## Facts

- In Stockton, a car with Chun as an occupant pulled alongside another car stopped at a light, and shots were fired into the occupied vehicle.
- One victim was killed by gunshots to the head; two other occupants were shot and seriously injured.
- Chun admitted firing a gun from the attacking vehicle but testified he meant only to scare and did not aim at anyone.
- Chun was charged with murder, attempted murder, and shooting at an occupied vehicle (Cal. Penal Code § 246).
- The jury convicted Chun of second degree murder and § 246, and acquitted him of attempted murder.
- The trial court instructed the jury on second degree felony murder using § 246 as the predicate felony.

## Issues

1. Whether California’s second degree felony-murder rule is constitutionally valid and what statutory basis supports it.
2. Whether shooting at an occupied vehicle (§ 246) merges with homicide under the merger doctrine, making it unavailable as the predicate felony for second degree felony murder.
3. If the felony-murder instruction was erroneous, whether the error was prejudicial.

## Decision

- The court held the second degree felony-murder rule is constitutionally valid because it is grounded in statute, specifically Penal Code § 188’s definition of implied malice.
- The court held all assaultive-type felonies merge with the homicide and cannot support a second degree felony-murder instruction; § 246 is an assaultive-type felony and therefore merges.
- The trial court erred by instructing on second degree felony murder with § 246 as the predicate felony.
- The court held the felony-murder instructional error, considered alone, was not prejudicial and reversed the Court of Appeal’s prejudice ruling.
- The case was remanded for the Court of Appeal to decide whether this error combined with a separate error (not addressed on review) was prejudicial.

## Legal Principles

- California’s second degree felony-murder rule is an interpretation of Penal Code § 188’s implied-malice definition and is therefore statutory in basis and constitutionally valid.
- Under the merger doctrine, an assaultive-type felony cannot serve as the predicate felony for second degree felony murder when the homicide is the killing being tried.
- Whether a felony is assaultive-type for merger purposes is determined by the felony’s elements, not by the particular facts of the case.
- Shooting at an occupied vehicle (§ 246) is assaultive-type because its elements involve a direct threat of violent injury to persons and thus merges with homicide.
- Erroneous instruction on second degree felony murder may be harmless where the record supports conviction on a valid theory of second degree murder, including implied malice.

## Conclusion

The court barred use of § 246 as a predicate for second degree felony murder by treating it as an assaultive-type felony that merges with the homicide, found the felony-murder instruction erroneous but not prejudicial by itself, reversed the Court of Appeal, and remanded for consideration of cumulative prejudice with another asserted trial error.


People v. Chun, 45 Cal. 4th 1172 (Cal. 2009)