California, United States of America
The following excerpt is from Ario v. Superior Court, 124 Cal.App.3d 285, 177 Cal.Rptr. 265 (Cal. App. 1981):
The present death penalty provision, which applies to petitioner's case, uses the terminology, "while the defendant was engaged in the commission of, attempted commission of, or the immediate flight after committing or attempting to commit" the specified felonies, including kidnapping in violation of sections 207 and 209 (Pen.Code, 190.2, subd. (a)(17)(ii)), instead of the words, "during[124 Cal.App.3d 289] the commission of." It seems clear, however, that the terms, "while engaged in" and "during the commission of," should carry the same meaning. (Cf. Jones v. Superior Court (1981)123 Cal.App.3d 160, 170, 176 Cal.Rptr. 430, 436-37.)
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