We are not in a common law state, there are no common law crimes. Right? Well, not so fast. There is second-degree felony murder, a crime wholly made up by the Supremes. The Supremes here try to put this problem to rest by claiming that they really didnit make up this crime.
They claim that implied malice, based on the abandoned and malignant heart language in PC 188, really does make second-degree felony murder a crime. Right. Anyway, this analysis compels the court to limit second-degree felony murder to inherently dangerous felonies, inherently dangerous in the abstract, regardless of the actual facts of any specific crime. OK.
But then the court turns to the merger doctrine. Essentially, this is really a simple idea. Picture, if you will, a defendant shooting a victim. During the time that the bullet is in the air, the crime is attempted murder or at least ADW. If the bullet misses, you have at least an ADW. If it hits and kills the victim, you have murder.
Now is this a felony murder, the felony being the ADW? You can see that this approach would turn every murder into felony murder. In Ireland (70 Cal.2d 522), the Supremes
recognized this, and articulated a doctrine of merger: the ADW merges into the murder, so the ADW canit be a felony triggering the felony-murder rule. Seems obvious?
Well, for the past 20 years, the Supremes have been cutting back on Ireland. There was a point where I thought that my little ADW hypo was the only piece of Ireland left. We had cases all over the place, with clearly inconsistent rules. Even the Supremes finally admit this. So they announce that they've decided to settle and clarify this area.
Run for the hills! It seems that every time the Supremes announce that they are going to
clarify and settle, they instead obfuscate and confuse. But not this time. They adopt a clear rule: When the underlying felony is assaultive in nature,... we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction.i And a felony is assaultive based on the elements of the felony, not the facts of the case.
Pretty great. But wait, exactly what are assaultive felonies? Well, we can't expect everything; they decline to tell us. Certainly, PC 246, shooting at an occupied vehicle, is an assaultive felony, because the Supremes so state. This is a big win, how big remains to be seen.
People v. Chun; 2009 DJ DAR 4745; DJ, 3/31/09; Cal. Supremes