Can a jury still convict a defendant of second degree second-degree murder if he shot his wife while committing an assault with a deadly weapon?

At issue here is the "merger" exception to the second degree felony-murder rule.⁷ That exception was first articulated by this court in People v. Ireland, supra, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580. In that case, the defendant shot and killed his wife. The couple's six-year-old daughter testified that just before the shooting her parents were talking about which of them was going to move out, and that after her father shot her mother he sat down, rocking back and forth and crying, until the neighbors arrived. At the defendant's murder trial, the trial court instructed the jury that if the defendant killed his wife while committing an assault with a deadly weapon he was guilty of second degree murder; the jury convicted the defendant of that crime.

We reversed the defendant's conviction, explaining: "We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule `beyond any rational function that it is designed to serve.' [Citation.] To 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 a result of a felonious assaulta 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

[17 Cal.Rptr.3d 623]

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." (People v. Ireland, supra, 70 Cal.2d at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580, fn. omitted.)

[17 Cal.Rptr.3d 623]