Sellers

Defendant, Robert Lloyd Sellers, appeals from a judgment after a jury found him guilty of murder in the first degree (Pen. Code, §§ 187, 189), and rape (Pen. Code, § 261, subd. (2)). The jury also found true the special circumstance allegation that the murder was committed while the defendant was engaged in the commission of the crime of rape (Pen. Code, § 190.2, subd. (a)(17)(iii)). Defendant was sentenced to life imprisonment without possibility of parole based on the first degree murder conviction and the special circumstance finding of murder in the commission of rape. He was also sentenced to a consecutive term of six years for the rape and ordered to pay a restitution fine of $15,000.

We find ourselves in the unfortunate position of having to reverse this conviction for a most heinous murder and remand for a new trial because the jury was improperly instructed on the law of rape.

Facts

The nude body of S. Anderson was discovered at approximately 7:30 p.m. on Monday, May 14, 1979, by Irvine police officer Jimmy Potts after he was called to her apartment by Anderson’s boyfriend and her employer. The men were concerned because Anderson’s car was in her apartment…