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People v. Robertson6/30/2003
CERTIFIED FOR PARTIAL PUBLICATION
Appellant Quincy Robertson was convicted by a jury of the second degree murder of Kehinde Riley (Pen. Code, § 187), and assault of Rickey Harris with infliction of great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a)), and was found to have personally used a firearm in the commission of these offenses (Pen. Code, §§ 1203.06, 12022.5, 12022.53, subd. (d)). He was sentenced to 40 years to life in prison, representing 15 years to life for the murder, plus 25 years to life for the firearm enhancement of the murder conviction, with a concurrent sentence of 8 years for the assault and related enhancements. The principal issue on appeal is whether the court erred in instructing the jury that it could convict appellant of second degree murder on a felony murder theory based on his commission of the offense of grossly negligent discharge of a firearm (Pen. Code, § 246.3).
In order for a felony to serve as a predicate offense for a charge of felony murder, the felony must be inherently dangerous to human life, and it must not "merge" with the resulting homicide under the merger doctrine applied in People v. Ireland (1969) 70 Cal.2d 522 and subsequent cases. (See People v. Hansen (1994) 9 Cal.4th 300, 308-316.) In People v. Clem (2000) 78 Cal.App.4th 346, 348, we held that grossly negligent discharge of a firearm is an inherently dangerous felony for purposes of the felony-murder rule. Here, we must determine whether the merger doctrine prevents this crime from serving as a predicate offense for felony murder, notwithstanding its inherent danger.
In the published portion of this opinion we hold, under the standards for merger set forth in People v. Hansen, supra, that grossly negligent discharge of a firearm is an offense that merges with a resulting homicide, and thus cannot serve as a predicate for felony murder. However, while it was error to instruct the jury that it could convict appellant of second degree felony murder based on commission of this offense, we conclude that the error was harmless in this case. In the unpublished portion of the discussion, we conclude that appellant was not prejudiced by the court's failure to instruct on involuntary manslaughter, and that the court did not err in allowing appellant's custodial statements into evidence. We therefore affirm the judgment.
I. BACKGROUND
The incident occurred around 10:30 p.m. on December 27, 1998, in 99th Avenue Court, off 99th Avenue, in Oakland. The victims, Kehinde Riley and Rickey Harris aka Rickey Baker, were riding around with Bradley Gentry in a car driven by Lamont Benton, drinking wine, smoking marijuana, and snorting cocaine. They pulled into 99th Avenue Court following two women in another car; Benton hoped to get the driver's phone number. After Benton spoke to the driver and the women drove away, Benton got back in his car, and Riley and Harris went over to appellant's Chevrolet Caprice Classic, which was parked in front of his apartment in the court, and began stealing its hubcaps. Gentry testified that he stood next to Benton's car and watched Riley and Harris take the hubcaps off the tires on the passenger side of the Chevy, load them in the backseat of Benton's car, and return to the driver's side of the Chevy.
Gentry recalled that it was very quiet in the court, and that the hubcaps made a loud noise when they were pried off. In tape recorded statements given after his arrest, appellant said that he was home watching television with his wife and two children when he heard a loud noise outside his window. He said the noise was close by the window, and sounded like someone was trying to break into the house. The
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