The crime of murder, as defined in Pen. Code, § 187, includes, as an element, malice. Pen. Code, § 188, defines malice. It may be either express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. § 188. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. § 188. This definition of implied malice is quite vague. Trial courts do not instruct the jury in the statutory language of an abandoned and malignant heart. Doing so would provide the jury with little guidance. The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms. Accordingly, the statutory definition permits, even requires, judicial interpretation. The California Supreme Court has interpreted implied malice as having both a physical and a mental component. The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. The mental component is the requirement that the defendant knows that his or her conduct endangers the life of another and acts with a conscious disregard for life.
The jury found that a principal intentionally used a firearm and that the shooting was committed for the benefit of a criminal street gang. The trial court instructed the jury on second-degree felony murder with shooting at an occupied vehicle under Pen. Code, § 246, the underlying felony. The court of appeals noticed two errors; one, was the admission of a portion of the principal’s statement that “he had fired a gun.” The other was the trial court’s instructions to the jury on second degree felony murder. It explained that the merger doctrine prevents using an assaultive-type crime as the basis for felony murder unless the underlying crime is committed with an intent collateral to committing an injury that would cause death. But since the statement of the principal about the shooting should have been excluded, then no evidence of collateral intent could be found. The court of appeals reversed the murder conviction but otherwise affirmed judgment.
Whether the merger doctrine prevents assault-type crimes as the basis for a second-degree felony-murder instruction.
The court reversed and remanded the case for the trial court’s determination if the two errors found by the court of appeals are prejudicial. It held that the second-degree felony-murder rule was based on statute, specifically Pen. Code, § 188's definition of implied malice, and hence was constitutionally valid. However, after reconsidering the contours of the Ireland merger doctrine, the court overruled some of its prior decisions and held that all assaultive-type crimes, such as shooting at an occupied vehicle in violation of § 246, merged with the charged homicide and could not be the basis for a second-degree felony-murder instruction. Accordingly, the trial court erred in instructing on felony murder in defendant's case. However, that error alone was not prejudicial because, on the evidence presented, no juror could have found felony murder without also finding conscious-disregard-for-life malice. The trial court had instructed the jury on conscious-disregard-for-life malice as a possible basis of murder.