Carter

*501 *835 This case involves a crime that started as an attempted robbery, and ended in the death of three individuals: the victim of the attempted robbery and two of the defendants' cohorts involved in that crime. A jury convicted defendant Steven David James Carter of one count of first degree murder and one count of attempted robbery. Defendant Michael Andre Hall pled no contest to voluntary manslaughter, robbery, and an enhancement. The defendants raise separate sentencing challenges on appeal.

Carter argues the court violated Penal Code section 654 when it sentenced him to consecutive terms for attempted robbery and first degree murder of the robbery victim. 1 Hall contends the court abused its discretion in imposing a 12-year sentence under the terms of his plea agreement. He also challenges alleged errors made during his subsequent resentencing. We agree the trial court erred in Hall's subsequent resentencing, but disagree with Carter's and Hall's remaining sentencing challenges.

After the appeal was fully briefed, we granted the parties' request to file supplemental briefing on the impact of legislative changes to the felony-murder rule under Senate Bill No. 1437…

I fully concur in the majority opinion except for the discussion concerning *511 Penal Code section 654 1 and its application to defendant Carter's convictions for first degree felony murder and attempted robbery. In that regard, it is well-settled that where a defendant is convicted of first degree murder based on a felony-murder theory, section 654 prohibits separate punishment for both the murder and the underlying felony because both convictions are based on the same indivisible course of conduct. As it is clear in this case that the jury based its murder verdict on a felony-murder theory, rejecting the prosecution's alternative theory of premeditated first degree murder, the sentencing judge was not at liberty to make a factual finding inconsistent with what the jury had already determined was a failure of proof by the People. Indeed, permitting the trial court to find by a mere preponderance of the evidence that Carter committed a premeditated first degree murder would alter the basis for the conviction as determined by the jury, raising significant Fifth and Sixth Amendment concerns.

A

Section 654 is an integral part of California's scheme of criminal punishment. In it,…