Can a reversal of a murder conviction be ordered where the allegation that appellant was armed with a firearm was not true?

In People v. Federico, supra, 127 Cal.App.3d 20, 179 Cal.Rptr. 315, a jury determined appellant guilty of murder but also found untrue the enhancements that he was armed with a firearm and used a firearm. Appellant argued that reversal of the murder conviction was mandated because of a fatal inconsistency between the verdict of guilty on the murder count and the jury's finding that the allegation that appellant was armed with a firearm in the commission of the murder was not true. The Federico court rejected this contention relying on section 954 and the rule that each count must stand on its own merits. The court recognized a limited exception to the rule that each count must stand on its own merits. The exception comes into play where " 'all of the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty.' " (Id. at p. 32, 179 Cal.Rptr. 315; emphasis in original.) While acknowledging that "... strictly speaking the allegation that defendant was armed in the commission of the murder did not charge a separate offense" the court held that "... the principles found in Penal Code section 954 and the cases interpreting it are applicable in resolving the logical inconsistency [206 Cal.App.3d 1331] between the not true findings of the armed allegation and the guilty verdict on the murder charge." (Id. at pp. 32-33, 179 Cal.Rptr.

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