Bounds

I concur in all portions of the majority opinion affirming the judgment except that portion in paragraph V holding that the Chapman standard of prejudice (Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]) applies to the instructional error in relation to count I (attempted first degree murder), from which I respectfully dissent. While I agree that error occurred because of conflicting jury instructions (People v. Ramos (1982) *812 30 Cal.3d 553, 582 [ 180 Cal.Rptr. 266 , 639 P.2d 908 ]; People v. Johnson (1981) 30 Cal.3d 444, 448-449 [ 179 Cal.Rptr. 209 , 637 P.2d 676 ]; People v. Collie (1981) 30 Cal.3d 43, 63 [ 177 Cal.Rptr. 458 , 634 P.2d 534 , 23 A.L.R.4th 776 ]; People v. Murtishaw (1981) 29 Cal.3d 733, 763 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ]), I would hold that the Watson test (People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243 ]) is the appropriate standard in reviewing this kind of error. However, I would affirm the conviction of attempted first degree murder under either the Chapman or the Watson test.

None of the California Supreme Court cases dealing with Murtishaw error (People v. Murtishaw, supra, 29…

Facts and Proceedings Below *

I.-IV.*

V. Although the Trial Court Erred in Instructing the Jury on the Attempted Murder Count, the Error Was Harmless

1. The Trial Court Erred by Giving Conflicting Instructions to the Jury.

Bounds argues the trial court erred in instructing the jury regarding proof of the crime of attempted murder since these instructions included *806 reference to the concept of implied malice. Bounds argues this error was prejudicial.

“In instructing upon the crime of attempt to commit murder, there should never be any reference whatsoever to implied malice. Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder, and the instructions in this respect should be lean and unequivocal in explaining to the jury that only a specific intent to kill will do.” (People v. Santascoy (1984) 153 Cal.App.3d 909, 918 [ 200 Cal.Rptr. 709 ]; accord People v. Murtishaw (1981) 29 Cal.3d 733, 762-764 [ 175 Cal.Rptr. 738 , 631 P.2d 446 ], cert. den. (1982) 455 U.S. 922 [ 71 L.Ed.2d 464 , 102 S.Ct. 1280 ]; People v. Collie (1981) 30 Cal.3d 43, 61-62 [ 177 Cal.Rptr. 458 , 634 P.2d 534 , 23 A.L.R.4th 776…

[Opinion certified for partial publication. [*] ]

OPINION

JOHNSON, J. —

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(1a) Bounds argues the trial court erred in instructing the jury regarding proof of the crime of attempted murder since these instructions included reference to the concept of implied malice. Bounds argues this error was prejudicial.

(2) "In instructing upon the crime of attempt to commit murder, there should never be any reference whatsoever to implied malice. Nothing less than a specific intent to kill must be found before a defendant can be convicted of attempt to commit murder, and the instructions in this respect should be lean and unequivocal in explaining to the jury that only a specific intent to kill will do." ( People v. Santascoy (1984) 153 Cal. App.3d 909, 918 [ 200 Cal. Rptr. 709 ]; accord People v. Murtishaw (1981) 29 Cal.3d 733, 762-764 [ 175 Cal. Rptr. 738 , 631 P.2d 446 ], cert. den. (1982) 455 U.S. 922 [ 71 L.Ed.2d 464 , 102 S.Ct. 1280 ]; People v. Collie (1981) 30 Cal.3d 43, 61-62 [ 177 Cal. Rptr. 458 , 634 P.2d 534 , 23 A.L.R.4th 776 ].)

In the case at bar, in instructing the jury relevant to this count, the court first…