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Name: People v. Bejarano
Case #: B180922
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 04/16/2007
Summary

Merger rules apply where appellant was convicted of second degree felony murder for shooting at an occupied vehicle. Appellant discharged a firearm once, intending to shoot rival gang members who were the occupants of a vehicle. The bullet struck and killed an unintended victim, the driver of another vehicle. The trial court instructed the jury that appellant could be convicted of second degree felony murder based on the underlying felony of discharging a firearm at an occupied motor vehicle. The appellate court reversed the murder conviction, finding that the trial court erroneously instructed the jury on second degree murder based on the felony of discharging a firearm at a motor vehicle in violation of section 246 because appellant admitted he shot at rival gang members. Appellant had no collateral and independent felonious purpose, and therefore merger principles articulated in People v. Ireland and People v. Randle control. The error was not harmless beyond a reasonable doubt because the jury reasonably could have convicted appellant of second degree murder based on a felony murder and not express or implied malice.