Merger Doctrine California

In California, the merger doctrine was created in response to the second-degree felony murder rule. the doctrine prevents an assaultive offense from being used as the underlying felony for second degree felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1200.) Both the felony murder rule and the merger doctrine are related to the requirement that a defendant harbor malice in order to be convicted of murder. (Id. at pp. 1182, 1189.) "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. a judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses. If a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. " (People v. Murray (2008) 167 Cal.App.4th 1133, 1138.) There are two tests to determine whether one offense is necessarily included in the other: the elements test and the accusatory pleading test. When determining if a defendant may be convicted of multiple offenses, however, only the elements test applies. (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Under the elements test, if the statutory elements of the greater offense include all the statutory elements of the lesser offense, the lesser offense is necessarily included in the greater offense. (Id. at pp. 1227-1228.)