Does Section 654 of the California Criminal Code require a jury to agree a carjacking as the underlying felony in a first degree felony murder case?

" Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the "intent and objective" of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] [Citation.]" ( People v. Hairston (2009) 174 Cal.App.4th 231, 240, [94 Cal.Rptr.3d 159].)

First degree felony murder occurs when a killing "is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or [various sexual offenses]...." ( 189.) "For felony murder, the required mental state is the specific intent to commit the underlying felony. [Citation.]" ( People v. Booker (2011) 51 Cal.4th 141, 175, [119 Cal.Rptr.3d 722, 245 P.3d 366].) Typically, a section 654 issue is reviewed for substantial evidence. ( People v. Hairston, supra, 174 Cal.App.4th at p. 240, 94 Cal.Rptr.3d 159.)

The jury was instructed the murder and underlying felony must be "part of one continuous transaction." At sentencing, the trial court contradicted the jury's finding to the extent the court found separate acts in regard to the murder and underlying felony. A trial court cannot contradict a jury's findings when conducting a section 654 analysis. ( People v. Siko (1988) 45 Cal.3d 820, 825826, 248 Cal.Rptr. 110, 755 P.2d 294.) Thus, the underlying felony and felony murder are part of a continuous transaction.

The problem we face in this case is: it is unclear from the record what crime constitutes the underlying felony because the jury was given the option of relying on carjacking, robbery, and/or torture for the underlying felony. Unanimity instructions are not required for a jury finding on the underlying felony in a felony murder charge. ( People v. Lewis (2001) 25 Cal.4th 610, 654, 106 Cal.Rptr.2d 629, 22 P.3d 392.) Therefore, it is possible some jurors found carjacking to be the underlying felony, while others found robbery to be the underlying felony.