5: (1) Murderor voluntary manslaughter (2) Mayhem (3) Rape (Pen. Code, section 261(a)(2), (6); 262(a)(1), (4)) (4) Sodomy(Pen. Code section 286(c), (d)) (5) Oral copulation (Pen. Code, section 288a(c), (d)) (6) Lewd orlascivious act as defined in subdivision (a) or (b) of Section 288 (7) Any felony punishable by death or imprisonmentin the state prisonforlife (8) Any felony in which the defendantinflicts great bodily injury, as defined 98 (9) Robbery (10) Arson (Pen. Code, section 451(a), (b)) (11) Foreign object penetration (Pen. Code, section 289(a), (j)) (12) Attempted murder (13) Explosion to commit murder, mayhem, or great bodily injury (Pen. Code, §12308, 12309, 12310) (14) Kidnapping (15) Assault with intent to commit a felony (Pen. Code, section 220) (16) Continuous sexual abuse of a child (Pen. Code, section 288.5) (17) Carjacking (Pen. Code, section 215(a)) (18) Rape, spousal rape, or sexual penetration, in concert, (Pen. Code, section 264.1) (19) Extortion (Pen. Code, section 518) (20) Threats to victims or witnesses (Pen. Code, section 136.1) (21) First degree burglary whereit is charged and proved that another person, other than an accomplice, was present in the reside

and jury returned an indictment for manslaughter]; People v. Murat (1873) 45 Cal. 281,284 [an indictment charging only assault with intent to murder would not support a conviction of assault with 2' Subdivision (a) of Penal Code section 187, unchanged since its enactment in 1872 except for the addition of the phrase "or a fetus" in 1970, provides as follows: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." 22 At the time the murder in this case occurred, section 189 provided in pertinent part: "All murder which is perpetrated by means of a destructive device or explosive, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Sections 286, 288, 288a, or 289, is murder of the first degree; and all other kinds of murders are of the second degree." a deadly weapon] .) Nevertheless, this Court has held that a defendant may be convicted of first degree murder even though the Indictment or Information charged only murder with malice in violation of section 187. (See, e.g., People v. Hughes, supra, 27 Cal.4th at pp. 368-370; Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1034.)