Thompson

Defendant and appellant Kermis T. Thompson appeals from the judgment after a jury trial in which he was convicted of first degree murder with special circumstances and attempted rape. In the published portion of this opinion, we conclude a defendant may be guilty of attempted rape when the defendant intends to have nonconsensual intercourse with a live victim, but unbeknownst to the defendant the victim is dead. In the unpublished portion of this opinion, we reject defendant’s other contentions relating to instructional error and the admissibility of evidence. We affirm.

Procedural Background

Defendant was charged by information in count I with murder in violation of Penal Code section 187, subdivision (a). It was further alleged the murder occurred in the commission of an attempted rape and a burglary within the meaning of Penal Code section 190.2, subdivision (a)(17)(iii) and (vii). It was further alleged defendant used a knife in the commission of the offense within the meaning of Penal Code section 12022, subdivision (b). Defendant was also charged in count II with residential burglary in violation of Penal Code sections 459 and 460, subdivision (a) and in count III…