Constitutionality of the Merger Doctrine in a Second Degree Felony Murder Case
In People v. Chun (2009) 45 Cal.4th 1172, the California Supreme Court reconsidered the constitutionality of the merger doctrine in the context of a second degree felony murder.
The case involved a drive-by shooting perpetrated by Chun and at least two others in his car. They used three guns to fire at least six shots at a neighboring car that had three occupants, killing one of the passengers. Chun confessed to being one of the shooters, but claimed he only intended to scare the other passengers. Among other charges, the trial court instructed the jury on second degree felony murder with shooting at an occupied motor vehicle as the underlying felony.
The California Supreme Court held that the trial court erred by instructing the jury on second degree felony murder because the underlying felony was assaultive in nature. (Id. at p. 1200.)
The court concluded that if the underlying felony is assaultive in nature then it merges with the homicide and cannot be the basis of a felony-murder instruction. (See People v. Ireland (1969) 70 Cal.2d 522, 539 a second degree felony-murder instruction is improper if it is based on a felony that is an integral part of the homicide and included within the charged offense.)
The court declined to specify what other crimes might constitute assaultive felonies for the purposes of the merger rule, but we will assume for the sake of argument that shooting at an inhabited dwelling under the circumstances of this case would qualify as an assaultive felony.