The application of the felony-murder rule is barred where the conduct was the very assault that resulted in death, because it is integral part of the offense.
Defendant was convicted of felony child abuse under Cal. Penal Code § 273a(1), and of second-degree murder under Cal. Penal Code § 187. The murder conviction was based on a felony-murder theory in which the underlying felony was the felony child abuse. The court held that because the homicide was the result of assaultive child abuse, the underlying felony in the felony-murder theory was unquestionably an integral part of the homicide.
Can felony child abuse serve as the underlying felony to support a conviction of second degree murder on a felony-murder theory?
The court concluded that because the acts constituting such child abuse in the present case were an integral part of the homicide, the offense merged into the homicide; it was therefore error to give a felony-murder instruction, and the judgment must be reversed insofar as it convicts defendant of second degree murder.