When the underlying felony is assaultive in nature, . . . the felony merges with the homicide and cannot be the basis of a felony-murder instruction.
People v. Sarun Chun
The victims, one of whom ranked highly in a gang, were driving to a birthday party when Rathana Chan, a rival gang member pulled up next to them at a light. Three different guns opened fire from his car, killing one victim and wounding the other two. Defendant, who was sixteen at the time, was one of three passengers and admitted that he shot one of the guns from the backseat. His bullet was one of two lethal shots that struck the deceased, but he said that he was not aiming for anyone and was merely trying to scare the victims. However, later at trial, he testified that he did not shoot at all.
Defendant was tried as an adult and charged with murder, two counts of attempted murder, discharging a firearm from a vehicle, shooting into an occupied vehicle, and street terrorism. The court instructed the jury on second degree felony murder based on shooting at an occupied motor vehicle either directly or as an aider and abettor. The jury found that defendant did not shoot a gun but still found him guilty of second degree murder because of his principal's assault and being an active participant in a criminal street gang, but acquitted him of the other charges.
Does the felony murder rule apply to felonious assaults?
The underlying felony must be an independent crime and not merely the killing itself. As shooting at someone to scare him off has previously been held to be subject to the felony-murder rule, neither should one shooting a gun to frighten someone without trying to aim at him.
However, this would imply that the jury has to decide this factual issue, contrary to the felony murder rule. To avoid this anomaly and making the jury have to decide how merger applies, felonious assaults in general should merge with resulting homicides.