Gore

Statement of the Case and the Facts

Defendant was convicted by jury of two counts of first degree murder. The jury found true the special circumstance of multiple murder. Defendant was also convicted of residential burglary. In addition, a firearm-use enhancement (Pen. Code, § 12022.5) was found true for each count. Defendant admitted the on-bail enhancement. (Pen. Code, § 12022.1.) Defendant was sentenced to life imprisonment without the possibility of parole. The court imposed the five-year upper term for the gun-use enhancement and a two-year on-bail enhancement.

Defendant appeals, claiming sentencing error and asserting his Wheeler motion (People v. Wheeler (1978) 22 Cal.3d 258 [ 148 Cal.Rptr. 890 , 583 P.2d 748 ]) was erroneously denied as untimely.

For the reasons to be explained in the unpublished portion of this opinion, we find sentencing error. In the published portion of the opinion we find that due to the unique nature of the jury selection process in this case the trial court erroneously limited defendant’s Wheeler motion to challenges made during the selection of the alternate jurors, thereby foreclosing all consideration of the People’s peremptory…