Jones

—A jury convicted defendant Ernest Dwayne Jones of the first degree murder (Pen. Code, 1 §§ 187, 189) and rape (§ 261) of Julia Miller, and it found true the special circumstance allegation that the murder was committed in the commission of the rape. The jury found that defendant was not guilty of burglary (§ 459) or robbery (§211) of Mrs. Miller, and it found not true the special circumstance allegations that the murder of Mrs. Miller was committed in the commission of burglary or robbery. Finally, the jury found true the allegations that defendant personally used a deadly weapon, i.e., a knife, to commit the crimes (§ 12022, subd. (b)) and that he had served a prior prison term (§ 667.5). The jury set the penalty at death. The trial court denied defendant’s motion for a new trial (§ 1179 et seq.) and his *1238 motion for modification of the sentence (§ 190.4, subd. (e)). This appeal is automatic. (§ 1239.)

We conclude the judgment should be affirmed in its entirety.

I. Facts

A. Guilt Phase

1. The People’s Case

Shortly after midnight on August 25, 1992, in Los Angeles, Chester Miller returned home from work and noticed the family station wagon was missing from the…

—I concur generally with the majority opinion. I disagree, however, with its analysis of one issue, which I discuss below.

Defendant was charged with the first degree murder and rape of Julia Miller, and there was a special circumstance allegation that the murder occurred during a rape. In defendant’s testimony at the guilt phase of his capital trial, he did not deny killing Miller and having sexual intercourse with her before she died. He testified, however, while struggling with Miller, he “kind of slipped back into [his] childhood.” He had no recollection of having intercourse with Miller, but he remembered picking up a knife and stabbing her, and then “being curled up in a ball crying.” When he looked at Miller, he realized she was dead. While driving away from Miller’s house, he began “hearing certain little things in my head,” which he described as “paranoia, thinking someone was coming to kill me.” Based on this testimony, the defense argued that defendant lacked the specific intent to rape, a necessary element when, as here, the prosecution alleges under the felony-murder rule that an unlawful killing is first degree murder because it took place during a rape.

To support…

Certiorari Denied October 14, 2003. See 124 S.Ct. 395 .

A jury convicted defendant Ernest Dwayne Jones of the first degree murder (Pen.Code, [1] §§ 187, 189) and rape (§ 261) of Julia Miller, and it found true the special circumstance allegation that the murder was committed in the commission of the rape. The jury found that defendant was not guilty of burglary (§ 459) or robbery (§ 211) of Mrs. Miller, and it found not true the special circumstance allegations that the murder of Mrs. Miller was committed in the commission of burglary or robbery. Finally, the jury found true the allegations that defendant personally used a deadly weapon, i.e., a knife, to commit the crimes (§ 12022, subd. (b)) and that he had served a prior prison term (§ 667.5). The jury set the penalty at death. The trial court denied defendant's motion for a new trial (§ 1179 et seq.) and his motion for modification of the sentence (§ 190.4, subd. (e)). This appeal is automatic. (§ 1239.)

We conclude the judgment should be affirmed in its entirety.

Shortly after midnight on August 25, 1992, in Los Angeles, Chester Miller returned home from work and noticed the family station wagon was missing from…