What is the test for purposeful discrimination in jury selection in a first degree felony murder case?

4 Although we normally give great deference to a trial court's factual findings regarding purposeful discrimination in jury selection, this deference applies to the court's assessment of the prosecutor's state of mind and credibility. See United States v. Bishop, 959 F.2d 820, 826-27 (9th Cir.1992). Because the trial judge made no inquiry into the prosecutor's reasons for excluding the African-American venirepersons, we need not defer to the judge's conclusory determination that there was no discrimination. See id.

5 First degree felony murder requires proof that a killing was committed "in the perpetration of" robbery, burglary, or other listed crimes. Cal.Penal Code Sec. 189. The special circumstance finding, that the murder was committed while the defendant was engaged in robbery or burglary, differs slightly in that the government must show that the murder was committed "during the commission" of the robbery, such that the robbery was not "merely incidental" to the murder. People v. Green, 27 Cal.3d 1, 164 Cal.Rptr. 1, 37, 609 P.2d 468, 504 (1980), overruled on other grounds, 41 Cal.3d 826, 226 Cal.Rptr. 112, 117 n. 3, 718 P.2d 99, 104 n. 3 (1986); People v. Zapien, 4 Cal.4th 929, 17 Cal.Rptr.2d 122, 153, 846 P.2d 704, 735 cert. denied, --- U.S. ----, 114 S.Ct. 315, 126 L.Ed.2d 262 (1993).