P. v .Lozano

Filed 9/7/07 P. v .Lozano CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Bernardino County, Douglas M. Elwell, Judge. Reversed in part; affirmed in part.

Antonio Tony Lozano was convicted of second degree murder arising from the death of Richard Johnson and other related offenses arising from an assault on Robert Pope. Various allegations were found true, including that Lozano discharged a firearm that caused great bodily injury or death within the meaning of Penal Code^[1]section 12022.53, subdivision (d). Lozano was sentenced to a prison term of 42 years and 4 months to life. He appeals, arguing the crime of second degree felony murder does not exist, firing at an unoccupied vehicle is not an inherently dangerous felony and cannot support a finding of second degree felony murder and his conviction for discharging a firearm from a motor vehicle must be reversed because it is necessarily included in his conviction for discharging a firearm from a vehicle at another person.

FACTS

A. Prosecution Case

Richard Johnson and Robert Pope both had tattoos that read "Rebellious." The word "Renaissance" was written on Johnson's car. Renaissance and Rebellious were loose-knit gangs that sponsored rave parties and committed violent acts. A violent rivalry existed between those groups and another similar organization, Asylum.

On the evening of May 7, 2001, Johnson and Danny Telliz, the leader of Asylum, exchanged unfriendly telephone calls. Johnson and Pope drove to Telliz's house. Finding no one there, they returned to Johnson's house. As the two got out of the car and walked away, a vehicle occupied by appellant and two other men, all members of Asylum, drove by. Appellant fired three shots from a rifle. Johnson was hit in the head and died. Pope was not injured. Investigation revealed a bullet hit a tree in front of the house and another hit Johnson's car.

Appellant admitted to police he fired the shots that killed Johnson. He stated he intended to frighten Johnson and Pope and that while he saw persons at the front of the house, he did not aim the rifle at them. Appellant stated he fired generally at Johnson's car.

B. Defense Case

Appellant testified he did not intend to shoot anyone. He meant to frighten Johnson and Pope by firing at Johnson's parked vehicle.

DISCUSSION

A. Second Degree Felony Murder

Among other theories, the jury was instructed it could convict appellant of second degree murder based on the felony-murder rule. Appellant argues, however, that a conviction of second degree murder cannot be based on the fact a homicide occurred during the commission of a felony because properly interpreted the law of California does not recognize such a theory of murder. In any case, he argues conviction based on the second degree felony-murder rules denies him his federal constitutional right to due process.

Appellant notes section 187, subdivision (a), states: "Murder is the unlawful killing of human being . . . with malice aforethought." Section 188 states that such malice is express or implied. It is express when there is a deliberate intention unlawfully to kill a human being. It is implied when it is without adequate provocation or when the killing shows "an abandoned and malignant heart."

Appellant notes section 189 divides murder into degrees. It is first degree murder when perpetrated, for example, by means of poison, lying in wait, torture or by another kind of willful, deliberate and premeditated killing. A murder is also of the first degree when it is committed in the perpetration or attempted perpetration of certain listed serious felonies. Murder is also of the first degree when perpetrated by certain listed specified means or under certain listed specified circumstances.

Section 189 states that all other kinds of murder are of the second degree. ( 189.)

Finally, appellant observes that section 6, which has remained unchanged since its enactment in 1872, states in relevant part: "No act or omission, commenced after . . . the day on which this Code takes effect as a law, is criminal . . . , except as prescribed or authorized by this Code." This means there are no common law crimes in California. (People v, Heitzman (1994) 9 Cal.4th 189, 212, fn. 19; People v. Apodaca (1978) 76 Cal.App.3d 479, 491.)

1. Contentions

As appellant observes, nothing in the Penal Code expressly creates a crime of second degree felony murder, i.e., murder committed in the perpetration or attempted perpetration of felonies, other than those listed in section 189. Based on that statutory omission, he argues that pursuant to section 6, and this state's doctrine of separation of governmental powers (Cal. Const., art. III,  3), no crime of second degree felony murder exists in California. He also argues the concept of second degree felony murder is bad policy and should be abandoned.

Appellant additionally notes his federal constitutional right to due process requires the state prove every element of the charged offense. He notes murder is statutorily defined as a killing with malice aforethought. He contends, however, felony murder relieves the state from the need to prove malice aforethought. (See e.g., People v. Robertson (2004) 34 Cal.4th 156, 165.) He argues, therefore, he is denied due process because while the statutory law of California requires proof of malice aforethought to convict him of murder, the theory of second degree murder eliminates the need for such proof.

Appellant argues that because the second degree felony murder theory is legally insufficient and because it is impossible to determine whether the jury convicted him on that theory or a proper theory, his conviction of second degree murder must be reversed. (See People v. Guiton (1993) 4 Cal.4th 1116, 1128.)

2. Background

The jury was instructed concerning one form of first degree murder, i.e., murder perpetrated by means of discharging a firearm from a vehicle with the intent to inflict death. The jury was instructed concerning the allegation that during the commission of the offense appellant discharged a firearm causing death within the meaning of section 12022.53, subdivision (d). The jury was also instructed concerning the allegation that the murder was committed with the special circumstance the murder was intentional and perpetrated by discharging a firearm from a vehicle at a person outside the vehicle with the intent to kill that person within the meaning of section 190.2, subdivision (a)(21).^[2]

The jury was further instructed concerning second degree implied malice murder. The jury was instructed as well concerning second degree felony murder in the terms of CALJIC No. 8.32. The jury was told the unlawful killing of a human being, whether

intentional, unintentional or accidental occurring during the commission or attempted commission of the crimes of assault with a firearm, willfully discharging a firearm in grossly negligent manner that could result in injury or death or willfully discharging a firearm at an unoccupied motor vehicle was murder in the second degree.

In discussing second degree murder during argument, the prosecutor emphasized the crime of firing at an unoccupied vehicle as a basis for a verdict of second degree felony murder. Defense counsel argued, apparently based on appellant's admission he intentionally fired at Johnson's car, that appellant was guilty of second degree felony murder.

As to Johnson, appellant was found guilty of murder in the second degree, the special circumstances allegation was found untrue and the section 12022.53, subdivision (d), firearm discharge allegation was found true. As to Pope, appellant was found not guilty of attempted murder but guilty of various lesser included offenses.

3. Discussion

As to appellant's contention the crime of second degree felony murder does not exist in this state, we note our Supreme Court has over a century repeatedly affirmed the existence and constitutionality of the crime of second degree felony murder. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 995, fn. 3; People v. Howard (2005) 34 Cal.4th 1129, 1135-1136; People v. Patterson (1989) 49 Cal.3d 615, 620; People v. Wright (1914) 167 Cal. 1, 5; People v. Olsen (1889) 80 Cal. 122, 126.)

In People v. Phillips (1966) 64 Cal.2d 574, 582, the court stated: "Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law."

In People v. Patterson, supra, 49 Cal.3d at page 621, the court, after noting judicial and academic dissatisfaction with the concept of felony murder, stated: "The Legislature, however, has taken no action to alter this judicially created rule, and has declined our more recent suggestion in People v. Dillon (1983) 34 Cal. 3d 441, 472, footnote 19, that it reconsider the rules on first and second degree felony murder and misdemeanor manslaughter. In this case, our limited purpose in granting the People's petition for review was to determine the applicability of the second degree felony-murder doctrine to the crime of furnishing cocaine. We decline defendant's invitation that we determine the continued vitality of the rule. [Citation.]"

Given the above, we conclude second degree felony murder is a viable legal concept. (People v. Landry (1989) 212 Cal.App.3d 1428, 1434.)^[3]

Neither is there merit to appellant's contention he was denied due process because the theory of second degree felony murder relieves the prosecution of the need to prove an element of the offense, i.e., malice aforethought. Malice aforethought is not an element of either first or second degree felony murder. (People v. Rios (2000) 23 Cal.4th 450, 460, fn. 6.)

B. Underlying Felonies

Appellant argues that regardless of the viability of the concept of second degree felony murder, his conviction of second degree murder must be reversed. He notes the jury was instructed concerning implied malice and second degree felony murder. As to felony murder, the jury was told appellant was guilty of second degree murder if the homicide occurred during the commission or attempted commission of the crimes of assault with a firearm, willfully discharging a firearm in a grossly negligent manner that could result in injury or death, or willfully discharging a firearm at an unoccupied motor vehicle. He argues two of those felonies cannot support a finding of felony murder. He urges that assault with a firearm cannot because that offense "merges" with the murder and discharging a firearm at an unoccupied vehicle cannot because it is not an inherently dangerous felony.

Appellant argues because it is possible the jury convicted him of murder based on the second degree felony murder rule and because it cannot be determined on which felony, a proper or improper one, the jury relied, his conviction of second degree murder must be reversed. (See People v. Guiton, supra, 4 Cal.4th at p. 1128.)

Whether under the facts of this case firing at an unoccupied vehicle is an inherently dangerous felony that can serve as the predicate offense for a finding of second degree felony murder and whether the assault with a deadly weapon committed here merges with the murder and, thus, cannot serve as the predicate offense, are complex questions.

2. Firing at an Unoccupied Vehicle

The jury was instructed it could find appellant guilty of second degree murder if an unlawful killing of a human being occurred during his commission or attempted commission of the crime of discharging a firearm at an unoccupied motor vehicle. ( 247, subd. (b).) Appellant argues such an instruction was error because the crime is not inherently dangerous.

a. Inherent Dangerousness

A felony will not support conviction of second degree felony murder unless it is inherently dangerous to human life. In deciding whether a felony is inherently dangerous, courts look to the element of the offense in the abstract and not to the defendant's conduct in a specific case. The task is to determine whether by its very nature a particular felony cannot be committed without creating a substantial risk that someone will be killed. (People v. Howard, supra, 34 Cal.4th at pp. 1135-1136.) In other words, the commission of the felony must carry a high probability that a death will result. (People v. Schaefer (2004) 118 Cal.App.4th 893, 900.)

"Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177), arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163; but see People v. Henderson (1977) 19 Cal.3d 86, 96), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169 [quoting Clem with approval]), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646.)

"Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41); possession of a sawed-off shotgun (id. at pp. 41-43); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229.)" (People v. Howard, supra, 34 Cal.4th at p. 1136.)

Section 246 makes it a "wobbler," i.e., an offense that can be punished as a felony or misdemeanor, to discharge a firearm at an "inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar . . . or inhabited camper. . . ." As a felony the offense is punishable by a term of 3, 5 or 7 years in the state prison. The section defines "inhabited" to mean "currently being used for dwelling purposes, whether occupied or not."

Section 247, the offense in question in this case, makes it a felony to discharge a firearm at an unoccupied aircraft. ( 247, subd. (a).) The section makes it a wobbler to discharge a firearm at an "unoccupied motor vehicle or an uninhabited building or dwelling house." As a felony the offense is punishable by a term of 16 months, 2 or 3 years in the state prison. ( 18, 247, subds. (a), (b).)

In People v. Hansen, supra, 9 Cal.4th 300, the court concluded that discharging a firearm at an inhabited dwelling in violation of section 246 is an inherently dangerous felony and will support a conviction of second degree felony murder. The court noted an inhabited dwelling is one in which persons reside and where occupants are generally in or around the premises. In firing at such a structure, there is always a significant likelihood an occupant may be present. (Id. at pp. 309-310.)

The court stated: "Although it is true that a defendant may be guilty of this felony even if, at the time of the shooting, the residents of the inhabited dwelling happen to be absent [citation], the offense nonetheless is one that, viewed in the abstract−as shooting at a structure that currently is used for dwelling purposes−poses a great risk or 'high probability' of death . . . . The nature of the other acts proscribed by section 246 reinforces the conclusion that the Legislature viewed the offense of discharging a firearm at an inhabited dwelling as posing a risk of death comparable to that involved in shooting at an occupied building or motor vehicle." (People v. Hansen, supra, 9 Cal.4th at p. 310.)

The court additionally noted that application of the second degree felony-murder rule to a violation of section 246 serves the policy rationale of the felony-murder rule, i.e., the deterrence of negligent or accidental killings in the commission of dangerous felonies. The court observed that deaths as the result of the discharge of firearms is endemic. The court stated: "By providing notice to persons inclined to willfully discharge a firearm at an inhabited dwelling−even to those individuals who would do so merely to frighten or intimidate the occupants . . . âˆ’that such persons will be guilty of murder should their conduct result in the all-to-likely fatal injury to another, the felony-murder rule may serve to deter this type of reprehensible conduct" (People v. Hansen, supra, 9 Cal.4th at pp. 310-311.)

In People v. Tabios (1998) 67 Cal.App.4th 1 the court concluded that discharging a firearm at an occupied vehicle is an inherently dangerous felony and can support a conviction of second degree felony murder. Looking to Hansen, the court concluded: "As the Supreme Court implicitly recognized, shooting at an occupied motor vehicle involves a clear danger to human life. Defendants contend shots may be fired at portions of the car, such as the wheels, in a manner that presents no risk to the car's occupants. Unlike defendants, we are unwilling to ascribe such a high level of marksmanship to someone who fires a gun at an occupied vehicle. Shots fired at an occupied vehicle pose a self-evident risk to human life. In fact, given the smaller spaces involved, this danger is arguably even greater than that posed by random firing into an inhabited dwelling, where the occupants might not be present." (Id. at p. 10.)

b. Discussion

The courts have held that firing at inhabited dwellings and occupied vehicles is inherently dangerous. That inherent dangerousness arises from the lethal nature of firearms, the range over which they can kill, the unpredictability path of their projectiles and the high probability that persons will be in or about habitations and vehicles. While the issue of whether firing at an unoccupied vehicle is inherently dangerous is arguable, we need not address it here.

We need not reach the issue in this case because even if the trial court erred, we conclude in section 4, infra, that given the jury findings there was no prejudice to appellant.

3. Assault with a Firearm

Appellant argues the trial court erred in instructing that assault with a firearm could serve as the underlying felony for conviction of murder based on the second degree felony murder rule. He contends doing so was a violation of the "merger" doctrine first announced in People v. Ireland (1969) 70 Cal.2d 522, 539.

a. Law

In Ireland the defendant shot and killed his wife with a gun. He was convicted of second degree murder. One theory offered the jury was second degree felony murder with assault with a deadly weapon as the predicate crime. The court noted the felony-murder rule relieves the prosecution of the need to prove malice aforethought. It concluded the use of the felony-murder rule with a felonious assault as the underlying felony irrationally extends the rule beyond its legitimate function. The vice is that allowing an assault to serve as the predicate felony effectively eliminates malice aforethought as an element of second degree murder. This is so because most murders result from felonious assaults, can be prosecuted on a second degree felony-murder rule theory, thus, eliminating the need to prove malice aforethought. (People v. Ireland, supra, 70 Cal.2d at pp. 538-539.)

As the court summed up: "We therefore hold that a second degree felony-murder instruction may not properly be given when it is based on 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." (People v. Ireland, supra, 70 Cal.2d at p. 539, fn. omitted.)

In People v. Mattison (1971) 4 Cal.3d 177 the court added a wrinkle to the merger doctrine. In that case the defendant, a prison inmate, sold another inmate methyl alcohol, a poison. The defendant did so not to kill but rather for financial gain. The victim died after drinking the substance. The defendant was convicted of second degree murder. One theory supporting that conviction was felony murder based on the predicate offense of mixing a poison with food or drink with the intent it be taken by a human being to his injury in violation of section 347. (Id. at pp. 180-181, 184.)

The court rejected the defendant's argument the merger doctrine precluded conviction of second degree murder based on a felony-murder theory. The court noted the merger doctrine existed because without it malice aforethought would be eliminated as an element in a large number of murder cases. The court concluded, however, this rationale did not apply when the commission of the underlying felony was done not with the intent to commit injury but was done with a "'collateral and independent felonious design,'" (People v. Mattison, supra, 4 Cal.3d at p. 185), e.g., financial gain. The situation was, thus, different than in Ireland where the purpose of the defendant's conduct was simply the assault that resulted in the homicide. (Ibid.; see also People v. Burton (1971) 6 Cal.3d 375, 387.) The court concluded in such a situation the second degree felony murder rule was legitimately applied because it served as a deterrent to those contemplating furnishing adulterated food or drink. (People v. Mattison, supra, 4 Cal.3d at p. 185.)

In People v Hansen, supra, 9 Cal.4th 300 the court refined the test for when the merger rule precludes the use of a felony to support conviction on a second degree felony-murder rule theory. In Hansen the defendant was found guilty of discharging a firearm at an inhabited dwelling in violation of section 246. After finding the crime was inherently dangerous and thus potentially could serve as the predicate felony for a conviction of second degree felony murder, the court considered whether such a conviction would be precluded by the merger doctrine. (Id. at pp. 309-311.)

While apparently not rejecting the "collateral and independent felonious design" test used in Mattison, the court found that test was "somewhat artificial." The court observed: "Under such a test, a felon who acts with the 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." (People v Hansen, supra, 9 Cal.4th at p. 315.)

The court stated the better approach was to review a particular felony in light of the underlying policy of the merger rule, i.e., to avoid the common law theory of second degree felony murder negating, in most instances, the statutory requirement that murder be based on a finding of malice aforethought. The court noted that when the predicate felony is not assault but rather a felony such as furnishing a narcotic, the statutory requirement for malice aforethought is not subverted "because 'this is simply not a situation where the Legislature has demanded a showing of actual malice as distinguished from malice implied by law by way of the felony-murder rule.' [Citation.]" (People v Hansen, supra, 9 Cal.4th at p. 314.)

Applying that approach to the crime of discharging a firearm at an inhabited dwelling, the court in Hansen concluded the merger doctrine did not foreclose its use as the predicate felony for a conviction of second degree felony murder. It stated using that offense to support a conviction of felony murder would not tend to eliminate malice aforethought as an element in most murders. The court stated using the crime of discharging a firearm at an inhabited dwelling as the predicate felony for a conviction of second degree felony murder "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.)

Ten years later the court faced a more complicated application of the merger rule in People v. Robertson, supra, 34 Cal.4th 156. In Robertson the predicate felony for a conviction of second degree felony murder was discharging a firearm in a grossly negligent manner in violation of section 246.3. In that case the defendant, armed with a gun, discovered four men burglarizing his car. The defendant gave the police various accounts of what then occurred. Eventually, he stated he fired two shots to frighten the men and then three more at the men as they fled. The defendant denied intending to hit the men and claimed he meant only to scare them. (Id. at pp. 161-162.)

The court noted section 246.3 makes it unlawful to discharge a firearm in a grossly negligent manner that could result in injury or death to a person. The section was enacted to deter the dangerous discharge of firearms during festive occasions. The court concluded the offense was inherently dangerous. The question in Robertson was whether section 246.3 merged with a resulting homicide such that it could not serve as the predicate felony for a conviction of second degree felony murder. (People v. Robertson, supra, 34 Cal.4th at pp. 169-171.)

The court began by noting that traditionally the merger doctrine has not been extended to offenses other than assault. While noting, as it had in Hansen, the collateral purpose rationale for not extending the merger doctrine to the commission of some felonies had drawbacks, it nonetheless considered it an appropriate framework to determine whether the merger doctrine applied in the case involving a violation of section 246.3. (People v. Robertson, supra, 34 Cal.4th at p. 171.)

The court noted the defendant's stated purpose was to fire his gun to frighten away the men burglarizing his car. The court stated the defendant's own testimony demonstrated he had a purpose collateral to the homicide for firing his gun and, thus, under the facts of the Robertson case, it was appropriate and not a violation of the merger rule to use a violation of section 246.3 as a predicate felony supporting the conviction of second degree felony murder. (People v. Robertson, supra, 34 Cal.4th at pp. 171-172.)

The court stated that so understood, allowing section 246.3 to be used as a predicate felony for a finding of second degree felony murder had a deterrent effect. It stated the reasonable foreseeability of a risk of injury or death was an element of section 246.3. It concluded knowledge that punishment for second degree murder could ensue from a violation of section 246.3, could deter individuals from illegally discharging a firearm either in celebration or, like the situation in Robertson, to frighten. (People v. Robertson, supra, 34 Cal.4th at pp. 171-172.)

A year after Robertson, our Supreme Court in People v. Randle, supra, 35 Cal.4th 987 again discussed the interplay of the second degree felony-murder rule, the merger doctrine and the crime of discharging a firearm in a grossly negligent manner in violation of section 246.3.

In Randle the defendant and an accomplice were burglarizing a car. Caught in the act, they fled and were pursued. The defendant shot and killed one of the pursuers as the man beat his accomplice. The defendant admitted firing at the victim. The defendant was charged with murder. Among other theories, the jury was instructed the defendant could be convicted of second degree felony murder with section 246.3 as the predicate crime. The court concluded under the facts in Randle that instruction was improper as violative of the merger rule. (People v. Randle, supra, 35 Cal.4th at pp. 991-992, 1004-1005.)

The court noted in Robertson it held under the facts of that case a conviction of second degree felony murder based on the discharge of a firearm in a grossly negligent manner within the meaning of section 246.3 did not violate the merger doctrine. Randle distinguished Robertson by noting in that case the defendant stated he fired into the air to frighten the victim, while in Randle the defendant admitted firing at the victim. The court stated: "The fact that defendant admitted shooting at [the victim] distinguishes Robertson and supports application of the merger rule here. Defendant's claim that he shot [the victim] in order to rescue [his accomplice] simply provided a motive for the shooting; it was not a purpose independent of the shooting." (People v. Randle, supra, 35 Cal.4th at p. 1005.)

b. Discussion

In one sense the answer to whether instructing the jury that a conviction of second degree felony murder can be based on assault with a firearm is error as a violation of the merger is simple. The assault in Ireland after all was an assault with a firearm.

In another sense, however, the answer is not so easy. The issue rests at the confluence of three difficult legal problems, i.e., the second degree felony-murder rule, the merger doctrine and the definition of the crime of assault. After the decisions in Mattison, Hansen, Robertson and Randle, we are constrained to ask whether some assaults trigger the merger rule while others do not.

While a precise all-encompassing definition of assault is difficult (see People v. Williams (2001) 26 Cal.4th 779, dissenting opinion of Kennard, J., at pp. 791-797), our Supreme Court has explained it this way: "[W]e hold that assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) As the court explains, this means a defendant may be guilty of assault even though he honestly believes his act was not likely to result in a battery as long as a reasonable person, viewing the facts known to the defendant, would conclude the act would directly, naturally and probably result in a battery. (Id. at p. 788, fn. 3.)

In the present case appellant stated he did not fire his gun intending to hit anyone. He fired the gun rather to frighten his rivals. This is not a defense to assault with a firearm because the actor's subjective intent is ultimately irrelevant. Still, we are faced with multiple questions. The heart of the issue is whether appellant's intent was "a 'collateral and independent felonious design' " (People v. Mattison, supra, 4 Cal.3d at p. 185) within the meaning of Mattison, Robertson and Randle, and, with regard to the merger rule, whether we should treat appellant differently than the defendant in Robertson. Both discharged firearms, they claimed, not to injure but to frighten. For the purposes of the merger rule, we must ask whether we should treat those who commit assault with the intent to batter differently from those who commit assault with no such intent. Additional questions involve whether the felony-murder rule serves a useful deterrent function as to the latter even if it does not as to the former and whether applying the Robertson rationale to the present situation tends to eliminate malice aforethought.

Given the jury findings in this case we conclude it is unnecessary we resolve the issue raised by appellant.

4. Prejudice

Assuming for the sake of argument that the trial court erred in instructing that firing at an unoccupied vehicle and assault with a deadly weapon could serve as the predicate offenses for a finding of second degree murder, we conclude that error was harmless.

When a jury is presented some legal theories which can properly support conviction and some that cannot, reversal generally is required unless "'it is possible to determine from other portions of the verdict that the jury necessarily found the defendant guilty on a proper theory.'" (People v. Perez (2005) 35 Cal.4th 1219, 1233.)

The verdicts as to the murder of Johnson are simple and unilluminating. Appellant was found guilty of murder. The jury found untrue the allegation the murder was intentional and resulted from the discharge of a firearm from a vehicle with the intent to inflict death within the meaning of section 190.2, subdivision (a)(21). The jury found true the allegation of a firearm discharge causing great bodily injury and death within the meaning of section 12022.53, subdivision (d).

The verdicts returned as to the charged attempted murder of Robert Pope are more extensive and more useful. The jury found appellant not guilty of attempted murder but found him guilty of a series of lesser included offenses, including the grossly negligent discharge of a firearm that could result in injury or death in violation of section 246.3, firing at an unoccupied vehicle in violation of section 247, subdivision (b), and assault with a firearm in violation of section 245, subdivision (a)(2).

Except that Johnson was hit by a bullet and died, while Pope was uninjured, there is nothing to distinguish appellant's conduct with regard to Johnson from his conduct with regard to Pope. Both men were appellant's rivals, both had just gotten out of Johnson's car and were walking toward the house. There is no evidence appellant's shots were directed at Johnson and not Pope. That being the case, the jury's verdicts concerning the attack on Pope necessarily reveals its conclusions with regard to Johnson.

The jury concluded appellant assaulted the men with a firearm, fired at an unoccupied vehicle and discharged a firearm with gross negligence such that injury or death could result within the meaning of section 246.3.

The jury was told the unlawful killing of a person, whether intended or accidental, that occurred during the commission of any of those crimes was murder of the second degree when the perpetrator had the specific intent to commit that underlying crime.

There was no contention and no evidence appellant acted without the specific intent to commit those predicate offenses. Since we know the jury found appellant committed the offense of discharging a firearm with gross negligence within the meaning of section 246.3, and that offense supports a finding of second degree felony murder, any error in instructing commission of the other two cited offenses could also support that finding was harmless.

C. Lesser Included Offense

Appellant notes he was convicted of both discharging a firearm from a motor vehicle and discharging a firearm from a vehicle at another person. He argues and respondent agrees that because the former is a necessarily lesser included offense of the latter, he could not properly be convicted of both. (People v. Ortega (1998) 19 Cal.4th 686, 692.) We agree. Appellant's conviction for discharging a firearm from a vehicle (count 5) is reversed.

Appellant's conviction in count 5 is reversed; in all other respects the judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

McINTYRE, J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] The prosecutor did not seek the death penalty but rather life imprisonment without the possibility of parole. (See  190.5, subd. (b).)

^[3] In her dissenting opinion in People v. Robertson, supra, 34 Cal.4th at page 191, Justice Brown concluded for several reasons, including the second degree felony-murder rule was a usurpation of legislation authority and a violation of section 6, that it should be abolished.