Merger Doctrine Not Applicable to First Degree Felony Murder
September 12th, 2022

In People v. Ireland (1969) 70 Cal.2d 522 the CSC held that “the crime of assault with a deadly weapon cannot be used as the sole predicate crime for a second degree felony-murder conviction because, when a firearm is used in a killing, such an assault is “an integral part of the homicide.” In People v. Powell (2018) 5 Cal.5th 921, 941-42 the defendant contended that the Ireland holding — which has come to be known as the “merger doctrine” — should preclude a verdict of first degree murder in the course of the crimes of mayhem or torture because the commission of these crimes was an integral part of his heat of passion killing.

The CSC rejected this contention.

In two post-Ireland decisions the merger doctrine was extended to preclude convictions for first degree felony murder premised on a killing during the course of a burglary when the intended felony underlying the burglary was the assault that led to the homicide. (People v. Sears (1970) 2 Cal.3d 180, 188-189 and People v. Wilson (1969) 1 Cal.3d 431, 440 [precluding application of the felony-murder rule when “the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide”].) Although second degree felony murder is grounded in an interpretation of PC 188, no statute specifically addresses second degree felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1182-1183.) In contrast, first degree felony murder, along with the predicate crimes underlying it, is expressly described in PC 189. Citing this distinction, People v. Farley (2009) 46 Cal.4th 1053 reconsidered and disapproved the extension of the merger doctrine to first degree felony murder.

Accordingly, the merger doctrine is inapplicable to first degree murder including torture murder and murder during the commission of mayhem. (People v. Powell, supra, at 942-43.)

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