Chun

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 172 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 173 OPINION After a driveby shooting in which one person was killed and two injured, defendant was convicted by jury of second degree murder (Pen. Code, § 187 ), and street terrorism (Pen. Code, § 186.22 , subd. (a)). With respect to the murder conviction, the jury found true allegations that a principal intentionally discharged a firearm (Pen. Code, § 12022.53 , subd. (e)) and that the murder was committed to benefit a street gang (Pen. Code, § 186.22 , subd. (b)(1)). 1 Defendant was sentenced to 55 years to life and ordered to pay $65,091.30 in victim restitution. On appeal, defendant challenges the use of his admissions to detectives, the theory of second degree felony murder, the gang enhancement, and the victim restitution. We reverse the murder conviction and…

As to parts I. and III. of the majority opinion, I concur in the result. As to part II., reversing the second degree murder conviction, I respectfully dissent. The majority laments that second degree felony murder and the merger doctrine, as a result of several California Supreme Court decisions, present a *Page 194 "muddled state of the law." (Maj. opn., ante , at p. 191.) With that proposition, I agree. However, unlike the majority, I cannot so easily discredit the Supreme Court's 1994 holding that a violation of Penal Code section 246 1 does not merge with a resulting homicide. ( People v. Hansen (1994) 9 Cal.4th 300 , 311-316 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] ( Hansen ).) In Hansen , the defendant shot at an inhabited building, a violation of section 246, and in doing so caused the death of a child inside the house. Since (1) the purpose of the merger doctrine is to avoid subverting legislative intent, which would be subverted if all felonious assaults were elevated to murder, and (2) "[m]ost homicides do not result from violations of section 246" ( Hansen, supra , 9 Cal.4th at p. 315 ), the purpose of the merger doctrine is not served by applying it to violations of…

After a drive-by shooting in which one person was killed and two injured, defendant was convicted by jury of second degree murder (Pen.Code, § 187), and street terrorism (Pen.Code, § 186.22, subd. (a)). With respect to the murder conviction, the jury found true allegations that a principal intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (e)) and that the murder was committed to benefit a street gang (Pen.Code, § 186.22, subd. (b)(1)). [1] Defendant was sentenced to 55 years to life and ordered to pay $65,091.30 in victim restitution. On appeal, defendant challenges the use of his admissions to detectives, the theory of second degree felony murder, the gang enhancement, and the victim restitution.

We reverse the murder conviction and otherwise affirm. While we find defendant's first admission that he was in the car admissible, we find his subsequent admission that he fired a gun should have been excluded because it was procured by a false promise of leniency. 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…