THE PEOPLE, Plaintiff and Respondent, v. QUINCY ROBERTSON, Defendant and Appellant, 34 Cal. 4th 156

Opinion GEORGE, C. J. In this case we must determine whether the trial court properly instructed the jury that defendant could be convicted of second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3), or whether the second degree felony-murder rule was inapplicable under the so-called merger doctrine referred to in People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580] (Ireland) and later cases.

For the reasons explained below, we conclude that the merger doctrine did not bar instruction on second degree murder based upon a felony-murder theory. Although the Court of Appeal majority reached a contrary conclusion, it nonetheless affirmed the judgment of conviction, finding harmless any error on the part of the trial court in instructing the jury that it could convict defendant under a second degree felony-murder theory. Because we conclude the trial court did not err in instructing the jury, we affirm the judgment of the Court of Appeal upholding defendant’s conviction.

I Defendant Quincy Robertson was convicted of second degree murder (§ 187) and committing assault with a deadly weapon and by means of force likely to inflict great bodily injury. (§ 245, subd. (a)(1).) The jury found true the following allegations: that defendant personally used a firearm in the commission of these offenses (§§ 1203.06, 12022.5); that, in connection with the murder charge, he intentionally discharged a firearm, proximately causing great bodily injury or death (§ 12022.53, subd. (d)); and that, in connection with the assault charge, he inflicted great bodily injury (§ 12022.7).

The court sentenced defendant to a term of 15 years to life in prison for the murder, with an enhancement of 25 years to life pursuant to

section 12022.53, subdivision (d). The court also sentenced him to a concurrent term of eight years in prison for the assault offense, enhanced by the firearm-use and great-bodily-injury findings. During the evening of December 27, 1998, the victims Kehinde Riley and Ricky Harris, joined by Bradley Gentry and Lamont Benton, imbibed alcohol and used marijuana and cocaine while they went for a drive in Benton’s automobile. At approximately 10:30 p.m., they stopped in front of defendant’s residence on 99th Avenue Court in Oakland.

Riley and Harris approached defendant’s automobile, a Chevrolet Caprice Classic, which was parked in front of defendant’s residence. According to Benton’s testimony at trial, while Gentry and Benton looked on, Riley and Harris began removing the vehicle’s hubcaps, making loud noises in the process. They had removed the passenger side hubcaps and were turning to the driver side hubcaps when defendant emerged onto the porch of his residence.

According to statements subsequently made by defendant to the police, he had been watching television with his wife and children, heard a loud noise and, retrieving a firearm, went outside to investigate. Defendant denied any involvement in the shooting in his initial statement. After gunshot residue was discovered on his right hand, defendant claimed he had fired a weapon earlier in the day to demonstrate its operation for a prospective buyer.

Following further interrogation, defendant explained that upon hearing a sound outside, he looked out and observed three or four men near his automobile, apparently engaged either in dismantling it or stealing it. Defendant recalled that the men looked at him in a threatening manner, and he was uncertain whether they would attempt to enter his residence. In his final statement to the police, defendant claimed that when he emerged from his residence, he held his gun at a 45-degree angle and fired two warning shots. The physical evidence, however, indicated that three shots had been fired.

A bullet hole discovered in the windshield of defendant’s automobile and two other bullet holes found two feet above ground level in a vehicle that was parked across the street tended to disprove defendant’s claim that he had held the gun at a 45-degree angle. Benton testified at trial that immediately following defendant’s discharge of the weapon from the porch, Benton and Gentry drove away, while Riley and Harris attempted to flee on foot. Benton testified he heard from seven to nine additional gunshots as he drove away.

Defendant, claiming he had heard a sound that resembled either a car backfire or the discharge of a firearm, admitted in his final statement to the police that he had walked at least as far as the sidewalk and possibly into the street before firing three shots at the fleeing men. He denied intending that the shots hit the men and claimed that he fired upwards into the air, intending, as he said, to “scare people away from my domain.” He conceded that firing a weapon in a residential neighborhood was dangerous to human life, but said he had not been thinking clearly.

Riley’s body was discovered approximately 50 yards from where gun casings indicated the firearm had been discharged. It appeared the shots had been fired by a person standing in the middle of the street in front of defendant’s residence. Riley had been shot in the back of the head. Harris suffered a gunshot wound to the sole of his right foot.

On the night of the incident, one of defendant’s neighbors heard shots and witnessed a person standing in a “firing stance” in the street, firing shot after shot straight ahead and on each occasion correcting for the weapon’s “kickback.” The neighbor witnessed this person “swagger” back to the apartment complex where defendant resided. One bullet casing was discovered on the porch of defendant’s residence, two additional casings at the bottom of the stairs leading to defendant’s apartment, and seven casings in the middle of the street in front of defendant’s residence.

Based upon the location of the bullet casings found in the street, the physical features of the surrounding neighborhood, and the location at which Riley and Harris were discovered after the shooting, the prosecution’s ballistics expert testified that if the person who fired the weapon had held it at a 45-degree angle, he or she would not have struck the victims. This witness testified that in his opinion, the shooter must have pointed the weapon at the victims. Character witnesses who testified in favor of defendant asserted that he was not a violent person, nor was he prone to anger.

He enjoyed working on cars and was engaged in restoring his Chevrolet Caprice Classic for resale. Defendant’s wife testified that during the time they resided on 99th Avenue Court, at least three of the family’s vehicles had been broken into or vandalized. Defendant’s nephew recounted an episode in which defendant had been the victim of a shooting. The episode occurred six months prior to the charged crimes, following an automobile accident involving this nephew and the driver of another vehicle.

After an argument erupted between the nephew and the other driver and while defendant was attempting to subdue his nephew, someone from the other vehicle fired on them, seriously injuring defendant’s right arm. A clinical psychologist testified in defendant’s behalf, expressing the opinion that defendant suffered from posttraumatic stress syndrome as a result of this and other incidents, that this condition caused defendant to be fearful and easily aroused emotionally, and that defendant likely had acted impulsively, without forethought, when he fired on the victims.

A ballistics expert testified on behalf of defendant, stating that persons lacking experience in shooting firearms tend to shoot in a manner that causes them to strike objects below their intended target. In connection with the homicide charge, the jury was instructed on first degree murder, second degree murder with express malice, second degree murder with implied malice, second degree felony murder based on commission of the crime of discharging a firearm in a grossly negligent manner, and voluntary manslaughter.

The defense argued that, at most, defendant might be liable for voluntary manslaughter on the theory that he acted in the heat of passion or from an honest but unreasonable belief in the need to defend himself. The jury deliberated for three days. At that point, a juror who complained of debilitating stress arising from asserted conflict among the deliberating jurors was excused. The juror was replaced by an alternate, and the jury deliberated for an additional three days prior to rendering its verdict.

Defendant appealed, asserting, among other contentions, that the trial court erred in instructing the jury on second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner, because, under the teaching of Ireland, supra, 70 Cal.2d 522, the latter offense necessarily merged with the homicide.

A majority of the Court of Appeal agreed, but determined that the error was harmless because, in view of the particular instructions given in the present case, the verdict finding defendant guilty of the aggravated assault on Harris also demonstrated that the jury necessarily rejected defendant’s primary argument that when he shot the victims, he merely intended to frighten them away from his residence. The remaining justice concurred in the judgment only, concluding that it was unnecessary for the court to comment on the merger doctrine, because any error was harmless.

II We must determine whether the trial court erred by instructing the jury that defendant could be found guilty of second degree felony murder if the killing was committed in the course of discharging a firearm in a grossly negligent manner in violation of

section 246.3. The resolution of this question requires a brief review of the elements of various homicide offenses, the second degree felony-murder doctrine, and the merger doctrine.

Murder is defined as an unlawful killing committed with malice aforethought. (§ 187, subd. (a).) An unlawful killing with malice aforethought, perpetrated by certain specified means or that is willful, deliberate, and premeditated, constitutes murder in the first degree. (§ 189.) A killing in the course of the commission of certain enumerated felonies also constitutes murder in the first degree. (§ 189.) Second degree murder is an unlawful killing with malice aforethought, but without the elements that elevate an unlawful killing to first degree murder. (§§ 187, subd. (a), 189; People v.

Hansen (1994) 9 Cal.4th 300, 307 [36 Cal.Rptr.2d 609, 885 P.2d 1022] (Hansen).) In addition, an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in

section 189, constitutes at least murder in the second degree. (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].) Malice may be express or implied.

Malice is express “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) It is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.) More specifically, “malice is implied ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ [Citation.]” (People v.

Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666].) An unlawful killing may constitute manslaughter rather than murder even in the presence of intent to kill or conscious disregard for life, however, if the defendant killed in a “sudden quarrel or heat of passion” (§ 192, subd. (a); People v. Lasko, supra, 23 Cal.4th at pp. 108, 110-111) or in an unreasonable but good faith belief in the need to act in self defense. (People v.

Blakeley (2000) 23 Cal.4th 82, 89, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675].) The felony-murder rule eliminates the need for proof of malice in connection with a charge of murder, thereby rendering irrelevant the presence or absence of actual malice, both with regard to first degree felony murder and second degree felony murder. (Hansen, supra, 9 Cal.4th at p. 308; People v.

Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549]; Ireland, supra, 70 Cal.2d at pp. 538, 539.) As we have explained: “Implied malice, for which the second degree felony-murder doctrine acts as a substitute [fn. omitted], has both a physical and a mental component. . . . The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.’ [Citation.] [][] The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component.” (People v.

Patterson, supra, 49 Cal.3d at p. 626, italics omitted.) Because malice has been eliminated as an element, circumstances that may serve to reduce the crime from murder to manslaughter, such as provocation or imperfect self-defense, are not relevant in the case of a felony murder. (People v. Seaton (2001) 26 Cal.4th 598, 665 [110 Cal.Rptr.2d 441, 28 P.3d 175]; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [30 Cal.Rptr.2d 33, 872 P.2d 574]; People v.

Balderas (1985) 41 Cal.3d 144, 197 [222 Cal.Rptr. 184, 711 P.2d 480] [provocation and heat of passion cannot reduce a felony murder to manslaughter, because “ ‘malice,’ the mental state which otherwise distinguishes murder from voluntary manslaughter, is not an element of felony murder”]; People v.

Ford, supra, 60 Cal.2d at p. 795 [unlawful killing in the course of an inherently dangerous felony cannot constitute manslaughter but constitutes at least second degree murder]; Ireland, supra, 70 Cal.2d at p. 539 & fn. 13 [but for the merger doctrine, a second degree felony-murder instruction that correctly stated the law would permit the jury to disregard the defendant’s diminished capacity defense]; People v. Tabios (1998) 67 Cal.App.4th 1, 8-9 [78 Cal.Rptr.2d 753] [claim of imperfect self-defense is irrelevant to the charge of second degree felony murder]; People v.

Anderson (1991) 233 Cal.App.3d 1646, 1666 [285 Cal.Rptr. 523]; People v. Loustaunau (1986) 181 Cal.App.3d 163, 170 [226 Cal.Rptr. 216].) A principal purpose of the felony-murder rule is deterrence. Case law has emphasized the need to deter the commission of felonies that put human life at risk (Hansen, supra, 9 Cal.4th at pp. 310, 311, 314; People v. Satchell (1971) 6 Cal.3d 28, 42-43 [98 Cal.Rptr. 33, 489 P.2d 1361], disapproved on another ground in People v.

Flood (1998) 18 Cal.4th 470 [76 Cal.Rptr.2d 180, 957 P.2d 869]) [the doctrine is intended to deter felonious acts “in which danger to human life is inherent”]; People v. Clem (2000) 78 Cal.App.4th 346, 349 [92 Cal.Rptr.2d 727]), and also the need to deter persons who commit such felonies from committing negligent or accidental killings in the course of these felonies. (Hansen, supra, 9 Cal.4th at pp. 308, 310, 315; People v. Clem, supra, 78 Cal.App.4th at p. 349.) The first degree felony-murder rule is a creation of statute. (§ 189.) The second degree felony-murder rule is a common law doctrine.

In the case of a second degree felony-murder charge, the inherent danger to human life posed by the defendant’s unlawful conduct serves to justify the conclusion that proof of actual malice should not be required. (Hansen, supra, 9 Cal.4th at p. 308; People v. Satchell, supra, 6 Cal.3d at p. 43.) We have explained that “when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life . . . .” (People v.

Patterson, supra, 49 Cal.3d at p. 626.) The second degree felony-murder doctrine is limited to inherently dangerous felonies because, in the absence of such danger, it would be less justifiable to remove the element of malice from the prosecutor’s burden of proof. (Hansen, supra, 9 Cal.4th at p. 308; People v.

Satchell, supra, 6 Cal.3d at p. 43.) “[O]nly felonies ‘inherently dangerous to human life’ are sufficiently indicative of a defendant’s culpable mens rea to warrant application of the felony-murder rule.” (Hansen, supra, 9 Cal.4th at p. 314.) The commission of an inherently dangerous felony indicates that the killing was “tinged with malevolence.” (People v. Burroughs (1984) 35 Cal.3d 824, 832 [201 Cal.Rptr. 319, 678 P.2d 894].) The doctrine is limited to inherently dangerous felonies for the additional reason that the hazard to life presented by such felonies is foreseeable.

When the danger is foreseeable, it is rational to expect a felon to take precautions not to kill accidentally or negligently—or to forgo commission of the hazardous felony altogether. (See Hansen, supra, 9 Cal.4th at pp. 308, 314.) A defendant is unlikely to be deterred if it is not reasonably foreseeable to him or her that “ ‘ “death might arise solely from the fact that he [or she] will commit the felony.” ’ ” (Id. at p. 308.) A felony is considered inherently dangerous to human life when the felony, viewed in the abstract, “by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed” (People v.

Burroughs, supra, 35 Cal.3d at p. 833), or carries a “ ‘high probability’ that death will result.” (People v. Patterson, supra, 49 Cal.3d at p. 627; see also Hansen, supra, 9 Cal.4th at pp. 309, 329 (conc. & dis. opn. of Kennard, J.) [observing that a felony may carry a high probability that death will result even though death may not result in “a majority, or even in a great percentage, of instances”]; People v.

Clem, supra, 78 Cal.App,4th at p. 349 [“ ' “[h]igh probability” ’ in this context does not mean a ‘ “greater than 50 percent” ’ chance”].) In the present case, as we previously noted, the court instructed the jury on first degree murder, second degree murder with express malice, second degree murder with implied malice, second degree felony murder, and voluntary manslaughter.

For the purpose of the second degree felony-murder rule, it instructed that the predicate felony was the discharge of a firearm in a grossly negligent manner, which is defined as follows: “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.” (§ 246.3.)

Section 246.3 was enacted primarily to deter the dangerous practice that exists in some communities of discharging firearms into the air in celebration of festive occasions. (People v. Clem, supra, 78 Cal.App.4th at p. 350; People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540 [16 Cal.Rptr.2d 656] [referring to the crime as constituting a reckless act that endangers the public directly and that also generates the risk of responsive gunfire].)

Section 246.3 requires proof that the defendant intended to discharge the firearm. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437, 1438-1440 [35 Cal.Rptr.2d 155].) A defendant who believed that the firearm he or she discharged was unloaded, for example, would not be guilty of a violation of

section 246.3. (In re Jerry R., at p. 1440.) In addition, there are circumstances in which the discharge of a firearm is not unlawful, even if the act entails a risk of serious harm to other persons. One may be privileged to employ force, including that involved in the discharge of a firearm, in defense of oneself or another or of property, under defined circumstances. One is entitled to use such force as is reasonable under the circumstances to repel what is honestly and reasonably perceived to be a threat of imminent harm. (§§ 197, 198, 692-694; People v.

Minifie (1996) 13 Cal.4th 1055, 1064-1065 [56 Cal.Rptr.2d 133, 920 P.2d 1337]; People v.

Myers (1998) 61 Cal.App.4th 328, 334-335 [71 Cal.Rptr.2d 518]; CALJIC No. 9.03.3 [willful discharge of a firearm is not unlawful if executed in self-defense or defense of another; prosecution must prove discharge is not in lawful self-defense or defense of another]; see also CALJIC Nos. 5.12 [justifiable homicide], 5.13 [same], 5.32 [legitimate use of force in defense of another]; 5.40 [defense of property— ejection of trespasser], 5.42 [resisting intruder], 5.43 [defense of property], 5.44 [presumptions arising from the defendant’s forcible entry into a home].) As for the requirement that the defendant must have discharged the firearm in a “grossly negligent” manner, the term is not defined by the statute, but its usual meaning in the context of establishing criminal liability is “ ‘ “aggravated, culpable, gross, or reckless . . . conduct [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life (People v.

Valdez (2002) 27 Cal.4th 778, 783 [118 Cal.Rptr.2d 3, 42 P.3d 511].) As we have observed, “criminal negligence is the appropriate standard when the act is intrinsically lawful . . . but warrants criminal liability because the surrounding circumstances present a high risk of serious injury. Criminal negligence is not a ‘lesser state of mind’; it is a standard for determining when

an act may be punished under the penal law because it is such a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances.” (Id. at pp. 789-790.) The jury was instructed in the present case: “ ‘Gross negligence’ refers to a negligent act which is aggravated, reckless or flagrant and which is such a departure from the conduct of an 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.” (See CALJIC No. 3.36; see also People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926]; People v. Alonzo, supra, 13 Cal.App.4th at pp. 539-540 [applying this standard to a prosecution for violation of

section 246.3].) Again, gross negligence is not present when the discharge of a firearm is honestly and reasonably undertaken in defense of self or another or of property. The court in People v. Clem, supra, 78 Cal. App.4th 346, concluded that

section 246.3 constitutes an inherently dangerous felony for the purpose of the second degree felony-murder rule (People v. Clem, supra, at pp. 353-354), and defendant does not challenge this conclusion. The appellate court quoted our observation that “ ‘[t]he tragic death of innocent and often random victims ... as the result of the discharge of firearms, has become an alarmingly common occurrence in our society—a phenomenon of enormous concern to the public’ ” (People v.

Clem, supra, 78 Cal.App.4th at p. 351, quoting Hansen, supra, 9 Cal.4th at p. 311.) The court reasoned that the offense is inherently dangerous because it involves discharge of the highly lethal instrumentality of a firearm with gross negligence in a manner that “could result in injury or death to a person” (§ 246.3). It added that “ ‘[i]mminent deadly consequences [are] inherent in the act’ [citation] even if the bullet fortuitously falls so as to injure and not kill.” (People v.

Clem, supra, 78 Cal.App.4th at p. 353.) By its terms, the statute “presupposes that there are people in harm’s way” (id. at p. 351) and that a reasonable person in defendant’s situation would have “reasonable grounds to suspect that people will be endangered.” (Id. at p. 352.) The court concluded that “a killer who violates

section 246.3 ‘is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.’ ” (Id. at p. 353) On appeal, although defendant does not dispute that the grossly negligent discharge of a firearm in violation of

section 246.3 constitutes an inherently dangerous felony for the purpose of the second degree felony-murder rule, he claims that the merger doctrine precludes the use of a violation of

section 246.3 as a predicate offense upon which to base liability for second degree felony murder. The Court of Appeal agreed. The merger doctrine was recognized by this court in Ireland, supra, 70 Cal.2d 522. In that case, we held that the trial court erred in instructing the jury on second degree felony murder based on the crime of assault with a deadly weapon. The defendant’s crime of assault with a deadly weapon merged with a resulting homicide and could not form the basis for an application of the second degree felony-murder rule.

The instructional error was prejudicial because, as we have seen, malice is not an element of second degree felony murder and therefore the felony-murder instruction in the Ireland case permitted the jury to disregard the defendant’s diminished capacity defense. (Id. at p. 539 & fn. 13.) We observed that “[t]o allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as the result of felonious assault—a category which includes the great majority of all homicides.” (Id. at p. 539.) The felony-murder instruction is not proper when the predicate felony is an “integral part of the homicide” and when, under the prosecution’s evidence, it is “included in fact within the offense charged.” (Id. at p. 539, italics omitted.) More recently, in Hansen, supra, 9 Cal.4th 300, we explained that the Ireland rule was intended to avoid elevating every felonious assault that ends in death to second degree murder, a result that 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).” (Hansen, supra, 9 Cal.4th at pp. 311-312.) We concluded in Hansen, however, that such a disfavored result would not follow when a felony-murder verdict is based upon the crime of discharging a weapon at an inhabited dwelling.

We rejected the defendant’s contrary and “unduly expansive view of the scope of the ‘merger’ doctrine.” (Id. at p. 311.) We have cautioned that, traditionally, the merger rule has not been extended to offenses other than assault. (Hansen, supra, 9 Cal.4th at p. 312.) The merger rule is premised upon the concern that 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.” (Id. at p. 314, italics omitted.) In Ireland, we referred to assaults that merge with a homicide because they are an “integral part of’ and “included in fact” within the homicide. (Ireland, supra, 70 Cal.2d at p. 539, italics omitted.) Subsequently, in People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193], we rejected a claim of merger on a different theory.

In Mattison, the defendant was a prison inmate who furnished methyl alcohol to a fellow inmate, causing the latter’s death. We held that the trial court properly instructed on second degree felony murder based on the furnishing offense.

We explained that the merger doctrine does not apply when death results from defendant’s commission of a felony with an independent purpose, that is, when the felony that provides the basis for the felony-murder conviction “was not done with the intent to commit injury which would cause death.” (Id. at p. 185.) We rejected the defendant’s claim that the offense of furnishing poisonous alcohol merged with the resulting homicide; there was no merger, because the felony-murder verdict was based upon defendant’s commission of a felony with a “ ‘collateral and independent felonious design.’ ” (Ibid.) We expressed confidence that our conclusion was consistent with the deterrent purpose of the felony-murder rule, because we envisioned that application of the felony-murder rule would deter commission of the underlying inherently dangerous crime. (Id. at pp. 185, 186.) Although a person who has decided to assault another would not be deterred by the felony-murder rule, we declared, a defendant with some collateral purpose may be deterred.

The knowledge that a murder conviction may follow if an offense such as furnishing a controlled substance or tainted alcohol causes death “ ‘should have some effect on the defendant’s readiness to do the furnishing.’ ” (Id. at p. 185.) In the Mattison case, we concluded that use of the second degree felony-murder rule was appropriate when the purpose of the predicate felony was independent of or collateral to an intent to cause injury that would result in death. (People v.

Mattison, supra, 4 Cal.3d at p. 185.) Although the collateral purpose rationale may have its drawbacks in some situations (Hansen, supra, 9 Cal.4th at p. 315), we believe it provides the most appropriate framework to determine whether, under the facts of the present case, the trial court properly instructed the jury. The defendant’s asserted underlying purpose was to frighten away the young men who were burglarizing his automobile.

According to defendant’s own statements, the discharge of the firearm was undertaken with a purpose collateral to the resulting homicide, rendering the challenged instruction permissible.

As Justice Werdegar pointed out in her concurring opinion in Hansen, a defendant who discharges a firearm at an inhabited dwelling house, for example, has a purpose independent from the commission of a resulting homicide if the defendant claims he or she shot to intimidate, rather than to injure or kill the occupants. (Hansen, supra, 9 Cal.4th at p. 318 (conc. opn. of Werdegar, J.).) As the Court of Appeal majority itself recognized, we have declared that the second degree felony-murder rule is intended to deter both carelessness in the commission of a crime and the commission of the inherently dangerous crime itself. (Hansen, supra, 9 Cal.4th at pp. 310, 311, 314; People v.

Mattison, supra, 4 Cal.3d at p. 185.) We believe that a deterrent purpose is served under the second degree felony-murder rule in the case of a violation of

section 246.3 because, by definition, it must be reasonably foreseeable to such a defendant that the intentional discharge of the firearm could result in injury or death.

In view of the reasonable foreseeability of the risk of injury or death, knowledge that punishment for second degree felony murder may ensue if a death occurs may deter individuals from illegally discharging a firearm—whether they are contemplating doing so in order to celebrate a festive occasion or for some other purpose such as to frighten away persons who do not present what a reasonable person would consider a threat of imminent harm to the defendant.

Of course, if a defendant reasonably discharged a firearm to frighten away a person who did present what a reasonable person would consider to be an imminent threat, the prosecution would not be able to establish a violation of

section 246.3 even if an injury or death resulted, and no felony-murder conviction would ensue.

The Court of Appeal majority questioned the applicability of the collateral purpose rationale when the underlying felony is based upon the defendant’s gross negligence, stating “[t]he ‘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.” The Court of Appeal majority asserted that the deterrent purpose of the felony-murder rule would not be served if a conviction could be based upon a violation of

section 246.3, again because the crime is one involving gross negligence. The Court of Appeal majority stated: “It makes no sense to speak of promoting careful gross negligence.” It does make sense, however, to speak of deterring persons from discharging a firearm in a grossly negligent manner that could result in injury or death. It certainly is possible to encourage the prudent handling of firearms by punishing reckless imprudence in the handling and discharge of such weapons.

The Court of Appeal majority believed that the conclusion it reached had the effect of avoiding absurd results, stating: “If grossly negligent discharge of a firearm does not merge with a resulting homicide, then defendants who say, T didn’t mean to do it’ will in effect be pleading guilty to second degree felony murder in a majority of homicide cases.” Of course, the result predicted by the Court of Appeal majority and by defendant will not occur in any of the many homicide cases in which a firearm is not used.

Nor will it occur when the defendant’s claim that he or she did not intend to kill or injure the victim arises in the context of a defense to the

section 246.3 charge involving the discharge of a firearm with the intent to frighten away an intruder as a reasonable response to an imminent threat to self, others, or property. Nor will it occur if the defendant’s defense to the

section 246.3 charge is that the discharge itself was unintentional. In addition, in making the above statement, the Court of Appeal majority overlooked one of the underlying justifications for the second degree felony-murder rule: when the danger to human life is so foreseeable to reasonable persons that the felony has been designated as one that is inherently dangerous to human life, the very foreseeability of this danger has led courts to conclude that the defendant’s claim that he or she “didn’t mean to do it” should not be heard, once the mental state necessary to the underlying offense has been proved.

As we have stated, “when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life . . . .” (People v.

Patterson, supra, 49 Cal.3d at p. 626.) The Court of Appeal majority added that application of the merger doctrine was necessary in order to avoid the absurd consequence that “[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 [than defendants who claimed T didn’t meant to do it’] of being convicted of the lesser offense of voluntary manslaughter.” The asserted anomaly identified by the Court of Appeal is characteristic of the second degree felony-murder rule in general and is inherent in the doctrine’s premise that it is reasonable to impute malice—or, more precisely, to eliminate consideration of the presence or absence of actual malice— because of the defendant’s commission of an underlying felony that is inherently and foreseeably dangerous. (See Hansen, supra, 9 Cal.4th at p. 308; People v.

Satchell, supra, 6 Cal.3d at p. 43.) Reliance on

section 246.3 as the predicate offense presents no greater anomaly in this regard than such reliance on any other inherently dangerous felony. Defendant urges us to extend the merger doctrine to encompass violations of

section 246.3 on the basis of the language in some of our cases expressing unease with the expansion of the felony-murder rule. (See, e.g., People v. Patterson, supra, 49 Cal.3d at pp. 621, 627.) We decline defendant’s invitation to restrict the felony-murder rule by expanding the merger doctrine in the present case.

The second degree felony-murder rule is well established. (Id. at p. 621 [“The second degree felony-murder doctrine has been a part of California’s criminal law for many decades”].) Although the merger doctrine forestalls the substitution of proof of an assault for proof of malice out of a concern that, in the great majority of homicide cases, such a substitution would enable the second degree felony-murder rule to supersede the requirement of malice, the same concern does not appear under the present circumstances.

We conclude that the merger doctrine does not preclude application of the felony-murder rule under the facts of the present case and that the trial court did not err by instructing the jury concerning the second degree felony-murder rule and the predicate offense of discharging a firearm in a grossly negligent manner. Although we disagree with Court of Appeal majority’s application of the merger doctrine, the Court of Appeal, as already noted, affirmed the judgment of conviction on the ground that any error was harmless.

Because we conclude that the trial court did not err in instructing the jury on the second degree felony-murder rule, we agree with the Court of Appeal’s conclusion that the judgment of conviction should be affirmed. III For the foregoing reasons, the judgment of the Court of Appeal is affirmed. Baxter, J., Chin, J., and Moreno, J., concurred. All further statutory references are to the Penal Code, unless otherwise indicated.

The question whether an offense that may be punished either as a felony or a misdemeanor may serve as the basis for a felony-murder instruction has not been raised in this case. (See People v. Satchell, supra, 6 Cal.3d at p. 35, fn. 13 [it is appropriate to rely upon such a predicate offense in a second degree felony-murder prosecution]; see also People v. Clem, supra, 78 Cal.App.4th at p. 350, fn. 2.)