What is the test for a felony murder charge?

14 Thus, in People v. Vela (1985) 172 Cal.App.3d 237, 242, 218 Cal.Rptr. 161, the court, discussing the question whether rape occurs when a person withdraws consent after penetration, stated, "... the presence or absence of consent at the moment of initial penetration appears to be the crucial point in the crime of rape."

15 An attempt will support felony murder. Thus, in this case, the jury was instructed on attempted rape with respect to the felony-murder theory. The statute of limitations on felony murder is, of course, the same as murder and a felony murder charge could be based on attempted rape even though the statute of limitations had run on attempted rape. (See People v. Lilliock (1968) 265 Cal.App.2d 419, 430-432, 71 Cal.Rptr. 434.) On retrial the court's decision in People v. Morris, supra, 46 Cal.3d 1, 18, 249 Cal.Rptr. 119, 756 P.2d 843 may be of importance.