Robertson

In this case we must determine whether the trial court properly instructed the jury that defendant could be convicted of second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3), 1 or whether the second degree felony-murder rule was inapplicable under the so-called merger doctrine referred to in People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ] (Ireland) and later cases. For the reasons explained below, we conclude that the merger doctrine did not bar instruction on second degree murder based upon a felony-murder theory. Although the *161 Court of Appeal majority reached a contrary conclusion, it nonetheless affirmed the judgment of conviction, finding harmless any error on the part of the trial court in instructing the jury that it could convict defendant under a second degree felony-murder theory. Because we conclude the trial court did not err in instructing the jury, we affirm the judgment of the Court of Appeal upholding defendant’s conviction.

I

Defendant Quincy Robertson was convicted of second degree murder (§ 187) and committing assault with a deadly weapon…

I concur in the opinion and agree with the majority’s analysis and holding that the merger doctrine (People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ]) does not preclude the offense of willful “discharge [of] a firearm in a grossly negligent manner” (Pen. Code, § 246.3) 1 from serving as a predicate felony for second degree felony murder. Viewing the offense of discharging a firearm in a grossly negligent manner in the abstract (maj. opn., ante, at p. 167; People v. Burroughs (1984) 35 Cal.3d 824, 833 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ] (Burroughs); People v. Patterson (1989) 49 Cal.3d 615, 620 [ 262 Cal.Rptr. 195 , 778 P.2d 549 ] (Patterson)), there can be no doubt it is inherently dangerous to human life, a proposition defendant does not contest (maj. opn., ante, at p. 168), thereby making it eligible to be a predicate felony under existing precedent (maj. opn., ante, at p. 166; People v. Satchell (1971) 6 Cal.3d 28 [ 98 Cal.Rptr. 33 , 489 P.2d 1361 ], disapproved on another point in People v. Flood (1998) 18 Cal.4th 470 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ]; Patterson, supra, 49 Cal.3d at p. 620 ). However, I write separately and briefly to express my…

Under the second degree felony-murder rule, a defendant who kills in the commission of a felony that is inherently dangerous to life is guilty of second degree murder, even if the killing is accidental. But the rule applies only if the underlying felony is committed for a felonious purpose independent of the homicide (People v. Mattison (1971) 4 Cal.3d 177, 185 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ]); it does not apply to a felony that “is an integral part of’ and “included in fact within” the killing (People v. Ireland (1969) 70 Cal.2d 522, 539 [ 75 Cal.Rptr. 188 , 450 P.2d 580 ]; see also People v. Hansen (1994) 9 Cal.4th 300, 312 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ] (Hansen)).

Here, defendant shot and killed a man who had been trying to steal hubcaps from defendant’s car. Defendant claimed he was merely trying to scare the man and did not intend to actually shoot him. The majority holds that the second degree felony-murder rule applies because the killing occurred during an inherently dangerous felony, namely, discharging a firearm *178 with gross negligence (Pen. Code, § 246.3), 1 and defendant’s claimed objective to scare the victim was an independent felonious purpose.…

I respectfully dissent. Reluctantly, I conclude the merger doctrine (People v. Ireland (1969) 70 Cal.2d 522 [ 75 Cal.Rptr. *185 188 , 450 P.2d 580 ]) that limits second degree felony murder must be understood to preclude the offense of grossly negligent discharge of a firearm (Pen. Code, § 246.3) from serving as a predicate felony under the circumstances of this case. As Justice Kennard demonstrates (dis. opn. of Kennard, J., ante, at p. 184), moreover, we cannot be certain beyond a reasonable doubt (Neder v. United States (1999) 527 U.S. 1 [ 144 L.Ed.2d 35 , 119 S.Ct. 1827 ]) that the jury did not rely on felony-murder instructions to convict defendant of second degree murder; defendant’s conviction should therefore be reversed.

Concurring separately in People v. Hansen (1994) 9 Cal.4th 300, 317-318 [ 36 Cal.Rptr.2d 609 , 885 P.2d 1022 ], I endorsed the “collateral and independent felonious design” test of People v. Mattison (1971) 4 Cal.3d 177, 185 [ 93 Cal.Rptr. 185 , 481 P.2d 193 ], and opined that the defendant’s intent to “intimidate” another was sufficiently independent of the killing to avoid the merger doctrine in that case. The majority in this case, making a…

As H. G. Wells’s nameless protagonist trenchantly

observed, “the peculiar sensations of time traveling ... are excessively unpleasant ... a feeling ... of a helpless headlong motion!” (H. G. Wells, The Time Machine (1986 ed.).) A court trying to decipher our periodic attempts to tame the “ ‘anachronistic’ ” (People v. Burroughs (1984) 35 Cal.3d 824, 829 [ 201 Cal.Rptr. 319 , 678 P.2d 894 ], overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82 [ 96 Cal.Rptr.2d 451 , 999 P.2d 675 ]), artificial (People v. Washington (1965) 62 Cal.2d 777, 783 [ 44 Cal.Rptr. 442 , 402 P.2d 130 ]), and “disfavored” (People v. Henderson (1977) 19 Cal.3d 86, 92 [ 137 Cal.Rptr. 1 , 560 P.2d 1180 ], overruled on another ground by People v. Flood (1998) 18 Cal.4th 470 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ]) second degree felony-murder rule could be forgiven for thinking the experience eerily reminiscent of Wells’s description of time travel. Since we are changing the rules yet again, and the application of the collateral and independent felonious design test in a case like this one can only make a bad situation worse, I dissent.

The second degree felony-murder rule has been part of…

In this case we must determine whether the trial court properly instructed the jury that defendant could be convicted of second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner (Pen Code, § 246.3), [1] or whether the second degree felony-murder rule was inapplicable under the so-called merger doctrine referred to in People v. Ireland (1969) 70 Cal.2d 522 , 75 Cal.Rptr. 188 , 450 P.2d 580 ( Ireland ) and later cases. For the reasons explained below, we conclude that the merger doctrine did not bar instruction on second degree murder based upon a felony-murder theory. Although the Court of Appeal majority reached a contrary conclusion, it nonetheless affirmed the judgment of conviction, finding harmless any error on the part of the trial court in instructing the jury that it could convict defendant under a second degree felony-murder theory. Because we conclude the trial court did not err in instructing the jury, we affirm the judgment of the Court of Appeal upholding defendant's conviction.

Defendant Quincy Robertson was convicted of second degree murder (§ 187) and committing assault with a deadly weapon…