The second degree felony murder rule is constitutional, but the instruction was error in this case because the underlying assaultive offense merged with the homicide and could therefore not be a basis for the instruction. In Chun’s murder trial, the trial court instructed the jury on second degree felony murder with shooting at an occupied vehicle (Penal Code section 246) as the underlying felony. The California Supreme Court granted review to consider the validity and scope of the second degree felony murder rule. The Court held that the second degree felony murder rule is constitutionally valid. However, the Court also held that where the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, the felony merges with the homicide and cannot be the basis of a felony-murder instruction. Therefore, the trial court here erred in instructing the jury on second degree felony murder. However, the error alone in this case was not prejudicial. The instructions given permitted the jury to base a second degree murder verdict either on malice or the felony murder rule, and no juror could have found that the defendant participated in the shooting without also finding that he committed an act which was dangerous to life with conscious disregard for life, a valid theory of malice. Since there were other errors in the case, remand was required to the Court of Appeal to determine whether the errors in combination were prejudicial.