Bowen

Defendant was convicted of murder in the first degree (Pen. Code, § 187) and rape (Pen. Code, § 261, former subds. 2 and 3), and the alleged special circumstance that the murder occurred during the commission of the rape (Pen. Code, § 190.2, subd. (a)(17)(iii)) was found true. He was subsequently found to have been sane at the time of the commission of the murder and rape. Defendant, a minor at the time the offenses were committed, was sentenced for the murder to life imprisonment without possibility of parole. His sentence of six years for the rape was stayed. On appeal defendant claims inadequacy of trial counsel, insufficiency of the evidence, prosecutorial misconduct, erroneous denial of a suppression motion, unduly prejudicial photographic evidence, improper jury instructions, and sentencing error. All but defendant’s sentencing contention are meritless. Because he may not be sentenced to life without possibility of parole, we reverse as to penalty only.

The sentencing issue is the sole reason that this opinion qualifies for publication. (See Cal. Rules of Court, rule 976(b).) We therefore deal with it first. The facts of this case and the resolution of the…