In case involving multiple theories to support first degree murder conviction, jury’s not-true finding on personal firearm use enhancement did not foreclose trial court’s discretion under Penal Code section 654 to impose sentences for both first degree murder and attempted robbery. Carter, his cousin, and another man broke into the victim’s home to steal his marijuana. During the attempted robbery, the victim and Carter’s two accomplices were shot and killed. Carter was convicted of first degree murder and attempted robbery of the victim. The jury found “not true” the allegation that Carter personally and intentionally discharged a firearm. The trial court imposed consecutive prison terms for first degree murder and attempted robbery. On appeal, Carter argued the sentence violated section 654 because the jury’s finding that he did not personally use a firearm necessarily meant the murder verdict was based solely on the felony murder theory. Held: Affirmed. Section 654 precludes multiple punishments for an indivisible course of conduct. Whether a course of conduct is divisible depends on the intent and objective of the actor, and this is a question for the sentencing court. Here, the prosecution presented alternate theories for the first degree murder charge: premeditation and felony murder. The trial court found the crimes and their objectives were predominantly independent of each other. Substantial evidence supported the trial court’s finding that Carter personally shot the victim to avenge the shooting of his cousin. The fact the jury found the personal gun use enhancement not true was not an affirmative finding Carter was not the shooter, only that there was reasonable doubt that he was. “The jury’s finding on the gun enhancement might have been no more than the product of compromise, mistake, or lenity.” It did not constrain the trial court’s sentencing authority under section 654 in this case, where the jury did not have to agree on the theory supporting the first degree murder conviction.

[Editor’s Notes: (1) Justice Dato dissented on this point. (2) In an unpublished portion of the opinion, the court addressed Senate Bill No. 1437, which went into effect while this appeal was pending. The court concluded that Carter could not raise his SB 1437 claim by direct appeal and should instead file a petition pursuant Penal Code section 1170.95 in the trial court. The court also noted issues with the application of SB 1437 to defendants, like Carter’s co-appellant Hall, who pleaded guilty or no contest to voluntary manslaughter to avoid a murder conviction.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D073865M.PDF