In People v. Andreasen (2013) 214 Cal.App.4th 70, the defendant asserted a constitutional challenge to the felony murder special circumstance statute. Like Gallion, the defendant in Andreasen claimed that as applied to the actual perpetrator of the killing, the felony murder offense ( 189) is indistinguishable from the felony murder special circumstance ( 190.2, subd. (a)(17)). Thus, the defendant asserted, he had no way of anticipating whether he would be subjected to the possibility of death or life in prison without parole as opposed to life with the possibility of parole, and the prosecutor had unfettered discretion to select the charge. (Andreasen, at p. 79.) After reviewing the pertinent statutes, this Court stated, "These statutes provided defendant with notice that if he commits a statutorily specified felony and kills someone during that felony, he could be subjected to a sentence of 25 years to life with the possibility of parole, life without parole, or death. Defendant had notice as to the proscribed conduct and potential punishment." (Andreasen, supra, 214 Cal.App.4th at p. 80.) In Andreasen, this Court also rejected defendant's contention that section 189 and section 190.2, subdivision (a)(17) are indistinguishable, stating, "The felony-murder offense is established merely upon a showing that the defendant killed during the commission or attempted commission of the felony, whereas the felony-murder special circumstance requires an additional showing that the intent to commit the felony was independent of the killing." (Andreasen, at p. 80.) "The mere fact that the prosecution has discretion to select which punishment it will seek does not render a statute unconstitutionally vague or create an improper risk of arbitrary enforcement of a criminal statute." (Andreasen, supra, 214 Cal.App.4th at p. 80.) "The courts have repeatedly rejected constitutional challenges to the imposition of the special circumstance punishment on the direct killer, even though the statute can operate to punish a felony murderer who kills unintentionally more harshly than a simple murderer who kills intentionally." (Id. at p. 81.)