Malone

I

Appellant was convicted by court trial of first degree felony murder with an attending “special circumstance” that he had suffered a previous convic tion for second degree murder (Pen. Code, §§ 187, 189, 190.2, subd. (a)(2); count I), two counts of robbery (§ 211, counts III and IV), and burglary (§ 459, count V). Appellant received a sentence of life imprisonment without possibility of parole on count I, and consecutive middle base terms on counts III through V, with the sentences in counts III and IV stayed pursuant to section 654.

Appellant challenges his sentence of life imprisonment without possibility of parole alleging a violation of the tenets of Carlos v. Superior Court (1983) 35 Cal.3d 131 [ 197 Cal.Rptr. 79 , 672 P.2d 862 ] and People v. Dillon (1983) 34 Cal.3d 441 [ 194 Cal.Rptr. 390 , 668 P.2d 697 ]. Appellant, who was found to be neither the actual killer nor an intentional aider and abettor in the commission of murder in the first degree, both of which necessitate an intent to kill in order for special circumstances to be imposed under Carlos and its progeny, received a sentence of life imprisonment without the possibility of parole because he…