Romero

MEMORANDUM *

Gilibert Romero was tried for the fatal shooting of his girlfriend in a rural area near the Sacramento River on the night of October 24, 1995. 1 The trial court instructed the jury that it could convict Romero of second degree murder under any of three theories: (1) express malice, based on intent to kill without premeditation; (2) implied malice based on the performance of an act inherently dangerous to human life (in this case, shooting a gun in the darkness in the victim’s vicinity) with conscious disregard of the danger; or (3) second degree felony murder, based on the felony of willfully discharging a firearm with gross negligence in a manner that could cause injury or death (CaLPenal Code § 246.3). 2 On July 27, 2000, the jury *799 convicted Romero of murder with the use of a firearm in violation of California Penal Code § 12022.5(a).

In this appeal, Romero argues that the trial court deprived him of due process by instructing the jury that CaLPenal Code § 246.3, grossly negligent discharge of a firearm, could serve as a predicate offense for a second degree felony murder conviction. Two challenges underlie his claim: first, that it was not foreseeable in 1995…