Bejarano

I. INTRODUCTION

The issue in this case is whether the merger doctrine articulated in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland), and its progeny apply in this case. Here we must decide whether the trial court erroneously instructed the jury that appellant could be convicted of second degree felony murder based on the underlying or “predicate” felony of discharging a firearm at an occupied motor vehicle (Pen. Code, § 246). 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 merely to frighten them. The bullet, however, struck and killed an unintended victim, the driver of another vehicle. For the reasons stated below, we find the trial court reversibly erred.

In Ireland , our Supreme Court adopted the merger doctrine, holding that the trial court erred by instructing a jury on second degree felony murder based on the felony of assault with a deadly weapon (§ 245), because the felony merged with the resulting homicide. Most recently, in People v. Randle (2005) 35 Cal.4th 987 [ 28 Cal.Rptr.3d 725 , 111 P.3d 987 ] (Randle),…