Can a murder committed during an attempted rape form the basis for both a felony and a rape-murder special circumstance?

At trial, defendant did not object to, or seek clarification or modification of, the instructional language he now challenges. Accordingly, we question whether his claim has been preserved for appeal. (See People v. Valdez (2004) 32 Cal.4th 73, 113.) In any event, his claim fails on the merits.

A murder committed during an attempted rape can form the basis for both a felony murder conviction and a rape-murder special circumstance finding. (People v. Guerra,

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supra, 37 Cal.4th at p. 1133.) "For a felony-murder special circumstance to apply, the felony cannot be merely 'incidental or ancillary to the murder'; it must demonstrate 'an independent felonious purpose,' not an intent 'simply to kill.' [Citations.]" (People v. Davis (2009) 46 Cal.4th 539, 609.)