Second Degree Murder Conviction Reversed in California

In People v. Ireland (1969) 70 Cal.2d 522, the California Supreme Court reversed a conviction for second degree felony murder where the predicate felony was Penal Code section 245, assault with a deadly weapon. ( Ireland, supra, 70 Cal.2d at p. 538.) Under what is referred to as the "merger" doctrine, the court held that, because assault with a deadly weapon is "an integral part of" and "included in fact" within the homicide, it could not form the basis of a second degree felony-murder conviction. ( Id. at p. 539.) The court explained, "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault--a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Ibid.) The Ireland test was refined three decades later in People v. Hansen, supra, 9 Cal.4th 300. The Hansen court rejected the "premise that Ireland's 'integral part of the homicide' language constitutes the crucial test in determining the existence of merger." ( Id. at p. 314.) The court explained, "Such a test would be inconsistent with the underlying rule that only felonies 'inherently dangerous to human life' are sufficiently indicative of a defendant's culpable mens rea to warrant application of the felony-murder rule. The more dangerous the felony, the more likely it is that a death may result directly from the commission of the felony, but resort to the 'integral part of the homicide' language would preclude application of the felony-murder rule for those felonies that are most likely to result in death and that are, consequently, the felonies as to which the felony-murder doctrine is most likely to act as a deterrent ... ." (Ibid.) The Hansen court held, instead, that the use of an inherently dangerous felony as the predicate felony for felony-murder does not violate the merger doctrine when this use "will not elevate all felonious assaults to murder or otherwise subvert the legislative intent." ( Id. at p. 315.) Applying these principles, the Hansen court approved the use of section 246 (shooting into an inhabited dwelling) as the predicate felony for second degree felony murder. We recite the court's reasoning at length because it is equally applicable to this case, which involves a similar type of felony. The Hansen court found, "In the present case ... application of the second degree felony-murder rule would not result in the subversion of legislative intent. Most homicides do not result from violations of section 246, and thus, unlike the situation in People v. Ireland , application of the felony-murder doctrine in the present context will not have the effect of 'precluding the jury from considering the issue of malice aforethought ... in the great majority of all homicides.' Similarly, application of the felony-murder doctrine in the case before us would not frustrate the Legislature's deliberate calibration of punishment for assaultive conduct resulting in death, based upon the presence or absence of malice aforethought. ... This is not a situation in which the Legislature has demanded a showing of actual malice (apart from the statutory requirement that the firearm be discharged 'maliciously and willfully') in order to support a second degree murder conviction. Indeed ... application of the felony-murder rule, when a violation of section 246 results in the death of a person, clearly is consistent with the traditionally recognized purpose of the second degree felony-murder doctrine--namely the deterrence of negligent or accidental killings that occur in the course of the commission of dangerous felonies." ( Hansen, supra, 9 Cal.4th at p. 315.)