State v. Perez, 261 P.3d 532

Perez was convicted of first-degree felony murder, criminal discharge of a firearm at an occupied dwelling, and conspiracy to commit criminal discharge of a firearm at an occupied dwelling.
The underlying felony was criminal discharge of a firearm at an occupied dwelling; the shooting killed a child’s guardian in Moreno’s home.
The State moved to try Perez as an adult, and the district court authorized adult prosecution after reviewing statutory factors.
Gonzalez testified that Perez intended to hit Moreno; Cisneros corroborated by overhearing orders and the return remarks, and calls from jail were admitted.
Perez asserted he did not shoot and was setup by higher-ranking gang members; no jury issue was raised during the adult-prosecution decision.
The jury was instructed on felony murder without any lesser included offenses; Perez did not testify.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the adult-prosecution decision required a jury.	Perez asserts Apprendi-based jury fact-determination is required.	State argues no jury needed for this discretionary decision.	Issue not preserved; appellate review is barred; no jury required.
Whether the Allen-type deadlock instruction was reversible error.	Perez claims instruction misled jury and affected verdict.	State contends no reversible error; instruction was clearly erroneous but not clearly so here.	Not clearly erroneous; no real possibility of different verdict.
Whether the court erred by not instructing on unintentional but reckless second-degree murder as a lesser offense.	Under 22-3414(3), should have been instructed due to potential lesser offense.	Evidence did not reasonably justify that lesser offense; Cordray distinguished.	No instruction required; evidence did not support the lesser offense beyond a reasonable doubt.

State v. Salts, 288 Kan. 263 (2009) (Allen-type instruction language deemed erroneous but not reversible)
State v. Ellmaker, 289 Kan. 1132 (2009) (Allen-type instruction held not clearly erroneous)
State v. Colston, 290 Kan. 952 (2010) (Allen-type instruction deemed not clearly erroneous)
State v. Brown, 291 Kan. 646 (2011) (Allen-type instruction language found erroneous but not reversible)
State v. Kunellis, 276 Kan. 461 (2003) (reaffirmed limits on first-time appellate challenges)
State v. Berry, 292 Kan. 493 (2011) (rejected traditional felony-murder instruction rule; applied 22-3414(3))
State v. Jones, 273 Kan. 756 (2002) (transfer of intent doctrine reaffirmed)
State v. Cordray, 277 Kan. 43 (2004) (distinguishes when unintentional but reckless second-degree murder is warranted)