Matthews

Defendant Joseph Matthews was convicted in count VI of the premeditated murder of his girl friend Ernestine Easley with the special circumstance of an additional murder (Pen. Code, §§ 187, 190.2), and was convicted in other counts of the felony murder of his son, Joseph, Jr., (Pen. Code, §§ 187, 189), of the attempted murder with intentional infliction of great bodily injury of his daughter, Ernestina, (Pen. Code, §§ 187, 664, 12022.7), and of arson with intentional infliction of great bodily injury (Pen. Code, §§ 447a, 12022.7). Pursuant to the then provisions of Penal Code section 190.2, subdivision (c)(5), he was sentenced on count VI to life imprisonment without possibility of parole and was given concurrent sentences on the other counts. On appeal, he asserts the sentence of life imprisonment without possibility of parole was improper because he intended to kill only his girl friend and not his son.

Facts

Ernestine Easley resided with her mother, sisters, and two children, Ernestina and Joseph, Jr. About 5:30 p.m. on November 17, 1977, at the Easley residence defendant, the father of the two children, threatened to kill Ernestine and said he would rather see his…