|GEORGE, C. J.
Defendant Quincy Robertson was convicted of second degree murder and committing assault with a deadly weapon and by means of force likely to inflict great bodily injury. The jury found true the following allegations: that defendant personally used a firearm in the commission of these offenses; that, in connection with the murder charge, he intentionally discharged a firearm, proximately causing great bodily injury or death; and that, in connection with the assault charge, he inflicted great bodily injury. The court sentenced defendant to a term of 15 years to life in prison for the murder, with an enhancement of 25 years to life pursuant to section 12022.53, subdivision (d). The court also sentenced him to a concurrent term of eight years in prison for the assault offense, enhanced by the firearm-use and great-bodily-injury findings.
During the evening of December 27, 1998, the victims Kehinde Riley and Ricky Harris, joined by Bradley Gentry and Lamont Benton, imbibed alcohol and used marijuana and cocaine while they went for a drive in Benton's automobile. At approximately 10:30 p.m., they stopped in front of defendant's residence on 99th Avenue Court in Oakland. Riley and Harris approached defendant's automobile, a Chevrolet Caprice Classic, which was parked in front of defendant's residence. According to Benton's testimony at trial, while Gentry and Benton looked on, Riley and Harris began removing the vehicle's hubcaps, making loud noises in the process. They had removed the passenger side hubcaps and were turning to the driver side hubcaps when defendant emerged onto the porch of his residence.
According to statements subsequently made by defendant to the police, he had been watching television with his wife and children, heard a loud noise and, retrieving a firearm, went outside to investigate. Defendant denied any involvement in the shooting in his initial statement. After gunshot residue was discovered on his right hand, defendant claimed he had fired a weapon earlier in the day to demonstrate its operation for a prospective buyer. Following further interrogation, defendant explained that upon hearing a sound outside, he looked out and observed three or four men near his automobile, apparently engaged either in dismantling it or stealing it. Defendant recalled that the men looked at him in a threatening manner, and he was uncertain whether they would attempt to enter his residence. In his final statement to the police, defendant claimed that when he emerged from his residence, he held his gun at a 45-degree angle and fired two warning shots. The physical evidence, however, indicated that three shots had been fired. A bullet hole discovered in the windshield of defendant's automobile and two other bullet holes found two feet above ground level in a vehicle that was parked across the street tended to disprove defendant's claim that he had held the gun at a 45-degree angle.
Benton testified at trial that immediately following defendant's discharge of the weapon from the porch, Benton and Gentry drove away, while Riley and Harris attempted to flee on foot. Benton testified he heard from seven to nine additional gunshots as he drove away. Defendant, claiming he had heard a sound that resembled either a car backfire or the discharge of a firearm, admitted in his final statement to the police that he had walked at least as far as the sidewalk and possibly into the street before firing three shots at the fleeing men. He denied intending that the shots hit the men and claimed that he fired upwards into the air, intending, as he said, to "scare people away from my domain." He conceded that firing a weapon in a residential neighborhood was dangerous to human life, but said he had not been thinking clearly.
Riley's body was discovered approximately 50 yards from where gun casings indicated the firearm had been discharged. It appeared the shots had been fired by a person standing in the middle of the street in front of defendant's residence. Riley had been shot in the back of the head. Harris suffered a gunshot wound to the sole of his right foot.
On the night of the incident, one of defendant's neighbors heard shots and witnessed a person standing in a "firing stance" in the street, firing shot after shot straight ahead and on each occasion correcting for the weapon's "kickback." The neighbor witnessed this person "swagger" back to the apartment complex where defendant resided.
One bullet casing was discovered on the porch of defendant's residence, two additional casings at the bottom of the stairs leading to defendant's apartment, and seven casings in the middle of the street in front of defendant's residence. Based upon the location of the bullet casings found in the street, the physical features of the surrounding neighborhood, and the location at which Riley and Harris were discovered after the shooting, the prosecution's ballistics expert testified that if the person who fired the weapon had held it at a 45-degree angle, he or she would not have struck the victims. This witness testified that in his opinion, the shooter must have pointed the weapon at the victims.
In connection with the homicide charge, the jury was instructed on first degree murder, second degree murder with express malice, second degree murder with implied malice, second degree felony murder based on commission of the crime of discharging a firearm in a grossly negligent manner, and voluntary manslaughter. The defense argued that, at most, defendant might be liable for voluntary manslaughter on the theory that he acted in the heat of passion or from an honest but unreasonable belief in the need to defend himself.
The jury deliberated for three days. At that point, a juror who complained of debilitating stress arising from asserted conflict among the deliberating jurors was excused. The juror was replaced by an alternate, and the jury deliberated for an additional three days prior to rendering its verdict.
Defendant appealed, asserting, among other contentions, that the trial court erred in instructing the jury on second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner, because, under the teaching of Ireland, . . . the latter offense necessarily merged with the homicide. A majority of the Court of Appeal agreed, but determined that the error was harmless because, in view of the particular instructions given in the present case, the verdict finding defendant guilty of the aggravated assault on Harris also demonstrated that the jury necessarily rejected defendant's primary argument that when he shot the victims, he merely intended to frighten them away from his residence. The remaining justice concurred in the judgment only, concluding that it was unnecessary for the court to comment on the merger doctrine, because any error was harmless.
We must determine whether the trial court erred by instructing the jury that defendant could be found guilty of second degree felony murder if the killing was committed in the course of discharging a firearm in a grossly negligent manner in violation of section 246.3, a California statute. The resolution of this question requires a brief review of the elements of various homicide offenses, the second degree felony-murder doctrine, and the merger doctrine.
Murder is defined as an unlawful killing committed with malice aforethought. An unlawful killing with malice aforethought, perpetrated by certain specified means or that is willful, deliberate, and premeditated, constitutes murder in the first degree. A killing in the course of the commission of certain enumerated felonies also constitutes murder in the first degree.
Second degree murder is an unlawful killing with malice aforethought, but without the elements that elevate an unlawful killing to first degree murder. . . . In addition, an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189, constitutes at least murder in the second degree.
The felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder. . . . The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component. . . .
Because malice has been eliminated as an element, circumstances that may serve to reduce the crime from murder to manslaughter, such as provocation or imperfect self-defense, are not relevant in the case of a felony murder.
A principal purpose of the felony-murder rule is deterrence. Case law has emphasized the need to deter the commission of felonies that put human life at risk.
The second degree felony-murder doctrine is limited to inherently dangerous felonies because, in the absence of such danger, it would be less justifiable to remove the element of malice from the prosecutor's burden of proof. . . . "[O]nly 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 doctrine is limited to inherently dangerous felonies for the additional reason that the hazard to life presented by such felonies is foreseeable. When the danger is foreseeable, it is rational to expect a felon to take precautions not to kill accidentally or negligently or to forgo commission of the hazardous felony altogether. . . . A defendant is unlikely to be deterred if it is not reasonably foreseeable to him or her that "death might arise solely from the fact that he [or she] will commit the felony."
A felony is considered inherently dangerous to human life when the felony, viewed in the abstract, "by its very nature cannot be committed without creating a substantial risk that someone will be killed" . . . or carries a "high probability" that death will result. . . .
In the present case, as we previously noted, the court instructed the jury on first degree murder, second degree murder with express malice, second degree murder with implied malice, second degree felony murder, and voluntary manslaughter. For the purpose of the second degree felony-murder rule, it instructed that the predicate felony was the discharge of a firearm in a grossly negligent manner, which is defined as follows: "Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison."
The jury was instructed in the present case: "'Gross negligence' refers to a negligent act which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or a danger to human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent act could reasonably have been foreseen and it must appear that the death or danger to human life was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act." . . . Again, gross negligence is not present when the discharge of a firearm is honestly and reasonably undertaken in defense of self or another or of property.
The appellate court quoted our observation that "[t]he tragic death of innocent and often random victims" as the result of the discharge of firearms, has become an alarmingly common occurrence in our society "a phenomenon of enormous concern to the public," People v. Clem, . . . The court reasoned that the offense is inherently dangerous because it involves discharge of the highly lethal instrumentality of a firearm with gross negligence in a manner that could result in injury or death to a person. It added that "[i]mminent deadly consequences [are] inherent in the act" even if the bullet fortuitously falls so as to injure and not kill. . . . The court concluded that "a killer who violates [the second degree felony murder statute] is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it."
On appeal, although defendant does not dispute that the grossly negligent discharge of a firearm in violation of [the California statute] constitutes an inherently dangerous felony for the purpose of the second degree felony-murder rule, he claims that the merger doctrine precludes the use of a violation of [the statute] as a predicate offense upon which to base liability for second degree felony murder. The Court of Appeal agreed.
The merger doctrine was recognized by this court in Ireland, . . . In that case, we held that the trial court erred in instructing the jury on second degree felony murder based on the crime of assault with a deadly weapon. The defendant's crime of assault with a deadly weapon merged with a resulting homicide and could not form the basis for an application of the second degree felony-murder rule. The instructional error was prejudicial because, as we have seen, malice is not an element of second degree felony murder and therefore the felony-murder instruction in the Ireland case permitted the jury to disregard the defendant's diminished capacity defense. . . . We observed that "[t]o 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 the result of felonious assault" a category which includes the great majority of all homicides. . . The felony-murder instruction is not proper when the predicate felony is an "integral part of the homicide" and when, under the prosecution's evidence, it is "included in fact within the offense charged."
We have cautioned that, traditionally, the merger rule has not been extended to offenses other than assault. . . . The merger rule is premised upon the concern that it "would subvert the legislative intent for a court to apply the felony-murder rule automatically to elevate all felonious assaults resulting in death to second degree murder even where the felon does not act with malice. In other words, if the felony-murder rule were applied to felonious assaults, all such assaults ending in death would constitute murder, effectively eliminating the requirement of malice; a result clearly contrary to legislative intent."
As the Court of Appeal majority itself recognized, we have declared that the second degree felony-murder rule is intended to deter both carelessness in the commission of a crime and the commission of the inherently dangerous crime itself. . . . We believe that a deterrent purpose is served under the second degree felony-murder rule in the case of a violation of [the California statute] because, by definition, it must be reasonably foreseeable to such a defendant that the intentional discharge of the firearm could result in injury or death. In view of the reasonable foreseeability of the risk of injury or death, knowledge that punishment for second degree felony murder may ensue if a death occurs may deter individuals from illegally discharging a firearm; whether they are contemplating doing so in order to celebrate a festive occasion or for some other purpose such as to frighten away persons who do not present what a reasonable person would consider a threat of imminent harm to the defendant.
Defendant urges us to extend the merger doctrine to encompass violations of [the California statute] on the basis of the language in some of our cases expressing unease with the expansion of the felony-murder rule. . . . We decline defendant's invitation to restrict the felony-murder rule by expanding the merger doctrine in the present case. The second degree felony-murder rule is well established. . . . Although the merger doctrine forestalls the substitution of proof of an assault for proof of malice out of a concern that, in the great majority of homicide cases, such a substitution would enable the second degree felony-murder rule to supersede the requirement of malice, the same concern does not appear under the present circumstances.
We conclude that the merger doctrine does not preclude application of the felony-murder rule under the facts of the present case and that the trial court did not err by instructing the jury concerning the second degree felony-murder rule and the predicate offense of discharging a firearm in a grossly negligent manner.
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.