York

The jury returned verdicts finding defendant guilty of lewd or lascivious conduct (Pen. Code , § 288, subd. (a)) and first degree murder (§ 187). The jury also returned a “special finding” in connection with a special circumstance in which it found “not true” that the murder had been committed while defendant was engaged in the commission of the lewd or lascivious act. Defendant moved for a new trial based, among other things, on the ground that the special finding was inconsistent with the the jury’s verdict on the murder count. The trial court concluded that the jury’s “special finding” was inconsistent with its verdict on the murder count and granted a new trial on the murder count. Defendant was sentenced to eight years in state prison for the lewd or lascivious conduct conviction. The prosecution appeals from the trial court’s order granting a new trial on the murder count. Defendant appeals from the judgment on the lewd or lascivious conduct count. For the reasons expressed below, we reverse the order granting a new trial on the murder count and affirm the judgment on the lewd or lascivious conduct count.

I. The Prosecution’s Appeal

The Attorney General argues…