If the defendant actually believed that the firearm he or she discharged was unloaded, the defendant has not violated this statute. (People v. Robertson (2004) 34 Cal. 4th 156.) However, Robertson was overruled in People v. Chun (2009) 45 Cal. 4th 1172, as follows:
To avoid the anomaly of putting a person who merely intends to frighten the victim in a worse legal position than the person who actually intended to shoot at the victim, and the difficult question of whether and how the jury should decide questions of merger, we need to reconsider our holdings in Robertson, supra, 34 Cal. 4th 156, and Randle, supra, 35 Cal. 4th 987. When the underlying felony is assaultive in nature, such as a violation of section 246 or 246.3, we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction. An “assaultive” felony is one that involves a threat of immediate violent injury. (See People v. Chance (2008) 44 Cal. 4th 1164, 1167-1168 [81 Cal.Rptr.3d 723].) In determining whether a crime merges, the court looks to its elements and not the facts of the case. Accordingly, if the elements of the crime have an assaultive aspect, the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. For example, in People v. Smith, supra, 35 Cal.3d at page 806, the court noted that child abuse under section 273a “includes both active and passive conduct, i.e., child abuse by direct assault and child endangering by extreme neglect.” Looking to the facts before it, the court decided the offense was “of the assaultive variety,” and therefore merged. (Smith, supra, 35 Cal.3d at pp. 806-807.) It reserved the question whether the nonassaultive variety would merge. (Id. at p. 808, fn. 7.) Under the approach we now adopt, both varieties would merge. This approach both avoids the necessity of consulting facts that might be disputed and extends the protection of the merger doctrine to the potentially less culpable defendant whose conduct is not assaultive.