Assaultive-type crimes merge with a charged homicide and cannot be the basis for a felony murder instruction. (People v. Chun (2009) 45 Cal.4th 1172.) Appellant’s common-law wife of six years, Yip, met the victim on a telephone chat line. The victim came to California from Massachusetts to see her and the two spent the night together. When Yip returned home, she and appellant argued, and she left and spent the next four nights with the victim. Appellant became heart-broken when he learned of the relationship. Later that night, he set out looking for Yip armed with an SKS rifle, and found her and the victim in their parked car in a park. He approached them and words were exchanged. As they drove away, appellant fired, fatally shooting the victim. At trial, appellant testified that he was not aiming, but rather, shot the gun in the air to “lose [his] anger.” The jury was instructed on second degree murder based on malice aforethought and felony murder with the predicate felony being shooting at an occupied vehicle (Pen. Code, sec. 246). Appellant was convicted of second degree murder and shooting at an occupied vehicle. The appellate court agreed that instruction on felony murder based on section 246 was error. In Chun, supra, the California Supreme Court reconsidered the merger doctrine jurisprudence (People v. Ireland (1969) 70 Cal.2d 522), and found that when the underlying felony is assaultive in nature, the felony merges with the homicide and cannot be used as the basis for a felony murder instruction. However, the error was harmless because any juror who relied on the erroneous felony-murder instruction, necessarily found that defendant willfully shot at an occupied vehicle – an act of implied malice sufficient for the second degree murder conviction. Appellant also claimed that the error was not harmless as his defense of heat of passion was invalidated with the instruction to the jury, in conjunction with the felony murder instruction, that provocation does not apply under a theory of felony murder. The court found that since the evidence in the case did not support a heat-of-passion defense because of the passage of time between provocation and the shooting, there was no error.