Hach

When defendant found his common law wife alone with

her new lover in a car, he fired a single shot and killed Joshua Chace. A jury convicted him of second degree murder (Pen. Code, § 187) and shooting at an occupied vehicle (§ 246). The jury found true the allegation that defendant personally discharged a firearm, causing death. (§ 12022.53, subd. (d).) The court sentenced defendant to state prison for 40 years to life.

The jury was instructed on alternate theories of second degree murder, both malice aforethought and felony murder with shooting at an occupied vehicle as the predicate felony. Defendant contends the application of the felony-murder rule in this case violated his rights under the Sixth and Fourteenth Amendments of the United States Constitution. He argues that since the merger rule of People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland) precludes application of the felony-murder rule unless defendant has a purpose collateral and independent to assault, and since the evidence of defendant’s purpose was conflicting, the trial court erred in failing to instruct the jury that it must find a collateral and independent purpose…