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Name: People v. Robertson
Case #: A095055
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 06/30/2003
Subsequent History: Rev. granted 10/1/03: S118034

Appellant was convicted of assault with intent to commit great bodily injury on one victim, and second degree murder on another. The second degree murder was based a felony-murder theory, predicated on his commission of the offense of grossly negligent discharge of a firearm, in violation of Penal Code section 246.3. The appellate court held that the trial court erred by instructing the jury on felony murder based on the 246.3, because under the standards for merger set forth in People v. Hansen (1994) 9 Cal. 4th 300, grossly negligent discharge of a firearm is an offense that merges with a resulting homicide, and thus cannot serve as a predicate for felony murder. Every fatal shooting involves at least a potential violation of section 246.3. However, while it was error to so instruct, the error was harmless. Under the instructions given in this case, the jury must have concluded in convicting appellant also of assault that he had intended to harm the victim, and therefore rejected appellant’s defense that he was only trying to frighten the victims when he fired the shots.