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Name: People v. Robertson
Case #: S118034
Court: CA Supreme Court
District CalSup
Opinion Date: 08/19/2004

The merger doctrine does not bar an instruction on second degree murder based on a felony-murder theory where the predicate offense is discharging a firearm in a grossly negligent manner, in violation of Penal Code section 246.3. Therefore, where appellant fired three “warning shots” to persons who had been trying to steal his hubcaps, and were fleeing, he was properly convicted of second degree murder. J. Moreno concurred, but expressed concern with continued adherence to the second degree felony-murder rule. J. Kennard dissented, finding that the merger doctrine applied. Appellant did not act with a felonious purpose which was independent of the killing.