Mil

A Kern County jury convicted defendant Eduardo Mil, Jr., of first degree murder and made true findings as to the burglary-murder and robbery-murder special circumstances. The jury was fully instructed as to the elements of the felony-murder special circumstances for a defendant who was the actual killer. However, the jury was not fully instructed as to the elements of the special circumstances for a defendant who was not the actual killer, including the requirement that a nonkiller, in the absence of a showing of intent to kill, must have acted with reckless indifference to human life and as a major participant in the commission of the underlying felony. (See Pen. Code, § 190.2, subd. (d); People v. Estrada (1995) 11 Cal.4th 568, 575 [ 46 Cal.Rptr.2d 586 , 904 P.2d 1197 ].) The Court of Appeal determined the omission in the instructions was harmless and affirmed the judgment. We agree that the instructional error was amenable to harmless error review, but find that the error here was prejudicial. We therefore reverse the jury’s true findings on the special circumstances of burglary murder and robbery murder as well as defendant’s sentence of life imprisonment without the…