Nadey

Opinion of the Court by Corrigan, J.

Defendant Giles Albert Nadey was convicted of one count of unlawful sodomy and one count of first degree murder for the killing of Terena Fermenick. (Pen. Code, §§ 187, 286, former subd. (c).) 1 The jury found that both offenses were committed with the use of a knife (§ 12022, subd. (b)) and the murder occurred during the commission of unlawful sodomy (§ 190.2, subd. (a)(17)(D)). After the first jury deadlocked on penalty, a second jury returned a verdict of death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. BACKGROUND

A. Guilt Phase 1. Prosecution Evidence Terena Fermenick was sexually assaulted and killed on January 18, 1996. Her husband, Donald, had just been named a minister for the Church of Christ in Alameda.2 The couple were planning to move from Donald’s parents’ home into the minister’s residence. On the day of the murder, Terena had arranged for Skyline Chem-Dry to clean the carpets before the move. The job was assigned to defendant.

1 All undesignated statutory references are to the Penal Code. 2 Because they share a surname, we refer to the Fermenicks by their given names. The cleaning was…