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Filed 6/30/03
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


THE PEOPLE,


Plaintiff and Respondent,

A095055
v.

QUINCY ROBERTSON,
(Alameda County
Super. Ct. No. C135605)

Defendant and Appellant.


Appellant
Quincy
Robertson was convicted by a jury of the second degree murder
of Kehinde Riley (Pen. Code, § 187), and assault of Rickey Harris with infliction of great
bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)), and was found to have
personally used a firearm in the commission of these offenses (Pen. Code, §§ 1203.06,
12022.5, 12022.53, subd. (d)). He was sentenced to 40 years to life in prison,
representing 15 years to life for the murder, plus 25 years to life for the firearm
enhancement of the murder conviction, with a concurrent sentence of 8 years for the
assault and related enhancements. The principal issue on appeal is whether the court
erred in instructing the jury that it could convict appellant of second degree murder on a
felony murder theory based on his commission of the offense of grossly negligent
discharge of a firearm (Pen. Code, § 246.3).

In order for a felony to serve as a predicate offense for a charge of felony murder,
the felony must be inherently dangerous to human life, and it must not "merge" with the
resulting homicide under the merger doctrine applied in People v. Ireland (1969) 70

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of part II.B and II.C.
1

Cal.2d 522 and subsequent cases. (See People v. Hansen (1994) 9 Cal.4th 300, 308-316.)
In People v. Clem (2000) 78 Cal.App.4th 346, 348, we held that grossly negligent
discharge of a firearm is an inherently dangerous felony for purposes of the felony-
murder rule. Here, we must determine whether the merger doctrine prevents this crime
from serving as a predicate offense for felony murder, notwithstanding its inherent
danger.

In the published portion of this opinion we hold, under the standards for merger
set forth in People v. Hansen, supra, that 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. However, while it was error to instruct the jury that it could convict
appellant of second degree felony murder based on commission of this offense, we
conclude that the error was harmless in this case. In the unpublished portion of the
discussion, we conclude that appellant was not prejudiced by the court's failure to
instruct on involuntary manslaughter, and that the court did not err in allowing
appellant's custodial statements into evidence. We therefore affirm the judgment.
I. BACKGROUND

The incident occurred around 10:30 p.m. on December 27, 1998, in 99th Avenue
Court, off 99th Avenue, in Oakland. The victims, Kehinde Riley and Rickey Harris aka
Rickey Baker, were riding around with Bradley Gentry in a car driven by Lamont
Benton, drinking wine, smoking marijuana, and snorting cocaine. They pulled into 99th
Avenue Court following two women in another car; Benton hoped to get the driver's
phone number. After Benton spoke to the driver and the women drove away, Benton got
back in his car, and Riley and Harris went over to appellant's Chevrolet Caprice Classic,
which was parked in front of his apartment in the court, and began stealing its hubcaps.
Gentry testified that he stood next to Benton's car and watched Riley and Harris take the
hubcaps off the tires on the passenger side of the Chevy, load them in the backseat of
Benton's car, and return to the driver's side of the Chevy.

Gentry recalled that it was very quiet in the court, and that the hubcaps made a
loud noise when they were pried off. In tape recorded statements given after his arrest,
2

appellant said that he was home watching television with his wife and two children when
he heard a loud noise outside his window. He said the noise was close by the window,
and sounded like someone was trying to break into the house. The night was cold and
foggy--although not a "low," "down to the ground" fog, according to one of the police
officers who later arrived at the scene. Appellant said that when he heard the noise
outside his window, he went outside onto his porch without putting on a shirt or jacket,
carrying a nine millimeter semiautomatic handgun. He said that he got the gun because
he did not know what was happening, he was frightened, and he wanted to protect his
family.

Appellant said that when he stepped outside he saw three or four guys next to his
Chevy; they looked like they were dismantling the car or trying to take it. He said that
the men "looked at me sorta funny," like they were going to "come back and try to do
someth[ing] to me"; he did not see their faces because "my heart was beatin' too fast. I
didn't know what they was gonna do." He remembered firing the gun twice at that point;
he said the shots were "warning" shots, and that he fired them "in the air," holding the
gun up at a 45-degree angle. Physical evidence indicated that appellant initially fired
three shots. One nine millimeter shell casing was recovered from his porch, and two
more from the dirt in front of the porch. One bullet hole and bullet were found in the
Chevy; two bullet holes and one bullet were found in a camper belonging to Paul Brown,
a neighbor who lived across the street. Although appellant said that he fired up into the
air, the bullet holes in Brown's camper were only two to three feet off the ground.

After the first shots were fired, Riley and Harris ran away, and Benton and Gentry
drove away, from the interior of the court out toward 99th Avenue. Appellant saw the
guys by his car run away, saw a car speed away, and heard "somethin' like a backfire or a
gunshot." Appellant admitted walking down off his stairs onto the sidewalk or street in
front of his apartment, and firing his gun again. He recalled firing three shots in the
direction of the fleeing men. He said he could see them running all the way down the
court to 99th Avenue, and thought he saw them turn the corner at the end of the court.
He said that he tried to shoot up "in the air," and that he did not intend to hit anyone.
3


Riley's dead body was found 15 to 20 feet into 99th Avenue, outside 99th Avenue
Court. He died from a gunshot wound to the back of the head; he was 20 or 21 years old.
An autopsy showed that he had cocaine and heroin in his system when he was killed.
Harris was shot in the sole of his right foot, and had surgery later that night to remove the
bullet. He was 20 years old at the time of the incident at 99th Avenue Court; he was shot
and killed in an unrelated incident the next year.

Paul Brown, the neighbor across the street, looked outside after he heard the first
round of shots, and saw a person standing in the street, close to the cars on the other side
of the court, in a "firing stance," with legs spread and arm extended parallel to the
ground, shooting out toward 99th Ave. Brown never saw the shooter raise his gun in the
air. Appellant said that he did not count the rounds, and conceded that he might have
fired more than five shots after he left his porch. Appellant at one point admitted going
into the middle of the court before firing the second set of shots, then said he did not
remember going there, and then said he had "probably" done so.
Seven
nine-millimeter
casings were found in the middle of 99th Avenue Court.
Bullets were recovered from Riley and Harris; a bullet fragment was found on the
sidewalk at the corner of 99th Avenue and 99th Avenue Court; bullet strike marks were
found on a wash house on 99th Avenue across from 99th Avenue Court. The gun used in
the shootings was never recovered. A police firearms examiner concluded from the
bullets and casings that all of the shots had come from a single nine-millimeter luger
firearm, probably manufactured by Lorcin, a gun that holds ten bullets. Sergeant
Tolleson, a police firearms expert, testified that the shooter would not have hit the fleeing
men if he were holding the gun at a 45-degree angle; he would have had to point his gun
at the men in order to hit them. Riley was about 50 yards away from appellant when he
was shot; Tolleson opined that it would have been relatively easy to hit someone at that
distance with as many shots as were fired.

After the shots stopped, Brown saw the shooter walk into an apartment in the
fourplex where appellant lived. Brown called 911 and police arrived at the scene very
quickly. In his taped statements, appellant said that he returned to his apartment, dropped
4

his gun in the living room, put on a coat, and went back outside. As appellant walked
down the steps in front of the apartment he was apprehended by Officer Sena,
handcuffed, and put in the back of a patrol car. Benton and Gentry were detained near
the scene by an officer who heard gunshots and saw Benton's car pull out of 99th Avenue
Court with its lights off. The police caught up with Harris around midnight at a nearby
hospital.

In his initial statement at the scene, appellant said that he heard someone "messing
with his car," went outside, heard gunshots, "didn't see anything," and went back inside.
When appellant was asked to consent to a test for gunshot residue on his hands, he
admitted that he had shot a gun earlier that night. He said that he had sold the gun, and
had fired a couple of rounds to show the buyer that the gun was working. The residue
test was positive, indicating that appellant had recently fired a gun. Appellant consented
to a search of his apartment, where the police found bullets that matched the casings
found on the scene, along with eight boxes of .22-caliber rifle cartridges, and a
bulletproof vest. Appellant was taken to the police station around 3:00 a.m. He gave his
taped statements in interviews the following afternoon with Sergeants Brock and Joyner,
and the following evening with personnel from the district attorney's office.

Benton and Gentry testified that no one in the car had weapons on the night of
their encounter with appellant. Benton acknowledged having been arrested on another
occasion for drug and gun possession, and Gentry admitted having been convicted of
burglary. They said they had agreed, when pulled over after the shootings, to tell the
police a "b.s. story" about hearing shots and leaving the scene, but then told the truth
after learning that Riley had been killed. Riley was holding a screwdriver in his hand
when he was shot. A gunshot residue test on Riley and Harris were negative; no residue
tests were performed on Benton or Gentry.

Appellant said he was afraid of the men he saw by his car, and heard a backfire or
shot when the men were running away, but did not see anyone with weapons. He
admitted that the men were running away from him when he fired the second set of shots;
5

he said that he fired those shots to "scare people away from my domain."1 He conceded
that firing a gun in a residential area could kill people, but said, "I wasn't thinking at that
time." He denied having been angry enough to harm someone, and said, "I feel real bad,
I mean real bad" about what happened. He did not tell the truth in his original statement
at the scene because he saw the body laying on the ground when he was taken to the
police car, and worried that the man had been hit by one of his bullets, or the other
backfire or shot he had heard. "I was hopin' I didn't do . . . that," he said.

Appellant did not testify at trial. The defense called a series of character
witnesses--appellant's mother, people who had supervised him at work, a neighbor, a
friend--who testified that he was not a violent person or prone to anger. Appellant was
25 years old at the time of the incident and had no prior criminal record. He worked
intermittently for the U.S. Postal Service, and was unemployed in December 1998. His
wife testified that he worked on automobiles as a hobby and "like[d] his cars"; before the
hubcaps were stolen, he had just put a new windshield in the Chevy and was restoring it
for resale. She said that at least three of their cars had been broken into or vandalized on
99th Avenue Court.

Six months before the night in question appellant had been shot in an altercation
arising out of a traffic accident. Appellant's nephew, Aaron Timms, testified that he was
driving with appellant as a passenger in March 1998 when they were sideswiped by


1 It is unclear from appellant's statements whether he heard the shot or backfire
before or after he finished shooting. When the subject was first broached in the initial
interview, it appeared from the sequence of questions that he did not "c[o]me down a
little further off my stairs and sho[o]t in the air" until after he heard the shot or backfire.
During the second interview, the following exchanges occurred: "Q. Did [hearing the
shot or backfire] happen before you fired the shots? [¶] A. No, that, that's after they
started running. [¶] Q. Ok. So, you'd already fired 5 shots by that point? [¶] A.
Yes. . . . [¶] . . . [¶] Q. [S]o that I'm clear, you fired, you remember at least 5 shots?
[¶] A. Yes. [¶] Q. And, you fired all 5 of those shots when you heard some type of
backfire or a possible shot, right? [¶] A. Yes, yes. [¶] . . . [¶] Q. So you didn't see them
with any weapons? [¶] A. No. I don't, I don't recall seeing no, no weapons. I don't
even know if they had weapons . . . I can't say. All I know when they took off there was
like a backfire or a shot, I, I, that's all I know."
6

another vehicle. The cars pulled over, and Timms and the other driver got out and had an
argument about who was at fault. Appellant got out of the car when the other driver took
out a gun, and the other driver shot him in the right shoulder. Appellant and Timms went
to the hospital and filed a police report.
Appellant
mentioned
having been shot in his statements to the police in this case.
He said that he had "no function" in his right hand because he had been shot in the arm
following a traffic accident, and thus had fired his gun with his left hand, even though he
was right-handed. Appellant cited the traffic incident as a reason for not calling the
police when his hubcaps were being stolen; he said that he distrusted the police because
his nephew had been wrongly imprisoned, and because he felt he had not been treated
fairly when he reported being shot. He said that he did not know "if [he] was gonna live
or die" when he was shot.

Clinical psychologist Robert Kaufman testified for the defense that appellant was
suffering from post-traumatic stress disorder (PTSD) in December 1998 as a result of
having been shot earlier in the year. Kaufman's opinion was based on: psychological
testing of appellant; multiple interviews of appellant, and interviews of his wife and
mother; appellant's work and jail records; appellant's taped statements to the police in
December 1998; and police reports of the December and March 1998 incidents, and a
1997 incident when appellant was the victim of a carjacking.

Appellant exhibited symptoms of PTSD when he became reclusive and fearful
after he was shot. Appellant was edgy and easily startled during this period--signs of
PTSD-based "hyperarousal" that could cause a person to overreact, or react out of
character, to threatening situations. Personality testing showed that appellant tended
toward depression rather than aggression, and had strong protective instincts. Kaufman
attributed those instincts to pressure on appellant to be the "man of the house" when he
was growing up as the only male in a household with a mother (herself a victim of violent
crime) and three older sisters. Given those instincts, Kaufman thought that appellant
would have been "terrified" after he was shot when he was unable to work and take care
of his family.
7


Herman Rellar, a police academy firearms instructor, testified for the defense that
people who are inexperienced with handguns tend to shoot lower than they aim because
they grip the gun and pull the trigger improperly. He said that it is difficult to shoot
straight when firing rapidly, and opined that it would be hard for an inexperienced
shooter to hit a moving target from a distance of 50 yards.

The prosecution argued that a second degree murder conviction was justified
under any one of four theories: (1) first degree murder, reduced to second degree by
provocation; (2) second degree murder with express malice; (3) second degree murder
with implied malice; or (4) second degree felony murder based on commission of the
crime of grossly negligent discharge of a firearm. The jury was instructed that it need not
unanimously agree on any one of these theories to convict appellant of second degree
murder, provided all agreed that one of the theories applied. The defense argued for a
voluntary manslaughter conviction on the grounds that appellant had acted in the heat of
passion, or from an honest but unreasonable belief in the need to defend himself; the
court declined to instruct the jury on involuntary manslaughter.

Introduction of evidence in the case, which included a trip to 99th Avenue Court
for the jury to view the scene of the crime, consumed over eight full court days. After the
jury had deliberated for three full days, a juror reported that he or she could not continue
deliberating and asked to be replaced. The juror said that the deliberations were "real
heated," and that the stress was exacerbating his or her ulcers and Crohn's disease. The
juror was excused, an alternate was sworn, and the jury was instructed to begin its
deliberations anew. The jury then deliberated for another three full days before rendering
its verdicts.
II. DISCUSSION
A. Felony-Murder Instruction

(1) Appellant's Argument and the Instructions Given

Appellant contends that the court erred in giving the jury a second degree felony-
murder instruction based on his commission of the offense of grossly negligent discharge
8

of a firearm (Pen. Code, § 246.3).2 "The felony-murder rule operates (1) to posit the
existence of malice aforethought in homicides which are the direct causal result of the
perpetration or attempted perpetration of all felonies inherently dangerous to human life,
and (2) to posit the existence of malice aforethought and to classify the offense as murder
of the first degree in homicides which are the direct causal result of those . . . felonies
specifically enumerated in section 189. . . ." (People v. Ireland, supra, 70 Cal.2d at p.
538.) As has been noted, in People v. Clem, supra, 78 Cal.App.4th at p. 348, we held
that grossly negligent discharge of a firearm in violation of section 246.3, a felony not
listed in section 189, is "inherently dangerous to human life" within the meaning of the
second degree felony-murder rule.

Section 246.3, enacted in 1988 (Stats. 1988, ch. 1275, § 1, p. 4265), provides in
full that: "Except as otherwise authorized by law, any person who willfully discharges a
firearm in a grossly negligent manner which could result in injury or death to a person is
guilty of a public offense and shall be punished by imprisonment in the county jail not
exceeding one year, or by imprisonment in the state prison." The jury was instructed on
the elements of the offense pursuant to CALJIC No. 9.03.3 (6th ed. 1996) as follows:
"Every person who willfully and unlawfully discharges a firearm in a grossly negligent
manner which could result in injury or death to a person is guilty of a violation of Penal
Code section 246.3, a crime. In order to prove this crime each of the following elements
must be proved: 1. a person willfully and unlawfully discharged a firearm; 2. the person
who discharged the firearm did so in a grossly negligent manner; and 3. the discharge of
the firearm was done in a manner which could result in injury or death to a person."

The "gross negligence" element of section 246.3 was defined for the jury in terms
of CALJIC No. 3.36 (6th ed. 1996): " `Gross negligence' means conduct which is more
than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or
reasonable care. `Gross negligence' refers to a negligent act which is aggravated,
reckless or flagrant and which is such a departure from what would be the conduct of an


2 All further statutory references are to the Penal Code.
9

ordinarily prudent, careful person under the same circumstances as to be contrary to a
proper regard for human life or a danger to human life or to constitute indifference to the
consequences of those acts. The facts must be such that the consequences of the
negligent act could reasonably have been foreseen and it must appear that the death or
danger to human life was not the result of inattention, mistaken judgment or
misadventure but the natural and probable result of an aggravated, reckless or flagrantly
negligent act."

"[T]he giving of a second degree felony-murder instruction in a murder
prosecution has the effect of `reliev[ing] the jury of the necessity of finding one of the
elements of the crime of murder' [citation], to wit, malice aforethought." (People v.
Ireland, supra, 70 Cal.2d at p. 538.) The jury was given standard instructions on the
prosecution's three theories of second degree murder with malice--first degree murder
with some provocation (CALJIC No. 8.20 (6th ed. 1996) [deliberate and premeditated
killing with express malice]; CALJIC No. 8.73 (6th ed. 1996) [provocation reducing
degree of murder]); second degree murder with express malice (CALJIC No. 8.30 (6th
ed. 1996)); and second degree murder with implied malice (CALJIC No. 8.31 (6th ed.
1996))--as well as the second degree felony-murder instruction that required no finding
of malice: "The unlawful killing of a human being, whether intentional, unintentional or
accidental, which occurs . . . as the direct causal result of the crime of Penal Code 246.3
is murder of the second degree when the perpetrator had the specific intent to commit that
crime. The specific intent to commit Penal Code 246.3 and the commission or attempted
commission of such crime must be proved beyond a reasonable doubt." (CALJIC No.
8.32 (6th ed. 1996).)

Other instructions confirmed that appellant could be convicted of murder based on
a felony-murder theory in lieu of a finding of malice. The jury was instructed pursuant to
CALJIC No. 8.10 (6th ed. 1996) that: "Every person who unlawfully kills a human being
with malice aforethought or during the commission or attempted commission of Penal
Code 246.3, a felony inherently dangerous to human life, is guilty of the crime of murder,
in violation of section 187 of the Penal Code. A killing is unlawful if it was neither

10

justifiable nor excusable. In order to prove this crime each of the following elements
must be proved: 1. a human being was killed; 2. the killing was unlawful; 3. the killing
was done with malice aforethought or occurred during the commission or attempted
commission of Penal Code section 246.3, a felony inherently dangerous to human life."
(Italics added.) The jury was further instructed that: "In order to find the defendant
guilty of murder in the second degree, it is not necessary that the jury unanimously agree
as to the theory [on] which the second degree murder is based . . . . It is only necessary
that the jury unanimously agree that the killing was murder in the second degree under
any of the theories. In other words, some of you may feel it was based upon the 246.3
and . . . others of you may feel . . . there was malice."

The jury was instructed on voluntary manslaughter as a lesser offense to that of
murder, but "[t]he net effect of th[e] imputation of malice by means of the felony-murder
rule is to eliminate the possibility of finding unlawful killings resulting from the
commission of a felony to be manslaughter, rather than murder." (People v. Burton
(1971) 6 Cal.3d 375, 385.)

Appellant submits that the felony-murder instructions in this case were erroneous
because the offense of grossly negligent discharge of a firearm "merged" with the
resulting homicide under the merger, or "Ireland" (People v. Ireland, supra, 70 Cal.2d
522) doctrine. Whether a felony merges with a homicide so as to preclude application of
the felony-murder rule is an issue separate and distinct from whether the felony could
otherwise serve as a predicate for a felony-murder charge because of its inherent danger
to human life. In People v. Hansen, supra, 9 Cal.4th 300, for example, the court first
determined that malicious and willful discharge of a firearm at an inhabited dwelling in
violation of section 246 was an inherently dangerous felony (id. at pp. 308-311), and then
examined whether the merger doctrine nonetheless applied (id. at p. 311). Accordingly,
our conclusion in People v. Clem, supra, 78 Cal.App.4th at p. 346, that grossly negligent
discharge of a firearm is an inherently dangerous offense does not bear on the merger
issue presented here, and in addressing that issue--which was neither raised nor
considered in Clem--we are writing on an clean slate.

11


(2) The Merger Doctrine and the Hansen Decision

The merger doctrine was first applied in California in People v. Ireland, supra, 70
Cal.2d 522. The defendant shot and killed his wife, and the instructions permitted the
jury to convict him of second degree felony murder based on assault with a deadly
weapon. The court concluded that the instructions were improper, reasoning that felony
murder should not be used to "effectively preclude the jury from considering the issue of
malice aforethought in all cases wherein homicide has been committed as a result of a
felonious assault--a category which includes the great majority of all homicides. This
kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a
second degree felony-murder instruction may not properly be given when it is based upon
a felony which is an integral part of the homicide and which the evidence produced by
the prosecution shows to be an offense included in fact within the offense charged." (Id.
at p. 539.)

People v. Hansen, supra, 9 Cal.4th 300, noted that, before Ireland, "the `merger'
doctrine had been developed in other jurisdictions as a shorthand explanation for the
conclusion that the felony-murder rule should not be applied in circumstances where the
only underlying (or `predicate') felony committed by the defendant was assault. The
name of the doctrine derived from the characterization of the assault as an offense that
`merged' with the resulting homicide." (Id. at p. 311.) Courts and commentators
reasoned that because "a homicide generally results from the commission of an assault,"
the "application of the felony-murder rule to felonious assaults would usurp most of the
law of homicide, relieve the prosecution in the great majority of homicide cases of the
burden of having to prove malice in order to obtain a murder conviction, and thereby
frustrate the Legislature's intent to punish certain felonious assaults resulting in death
(those committed with malice aforethought, and therefore punishable as murder) more
harshly than other felonious assaults that happened to result in death (those committed
without malice aforethought, and therefore punishable as manslaughter)." (Id. at pp. 311-
312.) The doctrine as applied to assaults thus "preserv[es] some meaningful domain in

12

which the Legislature's careful gradation of homicide offenses can be implemented." (Id.
at p. 312.)

Ireland's suggestion that the merger doctrine would extend to any felony "which
is an integral part of the homicide" was called into question in People v. Taylor (1970) 11
Cal.App.3d 57, where the felony was furnishing of heroin (former Health & Saf. Code,
§ 11501) and the recipient died of an overdose. Taylor reasoned in essence that the
Ireland test could "potentially encompass[] all felonies closely related to a homicide (and
therefore possibly every felony inherently dangerous to human life)." (People v. Hansen,
supra, 9 Cal.4th at p. 314, discussing Taylor.) Taylor formulated an alternative test for
merger: the offense would not merge " `if the act causing the death [is] committed with a
collateral and independent felonious design' " (People v. Taylor, supra, at p. 61, italics
omitted), that is, "the felony was not done with the intent to commit injury which would
cause death" (People v. Mattison (1971) 4 Cal.3d 177, 185, discussing Taylor). Taylor's
"independent felonious design" test was adopted by the Supreme Court in People v.
Mattison, supra, where, on facts similar to those in Taylor, the death resulted from
ingestion of methyl alcohol furnished by the defendant in violation of former section 347
(felony poisoning). Under this test, the felonies and homicides in Taylor and Mattison
did not merge so as to preclude convictions of felony murder because the felonies were
done with a design independent of injuring the victim. (See People v. Smith (1984) 35
Cal.3d 798, 808 [identifying the independent design in Mattison as the furnishing of a
dangerous substance for financial gain].)
In
People v. Hansen, supra, 9 Cal.4th at pp. 314-315, a majority of our Supreme
Court, after reviewing the foregoing history, declined to apply the "integral part of the
homicide" and "independent felonious design" tests, finding them "somewhat artificial"
and capable of producing "anomalous result[s]." The majority reasoned that the "integral
part of the homicide" test was "inconsistent with the underlying rule that only felonies
`inherently dangerous to human life' are sufficiently indicative of a defendant's culpable
mens rea to warrant application of the felony-murder rule. [Citation.] The more
dangerous the felony, the more likely it is that a death may result directly from the

13

commission of the felony, but resort to the `integral part of the homicide' language would
preclude application of the felony-murder rule for those felonies that are most likely to
result in death and that are, consequently, the felonies as to which the felony-murder
doctrine is most likely to act as a deterrent (because the perpetrator could foresee the
great likelihood that death may result, negligently or accidentally)." (Id. at p. 314.) The
"independent felonious design test" was likewise flawed, because, under that test, "a
felon who acts with a purpose other than specifically to inflict injury upon someone--for
example, with the intent to sell narcotics for financial gain, or to discharge a firearm at a
building solely to intimidate the occupants--is subject to greater criminal liability for an
act resulting in death than a person who actually intends to injure the person of the
victim." (Id. at p. 315.)

Having abandoned the two principal tests that had been developed for application
of the merger doctrine, the Hansen court fell back on the doctrine's core rationale, as
reflected in Ireland and described in Taylor, to analyze whether the offense in question
merged with the resulting homicide. Hansen "agree[d] with Taylor's definition of the
scope of the Ireland rule," insofar as Taylor reasoned that: "when the Legislature has
prescribed that an assault resulting in death constitutes second degree murder if the felon
acts with malice, it would subvert the legislative intent for a court to apply the felony-
murder rule automatically to elevate all felonious assaults resulting in death to second
degree murder even where the felon does not act with malice. In other words, if the
felony-murder rule were applied to felonious assaults, all such assaults ending in death
would constitute murder, effectively eliminating the requirement of malice--a result
clearly contrary to legislative intent. . . . [H]owever, . . . when the underlying or
predicate felony is not assault, but rather is a felony such as the furnishing of heroin
involved in Taylor, application of the felony-murder rule would not subvert the
legislative intent, because `this is simply not a situation where the Legislature has
demanded a showing of actual malice, as distinguished from malice implied in law by
way of the felony-murder rule.' " (People v. Hansen, supra, 9 Cal.4th at p. 314.) Thus,
the test for merger boiled down to whether use of the felony to support a felony-murder

14

conviction would "elevate all felonious assaults to murder or otherwise subvert the
legislative intent." (Id. at p. 315.)

Applying this test to the felony of malicious and willful discharge of a firearm at
an inhabited dwelling, the court found no merger: "In the present case, as in Mattison
and Taylor, application of the second degree felony-murder rule would not result in the
subversion of legislative intent. Most homicides do not result from violations of section
246, and thus, unlike the situation in People v. Ireland, supra, 70 Cal.2d 522, application
of the felony-murder doctrine in the present context will not have the effect of
`preclud[ing] the jury from considering the issue of malice aforethought . . . [in] the great
majority of all homicides.' (Id. at p. 539.) Similarly, application of the felony-murder
doctrine in the case before us would not frustrate the Legislature's deliberate calibration
of punishment for assaultive conduct resulting in death, based upon the presence or
absence of malice aforethought. As in Taylor, this is not a situation in which the
Legislature has demanded a showing of actual malice (apart from the statutory
requirement that the firearm be discharged `maliciously and willfully') in order to support
a second degree murder conviction. Indeed . . . application of the felony-murder rule,
when a violation of section 246 results in the death of a person, clearly is consistent with
the traditionally recognized purpose of the second degree felony-murder doctrine--
namely the deterrence of negligent or accidental killings that occur in the course of the
commission of dangerous felonies." (People v. Hansen, supra, 9 Cal.4th at p. 315.)

(3) Application of Hansen


(a) Relevant Principles

We are called upon to apply the merger doctrine, consistent with Hansen, to a
different firearm offense, that of grossly negligent discharge of a firearm in violation of
section 246.3. We begin by reviewing the considerations Hansen found pertinent.

Hansen could be interpreted to disapprove entirely of the "integral part of the
homicide" and "independent felonious design" tests for merger. The Hansen majority
did not discuss how either of the tests would have operated in that case, or reject the tests
because of any anomaly the tests would have produced with respect to the offense at

15

issue. The court simply declined to "rely upon a somewhat artificial test that may lead to
an anomalous result" (People v. Hansen, supra, 9 Cal.4th at p. 315, italics added)--an
approach that would seem to reject the tests categorically.

On the other hand, there is language in Hansen suggesting that the tests may still
be operative. The majority opinion "reject[ed] . . . the premise" that the "integral part of
the homicide" test "constitutes the crucial test in determining the existence of merger."
(People v. Hansen, supra, 9 Cal.4th at p. 314, italics added.) That a test is not "crucial"
does not necessarily mean, of course, that it is entirely irrelevant. (See also id., at p. 318
(conc. opn. of Werdegar, J.) [agreeing with the majority's conclusion that the "integral
part of the homicide" test was not "decisive of the merger issue in this case" (italics
added)].) Similarly, the majority's rejection of the "independent felonious design" test
"as the critical test determinative of merger in all cases" (id. at p. 315, italics added)
suggests some remaining scope for that test as well. It appears that the traditional tests
may not be entirely irrelevant, but now carry relatively little weight, and our analysis will
be tailored accordingly.

Hansen pointed out that, while certain felonies other than assault, such as burglary
with intent to commit assault with a deadly weapon (People v. Wilson (1969) 1 Cal.3d
431, 440) and assaultive child abuse (People v. Smith, supra, 35 Cal.3d 798), had been
found to merge with resulting homicides, the merger doctrine had never been extended by
the Supreme Court "beyond the context of assault." (People v. Hansen, supra, 9 Cal.4th
at p. 312.) Notwithstanding this observation, and other language in the opinion, which
might suggest that the doctrine is confined to assault offenses (see id., at p. 326 (conc. &
dis. opn. of Mosk, J.)), we do not interpret Hansen to so hold. The majority ultimately
indicated that the doctrine is meant to ensure that the felony-murder rule does not
"elevate all felonious assaults to murder or otherwise subvert the legislative intent." (Id.
at p. 315, italics added.) Thus, it is not dispositive whether the offense involves a
felonious assault.

The crux of the matter under Hansen--subversion of legislative intent--is a
function, as we see it, of the percentage of total homicides that result from the felonious

16

conduct in question. Since the felony-murder rule eliminates the element of malice
otherwise required for murder under the statutory scheme for punishment of homicides,
and since, for example, the "great majority" of homicides occur in the "context of
assault" (People v. Hansen, supra, 9 Cal.4th at pp. 311, 312), allowing felonious assaults
to serve as predicates for felony murder would "usurp most of the law of homicide" (id.
at p. 311) in derogation of the legislative intent. Thus, the critical fact in Hansen was that
"[m]ost homicides do not result from violations of section 246." (Id. at p. 315.) Since
relatively few homicides are caused by malicious and willful discharge of a firearm at an
inhabited dwelling, allowing that offense to support a conviction of felony murder would
not "effectively eliminat[e] the requirement of malice" (id. at p. 314), "preserving some
meaningful domain in which the Legislature's careful gradation of homicide offenses can
be implemented" (id. at p. 312).3

Another relevant factor remains that of deterrence. Deterrence in the felony
murder context has two facets: deterrence of killings and deterrence of felonies. (Roth &
Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads (1985) 70
Cornell L.Rev. 446, 450-451.) "[D]eterrence of negligent or accidental killings in the
course of the commission of dangerous felonies" (People v. Hansen, supra, 9 Cal.4th at
p. 310) is the "fundamental" (ibid.) and "traditionally recognized" (id. at p. 315) purpose
of the felony-murder rule. (See, e.g., People v. Wilson, supra, 1 Cal.3d at p. 440; People
v. Washington (1965) 62 Cal.2d 777, 781.) In this respect, the rule "encourages the felon


3 Picking up on language in Taylor that distinguished the assault offense in
Ireland, the Hansen majority added, with respect to legislative intent, that it was not
faced with "a situation in which the Legislature has demanded a showing of actual
malice" to support a murder conviction. (People v. Hansen, supra, 9 Cal.4th at p. 315.)
The "demand" that controlled in Ireland was not an explicit legislative pronouncement
(the homicide statutes do not expressly refer to assaults), but was instead implicit in the
statutory scheme for homicide offenses: Having set up that scheme, the Legislature
presumably would not want it bypassed in a majority of cases through felony murder
prosecutions for assaults. Thus, we do not interpret legislative "demand[s]," as the term
is used in Hansen, to mean anything other than a presumed legislative desire to preserve
the statutory gradation of offenses in most homicide cases.

17

to commit the felony `more carefully' with regard to human life, to make sure that a
homicide does not occur." (Comment, Merger & the Felony-Murder Rule (1972) 20
UCLA L.Rev. 250, 258, fn. 41.) Deterrence of the felony itself is a more controversial
aim; some opinions endorse the use of homicide law for this purpose, others do not.
(Compare People v. Mattison, supra, 4 Cal.3d at p. 185 [felony-murder rule "should have
some effect on the defendant's readiness to [commit the felony]]; People v. Taylor,
supra, 11 Cal.App.3d at p. 63; People v. Patterson (1989) 49 Cal.3d 615, 627, 629 (conc.
& dis. opn. of Lucas, C.J.) ["the purpose of the felony-murder rule is to deter the
commission of inherently dangerous felonies"]; People v. Washington, supra, at p. 785
(dis. opn. of Burke, J.) with People v. Smith, supra, 35 Cal.3d at p. 807 ["the ostensible
purpose of the felony-murder rule is not to deter the underlying felony"]; People v.
Washington, supra, at p. 781.)

Both forms of deterrence are cited in Hansen, in connection with the issue of
inherent danger (People v. Hansen, supra, 9 Cal.4th at pp. 310-311) as well as that of
merger (id. at pp. 314 [felony-murder rule should apply to felonies it is most likely to
deter] 315 [deterrence of negligent or accidental killings].) However, the goal of felony
deterrence receives greater emphasis in the discussion of inherent danger than in the
discussion of merger. (See id. at p. 311 [citing "enormous concern to the public" and
"climate of fear" created by "reprehensible" and "alarmingly common" use of firearms];
accord People v. Clem, supra, 78 Cal.App.4th at p. 351.) Deterrence and danger go hand
in hand when assessing the risks a felony poses--the more dangerous the felony, the
greater the need to deter it. However, since all dangerous felonies are well worth
deterring, felony deterrence provides little basis for distinguishing between dangerous
felonies that merge with resulting homicides and those that do not. Therefore, while both
facets of deterrence--discouraging killings and felonies-- remain relevant after Hansen,
the felony-murder rule's traditional purpose of deterring killings is the more important
consideration in applying the merger doctrine.

The final thread in the merger doctrine as reflected in Hansen is a concern with
anomalous results. The Hansen court's reasons for refusing to apply the "integral part of

18

the homicide" and "independent felonious design" tests for merger echoed prior cases
that had sought to avoid results that were seen as "absurd" or irrational. (See People v.
Washington, supra, 62 Cal.2d pp. 782-783; cf. People v. Sears (1970) 2 Cal.3d 180, 189.)
(b)

Analysis

The central consideration in resolving the merger issue is whether most homicides
result from grossly negligent discharge of a firearm in violation of section 246.3. As has
been noted, that this offense is not a species of felonious assault is not controlling. If
allowing section 246.3 violations to serve as predicate offenses may result in the felony-
murder rule's application to a great majority of homicides, then the violations and
resulting homicides must be deemed to merge, to prevent the rule from "effectively
eliminating the requirement of malice" (People v. Hansen, supra, 9 Cal.4th at p. 314) in
contravention of legislative intent.

Statistics compiled by the Attorney General indicate that a substantial majority of
homicides in this state are committed with firearms. From 1994 to 2001, the number of
homicides resulting from the use of firearms ranged from 67.5 to 75.8 percent annually.4
All or substantially all of those deaths were presumably caused by shots fired (as opposed
to bludgeoning with the weapon), and in every such instance the discharge of the firearm
could be characterized as at least grossly negligent and prosecuted as a violation of
section 246.3. As has been stated, the elements of the crime are: (1) willful discharge of
a firearm; in a manner that (2) is grossly negligent and (3) could result in injury or death.
(CALJIC No. 9.03.3.) The first element, "willful" discharge, is satisfied simply by a shot


4 The California Department of Justice's annual publication "Homicide in
California" has reported the following percentages of homicides resulting from firearm
use: 75.8 percent in 1994; 74.0 percent in 1995; 71.7 percent in 1996; 72.3 percent in
1997; 68.8 percent in 1998; 67.5 percent in 1999; 70.4 percent in 2000; and 72.2 percent
in 2001. (Cal. Dept. of Justice, Bur. of Crim. Information & Analysis, Homicide in
California, ann. reps. 1994-2001, p. 18 each ann. rep.) For purposes of these reports,
"homicide" is defined as the "willful (nonnegligent) killing of one human being by
another," a category that includes "[m]urder and nonnegligent manslaughter. Attempted
murder, justifiable homicide, manslaughter by negligence, and suicide are excluded."

19

that is intentional, as opposed to accidental (see People v. Clem, supra, 78 Cal.App.4th at
pp. 350-351; CALJIC No. 1.20), and the third element, possible injury or death, will be
satisfied whenever a person is shot and killed. The improper regard for life and the
foreseeability of harm required for gross negligence (CALJIC No. 3.36) will also be
manifest in every case, given the well known, lethal risks of shooting a gun, and the
resulting death. Thus, a violation of section 246.3 can be charged whenever a gun is
intentionally fired and a person is killed by the shot--the situation in the majority of
homicides.

Therefore, to preserve malice as an issue in most homicide cases in accordance
with legislative intent, we hold that the merger doctrine precludes a violation of section
246.3 from serving as a predicate offense for a charge of felony murder. Hansen is
distinguished because the firearm offense in that case, malicious and willful discharge of
a firearm at an inhabited dwelling, occurs in relatively few homicides, whereas the one
here occurs in a great majority of them.

Respondent contends that allowing section 246.3 violations to act as predicates for
felony murder will affect an even smaller percentage of cases than the offense considered
in Hansen because "[h]omicides caused, . . . by the discharge of a firearm that is grossly
negligent but not willfully directed towards an inhabited dwelling or person must be even
less frequent." However, a section 246 offense like the one in Hansen, unlike a section
246.3 offense, could not be charged in every fatal shooting; it could occur only in those
cases where the killing resulted from shots fired at an inhabited dwelling. There will be
cases where an intent to kill can be readily inferred from the circumstances of a fatal
shooting, but gross negligence at the least could be charged even in such cases.
Regardless of the circumstances, malice remains an element of the burden of proof for
murder unless the felony-murder rule applies. Permitting that rule to potentially relieve
the prosecution of that statutory burden in the majority of homicide cases would be
contrary to the legislative intent. (People v. Hansen, supra, 9 Cal.4th at p. 311.) For
respondent to suggest that we should not be concerned, in setting the scope of the felony-
murder rule, with the elimination of malice as an element of murder in most homicide

20

cases because "[u]nder the felony-murder rule the People are not required to prove
malice" is to state an obvious point that ignores the core purpose of the merger doctrine:
preserving the malice requirement (id. at p. 314) and with it a "meaningful domain in
which the Legislature's careful gradation of homicide offenses can be implemented" (id.
at p. 312).

The traditional "integral part of the homicide" and "independent felonious design"
tests for merger, which may continue to play some limited role after Hansen, do not as
applied here provide any definitive results that would dictate a contrary conclusion.
Grossly negligent discharge of a firearm would likely be seen as an "integral part" of a
resulting homicide because the discharge was the means by which the homicide was
committed. (See People v. Smith, supra, 35 Cal.3d at p. 805, discussing People v. Wesley
(1970) 10 Cal.App.3d 902, 907.) However, it could be argued that a violation of section
246.3 is not an "integral part" of a resulting homicide because the crime is complete
when the firearm is discharged, regardless of any resulting damage. (See People v.
Calzada (1970) 13 Cal.App.3d 603, 606 [felony driving under the influence in violation
of former Veh. Code, § 23105 did not merge with the resulting homicide because felony
was complete when defendant began driving and was thus "distinct" and "independent"
from homicide].) The "independent felonious design" test, which turns on the purpose of
the defendant's actions, does not fit well with negligent conduct, and its outcome here
would also be uncertain, given appellant's statements that he merely intended to frighten
away the victims. (Compare People v. Hansen, supra, 9 Cal.4th at pp. 318 (conc. opn. of
Werdegar, J. [defendant who discharged firearm at inhabited dwelling had independent
felonious design of intimidating occupant] and 315 (maj. opn. [intimidation of occupant
would be an independent purpose]) with id. at p. 330 (conc. & dis. opn. of Kennard, J.)
[defendant had no felonious purpose beyond mere assault].)

As for deterrence, felony-murder prosecutions based on grossly negligent
discharge of a firearm would not further the felony-murder rule's original, fundamental
purpose of "deter[ring] felons from killing negligently or accidentally" (People v.
Washington, supra, 62 Cal.2d at p. 781) because the felony itself is one of negligence. It

21

makes no sense to speak of promoting careful gross negligence. (See Comment, supra,
20 UCLA L.Rev. at p. 278, fn. 148 [where felony "is one of negligence, the person
cannot be encouraged by the felony-murder rule to commit the felony more carefully
with regard to human life"].) It is true that use of grossly negligent discharge of a firearm
as a predicate for felony murder would further the rule's other aim of deterring the felony
itself, and this felony is clearly worth deterring. (People v. Clem, supra, 78 Cal.App.4th
at p. 351.) However, as has been indicated, deterrence of felonies is a less important
consideration than deterrence of killings in deciding which inherently dangerous felonies
merge with resulting homicides under the merger doctrine. Thus, without minimizing the
great dangers associated with the discharge of firearms, we conclude that, on balance,
considerations of deterrence do not militate against merger of this offense.

We note finally that a contrary ruling would produce the sort of absurd result the
merger precedents have sought to avoid. If grossly negligent discharge of a firearm does
not merge with a resulting homicide, then defendants who say, "I didn't mean to do it"
will in effect be pleading guilty to second degree felony murder in a majority of homicide
cases. Defendants who admit an intent to kill, but claim to have acted with provocation
or in honest but unreasonable self-defense, would likely have a stronger chance of being
convicted of the lesser offense of voluntary manslaughter. There is no reason to think the
Legislature intended that anomalous result when it enacted section 246.3 to discourage
the " `practice of discharging firearms into the air during festive occasions' " (People v.
Clem, supra, 78 Cal.App.4th at p. 350), much less that it contemplated the far reaching
revision of the homicide laws that would be accomplished by an extension of the felony-
murder rule to that offense (see People v. Taylor, supra, 11 Cal.App.3d at pp. 62, fn. 3
[stating, before enactment of § 246.3, that "[n]o one has ever contended that death
resulting from the negligent discharge of a firearm supports anything but a conviction for
involuntary manslaughter"]).

Accordingly, it was error to instruct the jury that it could convict appellant of
second degree felony murder if it found that he had violated section 246.3.

22


We recognize that Division One of this Appellate District has just reached the
opposite conclusion on the merger issue in People v. Randle (May 30, 2003, A097168)
109 Cal.App.4th 313 [2003 D.A.R. 5839]). For the foregoing and following reasons, we
respectfully disagree with the decision in that case.
We
concur
with
Randle that the "first issue in applying the principles set out in
Hansen is whether most homicides result from violations of section 246.3." (People v.
Randle, supra, 109 Cal.App.4th at p. ____ [2003 D.A.R. 5842].) However, the court's
subsequent observation that section 246.3 violations do not generally result in homicide
is irrelevant, and states the test backward: most assaults do not result in homicide, either,
but the offense merges because most homicides involve an assault.

Randle reasons that section 246.3 will be implicated in relatively few homicides
from discharges of firearms, by interpreting the word "could" in section 246.3 to mean
"unlikely." Section 246.3 applies to firearm discharges "which could result in injury or
death to a person." Randle ventures that, had this statute existed at the time of the
offense in Ireland, it would not have been violated in that case because the fatal shots
were fired at point-blank range. The opinion posits that "there would have been no
factual basis for charging the Ireland defendant with a violation of section 246.3"
because "the firing of shots at the victim from a close range was not a crime that could
result in injury or death: It was a crime likely to result in injury or death. " (People v.
Randle, supra, 109 Cal.App.4th at p. ___ [2003 D.A.R. 5843].) The court goes on to
express its "expectation that trial courts will recognize this distinction and instruct
accordingly," and to admonish the People to refrain from "manipulation" in charging
section 246.3 violations to secure felony-murder convictions. (Randle, supra, at p. ___
[2003 D.A.R. 5843].)

The attempt to limit the application of section 246.3 to shootings that are unlikely
to result in injury or death is at odds with the ordinary meaning of the word "could," and
with the conclusion, drawn in People v. Clem, supra, 78 Cal.App.4th 346 and accepted in
Randle (People v. Randle, supra, 109 Cal.App.4th at p. ____ [2003 D.A.R. 5842]), that
section 246.3 is an inherently dangerous felony. Words in a statute are given their usual

23

and ordinary meaning unless another meaning is clearly intended or indicated. (People v.
Trevino (2001) 26 Cal.4th 237, 241; People v. Loeun (1997) 17 Cal.4th 1, 9; Estate of
Richartz (1955) 45 Cal.2d 292, 294.) The term "could" ordinarily connotes an "ability"
or a "possibility." (See American Heritage Dict. (4th ed. 2000) pp. 269, 416 [defining
"can" and "could"].) There is no basis to believe that the word "could" as used in section
246.3 has any uncommon meaning, much less that it means "unlikely" as construed in
Randle--a meaning that would be contrary to its usual connotation.

We interpreted the word "could" in section 246.3 in its ordinary sense in People v.
Clem, supra, 78 Cal.App.4th 346, in concluding that the felony was inherently dangerous
to human life. The words "could result in injury or death to a person" were found to limit
section 246.3 only insofar as they "presuppose[d] that there [were] people in harm's way"
(Clem, supra, at p. 351), and that "the defendant's act `actually had the potential for
culminating in personal injury or death' " (id. at pp. 351-352, quoting People v. Alonzo
(1993) 13 Cal.App.4th 535, 539 [italics added].) Given the possibility of harm
contemplated by the statute, and the "imminent deadly consequences . . . inherent in the
act" of discharging a firearm (Clem, at p. 353), we found the offense to be inherently
dangerous. Although Randle agrees with that conclusion, the felony's inherent danger
would not be apparent if, as Randle submits, the statute applied only when harm is
unlikely. (See Clem, at p. 349 [felony is inherently dangerous only if it " `cannot be
committed without creating a substantial risk that someone will be killed' "].)

Therefore, as we have said, every fatal shooting involves at least a potential
violation of section 246.3; if there is a dead body, the shot was certainly one that "could
result in injury or death to a person." We also remain convinced that, contrary to
Randle's assertions, felony murder prosecutions based on section 246.3 violations will
not further the traditional purpose of the felony-murder rule inasmuch as one cannot
encourage careful gross negligence.

(4) Prejudice

It seems unlikely that the jury would have convicted appellant of murder based on
mere gross negligence in view of the evidence that he emptied his weapon and fired some

24

ten shots toward the victims. However, erroneous allowance of a felony-murder theory
"require[s] reversal of defendant's murder conviction unless it appears beyond a
reasonable doubt that the instructional error did not contribute to the jury's verdict.
(People v. Swain (1996) 12 Cal.4th 593, 607; People v. Smith (1998) 62 Cal.App.4th
1233, 1238.) `Such a reasonable doubt arises where, although the jury was instructed on
alternate theories, there is no basis in the record for concluding that the verdict was based
on a valid ground.' [Citations.]" (People v. Sanchez (2001) 86 Cal.App.4th 970, 980;
see also People v. Flores (1992) 7 Cal.App.4th 1350, 1360 ["reversal is required only if
the reviewing court cannot determine from the record on which theory the jury relied"].)5

Respondent submits that the error was harmless in this case because there is no
basis to distinguish appellant's intent toward the two victims, Riley and Harris, and the
conviction of assault for the wounding of Harris shows that the conviction of murder for
the killing of Riley must have rested on something more than a finding of negligence.
Respondent relies on People v. Flores, supra, 7 Cal.App.4th 1350, where the defendant
was convicted of second degree murder and two counts of attempted murder based on a
series of shots fired by a fellow gang member that killed one person and injured two
others. There was "Ireland error" in connection with the murder count because the jury
was instructed that it could convict the defendant of second degree felony murder if it
found that the killing occurred in an assault with a firearm. However, the error was
harmless in view of the convictions of attempted murder of the other victims. Since the
jury was told the crime of attempted murder requires express malice, it must have found


5 Respondent argues, citing People v. Lasko (2000) 23 Cal.4th 101, 111, that
prejudice from an erroneous instruction on felony murder is evaluated under the standard
of People v. Watson (1956) 46 Cal.2d 818, 836, and thus that reversal is required only if
it appears reasonably probable that the error affected the outcome of the case. However,
Lasko involved failure to properly instruct on a lesser included offense, not erroneous
instruction on the elements of an offense, where the harmless-beyond-a-reasonable-doubt
standard of Chapman v. California (1967) 386 U.S. 18, 24, has been applied. (People v.
Swain, supra, 12 Cal.4th at p. 607.) We can assume without deciding, for purposes of
this opinion and consistent with Swain and Sanchez, that Chapman is applicable here.

25

that there was an intent to kill the victims who survived (id. at p. 1361), and that same
intent must have extended to the victim who was killed: " `The evidence manifestly
show[ed] a single intent as to all three victims in the . . . shootings; it is inconceivable the
jury would find that [the accomplice] intended to kill only the victims who survived, but
not the one who died' " (ibid., quoting People v. Walker (1988) 47 Cal.3d 605, 634).
Thus, in Sanchez, since the record established that the second degree murder conviction
must have rested on a finding of express malice, it was immaterial whether it could also
have rested on a theory of felony murder. Similarly here, the argument is that because
the jury found that appellant "willfully shot Rickey Harris . . . the shot that killed
Kehinde Riley must have also been willful," and the jury must have determined that
"there was nothing negligent about the shooting."

Appellant was not convicted of (or charged with) Harris's attempted murder, but
only of assaulting Harris. We therefore face a different issue than the one in Sanchez:
comparing the state of mind in an assault with that of gross negligence.

The jury was instructed pursuant to the 1998 revision of CALJIC No. 9.00 that it
was necessary, in order to prove an assault, that: "1. A person willfully and unlawfully
committed an act which by its nature would probably and directly result in the application
of physical force on another person; and [¶] 2. At the time the act was committed the
person intended to use physical force upon another person or to do an act that was
substantially certain to result in the application of physical force upon another person;
and [¶] 3. At the time the act was committed the person had the present ability to apply
physical force to the person of another. [¶] `Willfully' means that the person committing
the act did so intentionally. [¶] To constitute an assault it is not necessary that any actual
injury be inflicted. However, if an injury is inflicted it may be considered in connection
with other evidence in determining whether an assault was committed and, if so, the
nature of the assault." (Italics added.) The Comment on this revision of the standard
assault instruction indicated that the language we have italicized was based on People v.
Smith (1997) 57 Cal.App.4th 1470. The Comment stated: "It is not known whether this
holding will be required only when defendant claims he or she did not intend to injure the

26

victim or whether it will have a more general application. It is a matter the trial court will
have to consider."
The
Smith case explains at some length why paragraph 2 in the 1998 revision of
CALJIC No. 9.00 describes a more culpable mental state than those associated with
negligent or even reckless conduct. The defendant in Smith was charged with assault
with a deadly weapon on a peace officer, and his intent in the incident was at issue. The
jury was instructed in pertinent part that an assault requires an intent "to commit an act,
the direct, natural and probable consequences of which if successfully completed would
be the application of physical force upon the person of another." (People v. Smith, supra,
57 Cal.App.4th at pp. 1477, fn. 4, 1478, fn. 5.) In the Smith court's view, this instruction
was deficient because it permitted an assault conviction to be based on mere criminal
negligence, "regardless whether the defendant intended a battery. [¶] `Liability for [the]
natural and probable consequences [of an intended act] is regarded as legally equivalent
to liability for reasonably foreseeable consequences, and is another way of expressing
liability for negligence.' " (Id. at p. 1479.) Since "recklessness is not sufficient to
establish an assault . . . [and] recklessness transcends negligence," it "follow[ed] that
criminal negligence is not sufficient to establish an assault," and thus that the instruction
was erroneous. (Id. at p. 1480.)
The
Smith court thought that an assault required "an ` "intent to cause [some]
injury" ' " (People v. Smith, supra, 57 Cal.App.4th at p. 1488), with "intent" defined in
accordance with "traditional view[s]" (id. at p. 1485) as a "desire to cause a consequence
of an act or belief the consequence is substantially certain to result" (id. at p. 1486, fn.
10). In layman's terms, "substantially certain to result" means " `bound to happen.' "
(Id. at p. 1486, italics omitted.) For example, if A, trying to kill B, throws a bomb into
B's office knowing that B and C are there, A is deemed to intend harm to C as well as B.
(Id. at p. 1487.) Situations involving such "ascribed intention" (id. at p. 1485) are
relatively rare "since almost always a person who foresees an illegal consequence as the
virtually inevitable result of his act will desire it," at least as a means to an end. (Id. at
p. 1487.)

27


The intent-to-injure standard for assault thus described in Smith, and embodied in
the 1998 revision of CALJIC No. 9.00, is not one of merely negligent (People v. Smith,
supra, 57 Cal.App.4th at p. 1488), or even reckless, conduct. Smith pointed out the
"distance between conduct which is known to be inherently dangerous, i.e., conduct
which carries with it a risk that an injury will ensue, and conduct which is known to have
the consequence that an injury is `bound to happen.' Intentional conduct risking injury is
deemed reckless, which carries with it a subjective appreciation of the risk akin to
implied malice in the law of murder. [Citation.] Reckless conduct `resembles acting
knowingly in that a state of awareness is involved, but the awareness is of risk, that is of a
probability less than substantial certainty.' " (Id. at p. 1487, fn. omitted.)

Therefore, under the instructions given in this case,6 the jury must have concluded
in convicting appellant of assaulting Harris that appellant intended to harm Harris, in the
sense that "intent" has traditionally been defined in the law, by intending to use force on
him or to do an act that was substantially certain to result in the application of such force.
In so concluding, the jury must have rejected appellant's defense, to the charge of murder
as well as assault that he was only trying to frighten the victims when he fired the shots.
(People v. Flores, supra, 7 Cal.App.4th at p. 1361 [evidence showed single intent toward
victims].) As to the murder charge, if the force appellant intended to apply against Riley
was lethal force, then he was guilty of murder with express malice (§ 188 [intent to kill]);
if the force was intended only to injure, then he was guilty of murder with implied malice
(People v. Thomas (1953) 41 Cal.2d 470, 479 (conc. opn. of Traynor, J.); People v.


6 Since appellant's jury was instructed on the intent for assault according to Smith,
it is immaterial for present purposes: that Smith may have been inconsistent with People
v. Colantuono (1994) 7 Cal.4th 206 (see People v. Smith, supra, 57 Cal.App.4th at
p. 1488 [acknowledging possible inconsistency]); that Smith may have been disapproved
in People v. Williams (2001) 26 Cal.4th 779 (see People v. Wright (2002) 100
Cal.App.4th 703, 705 [noting that Williams is at odds with Smith]), and that CALJIC No.
9.00 has been revised, in light of Williams, to delete paragraph 2 of the 1998 revision on
which we rely and to provide that "an assault does not require an intent to cause injury"
(CALJIC No. 9.00 (2002 rev.)).

28

Protopappas (1988) 201 Cal.App.3d 152, 172); in either event, he was not guilty merely
of grossly negligent discharge of a firearm (People v. Watson (1981) 30 Cal.3d 290, 296-
297 [distinguishing implied malice from gross negligence; former involves "a higher
degree of culpability" and "awareness of a higher degree of risk"]; People v. Smith,
supra, 57 Cal.App.4th at p. 1488 [distinguishing intent defined in CALJIC No. 9.00
(1998 rev.) from recklessness].) Thus, the murder conviction was necessarily based on a
valid ground and the erroneous instruction on felony murder was harmless. (People v.
Sanchez, supra, 86 Cal.App.4th at p. 980; People v. Flores, supra, 7 Cal.App.4th at p.
1360.)7
B. Involuntary Manslaughter Instruction*

The jury was instructed on voluntary manslaughter pursuant to CALJIC No. 8.40,
as revised in 2000 in light of the decisions in People v. Blakeley (2000) 23 Cal.4th 82 and
People v. Lasko, supra, 23 Cal.4th 101. These cases held that voluntary manslaughter
does not necessarily require an intent to kill; it is also committed when the killer acts with
a conscious disregard for life, but lacks malice because the act is provoked (People v.
Lasko, supra, at pp. 104, 109-110) or is taken in honest but unreasonable self-defense
(People v. Blakeley, supra, at pp. 85, 88-89). The instruction stated that:

"Every person who unlawfully kills another human being without malice
aforethought but either with an intent to kill or by committing an intentional act, the
natural consequences of which were dangerous to life, which act was deliberately
performed with conscious disregard for life, and with the knowledge that the conduct


7 The jury's questions to the court during deliberations comport with this
conclusion. The questions sought assistance in understanding the role of malice in
determining the nature of a homicide, and in understanding the differences between first
degree and second degree murder. The jury requested clarification of the meaning of the
phrases " `deliberate and premeditated' versus `intentional killing' " and also asked for
additional explication of CALJIC instructions 8.20 (deliberate and premeditated murder),
8.30 (unpremeditated murder of the second degree) and 8.31 (second degree murder--
killing resulting from unlawful act dangerous to life).
* See footnote ante, page 1.

29

endangered the life of another, is guilty of voluntary manslaughter, in violation of Penal
Code section 192 [subd. a]. [¶] There is no malice aforethought if the killing occurred
upon a sudden quarrel or heat of passion or in the actual but unreasonable belie[f] in the
necessity to defend oneself against imminent peril to life or great bodily injury. [¶] In
order to prove this crime, each of the following elements must be proved: [¶] 1. A
human being was killed; [¶] 2. The killing was unlawful; [¶] 3. The perpetrator of the
killing either intended to kill the alleged victim or committed an intentional act, the
natural consequences of which were dangerous to human life, and the perpetrator
deliberately committed the act with knowledge of the danger to and with conscious
disregard for human life; and [¶] 4. This intentional act resulted in the death of the
alleged victim."
The
Lasko holding, involving the situation where provocation may negate what
would otherwise be implied malice, applies retroactively to offenses that occurred before
June 2, 2000, when Lasko was decided. (People v. Crowe (2001) 87 Cal.App.4th 86, 94-
95.) Blakeley's holding, however, which permits a conviction of voluntary manslaughter
where implied malice is negated by imperfect self-defense, applies only prospectively.
(People v. Blakeley, supra, 23 Cal.4th at pp. 91-92.) Thus, for an alleged offense before
June 2, 2000, the jury should be instructed that an unintentional killing in unreasonable
self-defense is involuntary, not voluntary, manslaughter. (People v. Johnson (2002) 98
Cal.App.4th 566, 569.) The offense in this case occurred before that date, and appellant
contends that the court erred in failing to give such an instruction.

Appellant did not request this instruction below. Appellant requested, and the
court refused, the then-standard involuntary manslaughter instruction, CALJIC No. 8.45
(6th ed. 1996), which did not include the substance of the instruction at issue. (See
People v. Blakeley, supra, 23 Cal.4th at pp. 86-87, and ibid. at fns. 1, 2.) Assuming
arguendo that the point was not thereby waived (see id. at p. 92, fn. 4 [declining to decide
whether the instruction must be given absent a request by the defendant]), the error was
harmless in any event.

30


As previously indicated, the jury must have concluded that appellant acted with
express or implied malice when he killed Riley. In either event, under the 2000 revision
of CALJIC No. 8.40 furnished in this case, the jury was given the option of convicting
appellant of voluntary manslaughter, rather than murder, if it believed his claim that he
acted in honest, if unreasonable, self defense when he emptied his gun in Riley's
direction. That the jury declined to return a verdict of voluntary manslaughter confirms
that it rejected appellant's self defense theory. Thus, there is no reasonable probability
that the jury would have returned an involuntary manslaughter verdict if it had been given
that option.8 (People v. Lasko, supra, 23 Cal.4th at p. 111 [Watson standard applies to
failure to properly instruct on lesser included offense]; People v. Blakeley, supra, 23
Cal.4th at p. 93 [same]; see also People v. Lewis (2001) 25 Cal.4th 610, 646 [failure to
instruct on lesser included offense is harmless when jury has necessarily decided factual
question posed by omitted instruction adversely to defendant].)
C. Admission of the Taped Statements

Appellant contends that the court erred in denying his in limine motion to prevent
introduction of his taped statements to the police.

(1) Record

Appellant testified at the hearing on the motion, along with Sergeant Joyner and
Investigator Landini, who took the statements.

Appellant was taken to the police station and put into an interview room at 3:05
a.m. The room was eight-by-ten feet, with a table and chairs, and no windows. He was
moved to another identical room at 10:29 a.m. and remained there until 12:14 p.m., when
he was interviewed by Joyner and Sergeant Brock. Appellant was allowed to leave the
interview rooms to go to the bathroom while he was waiting to be interviewed. Joyner
said that appellant appeared to be sleeping when he looked in on him several times in the
hours before the interview.


8 In view of this conclusion, we need not decide whether the evidence supported
an imperfect self-defense instruction.

31


At 11:59 a.m., shortly before the interview with Brock and Joyner began, Bradley
Gentry was brought to the room, the door was opened, appellant was asked to stand up
and turn to the side, and Gentry said, "Yeah, that's him." This identification was staged;
Gentry did not in fact recognize appellant as the shooter. Joyner testified that when he
and Brock entered the room to conduct the interview, and twice during the interview,
appellant asked to telephone his family. The officers refused permission, telling
appellant that he would need to give a statement before he used the phone, because they
were concerned that he would use the calls to tamper with witnesses or evidence.

Two minutes into the interview, after obtaining preliminary information such as
appellant's name and date of birth, the officers read appellant his Miranda rights.
Appellant indicated that understood those rights, and said, "You can ask me some
questions"; these responses were written down by the officers and initialed by appellant.
Appellant first stated that he had seen someone tampering with a car and someone else
shooting a gun, but, as has been noted, he eventually admitted firing a gun several times.
The officers took a tape recorded statement from appellant from 2:00 p.m. to 2:49 p.m.
At the outset of the recording, the officers repeated the Miranda advisement, and
appellant reiterated that he understood his rights and that he agreed to answer questions.

Joyner said that appellant did not appear tired during the interview, and never
complained about the length of time he was confined in the interview rooms. Joyner
admitted telling appellant, falsely, that he had been identified as the shooter, but said that
he otherwise took a "low-key" approach during the interview. Joyner said he used no
force or violence, never told appellant that he had to give a statement if he wanted to go
home, and made no threats or promises. He said that defendant never asked to call or see
an attorney, and never asked that the interview be terminated.

Appellant was allowed to make phone calls after the interview. He was offered a
newspaper, and brought the meal he requested from McDonalds.

Appellant was interviewed again, from about 9:15 to 10:15 p.m., by Investigator
Landini and Deputy District Attorney Leventis. Landini began with a Miranda
advisement, and appellant confirmed that he understood his rights and agreed to talk.

32

Landini said he used no force or violence, and made no threats or promises during the
interview. He said that appellant was very cooperative, and never asked to see an
attorney or to terminate the interview.

Appellant testified that he had not understood his Miranda rights, and was afraid
of being falsely accused or beaten by the police if he did not give a statement. He said
that he was told he could go home if he gave a statement, and could get probation if he
cooperated. He admitted initialing a form that confirmed his understanding of his rights
and his agreement to talk, and acknowledged that he was never threatened.

When appellant was first asked whether he had requested permission to call an
attorney, he said, "Being a person that I never get--I never get in no trouble, I didn't
know about a lawyer or what have you, so my wife was going to call a lawyer; that was
my intention to call my wife so I could really know what was going on." He later stated
that his main concern in contacting his family was "to get an attorney because I didn't
know what was going on," then conceded that he never knew to call an attorney while he
was being held for questioning, and eventually said that he could not remember whether
he ever told Sergeant Brock that he wanted an attorney.

The court denied the motion in limine without elaboration as to its reasoning.

(2) Analysis


(a) Right to Counsel

Appellant argues that the motion should have been granted because he was
improperly questioned after he invoked his right to counsel. (Miranda v. Arizona (1966)
384 U.S. 436, 474; Edwards v. Arizona (1981) 451 U.S. 477, 484-485.) We agree with
respondent that appellant waived this argument by failing to raise it below. Appellant's
written motion did not refer to any request for an attorney; it argued that his statements
were coerced and involuntary because of the psychological pressure to which he was
subjected. The motion was submitted without further argument after the evidence was
presented. The specific ground now urged for exclusion of the statements thus was never
advanced below, and cannot be raised on appeal. (People v. Crittenden (1994) 9 Cal.4th
83, 126; Evid. Code, § 353, subd. (a).)

33


Appellant notes that the "facts" set forth in his written motion alleged that he was
told that he would not be allowed to call an attorney until after he had given a statement.
Appellant submits that this statement was sufficient to raise an invocation-of-counsel
objection, and reasons that the prosecutor must have been on notice of that objection
because he was the one who first broached the subject of alleged requests for counsel
when he questioned Sergeant Joyner at the hearing. However, the waiver rule protects
the court as well as the opposing party. (People v. Crittenden, supra, 9 Cal.4th at p. 126
[specificity requirement enables court to make an informed ruling].) That the prosecution
might have anticipated an invocation-of-counsel objection did not obviate the need to
raise one, and we are not authorized to reverse on an evidentiary ruling the trial court was
not called upon to make. (See People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6.)

It is understandable, given appellant's testimony, why no invocation-of-counsel
argument was raised. Although appellant initially claimed to have told the officers he
wanted to talk to his family so they could contact a lawyer for him, he later admitted that
he had not thought to call an attorney, and could not remember indicating that he wanted
one.9

Entirely apart from appellant's equivocations, the record did not support an
invocation-of-counsel argument. The court was entitled to, and presumably did, credit
Joyner's testimony that appellant never asked to call or see an attorney. (People v.
Jenkins (2000) 22 Cal.4th 900, 969 [we must "view the record in the light most favorable


9 "Q. Didn't you tell us on direct examination that when you were in the
homicide division that it never crossed your mind to call an attorney? [¶] A. I didn't say
that, it never crossed my mind to call an attorney. [¶] Q. Not those exact words but to
that effect, that you never knew to call an attorney, you were just kind of naïve when it
comes to things like that, is that correct? [¶] A. If you want to take it that way. [¶] Q.
It's true. You never knew to call an attorney, is that correct? [¶] A. If you want to take
it that way. [¶] Q. Yes or no? When you were in the homicide division you never knew
to call an attorney. Yes or no? [¶] A. I guess, yes, because--[¶] Q. Thank you. [¶] A.
Thank you. [¶] . . . [¶] Q. But not once did you ever tell Sergeant Brock that you wanted
an attorney, correct? [¶] A. Not once? [¶] Q. Yeah. [¶] A. Basically--I can't
remember."

34

to the trial court's ruling, deferring to those express or implied findings of fact supported
by substantial evidence"]; People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.)
Joyner said that appellant asked to call his family, not an attorney. A request for counsel
"need not be stated as a model of eloquence and clarity" (Alvarez v. Gomez (9th Cir.
1999) 185 F.3d 995, 997), but officers are not required to read a suspect's mind. Thus,
even if an invocation-of-counsel argument had been raised it would have been properly
rejected.
(b)

Voluntariness

Appellant contends that his statements should have been excluded because they
were involuntary. A confession is involuntary if it is obtained by threats or violence, by
direct or implied promises, however slight, or by the exertion of any improper influence.
(People v. Benson (1990) 52 Cal.3d 754, 778.) The question is whether the defendant's
"will was overborne," or the choice to confess was " `essentially free.' " (People v.
Memro (1995) 11 Cal.4th 786, 827; see also In re Cameron (1968) 68 Cal.2d 487, 498
[issue is whether accused's abilities to reason, comprehend or resist were "so disabled
that he was incapable of free or rational choice"].) For a confession to be admissible, the
prosecution must show by a preponderance of the evidence that the confession was
voluntary. (People v. Williams (1997) 16 Cal.4th 635, 659.) The determination is based
on the totality of the circumstances. (People v. Massie (1998) 19 Cal.4th 550, 576.) The
trial court's finding as to the voluntariness of the confession is subject to our independent
review (ibid.), but we must " ` "accept that version of events which is most favorable to
the People, to the extent that it is supported by the record" ' " (People v. Thompson
(1990) 50 Cal.3d 134, 166).

The admissions in this case were voluntary under the foregoing standards. The
conflicting evidence rule (People v. Jenkins, supra, 22 Cal.4th at p. 969; People v.
Thompson, supra, 50 Cal.3d at p. 166) disposes of any claim that the admissions were
induced by promises on the part of the officers. We are bound to accept Joyner's and
Landini's testimony that no promises were made, notwithstanding appellant's testimony
to the contrary. (Ibid.) Although appellant acknowledged that no threats were made, he

35

said that he feared being beaten or falsely accused if he did not give a statement. Under
the circumstances, those fears were not grounds for exclusion of the admissions. (See
People v. Clark (1993) 5 Cal.4th 950, 989, fn. 14 ["a defendant's subjective perceptions
cannot mandate the suppression of a statement unless state coercion is present"].) The
officers employed deception by falsely indicating, with the help of Gentry's staged
identification, that appellant had been identified as the shooter. However, such deception
did not render the admissions involuntary and unreliable because it was " `not of a type
reasonably likely to procure an untrue statement.' " (People v. Thompson, supra, at p.
167; see People v. Ray (1996) 13 Cal.4th 313, 340; People v. Chutan (1999) 72
Cal.App.4th 1276, 1280-1281 [collecting cases where incriminating evidence was
exaggerated].)

Appellant submits that his admissions should have been excluded because he was
held for an inordinate time, under inhumane conditions, before he was interviewed. He
suggests that he was deprived of sleep, food, and access to the bathroom while he was
detained, and was exhausted and hungry by the time he was questioned. However, the
court presumably believed Joyner's testimony to the contrary. Nor was appellant's time
in custody so prolonged as to create a presumption of coercion. (See People v. Bradford,
supra, 14 Cal.4th at p. 1041; e.g., People v. Terry (1970) 2 Cal.3d 362, 390-391,
disapproved on another point in People v. Carpenter (1997) 15 Cal.4th 312, 382 [no
coercion where defendant interrogated at length finally confessed 16 hours after arrest].)

Accordingly, we conclude that appellant's custodial statements were properly
admitted into evidence.
III. DISPOSITION

The judgment is affirmed.

36










_________________________







Kay, P.J.


I concur:

_________________________
Rivera, J.






























37


REARDON, J.


I concur in the judgment affirming appellant's convictions. We correctly find that
any error in instructing on felony murder to be harmless. Because our judgment of
affirmance is not dependent upon resolution of the merger issue, it is unnecessary, in my
opinion, to address the merits of this issue and I decline, therefore, to do so.








___________________________







Reardon, J.



Trial
Court:
Alameda
County
Superior
Court

Trial
Judge:
Hon.
Julie
Conger

Counsel for Appellant:

Juliana Drous

Counsel for Respondent:
Bill Lockyer, Attorney General





Robert R. Anderson, Chief Assistant Attorney General





Ronald A. Bass
Senior
Assistant
Attorney
General
Catherine
A.
Rivlin
Supervising
Deputy
Attorney
General
William
Kuimelis
Deputy
Attorney
General

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