Is a jury required to agree on a theory of first degree murder?

Hajek, joined by Vo, argues the trial court erred by instructing on first degree premeditated murder and felony-murder theories when the indictment charged him only with murder with malice aforethought under section 187. Defendants assert that the trial court lacked jurisdiction to try them for first degree murder, and that by doing so the court violated their rights to due process, a jury trial, and to a fair and reliable jury trial. As defendants acknowledge, we have considered and rejected these contentions many times before. (People v. Brasure, supra, 42 Cal.4th at p. 1057, and cases cited.) Defendants provide no persuasive reason for us to reconsider those decisions.

h. Failure to instruct that jury must unanimously agree on theory of first degree murder

Hajek, joined by Vo, contends the trial court's failure to instruct the jury that it must unanimously agree on a theory of first degree murder (premeditated or felony murder) violated their due process rights, right to a unanimous verdict, and to a fair and reliable jury trial. As defendants acknowledge, we have previously considered and rejected this argument. (People v. Loker (2008) 44 Cal.4th 691, 707-708.) We do so again.