Is there a separate punishment for the robbery of a murder victim where the robbery was the sole basis for a felony-murder finding?

California, United States of America


The following excerpt is from People v. Gillon, B278974 (Cal. App. 2018):

Appellant contends the sentence on count 2 is unauthorized, as section 654 bars separate punishment for the robbery of a murder victim where the robbery is the sole basis for a felony-murder finding. (See People v. Hensley (2014) 59 Cal.4th 788, 828 [sentences for the "robberies and the attached firearm use enhancements [that] formed the basis for the first degree felony-murder convictions" must be stayed].) Respondent concedes the point, but argues that the jury was presented with two theories of liability -- felony-murder and premeditated murder -- and thus could have found appellant guilty of first-degree murder under either theory. Respondent misreads the record. The sole theory of first-degree murder on which the jury was instructed was one of felony-murder. Because the jury necessarily based its finding of first-degree murder on a felony-murder theory, any sentence and enhancements imposed on count 2 must be stayed.3

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