Can a jury overturn a conviction for arson causing great bodily injury and a kidnapping-murder special-circumstance allegation?

conviction must be reversed because the court failed to instruct that the definitions of arson and kidnapping given in connection with the count charging arson causing great bodily injury and the kidnapping-murder special-circumstance allegation, respectively, also applied to the felony-murder theory of first degree murder. Defendant did not ask the court to clarify for the jury that the definitions of arson and kidnapping in those instructions also applied to the felony-murder instructions. He therefore has forfeited his claim of error. (People v. Kelly (2007) 42 Cal.4th 763, 790, 68 Cal.Rptr.3d 531, 171 P.3d 548.) His claim lacks merit in any event.

Defendant argues there was nothing in the wording of the arson instruction or the kidnapping-murder special-circumstance instruction that would have conveyed to the jury that the definitions of arson and kidnapping in those instructions also applied to the felony-murder instruction. We conclude to the contrary that, in light of the instructions as a whole, there is no reasonable likelihood that the jury would have used an erroneous definition of arson or kidnapping when considering the felony-murder theory of first degree murder. The court referred to "arson" and "kidnapping" in both the felony-murder instructions and in the instructions that included the definitions of those crimes. There was no suggestion that those terms meant one thing in connection with the arson charge and the kidnapping-murder special-circumstance allegation and something different, and undefined, with respect to felony murder. Indeed, were the jurors to have believed that different definitions might apply, we would expect them to seek clarification. On similar grounds, this court concluded in People v. Kelly, supra , 42 Cal.4th at page 790, 68 Cal.Rptr.3d 531, 171 P.3d 548, that there was no reasonable likelihood the jury in that case would have understood that the definition of "rape" and "robbery" given in the instructions regarding the special circumstance allegations applied only to those allegations, and that some other definition of those crimes applied for purposes of first degree murder based on a felony-murder theory.