DONAN

Appellant Franklin Noe Donan was tried twice for first degree murder and attempted robbery. The initial judgment of conviction was reversed because of Wheeler error. Upon retrial the jury convicted him of first degree murder with a special circumstance that it occurred during an attempted robbery. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17).) He was also convicted of attempted robbery. (Pen. Code, §§ 664, 211.) It was found true that he used a firearm in connection with both crimes. (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) Appellant waived his right to a trial and admitted a prior conviction for assault with intent to commit rape. (Pen Code, § 220.) He was sentenced to life in prison without the possibility of parole, plus four years for the firearm enhancement on count 1. The court stayed the sentencing on count 2 pursuant to Penal Code section 654. Appellant was awarded credits for time spent in custody and good behavior.

Appellant appeals from the second judgment. He contends there was insufficient evidence to support the felony-murder special circumstance finding. Appellant also contends the trial court erred by imposing a firearm use…