Filed 3/30/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S157601

v.

) Ct.App.

3

C049069

SARUN CHUN,

San Joaquin County

Defendant and Appellant.

Super. Ct. No. SF090168C



In this murder case, the trial court instructed the jury on second degree

felony murder with shooting at an occupied vehicle under Penal Code section 246

the underlying felony.1 We granted review to consider various issues concerning

the validity and scope of the second degree felony-murder rule.

We first discuss the rule’s constitutional basis. Although the rule has long

been part of our law, some members of this court have questioned its

constitutional validity. We conclude that the rule is based on statute, specifically

section 188’s definition of implied malice, and hence is constitutionally valid.

Next we reconsider the contours of the so-called merger doctrine this court

adopted in People v. Ireland (1969) 70 Cal.2d 522 (Ireland). After reviewing

recent developments, primarily some of our own decisions, we conclude the

current state of the law in this regard is untenable. We will overrule some of our


1

All further statutory citations are to the Penal Code unless otherwise

indicated.

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decisions and hold that all assaultive-type crimes, such as a violation of section

246, merge with the charged homicide and cannot be the basis for a second degree

felony-murder instruction. Accordingly, the trial court erred in instructing on

felony murder in this case. We also conclude, however, that this error, alone, was

not prejudicial.

We reverse the judgment of the Court of Appeal, which had found the same

error prejudicial. However, the Court of Appeal also found a second error, a

finding not before us on review. We remand the matter to the Court of Appeal to

decide whether the two errors, in combination, were prejudicial.

I. FACTS AND PROCEDURAL HISTORY

We take our facts primarily from the Court of Appeal’s opinion.

Judy Onesavanh and Sophal Ouch were planning a party for their son’s

birthday. Around 9:00 p.m. on September 13, 2003, they and a friend, Bounthavy

Onethavong, were driving to the store in Stockton in a blue Mitsubishi that

Onesavanh’s father owned. Onesavanh’s brother, George, also drives the car. The

police consider George to be highly ranked in the Asian Boys street gang (Asian

Boys).

That evening Ouch was driving, with Onesavanh in the front passenger seat

and Onethavong behind Ouch. While they were stopped in the left turn lane at a

traffic light, a blue Honda with tinted windows pulled up beside them. When the

light changed, gunfire erupted from the Honda, hitting all three occupants of the

Mitsubishi. Onethavong was killed, having received two bullet wounds in the

head. Onesavanh was hit in the back and seriously wounded. Ouch was shot in

the cheek and suffered a fractured jaw.

Ouch and Onesavanh identified the Honda’s driver as “T-Bird,” known to

the police to be Rathana Chan, a member of the Tiny Rascals Gangsters (Tiny

Rascals), a criminal street gang. The Tiny Rascals do not get along with the Asian

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Boys. Chan was never found. The forensic evidence showed that three different

guns were used in the shooting, a .22, a .38, and a .44, and at least six bullets were

fired. Both the .38 and the .44 struck Onethavong; both shots were lethal. Only

the .44 was recovered. It was found at the residence of Sokha and Mao Bun,

brothers believed to be members of a gang.

Two months after the shooting, the police stopped a van while investigating

another suspected gang shooting. Defendant was a passenger in the van. He was

arrested and subsequently made two statements regarding the shooting in this case.

He admitted he was in the backseat of the Honda at the time; T-Bird was the driver

and there were two other passengers. Later, he also admitted he fired a .38-caliber

firearm. He said he did not point the gun at anyone; he just wanted to scare them.

Defendant, who was 16 years old at the time of the shooting, was tried as

an adult for his role in the shooting. He was charged with murder, with driveby

and gang special circumstances, and with two counts of attempted murder,

discharging a firearm from a vehicle, and shooting into an occupied vehicle, all

with gang and firearm-use allegations, and with street terrorism. At trial, the

prosecution presented evidence that defendant was a member of the Tiny Rascals,

and that the shooting was for the benefit of a gang. Defendant testified, denying

being a member of the Tiny Rascals or being involved in the shooting.

The prosecution sought a first degree murder conviction. The court also

instructed the jury on second degree felony murder based on shooting at an

occupied motor vehicle (§ 246) either directly or as an aider and abettor. The jury

found defendant guilty of second degree murder. It found the personal-firearm-

use allegation not true, but found that a principal intentionally used a firearm and

the shooting was committed for the benefit of a criminal street gang. The jury

acquitted defendant of both counts of attempted murder, shooting from a motor

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vehicle, and shooting at an occupied motor vehicle. It convicted defendant of

being an active participant in a criminal street gang.

The Court of Appeal, in an opinion authored by Justice Morrison, reversed

the murder conviction and otherwise affirmed the judgment. It found two errors in

the case. It held the trial court had properly admitted defendant’s first statement

that he had been in the car but that the court should have excluded his subsequent

statement that he had fired a gun. It concluded that the latter statement was

procured by a false promise of leniency. It found this error harmless beyond a

reasonable doubt “as a pure evidentiary matter.” But, partly due to this error, the

Court of Appeal also held the trial court erred in instructing the jury on second

degree felony murder. It found this error was prejudicial and reversed the murder

conviction. It explained: “Second degree felony murder, the only express theory

of second degree murder offered to the jury, was based on the underlying felony of

shooting into an occupied vehicle. The merger doctrine prevents using an

assaultive-type crime as the basis for felony murder unless the underlying crime is

committed with an intent collateral to committing an injury that would cause

death. Without the evidence of defendant’s statements about the shooting, there

was no evidence from which a collateral intent or purpose could be found.

Accordingly, it was error to instruct on second degree felony murder and the

murder conviction must be reversed.”

Justice Nicholson dissented from the reversal of the murder conviction.

Relying on People v. Hansen (1994) 9 Cal.4th 300 (Hansen), he argued that the

underlying felony did not merge with the homicide for purposes of the second

degree felony-murder rule and, accordingly, the trial court had properly instructed

the jury on second degree felony murder.

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We granted review. Later, we issued an order limiting review to the issues

concerning whether the trial court prejudicially erred in instructing the jury on

second degree felony murder.

II. DISCUSSION

A. The Constitutionality of the Second Degree Felony-murder Rule

Defendant contends California’s second degree felony-murder rule is

unconstitutional on separation of power grounds as a judicially created doctrine

with no statutory basis. To explain the issue, we first describe how the doctrine

fits in with the law of murder. Then we discuss defendant’s contention. We will

ultimately conclude that the doctrine is valid as an interpretation of broad statutory

language.

Section 187, subdivision (a), defines murder as “the unlawful killing of a

human being, or a fetus, with malice aforethought.” Except for the phrase “or a

fetus,” which was added in 1970 in response to this court’s decision in Keeler v.

Superior Court (1970) 2 Cal.3d 619 (see People v. Davis (1994) 7 Cal.4th 797,

803), this definition has been unchanged since it was first enacted as part of the

Penal Code of 1872. Murder is divided into first and second degree murder.

(§ 189.) “Second degree murder is the unlawful killing of a human being with

malice, but without the additional elements (i.e., willfulness, premeditation, and

deliberation) that would support a conviction of first degree murder. (§§ 187,

subd. (a), 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.)” (Hansen,

supra, 9 Cal.4th at p. 307.)

Critical for our purposes is that the crime of murder, as defined in section

187, includes, as an element, malice. Section 188 defines malice. It may be either

express or implied. It is express “when there is manifested a deliberate intention

unlawfully to take away the life of a fellow creature.” (§ 188.) It is implied

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“when no considerable provocation appears, or when the circumstances attending

the killing show an abandoned and malignant heart.” (Ibid.) This definition of

implied malice is quite vague. Trial courts do not instruct the jury in the statutory

language of an abandoned and malignant heart. Doing so would provide the jury

with little guidance. “The statutory definition of implied malice has never proved

of much assistance in defining the concept in concrete terms.” (People v.

Dellinger (1989) 49 Cal.3d 1212, 1217.) Accordingly, the statutory definition

permits, even requires, judicial interpretation. We have interpreted implied malice

as having “both a physical and a mental component. The physical component is

satisfied by the performance of ‘an act, the natural consequences of which are

dangerous to life.’ (People v. Watson (1981) 30 Cal.3d 290, 300.) The mental

component is the requirement that the defendant ‘knows that his conduct

endangers the life of another and . . . acts with a conscious disregard for life.’

(Ibid., internal quotation marks omitted.)” (People v. Patterson (1989) 49 Cal.3d

615, 626 (lead opn. of Kennard, J.) (Patterson).)2

A defendant may also be found guilty of murder under the felony-murder

rule. The felony-murder rule makes a killing while committing certain felonies

murder without the necessity of further examining the defendant’s mental state.

The rule has two applications: first degree felony murder and second degree

felony murder. We have said that first degree felony murder is a “creation of

statute” (i.e., § 189) but, because no statute specifically describes it, that second

degree felony murder is a “common law doctrine.” (People v. Robertson (2004)

34 Cal.4th 156, 166 (Robertson).) First degree felony murder is a killing during


2

For ease of discussion, we will sometimes refer to this form of malice by

the shorthand term, “conscious-disregard-for-life malice.” Patterson, supra, 49
Cal.3d 615, had no majority opinion. Unless otherwise indicated, all further
citations to that case are to Justice Kennard’s lead opinion.

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the course of a felony specified in section 189, such as rape, burglary, or robbery.

Second degree felony murder is “an unlawful killing in the course of the

commission of a felony that is inherently dangerous to human life but is not

included among the felonies enumerated in section 189 . . . .” (Robertson, supra,

34 Cal.4th at p. 164.)

In Patterson, Justice Kennard explained the reasoning behind and the

justification for the second degree felony-murder rule: “The second degree

felony-murder rule eliminates the need for the prosecution to establish the mental

component [of conscious-disregard-for-life malice]. The justification therefor is

that, when society has declared certain inherently dangerous conduct to be

felonious, a defendant should not be allowed to excuse himself by saying he was

unaware of the danger to life because, by declaring the conduct to be felonious,

society has warned him of the risk involved. The physical requirement, however,

remains the same; by committing a felony inherently dangerous to life, the

defendant has committed ‘an act, the natural consequences of which are dangerous

to life’ ([People v.] Watson, supra, 30 Cal.3d at p. 300), thus satisfying the

physical component of implied malice.” (Patterson, supra, 49 Cal.3d at p. 626.)

The second degree felony-murder rule is venerable. It “has been a part of

California’s criminal law for many decades. (See People v. Wright (1914) 167

Cal. 1, 5; Pike, What Is Second Degree Murder in California (1936) 9

So.Cal.L.Rev. 112, 118-119.)” (Patterson, supra, 49 Cal.3d at p. 621; see also

People v. Doyell (1874) 48 Cal. 85, 94.) Because of this, we declined to

reconsider the rule in Patterson. (Patterson, supra, at p. 621.) Even earlier, in

1966, we rejected the argument that we should abandon the doctrine, explaining

that “the concept lies imbedded in our law.” (People v. Phillips (1966) 64 Cal.2d

574, 582; see also People v. Mattison (1971) 4 Cal.3d 177, 184 (Mattison)

[describing the rule as “well-settled”].)

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But some former and current members of this court have questioned the

rule’s validity because no statute specifically addresses it. Chief Justice Bird

argued for its abolition in her concurring opinion in People v. Burroughs (1984)

35 Cal.3d 824, 836-854. Justice Brown did so in dissent in Robertson, supra, 34

Cal.4th at pages 186-192, and again while concurring and dissenting in People v.

Howard (2005) 34 Cal.4th 1129, 1140-1141. Justices Werdegar and Moreno have

viewed the rule as ripe for reconsideration in an appropriate case. (Robertson,

supra, at pp. 174-177 (conc. opn. of Moreno, J.), 185-186 (dis. opn. of Werdegar,

J.).) In Patterson, Justice Panelli questioned the rule’s constitutional validity. As

he pointed out, “There are, or at least should be, no nonstatutory crimes in this

state. (In re Brown (1973) 9 Cal.3d 612, 624; see Pen. Code, § 6.)” (Patterson,

supra, 49 Cal.3d at p. 641 (conc. & dis. opn. of Panelli, J.).) He was concerned

that the second degree felony-murder rule is solely a judicial creation not derived

from statute and was thus “not quite convinced” that it “stands on solid

constitutional ground.” (Ibid.)

In line with these concerns, defendant argues that the second degree felony-

murder rule is invalid on separation of powers grounds. As he points out, we have

repeatedly said that “ ‘the power to define crimes and fix penalties is vested

exclusively in the legislative branch.’ (Keeler v. Superior Court (1970) 2 Cal.3d

619, 631; [citations].)” (People v. Superior Court (Romero) (1996) 13 Cal.4th

497, 516.) Defendant asks rhetorically, “How, then, in light of the statutory

abrogation of common law crimes and the constitutional principle of separation of

powers, does second degree felony murder continue to exist when this court has

repeatedly acknowledged that the crime is a judicial creation?”

This court has never directly addressed these concerns and this argument,

or explained the statutory basis of the second degree felony-murder rule. We do

so now. We agree with Justice Panelli that there are no nonstatutory crimes in this

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state. Some statutory or regulatory provision must describe conduct as criminal in

order for the courts to treat that conduct as criminal. (§ 6.)3 But, as we explain,

the second degree felony-murder rule, although derived from the common law, is

based on statute; it is simply another interpretation of section 188’s abandoned and

malignant heart language.

Many provisions of the Penal Code were enacted using common law terms

that must be interpreted in light of the common law. For example, section 484

defines theft as “feloniously” taking the property of another. The term

“feloniously” — which has little meaning by itself — incorporates the common

law requirement that the perpetrator must intend to permanently deprive the owner

of possession of the property. Accordingly, we have looked to the common law to

determine the exact contours of that requirement. (People v. Avery (2002) 27

Cal.4th 49, 55; People v. Davis (1998) 19 Cal.4th 301, 304, fn. 1.) Thus, the

intent-to-permanently-deprive requirement, although nonstatutory in the limited

sense that no California statute uses those words, is based on statute. The murder

statutes are similarly derived from the common law. (Keeler v. Superior Court,

supra, 2 Cal.3d 619 [looking to the common law to determine the exact meaning

of “human being” under section 187].) “It will be presumed . . . that in enacting a

statute the Legislature was familiar with the relevant rules of the common law,

and, when it couches its enactments in common law language, that its intent was to

continue those rules in statutory form.” (Keeler v. Superior Court, supra, at p.

625.)


3

As relevant today, section 6 provides: “No act or omission . . . is criminal

or punishable, except as prescribed or authorized by this Code, or by some of the
statutes, which it specifies as continuing in force and as not affected by its
provisions, or by some ordinance, municipal, county, or township regulation,
passed or adopted, under such statutes and in force when this Code takes effect.”

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Even conscious-disregard-for-life malice is nonstatutory in the limited

sense that no California statute specifically uses those words. But that form of

implied malice is firmly based on statute; it is an interpretation of section 188’s

abandoned and malignant heart language. Similarly, the second degree felony-

murder rule is nonstatutory in the sense that no statute specifically spells it out, but

it is also statutory as another interpretation of the same “abandoned and malignant

heart” language. We have said that the “felony-murder rule eliminates the need

for proof of malice in connection with a charge of murder, thereby rendering

irrelevant the presence or absence of actual malice, both with regard to first degree

felony murder and second degree felony murder.” (Robertson, supra, 34 Cal.4th

at p. 165.) But analytically, this is not precisely correct. The felony-murder rule

renders irrelevant conscious-disregard-for-life malice, but it does not render

malice itself irrelevant. Instead, the felony-murder rule “acts as a substitute” for

conscious-disregard-for-life malice. (Patterson, supra, 49 Cal.3d at p. 626.) It

simply describes a different form of malice under section 188. “The felony-

murder rule imputes the requisite malice for a murder conviction to those who

commit a homicide during the perpetration of a felony inherently dangerous to

life.” (Hansen, supra, 9 Cal.4th at p. 308.)

A historical review confirms this view. California’s first penal law was the

Crimes and Punishments Act of 1850 (Act of 1850). (Stats. 1850, ch. 99, p. 229.)

Section 19 of that act defined murder as “the unlawful killing of a human being,

with malice aforethought, either express or implied. The unlawful killing may be

effected by any of the various means by which death may be occasioned.” (Stats.

1850, ch. 99, § 19, p. 231.) Sections 20 and 21 of the Act of 1850 defined express

and implied malice, respectively. Section 21 stated, “Malice shall be implied

when no considerable provocation appears, or when all the circumstances of the

killing show an abandoned and malignant heart.” (Stats. 1850, ch. 99, § 21, p.

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231.) It also set the punishment for murder as death. At that time, murder was not

divided into degrees. The division of murder into degrees “occurred in 1856,

when the Legislature amended section 21 of the Act of 1850 to divide the crime of

murder into two degrees: first degree murder was defined as that committed by

certain listed means or in the perpetration of certain listed felonies, while all other

murders were of the second degree.” (People v. Dillon (1983) 34 Cal.3d 441, 466

(Dillon).)

Sections 22-25 of the Act of 1850 concern voluntary and involuntary

manslaughter. Section 25 provided, in its entirety, “Involuntary manslaughter

shall consist in the killing of a human being, without any intent so to do; in the

commission of an unlawful act, or a lawful act, which probably might produce

such a consequence in an unlawful manner; Provided, that where such involuntary

killing shall happen in the commission of an unlawful act, which in its

consequences naturally tends to destroy the life of a human being, or is committed

in the prosecution of a felonious intent, the offense shall be deemed and adjudged

to be murder.” (Stats. 1850, ch. 99, § 25, p. 231, italics of “Provided” in original,

all other italics added.)

In 1872, the Legislature adopted the current Penal Code. Section 187

defined murder essentially the same as did the Act of 1850. (Keeler v. Superior

Court, supra, 2 Cal.3d at p. 624.) As can readily be seen, section 188 also defined

implied malice essentially the same as did the Act of 1850.

But the 1872 Penal Code did recast the definition of involuntary

manslaughter. The new section 192 defined voluntary and involuntary

manslaughter, as it still does today. (In the interim, vehicular manslaughter has

been added as another form of manslaughter.) Subdivision 2 of that section

defined and, now labeled subdivision (b), still defines, involuntary manslaughter

as an unlawful killing without malice “in the commission of an unlawful act, not

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amounting to felony; or in the commission of a lawful act which might produce

death, in an unlawful manner, or without due caution and circumspection.” (§

192, subd. (b), italics added.) The proviso portion of section 25 of the Act of 1850

was deleted and essentially replaced with the italicized language “not amounting

to [a] felony.”

In Dillon, supra, 34 Cal.3d 441, this court considered issues concerning the

first degree felony-murder rule. As part of its discussion, Dillon stated that the

proviso portion of section 25 of the Act of 1850 “codified the common law felony-

murder rule in this state,” and that “the Legislature’s decision not to reenact the

felony-murder provision of section 25 in the 1872 codification implied an intent to

abrogate the common law felony-murder rule that the section had embodied since

1850.” (Dillon, supra, at pp. 465, 467.) If these statements were correct, it would

be difficult to conclude that second degree felony murder is based on statute today.

But this language in Dillon was dicta because Dillon involved the first degree, not

second degree, felony-murder rule. Now that the point is critical, we examine it

further and, viewing the relevant 1850 and 1872 statutes in context, conclude that

Dillon was not correct in this regard.

A codification of the felony-murder rule would logically be placed in the

statutes defining murder, not in a statute defining involuntary manslaughter such

as section 25 of the Act of 1850. Moreover, any reasonable felony-murder rule

would apply to any killing during the course of a felony, not just an “involuntary

killing” as stated in that same section 25. As Dillon noted, “It would have been

absurd, of course, to punish as murder those killings [i.e., involuntary killings] but

not ‘voluntary’ killings during a felony . . . .” (Dillon, supra, 34 Cal.3d at p. 465,

fn. 12.) Dillon ascribed section 25’s apparent limitation of the felony-murder rule

to involuntary killings to a “quirk of draftsmanship.” (Dillon, supra, at p. 465, fn.

12.) If that section’s proviso is viewed as a codification of the common law of

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felony murder, the draftsmanship would, indeed, be quirky. It would be doubly

quirky: It would be unusual to codify a common law rule concerning murder in a

statute defining involuntary manslaughter, and it would be quirky to include in the

felony-murder rule only involuntary killings to the apparent exclusion of voluntary

killings. But viewed instead as what it no doubt was — a proviso merely limiting

the scope of involuntary manslaughter — the draftsmanship makes sense.

Without the proviso, section 25 of the Act of 1850 would have meant, or at

least would have been susceptible to the interpretation, that any killing “in the

commission of an unlawful act” — i.e., any unlawful act, whether misdemeanor or

felony — is involuntary manslaughter. The proviso simply makes clear that

involuntary manslaughter does not include killings in the course of a felony, which

remain murder. As this court explained in a case in which the crime was

committed before, but the opinion filed after, adoption of the 1872 Penal Code,

“Whenever one, in doing an act with the design of committing a felony, takes the

life of another, even accidentally, this is murder.” (People v. Doyell, supra, 48

Cal. at p. 94 [citing section 25 of the Act of 1850].) The new section 192 merely

simplified the definition of involuntary manslaughter by replacing the earlier

proviso with the new language, “not amounting to felony.” In this way, the

Legislature avoided the awkwardness of having a broad definition of involuntary

manslaughter followed by a proviso limiting that definition. So viewed, the

language of section 25 of the Act of 1850 and 1872’s new section 192 all make

sense; no need exists to ascribe any language to quirky draftsmanship or to view

section 192’s simplified definition of involuntary manslaughter as abrogating a

common law rule concerning murder.

The notes of the California Code Commissioners accompanying the 1872

adoption of the Penal Code, which are entitled to substantial weight (Keeler v.

Superior Court, supra, 2 Cal.3d at p. 630), provide no hint of an intent to abrogate

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the felony-murder rule. The note accompanying section 187, although not

discussing this precise point, shows that the statutory term “malice aforethought”

incorporated the term’s common law meaning. (Cal. Code commrs. note foll.

Ann. Pen. Code, § 187 (1st ed. 1872, Haymond & Burch, commrs.-annotators),

pp. 80-81 (1872 Code commissioners note) [citing various common law sources in

discussing the meaning of malice aforethought].) Similarly, nothing in the

adoption of Penal Code sections 188 and 189 suggests an intent to change the

then-existing law of murder, including, as relevant here, the definition of implied

malice and its common law antecedents. The Code commissioners note

accompanying the 1872 adoption of section 192 states that “[t]his section

embodies the material portions of Sections 22, 23, 24, and 25 of the Crimes and

Punishment Act of 1850.” (1872 Code commrs. note, p. 85, italics added.) This

latter note strongly indicates that the language change from section 25 of the Act

of 1850 to section 192 was not intended to change the law of manslaughter, much

less to change the law of murder by abrogating the common law felony-murder

rule. Any statute that “embodies the material portions” of predecessor statutes

would not change the law in such a substantial manner.

We are unaware of any California case even remotely contemporaneous

with the adoption of the 1872 Penal Code (i.e., any case before Dillon, supra, 34

Cal.3d 441) suggesting that the language change from section 25 of the Act of

1852 to section 192 abrogated the felony-murder rule or otherwise changed the

law of murder. Indeed, cases postdating People v. Doyell, supra, 48 Cal. 85, and

the adoption of the 1872 Penal Code, but still ancient from today’s perspective,

cited Doyell in applying the second degree felony-murder rule without any hint

that Doyell was obsolete because it had cited section 25 of the Act of 1850. (See

People v. Olson (1889) 80 Cal. 122, 126-127; People v. Ferugia (1928) 95

Cal.App. 711, 718; People v. Hubbard (1923) 64 Cal.App. 27, 33.)

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For these reasons, we conclude that the Legislature’s replacement of the

proviso language of section 25 of the Act of 1850 with the shorthand language

“not amounting to felony” in section 192 did not imply an abrogation of the

common law felony-murder rule. The “abandoned and malignant heart” language

of both the original 1850 law and today’s section 188 contains within it the

common law second degree felony-murder rule. The willingness to commit a

felony inherently dangerous to life is a circumstance showing an abandoned and

malignant heart. The second degree felony-murder rule is based on statute and,

accordingly, stands on firm constitutional ground.4

B. The Merger Rule and Second Degree Felony Murder

Although today we reaffirm the constitutional validity of the long-standing

second degree felony-murder rule, we also recognize that the rule has often been

criticized and, indeed, described as disfavored. (E.g., Patterson, supra, 49 Cal.3d

at p. 621.) We have repeatedly stated, as recently as 2005, that the rule

“ ‘ “deserves no extension beyond its required application.” ’ ” (People v.

Howard, supra, 34 Cal.4th at p. 1135.) For these reasons, although the second

degree felony-murder rule originally applied to all felonies (People v. Doyell,

supra, 48 Cal. at pp. 94-95; Pike, What Is Second Degree Murder in California,

supra, 9 So.Cal.L.Rev. at pp. 118-119), this court has subsequently restricted its

scope in at least two respects to ameliorate its perceived harshness.

First, “[i]n People v. Ford (1964) 60 Cal.2d 772, 795, the court restricted

the felonies that could support a conviction of second degree murder, based upon a

felony-murder theory, to those felonies that are ‘inherently dangerous to human


4

For policy reasons, Justice Moreno would abolish the second degree

felony-murder doctrine entirely. As we have explained, this court has long refused
to abolish it because it is so firmly established in our law. We continue to abide
by this long-established doctrine, especially now that we have shown that it is
based on statute, while at the same time attempting to make it more workable.

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life.’ ” (Hansen, supra, 9 Cal.4th at p. 308.) Whether a felony is inherently

dangerous is determined from the elements of the felony in the abstract, not the

particular facts. (Patterson, supra, 49 Cal.3d at p. 621.) This restriction is not at

issue here. Section 246 makes it a felony to “maliciously and willfully discharge a

firearm at an . . . occupied motor vehicle . . . .”5 In Hansen, supra, at pages 309-

311, we held that shooting at an “inhabited dwelling house” under section 246 is

inherently dangerous even though the inhabited dwelling house does not have to

be actually occupied at the time of the shooting. That being the case, shooting at a

vehicle that is actually occupied clearly is inherently dangerous.

But the second restriction — the “merger doctrine” — is very much at

issue. The merger doctrine developed due to the understanding that the underlying

felony must be an independent crime and not merely the killing itself. Thus,

certain underlying felonies “merge” with the homicide and cannot be used for

purposes of felony murder. The specific question before us is how to apply the

merger doctrine in this case. In this case, the Court of Appeal divided on the

question and on how to apply our precedents. But the majority and dissent agreed

on one thing — that the current state of the law regarding merger is “muddled.”

We agree that the scope and application of the merger doctrine as applied to

second degree murder needs to be reconsidered. To explain this, we will first

review the doctrine’s historical development. Then we will discuss what to do


5

In its entirety, section 246 provides: “Any person who shall maliciously

and willfully discharge a firearm at an inhabited dwelling house, occupied
building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined
in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243
of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished
by imprisonment in the state prison for three, five, or seven years, or by
imprisonment in the county jail for a term of not less than six months and not
exceeding one year.


“As used in this section, ‘inhabited’ means currently being used for

dwelling purposes, whether occupied or not.”

16

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with the merger doctrine and, ultimately, conclude that the trial court should not

have instructed on felony murder.

1. Historical Review

The merger doctrine arose in the seminal case of Ireland, supra, 70 Cal.2d

522, and hence sometimes is called the “Ireland merger doctrine.” In Ireland, the

defendant shot and killed his wife, and was convicted of second degree murder.

The trial court instructed the jury on second degree felony murder with assault

with a deadly weapon the underlying felony. We held the instruction improper,

adopting the “so-called ‘merger’ doctrine” that had previously been developed in

other jurisdictions. (Id. at p. 540.) We explained our reasons: “[T]he utilization

of the felony-murder rule in circumstances such as those before us extends the

operation of that rule ‘beyond any rational function that it is designed to serve.’

(People v. Washington (1965) 62 Cal.2d 777, 783.) To allow such use of the

felony-murder rule would effectively preclude the jury from considering the issue

of malice aforethought in all cases wherein homicide has been committed as a

result of a felonious assault — a category which includes the great majority of all

homicides. This kind of bootstrapping finds support neither in logic nor in law.

We therefore hold that a second degree felony-murder instruction may not

properly be given when it is based upon a felony which is an integral part of the

homicide and which the evidence produced by the prosecution shows to be an

offense included in fact within the offense charged.” (Id. at p. 539.)6

We next confronted the merger doctrine in a second degree felony-murder

case in Mattison, supra, 4 Cal.3d 177. As we later described Mattison’s facts,


6

Ireland, supra, 70 Cal.2d 522, was a second degree murder case. The

merger doctrine also has a first degree felony-murder counterpart. (See People v.
Wilson (1969) 1 Cal.3d 431.) Because first degree felony murder is specifically
prescribed by statute (§ 189), what we say about the second degree felony-murder
rule does not necessarily apply to the first degree felony-murder rule.

17

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“[i]n that case, the defendant and the victim both were inmates of a correctional

institution. The defendant worked as a technician in the medical laboratory. He

previously had offered to sell alcohol to inmates, leading the victim, an alcoholic,

to seek alcohol from him. The defendant supplied the victim with methyl alcohol,

resulting in the victim’s death by methyl alcohol poisoning. [¶] At trial, the court

instructed on felony murder base upon the felony of mixing poison with a

beverage, an offense proscribed by the then current version of section 347

(‘ “Every person who wilfully mingles any poison with any food, drink or

medicine, with intent that the same shall be taken by any human being to his

injury, is guilty of a felony.” ’) (4 Cal.3d at p. 184.) The defendant was convicted

of second degree murder.” (Hansen, supra, 9 Cal.4th at p. 313.)

The Mattison defendant argued “that the offense of administering poison

with the intent to injure is an ‘integral part of’ and ‘included in fact within the

offense’ of murder by poison” within the meaning of Ireland, supra, 70 Cal.2d

522. (Mattison, supra, 4 Cal.3d at p. 185.) We disagreed. “The instant case . . .

presents an entirely different situation from the one that confronted us in Ireland.

The facts before us are very similar to People v. Taylor (1970) 11 Cal.App.3d 57,

in which the victim died as a result of an overdose of heroin which had been

furnished to her by the defendant. The defendant was convicted of second degree

murder and the question presented was whether application of the felony-murder

rule constituted error under Ireland. . . . [T]he Taylor court concluded that

application of the felony-murder rule was proper because the underlying felony

was committed with a ‘collateral and independent felonious design.’ (People v.

Taylor, supra, 11 Cal.App.3d 57, 63.) In other words the felony was not done

with the intent to commit injury which would cause death. Giving a felony-

murder instruction in such a situation serves rather than subverts the purpose of

the rule. ‘While the felony-murder rule can hardly be much of a deterrent to a

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defendant who has decided to assault his victim with a deadly weapon, it seems

obvious that in the situation presented in the case at bar, it does serve a rational

purpose: knowledge that the death of a person to whom heroin is furnished may

result in a conviction for murder should have some effect on the defendant’s

readiness to do the furnishing.’ (People v. Taylor, supra, 11 Cal.App.3d 57, 63.)

The instant case is virtually indistinguishable from Taylor, and we hold that it was

proper to instruct the jury on second degree felony murder.” (Mattison, supra, 4

Cal.3d at pp. 185-186.)

In People v. Smith (1984) 35 Cal.3d 798, the defendant was convicted of

the second degree murder of her two-year-old daughter. We had to decide

whether the trial court correctly instructed the jury on second degree felony

murder with felony child abuse (now § 273a, subd. (a)) the underlying felony. We

reviewed some of the felonies that do not merge but found them distinguishable.

(People v. Smith, supra, at p. 805.) We explained that the crime at issue was

“child abuse of the assaultive variety” for which we could “conceive of no

independent purpose.” (Id. at p. 806.) Accordingly, we concluded that the offense

merged with the resulting homicide, and that the trial court erred in instructing on

felony murder.

Our merger jurisprudence took a different turn in Hansen, supra, 9 Cal.4th

300. In that case, the defendant was convicted of second degree murder for

shooting at a house, killing one person. The trial court instructed the jury on

second degree felony murder, with discharging a firearm at an inhabited dwelling

house (§ 246) the underlying felony. The majority concluded that the crime of

discharging a firearm at an inhabited dwelling house “does not ‘merge’ with a

resulting homicide so as to preclude application of the felony-murder doctrine.”

(Hansen, supra, at p. 304.) We noted that this court “has not extended the Ireland

doctrine beyond the context of assault, even under circumstances in which the

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underlying felony plausibly could be characterized as ‘an integral part of’ and

‘included in fact within’ the resulting homicide.” (Id. at p. 312.)

We discussed in detail Mattison, supra, 4 Cal.3d 177, and People v. Taylor,

supra, 11 Cal.App.3d 57, the case Mattison relied on. We agreed with Taylor’s

“rejection of the premise that Ireland’s ‘integral part of the homicide’ language

constitutes the crucial test in determining the existence of merger. Such a test

would be inconsistent with the underlying rule that only felonies ‘inherently

dangerous to human life’ are sufficiently indicative of a defendant’s culpable mens

rea to warrant application of the felony-murder rule. [Citation.] The more

dangerous the felony, the more likely it is that a death may result directly from the

commission of the felony, but resort to the ‘integral part of the homicide’ language

would preclude application of the felony-murder rule for those felonies that are

most likely to result in death and that are, consequently, the felonies as to which

the felony-murder doctrine is most likely to act as a deterrent (because the

perpetrator could foresee the great likelihood that death may result, negligently or

accidentally).” (Hansen, supra, 9 Cal.4th at p. 314.)

But the Hansen majority also disagreed with People v. Taylor, supra, 11

Cal.App.3d 57, in an important respect. We declined “to adopt as the critical test

determinative of merger in all cases” language in Taylor indicating “that the

rationale for the merger doctrine does not encompass a felony ‘ “committed with a

collateral and independent felonious design.” ’ (People v. Taylor, supra, 11

Cal.App.3d at p. 63; see also People v. Burton (1971) 6 Cal.3d 375, 387.) Under

such a test, a felon who acts with a purpose other than specifically to inflict injury

upon someone — for example, with the intent to sell narcotics for financial gain,

or to discharge a firearm at a building solely to intimidate the occupants — is

subject to greater criminal liability for an act resulting in death than a person who

actually intends to injure the person of the victim. Rather than rely upon a

20

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somewhat artificial test that may lead to an anomalous result, we focus upon the

principles and rationale underlying the foregoing language in Taylor, namely, that

with respect to certain inherently dangerous felonies, their use as the predicate

felony supporting application of the felony-murder rule will not elevate all

felonious assaults to murder or otherwise subvert the legislative intent.” (Hansen,

supra, 9 Cal.4th at p. 315.)

Hansen went on to explain that “application of the second degree felony-

murder rule would not result in the subversion of legislative intent. Most

homicides do not result from violations of section 246, and thus, unlike the

situation in People v. Ireland, supra, 70 Cal.2d 522, application of the felony-

murder doctrine in the present context will not have the effect of ‘preclud[ing] the

jury from considering the issue of malice aforethought . . . [in] the great majority

of all homicides.’ (Id., at p. 539.) Similarly, application of the felony-murder

doctrine in the case before us would not frustrate the Legislature’s deliberate

calibration of punishment for assaultive conduct resulting in death, based upon the

presence or absence of malice aforethought. . . . [T]his is not a situation in which

the Legislature has demanded a showing of actual malice (apart from the statutory

requirement that the firearm be discharged ‘maliciously and willfully’) in order to

support a second degree murder conviction. Indeed, as discussed above,

application of the felony-murder rule, when a violation of section 246 results in

the death of a person, clearly is consistent with the traditionally recognized

purpose of the second degree felony-murder doctrine — namely the deterrence of

negligent or accidental killings that occur in the course of the commission of

dangerous felonies.” (Hansen, supra, 9 Cal.4th at p. 315.)

Hansen generated three separate opinions in addition to the majority

opinion. Justice Werdegar authored a concurring opinion arguing that the

operative test for the merger doctrine is “whether the underlying felony was

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committed with a ‘collateral and independent felonious design.’ ” (Hansen, supra,

9 Cal.4th at p. 318.) She concurred in the judgment because “[t]he evidence in

this case supports the conclusion defendant entertained a collateral and

independent felonious design under Mattison and Taylor, namely to intimidate

Echaves by firing shots into his house.” (Ibid.)

Justices Mosk and Kennard each authored separate concurring and

dissenting opinions. They would have concluded that the underlying felony

merged with the resulting homicide, thus precluding use of the felony-murder rule.

Justice Kennard argued that “the prosecution’s evidence did not show that

defendant had any independent felonious purpose for discharging the firearm at

the Echaves residence. That conduct satisfies this court’s definition of an assault.”

(Hansen, supra, 9 Cal.4th at p. 330.)

People v. Tabios (1998) 67 Cal.App.4th 1 involved the same issue as this

case — whether shooting at an occupied vehicle under section 246 merges with

the underlying homicide. Relying on Hansen, supra, 9 Cal.4th 300, the Court of

Appeal found no merger. (People v. Tabios, supra, at p. 11.)

In Robertson, supra, 34 Cal.4th 156, the issue was whether the trial court

properly instructed the jury on felony murder based on discharging a firearm in a

grossly negligent manner. (§ 246.3.) As we later summarized, “[t]he defendant

in Robertson claimed he fired into the air, in order to frighten away several men

who were burglarizing his car.” (People v. Randle (2005) 35 Cal.4th 987, 1005

(Randle).) Robertson concluded that the merger doctrine did not bar a felony-

murder instruction. (Robertson, supra, at p. 160.) Its reasons, however, were

quite different than Hansen’s reasons.

The Robertson majority reviewed some of the cases discussed above, then

focused on Mattison, supra, 4 Cal.3d 177. We said that the Mattison court

believed that finding no merger under its facts “was consistent with the deterrent

22

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purpose of the felony-murder rule, because we envisioned that application of the

felony-murder rule would deter commission of the underlying inherently

dangerous crime. (Id. at pp. 185, 186.) Although a person who has decided to

assault another would not be deterred by the felony-murder rule, we declared, a

defendant with some collateral purpose may be deterred. The knowledge that a

murder conviction may follow if an offense such as furnishing a controlled

substance or tainted alcohol causes death ‘ “should have some effect on the

defendant’s readiness to do the furnishing.” ’ (Id. at p. 185.)” (Robertson, supra,

34 Cal.4th at pp. 170-171.)

We noted that Mattison, supra, 4 Cal.3d 177, focused on the fact that the

underlying felony’s purpose “was independent of or collateral to an intent to cause

injury that would result in death.” (Robertson, supra, 34 Cal.4th at p. 171.) Then

we explained, “Although the collateral purpose rationale may have its drawbacks

in some situations (Hansen, supra, 9 Cal.4th at p. 315), we believe it provides the

most appropriate framework to determine whether, under the facts of the present

case, the trial court properly instructed the jury. The defendant’s asserted

underlying purpose was to frighten away the young men who were burglarizing

his automobile. According to defendant’s own statements, the discharge of the

firearm was undertaken with a purpose collateral to the resulting homicide,

rendering the challenged instruction permissible. As Justice Werdegar pointed out

in her concurring opinion in Hansen, a defendant who discharges a firearm at an

inhabited dwelling house, for example, has a purpose independent from the

commission of a resulting homicide if the defendant claims he or she shot to

intimidate, rather than to injure or kill the occupants. (Hansen, supra, 9 Cal.4th at

p. 318 (conc. opn. of Werdegar, J.).)” (Ibid.)

In Robertson, the Court of Appeal had said “that application of the merger

doctrine was necessary in order to avoid the absurd consequence that ‘[d]efendants

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who admit an intent to kill, but claim to have acted with provocation or in honest

but unreasonable self-defense, would likely have a stronger chance [than

defendants who claimed “I didn’t mean to do it”] of being convicted of the lesser

offense of voluntary manslaughter.’ ” (Robertson, supra, 34 Cal.4th at pp. 172-

173.) We responded: “The asserted anomaly identified by the Court of Appeal is

characteristic of the second degree felony-murder in general and is inherent in the

doctrine’s premise that it is reasonable to impute malice — or, more precisely, to

eliminate consideration of the presence or absence of actual malice — because of

the defendant’s commission of an underlying felony that is inherently and

foreseeably dangerous. [Citations.] Reliance on section 246.3 as the predicate

offense presents no greater anomaly in this regard than such reliance on any other

inherently dangerous felony.” (Id. at p. 173.)

Thus, the Robertson majority abandoned the rationale of Hansen, supra, 9

Cal.4th 300, and resurrected the collateral purpose rationale of Mattison, supra, 4

Cal.3d 177, at least when the underlying felony is a violation of section 246.3.

Robertson generated four separate opinions in addition to the majority

opinion. Justice Moreno’s concurring opinion agreed that the refusal to apply the

merger doctrine was correct under the current state of the law, but he was

concerned whether the court should continue to adhere to the second degree

felony-murder doctrine at all. (Robertson, supra, at pp. 174-177.) Justice Brown

argued in dissent that the second degree felony-murder rule should be abandoned

entirely. (Robertson, supra, 9 Cal.4th at pp. 186-192.)

In a separate dissent, Justice Kennard disagreed that “defendant’s claimed

objective to scare the victim” was “a felonious purpose that was independent of

the killing.” (Robertson, supra, 34 Cal.4th at p. 178.) She noted with approval

that “the majority, without explanation, abandon[ed] the rationale of the Hansen

majority, and it return[ed] to the independent felonious purpose standard, which it

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had criticized in Hansen, supra, 9 Cal.4th 300.” (Id. at p. 180.) That was the test

she had advocated in Hansen. (Ibid.) But she believed that the majority

misapplied that test. “An intent to scare a person by shooting at the person is not

independent of the homicide because it is, in essence, nothing more than the intent

required for an assault, which is not considered an independent felonious purpose.

[Citation.] Two examples of independent felonious purpose come to mind: (1)

When the felony underlying the homicide is manufacturing methamphetamine, the

intent to manufacture this illegal drug is a felonious intent that is independent of

the homicide, thus allowing the manufacturer to be convicted of murder if the

methamphetamine laboratory explodes and kills an innocent bystander. (2) When

the underlying felony is possession of a destructive device, the intent to possess

that device is an independent felonious intent, allowing the possessor to be

convicted of murder if the device accidentally explodes, killing an unintended

victim. But when, as here, a defendant fires a gun to scare the victim, the intended

harm — that of scaring the victim — is not independent of the greater harm that

occurs when a shot fired with the intent to scare instead results in the victim’s

death.” (Id. at p. 183.) “In sum, it makes no sense legally to treat defendant’s

alleged intent to scare as ‘felonious’ when such an intent is legally irrelevant [to

guilt of the underlying felony] and when the jury never decided whether he had

that intent.” (Ibid.)

Justice Werdegar also dissented, arguing that the underlying felony merged

with the resulting homicide. She said she “would like to join in the majority

reasoning, which is consistent with my Hansen concurrence. But sometimes

consistency must yield to a better understanding of the developing law. The

anomalies created when assaultive conduct is used as the predicate for a second

degree felony-murder theory (see dis. opn. of Kennard, J., ante, at pp. 180-182)

are too stark and potentially too productive of injustice to be written off as

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‘characteristic of the second degree felony-murder rule in general’ (maj. opn.,

ante, at. p. 173). It simply cannot be the law that a defendant who shot the victim

with the intent to kill or injure, but can show he or she acted in unreasonable self-

defense, may be convicted of only voluntary manslaughter, whereas a defendant

who shot only to scare the victim is precluded from raising that partial defense and

is strictly liable as a murderer. The independent and collateral purposes referred to

in Mattison must be understood as limited to nonassaultive conduct. In

circumstances like the present, the merger doctrine should preclude presentation of

a second degree felony-murder theory to the jury.” (Robertson, supra, 34 Cal.4th

at p. 185 (dis. opn. of Werdegar, J.).)

In Randle, supra, 35 Cal.4th 987, the trial court, as in Robertson, instructed

the jury on second degree felony murder, with discharging a firearm in a grossly

negligent manner the underlying felony. (Randle, supra, at p. 1004.) We found

the instruction erroneous under the facts. “Here, unlike Robertson, defendant

admitted, in his pretrial statements to the police and to a deputy district attorney,

he shot at Robinson [the homicide victim]. . . . [¶] The fact that defendant

admitted shooting at Robinson distinguishes Robertson and supports application of

the merger rule here. Defendant’s claim that he shot Robinson in order to rescue

[another person] simply provided a motive for the shooting; it was not a purpose

independent of the shooting.” (Id. at p. 1005.)

In People v. Bejarano (2007) 149 Cal.App.4th 975, as in People v. Tabios,

supra, 67 Cal.App.3d 1, and this case, the trial court instructed the jury on second

degree felony murder, with shooting at an occupied vehicle under section 246 the

underlying felony. The court concluded that the collateral purpose requirement of

Robertson, supra, 34 Cal.4th 156, and Randle, supra, 35 Cal.4th 987, applied.

“The facts of this case show that appellant discharged the firearm once, intending

to shoot the motor vehicle’s occupants, rival gang members, and not intending

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merely to frighten them. The bullet, however, struck and killed an unintended

victim, the driver of another vehicle.” (People v. Bejarano, supra, at p. 978.)

Relying primarily on Randle, supra, 35 Cal.4th 987, the Court of Appeal

concluded that the trial court erred in instructing on felony murder. “Thus, Randle

controls this case, the predicate felony merged with the homicide, and the trial

court erred in instructing the jury on second degree felony murder based on

discharging a firearm at an occupied motor vehicle in violation of section 246.”

(People v. Bejarano, supra, at p. 990.)

The most recent significant development is the Court of Appeal’s opinion

in this case. The majority noted that People v. Tabios, supra, 67 Cal.App.4th 1,

had relied on Hansen, supra, 9 Cal.4th 300, in finding no merger, but then it also

noted that this court “returned to the Mattison collateral purpose rationale in”

Robertson, supra, 34 Cal.4th 156. After reviewing other recent cases, it stated,

“From this muddled state of the law, we discern the rule to be that second degree

felony murder is applicable to an assaultive-type crime, such as when shooting at a

person is involved, provided that the crime was committed with a purpose

independent of and collateral to causing injury. Since the Supreme Court could

have upheld instruction on felony murder in Randle on the basis that most

homicides are not committed by negligently discharging a gun and did not, we

conclude the collateral purpose rule is the proper test of merger in these type of

cases.”

Regarding whether a collateral purpose exists in this case, the Court of

Appeal majority noted that it had held defendant’s statement that he had fired the

gun “ ‘to scare them’ ” should have been excluded. “Without defendant’s

statements about firing the gun,” the majority concluded, “there was no admissible

evidence of a collateral purpose by defendant or any of his companions. Indeed,

the reasonable inference is that one who shoots another at close range intends to

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harm, if not to kill.” Thus it found the court erred, prejudicially, in instructing on

second degree felony murder.

In dissent, Justice Nicholson agreed with the majority that the present state

of the law is muddled. But he concluded that this court has not overruled Hansen,

supra, 9 Cal.4th 300, and found that case, rather than Robertson, supra, 34 Cal.4th

156, or Randle, supra, 35 Cal.4th 987, to be on point. He believed that “the only

rule that can be gleaned from Robertson and Randle is that the collateral purpose

rationale applies to cases involving a violation of section 246.3, which this case

does not.” Accordingly, he would have held “that merger is inappropriate when

the underlying offense is a violation of section 246.”

2. Analysis

The current state of the law regarding the Ireland merger doctrine is

problematic in at least two respects.

First, two different approaches currently exist in determining whether a

felony merges. Hansen, supra, 9 Cal.4th 300, which we have never expressly

overruled, held that a violation of section 246, at least when predicated on

shooting at an inhabited dwelling house, never merges. Robertson, supra, 34

Cal.4th 156, and Randle, supra, 35 Cal.4th 987, held that a violation of section

246.3 does merge unless it is done with a purpose collateral to the resulting

homicide. If Hansen, on the one hand, and Robertson and Randle on the other

hand, are all still valid authority, the question arises which approach applies here.

People v. Tabios, supra, 67 Cal.App.4th 1, relied on Hansen to conclude that

shooting at an occupied vehicle under section 246 never merges. People v.

Bejarano, supra, 149 Cal.App.4th 975, relied on the more recent Robertson and

Randle opinions to conclude that the same felony does merge unless accompanied

by a collateral purpose. The Court of Appeal here, rather understandably, divided

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on the question. This court has never explained whether Hansen retains any

viability after Robertson and Randle and, if so, how a court is to go about

determining which approach to apply to a given underlying felony.

Second, Randle, when juxtaposed with Robertson, brings into sharp focus

the anomaly that we noted in Robertson and accepted as inherent in the second

degree felony-murder rule, and that we noted in Hansen and avoided by

concluding that the merger rule never applies to shooting at an inhabited dwelling

house. In combination, Robertson and Randle hold that, when the Hansen test

does not apply (i.e., at least when the underlying felony is a violation of 246.3),

the underlying felony merges, and the felony-murder rule does not apply, if the

defendant intended to shoot at the victim (Randle), but the underlying felony does

not merge, and the felony-murder rule does apply, if the defendant merely

intended to frighten, perhaps because he believed the victim was burglarizing his

car (Robertson). This result is questionable for the reasons discussed in the

separate opinions in Robertson. Moreover, as we discuss further below, the

Robertson and Randle approach injected a factual component into the merger

question that did not previously exist.

In light of these problems, we believe we need to reconsider our merger

doctrine jurisprudence. As Justice Werdegar observed in her dissenting opinion in

Robertson, “sometimes consistency must yield to a better understanding of the

developing law.” (Robertson, supra, 34 Cal.4th at p. 185.) In considering this

question, we must also keep in mind the purposes of the second degree felony-

murder rule. We have identified two. The purpose we have most often identified

“is to deter felons from killing negligently or accidentally by holding them strictly

responsible for killings they commit.” (People v. Washington, supra, 62 Cal.2d at

p. 781.) Another purpose is to deter commission of the inherently dangerous

felony itself. (Robertson, supra, 34 Cal.4th at p. 171 [“the second degree felony-

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murder rule is intended to deter both carelessness in the commission of a crime

and the commission of the inherently dangerous crime itself”]; Hansen, supra, 9

Cal.4th at pp. 310, 311, 314.)

We first consider whether Hansen, supra, 9 Cal.4th 300, has any continuing

vitality after Robertson, supra, 34 Cal.4th 156, and Randle, supra, 35 Cal.4th 987.

In Robertson and Randle, we unanimously rejected the Hansen test, at least when

the underlying felony is a violation of section 246.3. Although Hansen avoided

the problems inherent in the Robertson approach by simply stating the felony at

issue will never merge, we see no basis today to resurrect the Hansen approach for

a violation of section 246.3. Indeed, doing so would arguably be inconsistent with

Hansen’s reasoning. Hansen explained that most homicides do not involve

violations of section 246, and thus holding that such homicides do not merge

would not “subvert the legislative intent.” (Hansen, supra, at p. 315.) But most

fatal shootings, and certainly those charged as murder, do involve discharging a

firearm in at least a grossly negligent manner. Fatal shootings, in turn, are a high

percentage of all homicides. Thus, holding that a violation of section 246.3 never

merges would greatly expand the range of homicides subject to the second degree

felony-murder rule. We adhere to Robertson and Randle to the extent they

declined to extend the Hansen approach to a violation of section 246.3.

But if, as we conclude, the Hansen test does not apply to a violation of

section 246.3, we must decide whether it still applies to any underlying felonies.

The tests stated in Hansen and in Robertson and Randle cannot both apply at the

same time. If Hansen governs, the underlying felony will never merge. If

Robertson and Randle governs, the underlying felony will always merge unless the

court can discern some independent felonious purpose. But we see no principled

basis by which to hold that a violation of section 246 never merges, but a violation

of section 246.3 does merge unless done with an independent purpose. We also

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see no principled test that another court could use to determine which approach

applies to other possible underlying felonies. The court in People v. Bejarano,

supra, 149 Cal.App.4th 975, implicitly concluded that Robertson and Randle now

govern to the exclusion of the Hansen test. We agree. The Robertson and Randle

test and the Hansen test cannot coexist. Our analysis in Robertson and Randle

implicitly overruled the Hansen test. We now expressly overrule People v.

Hansen, supra, 9 Cal.4th 300, to the extent it stated a test different than the one of

Robertson and Randle. Doing so also requires us to disapprove of People v.

Tabios, supra, 67 Cal.App.4th 1.

But the test of Robertson, supra, 34 Cal.4th 156, and Randle, supra, 35

Cal.4th 987, has its own problems that were avoided in Hansen but resurfaced

when we abandoned the Hansen test. Our holding in Randle made stark the

anomalies that Justices Kennard and Werdegar identified in Robertson. On

reflection, we do not believe that a person who claims he merely wanted to

frighten the victim should be subject to the felony-murder rule (Robertson), but a

person who says he intended to shoot at the victim is not subject to that rule

(Randle). Additionally, Robertson said that the intent to frighten is a collateral

purpose, but Randle said the intent to rescue another person is not an independent

purpose but merely a motive. (Robertson, supra, at p. 171; Randle, supra, at p.

1005.) It is not clear how a future court should decide whether a given intent is a

purpose or merely a motive.

The Robertson and Randle test presents yet another problem. In the past,

we have treated the merger doctrine as a legal question with little or no factual

content. Generally, we have held that an underlying felony either never or always

merges (e.g., People v. Smith, supra, 35 Cal.3d at p. 805 [identifying certain

underlying felonies that do not merge]), not that the question turns on the specific

facts. Viewed as a legal question, the trial court properly decides whether to

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instruct the jury on the felony-murder rule, but if it does so instruct, it does not

also instruct the jury on the merger doctrine. The Robertson and Randle test,

however, turns on potentially disputed facts specific to the case. In Robertson, the

defendant claimed he merely intended to frighten the victim, which caused this

court to conclude the underlying felony did not merge. But the jury would not

necessarily have to believe the defendant. Whether a defendant shot at someone

intending to injure, or merely tried to frighten that someone, may often be a

disputed factual question.

Defendant argues that the factual question whether the defendant had a

collateral felonious purpose — and thus whether the felony-murder rule applies —

involves an element of the crime and, accordingly, that the jury must decide that

factual question. When the merger issue turns on potentially disputed factual

questions, there is no obvious answer to this argument. Justice Kennard alluded to

the problem in her dissent in Robertson when she observed that “the jury never

decided whether he had that intent [to frighten].” (Robertson, supra, 34 Cal.4th at

p. 183.) Because this factual question determines whether the felony-murder rule

applies under Robertson and Randle, and thus whether the prosecution would have

to prove some other form of malice, it is not clear why the jury should not have to

decide the factual question.

To avoid the anomaly of putting a person who merely intends to frighten

the victim in a worse legal position than the person who actually intended to shoot

at the victim, and the difficult question of whether and how the jury should decide

questions of merger, we need to reconsider our holdings in Robertson, supra, 34

Cal.4th 156, and Randle, supra, 35 Cal.4th 987. When the underlying felony is

assaultive in nature, such as a violation of section 246 or 246.3, we now conclude

that the felony merges with the homicide and cannot be the basis of a felony-

murder instruction. An “assaultive” felony is one that involves a threat of

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immediate violent injury. (See People v. Chance (2008) 44 Cal.4th 1164, 1167-

1168.) In determining whether a crime merges, the court looks to its elements and

not the facts of the case. Accordingly, if the elements of the crime have an

assaultive aspect, the crime merges with the underlying homicide even if the

elements also include conduct that is not assaultive. For example, in People v.

Smith, supra, 35 Cal.3d at page 806, the court noted that child abuse under section

273a “includes both active and passive conduct, i.e., child abuse by direct assault

and child endangering by extreme neglect.” Looking to the facts before it, the

court decided the offense was “of the assaultive variety,” and therefore merged.

(Smith, supra, 35 Cal.3d at pp. 806-807.) It reserved the question whether the

nonassaultive variety would merge. (Id. at p. 808, fn. 7.) Under the approach we

now adopt, both varieties would merge. This approach both avoids the necessity

of consulting facts that might be disputed and extends the protection of the merger

doctrine to the potentially less culpable defendant whose conduct is not assaultive.

This conclusion is also consistent with our repeatedly stated view that the

felony-murder rule should not be extended beyond its required application.

(People v. Howard, supra, 34 Cal.4th at p. 1135.) We do not have to decide at this

point exactly what felonies are assaultive in nature, and hence may not form the

basis of a felony-murder instruction, and which are inherently collateral to the

resulting homicide and do not merge. But shooting at an occupied vehicle under

section 246 is assaultive in nature and hence cannot serve as the underlying felony

for purposes of the felony-murder rule.7


7

Justice Baxter makes some provocative arguments in favor of abolishing

the Ireland merger doctrine entirely. However, just as we have refused to abolish
the second degree felony-murder doctrine because it is firmly established, so too
we think it a bit late to abolish the four-decades-old merger doctrine. Instead, we
think it best to attempt to make it and the second degree felony-murder doctrine
more workable.

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We overrule People v. Robertson, supra, 34 Cal.4th 156, and the reasoning,

although not the result, of People v. Randle, supra, 35 Cal.4th 987. This

conclusion means the trial court erred in this case in instructing the jury on the

second degree felony-murder rule.8 We now turn to a consideration of whether

this error was prejudicial.

C. Prejudice

California Constitution, article VI, section 13, prohibits a reviewing court

from setting aside a judgment due to trial court error unless it finds the error

prejudicial. Accordingly, we must decide whether the error in instructing on

felony murder prejudiced defendant.

Instructional error regarding the elements of the offense requires reversal of

the judgment unless the reviewing court concludes beyond a reasonable doubt that

the error did not contribute to the verdict. (People v. Cross (2008) 45 Cal.4th 58,

69-71 (conc. opn. of Baxter, J.); People v. Swain (1996) 12 Cal.4th 593, 607;

People v. Calderon (2005) 129 Cal.App.4th 1301, 1306-1307 [erroneous

instruction on the second degree felony-murder rule]; see Hedgpeth v. Pulido

(2008) ___ U.S. ___ [129 S.Ct. 530] [reiterating that error of this nature is subject

to harmless error analysis]; Neder v. United States (1999) 527 U.S. 1, 15 [stating

the reasonable doubt test].)

In finding prejudice, the Court of Appeal noted that the trial court “did not

give CALJIC No. 8.30 on second degree express malice murder or CALJIC No.

8.31 on second degree implied malice murder.” It also stated, “While it is possible

the jury selected second degree murder on another theory after finding no


8

When we say the trial court erred, we mean, of course, only in light of our

reconsideration of past precedents. As of the time of trial, after Hansen, supra, 9
Cal.4th 300, and People v. Tabios, supra, 67 Cal.App.4th 1, and before People v.
Bejarano, supra, 149 Cal.App.4th 975, ample authority supported the trial court’s
decision to instruct on felony murder.

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premeditation and deliberation, we cannot determine which theory the jury relied

on, so if the second degree felony-murder instruction was legally flawed, the

verdict must be reversed. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)” Later,

after it did find error, the court reiterated that the error was prejudicial: “Since . . .

the record does not show the murder conviction was based on a valid ground, we

reverse the conviction for second degree murder. (People v. Guiton, supra, 4

Cal.4th 1116, 1129.)”

Defendant argues that the trial court did not adequately instruct the jury on

conscious-disregard-for-life malice as a theory of second degree murder, and

therefore the jury could not have based its verdict on that theory. We disagree.

Although the trial court did not give CALJIC Nos. 8.30 and 8.31, and hence did

not instruct on implied (or express) malice murder precisely the way the authors of

CALJIC intended, it did give CALJIC No. 8.11, which contains everything

necessary to fully instruct the jury on this form of malice as a possible theory of

second degree murder.

Specifically, the court instructed the jury that to prove murder, the

prosecution had to prove an unlawful killing that “was done with malice

aforethought or occurred during the commission or attempted commission of

shooting at an occupied motor vehicle . . . .” (Italics added.) It also defined

malice: “Malice may be either express or implied. Malice is express when there

is manifested an intention unlawfully to kill a human being.

“Malice is implied when:

“1. The killing resulted from an intentional act;

“2. The natural consequences of the act are dangerous to human life; and

“3. The act was deliberately performed with knowledge of the danger to

and with conscious disregard for human life.

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“When it is shown that a killing resulted from the intentional doing of an

act with express or implied malice, no other mental state need be shown to

establish the mental state of malice aforethought.”

As the Attorney General notes, the only language from CALJIC No. 8.30 or

8.31 not included in CALJIC No. 8.11, which the court gave, is the last sentence

of CALJIC No. 8.31: “When the killing is the direct result of such an act [an act

committed with implied malice], it is not necessary to prove that the defendant

intended that the act would result in the death of a human being.” But omission of

this sentence, favorable to the prosecution, could neither have prejudiced

defendant nor prevented the jury from finding implied malice.

Later, the court instructed the jury that a killing during the commission of

shooting at an occupied motor vehicle is second degree murder “when the

perpetrator had the specific intent to commit that crime.” The trial court did not

reiterate at this point the conscious-disregard-for-life theory of second degree

murder, but doing so was not necessary to adequately instruct the jury on that

theory. The instructions permitted the jury to base a second degree murder verdict

on either malice or the felony-murder rule. Accordingly, the court did instruct the

jury on conscious-disregard-for-life malice as a possible basis of murder.

Moreover, the prosecutor explained the applicable law to the jury. He

explained that murder was an unlawful killing committed with malice or during

the commission of a dangerous felony. He discussed what implied malice is and

included examples. Defendant correctly notes that the prosecutor did not argue

that defendant acted with implied malice. He argued for first degree, not second

degree, murder. But the instructions, especially in light of the prosecutor’s

explanation, permitted the jury to base a second degree murder verdict on a

finding of malice separate from the felony-murder rule.

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In this situation, to find the error harmless, a reviewing court must

conclude, beyond a reasonable doubt, that the jury based its verdict on a legally

valid theory, i.e., either express or conscious-disregard-for-life malice. Citing

People v. Guiton, supra, 4 Cal.4th 1116, the Court of Appeal believed it could not

do so. But Guiton does not dispose of this issue. In his concurring opinion in

People v. Cross, supra, 45 Cal.4th at page 70, Justice Baxter discussed Guiton’s

significance in this context: “Although Guiton observed that reliance on other

portions of the verdict is ‘[o]ne way’ of finding an instructional error harmless

(Guiton, at p. 1130), we have never intimated that this was the only way to do so.

Indeed, Guiton noted that we were not then presented with the situation of a jury

having been instructed with a legally adequate and a legally inadequate theory and

that we therefore ‘need not decide the exact standard of review’ in such

circumstances — although we acknowledged that ‘[t]here may be additional ways

by which a court can determine that error in [this] situation is harmless. We leave

the question to future cases.’ (Id. at pp. 1130, 1131.) Because this case only now

presents that issue, Guiton does not provide a dispositive answer to the question.”

(See also People v. Harris (1994) 9 Cal.4th 407, 419, fn. 7.)

The Attorney General argues that the actual verdict does show that the jury

did not base its murder verdict on the felony-murder rule but necessarily based it

on a valid theory. He notes that the jury acquitted defendant of the separately

charged underlying crime of shooting at an occupied vehicle. A jury that based a

murder verdict solely on felony murder, the Attorney General argues, would not

acquit a defendant of the underlying felony. Defendant counters with the

argument that the verdict as a whole — finding defendant guilty of murder but not

guilty of either shooting at or from a motor vehicle — is internally inconsistent.

On these facts, it is hard to reconcile this verdict. If defendant did not commit this

murder by firing at or from a vehicle, how did he commit it? There was no

37

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evidence the victims were killed or injured by any method other than shooting

from and at an occupied vehicle. The overall verdict had to have been either a

compromise or an act of leniency.

Defendant recognizes that he may not argue that the murder conviction

must be reversed due to this inconsistency. He may not argue that the acquittals

imply that defendant could not have committed murder, and therefore the jury

found he did not commit murder. Instead, courts necessarily tolerate, and give

effect to all parts of, inconsistent verdicts. (See generally People v. Palmer (2001)

24 Cal.4th 856.) But, defendant argues, this being the case, a reviewing court

should not read more than is warranted into one part of an inconsistent verdict.

Defendant posits the possibility that one or more jurors found him guilty of second

degree murder on a felony-murder theory but then agreed to acquit him of the

underlying felony either out of leniency or as a compromise, or perhaps simply out

of confusion. In that event, defendant suggests, those jurors may simply have

believed defendant was guilty of murder on the invalid felony-murder theory

without ever considering a valid theory of malice.

Defendant’s argument has some force. The acquittal of the underlying

felony strongly suggests the jury based its murder conviction on a valid theory of

malice but, under the circumstances, we do not believe that it alone does so

beyond a reasonable doubt. But for other reasons we find the error harmless. In

his concurring opinion in California v. Roy (1996) 519 U.S. 2, Justice Scalia stated

a test that fits the error of this case well. In Roy, the error was permitting a

defendant to be convicted of a crime as an aider and abettor solely due to the

defendant’s knowledge of the perpetrator’s intent without requiring a finding the

aider and abettor shared that intent. That error is similar to the error of this case,

which permitted defendant to be convicted of murder on a felony-murder theory

without requiring a finding of a valid theory of malice. The high court held that

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the error was subject to harmless error analysis and remanded for the lower court

to engage in that analysis.

California v. Roy, supra, 519 U.S. 2, involved collateral review of a state

court judgment in a federal habeas corpus matter, a procedural posture in which

the standard of review for prejudice is more deferential than the harmless-beyond-

a-reasonable-doubt standard applicable to direct review. (Id. at pp. 4-5.) But

Justice Scalia, in a concurring opinion, stated a test that is adaptable to the

reasonable doubt standard of direct review: “The error in the present case can be

harmless only if the jury verdict on other points effectively embraces this one or if

it is impossible, upon the evidence, to have found what the verdict did find without

finding this point as well.” (Id. at p. 7.) Without holding that this is the only way

to find error harmless, we think this test works well here, and we will use it. If

other aspects of the verdict or the evidence leave no reasonable doubt that the jury

made the findings necessary for conscious-disregard-for-life malice, the erroneous

felony-murder instruction was harmless.

For felony murder, the court’s instructions required the jury to find that

defendant had the specific intent to commit the underlying felony of shooting at an

occupied vehicle. Later, it instructed that to find defendant committed that crime,

it had to find these elements:

“1. A person discharged a firearm at an occupied motor vehicle; and

“2. The discharge of the firearm was willful and malicious.”

Thus any juror who relied on the felony-murder rule necessarily found that

defendant willfully shot at an occupied vehicle. The undisputed evidence showed

that the vehicle shot at was occupied by not one but three persons. The three were

hit by multiple gunshots fired at close range from three different firearms. No

juror could have found that defendant participated in this shooting, either as a

shooter or as an aider and abettor, without also finding that defendant committed

39

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an act that is dangerous to life and did so knowing of the danger and with

conscious disregard for life — which is a valid theory of malice. In other words,

on this evidence, no juror could find felony murder without also finding

conscious-disregard-for-life malice. The error in instructing the jury on felony

murder was, by itself, harmless beyond a reasonable doubt.

However, this instructional error is not the only error in the case. The

Court of Appeal held that the jury should not have heard evidence that defendant

admitted firing the gun, but said he did not point it at anyone and just wanted to

scare them, and that this error was harmless “as a pure evidentiary matter.”

Neither of these holdings is before us on review. The Court of Appeal also held

that the error in instructing on felony murder was, by itself, prejudicial, a holding

we are reversing. But the Court of Appeal never considered whether the two

errors, in combination, were prejudicial. The parties have, understandably, not

focused on this precise question. Under the circumstances, we think it prudent to

remand the matter for the Court of Appeal to consider and decide whether the two

errors, in combination, were prejudicial.

III. CONCLUSION

Although we agree with the Court of Appeal that the trial court erred in

instructing the jury on second degree felony murder, we also conclude that the

error, alone, was harmless. Accordingly, we reverse the judgment of the Court of

Appeal and remand the matter to that court for further proceedings consistent with

this opinion.

CHIN,

J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CORRIGAN, J.

40

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CONCURRING AND DISSENTING OPINION BY BAXTER, J.




I concur in the majority’s decision to reaffirm the constitutional validity of

the long-standing second degree felony-murder rule. (Maj. opn., ante, at p. 15.)

Ever since the Penal Code1 was enacted in 1872, and going back even before that,

to California’s first penal law, the Crimes and Punishments Act of 1850 (Stats.

1850, ch. 99, p. 229), the second degree felony-murder rule has been recognized as

a rule for imputing malice under the statutory definition of implied malice

(§ 188)2 where the charge is second degree murder. (Maj. opn., ante, at pp. 10-

15.) As the majority explains, “The willingness to commit a felony inherently

dangerous to life is a circumstance showing an abandoned and malignant heart.

The second degree felony-murder rule is based on statute and, accordingly, stands

on firm constitutional ground.” (Maj. opn., ante, at p. 15.)


1

All further statutory references are to the Penal Code.

2

Section 188 provides that malice is implied “when no considerable

provocation appears or when the circumstances attending the killing show an
abandoned and malignant heart.” (§ 188.) We have, however, recognized that
“[t]he statutory definition of implied malice has never proved of much assistance
in defining the concept in concrete terms.” (People v. Dellinger (1989) 49 Cal.3d
1212, 1217 (Dellinger).) Under the modern understanding of the “abandoned and
malignant heart” definition of implied malice, malice is presumed when “ ‘ “the
killing proximately resulted from an act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows
that his conduct endangers the life of another and who acts with conscious
disregard for life.” ’ ” (Dellinger, supra, 49 Cal.3d at p. 1218; see also People v.
Sedeno (1974) 10 Cal.3d 703, 719; People v. Phillips (1966) 64 Cal.2d 574, 587.)

1

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Although the majority reaffirms the constitutional validity of the second

degree felony-murder rule, they go on to render it useless in this and future cases

out of strict adherence to the so-called “merger rule” announced in People v.

Ireland (1969) 70 Cal.2d 522 (Ireland). Under the merger rule, no assaultive-type

felony can be used as a basis for a second degree felony-murder conviction. The

single rationale given in Ireland for the merger rule was that to allow assaultive-

type felonies to serve as a basis for a second degree felony-murder conviction

“would effectively preclude the jury from considering the issue of malice

aforethought in all cases wherein homicide has been committed as a result of a

felonious assault . . . a category which includes the great majority of all homicides.

This kind of bootstrapping finds support neither in logic nor in law.” (Id. at

p. 539.)

In the 40 years since the Ireland court announced its sweeping “merger

rule,” this court has struggled mightily with its fallout in an attempt to redefine the

contours of the venerable second degree felony-murder rule. The history of our

“muddled” (maj. opn., ante, at p. 16) case law on the subject is accurately

recounted in painstaking detail in the majority opinion. (Id. at pp. 15-34.) Two

decisions in particular are noteworthy here.

In People v. Hansen (1994) 9 Cal.4th 300 (Hansen), we concluded that

maliciously and willfully shooting at an inhabited dwelling in violation of section

246, “involves a high probability that death will result and therefore is an

inherently dangerous felony . . . for purposes of the second degree felony-murder

doctrine.” (Hansen, at p. 309.) Hansen explained that, “application of the second

degree felony-murder rule to a homicide resulting from a violation of section 246

directly would serve the fundamental rationale of the felony-murder rule — the

deterrence of negligent or accidental killings in the course of the commission of

dangerous felonies. The tragic death of innocent and often random victims, both

2

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young and old, as the result of the discharge of firearms, has become an

alarmingly common occurrence in our society — a phenomenon of enormous

concern to the public. By providing notice to persons inclined to willfully

discharge a firearm at an inhabited dwelling — even to those individuals who

would do so merely to frighten or intimidate the occupants, or to ‘leave their

calling card’ — that such persons will be guilty of murder should their conduct

result in the all-too-likely fatal injury of another, the felony-murder rule may serve

to deter this type of reprehensible conduct, which has created a climate of fear for

significant numbers of Californians even in the privacy of their own homes.”

(Hansen, at pp. 310-311.)

I signed the majority opinion in Hansen, and continue to find that decision

well-reasoned and most directly on point in the matter now before us.3 I would

follow Hansen and conclude the jury below was properly instructed on second

degree felony murder based on defendant’s commission of the inherently

dangerous felony of shooting at an occupied vehicle in violation of section 246

and the inference of malice that follows therefrom. The majority, in contrast,

rejects the analysis and holding in Hansen and expressly overrules it. (Maj. opn.,

ante, at p. 31.)


3

The case before us involves a homicide resulting from defendant shooting

at an occupied vehicle in violation of section 246. In Hansen, we held that
shooting at an “inhabited dwelling house” in violation of that same section (§ 246)
is an act inherently dangerous to human life even though the house is not actually
occupied at the time of the shooting. (Hansen, supra, 9 Cal.4th at pp. 309-311.)
We then explained that “[t]he nature of the other acts proscribed by section 246
reinforces the conclusion that the Legislature viewed the offense of discharging a
firearm at an inhabited dwelling as posing a risk of death comparable to that
involved in shooting at an occupied building or motor vehicle.” (Id. at p. 310.)
The majority agrees that shooting at an occupied vehicle, as occurred here, is an
inherently dangerous felony. (Maj. opn., ante, at p. 16.) So do I.

3

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In People v. Robertson (2004) 34 Cal.4th 156, 166 (Robertson), we again

considered whether the trial court had properly instructed the jury on second

degree felony murder, this time based on the felony of discharging a firearm in a

grossly negligent manner. (§ 246.3.) The defendant in Robertson claimed he fired

his gun “upwards into the air” merely intending to “ ‘scare people away.’ ”

(Robertson, supra, 34 Cal.4th at p. 162.) The Robertson majority rejected

(although did not overrule) the rationale of Hansen, supra, 9 Cal.4th 300, and

went on to resurrect and apply the so-called “collateral purpose” rule derived from

two earlier decisions: People v. Mattison (1971) 4 Cal.3d 177 (Mattison) and

People v. Taylor (1970) 11 Cal.App.3d 57. Briefly, Robertson concluded that,

under the collateral purpose rule, the merger doctrine did not bar a second degree

felony-murder instruction based on the violation of section 246.3. (Robertson, at

p. 160.) The “collateral purpose” rule can be summarized as a test that reaches a

compromise on the all-or-nothing approach taken in Ireland regarding assaultive-

type felonies and their nonavailability as a basis for second degree felony-murder

treatment. Under the collateral purpose rule or test, application of the second

degree felony-murder rule is only proper where the underlying felony, although

assaultive in nature, is nonetheless committed with a “ ‘collateral and independent

felonious design.’ ” (Mattison, supra, 4 Cal.3d at p. 186; Taylor, supra, 11

Cal.App.3d at p. 63.)

I signed the majority opinion in Robertson as well, but I have since come to

appreciate that the collateral purpose rule on which it relied is unduly deferential

to Ireland’s flawed merger doctrine. The majority itself points to several serious

concerns raised in the wake of Robertson’s reliance on the collateral purpose rule

in its effort to mitigate the harsh effects of Ireland’s all-or-nothing merger rule.

(Maj. opn., ante, at pp. 31-32.) Nonetheless, it can fairly be observed that the

decision in Robertson, right or wrong, did represent a compromise, for under its

4

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holding inherently dangerous felonies, though they be of the assaultive type, could

still be used as a basis for second degree felony-murder rule treatment as long as a

“collateral purpose” for the commission of such a felony could be demonstrated.

(Robertson, supra, 34 Cal.4th at p. 160.)

The majority, in contrast, reject the analysis and holding of Robertson and

expressly overrule it along with our earlier decision in Hansen. (Maj. opn., ante,

at p. 33.) The majority, to put it bluntly, are unwilling to ameliorate the harsh

effects of Ireland’s merger doctrine. The majority instead broadly hold that all

felonies that are “assaultive in nature” (maj. opn., at p. 32) henceforth may not be

used as a basis for a second degree felony-murder prosecution. In short, this

court’s various attempts over the course of several decades to salvage the second

degree felony-murder rule in the wake of Ireland’s merger doctrine, and to

ameliorate the harsh effects of that all-or-nothing rule, have been wiped clean

from the slate. The majority has effectively returned the law to where it stood 40

years ago, just after Ireland was decided. I cannot join in the majority’s wholesale

capitulation to such a seriously flawed decision.

In the end, this case presented us with a clear opportunity to finally get this

complex and difficult issue right. The majority’s recognition and unequivocal

pronouncement, in part II.A of its opinion — that the second degree felony-murder

rule is simply a rule for imputing malice under section 188 — furnishes the

missing piece to this complex and confusing legal jigsaw puzzle. With that clear

pronouncement of the second degree felony-murder rule’s true nature and function

firmly in hand, I would go on to reach the following logical conclusions with

regard to the long-standing tension between that rule and Ireland’s merger

doctrine.

First, when a homicide has occurred during the perpetration of a felony

inherently dangerous to human life, a jury’s finding that the perpetrator satisfied

5

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all the elements necessary for conviction of that offense, without legal justification

or defense, is a finding that he or she acted with an “abandoned and malignant

heart” (i.e., acted with malice) within the meaning of section 188. Put in terms of

the modern definition of implied malice, where one commits a felony inherently

dangerous to human life without legal justification or defense, then under

operation of the second degree felony-murder rule, a homicide resulting therefrom

is a killing “ ‘ “proximately result[ing] from an act, the natural consequences of

which are dangerous to life, which act was deliberately performed by a person

who knows that his conduct endangers the life of another and who acts with

conscious disregard for life.” ’ ” (Dellinger, supra, 49 Cal.3d at p. 1218.)

Once it is understood and accepted that the second degree felony-murder

rule is simply a rule for imputing malice from the circumstances attending the

commission of an inherently dangerous felony during which a homicide occurs, no

grounds remain to support the sole rationale offered by the Ireland court for the

merger doctrine — that use of an assaultive-type felony as the basis for a second

degree felony-murder instruction “effectively preclude[s] the jury from

considering the issue of malice aforethought in all cases wherein homicide has

been committed as a result of a felonious assault.” (Ireland, supra, 70 Cal.2d at

p. 539.) The majority’s holding in part II.A of its opinion makes clear it

understands and accepts that the second degree felony-murder rule is but a means

by which juries impute malice under the Legislature’s statutory definition of

second degree implied malice murder. The majority’s holding in part II.B of its

opinion nonetheless fails to follow through and reach the logical conclusions to be

drawn from the first premise, and instead simply rubberstamps the Ireland court’s

misguided belief that the second degree felony-murder rule improperly removes

consideration of malice from the jury’s purview.

6

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Second, when a jury convicts of second degree murder under the second

degree felony-murder rule, it has found the statutory element of malice necessary

for conviction of murder. (§§ 187, 188.) Hence, there are no constitutional

concerns with regard to whether the jury is finding all the elements of the charged

murder, or is not finding all the “facts” that can increase punishment where the

defendant is convicted of second degree murder in addition to conviction of the

underlying inherently dangerous felony. (See Apprendi v. New Jersey (2000) 530

U.S. 466.)

Third, our recognition today that the second degree felony-murder rule is

simply a rule under which the jury may impute malice from the defendant’s

commission of inherently dangerous criminal acts, thereby undercutting the very

rationale given by the Ireland court for the merger rule, should logically eliminate

any impediment to the use of inherently dangerous felonies — such as the

violation of section 246 (maliciously and willfully shooting at an occupied

vehicle) at issue in this case — as the basis for an instruction on second degree

felony murder.

The majority’s holding, in contrast, works just the opposite result. Prior to

this court’s decision in Ireland, this court had already restricted the felonies that

could support a second degree felony-murder conviction to those “inherently

dangerous to human life.” (People v. Ford (1964) 60 Cal.2d 772, 795.) The

justification for the imputation of implied malice under these circumstances is that,

“when society has declared certain inherently dangerous conduct to be felonious, a

defendant should not be allowed to excuse himself by saying he was unaware of

the danger to life.” (People v. Patterson (1989) 49 Cal.3d 615, 626 (Patterson).)

Hence, whatever felonies may remain available for use in connection with the

second degree felony-murder rule after today’s holding will both have to qualify

as inherently dangerous felonies (Ford, at p. 795), and not be “assaultive in

7

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nature” or contain any elements that have “an assaultive aspect.” (Maj. opn., ante,

at pp. 32, 33.) I fail to see how the second degree felony-murder rule, thus

emasculated, will continue to serve its intended purposes of “ ‘deter[ring] felons

from killing negligently or accidentally’ ” while “deter[ring] commission of the

inherently dangerous felony itself.” (Maj. opn., ante, at p. 29.)

In sum, the majority has turned the second degree felony-murder rule on its

head by excluding all felonies that are “assaultive in nature” (maj. opn., ante, at

p. 32), including a violation of section 246, in whatever form, from future use as a

basis for second degree felony-murder treatment. In reaching its holding, the

majority has rejected decades of sound felony-murder jurisprudence in deference

to Ireland’s merger rule, a doctrine grounded on a single false premise, that use of

the second degree felony-murder rule improperly insulates juries from the

requirement of finding malice and thereby constitutes unfair “bootstrapping.”

(Ireland, supra, 70 Cal.2d at p. 539.)

In concluding that Ireland’s merger doctrine trumps the second degree

felony-murder rule in this and all future cases involving “assaultive-type” felonies

(maj. opn., ante, at p. 2), the majority professes to heed the concerns raised by

some members of this court in past decisions that have addressed the tension

between the second degree felony-murder rule and the merger doctrine. (Id. at

pp. 24-26.) I do not believe those concerns justify the result reached by the

majority in this case.

For example, in Robertson, supra, 34 Cal.4th 156, the issue was whether

the trial court properly instructed the jury on second degree felony murder based

on discharging a firearm in a grossly negligent manner. (§ 246.3.) In that case the

defendant claimed he had heard a sound resembling “either a car backfire or the

discharge of a firearm,” and merely “fired two warning shots” “upwards into the

air” in order to “ ‘scare people away from my domain.’ ” (Robertson, at p. 162.)

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The physical evidence was otherwise; the defendant had fired at least three shots,

two of which hit a car parked across the street “two feet above ground level.”

(Ibid.) The homicide victim, found 50 yards from where defendant was standing

when he fired his weapon, died from a bullet wound to the back of his head.

(Ibid.) The majority in Robertson concluded Ireland’s merger rule did not bar a

second degree felony-murder instruction. (Robertson, at p. 160.)

As the majority observes, Justice Werdegar dissented in Robertson, arguing

that the underlying felony merged with the resulting homicide. She wrote: “The

anomalies created when assaultive conduct is used as the predicate for a second

degree felony-murder theory [citation] are too stark and potentially too productive

of injustice to be written off as ‘characteristic of the second degree felony-murder

rule in general’ ([Robertson] at. p. 173). It simply cannot be the law that a

defendant who shot the victim with the intent to kill or injure, but can show he or

she acted in unreasonable self-defense, may be convicted of only voluntary

manslaughter, whereas a defendant who shot only to scare the victim is precluded

from raising that partial defense and is strictly liable as a murderer. The

independent and collateral purposes referred to in Mattison must be understood as

limited to nonassaultive conduct. In circumstances like the present, the merger

doctrine should preclude presentation of a second degree felony-murder theory to

the jury.” (Robertson, supra, 34 Cal.4th at p. 185 (dis. opn. of Werdegar, J.).)

I appreciate and share the concerns voiced by Justice Werdegar in her

dissent in Robertson. At the threshold, I fail to see why a bald claim by the

defendant that he fired his gun “upwards into the air” intending merely to “ ‘scare

people away’ ” (Robertson, supra, 34 Cal.4th at p. 162), a claim that was flatly

contradicted by all the physical evidence in the case, including the dead victim

who was found 50 yards away felled by a single shot to the back of his head,

should be found controlling on the matter of what theory or theories of murder

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were rightfully available to the prosecution in trying the case. (In re Christian S.

(1994) 7 Cal.4th 768, 783 (Christian S.) [trial courts need only instruct on defenses

supported by substantial evidence].)

The particular facts of Robertson aside, I agree with Justice Werdegar that

defendants are entitled to present all viable defenses supported by substantial

evidence, like imperfect self defense, in a second degree murder prosecution,

whether it be tried on a theory of straight implied malice second degree murder or

under the second degree felony-murder rule. But as we recognize today, the

second degree felony-murder rule is simply a common law rule for imputing

malice, a required element of murder under sections 187 and 188. Understood in

that way, there is nothing in the rule, or relevant murder statutes, to prevent a

defendant from establishing that even where the circumstances show he satisfied

all the elements of an alleged inherently dangerous felony during which a

homicide occurred, his actual state of mind nonetheless precludes drawing an

inference of malice from those attending circumstances.

Under the modern construction of the statutory definition of implied malice

(§ 188), “malice is presumed when ‘ “the killing proximately resulted from an act,

the natural consequences of which are dangerous to life, which act was

deliberately performed by a person who knows that his conduct endangers the life

of another and who acts with conscious disregard for life.” ’ ” (Dellinger, supra,

49 Cal.3d at p. 1218, italics added; see also People v. Sedeno, supra, 10 Cal.3d at

p. 719.) Notwithstanding a charge that a homicide occurred during the

commission of an underlying inherently dangerous felony, a finding of second

degree felony murder could still be negated by substantial evidence establishing

unreasonable or imperfect self defense, thereby reducing the murder to voluntary

manslaughter (see Christian S., supra, 7 Cal.4th at p. 783), where the defendant,

given his conduct and state of mind under the circumstances surrounding the

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crimes, is shown not to have actually harbored a “ ‘conscious disregard for life.’ ”

(Dellinger, at p. 1218.) Even a defendant who claims he “shot into the air” to

scare away the homicide victim in an unreasonable or mistaken belief he had to do

so in order to defend himself might successfully avoid an imputed inference of

malice, and conviction under the second degree felony-murder rule, if substantial

evidence bears out his claim and establishes he did not act with a conscious

disregard for life.

One might reasonably speculate that if the Ireland court had had the benefit

of our modern jurisprudence on second degree implied malice murder, including

decisions like Christian S., supra, 7 Cal.4th 768, and People v. Flannel (1979) 25

Cal.3d 668, which only firmly established the defense of unreasonable or

imperfect self defense years after Ireland was decided (see Flannel, at p. 683), the

concerns that led the Ireland court to fashion its sweeping merger rule could have

been alleviated.

In conclusion, I concur in the majority’s holding that the second degree

felony-murder rule is a rule for imputing malice, and as such, withstands

constitutional scrutiny. (Maj. opn., part II.A, ante, at pp. 5-15.) I respectfully

dissent from the analysis and conclusions reached by the majority with regard to

Ireland’s merger rule. (Maj. opn., part II.B, ante, at pp. 15-34.) I would follow

the well-reasoned decision in Hansen, supra, 9 Cal.4th 300, and conclude that the

jury below was properly instructed on second degree felony murder based on

defendant’s commission of the inherently dangerous felony of shooting at an

occupied vehicle in violation of section 246.

BAXTER, J.

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CONCURRING AND DISSENTING OPINION BY MORENO, J.

The second degree felony-murder rule is deeply flawed. The majority

attempts once more to patch this judicially created rule and improves the state of

the law considerably, but several years ago I expressed my willingness to

“reassess[] the rule in an appropriate case.” (People v. Robertson (2004) 34

Cal.4th 156, 176 (conc. opn. of Moreno, J.); see People v. Burroughs (1984) 35

Cal.3d at p. 829, fn. 3 [“the time may be ripe to reconsider [the] continued

validity” of the second degree felony-murder rule].) This is that case. The time

has come to abandon the second degree felony-murder rule.

“The felony-murder rule has been roundly criticized both by commentators

and this court. As one commentator put it, ‘[t]he felony murder rule has an

extensive history of thoughtful condemnation.’ [Citation.]” (People v. Robertson,

supra, 34 Cal.4th 156, 174 (conc. opn. of Moreno, J.) As the majority notes,

“[t]he felony-murder rule makes a killing while committing certain felonies

murder without the necessity of further examining the defendant’s mental state.”

(Maj. opn., ante, at p. 6.) Regardless of this court’s view of the wisdom of doing

so, it is within the Legislature’s prerogative to remove the necessity to prove

malice when a death result from the commission of certain felonies, and the

Legislature has done so by codifying the first degree felony-murder rule in Penal

Code section 189. (People v. Dillon (1983) 34 Cal.3d 441, 472.) Thus, we cannot

abrogate the first degree felony-murder rule because it “is a creature of statute. . . .

1

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[T]his court does not sit as a super-legislature with the power to judicially

abrogate a statute merely because it is unwise or outdated. [Citations.]” (Id. at

p. 463.) We do, however, possess the authority to abrogate the second degree

felony-murder doctrine because “ ‘the second degree felony-murder rule remains,

as it has been since 1872, a judge-made doctrine without any express basis in the

Penal Code.’ ” (People v. Robertson, supra, 34 Cal.4th at p. 174 (conc. opn. of

Moreno, J.).)

My concerns about the felony murder rule are neither new nor original.

Nearly 45 years ago, this court acknowledged that “[t]he felony-murder rule has

been criticized on the grounds that in almost all cases in which it is applied it is

unnecessary and that it erodes the relation between criminal liability and moral

culpability. [Citations.] Although it is the law in this state [citation], it should not

be extended beyond any rational function that it is designed to serve.” (People v.

Washington (1965) 62 Cal.2d 777, 783, fn. omitted.) We have described the

felony-murder rule as “a ‘ “highly artificial concept” ’ ” that this court long has

held “in disfavor” (People v. Burroughs, supra, 35 Cal.3d 824, 829) “because it

relieves the prosecution of the burden of proving one element of murder, malice

aforethought” (People v. Henderson (1977) 19 Cal.3d 86, 92). “The felony-

murder doctrine has been censured not only because it artificially imposes malice

as to one crime because of defendant’s commission of another but because it

anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been

discarded in the place of its origin.” (People v. Phillips (1966) 64 Cal.2d 574,

583, fn. 6, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470,

490, fn. 12.)

The second degree felony-murder doctrine suffers from all the same

infirmities as its first degree counterpart, and more. In People v. Satchell (1971) 6

Cal.3d 28, 33, footnote 11 (overruled on other grounds in People v. Flood, supra,

2

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18 Cal.4th 470, 490, fn. 12) we observed that the second degree felony-murder

rule is largely unnecessary and, in those unusual cases in which it would mandate

a different result, may be unfair: “ ‘It may be that the rule is unnecessary in

almost all cases in which it is applied, that is to say, that conviction in those cases

can be predicated on the normal rules as to murder and as to accomplice liability.

In the small residuum of cases, there may be a substantial question whether the

rule reaches a rational result or does not at least distract attention from more

relevant criteria.” (Fn. omitted.) [Citation.] [¶] “If the defendant commits the

felony in a highly reckless manner, he can be convicted of second degree murder

independently of the shortcut of the felony-murder rule. Under California’s

interpretation of the implied malice provision of the Penal Code [§ 188], proof of

conduct evidencing extreme or wanton recklessness establishes the element of

malice aforethought required for a second degree murder conviction. [Citation.]

. . . The jury would decide whether the evidence, including the defendant’s

conduct and inferences rising from it, established the requisite malice

aforethought; they would not be bound by the conclusive presumption of malice

which the felony murder rule compels.’ ”

The majority acknowledges the criticism heaped on the second degree

felony-murder rule and describes this court’s halting and sometimes inconsistent

attempts to circumscribe the scope of the rule, most notably by creating the

Ireland merger doctrine. The majority’s reformulation of the merger doctrine is

an improvement, but it does not correct the basic flaw in the felony-murder rule;

that it is largely unnecessary and, in those unusual instances in which it would

produce a different result, may be unfair. “In most cases involving a felony-

murder theory, prosecutors should have little difficulty proving second degree

murder with implied malice. ‘[M]alice is implied “when the killing results from

an intentional act, the natural consequences of which are dangerous to life, which

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act was deliberately performed by a person who knows that his conduct endangers

the life of another and who acts with conscious disregard for life” [citation].’

[Citation.] Eliminating second degree felony murder from the prosecution’s

arsenal would not have a detrimental effect on the prosecution’s ability to secure

second degree murder convictions, but it would go a long way to restoring the

proper balance between culpability and punishment.” (People v. Robertson,

supra, 34 Cal.4th 156, 177 (conc. opn. of Moreno, J.).)

The lack of necessity for the second degree felony-murder rule is

demonstrated by the majority’s conclusion that the error in instructing the jury on

second degree felony-murder in this case was harmless because no reasonable

juror could have found that defendant participated in this shooting without also

concluding that he harbored at least implied malice. I agree. This will be the rule,

rather than the exception. In most instances, a juror who finds that the defendant

killed the victim while committing a felony that is inherently dangerous to human

life necessarily also will conclude that the defendant harbored either express or

implied malice and thus committed second degree murder without relying upon

the second degree felony-murder rule. Only in those rare cases in which it is not

clear that the defendant acted in conscious disregard of life will the second degree

felony-murder rule make a difference, but those are precisely the rare cases in

which the rule might result in injustice. I would eliminate the second degree

felony-murder rule and rely instead upon the wisdom of juries to recognize those

situations in which a defendant commits second degree murder by killing the

victim during the commission of a felony that is inherently dangerous to life.

MORENO, J.






4

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Chun
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 155 Cal.App.4th 170
Rehearing Granted

__________________________________________________________________________________

Opinion No. S157601
Date Filed: March 30, 2009
__________________________________________________________________________________

Court: Superior
County: San Joaquin
Judge: Bernard J. Garber

__________________________________________________________________________________

Attorneys for Appellant:

Mark D. Greenberg, under appointment by the Supreme Court, for Defendant and Appellant.

Dallas Sacher for Sixth District Appellate Program as Amicus Curiae on behalf of Defendant and
Appellant.


__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorney General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General,
John G. McLean, Janet Neeley, Stephen G. Herndon, Melissa Lipon and Paul E. O’Connor, Deputy
Attorneys General, for Plaintiff and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark D. Greenberg
484 Lake Park Avenue
Oakland, CA 94610
(510) 452-3126

Paul E. O’Connor
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-9671

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Document Outline

Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses. This case presents the following issue: Does the offense of discharging a firearm at an occupied vehicle in violation of Penal Code section 246 merge with a resulting homicide under People v. Ireland (1969) 70 Cal.2d 522, if there is no admissible evidence of an independent and collateral criminal purpose other than to commit an assault?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Mon, 03/30/2009	45 Cal. 4th 1172, 203 P.3d 425, 91 Cal. Rptr. 3d 106	S157601	Review - Criminal Appeal	closed; remittitur issued	PEOPLE v. JONES (S159867) PEOPLE v. SPILLMAN (S163791) PEOPLE v. IRAHETA (S164168) PEOPLE v. MARTINEZ (S166970)

Opinion Authors
Opinion	Justice Ming W. Chin
Concur	Justice Carlos R. Moreno, Justice Marvin R. Baxter
Dissent	Justice Carlos R. Moreno, Justice Marvin R. Baxter

Disposition
Mar 30 2009	Opinion: Reversed

Dockets
Oct 24 2007	Petition for review filed   The People, Respondent by Melissa Lipon, Deputy Attorney General
Oct 24 2007	Received Court of Appeal record
Nov 13 2007	Answer to petition for review filed   counsel for aplt. (Chun)
Dec 5 2007	Received:   counsel for resp. letter re: Additional authority not included in the Petition for Review filed on 10-14-07
Dec 13 2007	Received additional record   4 doghouses ( volumes 2, 3, 4 & 5 )
Dec 19 2007	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jan 7 2008	Counsel appointment order filed   Upon request of appellant for appointment of counsel, Mark Greenberg is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed.
Jan 10 2008	Request for extension of time filed   Counsel for respondent requests extension of time to 2-19-08 to file the opening brief on the merits.
Jan 16 2008	Extension of time granted   On application of respondent and good cause appearing it is ordered that the time to serve and file the respondent's opening brief on the merits is hereby extended to and including February 19, 2008.
Feb 14 2008	Request for extension of time filed   counsel for respondent requests extension of time to March 20, 2008, to file the opening brief on the merits.
Feb 19 2008	Extension of time granted   On application of respondent and good cause appearaing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including March 20, 2008. No further extensions of time are contemplated.
Mar 12 2008	Opening brief on the merits filed   counsel for resp.(People)
Apr 4 2008	Request for extension of time filed   Counsel for aplt. requests extension of time to 5-11-08, to file the answer brief on the merits.
Apr 8 2008	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including May 11, 2008.
May 8 2008	Answer brief on the merits filed   counsel for aplt.
May 27 2008	Request for extension of time filed   Counsel for respondent requests extension of time to June 28, 2008, to file the reply brief on merits.
May 29 2008	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including June 28, 2008.
Jun 4 2008	Received application to file Amicus Curiae Brief   Amicus Curiae counsel Dallas Sacher for aplt. (Chun)
Jun 11 2008	Permission to file amicus curiae brief granted   The application of Dallas Sacher, amicus counsel for appellant, for permission to file an amicus curiae brief in support of appellant is hereby granted. Any party may file a single consolidated answer to all amicus curiae briefs within 20 days after the last date that an application to file an amicus curiae brief may be filed under rule 8.520 (f)(2)
Jun 11 2008	Amicus curiae brief filed   Dallas Sacher, amicus counsel for aplt.
Jun 12 2008	Compensation awarded counsel   Atty Greenberg
Jun 25 2008	Reply brief filed (case fully briefed)   counsel for respondent
Aug 7 2008	Response to amicus curiae brief filed   counsel for aplt.
Dec 10 2008	Issues ordered limited   Pursuant to California Rules of Court, rule 8.516(a)(1), the court hereby limits the issues to be argued in this case to all of the issues concerning whether the trial court prejudicially erred in instructing the jury on second degree felony murder. Respondent may file a supplemental letter brief responding to defendant's argument that the jury should decide any question regarding the merger doctrine. (See the opening brief on the merits, p. 17, fn. 8.) Any such supplemental brief must be filed on or before December 22, 2008. If respondent files such a brief, appellant may file a supplemental letter reply brief limited to this question on or before January 5, 2009.
Dec 10 2008	Case ordered on calendar   to be argued on Thursday, January 8, 2009, at 1:30 p.m., in San Francisco
Dec 22 2008	Supplemental brief filed   counsel for respondent
Jan 2 2009	Filed:   counsel for aplt. supplement letter reply brief.
Jan 9 2009	Cause argued and submitted
Mar 30 2009	Notice of forthcoming opinion posted
Mar 30 2009	Opinion filed: Judgment reversed   Although we agree with the Court of Appeal that the trial court erred in instructing the jury on second degree felony murder, we also conclude that the error, alone, was harmless. Accordingly, we reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion. Opinion by: Chin, J. -----joined by: George, C. J., Kennard, Werdegar, and Corrigan, JJ. Concurring and dissenting opinion by: Baxter, J. Concurring and dissenting opinion by: Moreno, J.
Apr 6 2009	Rehearing petition filed Defendant and Appellant: Chun, SarunAttorney: Mark D. Greenberg
Apr 10 2009	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including June 28, 2009 or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 29 2009	Rehearing denied
Apr 29 2009	Remittitur issued
May 4 2009	Counsel fee request received   Atty Greenberg
May 6 2009	Received:   receipt for remittitur from CA/3
May 21 2009	Compensation awarded counsel   George, C.J., was absent and did not participate. Atty Greenberg
Jul 24 2009	Returned record   3 doghouses

Briefs
Mar 12 2008	Opening brief on the merits filed
May 8 2008	Answer brief on the merits filed
Jun 11 2008	Amicus curiae brief filed
Jun 25 2008	Reply brief filed (case fully briefed)
Aug 7 2008	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

May 4, 2010 Annotated by hshearer

Issues: California felony murder rule, merger doctrine, second degree felony murder, shooting at an occupied motor vehicle Significance: Chun clarified California's murky second degree felony murder rule and its exceptions under the merger doctrine. While the predicate crimes for first degree felony murder are delineated specifically by statute (Cal. Penal Code 189), the second degree felony murder rule––applied in practice to crimes "inherently dangerous to life"––is not statutorily defined. The majority opinion addressed criticisms that second degree felony murder is not a valid California law by tracing the common law evolution of the "malice" requirement for murder to implicitly encompass the inherently life-threatening acts punishable today as second degree felony murder. Then, the opinion clarified the merger doctrine, originally established in People v. Ireland (1969), as absolutely barring a felony murder instruction for all crimes that are "assaultive in nature," as defined by the abstract elements of a crime rather than the facts of any specific case. Most directly, this would bar using assault as a predicate crime for felony murder under the rationale that the crime of assault is not distinct enough from murder to punish it twice. But "assaultive in nature" covers even more than standard assault, including, in the case at hand, firing into an occupied motor vehicle. Facts and Procedural History: A sixteen year old gang member was charged with the murder of Bounthavy Onethavong, a passenger who was killed by gunfire from an adjacent car at a traffic light. The driver of the adjacent car was never found, but defendant Chun was identified as a passenger who may have fired one of several guns used to fire at Onethavong's car. Chun was charged with first degree murder but the jury was instructed that they could alternatively find second degree murder, either on a felony murder theory with the predicate crime of shooting an occupied vehicle, or under a theory of implied malice. Chun was also charged with attempted murder, shooting from a motor vehicle, and shooting at an occupied vehicle. The jury convicted Chun of second degree murder but acquitted him on all other counts. The California Court of Appeal reversed the murder conviction on the basis that certain evidence should not have been included and because the felony murder instruction was erroneous, deeming these errors to be prejudicial. The Supreme Court granted appeal on the issue of whether the felony murder instruction was erroneous only. Issues: (1) Whether or not California's second degree felony murder rule is constitutional, even though it has no explicit statutory basis. (2) Whether the merger doctrine applies to bar a second degree felony murder charge when the predicate crime is shooting at an occupied motor vehicle. (2a) How to (or whether to) reconcile two conflicting precedents: (i) the merger doctrine never applies for certain crimes; specifically, when the predicate crime is shooting at an inhabited dwelling house (People v. Hansen (1994)), and (ii) the merger doctrine always applies unless the perpetrator had an "independent felonious purpose" (People v. Randle (2005) and People v. Robertson (2004).) (3) Whether or not an erroneous felony murder instruction was a prejudicial error. Applicable Law: Cal. Penal Code 187.(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Cal. Penal Code 188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Cal. Penal Code 246. Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year. As used in this section, "inhabited" means currently being used for dwelling purposes, whether occupied or not. Cal. Penal Code 246.3.(a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison. Holdings: (1) The second degree felony murder rule is constitutional. It can be implied into statute based on common law readings of the malice requirement for murder. The rule covers crimes for which there is a presumption of malice and therefore serves as a substitute for that requirement in second degree murder charges. The so-called implied malice requirement in Penal Code Sec. 188 is vague enough ("an abandoned and malignant heart") that it is rightfully interpreted by courts to give rise to the second degree felony murder rule; such interpretation merely pins down the meaning of malice in the general second degree murder statute rather than creating a non-statutory crime. Moreover, as the second degree felony murder rule was first codified in 1850 and holds wide and long-standing acceptance in California law, the court is justified in searching for statutory support in this manner. However, the second degree felony murder rule remains limited by People v. Ford (1964) (only felonies "inherently dangerous to human life" support a felony murder conviction) and Ireland (establishing the merger doctrine). (2) The court overruled both Hansen and Robertson (and the reasoning but not the result of Randle) in favor of a new definition of the merger doctrine, based on a broad interpretation of Ireland: "When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction." The Court defined assaultive felonies broadly as "one that involves a threat of immediate violent injury" and found that a designation of "assaultive" should be determined as a matter of law, not fact, so that it can be used to bar a felony murder charge before a case reaches a jury. The Court found this reading of the merger doctrine to be most consistent with the deterrent rationale behind the felony murder rule, with the additional advantages that it avoids the necessity of case-specific factual inquiries, and "extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive." The latter refers to the prospect that this version of the merger doctrine could be applied to reduce charges for "less culpable" defendants where elements of the crime were assaultive, but their actual conduct was more benign. In contrast, prior theories that required case-specific consideration of "independent felonious purpose" (to justify not invoking the merger doctrine) allowed those who had no other purpose other than the intent to murder to escape felony murder charges, but did not extend the merger doctrine to protect those those who had an independent purpose that was perhaps more innocent (for example: the intent to fire a gun to scare another person). (3) An error on the felony murder rule was not, by itself, prejudicial. In this case a jury convicted Chun on second degree murder, without specifying whether they did so on a valid implied malice theory or on the erroneous felony murder theory. The Court found that the felony murder error was harmless because no jury could have found sufficient evidence of felony murder without also finding implied malice. The Court reversed the Court of Appeal's determination that the felony murder error was prejudicial, but remanded the case to the Court of Appeal for consideration of whether the non-prejudicial erroneous felony murder instruction became prejudicial when combined with the evidentiary error previously found by the Court of Appeal. Concurring and dissenting opinions: (1) Baxter, J., concurring and dissenting -- Judge Baxter concurs on the constitutionality of the second degree felony murder rule, but dissents on the interpretation of the merger doctrine that would bar all assaultive crimes as predicates for felony murder. Judge Baxter would restore the Hansen opinion limiting application of the merger doctrine, believing that Ireland undermined the purpose of the felony murder doctrine by excluding the most dangerous crimes––assaults––from forming the basis of felony murder charges. Moreover, the Ireland court did so on the false premise that allowing assault to predicate felony murder would constitute illegitimate "bootstrapping" of crimes that blur together, enabling conviction for murder without proper consideration of the requisite mental state of malice. Baxter argues that by the majority opinion's own logic, using assault as a predicate crime would be proper because the majority agrees a felony murder rule is a way of proving malice, not avoiding it. (2) Moreno, J., concurring and dissenting -- Judge Moreno argues that the second degree felony murder rule should be abolished in California as a court-created rule not supported by statute. Moreno believes the majority has improved the second degree felony murder rule by broadening the merger exception, but that the rule is still too flawed to survive. First, the rule is unnecessary, for by the majority's logic it was not needed to reach a conviction of second degree murder; and second, it is unfair, because it imposes a presumption of malice rather than allowing the "wisdom of juries" to determine whether the defendant's inherently dangerous crime was accompanied by express or implied malice. -- Author: Hannah Shearer

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