- Guy took their $40 to buy crystal meth. Defendants fire gun at apartment from car, one bullet kills a 13-year old living in apartment. Charged and convicted of 2nd-degree felony murder and of discharging a firearm at an inhabited dwelling (dwelling that could be inhabited).
- Inherently dangerous?
- Can look to abstract (a list of crimes): minority view, incl. CA
- Or to actual situation (easier, since someone actually did die): majority view, prosecution can choose abstract OR applied.
- Can merge two crimes together so that the punishment you get is for one of the crimes (also comes in for double jeopardy, but that's not what we're dealing with here).
- Here it's special meaning is that the merger crime disqualifies assault as a basis for felony murder.
- If it were allowed, then all lesser homicide crimes would disappear
- It would ALWAYS be 2nd-degree murder.
- Did discharge of firearm offense "merge" with the resulting homicide?
- NO, doesn't merge.
Hypothetical
- I enter a building with intent to beat up, perhaps kill, the inhabitant (strangle them!), person dies as I beat them.
- What crime have I committed besides the killing? BURGLARY!
- If burglary due to assault, should be merged.
- Majority say burglary doesn't merge if its an assault.
- "Disqualify" the felony might be a better term than merge.
