Legal Reasoning and Application
A. The court’s “yes” to the jury’s question about convicting of both felony murder and second-degree murder
Almentero challenged the trial court’s affirmative answer to a juror query asking whether the jury could return both felony-murder and second-degree murder convictions. The Supreme Court, adopting its analysis in the companion Goldman decision, held the response accurately reflected the law as framed by the instructions given in this case. Although the decision does not recite the full text of the jury question or every instruction, the Court signals that, read in context with the charges and instructions provided, the jury could permissibly return the convictions described in its question. Accordingly, there was no misstatement of law and no reversible error.
Key point: Appellate assessment of a jury-question response is tethered to the instructions and charges as a whole. When the court’s response conforms to the law as the jury has been instructed, it is not erroneous—even if, in the abstract, “both” convictions might raise concerns in other configurations (e.g., double punishment for a single killing). The Court’s reliance on Goldman underscores the importance of context and the integrated reading of the entire charge.
B. No second-degree lesser-included instruction was required to capture causation for felony murder
Almentero argued that the absence of UJI 14-212 (second-degree murder) as a lesser-included offense of felony murder deprived the jury of a necessary causation element. The Court rejected this for two independent reasons:
- No request, no error (Boeglin): It is the defendant’s tactical responsibility to request lesser-included homicide instructions supported by the evidence; failure to request forecloses a later complaint that the court did not give them. The Court reaffirmed this longstanding allocation of responsibility.
- Causation already embedded in UJI 14-202: The felony-murder instruction expressly required the jury to find that “the defendant caused the death … during the commission” of the predicate felony. Because causation was already an element in the felony-murder instruction, a second-degree instruction was unnecessary to supply it. On this ground, there was no instructional error at all, which necessarily precludes a finding of fundamental error (Adamo).
Practical takeaway: Where UJI 14-202 is properly given, its causation requirement stands on its own; courts need not append second-degree instructions simply to reinforce causation. Defendants who want second-degree considered as a lesser alternative must affirmatively request it and show evidentiary support.
C. “And/or” alternatives for predicate felonies did not create reversible or fundamental error
Almentero challenged the use of “and/or” in the felony-murder and aiding-and-abetting instructions to identify the predicate felonies (kidnapping and armed robbery), invoking State v. Taylor to argue that the verdict could rest on an unknown or impermissible ground. The Supreme Court, adopting Goldman’s analysis, rejected the challenge. Taylor does not categorically prohibit disjunctive phrasing; rather, it guards against nonunanimous or legally invalid grounds where the alternatives differ in legal validity or evidentiary support.
Here, the Court accepted that the alternatives presented—kidnapping and armed robbery—were both legally valid felony-murder predicates and supported by the evidence. In that posture, the “and/or” phrasing did not misdirect the jury, undercut unanimity, or render the verdicts unreliable. Thus, there was no error—let alone fundamental error.
Practice note: If a party believes an alternative lack evidentiary support or legal validity, they should seek to strike it, request a unanimity instruction tailored to the alternatives, or request special interrogatories. Absent such preservation—and where both alternatives are valid and supported—“and/or” will not, by itself, undo a conviction.
D. A single aiding-and-abetting instruction referring to both victims was not erroneous
The defendant also argued that the accessory-liability instruction was confusing because it was drafted in the singular (UJI 14-2821) but given in a form that referred to both decedents (Romero and Lateef) in the same instruction (“Romero and/or Lateef”). The Court again adopted Goldman’s analysis to conclude there was no error: read together with the felony-murder instructions and verdict forms, the single instruction did not risk convicting the defendant for one victim’s killing based on aiding and abetting the other’s. There was no demonstrable juror confusion or misdirection.
Best practice: While the Court found no error here, trial courts can avoid similar challenges by issuing separate aiding-and-abetting instructions for each victim or count, mapping each to the relevant predicate felony and decedent to ensure maximal clarity.
E. Structural error argument deemed undeveloped
To the extent the defendant gestured at “structural error,” the Court declined to reach it, citing State v. Turrietta and Elane Photography for the principle that courts do not evaluate undeveloped contentions or guess at their contours. This highlights the importance of developing structure-based arguments with specific authority and analysis.