Can a jury find a defendant guilty of first degree felony murder based on the predicate felony of sodomy?

Defendant correctly contends, and the Attorney General concedes, that the trial court erroneously instructed the jury that it could find defendant guilty of first degree felony murder based on the predicate felony of sodomy. In September 1984, when defendant murdered Delores Clement, "section 189 limited the types of sex offenses that would support a conviction of first degree felony murder to rape ( 261) and lewd or lascivious acts with a child under the age of 14 years ( 288). Although murder committed in the course of a sodomy was a special circumstance which, if found true, would support imposition of the death penalty, a jury at the time could consider the sodomy special circumstance only after finding defendant guilty of having committed first degree murder." (People v. Hart (1999) 20 Cal.4th 546, 580, fn. 2, 85 Cal.Rptr.2d 132, 976 P.2d 683.)