People v. Chun (2009) 45 Cal.4th 1172, which held that shooting into an inhabited dwelling cannot form the basis for a second degree felony-murder conviction, applies retroactively to murder conviction that was final on appeal prior to the Chun decision. Hansen was convicted in 1992 of second degree murder, shooting at an inhabited dwelling (Pen. Code, § 246), and gun use. On appeal, the California Supreme Court affirmed his conviction, concluding that the offense of shooting into an inhabited dwelling could form the basis for a second degree felony-murder conviction. The court rejected the claim the shooting offense merged with a homicide that results from such a shooting. (People v. Hansen (1994) 9 Cal.4th. 300.) In People v. Chun, the Supreme Court overruled Hansen on this point. Hansen filed a petition for writ of habeas corpus after Chun was decided, asserting his jury was improperly instructed on second degree felony murder. The trial court granted the petition and the prosecution appealed the retroactive relief granted. Held: Affirmed. The California Supreme Court has applied a tripartite test for determining the retroactivity of judicial opinions to convictions not yet final on appeal. In In re Lucero (2011) 200 Cal.App.4th 38, the Third Appellate District applied this test and determined that Chun applies retroactively. The court here concluded that Lucero properly applied the tripartite test and followed the decision. As a result of the expanded merger doctrine test announced in Chun, some defendants who were previously convicted under the second degree felony-murder rule may be entirely innocent. While principles of finality and law of the case generally preclude habeas relief, in some circumstances these principles are unpersuasive where habeas relief is based on a change in the law. [Editor’s Note: In a footnote, the court noted that it could be argued that the California Supreme Court’s decision in People v. Mutch (1971) 4 Cal.3d 389 requires that Chun be applied retroactively to convictions that were final on appeal without reference to the tripartite test, but the court declined to decide the issue.]

The error in instructing the jury on second degree felony murder based on the underlying offense of shooting into an inhabited dwelling was prejudicial. Using the harmless error standard of Chapman v. California (1967) 386 U.S. 18, the court found the error prejudicial, as there was no basis in the record for concluding the verdict rested on a valid ground, i.e., conscious-disregard-for-life malice second degree murder. In making this determination the court examined the instructions, arguments of counsel, verdicts, and evidence presented. [Editor’s Note: Justice Benke dissented on this point. She concluded that the more deferential “grave doubt” harmless error standard set forth in Kotteakos v. United States (1946) 328 U.S. 750 should apply when the court engages in collateral review of a final judgment.]