Accordingly, the failure to instruct on theft was prejudicial.
The judgment should be reversed.
Mosk, J., concurred.
Appellant’s petition for a rehearing was denied June 21, 1990.
It is apparent that the jury focused directly on the issue from the outset. A little more than an hour after retiring for deliberations, the jury asked for part of the record to be read: the testimony of defendant and the defense psychiatrist. The court suggested that the request was too broad and suggested that perhaps it could be limited to a specific point. In response to the jurors’ further request, the reporter read the portion of the psychologist’s testimony of defendant’s statements relating to when the thought flashed through his mind whether to steal.